OSAFO VRS WESTERN DIAMOND CEMENT LTD. (E1/128/20) [2022] GHAHC 141 (23 November 2022)

IN THE HIGH COURT OF JUSTICE, WESTERN REGION, HELD AT SEKONDI ON THE 23RD DAY OF NOVEMBER, 2022, BEFORE HER LADYSHIP AFIA N. ADU-AMANKWA (MRS.) J. ELIZABETH OSAFO VRS. SUIT NO. E1/128/20 PLAINTIFF WESTERN DIAMOND CEMENT LTD. DEFENDANT JUDGMENT The determination of the instant action hinges mainly on the accounts between the parties who were in a business relationship. The plaintiff is a businesswoman trading under the name and style of Yesu Mogya Enterprise, whilst the defendant, a limited liability company, supplied the plaintiff with cement of various grades and prices. It is the plaintiff’s case that even though she made payments into the defendant's accounts for the supply of cement, the defendant failed to honour some of her requests. According to her, in 2017, the defendant overcharged her for cement supplied to the tune of GHc4112.50. Again, in that same year, she paid an amount of GHc152, 868.16 to the defendant, but it failed to supply her with cement nor refund her money, bringing the defendant’s indebtedness to her to the tune of GHc156,980.66. Notwithstanding persistent demands for the refund of her money, the defendant had refused to do so hence her action against it for: “a. A refund of GHc156, 980.66 being the amount covering overpayments made and for cement bags the Defendant failed to supply the Plaintiff. b. Interest on GHc156, 980.66 from 1st January, 2018 till date of final payment. c. Damages for breach of contract d. Costs”. The defendant has denied the plaintiff's claims and contends that the plaintiff owes it an amount of GHc260,996.89 for cement supplied to her. It, therefore, counterclaimed for the amount of GHc260,966.89. After the close of pleadings, the following issues were adopted for trial: i. Whether or not the Defendant owes Plaintiff an amount of GHC156,980.66. ii. Whether or not the Plaintiff owes Defendant an amount of GHc260, 966.89. iii. Whether or not the Defendant owes Plaintiff any amount at all. iv. Whether or not the Plaintiff owes the Defendant any amount at all. v. Whether or not the Plaintiff is entitled to the reliefs she seeks from the Defendant. vi. Whether or not the Defendant is entitled to the reliefs it seeks from Plaintiff. The Evidence Act, 1975, NRCD 323, prescribes the procedure to be applied in every proceeding. It provides a helpful guide on the burden required to be discharged by a party to a dispute at a trial. Section 11(1) of NRCD 323 obliges a party to introduce sufficient evidence to avoid a ruling against him on an issue. In seeking the recovery of GHc156,980.66, the plaintiff has the initial burden to produce such evidence as would satisfy the court that the defendant owes her to that tune. Kpegah JSC pithily captures the position of the law on proof in Zabrama vrs. Segbedzi [1991] 2 GLR 221, wherein he restated the well-known principle in Majolarbi vrs. Larbi as follows: “The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden." This burden is not discharged by merely entering the witness box and repeating the claims or averments in the pleadings. The burden is discharged by leading admissible and credible evidence from which the facts being asserted can be properly and safely inferred or concluded. The defendant has also counterclaimed for a recovery of GHc260,966.89 owed by the plaintiff and bears the same burden as the plaintiff. For once made, a counterclaim proceeds as an independent action even if the original action were concluded, stayed, discontinued or dismissed. The rules provide that in proceedings arising out of a counterclaim, the counterclaim is deemed a writ and statement of claim. The party making the counterclaim and the party against whom it is made are also deemed as the plaintiff and defendant respectively. Therefore, both parties bear the burden of proving their respective claims on a balance of probabilities. In her testimony, the plaintiff denied