ZUMELO VRS. TAMAKLOE (A2/94/2024) [2024] GHADC 655 (2 December 2024)

IN THE DISTRICT COURT HELD AT ANLOGA IN THE VOLTA REGION ON MONDAY THE 2ND DAY OF DECEMBER, 2024. BEFORE HER WORSHIP REJOICE ASEYE GADAGOE, DISTRICT MAGISTRATE. SUIT NO.: A2/94/2024. DELASHIE ZUMELO PLAINTIFF OF ANLOGA VRS SHINE TAMAKLOE DEFENDANT OF ANLOGA JUDGMENT: By a writ of summons filed on 20/05/24; the Plaintiff herein sued the Defendant and claimed as follows; 1. “An order of the Court for the recovery of GH14,000.00 from Defendant as a result of Plaintiff supplying the Defendant with tomatoes, Mangoes and Okro to sell and bring back the money which the Defendant breached the agreement by selling same but failing to pay back to the Plaintiff. 2. Costs.” CASE OF PLAINTIFF: The Plaintiff, MADAM DELASHIE ZUMELO, is a Trader who buys and sells Tomatoes, Okra and Mangoes. Plaintiff averred that, somewhere in 2022, the Defendant came to plead with her through her husband to be allowed to travel along with Plaintiff on her business trips to Togo. Plaintiff said she was moved by the Defendant‟s story and plight. She therefore decided to assist her by going on her trips with her. 1 In the course of their short business dealings, Plaintiff told the Honourable Court that she gave the Defendant a total of SEVENTEEN THOUSAND, FIVE HUNDRED GHANA CEDIS (GH.C17,500.00). She broke down the details as follows: 1. GH.C 6,000.00 for the purchase and sale of TOMATOES. 2. GH.C6,000.00 for the purchase and sale of OKRA. 3. GH.C2,000.00 for the purchase and sale of MANGOES. 4. Again, Defendant collected GH.C3,500.00 from customers on Plaintiff‟s behalf but failed to give same to Plaintiff. Plaintiff‟s assertion was that, out of Defendant‟s total indebtedness of GH.C17,500.00, she paid back a total of GH.C3,500.00. Leaving an outstanding difference of GH.C14,000.00. Plaintiff called two witnesses. Their difficulties were that, none accompanied the Parties on their various trip in what the Defendant referred to as “co-trading”. According to Plaintiff, she discovered soon after getting involved with the Defendant that the Defendant was owed some of her Customers in Togo. On one occasion, Plaintiff‟s goods were even confiscated by some of those creditors because they noticed Plaintiff in Defendant‟s company. CASE OF THE DEFENDANT: The Defendant, MADAM SHINE TAMAKLOE, admitted in her evidence in-chief that she “co-traded” with the Plaintiff around December, 2022. That was after seeking permission from the Plaintiff‟s husband. Defendant rendered her accounts in the following manner: 1. That Plaintiff once gave her SIX THOUSAND GHANA CEDIS (GH.C6,000.00) for the purchase and sale of OKRA. 2 2. Then Plaintiff gave her TWO THOUSAND GHANA CEDIS (GH.C2,000.00) for the purchase and sale of MANGOES on another occasion. 3. Her total indebtedness to Plaintiff was therefore EIGHT THOUSAND GHANA CEDIS (GH.C8,000.00). 4. Defendant said on three different occasions, she paid the Plaintiff different sums of money. Defendant‟s modes of payment have been captured below: - GH.C1,500.00 through MADAM FIDELIA. - GH.C500.00 through MOBILE MONEY TRANSFER (MOMO). - GH.C3,000.00 through her witness, TORBORKOR EKLU . In all, the Defendant told the Court she paid Plaintiff GH.C5,000.00. This was because, her indebtedness to Plaintiff was actually GH.C5,000.00 owing to losses incurred in the Okro trade. Her frank opinion was that, the alleged losses she incurred in her Okra trade/business ought to be split between them since by practice, they share profits. As such, the GH.C3000,00 she gave to Plaintiff, was her half-share of the losses incurred in the GH.C6,000,00 Okra Trade. Defendant kept insisting she did not owe the Plaintiff any more money. Defendant‟s only witness was TORBORKOR EKLU. He corroborated the Defendant‟s story that he personally paid GH.C3000,00 to Plaintiff. That payment was subsequent to separating the Parties‟ fight, and he giving Plaintiff an assurance that he would ensure the indebtedness was cleared. TORBORKOR EKLU also told the Honourable Court that, on his first encounter with the Plaintiff, she indeed mentioned GH.C17,500.00; as the amount owed her by the Defendant. Defendant’s witness statement has been inserted below for ease of reference. 