Alfred Dwamena Vrs Troystell Co. Ltd & 2 Ors [2022] GHACC 282 (9 December 2022)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON FRIDAY THE 9TH DAY OF DECEMBER, 2022 BEFORE HER HONOUR ROSEMARY BAAH TOSU (MRS) – CIRCUIT COURT JUDGE SUIT NO: C11/73/2018 ALFRED DWAMENA PLAINTIFF H/NO: HV26/4 EVERLIP, KASOA VS 1. TROYSTEEL CO. LTD. 1ST DEFENDANT MILE 11 WEIJA- KASOA ROAD ACCRA 2. JOSEPH OSEI. 2ND DEFENDANT ADJIRIGANOR, EAST LEGON ACCRA 3. ROSEMARY OSEI. 3RD DEFENDANT ADGIRIGANOR ======================================================== JUDGMENT Plaintiff seeks the following reliefs in his amended Writ of Summons and Statement of Claim filed on the 2nd October, 2020. a. An order directed at the Defendants for the return of all the roofing sheets they collected from the Plaintiff’s house. b. Damages c. Costs including legal fees FACTS Plaintiff is a driver by profession and former employee of 1st Defendant which is a company registered under the laws of Ghana. The 2nd and 3rd Defendants are director and manager of 1st Defendant company. Plaintiff says that for a period spanning two years that is from 2014 to 2016, he purchased various quantities of roofing sheets from 1st Defendant company. Plaintiff pleads that both 2nd and 3rd Defendants knew of these transactions since official receipts including waybills were issued to him by officials of 1st Defendant. In the year 2016, all these roofing sheets which Plaintiff purchased legitimately were collected from his home on the instructions of 2nd and 3rd Defendants. According to Plaintiff, this incident happened on his blind side because he was not at home. When this fact came to his notice, Plaintiff caused his lawyers to write demand letters for a return of the roofing sheets but it all fell on deaf ears. He therefore prays as per the endorsement on his Writ of Summons. Defendants deny the case of Plaintiff and pray that his suit be dismissed as he has not made out any case against Defendants. Defendants admit that Plaintiff used to be a driver in 1st Defendant company until he was dismissed for theft of roofing sheets. Defendants plead that when he was apprehended, Plaintiff voluntarily went with them to where he kept the materials and they were retrieved. Upon return to the office, Plaintiff pleaded to be allowed to work in the company since the roofing sheets had been retrieved, however he was dismissed. Defendants insist that they have no idea of the said receipts allegedly given to Plaintiff upon payment for the said roofing sheets. ISSUES FOR DETERMINATION The following issues were set down for trial at Application for Directions stage. 1. Whether or not Plaintiff purchased certain quantities of roofing sheets from 1st Defendant which were subsequently seized by the 2nd and 3rd Defendants. 2. Whether or not Plaintiff was the one who accompanied Defendants to his house to retrieve the stolen roofing sheets. Plaintiff testified personally and did not call any witness in support of his case. His testimony is not too different from his pleadings. Plaintiff tendered in evidence the following documents,  Exhibit A- Official receipt dated 7/08/2014  Exhibit A1 – Proforma Invoice  Exhibit B – Proforma invoice dated 23/03/2016 Defendants led evidence through 2nd Defendant, Joseph Osei, the Chief Executive Officer of 1st Defendant. He testified that Plaintiff formerly worked with 1st Defendant as a driver, however, Plaintiff was dismissed from their employment after it was noticed that he had been stealing roofing sheets belonging to 1st Defendant over a period of time. He testified further that Plaintiff voluntarily led Defendants to retrieve these stolen items from his hideout. He tendered the following documents in evidence  Exhibit 1- Picture of roofing sheets  Exhibit 2 – Picture of roofing sheets with Plaintiff in the background.  