DIVISION: IN THE SUPREME COURT
DATE: 5TH JULY, 1963
BEFORE: ADUMUA-BOSSMAN, CRABBE AND AKUFO-ADDO
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court, Accra, unreported, given in favour of the plaintiff in an
action for the recovery of the sum of £G1,361 6s. 11 d. The facts are fully set out in the judgment
delivered by Akufo-Addo J.S.C.
COUNSEL
Victor Owusu with him Ohene-Ampofo for the appellant.
K. Narayan for the respondent.
JUDGMENT OF AKUFO-ADDO J.S.C.
The plaintiff was at all material times a storekeeper at Koforidua for Messrs. Commonwealth Trust Ltd.
which has now ceased to exist, having been absorbed into the Ghana National Trading Corporation. The
defendant is a timber contractor living at Tafo.
Some time in 1958 the defendant finding himself in financial difficulties approached the plaintiff for help.
So much is admitted on both sides, and the claim in the action in this appeal arose out of that
circumstance.
The plaintiff’s claim endorsed on a specially endorsed writ was “for the sum of £G 1,443 9s. 8d. money
payable by the defendant to the plaintiff for money paid by the plaintiff to Commonwealth Trust Ltd. at
the defendant’s request for goods sold and delivered to the defendant from about the 6th November, 1958,
to about the 31st January, 1959.” It is a somewhat clumsily worded claim; no application was made for summary judgment, but the defendant delivered a defence in which he pleaded as follows:
“1. That the defendant denies the allegation in the plaintiff’s statement of claim that the plaintiff paid an
amount of £G1,443 9s. 8d. to the Commonwealth Trust Ltd. at the request of the defendant for goods
sold and delivered to the defendant.
2. In further answer to the plaintiff ‘s statement of claim the defendant says that in the year 1958, while
the defendant was ill the defendant’s brother obtained goods from the plaintiff who was then the
storekeeper of Messrs. Commonwealth Trust Ltd., Koforidua, to the value of £G400.
[p.279] of [1963] 2 GLR 277
3. That the defendant upon his recovery adopted the debt of £G400 due to the plaintiff for goods sold and delivered to the defendant’s brother for the use of the defendant.
4. That in the month of June, 1960, at the request of the plaintiff an arbitration was held at Old Tafo in
respect of this claim; and that the amount due to the plaintiff by the defendant was found to be £G148
and not £G1,443 9s. 8d. as alleged in the statement of claim.
5. That the plaintiff is bound by the award of the arbitration.
6. That the defendant admits liability in the sum of £G148 only.
7. That at the trial the defendant will plead that by reason of the arbitration award aforesaid, the plaintiff is estopped from re-opening the transaction.
Dated at Kadore Chambers, Accra, this 21st October, 1960.”
In the light of the facts that emerged from the evidence that defence was a somewhat soul-less and an
unenterprising piece of pleading. On the 9th March, 1961, counsel for the defendant is recorded to have made the following submission in the court below: “… that to do substantial justice to the parties this case should be referred to a referee to
go into the accounts between the parties and to report to the court.” Counsel for the plaintiff raised no
objection to this submission, and the trial judge thereupon made an order appointing the Senior High
Court Registrar a referee to enquire into the accounts between the parties and to investigate or try any
issues of fact relating thereto.
One of the issues which the referee had to determine was the nature of the transaction between the parties.
The referee’s finding on this issue and the trial judge’s alleged failure to deal with that finding formed
one of the grounds of appeal that were argued before us, and since a determination of the nature of the
transaction between the parties is essential for the determination of the nature of the accounts to be taken
between them, I think it necessary first to deal with that aspect of the appeal.
