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Contract - Breach of contract
- Terminated agreement of -
whether a contract can be
terminated before the period
provided - Whether plaintiff can
amended writ and statement of
claim on two occasions in the
course of the proceedings
HEADNOTES
The dispute herein arose when
the defendant terminated the
contract of haulage before the
period provided in the
agreement. Following the said
termination, the plaintiff
claimed that it was done in
breach of the agreement between
them and claiming compensation
or damages and other ancillary
reliefs
HELD :-
The result is that the instant
appeal succeeds in part only. In
particular, we set aside that
part of the judgment of the
Court of Appeal by which it
allowed in favor of the
plaintiff the sum of
$1,350,000.00as compensation or
damages and substitute therefor
the sum of fifty thousand US
dollars ($50,000.00) general
damages for severance of labor.
Reliefs 2, 3 and 4 as set out in
paragraph 26 of the amended
statement of claim are
dismissed. We also direct that
the amount adjudged in favor of
the plaintiff in this judgment
be the cedi equivalent of the
fifty thousand dollars (US$50,
000.00) in order not only to
comply with the law but also in
accordance with the practice
evidenced from the record of
appeal between the parties
whereby the amount due to the
plaintiff was paid in the cedi
equivalent.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil
Procedure) Rules, CI 47 Order 81
Evidence Act, NRCD 323 of
1975, section 26
CASES REFERRED TO IN JUDGMENT
Akufo-Addo v Cathline
[1992]1 GLR 377
Achoro v Akanfela [1996-7]
SCGLR 209
Radcliffe v Evans [1892] 2
QB 524 at 528
Bogoso Gold Ltd v Ntrakwah
[2011] 1 SCGLR 415.
Chahin and Sons Ltd v Epoe
Printing Press [1963] 1 GLR 163
at 168
Delmas Agency Ghana Ltd v
Food Distributors International
Ltd [2007-2008] SCGLR 748 at 760
Amankwah Addo v Abio
Nartey [2010-2012] 1 GLR 493.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
GBADEGBE JSC:
COUNSEL.
YONI KULENDI WITH HIM
DANIEL SEGU OSEI AND ERNEST
KUSIFOR THEDEFENDANT/APPELLANT/APPELLANT.
FELIX QUARTEYWITH HIM
BERNICE QUARTEY FOR THE
PLAINTIFF/ RESPONDENT/
RESPONDENT.
______________________________________________________________________
JUDGMENT_GBADEGBE JSC:
This appeal is from the
judgment of the Court of Appeal
that affirmed the decision of
the trial High Court in the
action herein which concerns a
contract of haulage between the
parties herein whereby the
plaintiff was engaged to haul
ore from a mine to defendant’s
crushing plant. For reasons of
convenience, the parties to the
appeal shall bear the
description which they had in
the trial court. The dispute
herein arose when the defendant
terminated the contract of
haulage before the period
provided in the agreement.
Following the said termination,
the plaintiff claiming that it
was done in breach of the
agreement between them took out
the writ of summons herein
claiming compensation or damages
and other ancillary reliefs.
Subsequently by an
amendment to the writ and the
statement of claim, the
plaintiff sought from the High
Court the following reliefs:
1.
An order for damages or
compensation in the sum of one
million three hundred and fifty
thousand US dollars ($1,350,
000.00).
2.
Interest at Commercial
Bank rate.
3.
Cost.
Accompanying the writ was
an amended statement of claim
that averred in paragraph 26 as
follows:
PARTICULARS OF LOSS.