that she owed the defendant an amount of GHc260,966.89, adding that she had paid for every cement the defendant had supplied her, even in excess. Eric Forson, a marketing officer of the defendant company, testified on behalf of the defendant. He testified that the plaintiff's company, Yesu Mogya Enterprise, was registered with the defendant on 9th February, 2017 as a distributor based in Twifo Praso in the Central Region. As part of the arrangement, the plaintiff formed an umbrella group. The plaintiff distributed products she received from the defendant to the said dealers under the umbrella group and made margins on same. The plaintiff worked with the defendant from February 2017 to April 2019, and during this period, the defendant supplied the plaintiff with cement at her request. The plaintiff arranged the transportation of the cement to any destination of her choice. In all, the defendant supplied GHc3,012,673.39 worth of cement to the plaintiff, and the plaintiff paid an amount of GHc2,751,706.50 to the defendant leaving a balance of GHc260, 966.89 unpaid. In support of their claims, both parties tendered quite a number of documents in evidence. Of importance to the case are the plaintiff's exhibit “B” and the defendant's exhibit “4”. These exhibits are the same and emanate from the defendant company. The plaintiff explained that the exhibit was a ledger account that the defendant printed out for her. The defendant did not challenge her on this assertion but also tendered the same document in evidence as exhibit “4”. The defendant’s representative also explained that the defendant solely prepared the ledger account based on accounts it had with Yesu Mogya Enterprise. These exhibits show what the defendant claims to have been the cement supplied to the plaintiff and the monies it had received from her spanning the period from 20th February, 2017 to 24th April, 2019. Per exhibits “B” and “4”, the total value of cement supplied to the plaintiff for the period was GHc3,012,673.39, whilst the plaintiff paid a total amount of GHc2,751,706.50 for the supplies. It is the difference between these amounts being GHcGHc260,966.89 which the defendant claims to be monies outstanding from the plaintiff. The plaintiff, on the hand, disputes some of the monies debited to her account as cement supplied to her in exhibits “B” and “4”. In her evidence, the plaintiff stated that on 4th June, 2020, she went to Mr. Prakash, the defendant’s agent through whom she dealt with in her dealings with the defendant and officially challenged the balance given to her. Mr. Prakash directed her to prepare a detailed account which she did and presented it to him on 24th June, 2020. She tendered a copy of this document in evidence as exhibit “Q”. Exhibit “Q” summarises the plaintiff's dealings with the defendant and contains what she claims as her purchases from the defendant as well as payments she had made to it spanning the period of 20th February, 2017 to 24th April, 2019. Also tendered in evidence as exhibit “S” by the plaintiff is the list of transactions which the plaintiff denies as having been supplied to her by the defendant yet debited to her account. In effect, except for a few instances of overpayments and the transactions found in exhibit “S”, the plaintiff accepted as correct the entries made by the defendant in exhibits “B” and “4” as representing goods supplied to her and payments made to the defendant. The plaintiff could not support all her purchases with receipts or invoices. Neither could the defendant support all its supplies to the plaintiff with invoices or receipts. But as long as the plaintiff had conceded as true the entries made in exhibits “B” and “4” subject to what she had denied, the defendant was under no obligation to prove those supplies to her. The defendant tendered two types of documents in evidence as proof of its supplies to the plaintiff. First are the GRA/VAT invoice receipts, exhibits “3” and “6” series. Second are