The plaintiff’s evidence at the hearing by the referee was that when the defendant approached him for
financial assistance he told him he had no money to give him, and it was agreed that the plaintiff should
supply the defendant goods on credit which he the defendant could sell at reduced prices in order to raise
the money he needed. Goods according to the plaintiff were supplied to the defendant on four occasions
and the amount claimed by his writ of summons was the balance due in respect of the prices of these
goods. The defendant, on the other hand, contended that the plaintiff did actually lend him money upon
which he charged interest, but the plaintiff suggested that as the money he lent to the defendant was the
property of his employers and as he (the plaintiff) would not be able to account for it in his books it was
necessary to give the transaction a different colour from what it actually was. The defendant then agreed
to the plaintiff’s suggestion that the transaction should be made to wear the colour of one for goods sold
and delivered. Debit notes were issued in which a number of goods were itemised and, according to the
defendant, the prices stated on these debit notes represented the principal and interest
[p.280] of [1963] 2 GLR 277
in respect of the loans made to him by the plaintiff, and those were the debit notes tendered by the
plaintiff in support of his claim.
It is rather strange, to say the least, that so fundamentally vital a defence should not have been pleaded by
the defendant whose main averment in his defence was that his indebtedness to the plaintiff arose out of
goods to the value of £G400 sold to his brother for his use and for which he accepted liability. The referee
found against the defendant on this issue holding that he was satisfied from the evidence that the
transaction was one of goods sold and delivered.
The learned judge in accepting the conclusions of the referee made no specific reference to that finding by
the referee and this circumstance is one of the defendant’s grievances against the judgment. Mr. Narayan,
counsel for the plaintiff, however, submitted that the learned judge could not have considered the
evidence on that issue because that issue not having been pleaded the evidence on it was inadmissible. I
do not agree. The evidence is not of the class of evidence generally described as inadmissible per se, and
for that reason if objection was not taken to its admissibility at the hearing no objection to it can be
advanced on appeal, and the trial judge was bound to consider it as evidence properly before him in his
over-all assessment of the merits of the case: see Abowaba v. Adeshina.1
Although, as I have already stated, the trial judge made no specific reference to the finding of the referee
on that issue I think that the trial judge’s general acceptance of the referee’s conclusions as a whole can
be safely held to imply an acceptance of that finding. Be that as it may, the defendant is entitled in this
court to raise an argument against the propriety of the referee’s finding. The defendant’s counsel’s
complaint was that the referee’s finding that the transaction between the parties was one of goods sold
and delivered was against the weight of evidence.
Apart from the evidence of the plaintiff there was the evidence of Ampaw a former employee of the
defendant and the person who introduced the defendant to the plaintiff. His signature appeared on the
debit notes and he said he accompanied the defendant to the plaintiff’s shop to take delivery of the goods
and he assisted in their disposal for the purpose of raising funds for their business. The referee believed
the story which tallied in its essential particulars with the story told by the plaintiff. But it was argued by
counsel that the appearance on the first of the debit notes of the inscription “proceeds used against the
acquisition of Pimpimso and Awenkori Forest Timber Land” raised a suspicion by reason of the fact that
it was unusual to find such an inscription on a debit note for goods sold and delivered and that the
transaction could not have been what the plaintiff claimed it to be. It is difficult to appreciate this
argument. In my view the word “proceeds” would seem to me to confirm the plaintiff’s case that he sold
goods to the defendant. One can hardly spell out anything coherent in the defendant’s evidence on this
point, and I think the referee was plainly right in his finding.
[p.281] of [1963] 2 GLR 277
Counsel for the defendant raised a point concerning the nature of the plaintiff’s claim. This point is
expressed in two grounds of appeal which read as follows:
“The transaction being primarily between the defendant and Commonwealth Trust Ltd., of which the
plaintiff was an employee, the learned trial judge erred in law in confirming the decision of the referee
instead of dismissing or non-suiting the plaintiff as there was no evidence of assignment by the said company
or a request by the defendant for the plaintiff to pay the said debt.
There is not an iota of evidence in support of the plaintiff ‘s claim that the sums claimed were being so
claimed from the defendant because they had been paid to Commonwealth Trust Ltd. at the request of the defendant.”
