Jebson and Jesson (gmbh & Co) Kg } Vrs Delima Oil Company Ltd [2022] GHAHC 54 (31 October 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION HELD IN ACCRA ON THE 31ST DAY OF OCTOBER, 2022 BEFORE HIS LORDSHIP JUSTICE JUSTIN KOFI DORGU CM/RPC/0039/2020 JEBSEN & JESSEN (GMBH & CO) KG } PLAINTIFF VRS. DELIMAN OIL CO. LTD } DEFENDANT PARTIES: ABSENT JUDGMENT On or about the 9th October, 2019, the Plaintiff herein, a trading company registered under the Laws of Germany took out the instant suit against the Defendants, also a limited liability company incorporated in Ghana claiming the following reliefs; (i) Recovery of the principal amount of One Million, One Hundred and Ninety Two Thousand, Seven Hundred and Ninety United States Dollars, Thirty Five Cents (USD 1, 192, 790.35) (ii) Interest on the said amount of One Million, One Hundred and Ninety Two Thousand, Seven Hundred and Ninety United States Dollars, Thirty Five Cents (USD 1, 192, 790.35) at the prevailing Commercial Bank interest rate from 19th October, 2016 till date of final payment (iii) Recovery of the principal amount of One Hundred and Ninety Six Thousand, One Hundred and Fifty Four Pounds and Two Pence (£196, 154.02) (iv) Interest on the principal amount of One Hundred and Ninety Six Thousand, One Hundred and Fifty Four Pounds and Two Pence (£196, 154.02) at the prevailing Commercial Bank interest rate from the 14th November, 2014 till date of final payment. (v) General damages for breach of contract (v) Cost. When the Plaintiff’s Writ of Summons were served on the Defendant, they entered appearance and filed a Statement of Defence on the 20th of April, 2020. At the close of pleadings, the following were set down as the issues for trial and determination. They are:- (a) Whether or not the invoices pursuant to which the goods were supplied contained in them the terms of payment (b) Whether or not the Parties have varied the terms of payment as contained in the respective invoices pursuant to which the goods were supplied. (c) Whether or not the delay in the arrival of Bill of Lading covered by invoices numbers 91004770, 91004776 and 91004775 from the Plaintiff led to the auctioning of the goods by Customs, Excise and Preventive Service at the Tema Port. (d) Whether or not the goods under invoice Number 91004538 and 91004642 to the Defendant expired on arrival contrary to the terms of the agreement between the Plaintiff and the Defendant (e) Whether or not the Defendant’s payment to the Plaintiff of the contract sum was tied to the terms of any purported contract between the Defendant and the Ministry of Roads and Highways or any other third party. (f) Whether or not the Plaintiff is entitled to its reliefs. The facts of this case are that the Plaintiffs sometime in the year 2013 supplied the Defendant at its request various quantities of goods in two different currency transaction, namely Dollar transaction and Pound Sterling transactions. The total worth of the goods supplied by the Plaintiff to the Defendant was One Million, Two Hundred and Three thousand, Three Hundred and Forty United States Dollars and Thirty fine Cents (US$1, 203, 340.35) on the Dollar transactions whereas that on the Pound Sterling transaction was Two Hundred and Nine Thousand, One Hundred and Forty-five Pounds and Seventy-Five Pence (£209, 145.75). The Supply of goods under the dollar transactions was made pursuant to various invoices and Bills of Lading. The invoices and Bills of Lading with the associated cost of the goods supplied are set out in the breakdown below: a. 3rd December, 2013 (Invoice number 91004770) – Open tomato Paste Oki Brand -210g at a total price of Twenty five thousand, Six Hundred and Twelve United States dollars (US$25, 612.00) to be paid net cash One Hundred and Twenty (120) days after the date of invoice (Exhibit A series) b. 3rd December, 2013 (Invoice Number 91004776) – Hard Open Tomato Paste Oki Brand – 400g Tins at a total price of Twenty-six thousand, Three Hundred and Fifty-Eight United States Dollars Fifteen Cents (US$26, 358.15) to be paid net cash One Hundred Twenty (120) days after date of invoice (Exhibit B series) and and c. 6th December 2013 (Invoice Number 91004525) – Toyota land Cruiser at a total price of Two hundred and Eighty four thousand United States Dollars (US$284, 000.00) to be paid net case one hundred and eighty (180) days after date of dispatch (Exhibit C series) d. 10th December 2013 (Invoice number 91004773) KIXX Motoroil GX 6600 15/40 SG/CD at a total price of One Hundred and Sixty-Five Thousand, Three hundred and Seventy United States dollars and Twenty Cents (US$165, 370.20) to be paid net cash one hundred and twenty (120) days from the date of dispatch (Exhibit D series) e. 1st February 2014 (Invoice number 91005163) – Toyota Land Cruiser Prado TX – 4x4 SUV-New at a total price of One Hundred and Seventeen Thousand United States Dollars (US$117, 000.00) to be paid net cash one hundred and eighty (180) days after date of invoice (Exhibit E series) f. 15th January 2014 (Invoice Number 91005165) – Toyota Land Cruiser automatic 4X4 SUV – New at a total price of Five Hundred and Eighty-Five thousand United States Dollars (US$585, 000.00) to be paid net cash one hundred and eighty (180) days after date of dispatch (Exhibit F series). 