what the defendant’s representative described as computer-generated documents, which, according to him, were generated from the GRA VAT receipts and of which the plaintiff had copies. These documents were tendered as exhibits “2” series and exhibits “10”- “38”. The defendant’s representative admitted that the plaintiff was never shown or given copies of these documents. That being the case, not much reliance would be placed on them to determine the accounts between the parties. Instead, the VAT invoices, which the defendant's representative confirmed as the documents used in the defendant's dealings with the plaintiff, would be used. The plaintiff testified that in May 2017, she took five consignments of cement from the defendant on 4th, 18th, 19th, 23rd and 24th May 2017. Thus, instead of sixteen(16) consignments the defendant claims to have supplied her in May 2017, she only paid and took delivery of five (5) consignments. She tendered in evidence as exhibit “J” series, invoices covering the transaction. DATE 4-05-17 18-05-17 19-05-17 23-05-17 24-05-17 TOTAL EXHIBIT INVOICE NO. AMOUNT J J1 J2 J3 J4 3623467 3623251 20,674.13 20,674.13 20,674.13 20,674.13 21,672.87 104,369.39 The plaintiff further testified that in June 2017, she only took consignments on 5th, 7th, 7th, 8th, 12th, 14th, 15th and 23rd June 2017. She tendered exhibits “K” series to prove her point. DATE 05-06-17 07-06-17 07-06-17 08-06-17 12-06-17 14-06-17 15-06-17 23-06-17 01-06-17 TOTAL EXHIBIT INVOICE NO. AMOUNT K K1 K2 K3 K4 K5 K6 K7 K8 3625436 3625395 3625129 3626728 20,674.13 21,890.25 20,674.13 21,890.25 20,674.13 20,674.13 21,890.25 20,674.13 19,458.00 188,499.40 The plaintiff testified that in July, 2017, she had nine (9) transactions with the defendant. These were on the 6th, 8th, 12th (2x), 12th, 13th, 15th and 21st (2x). She tendered exhibit “L” series to support her assertion. DATE EXHIBIT INVOICE NO. AMOUNT EXHIBIT (DEFENDANT) 06-07-17 08-07-17 12-07-17 L L1 L2 3626324 6 20,674.13 21,672.88 21,890.25 6B 13-07-17 15-07-17 21-07-17 21-07-17 26-07-17 12-07-17 TOTAL L3 L4 L5 L6 L7 D 5288343 5287023 5288415 21,890.25 20,674.13 21,672.87 20,674.13 21,890.25 21,672.88 (OVERCHARGE) 192,711.77 Again, in August, 2017, the plaintiff testified that she had eleven (11) transactions with the defendant, which were evidenced by exhibits “M” series. DATE EXHIBIT (PLAINTIFF) 01-08-17 M 05-08-17 M1 07-08-17 M2 08-08-17 M3 09-08-17 M4 15-08-17 M5 18-08-17 M6 22-08-17 M7 18-08-17 24-08-17 M9 29-08-17 M10 TOTAL E INVOICE NO. 5287732 5287904 5286049 5286275 5286396 AMOUNT EXHIBIT (DEFENDANT) 6D, 3K 3Q 19,458.00 20,674.13 20,674.13 21,672.88 20,674.13 21,972.50 21,972.50 23,265.00 22,971.25(OVERCHARGE) 3J 21,972.50 21,972.50 237,279.52 6E In September 2017, the plaintiff stated that she took consignment of cement on 6th, 8th, 12th, 17th, 21st and 23rd September, 2017. She could provide five (5) receipts as exhibit “N” series to support her claim. She also made two purchases in that month, as evidenced by exhibits "N4" and "M8" respectively. DATE EXHIBIT INVOICE NO. AMOUNT 08-09-17 15-09-17 21-09-17 25-09-17 28-09-17 N N1 N2 N3 N4 21,972.50 21,972.50 21,972.50 21,972.50 21,972.50 5311435 5311959 7 EXHIBIT (DEFENDANT) 3T 3U 18-09-17 03-09-17 TOTAL M8 P 5312246 21,972.50 21,972.50 153,807.50 This gives us a total of GHc876,667.59 as summarized below. MONTH MAY JUNE JULY AUGUST SEPTEMBER TOTAL AMOUNT 104,369.39 188,499.40 192,711.77 237,279.52 153,807.50 876,667.58 This figure represents the purchases for which the plaintiff could support with invoices. But, as has already been stated, the plaintiff has acknowledged receipt of some purchases of cement which the defendant claims to have supplied her. The entries of these supplies can be found in both exhibits “B” and “4”. The table below shows the list of supplied cement to the plaintiff which she could not support with invoices. FEBRUARY DATE 20-02-17 23-02-17 24-02-17 TOTAL MARCH DATE 02-03-17 02-03-17 03-03-17 14-03-17 INVOICE