NYONKOPA COCOA BUYING CO. LTD V KUMAH & ANOR (A2/08/21) [2024] GHACC 394 (27 November 2024)

INTHECIRUCITCOURT-JUABENASHANTIREGION BEFOREHHROSEMARIEAFUA ASANTE(MRS)HELD ON WEDNESDAY27THNOVEMBER2024 NYONKOPACOCOABUYINGCO.LTD PLAINTIFF/COMPANY SONACENTER AHOWDWOROUNDABOUT KUMASI VRS DANIELKUMAH DEFENDANTS EJIUSEMANHYIA SAMEULOFORIKPABI PLOT42BLOCKF EJISU SuitNo.A2/08/21 JUDGMENT Thisactionisbroughtbytheplaintiff companyalimitedliabilitycompanyregisteredunderthe laws of Ghana and a subsidiary of Callebaut Ltd. Theplaintiff company carries on business as a licensed purchaser with the name Nyonkonpa Buying Company Ltd in the cocoa buying industry. By a writ dated 12th March 2021 the plaintiff company herein referred to as the Companyclaimsagainstthedefendantsjointlyandseverallyasfollows: 1 (a)Eitheranorderoftherecovery ofGh198,600.00beingthecashvalueof301bagsofcocoa beanswhich 1stdefendantwasunabletoaccounttotheplaintiffcompanyduringthe2019/2020cocoaseasonOR (b)Anorderoftheenforcementofguaranteeagreementexecutedamongthepartiesbywayof thejudicial sale of property described as Plot 42, Block F Ejisu belonging to the 2nd defendant collatrized by himself forthedueperformanceof1stdefendant’sdutieswiththeplaintiffco. (c)Interestattheprevailingbankrateonthe198,660.00fromOctober2020tillthedateoffinalpayment (d)Costonindemnity Plaintiff’scase The case for the plaintiff is that the 1st defendant was employed as a district Manager by the plaintiff. The 2nd defendant in turn guaranteed the due performance of 1st defendant’s duties to receive money and purchase cocoa beans for the plaintiff with original documents covering the 2nd defendant’s property Plot 42 Block F Ejisu as collateral for monies advanced by plaintiff to the 1st defendant. During, the 2019/2020 cocoa season, the 1st defendant was entrusted with funds for the sole purpose of purchasing coca beans, a core duty of the plaintiff’s company. HoweveranoutstandingGh198,660.00meantforthepurchaseof301bagswasmisappropriated bythe1st defendant.Howeverseveral demands fromthe1st defendant torepaytheoutstanding amount or deliver the equivalent bags of cocoa have proved futile. The 2nd defendant has also failedtoredeemhisguarantee. 2 Defendant’scase The1st and2nddefendants filedajointdefence.Accordingtothe1st defendant, hedenies thathe was a former employee of the company and still remains the District Manager of the Plaintiff plaintiff’s company. The 1st defendant claims that the cocoa beans are with the purchasing clerks adding that he has been able to retrieve some bags of cocoa and has since paid the numberofbagsinitsmonetaryequivalentintotheplaintiff’saccount. Itishiscasethatasdistrictmanager,heevacuated4,369ofdriedCocoabeansinthenameofthe plaintiffcompany,however,over500bagsofcocoawerenotdeliveredbythePurchasingCocoa Clerks (PCs) in the district during the first phase. The 1st defendant managed to retrieve 27 bags out of the 500 bags from the purchasing clerks and this was handed to the plaintiff company in order to reduce the outstandingbalance According to him, the2nd defendant never executedanagreementfortheperformanceofhisworkasadistrictmanagerwiththeplaintiff’s company. Also no collateral was executed in respect of property Number plot 11 nana Diko Lwarteng street, /Ejisu krapa for the 2019/2020 season when he was a district manager for mankrasoThe1stdefendantcounterclaimsasfollows:- 1. Anorderfortheplaintifftopaytheamountusedtotopupthepurchaseofthetrucktoconveythe cocaandoutstandingcommissionfortheseason. 