2.4 Similarly, the supply of goods under the Pound Sterling transactions was made pursuant to respective invoices and Bills of Lading. Below is the breakdown of the respective invoices with the associated cost of the goods and the Bills of Lading. i. 11th December 2013 (Invoice Number 91004558) – Royalty Ginger Beer Non-Alcoholic at a total price of Sixty-Eight Thousand, Two Hundred and eighty Pounds (68, 280.00) to be paid net cash one hundred and twenty (120) days after date of invoice (Exhibit G series) ii. 8th December 2013 (Invoice Number 91004642) – Royal Sardines in Vegetable Oil at a total price of One Hundred and Twenty-Six thousand, five Hundred and Twenty-eight Pounds (£126, 528.00) to be paid net cash one hundred and twenty (120) days after date of invoice (Exhibit H series) iii. 8th October 2013 (Invoice number 91003874) 0 Royalty Celebration Drink at a total price of fourteen Thousand, Three Hundred and Thirty Seven Pounds and Seventy Five Pence (£14, 337.75) to be paid net cash one hundred and twenty (120) days after date of invoice (Exhibit J series). These details of the delivery and receipts of the goods are also captured in the Plaintiff’s Statement of Claim and Witness Statement. The various invoices under which the goods were supplied contained the basic terms of payment. Inspite of the delivery and receipt of the goods by the Defendants, they only made a paltry part payment of US$10, 530 and 12, 991.73 and refused or failed to pay the difference to the Plaintiff. Despite several demands made on the Defendants, they failed to make good their indebtedness to the Plaintiff hence the action. When the Parties conducted the CMC, they were ordered to file their respective Witness Statements and checklists which they dutifully did. Now, there is no doubt that this is a civil case and like all civil trials in the adversarial system, a Plaintiff succeeds in his or her action on the balance of probabilities or preponderance of probabilities and so the burden is always on the Plaintiff to prove his or her case against the Defendants. In the case of COOPER V. SLADE [1959] 66 H. L 776 at 772, Willes J stated the Principle thus:- “The general rule in the law of evidence is that in a Civil Case, the onus probandi lies on the party who asserts the affirmative of the issue and the preponderance of probability in favour of a party may be sufficient ground for a judgment in favour of that party.” Back home, the Evidence Act 1975, NRCD 323 provides in Section 10(2) as follows: “The burden of persuasion may require a party to raise a reasonable doubt concerning the existence of non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities…” Then Section 11(4) of NRCD 323 (the Evidence Decree of 1975) also provides:- “In other circumstances, the burden of producing evidence requires a Party to provide sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence” Under case law, this requirement of a Plaintiff proving his case on the balance of probabilities was answered in the case of ACKAH V. PERGAH TRANSPORT LTD & OTHERS [2010] SCGLR 728 where the Supreme Court held thus:- “It is a basic principle of the Law of Evidence that a Party who bears the burden of proof is to produce the required evidence of the facts and issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witness, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind if the court or Tribunal of fact such as a jury”. In discharging this proof, the Court in MAJOLAGBE V. LARBI [1959] GLR 190 opined per Ollenu J (as he then was) as follow;- “Where a party makes an averment capable of proof in some positive way by producing documents, description of things, reference to other facts, instances, or circumstances and this averment is denied, he does not prove it by merely going into the witness box and repeating that averments on oath, or having it repeated on oath 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.” This same principle was restated in the case of CITIZEN KOFI