Messrs Signals and Controllers Ltd Vrs Attorney General [2022] GHAHC 55 (1 December 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION HELD IN ACCRA ON THE 19TH DAY OF JUNE, 2023 BEFORE HIS LORDSHIP JUSTICE JUSTIN KOFI DORGU ============================================================= SUIT NO: CM/RPC/0884/2019 FIDELIA NCHEM } PLAINTIFFS VRS ALEX DAUTEY & 2 ORS } DEFENDANTS ============================================================= PARTIES: PLAINTIFF REPRESENTED BY HER ATTORNEY JUDGMENT On the 28th of May, 2019, the Plaintiff herein suing per her Lawful Attorney Reverend Raymond Selorm Daniels caused this Writ of Summons to issue against the Defendants herein, claiming the following;- “(a) An Order for the payment of CDN$ 200, 000 (Two Hundred Thousand Canadian Dollars) by the Defendants being the sum owed by the Defendants to the Plaintiff according to the terms of the Promissory note executed between the Parties (b) Interest on the amount stated in relief (a) according to the terms agreed in the promissory note with interest of 12% per annum, compounded semi- annually from November 1st, 2001 to date (c) Costs including solicitor’s fees (d) Any other reliefs that this Honourable Court deems fit”. The Writ of Summons was accompanied by a 14 paragraph Statement of Claim. In the said Statement of Claim, the Plaintiff described herself as a widow who is currently staying or resident in California, USA whilst the 1st Defendant engages in the real estate business and engaged in the construction of residential properties in the Greater Accra Region of Ghana. From the Statement of Claim, the 2nd Defendant is an incorporated entity registered in Ghana and was used as the vehicle for fund raising for the purposes of carrying out the object of the 1st Defendant and the 3rd Defendant also incorporated in Canada with the same object of raising funds for the 1st Defendant to engage in the construction of residential properties in Ghana. It is the case of the Plaintiff that at the request of the 1st Defendant, she gave a loan of CDN$ 200, 000.00 to the 2nd and 3rd Defendants on or about 30th November, 2001 at an agreed interest rate of 12% per annum to be compounded semi-annually and payable monthly. An agreement to that effect was drawn up and executed among the Parties. It is the case of the Plaintiff that the Defendants have defaulted in the repayment of the loan and that the last payment was received in December, 2018. Despite repeated demands for the payment of the outstanding amounts, the Defendants have failed, refused or neglected to make good the liability hence the instant suit. The 1st Defendant filed a Statement of Defence to the claim on the 18th February, 2020 when he wholly admitted paragraphs 1 to 8 of the Plaintiff’s Statement of Claim. The only caveat as far as these admissions of the Plaintiff’s claim in in his paragraph 2 when he stated that his liability is limited to the fact that in receiving the monies, he did that as an officer of the 2nd and 3rd Defendants. In further denial, 1st Defendant averred that the Plaintiff had been paid fully all the amounts owed her by the 2nd and 3rd Defendants and so pray the Court to dismiss the Plaintiff’s case in its entirety against them. At close of the pleadings and after the case failed settlement at the pretrial stage, the following issues were set down as the issues for the determination by the Court;- “(1) Whether or not the Plaintiff is owed the sum of Two Hundred Thousand Canadian Dollars (CDN$200, 000.00) less any amount demonstrated to have been repaid by the Defendants (2) Whether or not the Plaintiff is owed interest on the outstanding unpaid amounts as per the terms of the promissory note executed by the Parties” Now, when the case came up for hearing, this Court gave directions as to the filing of Witness Statements on the 12th day of July, 2022 and the case adjourned to 27th October, 2022 for CMC. It is instructive to note that as at 7th February, 2023, the Defendants failed to file their respective Witness Statements and checklists. On that same day, the Court called into effect Order 32 Rule 7A (3) (b) of the C. I 47 as amended by the C,I 87 and struck out the Statement of Defence of the Defendants and proceeded to set the case down for hearing with a further order that Hearing Notice be served on the Defendants to afford them the opportunity to attend Court and cross-examine the Plaintiff on her evidence if they so wished. Now, it is trite that the mere fact that a Defendant does not show up at a trial to defend the action does not entitle the Plaintiff to an automatic judgment. It is still incumbent on the Plaintiff to prove his/her