Trust In Thee Amoako Co. Ltd v Asigire (A2/122/2024) [2025] GHADC 247 (15 April 2025)

INTHEDISTRICT COURT SITTINGATWAMFIEON THE 15TH DAYOF APRIL,2025BEFORE HIS WORSHIP EUGENE OBENGNTIM,ESQ. SUITNO.:A2/122/2024 MESSRS TRUSTIN THEEAMOAKOCO. LTD. ----- PLAINTIFF H/NO.:SS189 DormaaAhenkro VERSUS BLAISEASIGIRE ----- DEFENDANT H/NO.:Plot 59 BerlinTop, Sunyani JUDGMENT Introduction Plaintiff instituted anactionagainst defendant for: a) Recover of an amount of Thirty-Seven Thousand Ghana Cedis being outstanding amount from the total agreed amount of the consignment which defendant has failed/refused to paysince May,2023. Page1of12 b) Interest on relief a) at the commercial bank rate from June 2023 till final date ofpayment. c) Cost. Defendant throughhis lawyer filed notice ofintentionto defend. Based onthe notice, thecourt ordered theparties tofile pleadings. Plaintiff filed his statement ofclaim on 6thJune, 2024andsame wasduly served ondefendant. The court,beforeadjourning thesuit to20th August, 2024,orderedcourt notesfor theday tobe typed and served ondefendant toenable him comply with thecourt ordersince he not present. Defendant and hiscounsel failed toappearin courttodefend the action. The court thereforecalled uponplaintiff tofile his witness statementand thatofitswitness to enable the courttoproceed. Plaintiff duly filed thewitness statement and thatofits witness and same wereservedoncounsel for defendant. The court thereafterfixed 2ndFebruary, 2025forhearing forwhich counsel fordefendant was notified by hearing notice. Neitherdefendant norhis counselappeared in courttodefend the action. The courtproceeded tohear thesuit inthe absence ofdefendant. The plaintiff, per its Managing Director, Baffour Amoako Agyei Denkyembour, relied on his witness statement filed on the 25th September, 2024 as his evidence in chief. He stated that he has 3 consignments (salvage permit) issued to it from the Forestry Commission. Defendant approached plaintiff to harvest the trees in the consignment which plaintiff agreed. As part of the agreement, defendant was to pay plaintiff an amount of One Hundred and Forty Thousand Ghana Cedis (GH¢ Page2of12 140,000.00) out of which defendant made part payment of One hundred and Three Ghana Cedis (GH¢ 103,000.00), leaving a balance of Thirty-Seven Thousand Ghana Cedis (GH¢37,000.00) Plaintiff further stated that defendant issued a cheque for Twenty-Seven Thousand Ghana Cedis (GH¢ 27,000.00) in the name of Baffour Amoako Agyei Denkyembour, thedirectorofPlaintiff Company. The cheque could not be honoured since defendant did not have sufficient funds to his credit. The parties subsequently reduced the agreement into writing but all effortsby plaintiff torecover themoney fromdefendant haveproved futile. Plaintiff tendered the followingexhibits in support ofits claim against thedefendant: i. Salvagepermit which was admitted and markedExhibit “A”. ii. The cheque issued by defendant which was also marked exhibit “B”. iii. An undertaking which wasduly admitted andmarked Exhibit“C”. Plaintiff called one Kumah Yeboah Asuamah. He relied on his witness statement as his evidence in chief. He stated that he was a witness for the plaintiff when the partieswent to courtand reduced their agreement into writing. Applicable laws and cases. Section11(1) and (4)ofthe Evidence Act 1975(NRCD323)also provides asfollows: Page3of12 ‘(1) for the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid ruling on the issue againstthat party. (4) In the other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that all the evidence a reasonable mind could conclude that the existence of the fact was more probable that its non-existence’ Further,section14ofthe Evidence Act, 1975(NRCD323) statesasfollows: Exceptas otherwise provided by law, unless and until itis shifteda party has the burdenof persuasion as to each factthe existenceor non-existenceof whichis essential tothe claimor defence he is ascertain. Proof in civil proceedings is established by the principle of the preponderance of probabilities or balance of probabilities. Section 12(2) provides that except as otherwise provided by law the burden of persuasion requires proof by preponderance ofprobabilities. This position is supported by the Supreme Court in Adwubeng v Domfeh [1997-98] 1 GLR 282 where it was held at page 295 that: sections 11(4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities-noexceptionsare made. Page4of12 Similarly, the Supreme Court in the case of Odonkor and others v Amartei GBR 1993-94 VOL1held that: the Evidence