ENTERTAINMENT CONCEPT LTD V. GUINESS GHANA BREWERIES LTD [2012] 46 GMT 167 by the Court of Appeal thus;- “The general principles of Law is that it is the duty of a Plaintiff to prove his case, i.e he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the Defence to lead sufficient evidence to tilt the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim, if not he loses on that particular issue.” What then is the proof offered by the Plaintiff to be entitled to his claim. In his Statement of Claim filed on the 9th October, 2019, the Plaintiff has sufficiently through paragraphs 3, 4 and 5 laid down his case as follows: The Plaintiff says that sometime between December 2013 and February 2014, at the request of the Defendant, it supplied goods worth the total amount of One Million, Two Hundred and Three Thousand, Three Hundred and Forty United States Dollars and Thirty-Five Cents (US$1, 203, 340.35) to the Defendant (Dollar transaction) as follows: a. 3rd December 2013 (Invoice number 91004770) – Hard Open Tomato Paste OKI Brand – 210g at a total price of Twenty-five thousand, Six Hundred and Twelve United States Dollars (US$25, 612.00) to be paid net cash one Hundred and Twenty (120) days after the date of invoice b. 3rd December 2013 (Invoice number 91004776) Hard Open Tomato Paste OKI Brand – 400g tins at a total price of Twenty Six Thousand, Three Hundred and Fifty-Eight United States Dollars and Fifteen Cents (US$26, 358.15) to be paid net cash hundred and twenty (120) days after the date of invoice c. 6th December 2013 (Invoice Number 91004525) Toyota Land Cruisers at a total price of Two Hundred and Eighty-Four Thousand United States Dollars (US$284, 000.00) to be paid net cash one hundred and eighty (180) days after date of dispatch d. 10th December 2013 (Invoice Number 91004773) KIXX Motoroil GX 6600 15W/40SG/CD at a total price of One Hundred and Sixty-Five Thousand, Three Hundred and Seventy United States Dollars and Twenty Cents (US$165, 370.20) to be paid net cash one hundred and twenty (120) days from the date of dispatch e. 1st February 2014 (Invoice Number 91005163) – Toyota Land Cruiser Prado TX 4x4 SUV-NEW at a total price of One Hundred and Seventeen Thousand United States Dollars (US$117, 000.00) to be paid net cash one hundred and eighty (180) days after date of invoice f. 15th January 2014 (Invoice Number 91005165) – Toyota Land Cruisers automatic 4x4 SUV-NEW at a total price of Five Hundred and Eighty-Five Thousand United States Dollars (US$585, 000.00) to be paid net cash one hundred and eighty (180) days to be paid net cash one hundred and eighty (180) days after date of dispatch The Plaintiff supplied additional goods worth the total amount of Two Hundred and Nine Thousand, One Hundred and Forty-Five Pounds and Seventy-Five Pence (£209, 145.75) to the Defendant (Pound transaction) as follows: a. 11th December 2013 (Invoice Number 91004558) – Royalty Ginger Beer Non-Alcoholic at a total price of Sixty-Eight Thousand, Two Hundred and Eighty Pounds (£68, 280.00) to paid net cash one hundred and twenty (120) days after date of invoice; b. 8th December 2013 (Invoice Number 91004642) – Royal Sardines in vegetable oil at a total price of One Hundred and Twenty Six Thousand, Five Hundred and Twenty-Eight Pounds (£126, 528.00) to be paid net cash one hundred and twenty (120) days after date of invoice; c. 8th October 2013 (Invoice Number 91003874) Royalty Celebration Drink at a total price of Fourteen Thousand, Three Hundred and Thirty-Seven Pounds and Seventy-Five Pence (£14, 337.75) to be paid net cash one hundred and twenty (120) days after date of invoice. The Plaintiff says that all the goods ordered by the Defendant have been dispatched and received by the Defendant together with all the accompanying invoices. That notwithstanding, the Defendant has refused to comply with the terms of payment in full. In support of these averments, Plaintiff testified in Court through one Dominic Studte who described himself as the Division Manager for Sales to Africa, India and the Middle East when his Witness Statement was admitted and adopted on the 17th January, 2022 as his evidence in chief. In his testimony, the Plaintiff tendered into evidence Exhibits A series, B series, C series, D series, E series, F series, G series, H series and J series. All these are invoices of the goods supplied and received by the Defendant. On each of the invoices, I have observed that there was endorsed on them the period for payment ranging from 120 days to 180 days after date of invoice. The Plaintiff also tendered in confirmation Orders or pro-forma invoices also showing on the face of the Exhibits