|
J U D G M E N T
ANSAH, J.S.C.:
The plaintiff sued the defendant
for the following remedies:
“(1) The return of
its piling hammer and
accompanying accessories;
(2)
Payment of accrued charges for
hiring the said hammer;
(3)
Damages for breach of contract;
(4)
Damages for wrongful detention
of the hammer;
(5)
Damages for failing to pay for
using the hammer;
(6)
Damages for wrongfully to return
the hammer (sic);
(7)
Massive profit and interest”;
The gist of the case for the
plaintiff was that it agreed to
give its piling hammer and an
Audi saloon car in exchange of
the defendant’s Toyota Hilux
pick-up and crushing machine.
Whereas it honoured its
obligation and delivered the
equipment to the defendant, the
latter failed to deliver the
crushing machine to the
plaintiff. The plaintiff
thereafter wrote to levy charges
for the use of the piling
hammer.
On the other hand,
the defendant denied there was
any agreement to hire the
equipment and asserted it was
only an agreement to swap them
for each other. The defendant
therefore denied liability and
rejected invoices the plaintiff
submitted for payment, for the
reason that it made the piling
hammer available for collection
by the plaintiff, but it
(plaintiff) refused or failed to
go for it.
The trial judge
found in his judgment there was
a contract of hiring equipment
by the parties which, the
defendant breached and proceeded
to award damages for the
plaintiff. He also ordered the
defendant to deliver the piling
hammer to the plaintiff at its
premises or pay for the cost of
the plaintiff retrieving it
itself, awarded $300.00 (or its
equivalent) per day chargeable
from 18th December
1993 to date of judgment as
damages, which sum was to
attract interest.
Dissatisfied with
this judgment, the defendant
appealed against it to the Court
of Appeal on as many as nine
grounds. The Court allowed the
appeal in part and awarded
damages for the cedi equivalent
of $890,411 for the plaintiff.
Once again, the
defendant felt aggrieved by the
judgment of the Court of Appeal
and appealed to this court on
the grounds that:
“(1) The conclusion that the
appellant breached the swap
agreement is wrong and not
supported by the evidence as the
court failed to consider
evidence on record of the
delivery of the piling hammer to
the respondent.
(2)
Damages awarded against the
Appellant are speculative and
excessive and cannot be
supported by the evidence on
record in that:
(a)
The court misdirected itself
when it based its award of
damages on the alleged hiring
fees of the piling hammer
although the court’s finding was
that the alleged breach for
which plaintiff is to be
compensated was in connection
with the crushing plant.
(b)
The court misdirected itself by
awarding damages in favour of
the respondent although the
respondent had provided no
factual basis for the award of
the exact sum of $890,411.00 or
at all.
(3)
The general damages awarded was
unreasonable in that the Court
assumed that the piling hammer
would work non-stop day in day
out from the swap to the date of
judgment without days of
maintenance and without ‘no
work’ days or a life span.
(4)
The court misdirected itself by
assuming that since an appeal is
a re-hearing it could substitute
or award damages, although there
were no facts upon which such
damages could be based.
(5)
Further grounds to be filed upon
receipt of the record of
proceedings.”
No such additional grounds have
been filed thus far.
A summary of the submission in
support of grounds of appeal
revealed they resolved
themselves into the following
questions, namely,
(1)
Whether or not the piling hammer
was delivered to the respondent?
(2) If there was non-delivery of
the item, how much damages the
respondent was entitled
thereto?
(3) Whether the damages awarded
the respondent was justified?
An appeal to the Court was by
way of a re-hearing and the
court had the power to make its
own findings of facts where the
trial court failed to do so: see
Tuakwa v Bosom
[2001-2002] SCGLR 61 at 65 per
Sophia Akuffo JSC. The trial
judge failed to make any
definite findings on the
delivery or otherwise of the
piling hammer by the defendant
to the plaintiff.
The Court of Appeal
considered the evidence and made
a finding of fact that there was
an agreement by the parties to
swap equipment; thus reversing
the finding of the trial court
that there was a contract of
hiring of equipment by the
parties. There could be no doubt
that the evidence on record
supported the Court of Appeal on
this finding. This court
therefore has no good reason to
reverse the finding by the Court
of Appeal on this and would
therefore affirm that decision.
The Court of Appeal
went further to find that the
defendant breached the swap
agreement by failing to deliver
the piling hammer to the
plaintiff. Delivering the
judgment of the court, the
learned Akoto-Bamfo JA said:
“It is not in doubt that there
was a swap agreement under which
the plaintiff was to give the
piling hammer to the defendant
who was in turn to give the
plaintiff the crushing plant;
that the plaintiff performed
under the contract but that the
defendant did not give the
crushing plant to the plaintiff
and therefore committed a breach
of the agreement is beyond
question.”
The appellant has
sought to question the rightness
of this holding. In law, to
deliver a thing is to formally
transfer or yield possession
thereof to another. It may be
done actually, by which the
thing is handed over to another
by changing hands; or,
constructively, that is, put at
another specified place or
placed at the disposal of
another person; or, by granting
reasonable and unimpeded access
to the property in question.