Decree1975(NRCD 323)sections 11(4) and 12provided that in all civil cases judgment might be given in favour of a party on the preponderance of probabilities. What is required by the court, under normal circumstances, is to evaluate the evidence of the parties, including their witnesses, and draw conclusion that, on the preponderance or balance ofprobabilities, the court is inclined to accept the evidence ofone partyrelative tothatofthe otherparty. There is an exceptional situation in the present case because the Defendant failed, refused or neglected to appear in court to defend this action. The court would therefore examine only the evidence of the plaintiff, the exhibits tendered and statement of his witness to ascertain whether it is sufficient for the grant of the reliefs being sought. Evaluation ofevidence and application of relevantlaws. Plaintiff, per its Managing Director, gave evidence that he secured 3 consignment (salvage permit) issued to it from the Forestry Commission in respect of the three (3) consignment. He tendered letters from the Commission which were admitted and Page5of12 marked Exhibits “A” “A1” and “A2”. Defendant showed interest and parties agreed that defendant would pay plaintiff an amount of One Hundred and Forty Thousand Ghana Cedis (GH¢140,000.00). He made partpayment ofOne Hundred and Three Ghana Cedis (GH¢ 103,000.00,)leaving abalance ofThirty-SevenThousand Ghana Cedis (GH¢ 37,000.00). Defendant issued a cheque for the payment of TwentySeven Thousand Ghana Cedis (GH¢ 27,000.00) but could not be honoured since defendant did not have sufficient funds to his credit. The dishonoured cheque was tendered and marked exhibit “B”. The parties subsequently reduced the agreement into writing and the said agreement, which is headed Undertaking was tendered, admittedand marked Exhibit “C”. The witness of plaintiff corroborated the evidence of plaintiff regarding the signing ofan agreement bythe parties by stating thathe was awitness forplaintiff. The evidence clearly shows that there existed a contract between the parties for defendant toharvest timber consignment obtained by the plaintiff company from the Forestry Commission for consideration of One Hundred and Forty Thousand Ghana Cedis (GH¢ 140,000.00). This evidence is supported by the Undertaking tendered, admitted and marked Exhibit “C”. The defendant duly signed by his name as the undertaker but defendant failed to appear in court to challenge his name and signature on the said document. Furthermore, the evidence shows that plaintiff has Page6of12 fulfilled its obligations under the agreement by permitting defendant to harvest the consignment. Defendant on his part has partly performed his obligations by the payment of One Hundred and Three Ghana Cedis (GH¢ 103,000.00,) leaving a balance of ThirtySeven Thousand Ghana Cedis (GH¢ 37,000.00). A careful examination of the undertaking reveals that it complies with the law relating to an agreement and I have no reason to doubt its authenticity. I therefore find Exhibit “C” asareflection oftheintentions ofthe parties. The questiontopose is; should Exhibit “C”the undertaking be construed assuch or could it be deemed as a“promissorynote”within the meaning ofBill ofExchange Act, 1961(ACT 55)? Section83(1) oftheAct defines promissorynote an: unconditional promise in writing made by one person to another signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain inmoney, to, or to the order of, aspecified person or to bearer. Thus in the case of SABBLAH v. TAWIAH [1966] GLR 145–151 the court speaking throughSowah J. (as he wasthen) statedat page149that: the question which arises is whether the document quoted above is an acknowledgement of a debt per se or an acknowledgement of debt and a promise to pay which can be construed as promissory note the first leg of the document acknowledges the debt or the receipt of the sum of £G250 and the second appears to be a promise or undertaking to pay "in a short possible time." What is a promissory note within the Page7of12 meaningof the Billsof Exchange Act? The answer is contained in the Actitself. And in this connection I cannot improve upon the clear language of the Act. A promissory note is defined in section 83 (1) as "an unconditional promise in writing made by one person to another signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to, or to the order of, a specified person or to bearer." His Lordship continued; each and every componentpart of this definition is important and a document which does not spell