1 Loss on equipment ($96 x
6 months) $576.00
11. Severance of Labour
(54 staff) $814.8x3months-
$132,000.00
111. Unrefunded deposit on
equipment hire
$462,000.00
1v. Administrative
Expenses
$180,
000.00
Total
$1,350,000.00
Before proceeding further,
we pause to observe that in the
course of the proceedings had in
the trial court, the plaintiff
amended the writ and statement
of claim on two occasions but
there is no minute of the
proceedings on which leave to
amend on either occasion was
granted in his favor. The record
of appeal before us does not
contain any entry for February
04, 2012 and it is difficult to
comprehend how leave granted to
the plaintiff on that date could
legitimately authorise the
filing of the amended writ and
statement of claim more than a
year thereafter. Indeed, a
careful perusal of the amended
processes at pages 139 -141
reveal that although the
application for leave to amend
had as its return date 04
February 2013, there is an
amended statement of claim
accompanying it that is said to
have been filed pursuant to
leave granted on 04 February
2012.Again, the amended
statement of claim filed
pursuant to leave of the court
on 28 January 2013, is expressed
to have been settled by counsel
on 04 February 2013, the very
day mentioned in the body of the
motion paper for leave as the
return date. Reference is made
to these matters for future
guidance only and to emphasize
the need for parties to
scrutinize processes which are
contained in records of appeal
as they form the basis of the
hearing before the appellate
court and might in certain cases
have adverse effect on a party’s
case.
Regarding the time lapse
which is apparent from the
amended statement of claim being
more than a year had from the
date leave is expressed to have
been granted to amend the
process and the date it was
settled by counsel and filed, it
seems that on the authority of
Akufo-Addo v Cathline
[1992]1 GLR 377,the amended
pleading was improperly
constituted such that if the
decision in that case were to be
pressed on us the result would
be that the plaintiff would have
had to contest the case on the
preceding statement of claim
but having regard to the new
provisions on non-compliance
with the rules contained in
Order 81 of the High Court
(Civil Procedure) Rules, CI 47,
we think that as the parties
contested the action on the
basis of the said amendment and
took steps thereon, such a
procedural lapse has the effect
of a waiver within the
intendment of sub-rule 2(2) of
the said order. Accordingly, we
would proceed with the appeal
herein on the same basis as the
trial High Court and the Court
of Appeal; and we are hopeful
that by adopting this course of
proceeding we would be doing
substantial justice to the
parties.
As earlier on stated in
the opening to this delivery,
both lower courts found for the
plaintiff with the result that
we are now faced with a second
onslaught by the defendant that
seeks a variation of the
judgment of the Court of Appeal
in its favor. We are not
unmindful of the fact that as
the two lower courts are in
agreement on the issues of fact
which turn on the case, none of
which was found in favor of the
defendant, the task with which
the defendant is faced appears
not to be an easy one; indeed to
succeed on the questions of fact
the defendant has to satisfy us
by credible evidence contained
in the record of appeal that
such findings are perverse and
or unreasonable or not derived
from reasonable inferences from
the admitted facts. See:
Achoro v Akanfela [1996-7]
SCGLR 209
We turn our attention to
the consideration of the appeal
and commence from the effect of
Exhibit “F”. While the defendant
contended that its effect was a
waiver of any right of claim
that the plaintiff might have
had against it following the
termination of the contract, the
plaintiff strenuously argued
that since the exhibit was
addressed to its managing
director, Michael Tetteh but
signed by a person without his
express authority, it is not his
act such as to bind the
plaintiff company of which he is
the principal officer. In our
view as the document dealt with
an alleged compromise of the
right of the plaintiff company
to sue the defendant, it ought
to have been signed by the
managing director to whom it was
addressed for the purpose of
constraining the plaintiff’s
right of access to our courts.
It is worthy of note that the
said exhibit itself acknowledged
the need to have it signed by
the managing director by
directing it to him and not the
company. Clearly, the defendant
expected action to be taken on
its letter by the managing
director as it dealt with very
serious matters and referred to
a previous discussion to which
from a fair reading of the
exhibit, no other person must
have been privy to. In the
circumstances, in the absence of
credible proof by the defendant
that the operations manager who
signed was authorised to do so
by the addressee, it cannot pass
as an act of the company such as
to constitute a waiver of their
right to pursue any action to
redress wrongs committed against
the company. We think the
objection to exhibit “F” is
grounded firmly in law and good
sense as well. The action was
therefore properly constituted
by the issue of the writ of
summons herein wherefore we
proceed to consider the matter
before us on the merits.