2nddefendant’sCase The 2nd defendant issued a guarantee agreement in respect of her property Plot No. 11 as collateral for monies paid to the 1st defendant during his employment as district manager 3 Mankranso A of the plaintiff company. In this regard between 2019 and 20220 of the cocoa season, the 1st defendant was entrusted with money for the purchase of cocoa beans as part of hisduties.Itis theplaintiff’scasethattheGh149,160.00meantforthepurchaseof 226bags was misappropriatedby the1st defendant thereby affecting operations of theplaintiff company. The 2nd defendant on the other hand does not deny that she executed an guarantee for the due performance of the 1st defendant as District Accountants for Mankranso B from august 2016 to October 2018 which the 1st defendant claims that he discharged his duties creditably and counterclaimsasfollows:- a. An order for the plaintiff co, to release to the 2nd defendant documents covering plot No11 Nana Diko street, krapa-Ashanti Region since it was only for a limited duration thatthe1st defendantwasdistrictacctsofficeratmankransoBfromaugust2016-October 2018. b. Declarationthatthe2nddefendantneverexecutedanycollateralagreementwithplaintiff regardingplotNo11NanaDikostreet,krapa-AshantiRegionforthedueperformanceof the plaintiff co during the 1st defendant employment as district manager for mankranso from2019/2020cocoaseason Theplaintiffdeniestheplaintiffsclaimsandthereforejoinsissuesgenerallywiththedefendant. 4 BurdenofProof The burden of the proof is on both parties since the plaintiff claims and the defendant counterclaims and therefore the burden is on each party to proof his case by leading cogent evidenceinsupportofhiscase ISSUEONE Whetherthe1stdefendantisliabletotheplaintiffcompanyforthesupplyofoutstanding301 ofcocoadriedbeansvaluedatGh198,330.00. In 2019/2020 301 bags of cocoa equivalent of Gh198,660.00 meant for the purchase of cocoa beans was not effected by the plaintiff which forms part of his core duties. The plaintiff tendered Exhibit A, a continuing agreement which is plot 42 Block F, Ejisu belonging to the 2nd defendantascollateral.I proceedtoquotetherelevantparagraphsofExhibitA “NyonkopaCocoaBuyingLimited 5 (GUARANTEEAGREEMENT) ThisAgreementismadethis5thdayofAugust2016 BETWEEN Nyonkopa Cocoa Buying Limited a limited buying company incorporatedunder the laws of /Ghana of P O 7915, Kumasi-TAT Asokwa Ind area acting its managing Director or Mr. Joshy Vafkeywhoisdulyauthorizedtoact(hereinafterreferredtoas“theCOMPANY”) AND TheEmployee Name:DanielKumah, ResidentialAddress:Ejisu,Jamasi, PostalAddress:-P.O.BoxFn391,Kumasi DateEmployed:1stNovember2015 BranchNewEdubiasi Designation:DistrictManager AND THE1STGUARANTOR Name:SamuelOfori 6 Occupation:ECGSubstationOperator,BOADI,PLT45BlockF,Ejisu AND THE2NDGUARANTOR NAME:DANIELKUMAH Occupation:Accountant Kumasi-Asokwa Exhibit A is not denied by the 2nd defendant, however the 2nd defendant’s contention is that the agreementwas for the period 2016 to 2018 when the1s defendant was a district Accountant for MankransoBfromAugust2016toOctober2018. ParagraphsDandEofExhibitAreads: D. The Guarantors herein have jointly and severally agreed to be the employee’s guarantors for this purpose and in that regard IRREVOCABLY GUARANTEE and or agree to fully compensate and or reimburse the COMPANY in event of any shortage or loss or default or damage howsoever caused or occasionedbytheemployeeduringtheperiodofemploymentandoranyindebtednessoftheemployee. E.ThecompanyshalldemandpaymenthereunderfromoneortheotherorbothoftheGuarantors. The above s undoubtedly showed that the agreement was an irrevocable guarantee to compensate the plaintiff in the event of any losses. The agreement was executed on 5thAugust 2016whenthe1stdefendantwasthedistrictManageratEdubiase. 