Sintex Containers Ghana Limited v Decorplast Limited (CM/RPC/0661/2023) [2025] GHAHC 88 (2 June 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION 6) HELD IN ACCRA ON MONDAY THE 2ND DAY OF JUNE, 2025 BEFORE HER LADYSHIP JUSTICE SEDINA AGBEMAVA SUITNO.: CM/RPC/0661/2023 SINTEX CONTAINERS GHANA LIMITED … PLAINTIFF VRS. DECORPLAST LIMITED … DEFENDANT JUDGMENT The Plaintiff claims against the Defendant the recovery of the sum of Five Hundred Thousand United States Dollars (US$500,000.00) being financial assistance it offered the Defendant. Endorsed on its Writ are the underlisted reliefs: a. An Order for the Defendant to pay the amount of Five Hundred Thousand United States Dollars (US$500,000.00) being the outstanding amount owed to the Plaintiff for the financial assistance. b. An Order for the payment of interest on the amount claimed in (a) above from the date of judgment at the prevailing commercial bank rate until date of final payment OR IN THE ALTERNATIVE Page 1 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited A1. An order for the Defendant to secure the consent of the Lands Commission to consummate the Deed of Assignment dated 23rd of June, 2021 executed between the Parties c. Costs d. Any order(s) this Honourable Court may deem fit. In its Statement of Claim, the Plaintiff pleads that its Managing Director has a personal relationship with the Managing Director of the Defendant. That the Defendant through its Managing Director had made an express demand of the Plaintiff, also through its Managing Director for the sum of Five Hundred Thousand United States Dollars (US$500,000.00) to enable it meet certain pressing financial obligations. The uncontested facts from the record is that the Five Hundred Thousand United States Dollars (US$500,000.00) was made available to the Defendant, which the Defendant received. The Defendant also furnished the Plaintiff with a Board resolution approving the assignment of its interest in a parcel of land in the North Industrial Area and a deed of assignment executed in favour of the Plaintiff in respect of this property. Even though this deed of assignment tendered by the Plaintiff as Exhibit ‘D’ was rejected by the Court and marked R, it was admitted by the Defendant through its Witness that it actually executed this deed of assignment. Page 2 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited The reason why the Plaintiff is in Court is because it claims the Defendant has refused to pay back the sum lent to it and has evinced every intention not to pay back the money. The Defendant came out swinging. It filed a twenty-one paragraph Statement of Defence and averred that there was no merit to the Plaintiff’s claim. It urged the Court to dismiss the claim for this reason. Paragraphs 5 and 6 of the Defendant’s Defence is of particular interest to the whole action. The Defendant avers in the abovementioned paragraphs that the Plaintiff’s claim did not represent a true and faithful account of the transaction between the Parties. It contended that the Plaintiff had contrived the facts to mislead the Court as to the true state of affairs. In what must have appeared as a shocking ambush to the Plaintiff, the Defendant alleged that it had paid the Plaintiff, cash totalling Six Hundred and Seventy Thousand United States Dollars (US$670,000.00) being the principal and interest on the amount owed. That being the case, Defendant says it had paid up its debt and owed the Plaintiff nothing. Issues were settled as follows; 1. Whether or not the Plaintiff acting through its Managing Director advanced an amount of Five Hundred Thousand United States Dollars (US$500,000.00) to Defendant as financial assistance. 2. Whether or not the Defendant agreed to assign all its interest in the property described as parcel No. 10449 Block 1 Section 050, situate at North Industrial Page 3 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited Area in the Greater Accra Region and measuring an approximate area of 1.43 acres should the Defendant default in the repayment. 3. Whether or not the Defendant has repaid the Plaintiff to the tune of Six Hundred and Seventy Thousand United States Dollars (US$670,000.00). 4. Whether or not the Deed of Assignment dated 23rd June, 2021 transferring the interest of the Defendant to the Plaintiff is valid. 