3 DEFENDANT’S WITNESS STATEMENT: 4 Evidence of Court Witness, MADAM FIDELIA KPOGLI. In the course of trial, MADAM FIDELIA‟s name kept popping up in the various testimonies. The Honourable Court subpoenaed her to testify as the Court‟s Witness. Madam Fidelia’s testimony given on 21/10/2024 has been reproduced below: “My name is Fidelia Kpogli. I live in Accra. I am a Business woman/ Trader. I know the parties. Defendant is my sister- in law. I sell at Agbogbloshie. The parties sell at CMB. What I know about the transactions between the Parties are that, one day the Defendant came to me and requested that I thank the Plaintiff for her. The Defendant’s story was that her tomatoes business was not helping her. She said Plaintiff gave her GH₵6,000.00 for okra trade and GH₵2,000.00 for Mangoes. Defendant gave me GH₵1,500.00 to be given to Plaintiff in her presence. Right there, Plaintiff told Defendant in our presence that the GH₵1,500.00 was to defray the transportation cost of the Tomatoes she supplied her. Please I am done”. Cross examination of Fidelia by Plaintiff: “Q: Do you remember Defendant asked you to collect GH₵1,500.00 from someone but you could not do it. A: Yes. Q: Do you remember I told you Defendant owed me GH₵6,000.00 from a Tomatoes trade? A: Yes. Q: That I advanced GH₵6000.00 more to Defendant for Okra so she can pay me. A: Yes Q: Do you remember I told you Defendant collected GH₵3,550.00 for me and I gifted her GH₵50.00 for a Knickers? A: Yes.” Cross examination of Fidelia by Defendant. “Q: Do you remember Plaintiff held my cloth once in the market and claimed I 5 owed her GH₵9,000.00 which I disputed. A: I remember she held you but I do not remember GH₵9,000.00. Q: Were you present before Plaintiff mentioned the GH₵17,500.00 or you just heard it? A: What I know is what I testified to. The rest of GH₵17,500.00 I only heard Plaintiff talk about it.” COURT’S EXAMINATION OF DEFENDANT: Rather curiously, Defendant failed or neglected to mention any transactions in respect of Tomatoes in her witness statement. When the Court asked her about the Plaintiff‟s start- up capital in her Tomatoes trade, Defendant said a number of things. The Honourable Court was compelled to recall Defendant at the end of trial, pursuant to SECTION 62 OF THE COURTS ACT, 1993 (ACT 459); on 20th November, 2024, to answer on oath why she failed to mention the tomatoes trade with the Plaintiff in her witness statement. It was also an opportunity granted her to clarify the issues surrounding her Tomato- business with Plaintiff. This was what she had to say: “Please, in our tomato-trade, Plaintiff did not bring or give the tomatoes to me directly to sell. She brought the tomatoes from Togo herself to sell. We have been selling the tomatoes together. When we finish selling, Plaintiff would ask me to do the calculations in order to determine whether we lost out or made profits. On the first occasion, Plaintiff went ahead of me to Ghana and I brought the remaining six (6) baskets of tomatoes to the market. Plaintiff directed me to send the tomatoes to “SAKORA-NOR” (Sakora‟s mother). Sakora-nor also gave it another lady called ANGELA to sell. Another time, Sakora-nor sold the tomatoes but thought the tomatoes were from her customer so she sent the money to the person who lives in Togo”. 