KERECOM COMPANY LIMITED v. KUMASI METROPOLITAN ASSEMBLY
2019
HIGH COURT
GHANA
CORAM
- DR. RICHMOND OSEI-HWERE, J
Areas of Law
- Contract Law
- Evidence Law
- Civil Procedure
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
Kerecom Limited sued the Kumasi Metropolitan Assembly for unpaid sums under a terminated CBD cleaning contract, seeking GH365,934.19, interest, and costs. The court reaffirmed civil evidentiary burdens and examined corporate documents (Exhibit F2), finding Edmund Prempeh and Regina Adu Gyamfi were Kerecoms directors, not the late Nana Peasah. However, by agency-by-estoppel, the court held that Nana Peasah acted as Kerecoms agent authorized to receive payments. Minutes of a meeting on 10 July 2013 (Exhibit 1) and an undertaking dated 29 July 2013 (Exhibit D1) fixed KMAs indebtedness at GHC 294,815. KMA subsequently paid GHC 212,000 between September 2013 and July 2015 (Exhibit G; Exhibit 2), leaving GHC 82,815 outstanding. Rejecting recalculation using the original contract sum and noting no default clause in D1, the court awarded GHC 82,815, interest at commercial rates from 31 December 2013, and costs of GHC 15,000.
JUDGMENT
On 22nd March, 2016 the Plaintiff instituted the present action against the Defendant herein. By an amended statement of claim filed on the 31st July, 2017, Plaintiff’s claim against the Defendant is for:
i. An order directed to the defendant to pay an amount of GH₵365,934.19 being an outstanding indebtedness for waste management services render to the defendant by the plaintiff.
ii. Interest on the GH ₵365,934.19 at the prevailing commercial bank rate at the time of judgment from 30th April, 2013 till date of final payment.
iii. Costs including legal fees.
Per the amended statement of claim, the plaintiff’s claim hinges on the fact that the defendant has failed or refused to pay the outstanding debt owed it as a result of its services of street sweeping and drain cleaning within the central business district of the Kumasi Metropolis for sixteen (16) months.
The defendant averred in its amended statement of defence that it has paid all its indebtedness to the plaintiff and that the plaintiff is not entitled to the reliefs endorsed on the writ of summons.
ISSUES
After unsuccessful attempts at settlement, the following issues were set down for trial namely:
1. Whether or not the defendant owes the plaintiff the sum of GHC 390,732.40?
2. Whether or not the defendant is indebted to the plaintiff to the tune of Gh₵ 390,732.40 or thereof?
3. Whether or not the late Nana Peasah (deceased) was the chief executive officer or director of the Plaintiff Company?
4. Whether or not Nana Peasah had authority to receive any payments on behalf of the plaintiff company?
5. Whether or not plaintiff is entitled to its claim?
The GH₵390,732.40 figure as captured in the claim was subsequently amended to GH₵365,934.19. THE BURDEN OF PROOF IN CIVIL SUITS GENERALLY
As in all civil suits, the onus of proof first rests on the party whose positive assertions have been denied by his opponent. Depending on the admissions made, the party on whom the burden of proof lies is enjoined by the provisions of sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead cogent evidence such that on the totality of the evidence on record, the court will find that party's version of the rival accounts to be more probable than its non-existence. Indeed, this basic principle of proof in civil suits expounded in Zambrama V Segbedzie (1991) 2 GLR 221 has been subsequently applied in numerous cases including Takoradi Floor Mills v Samir Faris (2005/06) SCGLR