Jinzhong Vrs Kfz & Another [2022] GHACC 85 (19 October 2022)

IN THE CIRCUIT COURT HELD AT DUNKWA-ON-OFFIN ON WEDNESDAY 19TH THE DAY OF OCTOBER 2022 BEFORE HIS HONOUR FRANCIS ASONG OBUAJO ESQ. THE JUDGE. SUIT NO. CR/DK/CC/C2/11/2020. JINZHONG LI VRS 1. KFZ COMPANY LTD 2. MADAM TWAIN (MANAGING DIRECTOR) JUDGMENT The plaintiff in this case filed this suit on the 20-12-2019 in this court seeking the following reliefs against the defendants jointly and severally for: a) Recovery of an amount of Forty-Seven Thousand Seven Hundred and Thirty –Two Ghana cedis Sixty Nine pesewas being the cedi equivalent of Sixty Thousand Chinese Yuan (CNY 60,000) advanced to the defendants for the delivery of machine parts. Interest on the said amount since the last date of agreement which is February 2017 to date. Cost Any other orders this court may deem fit. b) c) d) The plaintiff averred that he is a businessman resident at Dunkwa-On-Offin while 1st defendant, a company was previously based in Dunkwa-On-Offin but has now moved to Anwiankwanta. 2nd defendant is the managing director of 1st defendant. It is his case that 1st defendant deals in the sale of machine parts materials for mining. In April 2013 the plaintiff intended to buy some machine parts and sought the services of the 1st Page 1 of 19 defendant to supply same. The plaintiff ordered for the supply of a welding machine, engine, puller, iron pipe, plastic pipes and other parts, with a total cost of One Hundred and Sixty- One Thousand, Six Hundred and Seventy-Five Ghana cedis Twenty Eight Pesewas (Gh¢161,675.28) which is the cedi equivalent of Two Hundred Thousand Chinese Yuan (CNY 200,000.00 ). It is the assertion of the plaintiff that a parole agreement was reached between the parties at Dunkwa-On-Offin where 1st defendant was operating at the time to that effect. 1st defendant threatened at the time that she will sell the parts off the machine parts to another interested purchaser if the plaintiff did not make a deposit of Forty-Seven Thousand Seven Hundred and Thirty –Two Ghana cedis Sixty Nine pesewas being the cedi equivalent of Sixty Thousand Chinese Yuan (CNY60,000) of the total amount and plaintiff was to pay the balance upon the receipt of the machine parts through the 2nd defendant within 40 days. The plaintiff therefore made the initial deposit on the 25-04- 2013 and was issued with a note by the 1st defendant. In her statement of defence, 1st defendant denied knowledge of 2nd defendant ever being her Managing Director. 1st defendant stated that the total cost of goods was Two Hundred Thousand Chinese Yuan (CNY 200, 000.00). 1st defendant contended that it was expressly agreed with the plaintiff that he would make initial deposit of CNY 60, 000.00 after which the remaining amount would be paid by the plaintiff within forty (40) days, and that it was further agreed with the plaintiff that delivery of the goods would be made to him after the full payment of CNY200.00.00. Adding that 1st defendant also transacts with its suppliers on these same terms as suppliers could only supply same after full payment had been made by the 1st defendant to them. TRIABLE ISSUES SET DOWN. The triable issues set down by the court at the case management conference were as follows; Page 2 of 19 1. Whether or not the plaintiff and the defendants orally agreed that the plaintiff was to make an initial deposit of GH¢47,732.69 the cedi equivalent of CNY60,000.00 and pay the outstanding balance after the delivery of the machine equipment. 2. Whether or not it was agreed between the parties that delivery of the goods would be made to the plaintiff only after he had made full payment of the sum CNY200,000.00 to the 1st defendant herein. 3. Whether or not plaintiff was privy to the defendants’ transactions with its suppliers in China. 4. Whether or not the plaintiff is entitled to his reliefs. PLAINTIFF’S EVIDENCE The plaintiff’s evidence is that around April 2013 he intimated his interest in purchasing some machine parts and sought the services of the 1st defendant to supply a welding machine, engine puller, iron pipe, plastic pipes and other parts amounted to GH¢161,675.28 equivalent of CNY200,000.00 with a parole agreement. 