out all these requisites is not a promissory note. The rejected document cannot in law be a promissory note for the simple reason that it does not contain an unconditional promise to pay on demand or at afixedor determinable future time. The decision distinguishes what constitutes anundertaking and apromissorynote. Whereadocument acknowledgesdebt orreceipt ofmoney and thereis apromise or undertaking topay without adefinite orfixed time forpayment, that would constitute an“undertaking”.However, if the document acknowledgesdebt and provides afixed time forpayment, thatwould be a“promissorynote”. The defendant per his undertaking, Exhibit “C”, acknowledges owing plaintiff and promises to pay the sum of Thirty-Seven Thousand Ghana Cedis (GH¢ 37,000.00) on orbefore10th September,2023. Exhibit “C” is not an “undertaking” but a “promissory note” within the meaning of section 83(1) of the Bill of Exchange Act. The GH¢ 37,000.00 owed plaintiff by defendant became due after 10thSeptember, 2023.The failure ofdefendant topay Page8of12 after the promised date clothed plaintiff with a cause of action to sue for recovering ofthe amount owed and due. The court, after the evaluation of the evidence of plaintiff and the witness and per section 11(1) of the Evidence Act, 1975, NRCD 323 would hold that plaintiff is entitled to recover the sum of Thirty-Seven Thousand Ghana Cedis (GH¢ 37,000.00) fromdefendant. Award ofInterest. Plaintiff is also seeking for the award of interest on GH¢ 37,000.00 at the commercial bank rate from June 2023 till final date of payment. The Courts (Award of Interest) Instrument, 1984 (LI 1295) allow the award of interest to a party claiming a liquidated sum. This was affirmed in the case of Ghana Ports And Harbours Authority v Issoufou [1993-94] 1 GLR 24—60. The Supreme Court per Archer CJ (as he was then)atp.50 stated that: the rate of interest that is normally awarded by the courts in this country is based on the provisions of the Courts (Award of Interest) Instrument, 1984 (LI 1295) which states as follows: "Where in any civil cause or matter the Courtmakes an order for the payment of interest on any sum due to the plaintiff'...the rate at which such interest Page9of12 shall be payable shallbe the Bank rate prevailingat the time the order was made by the Court, butnocompoundinterestshall be awarded." HisLordship continued that: I understand the bank rate in the instrument to mean the bank rate prevailing in this countryat the time the order is made by the court. The court,in theconsolidated case of Bousiako Co., Ltd. v. Ghana Cocoa Marketing Board; Kwabo-Osekyere Construction WorksLtd. v. Ghana Cocoa Marketing Board (Consolidated) [1982-83] GLR 824846, provided therationale for the awardofinterest whenit stated atp.845 : the award of interest on a liquidated sum payable by a defendantis notso much on the basis that the plaintiff has been induced to take an overdraft from his bankers but rather on the principle that if the amount had been paid immediately when it became dueand ithad beeninvested inthe bankitwould have yieldedthe interestexigible. The GH¢ 37,000.00 owed plaintiff by defendant had remained due since 11th September 2023. If plaintiff had invested it at the bank or in a commercial venture, it would have accrued profit. Therefore, plaintiff shall be entitled to recover interest on theGH¢37,000.00. Page10of12 Reliefs soughtby Plaintiff: Recovery of an amount of Thirty-Seven Thousand Ghana Cedis being outstanding amount from the total agreed amount of the consignment which defendant has failed/refused topaysince May,2023. a) Interest on relief a) at the commercial bank rate from June 2023 till final date ofpayment. b) Cost. Relief granted a) Plaintiff is entitled to recover from defendant an amount of Thirty Seven Thousand Ghana Cedis (GH¢37,000.00). b) Interest on GH¢ 37,000.00 at the commercial bank rate from 11th September 2023, the date on which the amount became due per the undertaking Exhibit “C”,till final dateofpayment. Award ofCost. Plaintiff did pray for cost as one of its reliefs. The award of cost is at the discretion of thecourt and the courtshall exercise its discretion toaward toplaintiff. Page11of12 Considering that Plaintiff had to serve several hearing notices and court note on the Defendant due his failure to attend court and also engaged the services of a counsel, plaintiffshall be entitled tocost ofGH¢4,500. The Reliefs sought by plaintiff aregranted. Judgment forplaintiff withcost. (SGD) Eugene Obeng-Ntim (District Magistrate) Page12of12