THE EXPORT COMPANY VRS NIVIAGREEN COMPANY LTD & ANOTHER (C11/163/22) [2024] GHACC 11 (25 January 2024)

THE CIRCUIT COURT “A”, TEMA, HELD ON THURSDAY, THE 25TH DAY OF JANUARY, 2024, BEFORE HER HONOUR AGNES OPOKU-BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C11/163/22 THE EXPORT COMPANY ------ PLAINTIFF/APPLICANT VRS. NIVIAGREEN COMPANY LTD ------ 1ST DEFENDANT NICHOLAS OSEI AFARI ------ 2ND DEFENDANT PARTIES ABSENT CHRISTIAN LEBRECHT MALM-HESSE, ESQ. FOR PLAINTIFF/ RESPONDENT PRESENT JULIUS NKETSIAH, ESQ. FOR DEFENDANTS/APPLICANT ABSENT RULING ON MOTION ON NOTICE FOR DISCOVERIES BY INTERROGATORIES FACTS This is a ruling on a Motion on Notice for Discoveries by Interrogatories filed by the Plaintiff/Applicant (hereinafter referred to as “the applicant”) praying this Court for leave to serve the 1st defendant/respondent (hereinafter called “the respondent) interrogatories relating to matters in this suit herein and a further request for the respondent to answer the interrogatories on affidavit and file same in this Honourable Court. The instant application was filed on 22nd May 2023, pursuant to Order 22 rule 1(2) of the High Court Civil Procedure Rules, 2004 (C.I. 47). The applicant deposed that it caused this present writ of summons and with an accompanying statement of claim to be issued against the 1st defendant/ respondent and the 2nd defendant herein on the 4th day of July 2022. The applicant states that pleadings 1 have closed, Application for Directions concluded and the parties have been directed by this Honourable Court to file their respective Witness Statements and Pre-trial checklist. However, whilst the applicant is yet to file its Witness Statements and Pre- trial checklist, on the 10th day of May 2023, it filed in the Registry of this Court a Motion on Notice seeking the leave of the Court for an order to serve on the respondent interrogatories relating to matters in question between the applicant and the respondent in this suit. The applicant further deposed that by this application, the applicant requests the respondent to answer the Interrogatories on affidavit and file same in this Honourable Court within ten (10) days or as determined by the Court. The applicant further requests that if the Court grants the application, the said interrogatories should be served on the Managing Director of the respondent or any other officer of the respondent. The applicant attached the proposed interrogatories as Exhibit “A”, which seeks to elicit answers to the following questions; 1. Did the 1st Defendant enter into Cost, Insurance and Freight (C.I.F) contract with the Plaintiff sometime in 2021 for the supply of frozen Horse Mackerel by sea? 2. If so, indicate the container number and bill of lading number? 3. If so, were you not supplied with 1,250 boxes of frozen Horse Mackerel by the Plaintiff? 4. If so, at the time of supply of goods, were the goods worth USD$ 40,330.00? 5. Did the Plaintiff not supply the goods in June, 2021? 6. If so, what was the amount of money in the bank account of the 1st Defendant at the time the 1st Defendant executed the said contract for the supply of the frozen Mackerel from the Plaintiff in June, 2021? 7. If so, indicate the amount of money in the bank account of the 1st Defendant in May, 2021 being one month prior to the supply of goods? g. If so, indicate the amount of money standing in the bank account of the 1st Defendant as at 14th day of July, 2021? 2 9. Indicate the amount of money in the 1st Defendant's bank account as at 13th day of August, 2021 10. If so, indicate the name of the bank and address which held the funds mentioned above? 11. Did the Food and Drugs Authority approved the goods supplied to the 1st Defendant as wholesome for the Ghanaian market at the time of clearing the goods? 12. If so, was 1st Defendant present per its officer(s) at the time of inspection of the said goods by Food and Drugs Authority? 13. If so, indicate which officer(s) of the 1st Defendant was present? The respondent vehemently opposed the grant of the application and the proposed interrogatories on the grounds that, the effect is to allow the applicant to fish for the banking information of the respondent. It is the case of the respondent that interrogatories are granted by the courts in consideration of the respective cases of the parties and the reliefs sought by an applicant in the substantive action and the court shall in its assessment ascertain if the proposed interrogatories are necessary for the fair disposal of the case. The respondent further deposed that the applicant in the instant application is seeking to elicit information, that by his pleadings it already has answers to. The respondent further states that per the pleadings of the parties, the original value and quantity of the cargo is not in doubt in this matter. Further, the applicant seeking to ascertain the banking transaction history of the defendant is fishing and the banking details of the defendant are irrelevant to the facts and issues to be determined by this court. The respondent further states that the proposed interrogatories would not aid in an effective resolution of the case. The respondent maintains that the proposed interrogates are largely questions that Counsel for the applicant ought to be asking during cross-examination. The respondent therefore maintains that instant application is unmeritorious and incompetent and the court must dismiss same with punitive costs. 