6 During cross-examinations, defendant admitted that she had sold some of the tomatoes at various amounts. The Honourable Court therefore inquired from the Defendant why she had earlier told the Court she sold some of the baskets of tomatoes for GH.C1,400.00, GH.C1,300.00, and GH.C1,200.00. Defendant‟s reply was that: “Those were the prices at which „Sakora-nor‟ sold the baskets of Plaintiff‟s tomatoes. I brought the tomatoes from Togo and personally took them to her”. At the end of trial, only one issue was set down for determination. WHETHER OR NOT DEFENDANT’S INDEBTEDNESS TO PLAINTIFF COULD BE ASCERTAINED? This being a commercial case, the fundamental elements underlying their co-trading ought to be established. SECTION 2 (1) SALE OF GOODS ACT, 1962 (ACT 137); provides the following; “2 Capacity to buy and sell (1) The capacity to buy and sell is regulated by the general law concerning capacity to contract and to transfer and acquire property”. SECTION 2 (1) SALE OF GOODS ACT, 1962 (ACT 137); also provides as follows; “8. Fundamental obligation of the seller (1) In a sale of specific goods the fundamental obligation of the seller is to deliver those goods to the buyer. (2) In a sale of unascertained goods the fundamental obligation of the seller is to deliver to the buyer goods substantially corresponding to the description or sample by which they were sold. (3) A provision in a contract of sale which is inconsistent with, or repugnant to, the fundamental obligation of the seller, is void to the extent of the inconsistency or repugnance.” 7 The contentious area of the Parties‟ business was their Tomatoes trade. Plaintiff remained very consistent with the narrations of the sequence of events even though she was quick to add, “I have never been to school”. Incidentally, the witnesses for both the Plaintiff and the Defendant all testified to the fact that Plaintiff had always maintained Defendant owed her GH.C17,500.00. That GH.C17,500.00, less GH.C3,500.00; was what the Plaintiff was in Court to claim. Plaintiff confirmed the payments she received from the Defendant as GH.C3,000.00 which was sent through the Defendant‟s witness, Mr. Eklu; and the remaining GH.C 500.00 which she received through mobile money aka MOMO. Defendant denied any supplies of tomatoes from the Plaintiff worth GH.C6,000.00. She maintained Plaintiff gave her GH.C6,000.00 to buy and sell Okros/Okra, and GH.C2,000.00 to buy and sell Mangoes. Making a total of GH.C8,000.00. Defendant told the Honourable Court she paid back GH.C1,500.00. GH.C3,000.00 and GH.C500.00. Defendant‟s payments summed up to GH.C5,000.00. Plaintiff appeared surprised that Defendant added the GH.C1,500.00 to her repayments list. This is because, Defendant knew that amount catered for the loading and transportation fares of Tomatoes from TOGO to GHANA. Plaintiff‟s assertion was confirmed by the Court Witness, MADAM FIDELIA KPOGLI, when she stated the following under oath: “Right there, Plaintiff told Defendant in our presence that the GH₵1,500.00 was to defray the transportation cost of the Tomatoes she supplied her.” The essence of the Court‟s witness testimony became two-fold. She was invited because Defendant mentioned her as the person who handed the GH.C1,500.00 to Plaintiff. However, in the process of corroborating Defendant‟s assertion, Fidelia clarified two very important matters as well. These are, 1. That the payment of the GH.C1,500.00 was to re-imburse the Plaintiff for loading and transporting goods from Togo to Ghana for the Defendant; and, 8 2. The goods loaded and transported, were TOMATOES. This Court found therefore, that had Plaintiff not supplied the Defendant with Tomatoes to sell, she would not have been