Exhibit 3 & 3(A) – Pictures of Roofing sheets  Exhibit 4 – Self Lock roofing sheets  Exhibit 5, 5(A) & 5(B)- picture of scraps Defendants also called one Yusif Falilu as DW1. His evidence is that he is a driver at 1st Defendant company and he knows the Plaintiff. He testified that a few years ago, whilst on duty at 1st Defendant’s headquarters, 2nd Defendant requested him to accompany him to do some work. They went together in DW1’s truck to the Plaintiff’s house, where they saw lots of self-lock roofing sheets packed. DW1 says he assisted Plaintiff to pack these roofing sheets into the bucket of his truck. He says that exhibits 1 and 2 were the sheets packed into the truck. He also identified Plaintiff as the man in exhibit 2. He later discharged the roofing sheets at 1st Defendants headquarters. ANALYSIS OF THE EVIDENCE LED The general rule is that the party who in his pleadings raises issues essential to the success of his claim assumes the burden of proof and this same burden applies to a defendant who makes a counterclaim. A plaintiff who makes a positive assertion therefore bears not only the legal burden but also the evidential burden to produce sufficient evidence in order to avoid a ruling against him. A Plaintiff in a civil matter must prove his case on a balance or the preponderance of probabilities, which is defined in Section 12(2) of the Evidence Act, NRCD 323 as ‘The degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable/likely than its nonexistence’. The first issue to consider is Whether or not Plaintiff purchased certain quantities of roofing sheets from 1st Defendant which were subsequently seized by the 2nd and 3rd Defendants. Plaintiff’s evidence is that he purchased roofing sheets from 1st Defendant, which is evidenced by Exhibits A, A1 and B. Exhibit A is an official receipt from Trouselina Company Limited, showing the sale of roofing sheet scraps for an amount of GHS200. This sale took place on the 7th August, 2014. Exhibit A1 is also a proforma invoice from the same Trouselina Company Limited for materials described as scraps at a price of GHS200. This document is dated 7th August, 2014. The date presupposes that exhibit A is payment for A1. Exhibit B, is an invoice for GHS660 for 30 pieces of IBR sheets from Troy steel Company Limited. It is the case of Defendants that all the roofing sheets retrieved from Plaintiff as evidenced by exhibits 1 and 2 are the Self Lock type of roofing sheets. 2nd Defendants evidence is that 1st Defendant produces different IBR roofing sheets, which includes the Self Lock type, exhibited as exhibit 4. According to 2nd Defendant, sheets that get damaged are documented and sold as scrap and not roofing sheets. Exhibit 5 series refers. The parties seem to be ad idem on what is described as scraps. Cross-examination of Plaintiff dated 9th April, 2021 at page 16 and 17 of Que: You sued over roofing sheets right? Ans: Yes Que: Kindly look at Exhibit A and A1 and tell the court where the word roofing sheets appear? Ans: R/S indicates roofing sheets on Exhibit A1. Que: I put it to you that exhibits A and A1 refers to roofing sheet scraps as indicated on top of Exhibit A and in brackets on Exhibit A1? Ans: That is not so. Those referred to as scraps are roofing sheets we call off cutting. These are roofing sheets that do not come out properly when produced. These are mangled and employees are allowed to purchase them. 2nd Defendant testified in paragraph 29 of his witness statement as follows 29. When some of the sheets get damaged, they are sold as scrap as per Exhibit 5 attached. These are documented as scrap, they are not documented as ‘roofing sheets.’ 30. The roofing sheets stolen by the plaintiff from 1st Defendant which he accompanied and assisted Defendants to retrieve from his hideout are the self-lock type as per Exhibits 1 and 2 attached. The evidence which was not properly challenged by the Plaintiff is that all the roofing sheets collected from Plaintiff’s house were not IBR sheets but self-lock ones and neither were they scraps too. Cross-examination of 2nd Defendant by Counsel for Plaintiff at page 25 of the record dated 17th September, 2021. Que: The roofing sheets you collected from Plaintiff’s house were all IBR roofing sheets, is that not so? Ans: That is not so, it was self-lock. There was no IBR sheets. This piece of evidence is also corroborated by DW1 who was present and also exhibit 1 and 2. It was held in the case of Quagraine vs. Adams (1981) GLR 599, that ‘Where a party makes an averment and his opponent fails to cross examine on it, the opponent will be deemed to have acknowledged sub silento, that averment by the failure to cross-examine’. I therefore find as a fact that the sheets found in the possession of Plaintiff were not IBR sheets but self-lock sheets. The