Counsel for the plaintiff in answer to the argument expressed in the above-stated grounds of appeal
submitted that the evidence of the plaintiff which was not challenged was that he was forbidden by his
employers to sell goods on credit, and that if he did he was entirely responsible for the payment of the
price of goods so sold. He argued that the defendant knew, or must be presumed to have appreciated the
position, that if he did not pay for the goods purchased the plaintiff would be liable to his employers for
their price, and that since the plaintiff’s evidence that he had paid the amounts involved in the transaction
to his employers was not challenged an implied request to the plaintiff to pay for the goods must be
inferred. I am not very much attracted by the submissions of the defendant’s counsel. The question of an
assignment hardly arises. Although the claim on the writ could have been more happily phrased, the
situation revealed by the evidence and the relevant findings of the referee makes it quite clear that the
circumstances surrounding the whole of the transaction were such that, having regard to the plaintiff’s
responsibility for the goods sold on credit, the plaintiff was placed, by the defendant’s default, in a
position in which he was compelled to make good to his employers the value of the goods or any balance
thereof remaining unpaid, and to that extent a request to pay may be justifiably inferred. Moreover as an
agent of Commonwealth Trust Ltd., the plaintiff has a beneficial interest in the performance of the
contract for the sale of the goods to the defendant and he is therefore in my view entitled to sue in his own
name to recover the price of the goods. See Snee v. Prescot,2 Fisher v. Marsh3 and Dickenson v. Naul4.
In any case the defendant has nothing to lose by making payment to the plaintiff, for payment to him as
the agent of Commonwealth Trust Ltd. will constitute a discharge of his liability to that company.
On the merits of the plaintiff’s claim the referee found that the defendant was indebted to the plaintiff in
the sum of £G1,361 6s. 11d. and the trial judge entered judgment for the plaintiff for that amount. The
basis of the referee’s finding was that on the 30th September, 1958, the 6th November, 1958, the 1st
January, 1959, and the 31st January, 1959, the
[p.282] of [1963] 2 GLR 277
plaintiff supplied the defendant goods valued at £G807 17s. 8d., ; £G895 .5s. 8d., £G255 3s. 7d. and
£G238 respectively and that payments were made on various dates in the year 1959 by four cheques for
the sums of £G400, £G235, £G100 and £G100 respectively.
The defendant’s complaint against that finding was that the price of the goods supplied on the 30th
September, 1958, that is; £G807 17s. 8d. should not have been brought into the accounts at all for he
specifically paid for these goods, or that that figure having been debited to him a credit for a
corresponding amount should have been given him in the accounts. The defendant’s contention was that
the said sum of £G807 17s. 8d. was paid by him in respect of goods supplied on the 30th September,
1958, and that the four cheques aforesaid amounting to £G835 were tendered in payment of goods
supplied subsequent to the 30th September, 1958. The plaintiff tendered in evidence at the reference his
copy of the relevant debit note on which appeared the inscription “paid in cash,” and explained that the
sum of £G807 17s. 8d. marked on the debit note as paid was actually part of the proceeds of the four
cheques which he appropriated to the payment of the goods appearing on the debit note. His contention
was that it was not the case that the defendant paid; £G807 17s. 8d. and thereafter made four additional
payments by the cheques.
The referee did not make any explicit findings in respect of the conflicting contentions put forth by the
parties and the only indication that he accepted the plaintiff’s case on this point was that in the statement
of the account which he annexed to his report he credited the defendant with £G835 being the total of the amounts represented by the cheques and debited him with, among other items, the sum of £G807 17s. 8d.
The obvious implication is that he accepted the plaintiff’s contention that the total amount paid by the
plaintiff was £G835. The learned judge did not carry the matter any further on the road to enlightenment.
He pronounced on this issue in the following terms: “I support the referee’s report and say, I find that the
defendant had only paid £G835 cheques and nothing more in cash to the account of the goods supplied
him leaving a balance as found on the statement of account against the defendant.”
The plaintiff offered no explanation at the reference why, if the payment of £G807 17s. 8d. was made by
cheques, he should have stated on the debit note that it was paid in cash, and indeed the plaintiff’s counsel
complained in the court below that his client was not given an opportunity to offer an explanation. What
opportunity the plaintiff required was not made clear.