1st defendant threatened to sell the parts of the machine to another interested purchaser if plaintiff did not deposit GH¢47,730.69 equivalent of CNY60,000.00. Plaintiff was required to pay the balance upon the receipt of the machine parts from 1st defendant through 2nd defendant within 40 days. The plaintiff said he paid the said initial deposit on the 25/04/2013 but the 1st defendant failed to deliver the machines parts after the agreed 40 days in order to receive the outstanding balance. A week after paying the initial deposit to 1st defendant, he checked on the status of the machines but did not receive any positive response. He added that he was ready to pay the remaining amount after the 40 days but he had not received the Page 3 of 19 machines. So he accosted the 1st defendant through the manager; Kong Xian Long as to why they failed to deliver the machine parts and the manager pleaded for six more months for them to deliver the parts. But failed to do so after those Six months and started playing hide and seek with the plaintiff. Only to find out later that the 1st defendant had sold the machine to another buyer and so he reported the defendants to the police in February 2017. The police advised the matter be taken to court. The plaintiff said 1st defendant indicated to him that they lacked the equipment as plaintiff also did not have any desire to buy the machine part and wants to retrieve the initial deposit paid to them. For two years ten months since the plaintiff reached agreement on parole in February 2017, same has proved futile. Defendants have now moved their operations in their attempt to evade their obligations. It is his further evidence that the 2nd defendant is the manager who took over from Kong Xian Long as he was told by the police. The plaintiff told the court he is not privy to any agreement the 1st defendant had with her suppliers and was not informed to any conditions attached to being supplied with the machine parts prior to the contract. He was given an agreement to sign after he made the initial deposit but refused to sign same because the conditions had changed. The plaintiff said he never agreed to pay the outstanding amount before taking delivery of the machine parts. The plaintiff attached the unsigned note that the defendant attempted to give to him to sign which he vehemently refused as Exhibit ‘A.’ Under cross examination the plaintiff said he knows 2nd defendant at Anwian Nkwanta at the 1st defendant’s place personally but they refused to mention her name to him that was why he went for the name from the police. In another question to the plaintiff, he admitted that he was given a note a week after making the initial deposit on the 25/4/2013 as in Exhibit ‘A’. The following also took place on the 19-01- 2021 in court; Page 4 of 19 Q. For over 20 years of doing business at the time of this transaction, you parted with CNY60,000. equivalent of GH¢47,730.69 and did not demand for receipt immediately. A. Yes, the manager gave me Exhibit A’ as receipt after payment but I was not satisfied with that and I was angry. Q. When (time) did the so called manager tell you Exhibit A’ is the receipt of the payment of the money made. A. After one week of paying the money that the manager told me Exhibit A’ is the receipt. Q. I put it to you that, this receipt, captured whatever understanding that existed between you and the defendant in relation to the payment of the said deposit. A. That is true. I was given Exhibit A’ Q. Take a look at Exh.’1’, the writing of Exh.1 is the same as Exhibit A, not so. A. That is so Q. On the face of Exh1, it was clearly stated that should you fail to make due the outstanding sum within 40 days after payment of the initial deposit, you will not be entitled to recover the initial deposit or delivery of the machine, not so. A. That is so (yes), I however did not agree with that. In another encounter with the plaintiff under cross examination on the 16-2-2021 the following took place in court: Q. I am putting it to you that, you agreed with the 1st defendant that you will finish the payment before the 40 days. A. I did not agree to that term. Page 5 of 19 Q. The alleged parole agreement reached between you and the 1st defendant in Dunkwa On-Offin was not reduced into writing, not so. A. That is true. Q. Similarly, the alleged parole agreement you reached with 1st defendant in February 2017 for the 1st defendant to reimburse any amount to you was not written down. A. Yes, same was not written down. 1ST DEFENDANT’S EVIDENCE The evidence of Jack Cheng the Managing Director (MD) of the 1st defendant of Anwiankwanta in the Ashanti Region was that he did know the 2nd defendant as she never worked with the 1st defendant as alleged by the plaintiff. He stated further that he knows the plaintiff who approached the 1st defendant