LAMPTEY VRS. SARPOR (GJ 0041/2021) [2024] GHAHC 121 (21 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION) ACCRA HELD ON FRIDAY THE 21ST DAY OF JUNE, 2024 BEFORE HIS LORDSHIP, JUSTICE PATRICK BAAYEH (J) SUIT NO. GJ 0041/2021 RUBY LAMPTEY - PLAINTIFF B74/7 ANUSA CLOTTEY STREET KANESHIE, ACCRA VRS. STEPHEN OKINE SARPOR - DEFENDANT DOING BUSINESS IN THE NAME AND STYLE HONEST CHEF RESTAURANT JUDGMENT By an action filed on 14th October, 2020, the Plaintiff is claiming the following reliefs; a) Twenty percent (20%) shares in the business of Honest Chef Restaurant from January 2017 until March 2020. b) All equipment legitimately belonging to Plaintiff as listed in paragraph (5) above forthwith. c) Cost. The Defendant duly entered appearance and also filed his defence. He also counterclaimed for rent for keeping Plaintiff’s cooking utensils. The Plaintiff filed a reply 1 | P age to the Defendant’s statement of defence. At the close of pleadings, the issues adopted for trial are a) Whether or not there was a partnership agreement between the parties. b) Whether or not the plaintiff is entitled to her claim. c) Whether or not the defendant is entitled to his counterclaim. At the trial Plaintiff by gave evidence by herself and called one witness Nathaniel Nii Armah Okwabi (PW1). On his part the defendant gave evidence by himself and did not call any witness. At the close of the trial on 20th June, 2023 the court ordered the lawyers for the parties to file their addresses within two weeks and the case adjourned to 31st July, 2023 for judgment which however never came on. When the case came up for adoption of proceedings on 24th January, 2024, Counsel for the defendant told the court that he had not procured the proceedings. However on the next court date on 15th February, 2024 both defendant and his counsel failed to attend court. Proceedings were therefore adopted in their absence and counsel for defendant ordered to file his address by 15th March, 2024. The records show that these orders were duly served on counsel for defendant but up to date, he has failed to file his address. I therefore proceed to give this judgment without the input of the counsel for the Defendant. The case of the Plaintiff is rather simple and does not admit of any complexities as can be deduced from her statement of claim. Plaintiff is a caterer resident at Kaneshie, Accra while the Defendant is the proprietor of “Honest Chef Restaurant” also located at Kaneshie. It is Plaintiff’s case that sometime in 2016 she entered into an oral partnership agreement with the Defendant to operate the Honest Chef Restaurant jointly. It was agreed that plaintiff would be entitled to 20% shares of the restaurant. As part of 2 | P age Plaintiff’s contribution, she brought in assorted culinary equipments to augment what the defendant already had. In addition to being a partner, Plaintiff was also employed as a worker and was paid monthly salary. It is Plaintiff’s case that she began working on 2nd January, 2017 until March 2020 when the business closed down due to Covid 19 lock down. Plaintiff contends that throughout the period, the Defendant failed or refused to pay her the agreed 20% shares in the business even though she repeatedly reminded the Defendant of it. Eventually Plaintiff resigned from the business in July 2020. On his part the Defendant denied the claims of the Plaintiff and asserts that Plaintiff was employed as a caterer in the Honest Chef Restaurant and that there was never any partnership agreement. That the Plaintiff on her own offered to assist the initial establishment with some cooking utensils which were always understood to remain her property. The Defendant counterclaimed for; Rent assessed at GHȼ50.00 per day for each day that Plaintiff’s equipments has remained the custody of the Defendant commencing from the 1st August 2020 till date of collection of the items and cost including legal fees. Before I proceed to analyze the evidence of the parties in support of their respective statements of facts pleaded, I shall refer to the law and consider the burden of proof on the parties as prescribed by law in order to determine the issues one way or the other within the context of the evidence adduced. The general proposition of the law in civil matters has been captured in the principle “he who asserts must proof”. This proposition of the law was propounded in the case of MAJOLAGBE LARBI (1959) GLR 190 where OLLENU J (as he then was) quoting from his earlier unreported case of KHOURY & ANOR VS. RICHTER (1958) said; “ Proof in law is the establishment of facts by proper legal means, where a party makes an averment capable of proof in some positive way. Example by producing documents, description of things, reference to other facts, instances 3 | P age or circumstances, and his averment is denied, he has to