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JUDGMENT
1. By writ filed on 10th
July 2009, Plaintiff claims from
the Defendant as follows:
“(a). Payment of the sum of
Seventeen Thousand One Hundred
& Sixty Ghana Cedis (GH¢17,160.00)
in addition to the difference
resulting from fluctuation of
the Ghana Cedis against the US
Dollar, being the outstanding
balance of the purchase price of
the 150 KVA FG Wilson Generator
Set purchased by the Defendant
from the Plaintiff.
(b). Interest on the said
sum of Seventeen thousand One
Hundred and Sixty Ghana Cedis (GH¢17,160.00)
from June 30, 2009, to the date
of final payment at the
prevailing commercial rate.
(c). Damages for breach of
the agreement.
(d). Costs”
2. Plaintiff’s case is
that upon the request of the
Defendant, it sometime about
March 2009 contracted to sell to
Defendant one unit of 150KVA FG
Wilson generator at a purchase
price of US$36,000 which upon
Defendant’s further request
Plaintiff supplied and installed
at defendant’s business premises
thereby putting the Defendant in
possession and use of the
equipment.
3. Plaintiff avers that
the Defendant paid the sum of
US$18,000.00 representing 50% of
the total purchase price and
undertook to pay the outstanding
balance in three equal
instalments. In pursuance
thereof, Defendant issued in
Plaintiff’s favour three post
dated cheques of GH¢
8,580.00 each subject to the
Defendant paying any difference
that may result from the
depreciation of the cedi against
the United States dollar.
Defendant’s cheque dated May 31,
2009 was paid upon presentation.
The Defendant unilaterally
stopped payment of the second
cheque when it became due for
payment while the third cheque
still remains unpaid, hence
Plaintiff’s claim.
4. The Defendant has
denied Plaintiff’s Claim. By a
second amended Statement of
Defence and counter claim
pursuant to leave granted by
this court, the Defendant admits
paragraphs 6,7,8 and 9 of the
statement of claim but denies
that it unilaterally stopped
payment of Plaintiff’s cheque
upon presentation. The Defendant
alleged that Plaintiff was in
complete breach of the
obligation to properly and
efficiently install the
generator set and specifically
alleges that Plaintiff failed to
earth the equipment as
stipulated in the technical
operation and maintenance manual
of the generator. The Defendant
has particularised its
allegation of Plaintiff’s
negligence and avers that the
failure by the Plaintiff to
earth the generator resulted in
extensive damage to Defendant’s
printing equipment due to power
surges during operation.
5. The Defendant has
pleaded efforts it made and
expenses it incurred in having
to support the replacement part
of its printing machine and the
loss of use occasioned by the
damage. It has set up a
counterclaim against the
Plaintiff for the following:
“(i). Recovery of the sum of
€9,600.00 being cost of repairs
to power part damaged as a
result of Plaintiff’s failure to
properly install the generator
set.
(ii). Recovery of the sum of
GH¢5,200.00 being shipping cost
paid to DHL and GH¢4,000.00
being cost of installing the
power part and resetting of the
printing machine.
(iii). Damages for loss of
use of machine for two months
being GH¢21,000 for salaries
paid to employees and
GH¢60,000.00 for loss of
business.
(iv). An order on Plaintiff
to pay for and or replace the
power part damaged as a result
of its negligence on the basis
of a restituo in intergrum”.
6. ISSUES FOR TRIAL
The following issues were set
down for trial at the close of
pre-trial conference same having
failed to successfully settle
the dispute between the parties.
“(1) Whether or not Defendant
stopped the cheques issued in
favour of the Plaintiff without
cause?
(2). Whether or not the
Plaintiff properly installed the
generator set?
(3) Whether or not the
Defendant earthed the generator
set at the time of installing
same?
(4) Whether or not failing
to earth the generator set
caused the damage complained
about by the Defendant to the
Defendant’s printing machine?
(5) Whether or not the
Plaintiff was negligent in the
course of installing the
generator set?
(6) Whether or not the
Defendant’s printing machine was
caused by the Plaintiff’s
installation of the generator
set.
(7) Whether or not the
Plaintiff is entitled to its
claim against the Defendant?
(8) Whether or not the
Defendant is entitled to its
counterclaim against the
Plaintiff”.
7. DETERMINATION OF
ISSUES BY THE COURT
The issues set down for
determination in this suit will
no doubt effectively determine
the dispute between the parties.