Whether or not the defendant
delivered the piling hammer was
a question of mixed law and
fact. It must be recognized
that the parties were free to
agree one way or the other on
the mode and place to deliver
the property. In the absence of
any express agreement, the mode
of delivery could be inferred
from circumstances surrounding a
particular case. In the instant
case, the defendant asserted it
did deliver the plant to the
plaintiff and thereby assumed
the burden of proving on the
balance of probabilities that it
did.
Even though there was no
evidence of a written or oral
agreement in this transaction,
that was not fatal for the
evidence must be read as a whole
to assist in coming to a
conclusion one way or the other.
Thus the plaintiff tendered
exhibit K, dated 24 February
1994, and which emanated from
the plaintiff company to the
general manager of the defendant
company. It bore some relevance
on the issue as it said inter
alia:
“We refer to the arrangement you
had with our managing director
for making available for your
use an Audi Saloon car and a DE
30C Diesel Hammer and request
for a Toyota Hilux Pick-up (4x4)
and a mobile crushing plant from
your company for use on our
construction sites… It was
anticipated that on your taking
delivery of the diesel pile
hammer you would hand over a
mobile crushing plant to us.
You have been in possession of
this hammer for some time now
and would be grateful if you
could provide us the crushing
plant to enable us start
producing our own aggregate for
our concrete works remaining for
the Phase I as well as Phase II
of the Fumbisi Valley Project.”
The P.W.1, was D.K. Ofori Atta.
He said in his evidence that the
plaintiff wrote to the defendant
to request the crushing plant to
be sent to it and under
cross-examination admitted the
defendant made the Toyota Hilux
Pick-up available to the
plaintiff and they also gave the
Audi saloon car to the
defendant.
Exhibit 2 dated 2
June 1997 which was tendered in
evidence by the defendant and
accepted without objection, also
stated inter alia, that:
“M & J offered the crushing
plant to Danielli as part of the
hammer/pick-up arrangement (see
attached confirmation letter
from Danielli)… Danielli were to
collect the crusher from the
Damango site just as we had to
collect the hammer from the
Danielli site in Accra…
Danielli never picked up the
crusher even though we reminded
him every time we saw him. The
crushing plant is in a fully
working and serviceable
condition ready for collection,
ie as of now.”
The defendant
company led oral evidence
through its General Manager, Mr
Francis Ronald Cooper, that the
defendant made the mobile piling
hammer available since 1984 but
it was yet to be collected
whereas the defendant collected
the Toyota Pick-up early 1984.
The totality of the
evidence showed that, by their
conduct and practice, the
parties had a common pool from
which each would go and collect
the equipment it needed.
Further, after the defendant had
had the piling hammer, it would
hand over the crushing plant to
the plaintiff. In accordance
with the practice between the
parties, the plaintiff was
expected to go for the piling
hammer from the defendant’s site
in Accra just as the defendant
went for the crushing plant from
the plaintiff’s site at
Damango. The plaintiff company
did not cross-examine the
witness of the defendant company
in the witness box when he gave
that evidence; the plaintiff
company did not also tender any
evidence to challenge the
veracity of the evidence in
exhibit 2 and the inference was
that it admitted the import of
the evidence: see Fori v
Ayirebi [1966] GLR 627,
SC; and Browne v Dunn
(1894) 6 R 67.
Thus, there was
evidence that the defendant made
the crushing plant available to
the plaintiff but he did not
collect it in accordance with
the practice that existed
between them under the swap
arrangement.
One could hardly say
in the circumstances of this
case, the defendant did not
deliver the piling hammer to the
plaintiff and thereby breached
the swap agreement. The
defendant having made the piling
hammer available for the
plaintiff to collect, it
discharged its obligation under
the agreement vis-à-vis the
piling hammer. If anything at
all, the plaintiff was the sole
architect of its misfortune; in
fact it might as well be held to
have been in breach of its own
agreement with the defendant.
In the result, this
court agrees with the appellant
that the Court of Appeal erred
in concluding that the defendant
breached the agreement by
failing to deliver the piling
hammer. The defendant was in no
breach whatsoever. This
disposes of ground one of the
grounds of appeal
__ the most decisive of
the grounds, and the appeal as a
whole. This error by the Court
of Appeal no doubt led it to
award damages in favour of the
plaintiff.
This is a good case
to reverse the judgment of the
Court of Appeal entirely and we
so reverse it, and allow the
appeal.
J. ANSAH
JUSTICE OF THE SUPREME COURT
W.
A. ATUGU BA
JUSTICE OF THE SUPREME COURT
G.T.
WOOD
JUSTICE OF THE SUPREME COURT
S.
A. BROBBEY
JUSTICE OF THE SUPREME COURT
R. T.
ANINAKWAH
JUSTICE OF THE SUPREME COURT.
COUNSEL:
Mr. D. k. Letsa for Appellant
Mr. T. N. Ward Brew for
Respondent |
