Swiss african trading co. ltd v. Aning (GLR 108-112) [1962] GHASC 1 (19 February 1962);
SWISS AFRICAN TRADING CO. LTD v. ANING [1962] 1 GLR 108-112
IN THE SUPREME COURT
19TH FEBRUARY, 1962
KORSAH, C.J., ADUMUA-BOSSMAN AND CRABBE, JJ.S.C.
Accounts—Claim for balance of price for goods sold and delivered to the defendant—Appointment of referee—Whether conclusions of referee justified—Whether court unjustified in accepting them.
HEADNOTES
The defendant, an ordinary credit customer of the plaintiffs (appellants herein) was encouraged by them to make prompt payment for the supply of goods, in which case his trading account with the plaintiffs would be credited with a commission of five per cent, discount on the value of the goods supplied. The plaintiffs claimed for the balance owing to them for goods supplied to the defendant. They contended that the defendant had not been able on all occasions to pay promptly for the supplies and was therefore not entitled to claim commission on those occasions when his account had to be debited with their full value. The defendant maintained that on every occasion he had paid promptly for the goods at the time of supply, and that he was therefore entitled to the said commission.
[p.109]
The court appointed a referee to investigate and report on the state of accounts between the parties, and his report, when presented was accepted by the court which then dismissed the plaintiffs' claim. Counsel for the plaintiffs-appellants challenged the report on the ground that the referee had completely misunderstood the issue for determination, he had, inter alia, accepted only such debit notes under which supplies were made to the defendant as the defendant himself was prepared to agree to and had rejected the majority of the said debit notes in toto.
Held:
(1) the referee's findings could not be supported because (a) he had not understood the issue for determination which was simply to decide which of the contradictory cases was the true one, and then to decide on the state of accounts between the parties;
(b) he did not appreciate the relevancy and significance of the statements of accounts tendered in evidence and wrongly excluded crucial and decisive evidence basing his decision on only those proved debits to which both parties agreed.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Acolatse, J. delivered on the 26th April, 1960 in the High Court, Accra (unreported), dismissing a claim by the plaintiffs-appellants for the balance of an account owing to them for goods supplied to the defendant-respondent. The facts are set out in the judgment of the Supreme Court.
COUNSEL
A.W. Acquaah for the appellants.
G.S. Lassey for the respondent.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
This appeal is against a judgment dated the 26th April, 1960, given by Acolatse, J., whereby he dismissed the claim of the plaintiffs-appellants (hereinafter referred to shortly as the plaintiffs) for the sum of £G244 12s. 1d. being the balance of an account for price of goods sold and delivered to the defendant-respondent (hereinafter referred to as the defendant) but upheld the defendant's counterclaim for the sum of £G1,300 being the amount of commission earned by him as a credit customer of the plaintiffs during the period January, 1956, to November, 1958, inclusive. The learned judge in coming to the conclusion above indicated, adopted the report of a referee appointed to investigate and report on the state of the accounts between the said parties. The said referee reported that the plaintiffs' claim was not proved or substantiated, and this report, although challenged on the ground that it did not deserve to be adopted, the learned judge nevertheless, without any scrutiny of it, accepted completely. The questions now raised in this appeal are whether the referee was justified in his conclusions, and the learned judge in adopting them.
The defendant was an ordinary credit customer of the plaintiffs during the period January 1956 to November 1958 aforementioned. By way of encouraging him to make prompt payment for goods supplied to him, it was agreed that if upon his obtaining any supply of goods he paid the price or value of same forthwith, then he became entitled to a commission of five per cent on the value of the supply to be credited to his trading account with the plaintiffs; if however he was unable to pay at once for the supply but had to take them away to sell before returning in due course to pay for them, then he became liable to have his accounts debited with the full value of that particular supply taken away on credit.
It was the plaintiffs' case at the trial that in accordance with that general system, the defendant applied for and was supplied with goods for which he paid and thereby became entitled to commission on their [p.110] value on certain occasions, but on other occasions he was not able to pay for supplies and his accounts had to be debited with the full values of the supplies; that periodically the accounts were made up and balance struck and the defendant was supplied with copies of such statements and even made to sign the account stated on some occasions. On the other hand, the defendant contended that he never on any single occasion took goods away on credit but paid forthwith at the time of supply for every such supply, and has all the time been accumulating the commission due in respect of every payment. The straight-forward issue for determination therefore was which of the contradictory cases was the true one, and in the light of that which might be found to be the true position, what is the state of the accounts between the parties.
The plaintiffs in conformity with their case, originally filed a short statement of account (No. 1239 dated the 30th September, 1959) which, commencing with a balance of £G204 18s. 5d. brought over from the 31st October, 1958, took into account supplies as per various debit notes, as well as various payments on account as per several receipts during the month of November, 1958, and showed the debit balance of £G244 12s.1d. for which the writ was issued. Subsequently however, following an order upon them to file a more detailed statement of account having regard to the defendant's counterclaim and the allegations in his affidavit in support of application for leave to defend the claim which was placed on the undefended list, the plaintiffs fled the rather more elaborate statement of account covering the period February, 1956, to April, 1957, which was admitted as exhibit B before the refereeafter the statement of account for November 1958, already referred to, had been admitted as exhibit A. The statement of account exhibit B, which bore out the plaintiffs' version of the transaction, showing in many instances immediate and instant payment for supplies of goods, but on many. more instances non-payment or rather delivery and/or receipt on credit, showed a debit balance of £G299 2s. 7d. against the defendant, and this balance as appearing in the ledger, purports to be signed by the defendant. The plaintiffs produced and tendered as exhibit C another detailed statement of account covering the period the 12th April, 1957, to the 30th November, 1958, inclusive, showing the balance of £G244 12s.1d. claimed in the writ. This statement of account (exhibit C) also bore out the plaintiffs' version of the transaction between the parties, showing as it does many instances of instant and prompt payment for supplies received, but many more instances of non-payment or rather receipt on credit, including one significant instance of payment for a supply by cheque for the sum of £G42 on the 11th October, 1957, which cheque, however, came in due course to be dishonoured on presentation.