in 2013 in Dunkwa-On-Offin and expressed interest in purchasing some equipment from the company. It is his further evidence that, he was not the MD at the time as the then MD had returned to China after the contract of employment ended around 2015 and he became the MD of 1st defendant in 2019. He stated further that equipment the plaintiff showed interest in buying in 2013 was valued CNY200, 000.00 equivalent of GH¢161,675.28 and told the defendant he could not make an upfront full payment and made a deposit of CNY60, 000.00 after both had agreed that the plaintiff was required to pay the remaining balance of CNY140, 000.00 within 40 days from the date of initial deposit after which 1st defendant will make delivery of the equipment to him. The agreement was reduced into writing as attached as Exh1 and Exh.2. He said per the said agreement, upon the default on the part of the plaintiff to pay the remaining amount within 40 days, he was not entitled to refund of the deposit. Not delivery of the said equipment from the 1st defendant. It is his evidence that was reached Page 6 of 19 between them as 1st defendant also transacts with its suppliers in China on same terms which is known to the plaintiff that is why plaintiff accepted the terms. Upon the payment of the initial CNY60, 000.00 to the 1st defendant, the said deposit was also deposited with the suppliers awaiting the full payment of the total sum by the plaintiff for the goods to be manufactured and supplied to the 1st defendant for onward delivery to the plaintiff. Plaintiff however failed to pay the outstanding balance and never heeded to constant demands from the 1st defendant until later in 2015 when plaintiff showed up and started making demands of his deposit. The 1st defendant did not deliver the equipment to the Plaintiff failed to meet the terms of the agreement. The suppliers have also retained the said initial deposit. In his quest to forcefully retrieve the initial deposit from the 1st defendant, plaintiff decided and resorted to all forms of harassment of 1st defendant’s workers with unfounded allegations and made a report to the police who arrested some of the workers. It was at the police station that the said agreement was shown to the police that lead to the arrested workers to be released as the police found that plaintiff’s complaints were unfound. It was never true that both parties agreed that 1st defendant promised to deliver the equipment to the plaintiff within 40 days after the deposit of CNY60, 000.00 was paid the 1st defendant and so the plaintiff is not entitled to his claims. Under cross examination from counsel for the plaintiff, the 1st defendant maintained that Exh1 was a receipt issued to the plaintiff after he had paid the initial CNY60,000.00. Adding in an answer to another question that, the plaintiff was given 40 days after the initial deposit to pay up CNY140,000.00 before the equipment would be delivered to him. The first defendant maintained that Exh.1 was a receipt and not an agreement that was issued to the plaintiff after the initial CNY60,000.00 was paid into defendant’s account in China. And that even though the transaction between the plaintiff and the 1st defendant took place in Ghana, the CNY60,000.00 was paid in China by plaintiff’s partners when he Page 7 of 19 contacted them. This exchange took place on the 3-08-2021 between plaintiff’s counsel and the 1st defendant: Q. Take a look at Exh1 and you will agree with me that plaintiff’s signature is not on it. A. That is so, because it is the receipt the 1st defendant issued to the plaintiff Q. I put it to you that Exh.1 was issued to the plaintiff by the then manager after he had received CNY60,000.00. A. Exh.1 was issued to the plaintiff after making payment to our company’s account. Q. I put it to you that Exh1 was issued to the plaintiff after the parties had agreed that he will be given the machines before plaintiff pays the balance. A. That is not correct. Q. Is it your testimony that the transaction between the plaintiff and the then Director of your company took place in China. A. Same was done in Ghana. Q. Is it your testimony that the plaintiff paid for the machine, the (CNY60,000.00 ) in China. A. Same was paid for in China by the plaintiff’s partner’s when he contacted them to do so after taking their Chinese account from the then Director in Ghana. Exhibit ‘A’ is the document plaintiff tendered in evidence as what he was given by the 1st defendant a week after he made initial payment of 60,000. Chinese