the same terms as on the original invoices. These confirmation Orders are supported by Exhibits A2, B2, C2, D2, E2, F2, G2, H2 and J2. Additionally, the evidence in court by the Defendant’s witness on the 21st February, 2022 shows the following during cross-examination;- “Q. You admit that the Plaintiff supplied goods at the request of the Defendant sometime in 2013, is that so? A. Yes My Lord Q. The goods were supplied pursuant to respective invoices, is that so? A. Yes My Lord Q. Every invoice is accompanied with bill of Lading and the general conditions of sale, is that so? A. Yes My Lord Having produced the needed evidence, it was incumbent on the Defendant to also produce sufficient evidence to rebut the evidence led so far by the Plaintiff. The Defence of the Defendant had been concluded in the following terms as contained in the Statement of Defence filed by the Defendants on the 20th January, 2020. Paragraphs 3 through 5 thus;- “3. Save that Plaintiff supplied goods to the Defendant, Defendant denies paragraphs 3 of Plaintiff’s Statement of Claim and says in answer thereto that prior to the supply of the said goods by Plaintiff, it had extensive discussion about its line of business with Plaintiff to the effect that its core business is marketing and distribution of petroleum products or other similar petroleum outlets in all the ten regions of Ghana 4. Defendant says in added answer to paragraph 3 of Plaintiff’s Statement of claim that, in addition to its line of business, it also distributes goods to retailers on credit basis, and based on the said discussion and/or mutual understanding that Plaintiff then agreed to supply Defendant with the goods to enable it distribute same to retailers on credit basis. 5. Defendant says in further answer to paragraph 3 of Plaintiff’s Statement of Claim that it was mutually agreed that payment of the goods supplied will be dependent on the proceeds from the credit sales made to its customers. Therefore Plaintiff’s assertion in paragraphs 3 (a) and (b) that goods supplied to Defendant was on net cash payment is inaccurate”. In addition to these averments which to me are indicative of the admission of the supply and acceptance of the goods, the Defendant testified per their Witness Statement thus in the following paragraphs of the Witness Statement; “4. Sometime in 2013, the Defendant herein requested the Plaintiff to supply goods to the Defendant worth US$1, 203, 203.35 7. It is the case of the Defendant that the Parties herein mutually agreed that payment of the goods to be supplied by the Plaintiff will be dependent on the proceeds from the credit sales made to its customers and 13. The Defendant says it does not owe the Plaintiff the amount stated in its Witness Statement and as such Defendant wrote to the Plaintiff to go into account which it failed to do so”. Now, the new assertion introduced by the Defendant to the effect that there were conditions precedent or the payment was conditioned upon some happenings appears to be variation to what is obvious and undisputed evidence in the invoices as to the terms of payment. That being the case, it was incumbent on the Defendant who is now asserting same to prove that which he alleges for as stated in the case of FORDJOUR V. KAALAYINE [2015] 85 GMJ 61, the Court of Appeal;- “A bare assertion without adducing evidence in support of that assertion is not evidence” I must say that throughout the evidence of the Defendant, nowhere did I see any proof of the allegations that the payment was dependent on their receipt of payments from their credit sales. There is also no evidence of the seizure of the goods and the destruction of same as alleged by the Defendant. In any case, such defences could not have availed the Defendant. Again, as quoted by the Learned Counsel for the Plaintiff in his Written Address clause 1.1 of Exhibits D and D2 provided thus:- “Offers, Sales and Deliveries to Companies will only be provided on the following conditions (hereinafter) “GCS” of Jebsen & Jessen (GMBH) Co herein after called the “Seller” in so far as they are not amended in writing, overleaf or by an explicit written agreement between the Purchaser and the Seller”(Emphasis mine). As already indicated above, both Parties have agreed that their transactions and for that matter the contract was reduced into writing evidenced by the invoices, Bills of Lading and its General Conditions of Sale (GCS). There is no way they can be varied without another written instrument as captured in Exhibits D and D2 clause 1.1. This same position has found judicial endorsement in the case of WILSON V. BROBBEY [1974] 1 GLR 250 