The law is trite that a party
who asserts a fact assumes the
responsibility of proving same.
The burden of producing evidence
as well as the burden of
persuasion is therefore cast on
that party and the standard
required is provided for by
virtue of sections 10,11 and 12
of the Evidence Act 1975 [NRCD
323). There have over the years
been judicial opinions on the
nature and standard of proof in
civil cases. One of such
decisions is ABABIO V. AKWAS III
[1994-1995] GBR 774 where Aikins
JSC reiterated the position of
Kpegah JA. (as he then was) in
ZABRAMA V. SEGBEDZI. [1991] 2GLR
221. The most recent decision of
the Supreme Court on such burden
on a party who asserts is in the
case of ACKAH V. PERGAH
TRANSPORT LTD & ORS [2010] SCGLR
728 where in unanimously
dismissing an appeal, the
Supreme Court held inter alia as
follows:
“It is a basic principle of
the law on evidence that a party
who bears the burden of proof is
to produce the required evidence
of the facts in issue that has
the quality of credibility short
of which his claim may fail. The
method of producing evidence is
varied and it includes the
testimonies of the party and
material witnesses, admissible
hearsay, documentary and things
(often described as real
evidence), without which the
party might not succeed to
establish the requisite degree
of credibility concerning a fact
in the mind of the court or
tribunal of fact such as a jury.
It is trite law that matters
that are capable of proof must
be proved by producing evidence
so that on all the evidence a
reasonable mind could conclude
that the existence of the fact
is more reasonable than its
non-existence. This is a
requirement of the law on
evidence under sections 10(1)
and (2) and 11(1) and (4) of the
Evidence Act, 1975.(NRCD 323).”
8. The Defendant herein
having set up a counterclaim, it
carries the same burden as the
Plaintiff carries in proof of
its claim as if it were a
Plaintiff for the purposes of
proving its counterclaim.
9. PLAINTIFF’S
EVIDENCE
Plaintiff’s evidence
was adduced through its Managing
Director Samuel Adjei Boateng.
His evidence, consistent with
the Plaintiff’s pleadings is
that, Defendant purchased a
150KVA generator sometime in
2009 at a purchase price of
US$36,000.00 upon payment of
US$18,000.00 representing 50% of
the price. The balance according
to the Plaintiff’s witness was
paid by the Defendant issuing
post dated cheques. One of the
said cheques was paid by the
Defendant’s bank while the
second was dishonoured upon
presentation even before the
last became due for
presentation. According to the
Plaintiff’s witness, the parties
had agreed that any fluctuation
in the cedis/dollar index was to
be paid for by the Defendant
based on the prevailing exchange
rate. The Plaintiff denied
Defendant’s allegation of
negligence in the installation
of the generator which Defendant
alleges had caused him loss of
revenue and expenses in the
importation of replacement part.
The witness testified that the
installation was carried out in
accordance with the
manufacturer’s manual tendered
in evidence as Exhibit ‘A’.
Evidence of the Defendant’s
unpaid cheques totalling
GH¢17,160 was tendered and
marked Exhibits B and B1.
10. On the allegation by the
Defendant that the failure to
connect the generator to an
earth rod resulted in power
surges in the electrical
operation of the generator
affected Defendant’s printing
machine, Plaintiff’s witness
responded by testifying that the
generator was installed in
accordance with the manual
instructions. The witness added
that the absence of a proper
grounding to the generator would
have resulted to damage of the
generator itself and not any
other equipment connected to it.
11. In further denial of the
Defendant’s case and the
counterclaim, Plaintiff’s
witness testified that
Plaintiff’s technicians buried
an earth rod for the generator
adding that the manual of the
generator did not indicate any
number of rods that ought to be
used as asserted by the
Defendant. In further testimony
Plaintiff’s witness denied the
assertion of the Defendant that
the power pack in Defendant’s
printing machine was damaged by
power surges from the generator
adding that since the
Defendant’s equipment also uses
power generated from the
Electricity Company of Ghana any
damage to the Defendant’s
equipment cannot be assumed to
have resulted from the failure
to properly install the
generator.
12. The Plaintiff’s witness
denied Defendant’s counterclaim
in its entirety and in
particular denied the allegation
of negligence made by the
Defendant.
13. Under cross examination
by the Defendant’s counsel,
Plaintiff’s witness stood by his
testimony and again reiterated
that the Defendant’s generator
was professionally installed
without any negligence as
alleged by the Defendant.
