ABI-JAOUDEH v. MENSAH

JUDGMENT OF APALOO J.

This is an appeal from the judgment of the circuit court delivered on the 27th February, 1962. That judgment dismissed a claim by the plaintiff to recover the balance of the purchase price of musical instruments sold to the defendant by the plaintiff and sustained a counter-claim by the defendant to recover from the plaintiff a sum of money paid over and above the agreed purchase price.

The plaintiff claimed that the aggregate cost of the instruments was £G294 17s. and that of that sum, the defendant made a part payment of £6G75 by three instalments. Accordingly the sum which he sought to recover from him was £G219 17s. which the plaintiff claimed was due and owing to him from the defendant. The sale itself was not evidenced by a properly documented contract and was conducted in a somewhat unbusinesslike manner. The repayment was to be made not in cash but in kind. The defendant was the proprietor of a dance band known as "Tempos." The plaintiff was at that time the manager of the Richardo Hotel in Kumasi. The agreement for repayment was that the defendant's band was to play at the plaintiff's hotel and that a third of the hiring fee was to be retained by the plaintiff in repayment of the cost of the instruments. Accordingly, each time the defendant's band played at the plaintiff's hotel, the latter issued the former a receipt covering the one third of the hiring fee retained by him.

[p.131]

The evidence shows quite plainly that the plaintiff himself kept no record of these various receipts. Had he done so, this action would never have reached the courts. The defendant produced receipts (exhibits 3-13) which made a total of £G290. When the plaintiff was shown these, he recoiled from his position and quickly passed from attack to defence.

The defendant for his part, claimed that the total cost of the instruments was £G175 15s. He argued therefore that he had made an overpayment of £G114 5s. and for this sum he counter-claimed against the plaintiff. He produced a list of the instruments which he claimed to have bought and which he said was in the plaintiff's handwriting. Prices were quoted for the various instruments and its total was £G175 15s. (exhibit 1). It was not signed by anybody and was not admitted by the plaintiff to be the list of the articles sold to the defendant.

The record shows that the defendant gave evidence on the 17th January, 1962. The case was then adjourned to the 6th February, 1962. During the adjournment