By the action of the
plaintiff, the nub of the
reliefs claimed is compensation
or damages. Observation is made
of the word compensation as the
mode by which courts offer
monetary reparation to persons
whose rights have been violated
in contract or tort by a
delicate act of balancing
designed to restore them to the
situation in which they would
have been but for the wrong, the
subject matter of the action.
Thus, damages, general and
special have a very invaluable
role in the capacity of courts
to give solatium to parties
based on the principle of
restitutuo in integrum. At the
heart of the plaintiff’s claim
for damages is the cause or
causes of the violation and the
consequence or consequences
which have compelled it to seek
redress by the action herein. In
the said scheme of events, we
must direct our attention to the
alleged breach (breaches) of
contract. In our view, as the
cause of action is based on the
allegation of breach or breaches
of contract, the plaintiff must
first satisfy us by credible
proof of the said breaches. In
so proceeding, we think it is
convenient that we consider the
plaintiff’s right to
compensation or damages in the
order in which they are set out
in paragraph 26 of the amended
statement of claim. Accordingly,
the first head of damage which
comes up for consideration is
that which is described as loss
on equipment in the sum of
$576.000.00.
In our opinion, from the
pleadings and the evidence, the
breach on which this head of
damage turns was before the
termination of the contract. It
concerns, according to the
plaintiff the loss of income
which he suffered following the
diminution in the tonnage of ore
to be hauled. While he contends
that the contract was for
2million tons over the period of
eighteen months, the defendant
said it was for 1.4 million
tons. We think that
notwithstanding the fact that
the parties initially discussed
the agreement and reached some
understanding which was reduced
into the contract of haulage
that was subsequently executed
by the parties, the discussions
and understanding were merged in
the contract document and the
“annexures” which accompanied
it. Again, the evidence of the
plaintiff that the quantities
were lower and therefore in
breach of the agreement was not
proved; all that the plaintiff
did was to make the said
assertion and leave it to the
court to infer the breaches
there from but having signed the
agreement and accepted it as the
basis of their relationship, it
is difficult to understand why
in the absence of proof of any
vitiating circumstances, he
should seek to be relieved from
it.
If as the plaintiff
contended, the defendant was in
breach of the agreement, why did
it not on any single occasion
submit a complaint in writing?
We observe from the agreement of
haulage that complaints
regarding breach by the
defendant are required by clause
2.1.1 to be in writing. It
stands to reason and common
sense that where parties to an
agreement have embodied the
terms in a written document and
made specific provision in
regard to notices, any party who
seeks to draw attention to
breach of a term of the
agreement must preferably do so
in writing. We think the
evidence of the defendant that
the agreement was for the
haulage of 1.4million tons with
the cost of haulage varied
depending on the tonnage to
cushion its earnings as provided
in annexure “A” to the agreement
on which this action turns that
is headed “Monthly haulage
rates” must explain why the
plaintiff carried out its
obligations without demur. We
accordingly reject the
plaintiff’s allegation to the
contrary that the defendant was
in breach of the undertaking to
enable plaintiff haul a greater
tonnage. The silence of the
plaintiff before the termination
can only be explained on the
ground that the defendant was
not in breach of any
undertaking. It seems to us that
the plaintiff decided to pursue
the allegation of breach in
relation to the quantities of
ore hauled as an after-thought
only after the termination of
the contract by the defendant.
It being so, the claim to the
said amount of $576, 000.00
fails and is disallowed. In our
opinion, the finding by the two
lower courts to the contrary is
based not on the proper
inferences and or is
unreasonable; for we cannot
comprehend why a party whose
right to earn income is
dependent upon the quantity of
ore hauled would sit by without
complaining until after the
termination of the contract.