5. Any other issue(s) arising from the pleadings. It is my view that the only issue left for the Court to determine is the 3rd issue of whether or not the Defendant has repaid the plaintiff to the tune of Six Hundred and Seventy Thousand United States Dollars (US$670,000.00). This is because the Plaintiff abandoned its alternative relief for an Order compelling the Defendant to secure the consent of the Lands Commission to perfect the Deed of Assignment to the Plaintiff, and stuck to the recovery of the sum of Five Hundred Thousand United States Dollars (US$500,000.00) with interest. The Law is settled that in civil cases, the burden of proof lies on the person making the claim. A host of case Law, backed by statute has laid down the principle. Put another way, the Party asserting a claim carries the burden of proof. This principle has statutory backing under Section 11 (1) & (4) of the Evidence Act, 1975 NRCD 323. It reads; Page 4 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited (1)For the purposes of this Decree, the burden of producing evidence means the obligation of a Party to introduce sufficient evidence to avoid a Ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a Party to produce 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. It is also required under Section 12(1) of the Act that Parties prove their respective cases by a preponderance of the probabilities. What this means is that in Order for the Court to find in favour of Plaintiff, he/she ought to introduce admissible evidence, sufficient to convince the Court that their case is more probable than the case the opponent has put across, and vice versa. The Court is required to weigh all the evidence led at the trial that is supportive of Plaintiff’s case against the evidence that supports Defendant’s case and make a reasoned Judgment as to which Party’s case is more believable. See case of Frimpong v Mr Biney and Another (J4/24/2015) [2016] GHASC 88 In proof of its case, the Plaintiff tendered in evidence Exhibit B-series. This comprised an Ecobank cheque issued in favour of the Defendant and a Statement of Account of the Plaintiff from the 1st of June to the 30th of June 2021 from Ecobank Ghana. This Statement of Account clearly evidences the transfer of an amount of Five Hundred Thousand United States Dollars (US$500,000.00) to the Defendant on the 24th of June, 2021. Page 5 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited The reference reads: REF:H69LOCH211750019 CHEQUE DEPOSIT-HSE CHEQUE- EGH CHQ 000276 IFO DECORPLAST LIMITED-FX BO SINTEX CONTAINERS LIMITED 500,000. This is satisfactory proof that the Plaintiff indeed transferred the said amount to the Defendant. As I have earlier stated in the Judgment, this fact remains undisputed as the Defendant admits that it received this sum. The burden therefore shifts to the Defendant to prove that it liquidated its debt to the Plaintiff. It has been stated in Lamptey alias Nkpa v Fanyie [1989-90] 1 GLR 286 that “…on general principles, it is the duty of a Plaintiff to prove his case; he must prove what he alleges. However, when on a particular issue, he leads evidence, then the burden shifts to the Defendant to lead sufficient evidence to tip the scales in his favour. If he is able to do this, he wins; if not, he loses on that issue.” It has been submitted on behalf of the Defendant in its address to the Court that the transaction was purely between friends, Manoj Budharani and Arun Malkani who are the respective Managing Directors of the Parties. According to the Defendant, the Parties were merely mediums through which the transaction was performed and were not the real Lender and Borrower in this instance. I have had no difficulty in rejecting this contention outright. It is a clear afterthought and cannot be sustained. There was no challenge by the Defendant when it was sued that the transaction was a private one undertaken by its Managing Director. Page 6 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited The record is replete with admissions and proof that it was the Defendant who requested the loan through its Managing Director, Arun Malkani. Exhibit B-series shows that the cheque issued to the Defendant was the Plaintiff’s corporate forex cheque, and not the personal cheque of Plaintiff’s Managing Director. Again, the cheque was received in the Defendant’s account and not the personal Account of the Defendant’s Managing Director. No other evidence was provided to the Court that the money was received or personally utilised by the Defendant’s Managing Director. The Defendant has averred in paragraph 2 of its defence that it admitted paragraphs 1, 2, 3, 4, 5 and 9 of the Plaintiff’s Statement of Claim. Paragraph 5 of the Plaintiff’s Statement of Claim reads: “The Plaintiff states that by the express demand of the Defendant, through its Managing Director, Mr. Arun Malkani gave an amount (sic) of US$500,000.00 as financial assistance to enable the Defendant meet pressing financial obligations.” Further, the 2nd Defendant Witness had testified through his