NYONKOPA COCOA BUYING CO. LTD VRS. KUMAH (A2/08/21) [2024] GHACC 346 (27 November 2024)

IN THE CIRUCIT COURT-JUABEN ASHANTI REGION BEFORE HH ROSEMARIE AFUA ASANTE (MRS) HELD ON WEDNESDAY 27TH NOVEMBER 2024 SUIT NO. A2/08/21 NYONKOPA COCOA BUYING CO. LTD PLAINTIFF/COMPANY SONA CENTER AHOWDWO ROUNDABOUT KUMASI VRS DANIEL KUMAH DEFENDANTS EJIUSE MANHYIA SAMEUL OFORI KPABI PLOT 42 BLOCK F EJISU JUDGMENT This action is brought by the plaintiff company a limited liability company registered under the laws of Ghana and a subsidiary of Callebaut Ltd. The plaintiff 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 Company claims against the defendants jointly and severally as follows: 1 (a)Either an order of the recovery of Gh198,600.00 being the cash value of 301 bags of cocoa beans which 1st defendant was unable to account to the plaintiff company during the 2019/2020 cocoa season OR (b)An order of the enforcement of guarantee agreement executed among the parties by way of the judicial sale of property described as Plot 42, Block F Ejisu belonging to the 2nd defendant collatrized by himself for the due performance of 1st defendant’s duties with the plaintiff co. (c)Interest at the prevailing bank rate on the 198,660.00 from October 2020 till the date of final payment (d)Cost on indemnity Plaintiff’s case 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. However, an outstanding Gh198,660.00 meant for the purchase of 301 bags was misappropriated by the 1st defendant. However, several demands from the 1st defendant to repay the outstanding amount or deliver the equivalent bags of cocoa have proved futile. The 2nd defendant has also failed to redeem his guarantee. Defendant’s case The 1st and 2nd defendants filed a joint defence. According to the 1st defendant, he denies that he was a former employee of the company and still remains the District Manager of 2 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 number of bags in its monetary equivalent into the plaintiff’s account. It is his case that as district manager, he evacuated 4,369 of dried Cocoa beans in the name of the plaintiff company, however, over 500 bags of cocoa were not delivered by the Purchasing Cocoa 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 outstanding balance According to him, the 2nd defendant never executed an agreement for the performance of his work as a district manager with the plaintiff’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 mankraso the 1st defendant counterclaims as follows: - 1. An order for the plaintiff to pay the amount used to top up the purchase of the truck to convey the coca and outstanding commission for the season. 2nd defendant’s Case 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 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 his duties. It is the plaintiff’s case that the Gh149,160.00 meant for the purchase of 226 bags was misappropriated by the 1st defendant thereby affecting operations of the plaintiff company. The 2nd defendant on the other hand does not deny 3 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 counterclaims as follows: - 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 that the 1st defendant was district accts officer at mankranso B from august 2016-October 2018. b. Declaration that the 2nd defendant never executed any collateral agreement with plaintiff regarding 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 The plaintiff denies the plaintiffs’ claims and therefore joins issues generally with the defendant. Burden of Proof 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 evidence in support of his case ISSUE ONE Whether the 1st defendant is liable to the plaintiff company for the supply of outstanding 301 of cocoa dried beans valued at Gh198,330.00. 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 4 belonging to the 2nd defendant as collateral. I proceed to quote the relevant paragraphs of Exhibit A “Nyonkopa Cocoa Buying Limited (GUARANTEE AGREEMENT) This Agreement is made this 5th day of August 2016 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 Vafkey who is duly authorized to act (hereinafter referred to as “the COMPANY”) AND The Employee Name: Daniel Kumah, Residential Address: Ejisu, Jamasi, Postal Address:-P. O. Box Fn391, Kumasi Date Employed: 1st November 2015 Branch New Edubiasi Designation: District Manager AND 5 THE 1ST GUARANTOR Name: Samuel Ofori Occupation: ECG Substation Operator, BOADI, PLT 45 Block F, Ejisu AND THE 2ND GUARANTOR NAME: DANIEL KUMAH Occupation: Accountant Kumasi-Asokwa Exhibit A is not denied by the 2nd defendant; however, the 2nd defendant’s contention is that the agreement was for the period 2016 to 2018 when the 1s defendant was a district Accountant for Mankranso B from August 2016 to October 2018. Paragraphs D and E of Exhibit A reads: 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 occasioned by the employee during the period of employment and or any indebtedness of the employee. E. The company shall demand payment hereunder from one or the other or both of the Guarantors. 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 5th August 2016 when the 1st defendant was the district Manager at Edubiase. 