NUMBER AMOUNT 1738294 21,972.50 22,971.25 21,972.50 66,916.25 EXHIBIT (DEFENDANT) INVOICE NUMBER 1737199 1737609 AMOUNT 21,972.50 22,971.25 21,972.50 21,972.50 21-03-17 29-03-17 31-03-19 TOTAL APRIL DATE 01-04-17 13-04-17 21-04-17 TOTAL MAY DATE 03-05-17 05-05-15 06-05-17 07-05-17 09-05-17 13-05-17 23-05-17 27-05-17 30-05-17 31-05-17 TOTAL JUNE DATE 02-06-17 06-06-17 06-06-17 09-06-17 13-06-17 14-06-17 15-06-17 16-06-17 1805525 22,971.25(OVERCHARGE) 6A 19,998.50 21,972.50 153,831.00 INVOICE NUMBER AMOUNT 1805427 21,972.50 23,870.13 20,674.13 66,516.76 EXHIBIT DEFENDANT 6C INVOICE NUMBER AMOUNT 1806962 3623720 3623883 3625990 3625758 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 206,741.30 INVOICE NUMBER AMOUNT EXHIBIT (DEFENDANT) 3625456 3625254 3625122 3626974 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 21,890.25 20,674.13 19-06-17 20-06-17 21-06-17 23-06-17 27-06-17 29-06-17 TOTAL JULY DATE 03-07-17 05-07-17 07-07-17 09-07-17 11-07-17 12-07-17 13-07-17 16-07-17 18-07-17 20-07-17 22-07-17 25-07-17 28-07-17 TOTAL AUGUST DATE 01-08-17 02-08-17 10-08-17 16-08-17 23-08-17 29-08-17 31-08-17 TOTAL 3626610 3626695 3626906 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 21,672.88 291,652.69 6Q, 3A 3N INVOICE NUMBER AMOUNT 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 21,672.88 (OVERCHARGE) 21,890.25 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 270,978.56 DEFENDANT (EXHIBIT) 3M, 6H 3S 3626241 3626355 5288415 5288299 5288007 5287194 INVOICE NUMBER AMOUNT 5287625 5286052 5313045 20,674.13 20,674.13 20,674.13 21,972.50 21,972.50 21,972.50 21,972.50 149,912.39 SEPTEMBER DATE 05-09-17 10-09-17 15-09-17 20-09-17 22-09-17 24-09-17 26-09-17 29-09-17 TOTAL OCTOBER DATE 03-10-17 04-10-17 09-10-17 TOTAL APRIL 2018 DATE 16-04-18 17-04-18 24-04-18 30-04-18 TOTAL MAY DATE 11-05-18 23-05-18 29-05-18 TOTAL INVOICE NUMBER AMOUNT 5311200 5311754 5311865 5312135 21,972.50 21,972.50 21,972.50 21,972.50 21,972.50 21,972.50 21,972.50 21,972.50 175,780.00 INVOICE NUMBER AMOUNT 5312365 21,972.50 21,972.50 21,972.50 65,917.50 INVOICE NUMBER AMOUNT 7369104 7369921 20,674.13 20,674.13 20,674.13 20,674.13 82,696.52 INVOICE NUMBER AMOUNT 7370912 25,850.00 20,674.13 20,674.13 67,198.26 JUNE DATE 04-06-18 14-06-18 29-06-18 30-06-18 TOTAL AUGUST DATE 01-08-18 08-08-18 15-08-18 17-08-18 TOTAL INVOICE NUMBER AMOUNT 8227046 8228533 20,674.13 20,674.13 20,674.13 20,674.13 82,696.52 INVOICE NUMBER AMOUNT 8958190 8958567 22,102.34 22,102.34 23,101.09 22,102.34 89,408.11 In sum, the total value of cement the plaintiff admitted the defendant supplied to her but which were not supported with invoices is GHc1,770,245.86 as summarized below. MONTH FEBRUARY 2017 MARCH 2017 APRIL 2017 MAY 2017 JUNE 2017 JULY 2017 AUGUST 2017 SEPTEMBER 2017 OCTOBER 2017 APRIL 2018 MAY 2018 JUNE 2018 AUGUST 2018 TOTAL AMOUNT 66,916.25 153,831.00 66,516.76 206,741.30 291,652.69 270,978.56 149,912.39 175,780.00 65,917.50 82,696.52 67,198.26 82,696.52 89,408.11 1,770,245.86 Thus, adding the receipted purchases of GHc876,667.58 to the non-receipted purchases of GHc1,770,245.86 gives us a total of GHc2,646,913.44. This amount represents the value of cement the plaintiff admits to have been supplied by the defendant to her and not GHc3,012,673.39 worth of cement, which the defendant claims to have supplied her. Thus, at this point, both parties are ad idem as to the fact that GHc2,646,913.44 worth of cement was supplied to the plaintiff. What is in issue, therefore, is the difference between this amount and what the defendant claims to have supplied the plaintiff, which is GHc3,012,673.39. The bone of contention between the parties stems from the plaintiff’s allegation that some of the supplies debited to her account were not supplied to her but to other customers of the defendant. According to the plaintiff, the defendant supplied others and charged the expenses to her account. The plaintiff testified that the defendant claimed to have established an umbrella