witness statement in his evidence in chief as follows; “In 2021, the Defendant Company fell into serious financial distress and as a result, I started reaching out to members of the Indian business community for financial help. I therefore reached out to the Managing Director of the Plaintiff Company, Manoj Budhrani to request for financial assistance”. Clearly, a Company acts through its Directors and it is conceivable for the Plaintiff or its Managing Director to presume the regularity of the acts of the Directors on behalf of the Defendant. Page 7 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited It is provided under Section 148(1) (b) of the Companies Act 2019, Act 992 that “Except as provided in Section 147, the acts of an Officer or agent of a Company are not acts of the Company, unless the Company, acting under paragraph (a) has represented to the Officer or agent as having the authority of the Company to act in the matter, in which event the Company is civilly liable to a person who has entered into the transaction in reliance on that representation, unless that person had actual knowledge that the officer or agent did not have the authority, or unless, having regard to the position with, or relationship to the Company, that person ought to have known of the absence of authority. Applying the test to the facts in this instance, Mr. Arun Malkani was known to Plaintiff’s Managing Director as Defendant’s Managing Director. In Law he is an integral organ of the Company and able to bind the Company in transactions or dealings with others. The Plaintiff’s Managing Director was therefore entitled to assume that the Defendant’s Managing Director had the authority to act on behalf of the Company. Date-Bah JSC, in the case of Oxyair Ltd & Darko v Wood & Ors [2005-2006] SCGLR 1057 held that “In terms of Section 139 of the Companies Code 1963, unless the Defendants were able to establish that the Plaintiffs had actual knowledge, before the conclusion of the oral contract, of any defect in the second Defendant’s authority to bind his Company or that he had acted in an irregular manner, then the Company was bound. Section 141 of the Code had also abolished the common Law Rule that a Party dealing with a company was deemed to have constructive notice of the contents of all the Companies’ public documents filed at the Companies Registry. Page 8 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited The provision in Section 141 implies that at the time that the Plaintiffs entered into their parol contract with the Defendants they had no constructive notice of the contents of the Regulations of the Company. Accordingly, any restrictions on the authority of the Managing-Director contained in the Regulations do not affect the validity of the contract entered into by him, unless the Plaintiffs’ actual knowledge of such restriction is proved. Furthermore, Section 142(a) of the code restates the effect of the rule in Turquand’s Case by affirming that any person having dealings with a Company or with someone deriving title under the Company shall be entitled to make the following assumptions and the Company and those deriving title under it shall be stopped from denying their truth: - that the Company’s Regulations have been duly complied with.” That case was decided under the old Companies Code, 1963, Act 179 but the sections referred to in the Oxyair case (supra) are in the same terms as Sections 144-156 of the present Companies Act 2019, Act 992. The claim of the Defendant that the transaction was between Two (2) individuals cannot therefore be sustained having regard to the evidence on the record. It has been further submitted on behalf of the Defendant through its address that the PW1 used some kind of coercive powers to get the DW2 execute Exhibit ‘C’, because he was held under a metaphorical financial sword of Damocles. From my observation of both Witnesses in the box, I would think that the reverse is rather more probable that the DW2 knowingly executed an unenforceable resolution Page 9 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited of the Company for the PW1. I do not wish to cast any aspersions on the Plaintiff Witness but I observed a few notable differences between the Managing Directors of both Companies as they testified from the box. From their speech patterns, diction and accents, it would appear that the Defendant Managing Director has benefitted from a western education, probably higher education. He was certainly more eloquent and self- assured than the Plaintiff’s Managing Director and gave lengthier explanations to his answers, compared to the almost monosyllabic ones offered by the Plaintiff Witness. This