6 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 examination as follows: - “Q:-I am putting it to you that the purchasing clerks are your agents A: I disagree. They are not our agents” 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 recruiting and handling the purchasing clerks adding that it was the sole preserve of the district manager. The purchasing clerks in my view are not part of the plaintiff company but belong to a licensed buying companies and therefore cannot be agents of them and cannot be jointly liable with the defendant. The role of the district manager was made clearer during cross examination as follows: “Q: You agree with me that the seed money for the purchase of dried beans is given to the defendant and the accountants of the society on weekly basis? A: The money is to be transferred to the District Account of which the defendant is the manager of that district. Q: you also agree with me that that accountant is signatory to the account A: That is so. But the accountant withdraws money from the said account upon the instruction of the District Manager.” 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 7 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 per Exhibit B which was revealed during cross examination as follows: - “Q: Per your paragraph 7 you claim you that the cocoa beans per bag as at 2019 was Gh660.00 that is 2019/2020 cocoa purchasing season 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 conveying of the cocoa from the district. 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 gave the defendants 3.50. A: That is not correct. The figure you quote is 2018/2019 Q: On your Exhibit B, 22nd October 2019 you transferred an amount of Gh155,550.00 to the district account oer your own exhibit? A: Yes, we did transfer the money to that account.” 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 missing was the price of cocoa per bag in respect of the Gh155,550.00 transferred to the accounts. 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 2019 cocoa season also revealed as follows: - 8 Q: I refer you again to October 15th 2019, you gave an amount of Gh311,100.00 to the defendant to purchase dry cocoa beans A: It is true. But I have indicated that it is a running account that is yearly account of which the total monies per the statement of account is 777,444 bags as indicated. Q: For this figure that is 311,100.00 how many bags were you expecting the defendant to determine a: i would seek leave of the court to refer. 471 bags” 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 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. On the 301 bags the 1st defendant does not deny that he was given money to purchase cocoa and this was revealed during cross examination as follows: - “Q: You say in your paragraph 9 that you are still making frantic efforts to retrieve all bags of cocoa which you say are with the purchasing clerks, isn’t it? A: Yes Q: The plaintiff gave you money to purchase cocoa for the 2019/2020 cocoa season, didn’t he? A: It is true 9 Q: You do not state in your witness statement the number of coca bags you were to purchase for the plaintiffs for the 2019/2020 cocoa season do you. A: It is true Q: Even though you indicate in you witness statement that there are bags of cocoa in arrears you don’t sate the number of bags in arrears, do you? A: The statement is not written by Me.” Cleary applying principles of balance of probabilities, whose story is more credible the plaintiff 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 plaintiffs in that cocoa season. What’s more in the month of October 2019 per Exhibit B various monies had been lodged in the account of the defendant which he does not deny but blames his inability to retrieve the said cocoa on the purchasing clerks who clearly were under his control in the district. 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 to the tune of Gh17,160.00 representing 33 bags of cocoa beans after the suit had been filed and tendered deposit slips to that effect. Having considered that a total of 33 bags with its corresponding sum of 17,160.00 has been paid, then 301 bags – 33=268 bags Gh198,600.00-Gh17,160.00=181,440.00 In conclusion the plaintiff is entitled to an amount of Gh181,440.00. 10 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, Block F Ejisu which stands as exhibit A. On the issue of the said plot being a matrimonial home, no such evidence was led to that effect and in my estimation as at 2015 the said property was encumbered. Finally, I come to the following conclusion a) Recovery of Gh181,440.00 being the cash value of 268 bags of cocoa beans from 1st defendant for the 2019/2020 cocoa season belonging to the plaintiff co.OR in the alternative (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 1st defendant’s duties with the plaintiff co. (c)Interest at the prevailing bank rate on the 181,440.00 from October 2020 till the date of final payment (d)Cost of15,000.00 The defendant’s counterclaim for an order for the plaintiff to pay the amount used to top up the purchase of the truck to convey the coca and outstanding commission for the season id dismissed since he was not able to prove his claim. 11 I also hereby order the immediate release of document covering plot No11 Nana Diko Street, krapa-Ashanti Region defendant since there is no guarantee agreement in respect of the said property. …………. SGD……………. HH Rosemarie Afua Asante (Mrs) Circuit Court Juaben-Ashanti Counsels Sandra Afrieyie holding brief for Kwaku Yeaboh appiah for the plaintiff Tony Mensah Abrampah for the defendant 12 13