14. In further cross
examination, the following
evidence was elicited between
Defendant’s counsel and
Plaintiff’s Managing Director.
“Q: Under the operating
manual of an FG Wilson, it is
specifically provided that, the
equipment has to be grounded to
an earth rod. You are familiar
with that?
A: Yes My Lord I am
familiar with that.
Q: I am putting it to you
that when you sold this
equipment you refused to install
the machine in accordance with
that requirement.
A: My Lord, yes the machine
needs to be grounded as it is
stated but assuming the machine
is not grounded no damage
whatsoever should happen to the
machine that is being powered.
Q: I am putting it to you
that, that is not the correct
position. As far as these
generators are concerned. Now
you will agree with me.
A: Is applied to all
generators. Whether FG Wilson or
not.
Q: You will agree with me
that one of the component of the
generator is an AVR (Alternate
Voltage regulator) you agree
with me?
A: Yes its one of the
component(s).
Q: And the effect of this
AVR is when there is a power
surge is (its) able to regulate
it to remove it from the
generator. Is that correct?
A: That is not correct.
Q: And it stands to reason
that the equipment or the
generator is not earthed and
there is a power surge then it
must find a means of escape?
A: My Lord, this is not
correct.
Q: I am printing it to you
that because you failed or
refused to earth the generator,
during the course of operation
it escaped from this generator
and destroyed the defendant’s
printer.
A: My Lord that is not
correct”.
15. The Plaintiff’s witness
denied in totality all the
allegations of the Defendant
relative to the alleged damage
to the Defendant’s printing
machine said to have resulted
from the failure or refusal to
install the generator properly
as was put to him by Defendant’s
Counsel but insisted that, it
was only when Defendant’s second
cheque became due for payment
that Defendant’s Chief executive
Officer reported that he had a
problem.
16. The second witness
called to testify for the
Plaintiff is one Mr. Sherrie who
is an electrical engineer by
profession and Managing Director
of an electrical company. PW2
who claims he has been an
engineer for (20) twenty years.
His testimony corroborated
largely the evidence of
Plaintiff’s Managing Director
(PW1) in more technical detail.
Testifying on the effect of
failure to earth a generator on
equipment which rely on the
generator for power, the witness
stated
“To the best of my knowledge in
practising practical engineering
if a generator is not earthed,
it does not have any effect on
the equipment being powered.
Rather it has affect on the
generator set”
17. Under cross-examination
by the Defendant’s counsel,
witness said he stood by his
testimony that there will be no
damage to any equipment powered
by a generator which has no
earth grounding adding that only
the generator itself if anything
will suffer damage. In further
testimony the witness answered
under cross-examination by
Defendant’s counsel as follows:
“Q: The purpose of the
grounding is to ensure at all
material times that there is
zero potential. You agree with
me on that?
A: My Lord is
(its) not true.
Q: It is only when it (its)
at zero potential that when
there is an over voltage and you
touch the frame of the generator
you will not get a shock?
A: My Lord it is
not that.
Q: Now the essence of
grounding also serves as s
section part when there is an
earth fault. Is that correct?
A: It is not My
Lord.
Q: I am putting it to you
that the engine of the generator
must also be connected tot he
ground?
A: My Lord, I still stand
by what I am saying that all
imported generators into this
country from everywhere, the
engine is already grounded onto
the canopy……………………”
18. At the conclusion of the
cross-examination of PW2,
Plaintiff closed its
case. At that stage, I made the
following findings. They are
that
(a). Plaintiff’s evidence
adduced through its Managing
Director and PW2 Mr. Sherrie is
consistent with the pleadings of
the Plaintiff.
(b). The testimonies of the
Plaintiff’s witnesses are
admissible, credible and
relevant to the claim of the
Plaintiff and the defence it set
up to the Defendant’s
counterclaim.
19. In his practical
academic work. “Practice and
Procedure in the Trial Courts
and Tribunals of Ghana” Volume 1
paragraph 2010.Brobbey JSC
stated:
“The objects of
cross-examination are two fold.
First, it is to weaken or
nullify the opponent’s case and
secondly, it is to establish
facts which are favourable to
the cross- examiner. In effect
cross examination aims at
testing the accuracy of the
witness’ evidence and at giving
the witness the chance to deal
with the case of the cross-
examiner”
20. As I held in “Re-Notice
of claim Petrostar International
Trading Limited Vrs.