will lead me to conclude that the DW2 was not a novice concerning worldly affairs but a shrewd businessman and certainly knew the effect of the defective board resolution and the rejected Deed of Assignment he executed for the Plaintiff. This is not the only evidence of sleight of hand attempted by the DW2. Attached to his witness statement is Exhibit ‘4’, a purported deed of Mortgage between Defendant and First Atlantic Bank. This Exhibit was intended to prove that Defendant’s property that it allegedly assigned to the Plaintiff in the event of a default had earlier on in time been mortgaged to the Bank. It had been purportedly executed by a Director of Defendant, whom from the evidence from the trial is his Uncle Indru. DW2 also signed as secretary to the Company, even though he is not the Company Secretary. The document was also not executed by the Bank, the alleged mortgagee. This is the document the Defendant intended to rely on as proof that its property was already Page 10 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited encumbered, had the Plaintiff not abandoned that relief. It had no qualms about throwing dust in the eyes of the Court to further its case. I do not find the DW2 worthy of credit, because of all the murky dealings surrounding the corporate governance of the Defendant. It has been held in Barkers-Woode v Nana Fitz [2007-2008] SCGLR 879 that the common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim. The Defendant attempted to discharge its burden in proof that it had paid the sum of Six Hundred and Seventy Thousand United States Dollars (US$670,000.00) to Plaintiff by testifying through Two (2) Witnesses. DW1 Emmanuel Quaye Abbey testified that he was instructed to deliver various sums of money by his Managing Director to Plaintiff Company between 2022 and 2023. Under cross examination however, the witness asserted that he had never been to Plaintiff’s Company in 2023, despite his own testimony and the pleadings of the Defendant in its defence. Defendant Counsel urges on the Court to disregard this inconsistency as colourless. I am afraid, I’m unable to disregard this glaring inconsistency as having no effect on the Witness’ credibility. The Witness was unable to explain the inconsistency between his Evidence in Chief and the Statement of Defence of the Defendant, seeing the adamant way he insisted under cross examination that he had never visited the Plaintiff’s premises in 2023. Page 11 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited I therefore attach very little weight to his rather unreliable evidence that he sent monies to the Plaintiff under instructions from his Managing Director. The Law has been stated time without number and laid down in numerous cases that if a Party made an averment and that averment was true, then there was bound to exist, corroborative evidence of that averment. The cases of Majolagbe v Larbi [1959] GLR 192 and Zabrama v Segbedzi [1991] 2 GLR 221 are authorities for this proposition. The Defendant is insistent that it has paid back the debt it owes the Plaintiff, yet oddly enough, it has been unable to reproduce a single receipt issued as evidence of payment of this rather princely sum. DW2 tried to explain that he found it disrespectful to demand a receipt from the PW1 because he regarded him as his older brother, so he did not insist on one when PW1 refused to issue any receipts for payment. I reject this explanation outright. This would have been a very reckless stance to take, especially when dealing with a Company’s finances. This would mean that at anytime at all the Defendant was open to a shake-down by the Plaintiff because there was no proof of payment. Secondly, I have observed that the DW2 would be a shrewd businessman. He is not a simpleton and would know that he had to have credible proof of the repayment of the loan. Page 12 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited He may have been relying on some obscure Indian culture of according respect but that was not made evident at the trial. I therefore find his explanation incredible and reject it outright. The Defendant presented a purported record of payment as Exhibit ‘2’, but it was generated by the Defendant itself and just shows a table with figures. I find it to be a self-serving document and will attach no weight to it. The DW2 in his testimony to the Court has stated that even though the PW1 had refused to issue receipts for the payments made, Plaintiff had admitted to these payments in whatsapp text messages. He tendered in evidence Exhibits ‘1’ and ‘3’ being the alleged whatsapp messages confirming payments. Defence Counsel has submitted that these Exhibits corroborates the