account and had assigned some of its smaller customers to her name. When she enquired from one David, an employee of the defendant, as to how the umbrella account was going to be regulated, David assured her that management would take care of that because the defendant had the contacts of all persons it had brought under the umbrella account. She postulated that the defendant may have supplied persons under the umbrella account it had created and debited her account with their purchases. On the other hand, the defendant contends that the plaintiff formed an umbrella group to distribute the products she received from it to make profits from same. In essence, the defendant contends that the plaintiff is responsible for the payment of the supplies to persons under her umbrella account as it was at her instance that the account was created. The plaintiff takes a contrary view and contends that she cannot be responsible for the payment of supplies to persons under an account she did not create. Both parties acknowledge the existence of the umbrella account. Whereas the plaintiff denies creating the account, the defendant contends that the plaintiff created it to make profits. It is for the party who makes a positive assertion to adduce evidence to prove it. It is not the party who denies a fact who has the burden to prove the fact. He who denies a fact cannot be expected to provide proof. See the case of Daniel Kwasi Abodakpi vrs. The Republic, CA, Criminal Appeal No. H2/6/07 dated 20th June, 2008 where it was held that: “I have always understood it to be a general rule that if a negative averment be made by a party which is peculiarly within the knowledge of the other party within whose knowledge it lies and who asserts the affirmative is to prove it and not he who avers the negative. The defendant bears the burden of proving that the plaintiff set up the umbrella account to make profits. It has asserted in the positive with the plaintiff denying this fact. Moreover, this fact is peculiarly within the knowledge of the defendant. As stated in Salifu vrs. Mahama & Others [1989-90] 1 GLR 431: “Taking for guidance the rule of evidence that where the subject matter of a party’s allegation (whether affirmative or negative) was peculiarly within the knowledge of his opponent, it lay upon the latter to rebut such allegation, it would be an almost impossible task to ask the applicant to prove that the respondents, the judgment creditors were men of straw when he did not know them previously, let alone the work they did and other relevant facts”. Regarding the burden of proof also, the dictum of the Supreme Court in the case of Klah vrs. Phoenix Insurance Co. Ltd is relevant to the effect that a party who makes an averment capable of proof in some positive way, such as producing documents, describing things, and reference to other facts and which is denied cannot go into the witness box and just repeat that averment on oath. He ought to prove his assertion in a positive way failing which he would not have met the burden of proof on him. The defendant attempted to prove this fact by tendering in evidence as exhibit “1”, the plaintiff’s registration form. However, the exhibit fails to disclose that the plaintiff formed an umbrella account. All it shows are the particulars of the plaintiff. The defendant also tendered a document which it claimed was an Agricultural Development Bank (ADB) statement in evidence as exhibit “7”. The document showed that one Isaac Oboh, a sub-agent of the plaintiff, credited the defendant's account with GHc20,247.00 on 29th June, 2017. It was the defendant’s case that the plaintiff insisted that the amount be credited to her account for cement she supplied to Isaac Oboh. There is nothing on the face of this exhibit which indicates that the document emanates from ADB. Even if it was a statement from ADB, it only shows that Isaac Oboh paid the money into the defendant's account with ADB and not the plaintiff’s account. There