Intercontinental Bank (GH) Ltd
in suit No. BFS/458/08 in my
judgment dated 3rd
May 2011,” the essence of
cross-examination also provides
an opportunity for the
cross-examiner to impeach the
credibility of a witness where
there are sufficient grounds to
do so such as discredited
evidence of previous testimony
or where there is a available
documentary or other evidence to
impeach the qualification,
experience expertise or position
a witness has ascribed to
himself while testifying.
21. After my examination of
the evidence adduced at the
close of the Plaintiff’s case, I
have come to other conclusion
than that, Plaintiff’s testimony
through its witnesses is
credible and sufficiently
discharges the onus on the
Plaintiff based on the
prescribed statutory standard
and established judicial
authorities. I also find that
the Plaintiff has sufficiently
rebutted Defendant’s counter
claim and while considering the
case of the Defendant in defence
of the Plaintiff’s claim, the
onus now shifts wholly on the
Defendant to prove its
counterclaim as if it were a
Plaintiff.
22. The summary of my
findings is that Plaintiff’s
testimony on the claim has not
been contradicted impeached, nor
controverted by the Defendant at
the close of cross-examination.
I also find that, the
Defendant’s case that the
refusal or failure by the
Plaintiff to ground or position
sufficient earth rods resulted
in the consequential damage and
losses to the Defendant’s
printing machine has been
sufficiently rebutted by the
Plaintiff as technically
inconceivable.
23. How then did the
Defendant contest Plaintiff’s
claim and to what extent did
Defendant establish on the
balance its case for the
counterclaim it set up against
the Plaintiff?
24. In ADJETEY AGBOSE & ORS
VRS KOTEY & ORS [2003-2004]
SCGLR 420 Brobbey JSC. described
the position of the Defendant in
defence to a claim as follows:
“A litigant who is a Defendant
in a civil case does not need to
prove anything. The Plaintiff
who took the Defendant to court
has to prove what he claims he
is entitled to from the
Defendant. At the same time, if
the court has to make a
determination of a fact or of an
issue and that determination
depends on evaluation of facts
and evidence, the Defendant must
realise that the determination
cannot be made on nothing. If
the Defendant desires the
determination to be made in his
favour then he has a duty to
help his own cause or case by
adducing before the court such
facts or evidence that will
induce the determination to be
made in his favour”
25. DEFENDANT’S
EVIDENCE
The evidence of the Defendant
was first adduced through the
Defendant’s Managing Director
Kwaku Ewusi Mensah. I shall deal
with the evaluation of his
testimony in the fullest detail
because his testimony will form
the basis for the evaluation of
some aspects of the defence set
up in this suit and in
substantiating the counterclaim.
26. The Defendant’s Managing
Director testified as follows:
That earlier about (4) four
years prior to the instant suit,
he purchased a 150 KVA generator
from the Plaintiff which did not
satisfactorily serve the purpose
for which it was intended.
Sometime in March 2009 he
purchased a 150 KVA generator
from the Plaintiff Company at a
price of US$36,000.00 to
compliment power from the ECG.
27. The witness testified
that during operation the
printing equipment went off and
when it occurred the second
time, he called an engineer who
discovered that it was a fuse
problem which was replaced.
However, when it occurred the
third time, it took the engineer
sometime to detect the problem
which eventually had to be
referred to Germany for the
power board for the printing
machine to be repaired by fixing
replacement parts.
28. The witness further
testified that the Defendant
spent GH¢1,200 each time the
power board had to be flown to
Germany and that when enquires
were made from Germany about the
constant malfunctioning of the
printing machine, same was
attributed to power surges which
was associated with the
generator set Plaintiff
supplied. It was alleged that
the generator set was
discharging voltages higher than
usual and this was associated
with the Plaintiff’s failure or
refusal to provide sufficient
grounding of earth rods for the
stability of power generated
from the generator set.
29. Defendant’s 1st
witness testified that the local
engineer did same repairs on the
printing machine and was paid
GH¢4,500 for the work and as
evidence DW4 tendered Exhibits
1,2, and 3 which were invoices
for the repair works. In further
testimony, DW1 tendered Exhibit
5 which is an e-mail
correspondence print out to
verify payment of the sum of
€7,219 said to have been paid to
a company called “THOSCO,” which
supplied parts of the
Defendant’s printing machine
alleged to have been damaged by
the power surges from the
Plaintiff’s installed generator
set.