When the default of the
defendant which the plaintiff
alleges is considered in
relation to the haulage, it is
not trifling and if true it
would have greatly affected the
value of the contract. Such a
breach, we think is material in
nature, proof of which may
suffice when not remedied to
avoid the contract. Reference in
this regard is made to the
express provision regarding the
default of the principal in
clause 3.7.2.1 of the contract
of haulage between the parties
as follows:
“If the Principal neglects or
refuses to make a payment which
is due and payable to the
Contractor under the Contract or
hinders the Contractor from
performing the Contract or
otherwise materially breaches
the Contract, the Contractor may
give notice in writing thereof
to the Principal. If within
seven(7) days after delivery of
the said notice to the Principal
the neglect or refusal or
hindrance or breach is not
remedied without just cause the
Contractor, in addition to any
other remedies to which it may
be entitled may either:……………”
[Emphasis mine]
The remaining three heads
of damage described as loss of
labour, unrefunded deposits and
administrative expenses are by
their very nature consequences
which are alleged to have arisen
from the termination. Simply
put, the plaintiff’s contention
is that by virtue of the
unlawful termination of the
haulage contract, it has
suffered the said losses and
must be compensated by the
court. These claims being
anchored on an allegation that
the termination was wrongful can
only come up for consideration
when the breach involved in the
termination of the contract of
haulage is proved on a
preponderance of probabilities.
As the right to compensation
according to the case of the
plaintiff arose subsequent to
the termination and before the
action herein, the said claims
are in their nature special
damages because they are not
damages which the law imputes as
having been suffered by the
plaintiff but are in relation to
amounts of money actually lost
and or expended. That aside by
the particularization of the
heads of damage in paragraph 26
of the amended statement of
claim, the plaintiff is deemed
to have acted in conformity with
the settled practice regarding
special damages as opposed to
general damages which are in the
discretion of the court.
As discussed in relation
to the first head of damage
claimed in the action, the right
to the award of damages must
flow from the wrongful
termination of the contract
which was found by the learned
justices of the Court of Appeal
to be wrongful. We have
carefully read the record of
appeal and attended to the
written briefs submitted to us
by the parties and are in
agreement with the learned
justices of the Court of Appeal
for the reasons contained in
their judgment. We are of the
considered opinion that the
decision of the learned trial
judge on this aspect of the
matter was right and the
defendant has not in the
slightest persuaded us to reach
a conclusion on the evidence to
the contrary. We think that
although perhaps we may hold a
contrary view of the facts, once
the decision of the learned
judge is derived from a
reasonable inference from the
admitted facts, it is not open
to us to reach a different
conclusion; that is the province
of the trial judge and we can
only intervene when we are
satisfied that the decision on
the facts was unreasonable and
or perverse.
There is yet another
reason in law for which the
onslaught on the finding of the
learned trial judge in regard to
the termination cannot be
faulted. It is this. By section
26 of the Evidence Act, NRCD 323
of 1975, once the defendant by
exhibit stated in exhibit “E”
addressed to the plaintiff that
it was done for failure to
mobilize a permanent fleet as
demanded by it in exhibit “D”,
we are precluded from
considering a different view of
the facts. In support of this
position, reference is made to
sections 24(1) and 26 of the
Evidence Act as follows:
“ 24.(1) Where the basic facts
that give rise to a conclusive
presumption are found or
otherwise established in the
action, no evidence contrary to
the presumed fact may be
considered by the tribunal of
fact.
26. Except as otherwise provided
by law, including a rule of
equity, when a party has, by his
own statement, act or omission,
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest and such
relying person o his successors
in interest.”
As a matter of fact,
reading exhibits “D” and “E”
together, one is left in no
doubt of the reason for the
termination. As it is, we are
precluded by law from
considering a different view of
the facts the effect of which is
that the ground of the
termination of the contract of
services by the plaintiff was
the non-procurement of its own
fleet of equipment. That view of
the facts, which was accepted by
the learned trial judge and
accepted by the learned justices
of the Court of Appeal converges
with the legal position
contained in sections 24 and 26
of the Evidence Act and puts the
controversy to an end. What this
means is that the cause of the
breach being wrongful, the
defendant must bear the
consequence or consequences of
its breach - the allegation by
the plaintiff that it has
incurred loss and or expenditure
for which it must be compensated
subject to satisfying us on the
burden of persuasion.