prove, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence or the facts and circumstances, from which the court can be satisfied that what he avers is true” This proposition of law as stated above was restated by the Court of Appeal speaking through Kpega JA (as he then was) is the case of ZABRAMA VRS SEGBEDZIE (1991) 2 GLR 221 at P.226 that; “ …. a person who makes an averment or assertion which is denied by the opponent has a burden to establish that his assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred.” By Section 10(1) and (2) and Section 11(1) and (4) of the Evidence Act (1975) NRCD 323, the party who bears burden of proof must produce sufficient evidence of facts to prove his or her case. Failure to produce sufficient evidence means that his claim is bound to the fail. These provisions of the Act also provide that the standard of proof in all civil cases is by preponderance of probabilities. See ADWUBENG VRS DOMFEH (1996-97) (SCGLR) 600. In the case of IN RE ASAHALEY BOTWE LANDS, ADJETEY AGBOSU & ORS VRS KOTEY & ORS (2003-2004) SCGLR 420 at P.425, The Supreme Court speaking through Bobbey JSC (as he then was) said; “ The effect of Section 11 and Section 14 and similar sections in the Evidence Act (1975) NRCD 323 may be described as follows; a litigant who is a defendant in a civil case does not need to prove anything. The Plaintiff who took the 4 | P age defendant to court has to prove what he claims he is entitled from the Defendant. At the same time if the court has to make a determination of the facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favor then he has the duty to help his own course or case by adducing evidence before the court such facts or evidence that would induce the determination to be made in his favor. The logical sequel to this is that if he leads no such evidence or facts, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court which may turn out to be the only evidence of the Plaintiff.” See also ACKAH VRS PERGAH TRANSPORT LTD &ORS (2010) SCGLR 458@ 485. It is now trite law that matters which are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its nonexistence. In the instant case to proof her case, Plaintiff gave evidence and called one witness Nathaniel Nii Armah Okwabi (PWI) who is her husband while defendant gave evidence and did not call any witness. In this judgment I shall deal with issue (a) first and that is “Whether or not there was a partnership agreement between the parties” 5 | P age It is the Plaintiff’s case that as well as being an employee of the Honest Chef Restaurant, she has entered into a partnership agreement with the defendant and was entitled to 20% share in the business and by extension 20 percent share of the profits. According to Plaintiff this agreement was oral but to proof her case, she provided cooking utensils and other equipments she provided as consideration for the 20% share of the business. These equipments were one oven, one salamada, one microwave, oven one bread toaster, one cake mixer, one doughnut maker, two big rim stoves, one rim stove, one “dadesen 15”, one “dadesen” 12. One “dadesen” 10, one big washing pan, two medium washing pans, seven ice chests, 20 fufu bowls, one chips maker, one deep freezer, one fridge, four wooden laddles and seven plastic bowls. Plaintiff’s witness (PW1) Nathaniel Nii Armah Okwasi told the court that even though he was not present when Plaintiff and Defendant entered into the partnership agreements, they told him later after they had stated working together. Under cross examination PW1 was asked by counsel for defendant. Q: On the day in 2016, upon making the partnership agreements, where you present? A: I was not present but both plaintiff and defendant informed me of the agreement. 6 | P age The Defendant does admit that the Plaintiff brought her cooking utensils but pleads in paragraph 6 of his statement defence that; “6. The Plaintiff offered to assist the initial establishment with some cooking utensils which were always to remain her property”. He also states in his witness statement paragraph 17 thus; “Plaintiff offered to assist the restaurant with some cooking utensils belonging to her which were always to remain her property”. He however deny that he ever offered the plaintiff 20% share in the business. Defendant rather says that the Honest Chef Restaurant was a subsidiary of the “Lords Restaurant Ltd” which he owned with one Rev. Eric Offei Kwapong and they both own 50% shares in the Lords Restaurant. Defendants tendered in evidence EXH 5OS1 which is a certificate to commence business of the Lords Restaurant and it shows that the Lords Restaurant was incorporated on 19th October 2017. EXH 5OS2 (the Regulations of the Lords Restaurant Ltd) shows that it is owned by Defendant and Eric Offei Kwapong and each of them own 5,000 shares in the company. The Defendant stated in his witness paragraph 10, 11 and 12 thus; “10. Sometime in the year 2016, following a change in business strategy and the quest for expansion and growth, I entered into a partnership agreement with another, Rev. Eric Offei Kwapong. “11. The partnership agreement with Rev, Offei Kwapong ensued in the registration with the Registrar of Companies of a Private Company Limited by Shares, Lords Restaurant Ltd in October 2017. 