30. The DWI further
testified that the Defendant had
to pay two months salary for
unproductive work at GH¢10,500
for each month the printing
machine remained unrepaired and
unused and in proof of same
tendered computer generated
print outs admitted in evidence
as Exhibit 6.
31. In further testimony,
DW1 stated that he called the
Plaintiff’s Managing Director
and told him about the problem
who then sent one of his staff
to install one earth rod as for
the generator set. Crucially,
DW1 further testified that staff
of the ECG had work to do in the
area and had to draw his
attention to the fact that the
earthing was poor. Resulting
from that advice from the ECG
staff, they then dug more than 6
feet and added 8 more rods to
the one installed by the
Plaintiff’s workmen.
32. DW1 further testified
that Thosco had sent to
Defendant a proforma invoice for
the power park which had to be
replaced on the Defendant’s
printer in the sum of €4,842.00.
He further said in evidence that
as a consequential effect of the
fault, machine which he
attributes o Plaintiff’s
negligence, the Defendant has
lost business profit in the sum
of about GH¢60,000.00 from a
business contract Defendant had
won from Vodafone.
33. DW1 justifies the
Defendant’s failure to pay the
outstanding balance of the
purchase price of the generator
set when in answer to a question
under examination in Chief he
said:
“And so based on that,
stopped the cheque. As a matter
of fact, called him before the
first cheque for the three month
instalment went through and
realised he is still buying
time. He bought time for the
first one to go through, the
second one too he was trying to
delay for all the cheques to
clear so l immediately stopped
it.”
34. To another question
under examination in chief as
follows:
“Plaintiff also says in his
paragraph 7 of his reply and
defence to counterclaim that he
had supplied you with a
generator set which has operated
uninterrupted for three years
what do you say to that?
DW1 answered as follows:
“Yes it is true he actually
supplied a generator set which
operated for three years. I must
also say that the generator was
not earthed but with all these
three years we had machines that
were semi electronic and with
semi electronics they are not
too sensitive till we bought the
machine that got blown but all
these three years we actually
had little problems but the
unfortunate thing is that
anytime there is a problem with
semi electronic machine it is
very easy and less expensive to
actually fix it...........”
35. That sums up the
evidence of the Defendant’s
Managing Director in both
defence and proof of the
counterclaim. Under
cross-examination by Plaintiff’s
counsel, DW1 testified that the
generator in issue was
commissioned in March 2009 and
as of the date he testified the
equipment was operating without
any problem. A crucial part of
the testimony by the DW1 during
cross-examination was elicited
then in answer to questions by
Plaintiff’s counsel the
following evidence was adduced.
“Q: Now did you also tell
them that you used other sources
of power?
A: My Lord, at that
particular time in question they
asked me what source of power
were we using and l told them we
were using Genset.
Q: I am asking whether you
told them whether you use other
sources of power?
A: Yes My Lord, they are
aware we use other sources of
power
........................................................
Q: Did you tell them you
experienced frequent outages of
electric power in respect of
ECG?
A: My Lord, that question
did not come up at all.
Q: It did not come up at
all?
A: Yes My Lord.
Q: I am suggesting to you
that the diagnoses on the
generator plant was pure
conjecture.
A: My Lord, I do not agree
with your suggestion”.
36. Now given the fact that
Defendant acquired the generator
set as an alternative power
source for its printing machine
which logically inferred, meant
that Defendant’s ECG power
supply was at all material times
unstable, it would have served a
better purpose for the case of
the Defendant if the possibility
of the damage to the power part
of its printing equipment by
unannounced power outages by ECG
was eliminated by the Defendant
adducing relevant admissible
evidence which points to one and
only one cause of the damage,
that is to say, it resulted from
the generator set only.
Throughout the trial, Defendant
did not find it necessary to
call at least one person from
those ECG staff who discovered
that the Plaintiff had not
installed the generator properly
and were therefore contracted to
rectify the alleged fault. This
omission is fatal and it created
a vacuum on the quality of
evidence Defendant needed to
adduce in defence of the
Plaintiff’s claim and in proof
of its counterclaim. In my view
therefore, the failure by the
Defendant to call those material
witnesses who first discovered
the alleged improper
installation of the generator
set did not assist the Defendant
in its defence and counterclaim.