AND QUOTED WITH APROVAL by THE Supreme Court, the case of OPPONG V. ANARFI [2011] SCGLR 1556 THUS:- “Where Parties have embodied the terms of their contract in a written document, extrinsic evidence or oral evidence will not be admissible to add to, subtract from or contradict the terms of the written contract”. I hesitate to add that in this particular instance, no evidence was even offered to seek such a variation. It remained only a bare assertion. From the foregoing, I find as a fact that the Plaintiff had a contract with the Defendant and that the terms of the contract were written and contained in the various Invoices, Bill of Lading and General Conditions of Sale. I also find as a fact that there had never been any variation of the said terms nor was the payment for the goods supplied held to any contract with the Ministry of Roads and Highways nor any credit sales customer. Now, the Defendant also introduced a line of defence to the effect that the delivery of the goods were delayed resulting in their auctioning and some destroyed. Again, the Defendant did not provide any evidence in support of such assertion. The Plaintiff on the other hand denied the allegations shifting the burden to the Defendant. In further denial, the Plaintiff quoted the clause 5.1, 5.3 and 5.10 of Exhibit D2 as follows;- “5.1 The Purchaser is obliged to examine the goods immediately upon delivery by the Seller and to notify all defects, quantity shortages and incorrect deliveries without delay” 5.3 The Seller’s receipt of the defect notifications is definitive for compliance with the period of notice. The defect notification must be given in writing. The Purchaser shall forfeit all claims for defects which have not been notified within the specific periods 5.10 The Purchaser’s claims for defects shall expire one year after the delivery of the goods in so far as …..” Going through the evidence of the Defendant, I did not see any evidence of any such complaint nor forfeiture or destruction of the goods delivered. I agree with the Learned Counsel for the Plaintiff that such defenses are only diversionary and meant to self-serve the Defendant. There is no iota of evidence in support of that. I find as unapproved that the goods covered by invoices Numbers 91004770, 91004776 and 91004773 were delivered late leading to their auction. I also find as unapproved that the goods delivered under invoices numbers 91004558 and 91004642 expired at the time of delivery. These my findings are fortified by the fact that the Defendant did not provide evidence of complain nor did they counterclaim for any relief for breach of contract. There is no gain saying that the Defendants have breached the contract they had with the Plaintiff. At the close of the case and due evaluation of evidence adduced before this Court, I find and hold that the Plaintiff has made out its case on the preponderance of probabilities. I find their case proved and so hereby enter judgment for the Plaintiff in the following terms;- (a) The Plaintiff shall recover from the Defendant the principal amount of One Million, One Hundred and Ninety Two Thousand, Seven Hundred and Ninety United States Dollars, Thirty Two Cents (US$1, 192, 790.32) (b) Interest on the said amount of One Million, One Hundred and Ninety Two Thousand, Seven Hundred and Ninety United States Dollars, Thirty Two Cents (US$1, 192, 790.32) at the prevailing Commercial Bank lending rate (GCB PLC) form 15th June, 202014 to date of final payment. (c) Recovery of the principal amount of One Hundred and Ninety Six Thousand, One Hundred and Fifty Four Pounds and Two Pence (£196, 154.02) from the Defendant. (iv) Interest on the principal amount of One Hundred and Ninety Six Thousand, One Hundred and Fifty Four Pounds and Two Pence (£196, 154.02) at the prevailing Commercial Bank (GCB PLC) interest rate from the 7th April, 2014 till date of final payment. In view of the interest awarded, I decline to grant relief of General Damages since the essence of that relief is to compensate for the loss of use and interest accruals. I award cost of US$20, 000.00. It is further ordered that all the sums awarded could be paid in the Ghana Cedi equivalent (SGD) JUSTICE JUSTIN KOFI DORGU (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION ABDUL-LATEEF SHAIBU WITH GILBERT ROCKSON HOLDING BRIEF FOR KWADWO GYASI NTRAKWAH FOR THE PLAINTIFF JAMES OWURA MENSAH FOR THE DEFENDANT CITED CASES COOPER V. SLADE [1959] 66 H. L 776 at 772 ACKAH V. PERGAH TRANSPORT LTD & OTHERS [2010] SCGLR 728 MAJOLAGBE V. LARBI [1959] GLR 190 CITIZEN KOFI ENTERTAINMENT CONCEPT LTD V. GUINESS GHANA BREWERIES LTD [2012] 46 GMT 167 15