7 | P age “12. Prior to the registration of the newly formed company, the Big Boss Restaurant at Awudome in Accra was acquired and renamed the Honest Chef Restaurant which operated as a subsidiary of the Lords Restaurant.” By this the Defendant is saying that the Honest Chef Restaurant is a subsidiary of the Lord’s Restaurant Ltd and is owned by himself and the said Eric Offei Kwapong. Defendant however, did not tender in evidence any certificate of registration of the Honest Restaurant as a subsidiary of the Lords Restaurant. It is Defendant’s case that since the business is owned by him and Rev. Eric Offei Kwapong, he could not have entered into any partnership agreement with the Plaintiff. However the Defendant gave himself away under cross examination which shows that the Honest Restaurant had nothing to do with the Lords Restaurant ltd. This is the dialogue that ensued between Defendant and counsel for the Plaintiff. Q: Can you please tell the court the name of the company you are operating the restaurant business? A: Honest Chef Q: You said in your witness statement that you are the Proprietor and Managing Director of 8 | P age Honest Chef Restaurant, is that not so? A: That is correct? Q: Is Honest Chef still in existence? A: Yes, my lord. Q: For how long has it been existence? A: For 29 years Q: Do you know one Rev. Eric Offei Kwapong? A: Yes, my lord Q: Is there any relationship between Rev. Eric Offei Kwapong and Honest Chef Restaurant? A: Honest Chef Restaurant is a company on its own. And I started a different restaurant with Rev. Offei Kwapong which has got nothing to do with Honest Chief. Q: What is the name of the different restaurant you started with Rev. Offei Kwapong? A: The Lords Restaurant. Quite clearly, contrary to Defendant’s assertion that Honest Chef is a subsidiary of the Lords Restaurant which he owns jointly with Eric Offei Kwapong, it has come out of his own mouth that Honest Chef Restaurant was in existence before He and Rev. Eric Offei Kwapong incorporated the Lords Restaurant and that these two entities are independent of each other. It must be noted that throughout, defendant’s pleadings there was no mention of the Lords Restaurant Ltd and he only introduced his association with Rev. Eric Offei 9 | P age Kwapong in his witness statement. Thus, there is a vast difference between Defendant’s statement of defence and his evidence in court. To further demonstrate this, I wish to refer to the cross examination of Defendant by counsel for Plaintiff. He was asked. Q: At the material time that Plaintiff worked with you, you knew where she lived A: That is correct. Q: Again at the material time you knew plaintiff’s father’s house where she had a store room for her utensils, is that not correct. A: That is correct. Q: Before you took over the Lord’s Restaurant, the Plaintiff was already working there? A: That is not correct. Q: Tell this Honourable court, when you had your personal encounter with the Plaintiff? A: I cannot recollect the exact date. I was running the Lord’s Restaurant when it collapsed. So I decided to rent out the house. A woman by name Alice asked to rent the place, that is when I got to know the Plaintiff. The said Madam Alice sent the Plaintiff to me. Q: When you rented the Lords Restaurant to Madam Alice Wilson, the Plaintiff was working with her as a caterer. Is that not the case? A: That is correct. 10 | P age Q: Do you remember when you came across a defunct restaurant by name Big Boss? A: Yes, my lady. Q: And you showed interest in Big Boss and directed the Plaintiff to find out the owners? A: That is not correct. Q: I put it to you that it was the Plaintiff you assigned the duty to get the owners of Big Boss so that you could rent it. A: That is not correct Q: You did take over Big Boss, is that not so? A: That is so. Q: It is Big Boss you changed to Honest Restaurant? A: That is correct. It would be seen that the Plaintiff played a crucial role in the establishment of the Honest Chef Restaurant and this is confirmed in the Defendant’s own paragraph 6 of his statement of defence and also in witness statement. I hold therefore that the Lords Restaurant and the Honest Chef Restaurant are two different entities which have nothing in common operationally except that the Defendant is involved in both of them but operationally, they are completely separate and independent of each other and is not a subsidiary to the other. In my view it was