SALOM PHARMACY LTD VRS. SARKODIE (GR/KB/CCT/A2/08/2021) [2024] GHACC 369 (24 June 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON MONDAY THE 24TH DAY OF JUNE, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE CASE NO. GR/KB/CCT/A2/08/2021 SALOM PHARMACY LTD PLAINTIFF VRS WILLIAM OKOH SARKODIE DEFENDANT PLAINTIFF’S REPRESENTATIVE ABSENT DEFENDANT PRESENT COUNSEL FOR PLAINTIFF LAWRENCE ASANTE AHENKORAH ABSENT COUNSEL FOR DEFENDANT ALFREDINA ASARE HOLDING THE BRIEF OF S.Y. FELIX NTOSO PRESENT JUDGMENT Plaintiff, per the writ of summons and statement of claim filed on 26th April, 2021 as well its reply filed on 22nd October, 2021, claims against Defendant the following; i. Recovery of the sum of One Hundred and Forty Thousand, Nine Hundred and Eighty Eight Ghana Cedis, Thirty One Pesewas (GH¢140,988.31) being the defendant’s indebtedness ii. In the alternative, an Order for the judicial sale of the said landed property given to the plaintiff as security in satisfaction of the defendant’s indebtedness iii. Interest on the said sum of GH¢140,988.31 at the prevailing interest rate up to and until date of final payment iv. Costs including legal fees Defendant, per his amended statement of defence filed on 30th November, 2021 denies the allegations of Plaintiff and says that Plaintiff is not entitled to any of its claims and or at all. Wherefore, Defendant counterclaims as follows; 1 i. The payment of GH¢4,953.30 being the accumulated salary payable to Defendant for leaves he was denied ii. For the recovery of an amount of GH¢18446 being accumulated salary from September 2019 till date and interest thereon. PLAINTIFF’S CASE Plaintiff is a limited liability company registered under the laws of Ghana, which imports and manufactures pharmaceutical products with its registered head office at Asokore Mampong, Kumasi. Defendant is an ex-employee of the Plaintiff Company, “Plaintiff” and a resident in Accra. Plaintiff avers that Defendant was the sales representative of the Plaintiff assigned to sales outlets in the Upper East, Upper West and Western Regions of the Republic of Ghana. Plaintiff says that as part of the contractual agreement between the parties or by implication of the course of dealings between them, Defendant sold Plaintiff’s products to its customers in the said regions on its behalf and then rendered accounts for the proceeds, which were in the form of cash and cheques, either instant or post- dated. Plaintiff further avers that as of 31st December, 2019, Defendant could not account for the various pharmaceutical products entrusted in his care, which amounted to One Hundred and Forty Thousand, Nine Hundred and Eighty Eight Ghana Cedis, Thirty One Pesewas (GH¢140,988.31). According to Plaintiff, Defendant admitted misappropriating such money of Plaintiff and Defendant together with his parents came to meet the Managing Director of Plaintiff to resolve the issue by firmly promising to pay off Defendant’s outstanding liability to Plaintiff. Defendant thus deposited the documents covering his landed property situate, lying and being at Kwabenya, Accra as security for the payment of his indebtedness to Plaintiff. That on or about July, 2020, Plaintiff herein caused his lawyers to write a demand notice to Defendant in respect of his indebtedness but Defendant blatantly ignored same. Plaintiff says that Defendant has evinced a clear intention and attitude not to pay his liability unless compelled by an order of the Honourable Court. Plaintiff states in addition that Defendant enjoys at least 4-6 off days in every month because after his weekly trips/trecks, he stays home for at least three (3) days before embarking on his next trip, which was officially sanctioned. Further, Defendant’s retained commission was just one source to repay his indebtedness and that his two years full commission cannot or could not have repaid all his outstanding indebtedness to Plaintiff. Thus, Defendant is not entitled to his counterclaim. 