Yuan, same written in Chinese language. Exhibit ‘1’ is the same document as in Exhibit ‘A’ tendered in evidence by the 1st defendant. Page 8 of 19 Exh.’2’ is the said Exhibit, 1 translated into English by Dr Mrs Hou Gbologah Yongdan from Ghana Institute of Languages Trans bureau dated 10-01-2020, that reads as a follows; “RECEIPT” Today, advance payment of Sixty Thousand Chinese Yuan (CNY60,000.00) for equipment was received from Jinzhong LI. The full price of the equipment was Two Hundred Thousand Chinese Yuan (CNY200,000.00). The rest of the payment was supposed to be paid within forty (40) days. If the rest the payment could not be paid within the period stated, the store has the right of handing the equipment and the advance payment made shall not be returned. Dated 2nd May, 2013.” THE LAW The general rule in civil cases is that, the party who in his pleadings or writ of summons raises issues essential to the success of his case assumes the duty of proof. See, FAIBI VRS THE STATE HOTELS CORPORATION (1968) GLR 471, BANK OF WEST AFRICALTD VRS ACKUN (1963)1 GLR 176 SC at 182. Section 11(1) of the Evidence Act, 1975 (NRCD 323) states that: “For the purpose of this Act the burden of producing evidence means the obligation of party to introduce sufficient evidence to avoid a ruling on the issue against that party” Section 10(2) (b) of NRCD 323 provides; 2) The burden of persuasion may require a party, b) To establish the existence or non- existence of a fact by a preponderance of the probabilities or by prof beyond a reasonable doubt” Per section 12(2) of NRCD 323, “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” Page 9 of 19 IN ZABRAMA VRS SEGBEDZI (1991) 2 GLR 221 at 246, it was held for Kpegah JA (as he then was) that: “The law has always been 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 facts or facts he asserts can properly and safely be inferred. The nature of such averment or assertion determines the degree and nature of the burden” See, YORKWA VRS DUAH (1992-93) 1 GBA 255-275 CA, holding 1. Considering the decided cases referred and the laws as quoted, it is my considered view that, the plaintiff is so required to lead credible evidence to establish his case. It was held in SERWAH VRS KESSE [1960] GLR 277 at 223 SC that the onus of proof on a party in a civil case is however less than that of the prosecution in a criminal case. I will now consider the first and second issues in this case together. ISSUE ONE: Whether or not the plaintiff and the defendants orally agreed that the plaintiff was to make initial deposit of GH¢47,732.69 the cedi equivalent of CNY60,000.00 and pay the outstanding balance after the delivery of the machine equipment, and ISSUE TWO: Whether or not it was agreed between the parties that the delivery of the goods would be made to the plaintiff only after he had made full payment of the sum CNY200,000.00 to the 1st defendant herein. From evidence available at the hearing which stemmed from the pleadings, it is my finding of fact that the plaintiff and the 1st defendant had contact with each other in order to buy and sell machine parts to each other in April 2013 at Dunkwa-On-Offin. 1st defendant has never denied transacting business by way of the sale of the machine parts in issue with the plaintiff. Page 10 of 19 The evidence of the plaintiff was that he selected a number of machine parts he intended to buy from the 1st defendant amounting to CNY200,000.00. It was agreed between them that the plaintiff pays initial deposit of CNY60,000.00 for the 1st defendant to deliver the machine parts to him within 40 days after the payment and on the 25/04/2013 the plaintiff made the said payment to the 1st defendant. The plaintiff told the court at the hearing that on the 2/05/2013 an agreement was issued to him after the payment and he refused to sign same because the parole agreement reached prior to the payment had changed. The said agreement is Exhibit A. It is my finding at this stage that the plaintiff had about 30 days remaining to the delivery of the machine parts to him after receipt of Exhibit A which had changed the parole agreement reached. The question is what did the plaintiff do or what steps did the plaintiff take against the reversal of Exhibit A which did not reflect their parole agreement. A close examination of Exhibit A shows same was written in Chinese language and Exhibit 2 shows that same was issued on the 2/05/2013 and no more. The address and details of the business location of the 1st defendant