because 11 | P age the Defendant’s denial of any partnership agreement with Plaintiff that he belatedly introduce Rev. Eric Offei Kwapong into the equation to make it look like there was no partnership agreement with Plaintiff because of Rev. Eric Offei Kwapong. In deciding whether or not there was a partnership agreement, one must look at all the material facts upon which the contract is based. Under cross examination counsel for the Defendant sought to create the impression that since the contract was not written, it cannot be enforced. Section 11 of the Contract Act (1960) Act 25 provides that; “ subject to this Act, and to any other enactment, a contract whether made before or after the commencement of this Act is not void or unenforceable by reason only that it is not in writing or that there is no memorandum or note thereof in writing.” Thus, by our contract Act, a contract need not be in writing to be enforceable except in situations where the law specifically provide so of contracts involving land transactions. In the case of KOBAKU VRS OWUSU 2005 DL CA 992, Per Heward Mills J (as he then was) held that; “ where a contract is not required to be in writing the existence and contents of such contracts must be proved. The court must look at all the material facts upon which the contract is based in order to ascertain what was really decided by the parties. An oral contract not reduced into writing is binding nevertheless so long as there is clear evidence as the essential terms and the actual intentions of the parties.” 12 | P age But was there any intention to create any legal relations of partnership? The conduct of the parties has to play a pivoted role in deciding this. This was a business transaction and the Defendant was according to his own pleadings (paragraph 6); “ Plaintiff offered to assist the initial establishment with some cooking utensils…...” The restaurant was at an initial stage of establishment. Defendant himself has testified (witness statement) that he was operating a small restaurant from his home and provided private catering service and then in 2016 he acquired a closed down restaurant called Big Boss Restaurant at Awudome and renamed it Honest Chef Restaurant. Indeed, Plaintiff testified that she personally went for the keys and it took them about 6 months to clean up the place and put it in a condition for operation of a restaurant. Hence Defendant used the word “initial stage or establishment”. Defendant admit he employed other staff apart from the Plaintiff yet none of these staff provided cooking utensils of any kind. Thus, Plaintiff was at the forefront of the establishment of the Honest Chef Restaurant. What would motivate a mere employee to provide equipments for the operation of the business if he/she is not to denial some economic benefits? In the case of BOOKER VRS PALMER 2 ALL ER 674 at 677 CA, Lord Green … said; “ There is one golden rule which is of general application, namely, that the law does not impute intention to enter legal relationship where the circumstances and the conduct of the parties negate any intention of the kind” It was also held in the case of NTHC LTD VRS ANTWI (2009) SCGLR 117 that; “ An offer was an indication in words or by conduct by an offeror that he was prepared to be bound by a contract in the term expressed in the offer in the event of the offeree communicating to the offeror his acceptance of those 13 | P age terms. Thus the mere acceptance of an offer would be sufficient to turn the offer into a contract; if there was consideration for it together with an intention to create legal relations. Accordingly, the offer has to be definite and final and must not leave significant terms open for further negotiation, and by the words “significant terms” was meant terms that were essential to the bargain contemplated. However, where a communication during negotiations was not the final expression of an alleged offeror’s willingness to be bound, it might be interpreted as an invitation to the other party to use it as a basis for formulating an offer” In the instant case, the agreement was oral and made between Plaintiff and Defendant without any witness but PW1 told the court that both Plaintiff and Defendant informed him about the agreement. Secondly, among the staff of the Honest Chef Restaurant, it was only the Plaintiff who provided equipment for the use of the restaurant. Indeed, as we speak the utensils are still in the custody of the defendant. The Defendant’s claims that he only became aware of the plaintiff’s demand for the 20% share of the Honest Chef Restaurant when plaintiff resigned and her lawyers wrote to him cannot be true. This is so because in her resignation letter dated 28th July, 2020 (EXH S0S2) the plaintiff made reference to the partnership. She stated in EXH S0S2 that; “ I wish to tender my resignation effective from 29th July, 2020 due to mal administration of a partnership business rather than a sole proprietorship organization. “ I entreat you to fully observe the rules governing partnership business and address all issues there in”. “ I own twenty percent (20%) shares in the company at the defunct Big Boss premises at Kaneshie.” 