Plaintiff in his evidence in chief stated at paragraph 6 as follows 6. On the 7th day of August, 2014, I purchased 10 pieces of roofing sheets described as scraps and was issued with a proforma invoice and receipt with a face value of GHS200. See exhibit A series. However, under cross-examination, Plaintiff denies that the roofing sheets he purchased were scraps. Que: Kindly look at Exhibit A and A1 and tell the court where the word roofing sheets appear? Ans: R/S indicates roofing sheets on Exhibit A1. Que: I put it to you that exhibits A and A1 refers to roofing sheet scraps as indicated on top of Exhibit A and in brackets on Exhibit A1? Ans: That is not so. Those referred to as scraps are roofing sheets we call off cutting. These are roofing sheets that do not come out properly when produced. These are mangled and employees are allowed to purchase them. This contradiction weakens the credibility of Plaintiff. Plaintiff has given the Court no explanation as to why he testified in his witness statement that the roofing sheets he purchased were described as scraps but then denies under cross-examination that they were indeed scraps. Having found as a fact that the roofing sheets retrieved from Plaintiff’s house were the self-lock type, I find that Plaintiff has been unable to prove his claims on the preponderance of the probabilities. This is because the roofing sheets found on his premises are not relatable or referable to the documents tendered in Court as evidence of his purchase. The next issue to deal with is Whether or not Plaintiff was the one who accompanied Defendants to his house to retrieve the stolen roofing sheets. Plaintiff’s evidence is that sometime in 2016, the 2nd and 3rd Defendants caused all the roofing sheets which he purchased to be collected from his home and sent to the Defendants place. Plaintiff insists that all this happened on his blind side since he was away from home. Defendants deny this assertion and even tendered in evidence, exhibit 2. Exhibit 2 is a picture of Plaintiff in his house standing by the retrieved roofing sheets. DW1, the driver who assisted Plaintiff to park the sheets corroborates the evidence of 2nd Defendant. Under cross-examination by Counsel for Defendants, however. Plaintiff made a turnaround. Cross-examination at page 22 of the record of proceedings dated 26th August, 2021. Que: Do you know Yusif Falilu? Ans: Yes Que: Who is he? Ans: He is a company driver. He is my junior in the business Que: I put it to you that Yusif was the one who drove the truck with you and Defendants to your hideout and assisted you to load the stolen roofing sheets onto the truck Ans: It is true he was the driver, however Defendants had already taken some of the sheets without my knowledge. It was the other sheets I went with them to pick but the sheets were not stolen. Plaintiff’s further evidence is that the sheets in exhibit 2 were not all the sheets he purchased because Defendants had already taken some of the sheets without his knowledge. Defendants deny this assertion, they say that they did not know the home of Plaintiff so they could not have retrieved the sheets on his blindside. Having denied this assertion, the burden was on Plaintiff to lead credible evidence to convince the Court that his testimony is the truth. Ollennu J, held in the case of Majolagbe vs Larbi & Ors (1959) GLR 190 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 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 facts, 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’. Besides his bare assertion that Defendants had earlier gone to his home in his absence to retrieve some roofing sheets, Plaintiff has led no evidence to prove this fact. Considering the evidence led I find that Plaintiff was the one who led Defendants to his house to retrieve the said roofing sheets and he actively participated in this exercise by helping DW1 to load the roofing sheets onto the truck. After considering the totality of the evidence, I find that Plaintiff has been unable to prove his claims against Defendants. Plaintiff’s claims are hereby dismissed and I award costs of GHS2000 in favour of Defendants. CIRCUIT COURT JUDGE (SGD) H/H ROSEMARY BAAH TOSU (MRS) REPRESENTATION Plaintiff present Solomon Boye Boison for Plaintiff Stanley Boye- Quaye for Defendants 8