is no proof that the plaintiff called asking that the payment be credited to her account. Again, the defendant tendered a copy of a funds transfer document made by Isaac Oboh to the plaintiff's GN Bank account as exhibit “8”. This document does not show that Isaac Oboh comes under the plaintiff’s umbrella account. All it shows is payment of GHc20,247.00 into the plaintiff's account to pay off goods received from the plaintiff, which goods could be anything. Also tendered in evidence as exhibit “9” is a document that the defendant claims to be an Agricultural Development Bank statement (ADB). Once again, there is no indication that the document emanates from ADB. It is not on ADB's letterhead neither does it bear its stamp. It does not also bear the signature of any officer of the bank. Under cross-examination, the plaintiff explained that R. Wiafe Company went for the goods from the defendant in Yesu Mogya’s name and paid the amount directly to the defendant through its ADB account. This only shows that R. Wiafe made direct payments into the defendant’s account without the plaintiff’s involvement buttressing the plaintiff’s claim that she was not involved in the payment arrangements regarding entities or persons under the umbrella account. The plaintiff does not deny the existence of the umbrella account. She contends that because she did not create nor was, she consulted in the creation of the account, she could not be held responsible for the purchases the customers made in her name. It was up to the defendant to regulate how the sub customers paid for their goods. As has already been stated, it is the defendant’s positive assertion that the plaintiff created the umbrella account to make profits which the plaintiff has denied. The burden is, therefore, cast on it to prove that the plaintiff created the account. So far, the documents the defendant has tendered to prove this fact do not, infact, show that the plaintiff created the account. Exhibit “1” is the form the plaintiff filled when opening or creating her account with the defendant company. The particulars of the form do not indicate the creation of an umbrella account. Exhibits “7” and “8” do not in any way show that she was responsible for creating the account. The defendant would not have hesitated in showing the documents covering the creation of the account if it had them. And it would have been in possession of these documents if the plaintiff had created such an account with it. In the absence of any proof showing the plaintiff’s creation of the umbrella account, the defendant would have failed in its duty to show that it was the plaintiff who created the account. That being the case, the plaintiff is not responsible for the payment of supplies of cement in her name but delivered to other customers. The supplies which the plaintiff disputes are found in exhibit “S”. It is presumed that the plaintiff did not receive them. The table below shows the list of supplies found in exhibit “S”, which the defendant claims to have supplied the defendant but which the plaintiff denies receipt of. DATE INVOICE NO. AMOUNT 25-05-17 20-06-17 21-06-17 29-06-17 30-06-17 11-07-17 11-07-17 02-08-17 05-08-17 08-08-17 18-08-17 23-08-17 06-09-17 08-09-17 12-09-17 17-09-17 21-09-17 23-09-17 02-10-17 TOTAL 3626611 3626937 3626407 5287608 5287869 5286341 5311136 5311573 5311925 EXHIBIT (DEFENDANT) 3C, 6M 3B 6P 3P 6N 3L 6D 20,674.13 21,672.88 20,674.13 21,672.88 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 20,674.13 22,971.25/20674.13 3J 23,265.00 21,972.50 21,972.50 21,972.50 21,972.50 21,972.50 27,025.00 21,972.50 413,835.05 3H, 6G 3D, 6K 3G, 6L 3F 3E 6J 6F It is noted from the table that, except for five transactions, the defendant supported its supplies with VAT invoices. The plaintiff does not deny that the defendant supplied these products, but her claim is that these products were supplied to other persons but debited to her account. A study of the computer- generated