See OWUSU V. TABIRI [1987-88] 1
GLR 287. Given the nature of the
defence set up by the Defendant,
it had a duty to adduce evidence
to prove that the power surges
which allegedly damaged its
printing machine came from no
other source than the generator
supplied and installed by the
Plaintiff.
37. This the Defendant
omitted to do and it is no
wonder during cross-examination
the Plaintiff’s Counsel
suggested to DW1 that the claim
by Thosco who did not examine
the installation but while in
Germany concluded that the fault
and consequential damage arose
form the absence of proper
earthing of the generator was
mere conjecture.
38. I cannot but agree more
with counsel for the Plaintiff
there being no independent
verification of the
investigation by Thosco before
they arrived at their
conclusion. Further, in the
absence of any scientific data
on the stability of power
supplied by the ECG whenever
their main source of power was
unavailable, that conclusion was
based on mere convenient
conjecture. From the evidence of
DW1, some personnel of ECG
discovered the fault. They were
later contracted and they
consequently installed 8 rods
according to DW1. Not one of
these ECG personnel was called
to testify for the Defendant.
39. Before I make a
pronouncement on the
determination of any of the
issues thus far, I shall deal
with the evidence of DW2 Bright
Ofosu Ansah an employee of Volta
River Authority and Ohenesi Kofi
Ampaw DW3 an employee of
Electricity Company of Ghana
both of whom testified for the
Defendant and who by profession
are electrical engineers.
40. From their testimonies,
none of them had inspected the
generator set in issue and none
of them especially the DW3 who
is an electrical engineer from
ECG found it necessary to make
enquiries from the staff of ECG
who were said to have first
discovered the improper
installation of the generator
set.
41. There is however
something peculiar about the
circumstances under which DW2
and DW3 attended the trial to
testify for the Defendant. By
some processes of subpoena the
two witnesses were summoned to
appear and testify for the
Defendant. Both witnesses
admitted during
cross-examination that they were
not authorised to testify on
behalf of their respective
organisations which explains why
the Defendant chose to direct
the subpoenas at the respective
witnesses in their personal
capacities and not official
capacities as may be confusingly
assumed by a casual examination
of the subpoena processes.
42. The testimonies of DW2
and DW3 therefore did not
represent the technical views of
those organisations a situation
which has again resulted in the
Defendant’s failure to have the
benefit of testimony of the
Electricity Company of Ghana who
needed to be isolated and as the
unlikely cause of the damage
Defendant has alleged was
occasioned by the Plaintiff’s
failure to properly install the
generator set in issue.
43. In that regard,
Defendant failed to adduce
relevant crucial evidence as I
have earlier found on the
detection and rectification of
the alleged fault by workers of
the Electricity Company of
Ghana. The situation which was
not remedied by the Defendant
throughout the trial did not
help the Defendant’s case.
44. The testimonies of DW2
and DW3 therefore, given the
circumstances of their
appearance to testify did not
attract in my view any credible
probative value more than the
value it would have been
ascribed if they had not
testified as mere friends and
allies of the Defendant’s
Managing Director but as
witnesses who testified for the
institutions they work for.
45. Indeed in the case of
DW3, the circumstances of his
attendance to testify became an
issue which necessitated the
order to attend the trial of the
Director of legal of the
Electricity Company of Ghana
with the consent of counsel for
the parties. The total effect of
the evidence adduced through the
court witness was that DW3
attended the trial on his own
without authorisation by the ECG
to appear and testify on their
behalf. The testimonies of DW2
and DW3 therefore lacked the
technical institutional opinion
of the two companies engaged in
the generation and supply of
electrical power. Their evidence
therefore was their personal
technical views of the issue
between Plaintiff and the
Defendant. Their evidence
essentially contradicted the
evidence of PW2 but at the same
time collectively inconsistent
with the operating details
contained in the generator
manual Exhibit ‘A’ which both
DW2 and DW3 have admitted during
cross-examination they had not
seen nor examined.