case on the balance or preponderance of probabilities. This standard is captured in the Section 12 of the Evidence Act 1975 (NRCD 323) which provides;- 1” Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities’. “Preponderance of probabilities means that 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 than its non-existence” This statutory provision was expanded in the case of TAKORADI FLOUR MILLS V. SAMIR FARIS [2005-2006] SCGLR 882 thus;- “It is sufficient to state that this being a civil suit, the Rules of Evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities as defined in Section 12(2) of the Evidence Decree, 1975 (NRCD 323)”. The question then arises as to whether the Plaintiff has been able to discharge this burden. On the 17th of April, 2023, the Plaintiff herein testified through her witness Fidelia Nchem by tendering in her Witness Statement which was filed on the 11th November, 2022. It is instructive to note that this Witness is in fact the Plaintiff who due to her absence from the jurisdiction sued through an attorney Raymond Selorm Daniels. After the testimony, the case was adjourned with an Order that Hearing notice be served on the Defendants and or their Lawyers to attend the Court and do the cross- examination if they so wished. True to prediction, Counsel for the 1st Defendant appeared and conducted the cross-examination of the Plaintiff. In her evidence in chief, the Plaintiff tendered in three Exhibits to wit; Exhibit A, a Promissory note on the letter head of Awatu Canada Inc. titled ‘Promissory Note dated the 1st of November, 2001 with the principal amount CND $200, 000.00 and the due (repayment date) of November 1, 2006. Exhibit B is a payment voucher or certificate of a net amount of 20, 017.50 CND with the value date of 30th October, 2014. The payment was at the instance of Mr. Alex Dautey, the 1st Defendant herein and the beneficiary, the Plaintiff Fidelia Nchem. The third Exhibit is Exhibit C dated 28th February, 2019, Final Demand Notice from the Solicitors of the Plaintiff to the 1st Defendant. The total amount demanded per Exhibit C is CND$1, 629, 450.40 as at 1st December, 2018. Now, on this evidence, the Learned Counsel for the Defendants cross-examined the Plaintiff thus on the 25th April, 2023 (part thereof) “Q. Take a look at Exhibit A attached to your Witness Statement, Exhibit A is a promise to pay a loan you purportedly gave to the Defendant, is that not so? A. Yes My Lord Q. Now this loan you purportedly gave to the Defendant, was it documented? A. Yes it was documented. Q. The document you have exhibited do not show the loan, it only shows documents purporting to repay the loan A. I paid the loan out in a cheque form in the same bank he does business. This money was invested in the bank. I got to know about it and talked about this investment and I said no. That is when he went and drew this agreement and made it more attractive than what I was getting at the time. Q. You have not exhibited any document showing that you paid money personally to the 1st Defendant, I put that to you A. I have evidence that it was documented. I had 12 postdated cheques including this promissory note” Then a few lines down the cross-examination, the following transpired again;- “Q. What you did was to invest in the 3rd Defendant to build houses in Ghana A. Yes the investment was to build houses in Ghana Q. You only dealt with the 1st Defendant in his capacity as the Chief Executive or President as you call it in Canada of the 3rd Defendant A. Yes, he drafted the document, I did not draft. All I know is I invested monies for houses to be built at 12% rate”. Then again at page 3 of the day’s proceedings, the following transpired again;- “Q. So you agree with me that you did not give money to the 2nd Defendant (Awatu Ghana Ltd) A. Yes, I gave money to Alex Dautey who manages the company called Awatu Homes Q. Now, those postdated cheques that you mentioned, they were to cover the repayment of the entire investment, not so? A. No, he was supposed to give me yearly, 12 post-dated cheques. That was just the first year. Q. Now these cheques were the cheques of the 3rd Defendant, not the 1st Defendant personal cheques A. The cheques were from Alex Dautey” Then the last question in cross-examination was;- “Q. I am finally putting it to you that you dealt with only the 3rd Defendant in this transaction and not the 2nd Defendant as well as the 1st Defendant in his personal capacity A. I was dealing with a fellow Canadian, Alex Dautey who was building houses in Africa and I wanted to invest and get interest on my money”. Now, reviewing the evidence both in chief of the Plaintiff and the