2 DEFENDANT’S CASE Defendant on the other hand denies the allegations and says that to the best of his knowledge, he is still an employee of Plaintiff. Defendant admits to meeting the Managing Director of Plaintiff with his mother, sister and wife but that he never admitted at the meeting to owing Plaintiff the said amount as being claimed by Plaintiff. Save that documents covering Defendant’s properties are currently in possession of Plaintiff, Defendant denies that he deposited them as security. Defendant says he was employed in the service of Plaintiff sometime in 2004 as a sales representative. His work was to load drugs from the ware house of Plaintiff initially at Adum Kumasi and later on at Mampong for distribution in Upper West Region. Later on, Upper East was added and much later, Western Region. Defendant also says that after distribution, some customers pay directly to him, others issue cheques and that apart from monthly salary, he also receives commission for the amount of sales he makes at the end of each trip. According to Defendant, he has worked faithfully for Plaintiff for the past fifteen (15) to seventeen (17) years without any fraud, malfeasance of act of corruption ever recorded in his work. Further, he never enjoyed his annual leave for the 17 years he worked with Plaintiff but he was not paid any additional salary for the forfeiture of the leave, which amounts to GH¢4,953.30. Defendant further says that in 2017, he was shocked to have been told that internal auditors had identified some shortage in his payments, totalling GH¢87,910. 37. Defendant says he does not owe Plaintiff any such amount and does not believe same to be true. Defendant also says some customers in one of his trips bought drugs from him in Upper East Region but did not pay. The said amount of GH¢20,000.00 has been included as his debt even though the buyers later issued cheques in the name of the company which did not go through. Defendant further says that an amount of GH¢13,000 included in his debts were debts owed the Plaintiff but the person who took over from him as the Accra representative refused to chase the debtors for it. Defendant says again that an amount of GH¢12,527 included as his debt incurred in 2019 were debts owed the Plaintiff but because the person who took over from him as representative for the Northern Regions refused to chase the debtors for it, same has been debited to him. According to Defendant, he was asked to deposit documents of his landed property and those covering his house as evidence that he will not run away. Further, he had agreed with Defendant that he would continue to be on his salary but his commission would be used to defray his debts until same was retired. 3 As a result, he worked from 2017 and by 2019, he had paid GH¢74,910. Just when he was about to finish paying the amount, Plaintiff added another GH¢52,000 as additional debt from supposed shortages and without notice to him, verbally told him to stop working. If he was allowed to remain at work, his commission alone would have been able to settle the said alleged debt. Defendant says from August 2019 up till November, 2021, thus for a period of 27 months he has not been paid his salary which amounts to GH¢18446. In any case, he does not owe Plaintiff and a proper auditing of the books of Plaintiff is of utmost importance to determine the claim of Plaintiff. ISSUES FOR DETERMINATION The issues for determination as adopted by the Court, based on the issues filed by Plaintiff are as follows: i. Whether or not the Defendant was in the employment of the Plaintiff Company and entrusted with the Plaintiff’s pharmaceutical product for sale? ii. Whether or not the Defendant acknowledged his indebtedness to the Plaintiff Company and secured the payment with his landed property? iii. Whether or not the Defendant is indebted to the Plaintiff Company? iv. Whether or not the Plaintiff Company owes the Defendant any salary? BURDEN OF PROOF Section 10 (1) of the Evidence Act, 1975, (Act 323) provides the burden of persuasion as “…the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.” Section 11 (1) further defines the burden of producing evidence as “…the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Further, per Section 14 of Act 323, “Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. Thus, the basic principle in the law of evidence is that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim. This has been the guiding principle in deciding civil cases, a case to this effect being EFFISAH V ANSAH [2005-2006] SCGLR 943. 