not stated, just as the one who issued it not stated and was not signed by the 1st defendant just as the plaintiff. This also gives room to yet another question as to whether or not Exhibit A, is a receipt or an agreement. It is in evidence that plaintiff takes same as an agreement in the sale of the machine parts while 1st defendant states it is a receipt. It was held in AKIM AKROSO STOOL & ORS VRS AKIM MANSO STOOL & ORS [1989- 90] GLR 100 at 106 CA thus: “The intention of the parties must be gathered from the written instrument, the function of the courts is to ascertain what the parties meant by the words which they have used: … the court is to declare the meaning of what is within the instrument and not what was intended to have been written so as to give effect to the intention expressed.” Page 11 of 19 It is noted that Exhibit A was tendered in evidence by the plaintiff as the agreement given to him by the 1st defendant one week after initial payment was made the content of which was contrary to their parole agreement. Exhibit 2, which is officially translated English version of Exhibit A from Ghana Institute of languages, has the heading as “RECEIPT.” The content of Exhibit A as translated into Exhibit 2 shows that same is a receipt given to the plaintiff in acknowledgement of part payment for the machine parts on the 2nd May, 2013. The plaintiff’s story was that contrary to the content of Exhibit A, he had orally agreed with the 1st defendant to deliver the machine parts to him within 40 days the initial part payment was made. That means that the oral agreement reached with the defendant had been varied. The plaintiff did not take any meaningful action to ensure that the content of Exhibit A had been varied and same not consistent with the oral agreement. He rather waited for the 40 days to elapse before checking on the machine parts from the 1st defendant. I must state clearly here that I find it so difficult to accept the plaintiff’s story in this case and accepting Exhibit A as an agreement between the parties in this transaction. In the case of ERIC ANSONG VRS MR ALBERT GORMAN, MRS GORMAN 30TH DECEMBER 2011 CIVIL APRIL J4/37/2011 ANSAH JSC held with reference from P. Y. Atta and Sons Ltd vrs Kingsman Enterprise Ltd [2007-2008] SCGLR 946 thus: “In deed in construing every agreement the paramount consideration is what the parties themselves intended or desire to be contained in the agreement…The general rule is that a document should be given its ordinary meaning if the terms are clear and unambiguous.” It is my humble view that Exhibit A as translated as in Exh2, the construction therein is unambiguous to my mind. It contains the heading “RECEIPT”, that acknowledged the receipt of the said payment from the plaintiff on the 2/5/2013. Out of the total sum of Page 12 of 19 CNY200,000.00. The rest of the payment was to be made within 40 days failure to do so the complainant will lose everything. It is my humble view that Exhibit A is a receipt given to the plaintiff over the part payment made which contain his obligation towards the full payment over the machine parts. I therefore reason with counsel for the 1st defendant in his reliance on section 25(1) of the Evidence Act, 1975 (NRCD 323) and KUSI VRS BONSU (2001) SCGLR 60 at 84 by WOOD CJ thus; “Indeed, under this section 25 of NRCD 323 the facts recited in a document were conclusively presumed to be true between the parties and all persons claiming through them”. Another dimension of the plaintiff’s case that is worth considering is what exactly the plaintiff did upon receipt of Exhibit A after paying such a colossal amount. Did the plaintiff confront the 1st defendant over Exhibit A, to abrogate the sales agreement or get Exhibit A changed to actually reflect what was agreed upon orally? All that the plaintiff did in his evidence in court was that he was not happy and refused to sign Exhibit A and later went to the then manager to insist that Exhibit A be changed to no avail, yet kept it . From the conduct of the plaintiff from the date Exhibit A was issued to him and his reactions within the remaining days as contained on Exhibit A, is highly indicative of the fact that there was no such parole agreement between the parties that the machine parts will be delivered to plaintiff within 40 days after the initial payment was made. One of the maxims of equity provides that; ‘delay defeats equity, equity aids the vigilant, not the indolent’. Let me now consider the plaintiff’s case that he did not sign