documents, i.e., exhibits “2” series and “10”-“38”, which cover some of the transactions, would show that most of these supplies went to destinations other than Twifo Praso from where the plaintiff operates from. Some went to Kumasi, Kade, Accra and even “Karim”. (the defendant’s representative acknowledged that to be an error on the defendant’s part). These exhibits also captured the registration details of the vehicles and the identities of the drivers that supplied the goods. This lends credence to the plaintiff's claim that she could not have known the destination of the supplied goods as the defendant had been in charge of the transport arrangements and did so on her behalf and at her expense. This explains why the defendant would have the records of the vehicles and names of the drivers who supplied its products to its customers. The defendant has not been able to displace the burden it bore to prove the plaintiff’s creation of the umbrella account. The evidence shows that it created the umbrella account under the plaintiff’s Yesu Mogya Enterprise. That being the case, it is responsible for how the customers pay for their products. Those supplies should not have been debited to the plaintiff’s account. The value of the cement that was not supplied to the plaintiff, as found in exhibit “S”, is GHc413,835.05. This includes goods which she was charged with but which, according to her, never left the defendant's premises. In support of this assertion, she tendered in evidence as exhibit “G”, a document which lists the movement of the defendant's vehicles to its customers. Even though the defendant had debited her for the supply of goods on 20th June, 2017 (GHc21672.13) and 29th June, 2017(GHc21,672.88), exhibit “G” showed that the defendant did not even supply her on these dates. Having failed to challenge the plaintiff on the exhibit, the defendant is deemed to have accepted the facts stated in that exhibit. On exhibit “G”, there was only a single delivery of cement with invoice number 3626610 on 20th June, 2017. Meanwhile, on exhibits “B” and “4”, the plaintiff was debited for two purchases made that day. However, the purchase of cement with invoice number 362611 was not delivered. Again, the defendant debited the plaintiff twice for purchases she made on 29th June, 2017. However, exhibit “G” shows that only the purchase with invoice number 3626906 was supplied to her. The defendant did not supply the purchase with invoice number 3626937. The table below shows the transactions affected. DATE INVOICE NO. WAYBILL NO. AMOUNT 20-06-17 29-06-17 TOTAL 3636937 - - 21,672.88 21,672.88 43,345.76 EXHIBIT (DEFENDANT) 3N It would be noted that the defendant supported its supplies on the affected dates with exhibits “3” and “3N”. However, I am more inclined to take the plaintiff’s side in view of some accounting errors on the part of the defendant. For example, exhibits “C” and “6A” are receipts for the supply of cement on 21st March, 2017. Even though it is the same invoice emanating from the defendant and bearing the same VAT number of 1808107, both receipts had different prices stated on them. One then wonders if there was a separate VAT invoice receipt book for customers and another for the defendant. The defendant’s representative explained that his accounts personnel may have changed the figures on the exhibit when they were compiling the exhibits for the court. But that explanation is taken with a pinch of salt as both exhibits do not show any form of cancellations or interlineations. In the light of this, I am more inclined to believe the plaintiff that she was not supplied with the goods. Moreover, it is the defendant’s document tendered by the plaintiff as exhibit “G” which shows that no supplies were made on the dates in question. The plaintiff also complained that she was debited with more than the amount covered by the invoices the defendant issued to her. According to the plaintiff, on exhibits “B” and “4”, she was debited