4 In this regard, per the claims of Plaintiff and Defendant, they, on their respective parts, have a burden to discharge to adduce sufficient evidence on the issues raised to avoid a ruling against them. The standard of the burden is one of preponderance of probabilities, as provided in Sections 11(4) and 12 of Act 323. (See BISI & OTHERS V TABIRI ALIAS ASARE [1987-1988] 1 GLR 360 at page 361). EVIDENCE ADDUCED EVIDENCE OF PLAINTIFF Plaintiff testified by its representative, Joseph Nketia Asiedu. Plaintiff’s evidence was based on its pleadings and the following documents tendered; i. A copy of document to evidence financial shortage of One Hundred and Forty Thousand, Nine Hundred and Eighty Eight Ghana Cedis, Thirty One Pesewas (GH¢104,988.31) as Exhibit ‘A’ ii. Documents covering Defendant’s landed property handed over by Defendant to Plaintiff as a security of his preparedness to settle his indebtedness of GH¢140,988.31 as Exhibit ‘B’ series iii. An Undertaking given by Defendant to Plaintiff to settle the debt as Exhibit ‘C’ iv. A copy of Demand Notice from Plaintiff’s lawyers to Defendant which Defendant refused to reply to but visited the lawyers’ offices with the old assurance of paying the debt as Exhibit ‘D’ v. Documents to the effect that Defendant enjoyed annual leave as Exhibit ‘E’ vi. Record of returned bounced cheques as Exhibit ‘F’ EVIDENCE OF DEFENDANT Defendant also testified by himself. His evidence was a rehash of his pleadings. He tendered the following documents in evidence; i. A copy of the offer letter given to Defendant in 2017 after working with the company for about 13 years as Exhibit ‘1’ ii. A copy of the report given to Defendant on identified shortage as Exhibit ‘2’ 5 ASSESSMENT OF THE EVIDENCE AND APPLICATION OF THE LAW i. Whether or not the Defendant was in the employment of the Plaintiff Company and entrusted with the Plaintiff’s pharmaceutical product for sale? Defendant’s Exhibit ‘1’ is headed ‘Offer of Appointment’ and dated September 1, 2017. The letter, signed by Alex Opoku Agyemang, Managing Director of Salom Pharmacy Ltd., is for the appointment of William Okoh Sarkodie as a Sales Executive from 1 October, 2017, at a basic salary of GH 416 per month, with 1.5% commission on sales (cash/cheque received and cleared by the accounts department). This as well as the evidence of the parties, establish that Defendant was employed by the Plaintiff Company. The evidence of both parties further establish that Defendant was entrusted with Plaintiff’s pharmaceutical product for sale and there would be no need to belabour same. ii. Whether or not the Defendant acknowledged his indebtedness to the Plaintiff Company and secured the payment with his landed property? According to Plaintiff, the debt in question is One Hundred and Forty Thousand, Nine Hundred and Eighty Eight Ghana Cedis, Thirty One Pesewas (GH¢140,988.31), which Defendant admitted that he owed at a meeting and thus deposited the documents covering his landed property situate, lying and being at Kwabenya, Accra as security for the payment of his indebtedness to Plaintiff. Plaintiff tendered Exhibit ‘A’, a copy of document to evidence financial shortage of GH¢104,988.31. It is Defendant’s case that in 2018 when he was told that internal auditors had identified shortage in his returns, the amount was GH¢87,910.37, Exhibit ‘2’, which he doubted. The difference between Defendant’s Exhibit ‘2’ and Plaintiff’s Exhibit ‘A’ is the addition of 12,527 and 3, 971. In effect, Defendant contests both Exhibits ‘A’ and ‘2’. According to Plaintiff, Exhibit ‘A’ was prepared by its internal auditors. However, there is nothing on the document that signifies this. It may be helpful to reproduce the cross-examination of Plaintiff’s witness in that regard as follows; “Q: Look at your Exhibit ‘A’. Tell the Court who prepared Exhibit ‘A’ A: Management, my Lord Q: Do you have internal auditors? A: Yes my Lord 6 Q: Do you also have external auditors? A: Yes my Lord Q: Are they part of the management structure of your company? A: My Lord, internal is part, external is not part Q: Which internal auditor or management member signed Exhibit ‘A’? A: My Lord, I do not see a signature on the form.” Further, I have noted the information provided under the cross-examination of Plaintiff’s witness that it is the Accounts Office that takes delivery of the cheques presented by the sales representatives and if a cheque is not honoured, it is the responsibility of the Accounts Office to return the cheque to the sales agent. However, the witness could not substantiate when the bounced cheques were returned to Defendant to enable him to follow up on them. I have also noted from the answers that when a salesman is re-assigned, it is the responsibility of the sales man taking over to follow up on clients for the payment of debts. The cross- examination is as follows; “Q: If you transfer or re-assigned a sales agent and after reconciliation it comes out that one of your clients is indebted to the company, whose responsibility is it to follow such client for the payment of such debts? A: It is the responsibility of the salesman. Q: Which of them, the one