Exhibit A in protect as same was contrary to their parole agreement. When the issue of what constitute receipt came up for determination in a transaction where a transfer of ten completed swish building of Accra New Town of H/No. C295/9, Accra New Town and the property of Quarshie Page 13 of 19 Ogbo to Madam Catherine Ama Adjuwuah came up at the Supreme Court, in the case of ANTIE AND ADJUWUAH VRS OGBO [2005-2006] SCGLR 494 at 504, receipt was defined thus: “Section 46(1) of Act 311 defines “receipt” in the following terms; “ 46(1) for the purpose of this Act, ‘receipt’ includes any note, memorandum, or writing whatsoever, whereby any money amounting to two cedis or upwards or any bill of exchange or promissory note money amounting to two cedis or upwards, is acknowledged to have been received, or paid or whereby any debt or demand of the amount of four cedis eight pesewas, or upwards, is acknowledged to have been settled, satisfied, or discharged, or which signifies or imports any such acknowledgment , whether the same is or not signed with the name of any person…” Admittedly, a conveyance or a document may contain a receipt clause on moneys had and received, or make reference to transactions that standing alone, may qualify as receipts as defied.” From the definition of receipt as resorted to in this case and the types of the documents mentioned as receipts, Exhibit A (Exhibit 2) clearly fits into this definition. Therefore the signature of either the plaintiff or defendant on Exhibit A is not mandatory to constitute a receipt. On this basis also, I will accept and agree with the defendant’s counsel that Exhibit A is a receipt and same not an agreement as the counsel for plaintiff wants the court to accept. I hereby conclude as my finding that the same is a receipt. The principle of law elucidated in the case of AKIM AKROSO STOOL & ORS VRS AKIM MANSO STOOL & ORS (Supra) is the fact that the intention of the parties must be gathered or construed from the four corners of the instrument and give meaning to it. It is my finding and conclusion from Exhibit A (Exhibit2) is that the plaintiff was required to have paid the outstanding amount of CNY140,000.00 cedi equivalent to the 1st defendant within 40 days from 2nd May, 2013, failing which the plaintiff shall will have nothing to take from the 1st defendant. As harsh as this may be, same is the implication of the only instrument covering their business relationship that is available at the hearing. Page 14 of 19 ISSUE THREE Whether or not the plaintiff was privy to the defendants’ transaction with its suppliers in china. The general rule of the doctrine of privity of contract as laid down in the case of TWEDDLE VRS ATKINSON (1861) 1 BAND Ad 433 which was later affirmed in DUNLOP PNEUMATIC TYRE CO LTD VRS SELFRIDGE LTD [1915] AC 847 was that: “ A contract creates rights and obligations only as between the parties to such contract. A third party neither acquires a right nor any liabilities under such contract.” In Tweddle Vrs Atkinson (Supra) concerning an agreement between Guy and John to pay certain sums to William Tweddle where the contract allowed the latter to sue either of them upon non-payment, the court disallowed such right of action as William Tweddle was not a party to that contract. Later, in Dunlop Pneumatic Tyre Co Ltd (Supra), where a manufacturer sought to sue a subsequent dealer for sale of tyres on terms in breach of the original contract between the manufacturer and the intermediary wholesaler, the court held that only a person who is a party to the contract can sue on it or be sued. It is trite that the general rules as stated above are applicable in our jurisprudence and so I will spare myself with our case law. In paragraphs 9 and 11 of the 1st defendant’s statement of defense which the 1st defendant repeated in paragraphs 15 of his evidence in chief was that this agreement was acceded to with the plaintiff because, the 1st defendant transacts with its suppliers in China on the same terms and the suppliers could only manufacture and supply the equipment to the 1st defendant only after a full payment had been made to them. Adding that this practice is known to the plaintiff and that is why the plaintiff accepted the terms. This line of evidence has been denied by the plaintiff. Page 15 of 19 On 25/05/2021 record of proceeding, the plaintiff under cross examination from the counsel for the 1st defendant admitted that he has always known 1st defendant to be a retailer and not the manufacturer of