claim of the Defendant that it has made payments of Seventy Thousand United States Dollars (US$670,000.00) to the Plaintiff. On the contrary, I am in full Agreement with Counsel for the Plaintiff that these Exhibits cannot be relied on as proof of the Defendant’s payment of the sum loaned it. In the proceedings of the 17th day of March, 2025, the DW2 was cross examined as follows; Q: Go to Exhibit 3, the first page. Can you mention the name you see on Exhibit ‘3? A: It says Natasha Q: Beneath the Natasha, what name do you see? A: It says Manoj Budhrani Page 13 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited Q: So is Exhibit 3 a correspondence between Natasha and Manoj Budhrani? A: How whatsapp works is if you take a screenshot whilst on another call, the name of the person on the call will show so I assume my lawyer, Mr. Randall Obeng-Sakyi was on another call with a lady called Natasha whilst taking a screenshot to forward this. It has nothing to do with a chat or conversation with myself, Natasha, Randall or Mr. Manoj. Q: So Exh 3 was printed from another person’s phone not directly from your phone? A: These were printed from my lawyer’s office in my presence which I forwarded to him as screenshots. Q: So Exhibit 3 was printed from your lawyer’s phone in your presence? A: That is correct. I do not think the DW2’s evidence adds up. If he was in his lawyer’s office when the Exhibit was being printed, and in his presence, why could he not print it directly from his phone? Further when it was realised that Natasha’s phone call interfered with the printout, why could Defence Counsel not have printed another one out? I am doubtful about the authenticity of these printouts and will therefore attach no weight to it. Under Section 7 of the Electronic Transactions Act , 2008 Act 772, the Court is required to consider a number of factors in assessing the evidential weight to attach to an electronic record and these include the reliability of the manner in which the electronic record was generated, displayed, stored or communicated, the reliability Page 14 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited of the manner in which the integrity of the information was maintained, the manner in which the originator was identified and any other factors the Court considers relevant. In this instant suit, how the record was generated, the identity of the Originator of the record and how it was communicated cannot be relied on. I have earlier on voiced out my apprehension as to the authenticity of the record. I cannot accept it as proof that it was communication between the PW1 and DW2 relating to payments made in relation to the money owed by the Defendant. On the balance of probability, I find the Plaintiff’s case is more probable than not. It has succeeded in making out its claim that it lent a sum of Five Hundred Thousand United States Dollars (US$500,000.00) to the Defendant, which sum Defendant has failed to pay. Judgment is hereby entered for the Plaintiff on its relief and the Order is made for the Defendant to pay to the Plaintiff the sum of Five Hundred Thousand United States Dollars (US$500,000.00) being the amount owed the Plaintiff for the financial assistance it offered the Defendant. Interest is also ordered to be paid on the said sum at the United States Federal Bank rate from the date of Judgment to the date of final payment. Costs of Sixty Thousand Ghana Cedis (GH¢60,000.00) awarded to the Plaintiff. (SGD) SEDINA AGBEMAVA J Page 15 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited JUSTICE OF THE HIGH COURT COUNSEL 1. NANA KWADWO ADJEI ADDO WITH VANESSA ZORMELO HOLDING BRIEF FOR BOBBY BANSON FOR THE PLAINTIFF PRESENT 2. SIGISMUND PHIXON-OWOO WITH RITA TANDOH HOLDING BRIEF FOR RANDALL OBENG-SAKYI FOR THE DEFENDANT PRESENT LIST OF CASES 1. FRIMPONG VRS. MR BINEY AND ANOTHER (J4/24/2015) [2016] GHASC 88. 2. LAMPTEY ALIAS NKPA VRS. FANYIE [1989-90] 1 GLR 286. 3. OXYAIR LIMITED & DARKO VRS. WOOD & ORS. [2005-2006] SCGLR 1057. 4. BARKERS-WOODE VRS. NANA FITZ [2007-2008] SCGLR 879. 5. MAJOLAGBE VRS. LARBI [1959] GLR 192. 6. ZABRAMA VRS. SEGBEDZI [1991] 2 GLR 221. STATED LAW 1. SECTION 11 (1) & (4) OF THE EVIDENCE ACT, 1975 NRCD 323. Page 16 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited 2. SECTION 12 (1). 3. SECTION 148 (1) (B) OF THE COMPANIES ACT 2019, ACT 992. 4. SECTION 147. 5. SECTION 139 OF THE COMPANIES CODE 1963. 6. SECTION 141. 7. SECTION 142 (A). 8. COMPANIES CODE, 1963, ACT 179. 9. SECTIONS 144-156 OF THE PRESENT COMPANIES ACT 2019, ACT 992. 10. SECTION 7 OF THE ELECTRONIC TRANSACTIONS ACT, 2008 ACT 772. Page 17 of 17 Suit No. CM/RPC/0661/23 Sintex Containers Ghana Limited Vrs. Decorplast Limited