taking over or the original one? A: The one taking over Q: Are you aware that the Defendant was re-assigned whilst working for the Plaintiff Company? A: Yes my Lord Q: Can you tell the Court whether or not there was any indebtedness outstanding at the time of transfer? A: My Lord, I am unable to answer that question.” Comparing this with Defendant’s evidence that some amounts owed to the company were to be followed up by persons who took over from him but they failed to do so, I find that the debt owed by Defendant to Plaintiff, if it exists at all, is inconclusive. I have also taken note that Defendant doubted the figure(s), although he confirmed under cross-examination that Exhibit ‘2’ was how shortages were brought to their notice in the company. Therefore, Plaintiff, to authenticate its claim, should have gotten its internal and external auditors to undertake an audit and prepare a report on same, which report should have had the signatures of the 7 auditors. This they failed to do. Exhibit ‘B’ series are documents covering Defendant’s landed property, which according to Plaintiff, were handed over by Defendant to Plaintiff as security of his preparedness to settle his indebtedness of GH¢140,988.31. This was also denied by Defendant, who says that he was asked by Plaintiff to deposit same so that he would not run away. Truly, Exhibit ‘B’ series confirm ownership of the property by Defendant. The critical issue is how the documents got into the possession of Plaintiff. Plaintiff supports its assertion with Exhibit ‘C’. Exhibit ‘C’ is headed as ‘Undertaken’ and involves William Okoh Sarkodie and Alex Opoku Agyemang. The document is to make sure that the debt William Okoh Sarkodie owes Alex Opoku Agyemang will be paid in future. By this same document, William Okoh Sarkodie pledges his car’s documents and all the documents of his building plot as collateral security to be deposited in trust until he has paid in full all the debt he owes to Alex Opoku Agyemang. However, the document has neither been signed by William Okoh Sarkodie nor Alex Opoku Agyemang. Thus, Plaintiff cannot rely on this document to prove any indebtedness by Defendant to the company. More so, Exhibit ‘C’ does not specify any amount owed and no reference is made to Plaintiff Company. Exhibit ‘D’, which is a Demand Notice to Defendant by Plaintiff’s lawyers dated 14th July, 2020, states among others that Defendant duly acknowledged his indebtedness to Plaintiff Company and gave a firm assurance of settling same. This assertion has been consistently denied by Defendant and there is the need to prove same, which Plaintiff Company has not been able to do. The principle as enunciated in MAJOLAGBE V LARBI & ORS [1959] GLR 190-195 is that; “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, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, 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 of facts and circumstances, from which the Court can be satisfied that what he avers is true.” I find that Defendant has not acknowledged his indebtedness to the Plaintiff Company and has not secured payment with his landed property. 8 iii. Whether or not the Defendant is indebted to the Plaintiff Company? As previously discussed, Plaintiff has not been able to prove the amount owed it by Defendant. In the circumstance, I am unable to determine whether Defendant is indebted to the Plaintiff Company or not. iv. Whether or not the Plaintiff Company owes the Defendant any salary? The parties are ad idem about the fact that Defendant worked with Plaintiff Company for a period and does not currently work for the company. The disagreement is about the mode of termination, which Defendant says was verbal, without any notice nor payment in lieu of notice. Defendant also alleges that throughout his period of work, he was denied annual leave. These matters are matters related to unfair termination and labour related issues. Thus, I am guided by the recent Court of Appeal Decision in ALEX SAKYI V PRIME INFRASTUCTURE ENGINEERING SERVICES in suit no H3/98/2024 dated 21st March 2024, where the Court ruled that the Circuit Court lacks jurisdiction to deal with unfair termination of employment and labour related issues. Accordingly, I decline jurisdiction in respect of the counterclaim of Defendant. DECISION On the totality of the evidence, Plaintiff is not entitled to the reliefs sought in this suit. Defendant’s counterclaim on the other hand, cannot be determined by this Court, for lack of jurisdiction. I make no order as to costs. Her Honour Mawusi Bedjrah Circuit Judge 9