the machine parts he intended to buy. It is my candid view there was nowhere that the 1st defendant stated that the plaintiff was a party to contractual terms that plaintiff has with her suppliers in China. The fact that the plaintiff had knowledge that 1st defendant retails the machine parts he intended to buy, does not make the plaintiff a party of the agreement between 1st defendant and her suppliers. The doctrine of privity to a contract as espoused in the case of Tweddle (Supra) comes to play. The fact that the plaintiff was aware of the retail business of the 1st defendant cannot constitute being privy to same. I therefore disagree with counsel for the 1st defendant’s position and the decided case to that effect and humbly state that the plaintiff was not privy to the transaction between 1st defendant and her suppliers as that flies in the face of the general rule of contract of privy. ISSUE FOUR: Whether or not the plaintiff is entitled to his reliefs The gravamen of plaintiff’s reliefs sought, is the first relief the thus; recovery of the CNY60,000.00 equivalent to GH¢47,732.69 as the initial payment plaintiff made to the 1st defendant herein. Evidence available at the hearing from both sides points to one thing only, where 1st defendant admitted the receipt of the said amount from the plaintiff in order to supply the machines parts. The controversy was whether the 1st defendant was to supply the machine parts in issue to the plaintiff after the payment of the initial deposit within 40 days or the plaintiff was to pay up the outstanding amounting in cedis to the 1st defendant within 40 days after initial payment before the machine parts are supplied. This issue had been settled in favour of the 1st defendant based only on Exhibit A (Exhibit 2). Page 16 of 19 It is my observation and finding that, the plaintiff could not establish a case of fraud against the 1st defendant in this case, no, not a single evidence was lead to that effect. The 1st defendant’s position which the plaintiff could not convince the court at the hearing is the fact that when the plaintiff got hold of Exhibit A, a week after he had made the initial payment and realized that the parole agreement had been varied to his disadvantage, he did not take appropriate steps against the 1st defendant timeously. The only reliable and noted step taken by the plaintiff was when in February 2017, he reported the matter to the police in Dunkwa-On-Offin. All the efforts by the plaintiff as stated upon receipt of Exhibit A to have the content reversed or changed to conform to the parole agreement reached had been vehemently denied by the 1st defendant. The principle of law is that extrinsic or parole evidence cannot be accepted to contradict any of the terms of the only available document, which is Exhibit A. This legal proposition has been succinctly established in case law. It was held in BADU-ANUM VRS BADU ANUM [1998-99] SCGLR 845 at 851-852 per Hayford- Benjamin JSC thus: “In the interpretation or construction of a document, the court must look to the ‘four corners’ of the document; and therefore extrinsic or parole (they have the same meaning) evidence cannot be accepted to contradict any of the terms of the document. In the English case of Bank of Australia v. Palmer [1897] AC 540 at page 574 where Lord Morris stated that:…Parol testimony cannot be conceived to contradict, vary, add or subtract from the terms of a written contract, or the terms which the parties have deliberately agreed to record any part of their contract.” In the case of T. K SERBETH AND CO LTD VRS MENSAH [2005-2006] SCGLR 341 at 360- 361 it was held that: “For however credible a witness may be, his bare affirmation on oath or the repetition of his averments in the witness box cannot constitute proof. This is trite law: See, Majolagbe v. Larbi [1959] GLR 190” Page 17 of 19 Fortified with these principles of law in considering the plaintiff’s case at the hearing, it is my humble view that even though the content of Exhibit A as stated thereto appears to be very harsh it is the document that the court has to deal with. I hereby conclude that the plaintiff is not entitled to his claims. For the avoidance of doubt, the plaintiff is not granted his first relief as prayed and therefore, he is not entitled to other reliefs sought. There shall be no order as to cost. Hannah Afia Sarpong Esq. for the Plaintiff Charles Owusu Ansah Esq. for 1st defendant. SGD. FRANCIS A. OBUAJO CIRCUIT COURT JUDGE 19/10/2022. Page 18 of 19 Page 19 of 19