with an amount of GHc22,971.25 for the purchase of 42.5 R cement on 21st March, 2017, even though she did not buy that grade of cement on that day. She tendered exhibit “C”, the VAT invoice covering the transaction in evidence. Per exhibit “C”, she purchased cement worth GHc21,720.00 (it ought to have been GHc21,912.50). The plaintiff further testified that, in exhibit “B”, she was debited with the amount of GHc21, 912.50 for cement bought on 12th July, 2017, when her invoice exhibit “D” covered an amount of GHc20,674.13. Finally, on 18th August, 2017, the defendant debited her with an amount of GHc22,971.25 when she was invoiced with the amount of GHc21, 972.50. She exhibited a summary of the discrepancies in her exhibit “F”. The defendant did not deny these facts that she put out. In sum, the plaintiff was debited GHc3011.25 above the actual price of the cement she purchased. The table below summarises the defendant's overcharge of the plaintiff on the three occasions. EXHIBIT PLAINTIFF C D E DATE 21-03- 12-07- 18-08- TOTAL INVOICE NUMBER 1808107 22,971.25 21,912.50 1058.75 AMOUNT INVOICED AMOUNT DEBITED DIFFERENCE EXHIBIT DEFENDANT 6A 5288415 21,627.88 20,674.13 953.75 5286682 22,971.25 21,972.50 998.75 3011.25 SUMMARY OF TRANSACTIONS Both parties agree that GHc2,646,913.44 worth of cement was supplied to the plaintiff. The value of the remaining transactions, which the plaintiff disputes, is GHc413,835.05 and would not be factored in the calculations to determine the plaintiff's indebtedness or otherwise to the defendant. As has already been stated, the plaintiff was overbilled in excess of GHc3011.25, as shown by the table. This amount should be deducted from GHc2,646,913.44, which would come up to GHc2,643,902.19. This amount represents the actual value of cement which the defendant supplied to the plaintiff. The plaintiff made a total payment of GHc2,751,706.50 to the defendant as per exhibits “B” and “4” between 2017 and 2018. It is clear that the plaintiff paid in excess of GHc107,804.31 to the defendant. She is entitled to a refund of that amount. The plaintiff claims damages for breach of contract. It is trite that in a claim for damages, the plaintiff is required under the law to provide evidence in support of the claim and to give facts upon which the damages could be assessed. In essence, the plaintiff must first furnish evidence to warrant the award of damages. There is no evidence on record to show the terms of contract between the parties and the action or conduct of the defendant the plaintiff considers a breach of the contractual terms. Merely overpaying the defendant for goods supplied is by no stretch of imagination a breach of contract. In the absence of facts and evidence by which the claim can be assessed, the plaintiff's claim for damages goes unproven, and it is dismissed. In conclusion, the plaintiff is entitled to a refund of GHc107,804.31. The amount shall bear the interest at the prevailing bank rate from 1st July, 2020 till the date of judgment. The plaintiff’s claim for the calculation of the interest rate to commence from 1st January, 2018 is not borne out by the evidence and is rejected. It was not until 4th June, 2020, that the plaintiff officially challenged the figures provided her by the defendant. During that month, the parties were in talks in an attempt to resolve their differences. It appears that the settlement broke down on 24th June, 2020 when according to the plaintiff, Mr. Prakash asked her to accept her indebtedness to the defendant to the tune of GHc260,000.00 and be given a GHc100,000.00 waiver. This she did not accept resulting in the filing of the writ on 21st August 2020. Thus, it is only fair and reasonable that the calculation of the interest rate should commence from 1st July, 2020. The defendant’s counterclaim is dismissed. COUNSELS Frank Agyapong appears for the Plaintiff. Samuel Adinkrah for the Defendant. (SGD.) H/L AFIA N. ADU-AMANKWA (MRS.) JUSTICE OF THE HIGH COURT. 21