7 At paragraph 12 of the defendants witness statement he states “I will say that I do not owe the plaintiff any money or cocoa. The said cocoa beans are with the purchasing clerks who are agents of the plaintiff.” This brings to fore the role the purchasing clerks play in the plaintiff Company. The plaintiff deny that the purchasing clerks are their agents and this was evident during cross examinationasfollows:- “Q:-Iamputtingittoyouthatthepurchasingclerksareyouragents A:Idisagree.Theyarenotouragents” However the plaintiff admitted that the purchasing clerks are paid commissions through the District manager through the District Account and the District manager was responsible for recruitingandhandlingthepurchasingclerksaddingthatitwasthesolepreserveoftheDistrict manager. The purchasing clerks in my view are not part of the plaintiff company but belong to alicensedbuyingcompaniesandthereforecannotbeagentsofthemandcannotbejointlyliable with the defendant. The role of the District manager was made clearer during cross examinationasfollows: “Q: You agree with me that the seed money for the purchase of dried beans is given to the defendant and theaccountantsofthesocietyonweeklybasis? A:The money is to be transferred to the District Account of which the defendant is the manager of that district. Q:youalsoagreewithmethatthataccountantissignatorytotheaccount 8 A: That is so. But the accountant withdraws money from the said account upon the instruction of the DistrictManager.” Gleaning from the above the 1st defendant was in charge of the district and monies were withdrawn upon his instruction. Thus the plaintiff’s claim that the plaintiff owed him Gh198,600 means that a bag of cocoa in the 2019/2020 coca season was gh660.00. However this figure was challenged by the defendants who claim that the plaintiff transferred Gh155,550.00 perExhibitBwhichwasrevealedduringcrossexaminationasfollows:- “Q: Per your paragraph 7 you claim you that the cocoa beans per bag as at 2019 was Gh660.00 that is 2019/2020cocoapurchasingseason A: That is so. But there is an explanation. The price of a bag of cocoa at the 2019/2020 cocoa season was 665.00 and then there is a top up of Gh5.00 which they use for to enable them pay arrears and also the conveyingofthecocoafromthedistrict. Q: I am putting it to you that the dry coca beans as at 2019/2020 was 515 and the top up as you people gavethedefendants3.50. A:Thatisnotcorrect.Thefigureyouquoteis2018/2019 Q: On your Exhibit B, 22nd October 2019 you transferred an amount of Gh155,550.00 to the district accountoeryourownexhibit? A:Yeswedidtransferthemoneytothataccount.” 9 Thus from the above the gh155,550.00 was transferred in the 2019 cocoa season which the plaintiff indicated that the amount included the price of a bag and top up. However what was missingwasthepriceofcocoaperbaginrespectoftheGh155,550.00transferredtotheaccounts. The plaintiff’s answers suggested that this was a yearly account and was therefore not possible to take only one transaction and say that it was not delivered. Thus per my understanding the yearly account referred to was the 2019 cocoa season year and which this court needs to arrive at the price per cocoa bag at the 2019 cocoa season. Further cross examination in respect of the 2019cocoaseasonalsorevealedasfollows:- Q: I refer you again to October 15th 2019, you gave an amount of Gh311,100.00 to the defendant to purchasedrycocoabeans A: It is true. But I have indicated that it is a running account that is yearly account of which the total moniesperthestatementofaccountis777,444bagsasindicated. Q: Forthisfigurethatis311,100.00howmanybagswereyouexpectingthedefendanttodetermine a:iwouldseekleaveofthecourttorefer.471bags” Thus by dividing Gh311,100 by 471 bags showed that the cocoa per bag was 660.00. With the above it is not in dispute that the plaintiff in the month of October 2019 transferred money to the defendant for the purchase of cocoa at different times and therefore the defendants claim that the plaintiff had failed to advance monies for the purchase of cocoa is untenable. Indeed it was evident that the defendant at some point in time had been able to zerorize his balance namely in the 2017/2018 and 2018/2019 cocoa season which of course did not cause any 10 problems for the plaintiff company. The defendants claim that the plaintiffs rather owed the defendants 468 bags, yet they did not counterclaim for it and did not even prove same in their