46. At the close of the
testimonies by the Plaintiff and
DW1 to DW3, I have no difficulty
in resolving the first issue set
down for determination in the
Plaintiff’s favour and hereby
find that Defendant stopped the
cheques issued to Plaintiff
without cause. Defendant’s main
reason for stopping the cheques
was that Plaintiff had failed to
discharge its duty of care by
failing to properly install the
generator set Defendant
purchased from Plaintiff. Since
the Plaintiff is the defendant
in the counterclaim, it is the
Defendant who carries the burden
of proof and not the Plaintiff
which has no duty to prove the
negative. As I have found, the
evidence of DW1 to DW3 failed to
isolate on the balance of all
the probabilities that, it is
the Plaintiff’s generator set
which was improperly installed
which damaged the Defendants
printing equipment resulting in
the consequential losses
occasioned by the faulty machine
and which losses forms the basis
of Defendant’s counterclaim for
all consequential losses
allegedly incurred.
47. Before arriving at this
conclusion I have thoroughly
examined the evidence of DW4 and
DW5. While the evidence of DW4,
appears to me truthful and
credible, I find that the
witness added nothing useful to
substantiate the allegations of
negligence set up by the
Defendant against the Plaintiff.
The evidence of DW5 however
caused more damage to
Defendant’s case than assist it.
As it emerged, DW5’s testimony
turned out to be conjecture,
technically deficient and in my
opinion rehearsed and not
consistent with the evidence of
DW4.
48. Joseph Nii Armah DW4 is
an engineer with commendable
qualification and training on FG
Wilson generators and states
that his company SMICE
INTERNATIONAL have an agreement
with the F G Wilson generator
manufacturers as sole
distributors in a dealership
agreement. While under
cross-examination by Plaintiff’s
counsel, this evidence was
elicited from DW4.
“Q: So if there is over
voltage in this particular
genset the genset will not stop.
A: With the generator set
in question yes, if there is
voltage without earth the
generator set will not stop.
Q: And it will cause damage
to the owners premises, Is that
what you are saying?
A: My lord if there is no
earth then it is possible.
Q: It will damage all the
equipment of the owner?
A: My Lord there are
different equipments and they
operate on different conditions.
So some may still be on while
some may go off because with
electronic gadgets, some are
even designed to leak current
through the earth..............”
Q: Now please tell us if
this generator is not grounded
what happens itself?
A: My Lord, if the
generator is not grounded what
happens is that it is running
and there is a surge, what will
happen is that normally when
there is a surge the current
goes through the earth line
back into the generator and
retrieves the breaker on the
generator. The tank does not
flow. It is then cut off from
the customer’s premises.
Q: What is the effect on
the generator itself you talked
about the breaking so it does
not affect the customer, what
happens to the generator?
A: When there is no
grounding, there is no effect on
the generator. It will run
alright”
49. It is clear from the
testimony of DW4 that he could
not isolate the potential cause
of damage alleged to have been
caused to the Defendant’s
printing machine and limited
same to an improper installation
of the generator set by not
grounding same to earth. His
testimony was in general and
speculative terms which offered
the Defendant no probative value
sufficient to assist the
Defendant to discharge its
burden in proving its
counterclaim. The Defendant’s
counterclaim having been
grounded on this court’s having
to find that the Plaintiff
failed to properly install the
generator Defendant purchased
that testimony did not assist
the Defendant’s case. There
being no evidence to
substantiate Defendant’s
allegations, I shall resolve
issue 2 set down for trial in
Plaintiff’s favour and hold that
from the evidence, Plaintiff
discharged its duty of care to
Defendant and had properly
installed the generator set.
50. In my view, issues 3, 4,
5 and 6 are merely consequential
to the determination of issue 2
which is the crucial issue
between the parties at this
trial since the Defendant’s
defence and counterclaim is
based on damage it claims to
have suffered resulting from the
absence of proper earthing by
the Plaintiff. The evidence of
DW4 who is Defendant’s own
witness and for that matter DW1
to DW3 could not isolate non
earthing as the direct possible
cause of damage to the
Defendant’s printing equipment
and it is on the totality of the
evidence of the Plaintiff and
that of the Defendant that I
will dismiss the Defendant’s
counterclaim and same is hereby
dismissed in its entirety.
THE EVIDENCE OF
DW5
51. At its own choice, the
Defendant called on Samuel
Ankrah to testify on its behalf.
The witness described himself as
an electrical engineer who
renders service on the
Defendant’s printing machine. He
gave an account of his having to
render service to the
Defendant’s printing machine
where he had cause to change
some fuses. He also attributed
some problems he claimed to have
discovered on the Defendant’s
printing machine as resulting
from the lack of proper earthing
of the generator set used by the
Defendant to power the printing
machine. When this witness who
from my observation of his
demeanour appeared clearly to
have rehearsed his evidence by
merely throwing in the
proposition that the high
voltage said to have been
discovered on the printing
machine was a result of
non-earthing of the generator
was asked:
“Q: Are you
familiar with the operation of a
generator set?