What is more, according to the plaintiff when the defendant paid the sum of £G807 17s. 8d. or rather
when he appropriated that sum from the sum of £G835 in payment of the supply of the 30th September,
1958, the defendant had bought some more goods from him, and the debit notes show that the next lot of
goods supplied was on the 6th November, 1958, and amounted to £G895 5s. 8d. At the time that the
plaintiff received the four cheques therefore, the defendant was indebted to him at least
[p.283] of [1963] 2 GLR 277 in the sum of £G1,703 3s. 4d., and why he should be so concerned with identifying part of the amount
paid by cheques with the goods supplied on the 30th September, 1958, is something for which no
explanation was forthcoming. It is significant that the plaintiff confined his claim to the period the 6th November, 1958, to the 31st
January, 1959, and the four cheques were paid in 1959, the last of them on the 6th July, 1959. In the
absence of any acceptable explanation the defendant’s case seems to have the support of the documentary
evidence produced by the plaintiff himself. Such an explanation does not appear in the record of evidence
taken at the reference and counsel’s explanation in his submissions to us falls very far short of the
reasonable. The defendant is in my view entitled to a credit for the sum of £G807 17s. 8d.
Another complaint by the defendant was in respect of a sum £G200 which he said he paid to the plaintiff
in September 1959 at the premises of Barclay’s Bank at Koforidua. The plaintiff denied emphatically at
the reference that the defendant ever paid to him any such sum of money at the place alleged, and up to
the time of hearing this appeal it did appear that on the evidence before the referee the referee’s rejection
of the defendant’s allegation concerning this payment could not be impeached. But the defendant applied
to us for leave to adduce fresh evidence by tendering a receipt for the said sum of; £G200 which the
plaintiff gave him but which he had unfortunately misplaced at the time of the reference. We granted him
the leave sought and also granted both parties leave to tender any further evidence they might wish to
adduce with reference to the payment of the said £G200 to the plaintiff.
The defendant tendered in evidence the said receipt the authenticity whereof was not disputed by the
plaintiff, and the plaintiff did not persist in his denial that any payment was ever made to him by the
defendant at the premises of Barclay’s Bank, Koforidua. The plaintiff contended that that payment was
made in respect of a different transaction wholly unconnected with the transaction which is the
subject-matter of this appeal. His story which he told from the witness-box was that in August 1959 the
defendant called on him for the supply of £G240 worth of matches. He was unable to make the supply,
and the defendant arranged with one Kwaku Nuama a store-keeper for Commonwealth Trust Ltd. at
Somanya for the supply. Nuama agreed to make the supply but only on the condition that the goods were
delivered through the plaintiff who, according to him, assumed responsibility for payment. The sum of
£G200 was paid to him in the presence of Nuama at the premises of Barclay’s Bank at Koforidua and it
was in part-payment of the price of the matches. Nuama was called and he essentially corroborated the story of the plaintiff.
It was a strange story to tell at this stage, and if it is true the wonder is that when the plaintiff was
confronted with an allegation concerning this payment at the reference he did not offer the explanation
that he offered to this court but instead denied all knowledge of it. It is not a story worthy of credence and
I do not believe it.
[p.284] of [1963] 2 GLR 277
I accept as proved the defendant’s allegation that he paid the plaintiff this sum of money towards his
indebtedness to the plaintiff in respect of the transaction that formed the basis of the claim herein, and the
defendant is therefore entitled to a further credit for; £G200.
In conclusion the appeal is dismissed but the judgment of the court below is varied by substituting for the
sum of £G1,361 6s. 11d. the sum of £G353 9s. 3d. for which judgment is accordingly entered for the
plaintiff. Although the defendant did not appeal against the costs awarded in the court below it is only fair that, in
view of the result of the appeal and in the exercise of the powers of this court under rules 31 and 32 of the
Supreme Court Rules, 1962,5 the costs in the court below be reduced by 50 guineas. The record of the
court below shall be amended accordingly.
All sums of money already paid to the plaintiff by the defendant by virtue of the judgment of the court
below and in excess of £G353 9s. 3d. plus £G86 3s. costs shall be refunded immediately to the defendant
who is granted the liberty to levy execution in the court below, if necessary to enforce the due repayment
thereof.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
I agree.
JUDGMENT OF CRABBE J.S.C.
I also agree.
DECISION
Appeal dismissed.
Judgment of the court below varied as to the defendant’s indebtedness to the plaintiff and costs reduced
by 50 guineas.
K.T.