14 | P age This confirms plaintiff’s evidence that all her demands for her share of the 20% was not headed by the Defendant. Indeed, the Defendant’s claim that he was running Honest Chief Restaurant before forming a new company with Rev. Eric Offei Kwapong cannot be true. From the totality of evidence on record especially the conduct of the parties. I hold that there was a partnership agreement between the parties. Plaintiff is therefore entitled to the relief she is claiming and I enter judgment for Plaintiff. There is no evidence as to the manner or type of entity the Honest Chef Restaurant was registered. Whether as a limited liability, sole proprietorship, etc. The Defendant introduced himself in his witness statement as the “Proprietor and Managing Director” of Honest Chef Restaurant. He did not tender any certificate of incorporation or certificate to commence business. EXH 50S1 which he tendered evidence is respect of the Lords nRestaurant Ltd. There is no evidence that any account has ever being filed. It is therefore difficult as to how much profit or loss was made in the Honest Chef Restaurant during the period i.e from January 2017 to August 2020. During the trial plaintiff gave the value if her utensils she provided as between 300 and 350 million cedis which is now GHȼ30000 and GHȼ35000 in the new currency. The cross examination of the Plaintiff by counsel for the defendant gives some insight into how 20% share was arrived at. Plaintiff was asked; Q: Which of the document before this court is proof of you being a party to this agreement? A: Per the agreement the defendant told me that because of the things that I had brought they are going to be base on that to give me the 20% of the proceeds. 15 | P age Q: How much was a value of a share which you claim was granted to you. A: He (defendant) did not tell me the value but what defendant told me was that he was going to make sure that I am given 20% of the shares. Q: So therefore you gave your valuable consideration for your allocation of shares. A: The things I gave out which are still with them till date and they are working is valuable consideration. Q: Have you ever received any form of shareholding. A: I have not received any share certificate. However my husband Mr. Okwabi was invited by the defendant and informed my husband that we are about to commence work but because I do not have enough funds to put into the business, he will base on the things I bring on board and give me 20% shares and this my husband agreed to. The defendant came home and we all confirmed this agreement in my husband’s house. Q: You will agree that the restaurant was working even before you brought your utensils, is that not correct? A: That is not so. The restaurant was not working, I went in search of the key to open the place and we cleaned the place up before work began and this took us about six months. 16 | P age From the above evidence of plaintiff, the defendant made her understand that the shareholding of 20% was based on the utensils she brought to the business. Thus, Plaintiff’s equipment were used by the Honest Chef Restaurant from January 2017 to August 2020 and even to date since Defendant has not returned them to plaintiff. It is therefore assumed that defendant is still using Plaintiff’s equipment in the business. I do not think it would be fair to order a return of plaintiff’s equipment to her after using them from January 2017 to date, a period of over 7 years. Some of these equipment would have been rendered useless by now or even obsolete. In the circumstances I would order the Defendant to pay for the cost of the equipments being GHȼ35,000 to attract interest from January 2017 to date of payment at the commercial bank rate. Since no figures have been published by defendant before the court, it is almost impossible for me to know what profits were made during the period. In the circumstances I would rather award plaintiff a sum of money in the form of general damages of GHȼ100,000 for breach of contract. The Defendant counterclaim for rent for keeping plaintiff’s equipment at the rate of GHȼ50 per day till date of collection is dismissed in view of my holding that defendant pays for the equipment at an interest based on the value of the equipment as at 2017. Cost of GHȼ30,000 for Plaintiff. JUSTICE PATRICK BAAYEH (J) (JUSTICE OF THE HIGH COURT) COUNSEL ADAM MOHAMMED HOLDING BRIEF FOR NASHIRU YUSSIF FOR THE PLAINTIFF 17 | P age CHARLES OFORI HOLDING BRIEF FOR CAPTAIN RTD EFFAH-DARTEY FOR THE DEFENDANT 18 | P age