He answered
A: No please
Q: Do you know
how gensets are installed?
A: No please”
52. When I compare the
evidence in chief of DW5 to the
testimony of DW4 under
cross-examination, there emerges
an obvious inconsistency in the
Defendant’s case in that,
whereas DW5 attributed the
alleged damage to the
Defendant’s printing machine to
the absence of grounding or
earthing of the generator set
installed by the Plaintiff, DW4
who is an electrical engineer
and whose company holds a
distributorship agreement with
F.G. Wilson, manufacturers of
the generator set in issue
answered to questions under
cross examination as follows:
“Q. Did you say that if a
genset is not grounded it will
cause over voltage?
DW4 answered
A. My Lord that
is not what I said”.
53. But that is exactly what
DW5 said in his testimony. From
the qualifications of DW4 and
DW5, I would have thought that
DW5 is at best a technician and
not an electrical engineer as he
has described himself and in
terms of expertise therefore, I
will attach more weight to the
testimony of DW4 on the issue
than that of DW5.
54. As correctly stated by
counsel for the Plaintiff in his
written address the evidence of
DW4, denying that the absence of
grounding or earthing could
cause high voltage through power
surges is more consistent with
the case of the Plaintiff. And,
I have stated earlier, the
Plaintiff short of denying the
Defendant’s assertions to that
effect, had nothing to prove
since it is the Defendant who
carries the burden of proving
what it asserts as far as the
proof of that assertion and
issue is concerned. The
principle in ZABRAMA VRS
SEGBEDZI (supra) is hereby
applied.
55. It is also pertinent to
state that the testimony of DW4,
relative to the effect of non
earthing or non grounding is
manifestly inconsistent with the
testimonies of DW1, DW2 and DW3.
However DW4’s testimony
corroborated the testimonies of
PW1 and PW2. The law as stated
in the case of BANAHENE VRS.
ADINKRA [1976] 1 GLR 346 is that
“Where the evidence of one
party on an issue in a suit was
corroborated by a witness of his
opponent, whilst that of his
opponent on the same issue
remained uncorroborated even by
his own witness, a court ought
not to accept the uncorroborated
version in preference to the
corroborated one unless for some
good reason (which must appear
on the face of the judgment) the
court found the corroborated
version incredible or
impossible”.
This principle of law
has been cited with approval by
the Supreme Court in MANU VRS.
NSIAH [2000-2006] SC GLR 25
particularly at page 33 and it
is for all the reasons earlier
set out in this judgment that I
dismissed Defendant’s
counterclaim.
56. I am guided and bound by
the Supreme Court’s decision in
the case of GUINESS GHANA LTD
VRS. RAFSCO DISTRIBUTING LTD
[2007-2008] SCGLR 151 where it
was held that.
“The drawer of a cheque or any
other bill of exchange
undertakes that, on due
presentation for payment, the
instrument will be paid.
Accordingly, if the drawer of a
cheque countermands it, a cause
of action arises against him or
her on his undertaking. This is
particularly so when the payee
having given consideration for
the cheque, is a holder for
value."
On the strength of this
authority and the totality of
the evidence, before me, I find
for the Plaintiff and hereby
enter judgment in its favour for
the reliefs endorsed in the writ
as follows:
1. An order for recovery
of the sum of GH¢17,160.00 being
the outstanding balance on the
150 KVA FG. Wilson generator set
purchased by the Defendant and
installed by the Plaintiff for
the Defendant’s use.
2. There shall be interest
at the prevailing commercial
bank interest rate from June 30,
2009, till date of final
payment.
3. Since the claim for
damages for breach of agreement
is in the nature of general
damages and the Plaintiff having
been sufficiently compensated by
the award of interest on the
principal sum of GH¢17,160.00
the claim for damages for breach
of agreement ought to be
refused and is hereby
dismissed.
The costs of this action is
hereby assessed at GH¢5,000.00
in
favour of the Plaintiff.
(SGD.)
JUSTICE
I. O. TANKO AMADU
JUSTICE
OF THE HIGH COURT
Emmanuel Amofa Esq.
(For Plaintiff)
Barima Manu Esq.
(For Defendant) |