The defendant on the other hand filed a statement of account showing every payment which he made during the period January, 1956, to November, 1958, which statement, however, gave no indication whatsoever as to the supplies in respect of which the individual payments shown were made and, more important, the dates when the respective supplies were received by him. The statement of account was therefore substantially valueless in assisting to resolve the issue before the court, because it seems clear that it is only if he succeeded in showing that each payment shown in his statement was in respect of a supply on the exact date of the payment as per the copies of debit notes which must have been issued to him together with each of goods, that he would have succeeded in establishing his version of the transaction.
[p.111]
At the investigation of the accounts when, as I have already indicated, the plaintiffs' statements of account decisively supported their version of the actual business done and at the same time discredited the defendant's version that he paid instantly for every supply of goods made to him, the referee, instead of giving due and fair consideration to the said accounts tendered before him, particularly exhibit B which bore the defendant's signature, rather improperly ordered proprio motu that the plaintiffs should produce all the debit notes under which all supplies were made to the defendant during the material period. The plaintiffs complied with this exacting demand and produced the debit notes, admitted as exhibits FlF276 inclusive, and the referee then proceeded to accept only such as the defendant was pleased to agree to but rejected all the rest, 'without even taking the trouble to get th se rejected ones marked for consideration in due course by the court when his report came to be considered. The result of this wholesale rejection of the greater majority of the debit notes was that in the referee's own words in his report:
"The total debits, as per exhibits B, C and D are £G47,497 11s. 10d. Total credits are £G47,267 9s. 9d. This shows a debit balance of £G230 2s. 1d., which agrees with the final balance on exhibit C. If the cost of this action £G5 10s. (wrongly debited) is deducted from £G230 2s. 1d., we arrive at £G224 12s. 1d. which is the subject of the claim. The proved debit notes with which both sides agreed, however, totalled only £G15,239 3s. 4d."
He proceeded to argue that:
"Agreed credits are £G47,267 9s.9d. (which includes the commission of £G13,373 19s.11d.)
For the moment, therefore, it is regrettable that the company (plaintiffs) are unable to support their claim with full documentary evidence, and the same fails. The defendant, however, with the assistance of the plaintiffs' own statements of claim, proves beyond doubt that apart from the fact that he does not owe the company, his commission has been wrongly withheld."
In my opinion, a more fallacious and illogical reasoning than the above can scarcely be found. How the defendant, to whom the plaintiffs have supplied no more than a total of £G15,239 3s. 4d. worth of merchandise according to the finding of the referee, could have gone on during the material period to make a total payment of £G47,267 9s. 9d. again according to the referee's finding, baffles the imagination, and seems only to expose the sheer absurdity of the referee's conclusions which unfortunately the learned judge adopted without adequate scrutiny.
The referee's findings adopted by the learned judge cannot be supported because, firstly, he did not appear to have appreciated the respective cases of the parties and the issue which was really outstanding for consideration and determination, namely, whether as alleged by the plaintiffs, the defendant very often took goods out on credit so that he did not become entitled to commission in those instances, or whether as the defendant alleged, he paid for every single supply of goods. It was essential to appreciate and understand this issue in order to understand the accounts. Secondly, he did not appear to appreciate the relevancy and significance of the statements of accounts tendered in evidence to the issue outstanding for trial, and therefore wrongly disregarded the statements of account and proceeded to base his decision only on those of the debit notes which he referred to as "proved debit notes to which parties agreed". The statements of account were crucial and decisive of evidence (for example, exhibit B which purported to bear the defendant's signature), and their exclusion constituted a very grave defect in the trial. Thirdly, even in the matter of the debit notes which he appears to have considered as the only [p.112] material evidence for the determination of the accounts, he wrongly rejected by far the greater number of debit notes. Fourthly, his consideration of the accounts was hopelessly amateurish, if not childish, particularly the way which he accepted the absurd statement showing simply all the defendant's payments but nothing else beside, and held that the mere filing of it proved the defendant's claim.
The appeal must therefore be allowed and the judgment based on the referee's findings set aside. The action is hereby remitted to the court below to be tried de novo by another judge who is hereby directed to note the issue for determination, as hereinbefore explained, and to have regard to the statements exhibits B, C and D and such debit notes as may be produced before him at the retrial, and in the light of all the evidence determine the respective claims of the parties.
JUDGMENT OF KORSAH C.J.
I agree.
JUDGMENT OF CRABBE J.S.C.
I also agree.
DECISION
Appeal allowed.
Re-trial ordered.
ACCOUNTS - Referee – Conclusions -