entitled to that GH.C1,500.00. Defendant contradicted herself in many ways. For instance, Defendant had convinced the Court that “Sakora-nor” sold some of the tomatoes herself, and also passed some on to a lady by name, Angela. Plaintiff kept insisting Defendant was misleading the Honourable Court. The Court needed to hear from „Sakora-nor‟. Early morning on 2nd December, 2024; the Registrar of this Honourable Court, together with the Parties herein, placed a phone call to “SAKORA-NOR” in an attempt to confirm the Defendant‟s allegations. SAKORA-NOR denied knowledge of the details of their “co-trading”. She was reported to have stated emphatically on the phone that Defendant never brought any tomatoes to her for sale. On the Parties‟ return to the courtroom, Plaintiff corroborated what the Registrar had reported to me. The Defendant disputed it. According to her, SAKORA-NOR had said she could not remember because it was a long time ago. The Honourable Court did not see the need to summon the busy trader all the way from Accra to Anloga to repeat those same words. Plaintiff on the other hand, remained consistent. Her whole point was that, she loaned out GH.C6,000.00 more to Defendant because her investment in Defendant’s Tomatoes business was stuck. It was Plaintiff‟s hope that by advancing GH.C6, 000.00 extra into her business, the yields would enable the Defendant to pay up all outstanding indebtedness. So she kept investing. The final straw was Defendant collecting GH.C3,500.00 on Plaintiff’s behalf but failed to hand it to her. Plaintiff added that, the Defendant is the same person who recorded all her indebtedness in a book. When it was time for Plaintiff to collect that book from the Defendant, 9 Defendant tore out the records of her indebtedness before giving the book to her. Plaintiff stated helplessly, that what she captured in her Claim, are the only debts she recalls. Again, she reminded the Court that she had never been to school. CONCLUSION: The Plaintiff‟s witness statement was not fit for purpose. That notwithstanding, the Honourable Court went past that technicality, and dwelt on the substance of her Claim which she managed to articulate very clearly without any contradictions whatsoever. Defendant did not just assist the Plaintiff in her work. Plaintiff actually set her up independently, and expected her money back. Defendant failed to perform her obligations after receiving the various sums of money from the Plaintiff. Having failed to perform according to their agreement, Defendant has breached the contract between her and the Plaintiff. Reasonably, Plaintiff would be entitled to general damages. However, looking at the circumstances of the Defendant, making such an order could potentially be void because the Defendant may not be able to pay up. The award of compensatory damages to Plaintiff has therefore been waived. Plaintiff shall however recover her lost sum which is GH.C14,000.00. In conclusion, what existed between the Parties herein was a valid contract and shall to be enforced. ORDERS:  PLAINTIFF‟S CLAIM IS PROVED ON THE BALANCE OF PROBABILITIES.  IT HAS THEREFORE BEEN GRANTED IN ITS ENTIRETY.  I HEREBY DECLARE THAT A VALID AND BINDING CONTRACT EXISTED BETWEEN PLAINTIFF AND DEFENDANT FOR THE SALE OF TOMATOES, OKRA AND MANGOES. 10  JUDGMENT IS ENTERED FOR PLAINTIFF IN THE SUM OF FOURTEEN THOUSAND GHANA CEDIS (GH.C14,000.00) ONLY.  INTERESTS SHALL BE CALCULATED ON THE SAID AMOUNT AT THE PREVAILING BANK RATE UNTIL DATE OF FINAL PAYMENT.  COMPENSATORY DAMAGES HAVE BEEN WAIVED ON HUMANITARIAN GROUNDS.  COSTS OF GH.C500.00 IS AWARDED AGAINST THE DEFENDANT AND IN FAVOUR OF PLAINTIFF. SGD. HW REJOICE ASEYE GADAGOE DISTRICT MAGISTRATE 2/12/2024.  Representation: - PARTIES WERE NOT REPRESENTED. 11