3 RULING Order 22 Rule (1) of the High Court (Civil Procedure) Rules, 2004 (C.I.47) provides for discovery by interrogatories and provides that a party may apply for leave to serve on another party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter and requesting that other party to answer the interrogatories on affidavit within such period as may be specified in the order. The purpose of interrogatories as stated in the case of Lever Brothers v. Associated Newspapers [1907] 2 K.B. 626 Per Moulin L.J., CA as stated in the following terms; “In order to prevent unnecessary expense, the Court often allows interrogatories to be administered. But these are for the purpose of obtaining admissions as to facts, and I have never understood that one party may be allowed by means of an interrogatory to compel his opponent to state on oath what his conduct of the case at the trial is going to be” In the case of In re Presidential Election Petition; Akufo Addo, Bawumia & Obetsebi-Lamptey (No. 2) v. Mahama & Electoral Commission (National Democratic Congress, Interested Party) (No.2) [2013] SCGLR (Special Edition) page 50 @ page 59, the Supreme Court cited with approval the case of Rofe v. Kovorkian [1936] 2 All ER 1334 AT 1337 where Greer LJ stated that: “It is however, in the nature of fishing interrogatory, trying to get, for the purpose of the defendant’s case, evidence which he has not already got. On these grounds, having regard to what has frequently been decided; that because any question is a proper question to put in cross-examination it is not, therefore necessarily a proper question to put in interrogatories, we have decided that interrogatory 3 also ought to be disallowed as being fishing interrogatory by a man who is trying to make a case and has not already the evidence which would justify him making the case” 4 The Supreme Court, based on this decision then held that; “In our opinion, the limitation on “fishing” is intended to prevent a party from seeking particulars for the purpose of ascertaining the evidence by which the opponent proposes to prove his case at the trial…Where the request would, if acceded to, have the effect of shifting the evidential burden provided for in the rules of evidence, it would be refused, We have carefully examined the application relating to the request of the petitioners and are satisfied that they are within the scope of permissible interrogatories” Learned Counsel for the applicant submits orally that the proposed interrogatories are very essential and the answers that will be given by the 1st defendant will help with the resolution of this dispute. In support of the application, Counsel cites the cases of Stephen Kwabena Opuni v. Fortune Alini [ Suit No. GJ/554/2018] Per Ackah Boafo J as he then was, Ghana Commercial Bank v. Dakmak Rashwan Chemical Industries & 6 Ors. Suit No. HI/155/2007] per Quaye JA, John Dramani Mahama v. Electoral Commission and Nana Addo Dankwa Akuffo Addo [Suit No. J1/5/2021]. Further, Learned Counsel for the Applicant relying on the case of Hammond v. Odoi [1982-1983] 2 GLR 1215@1235 states that by their pleadings, the questions constitute the heart of their case and cannot be one of irrelevancy and one that will not aid in the resolution of the dispute. Learned Counsel for the respondent on his part in fiercely opposing the grant of the application submits that the plaintiff’s case is set by the statement of claim filed before the court and not the reply which only responds to a defendant’s statement of defence and further enhances the statement of claim filed. Counsel further states that Order 22 Rule 1 sub-rule 4 limits this Court to give leave to only interrogatories which it considers necessary either to dispose of the cause or matter or to save costs. Counsel further maintains that issues 1-5 in the proposed interrogatories are matters not in dispute for the applicant to be granted leave but it is an attempt by the applicant by these questions to fish for the banking details of the first respondent which is not 5 relevant to the issues before the court. Further to that, Counsel for the respondent deems issues 6-10 as a means by the plaintiff to obtain information that will aid it in the execution of the judgment in the unlikely event that it obtains judgment. He further submits that determining insolvency is not limited to the bank account of a company since the Corporate Insolvency and Restructuring Act, 2020 (Act 1015) provides the grounds for deeming a company insolvent and it is not limited to information from the bank account of a company. Thus, the information will not aid the Court in determining whether the respondent was insolvent and questions 5-10 ought to be denied. The respondent further maintains that questions 11-12 are not relevant and are not matters that lie within the knowledge of the 1st defendant to prove. I have perused the pleadings filed by the parties and the issues set down by the Court at the Application for Directions stage in determining whether the interrogatories requested will aid the Court in fairly disposing of the matters in controversy between the parties. I have scrutinised the proposed interrogatories and I agree with Counsel for the respondent that issues 1-5 per the pleadings of the parties are not in dispute. Also, the questions seeking to illicit answers to the container number and bill of lading is a material that the plaintiff who supplied the goods should also have and the defendant has not even denied the fact that the goods were supplied. Thus, questions 1-5 are disallowed since these are matters not in dispute on the state of the pleadings. Regarding issues 6-10, which seek to discover by way of interrogatories, the amount of money in the bank account of the respondent before the supply of the goods and after the supply and the name of the bank and address which held the funds in my considered opinion, shows that the applicant is on a fishing expedition since the money sitting in a bank account before, at the time of and after the contract will not be a basis to determine whether the first defendant was solvent. Allowing these interrogatories, in my view, will shift the evidential burden on the respondent since one of the issues set down by the court at the Application for directions stage was whether or not the 2nd defendant was insolvent to trade with the plaintiff at the time of the transaction particularly, at a time when the applicant is yet to file witness statements. The applicant, 6 who in his pleadings alleges fraud bears the burden to prove the allegation of fraud beyond reasonable doubt even in a civil case. Based on the foregoing, I will dismiss the application for discovery by interrogatories since granting same will not assist the Court in fairly resolving the matters in dispute in this case but will be aiding the applicant in its fishing expedition. The application for leave to serve interrogatories is accordingly dismissed. SGD. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 7