evidence.Onthe301bagsthe1stdefendant doesnotdenythathewasgivenmoneytopurchase cocoaandthiswasrevealedduringcrossexaminationasfollows:- “Q: You say in your paragraph 9 that you are still making frantic efforts to retrieve all bags of cocoa whichyousayarewiththepurchasingclerks,isn’tit? A:Yes Q:Theplaintiffgaveyoumoneytopurchasecocoaforthe2019/2020cocoaseason,didn’the? A:Itistrue Q: You do not state in your witness statement the number of coca bags you were to purchase for the plaintiffsforthe2019/2020cocoaseasondoyou. A:Itistrue Q: Even though you indicate in you witness statement that there are bags of cocoa in arrears you don’t satethenumberofbagsinarrearsdoyou? A:ThestatementisnotwrittenbyMe.” Clearyapplyingprinciplesofbalanceof probabilities, whosestoryismorecredibletheplaintiff or the defendants? The plaintiffs had established the amount of money owed with the corresponding cocoa bags at 301. The coca season was specifically stated at 2019/2020 cocoa season which is corroborated by the 1st defendant who states that he received money from the 11 plaintiffs inthatcocoaseason. What’s morein themonthof October2019perExhibit B various monieshadbeenlodgedintheaccount ofthedefendantwhichhedoesnotdenybutblameshis inability to retrieve the said cocoa on the purchasing clerks who clearly were under his control inthedistrict. The defendants on the other hand, rather state that the plaintiffs owes them 479 bags, yet the corresponding money was not stated. Indeed the defendant claims that he has made some payments tothetuneofGh17,160.00representing33bagsof cocoabeans afterthesuithadbeen filed and tendered deposit slips to thateffect. Having considered that a total of 33 bags with its correspondingsumof17,160.00hasbeenpaid,then 301bags–33=268bags Gh198,600.00-Gh17,160.00=181,440.00 InconclusiontheplaintiffisentitledtoanamountofGh181,440.00. I move to the 2nd defendant’s claim to release his document which has as its address plot No11 Nana Diko street, krapa-Ashanti Region for the due performance of the plaintiff co during the 1st defendant employment as district manager for mankranso from 2019/2020 cocoa season. It is the 2nd defendant’s claim that he has not entered into any such agreement. From the witness statement of the plaintiff plot No11 Nana Diko street, krapa-Ashanti Region for the due performance of the plaintiff co during the 1st defendant employment as district manager for mankranso from 2019/2020 cocoa season. From Exhibit A there is no evidence of the said property per exhibit A. the attached guarantee is in respect of Plot 42, Block F Ejisu Plot 42, 12 BlockFEjisuwhichstandsasexhibitA.Ontheissueofthesaidplotbeingamatrimonialhome, no such evidence was led to that effect and in my estimation as at 2015 the said property was encumbered. Finally,Icometothefollowingconclusion a)Recovery of Gh181,440.00 being the cash value of 268 bags of cocoa beans from 1st defendant for the 2019/2020cocoaseason belongingtotheplaintiffco.ORinthealternative (b)I hereby order for the enforcement of guarantee of the judicial sale of property described as Plot 42, Block F Ejisu belonging to the 2nd defendant which is a collateral by himself for the due performance of 1stdefendant’sdutieswiththeplaintiffco. (c)Interestattheprevailingbankrateonthe181,440.00fromOctober2020tillthedateoffinalpayment (d)Costof15,000.00 The defendant’s counterclaim for anorder for the plaintiff to paythe amount usedto top upthe purchase of the truck to convey the coca and outstanding commission for the season id dismissed since he was not abletoprovehisclaim. I also hereby order the immediate release of document covering plot No11 Nana Diko street, krapa- AshantiRegiondefendantsincethereisnoguaranteeagreementinrespectofthesaidproperty. …………..SGD……………. HHRosemarieAfuaAsante(Mrs) CircuitCourt 13 Juaben-Ashanti Counsels SandraAfrieyieholdingbriefforKwakuYeabohappiahfortheplaintiff TonyMensahAbrampahforthedefendant 14 15