cross-examination, there is no doubt in my mind that the Plaintiff has discharged the duty in establishing a financial transactional relationship between her and the 1st Defendant for himself and on behalf of the 2nd Defendant especially. The nature of the transaction in whatever form it is described, whether as a loan or investment, it was evidenced that the Plaintiff did indeed advance money to the tune of $200, 000.00 CDN with the legitimate expectation of getting interest on the said money advanced. The recitals of the first paragraph of Exhibit A, the Promissory note reads as follows;- “For the value received, the undersigned jointly and severally unconditionally promise to pay to the order of Fidelia Nchem, Telephone Residential 905-502-6787; cell 416, 857, 3888 (the Lender) the principal sum of Two hundred Thousand Dollars ($200, 000.00 CDN) with interest before maturity at the rate of twelve percent (12%) per annum, compounded semi-annually, calculated and payable monthly, not in advance. Blended payments $2, 836.05 comprising of interest and principal shall be paid every month during the term of this Promissory Note, from and including November 1, 2001 with a final payment of all accrued and unpaid principal and interest owing under this Promissory Note to be paid on November 1, 2006”. The above to me is a complete contract spelling out the essential terms of loan agreement. It must be noted that the introductory phrase is “FOR VALUE RECEIVED’ and the document was signed by the 1st Defendant herein Alex Dautey and the two other signatories AWATU CANADA INC and AWATU GHANA Ltd signing as witnesses with the same 1st Defendant in his capacity as the President of both entities. It is also to be noted that under the two signatories, we have the undertaking stating “I/we have authority to bind the corporation”. This is a document prepared by the 1st Defendant as testified to by the Plaintiff who is deemed to have known the legal implications arising under the Promissory Note. To me, this is a case in which the defence corroborates the testimony of the Plaintiff, his opponent in material particulars. In such cases, the law is that, the case of the Plaintiff ought to be preferred (See FRED ADORMSON & 2 ORS V. EMMANUEL KOFI TETTEH [2013] 59 GMJ 62 (CA). In similar vein, Exhibit B is evidence of the partial fulfilment of the 1st Defendant’s obligations under the Exhibit A. He actually paid a net amount of 20, 017.50 to the Plaintiff during the pendency of the loan on the 30th October, 2014. To the Plaintiff, that was the only payment made by the 1st Defendant since thereafter all other cheques deposited by the 1st Defendant were dishonored. This piece of evidence was also not challenged. Now, it is trite that a Court is permitted to base its judgment or decision on the evidence of a sole witness provided the court is satisfied that it is credible and trustworthy (See AYIWAH & ANOR V. BADU & ORS [1963] GLR 86 (SC). In the instant case before me, I find the Plaintiff’s witness credible and the evidence she proffered was never shaken or discredited under cross-examination. I therefore find and hold that the Plaintiff did prove her case that on 1st November, 2001, she did advance to the 1st and 2nd Defendants the amount of $200, 000.00 (CDN). And that till date, the 1st Defendant has only been able to repay the total amount of CDN$51, 214.00 of the said amount. The Plaintiff also proved to the satisfaction of the court that the loan was to attract interest payment at 12% per annum compounded bi-annually and that the 1st and 2nd Defendants are liable to pay the said interest in addition to the outstanding principal. Accordingly, I enter judgment for the Plaintiff against the 1st and 2nd Defendants jointly and severally for the recovery of the amount of $200, 000.00 CDN less the total payments of CDN$51, 214.05 as at 1st November, 2006. Interest on the said amount shall run at the contractual rate of 12% per annum compounded bi-annually from 1st November, 2006 to date of Judgment. Thereafter the post-judgment interest shall continue to run at the prevailing bank rate until date of final payment. The Suit against the 3rd Defendant is hereby dismissed as without merit and unsupported by the evidence. I award costs of GH¢40, 000.00 against the 1st and 2nd Defendants. (SGD) JUSTICE JUSTIN KOFI DORGU (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION VICTOR BROBBEY FOR THE PLAINTIFF KWASI ADU-MANTE FOR THE 1ST DEFENDANT CITED CASES TAKORADI FLOUR MILLS V. SAMIR FARIS [2005-2006] SCGLR 882 (See FRED ADORMSON & 2 ORS V. EMMANUEL KOFI TETTEH [2013] 59 GMJ 62 (CA (See AYIWAH & ANOR V. BADU & ORS [1963] GLR 86 (SC). 9