As earlier on mentioned in
relation to these heads of
damage, they are in their nature
special and must be proved
strictly. In this regard, we
find it difficult to agree with
the Court of Appeal that by
virtue of the fact that the
defendant filed no defence to
the amended statement of claim
by which in paragraph 26 the
plaintiff provided particulars
of its loss, to succeed on these
heads the plaintiff was only
required to lead evidence of the
standard of “minimal proof”. We
think that minimal proof in the
context of which it was used by
the learned trial judge and
accepted by the learned justices
of the Court of Appeal refers to
the quality of evidence to be
introduced by a party on whom
the initial burden lies in an
action to enable it shift to the
other party (the defendant) so
that on all the evidence at the
trial the tribunal of fact may
consider whether the burden of
persuasion has been met for the
purposes of deciding whether or
not the facts on which the
proponent relies is more
probable to have existed than
its non-existence. See: sections
10-12 of the Evidence Act.
Although we have great
respect for the leaned justices
of the Court of Appeal. having
regard to the fact that these
heads of damage are special in
their nature, the position
pronounced by them in relation
thereto runs contrary to
collection of cases on the point
that proof of such damages are
always in issue and must be
proved strictly. The question
for our decision in the
circumstances is whether the
losses which the plaintiff
alleged that it had suffered or
incurred were proved to the
satisfaction of the court from
the evidence contained in the
record of appeal? That is the
task which the plaintiff took
upon itself by virtue of the
issues raised on the pleadings
and to that we must now turn our
energies. We shall in
considering these heads of
damage commence with the
severance of labour. But before
we embark upon the consideration
of the evidence, we wish to make
a reference to Bowen LJ in
Radcliffe v Evans [1892] 2
QB 524 at 528 in the following
words.
“… Lest we should be led
astray in such a matter by mere
words, it is desirable to
recollect that the term “special
damage” which is found for
centuries in the books is not
always used with reference to
similar subject-matter, nor in
the same context. At times (both
in the law of torts and of
contract) it is employed to
denote that damage, arising out
of the special circumstances of
the case which if properly
pleaded may be superadded to the
general damage which the law
presumes in every breach of
contract and every infringement
of an absolute right. In all
such cases, the law presumes
that some damage will flow from
the ordinary course of things
from the mere invasion of the
plaintiff’s rights, and calls it
general damage. Special damage
in this context means that the
particular damage (beyond the
general damage which results
from the particular
circumstances of the case, and
of the plaintiff’s claim to be
compensated for which he ought
to give warning in his pleadings
in order that there may be no
surprise at the trial. But when
no actual positive right (apart
from the damage done) has been
disturbed, it is the damage done
that is the wrong; and the
expression used of this damage
denotes the actual and temporal
loss which in fact occurred.
Such damage is called variously
in old authorities “express
loss”, “particular damage”…,
“damage in fact”, “special or
particular cause of loss.”
See also: Bogoso Gold
Ltd v Ntrakwah [2011] 1
SCGLR 415.
The above words are
expressed with sufficient
clarity and in very simple
language to guide us in view of
the fact that in this appeal as
was the case in the court below
considerable time was expended
by the parties in their written
briefs to distinguish between
the two modes of
compensation-general and special
damages. We are hopeful that the
above statements would be of
value to our determination of
the nature of the damages that
were claimed by the plaintiff as
a consequences of the wrongful
termination. From a careful
reading of the pronouncement of
Bowen LJ in the case referred to
in the preceding paragraph,
there is no doubt in our minds
that the losses which referred
to specific sums of money fall
into the category of special
damages and not general damages.
The distinction is not merely
academic but relevant in
determining the mode of
establishing the right to either
head of award in an action.
While general damage is presumed
by the law from the invasion of
a right, special damage on the
other hand refers to the
particular damage suffered by a
party beyond that presumed by
the law from the mere fact of an
invasion of a right and must be
proved strictly by evidence
adduced at the trial. The
insistence on giving particulars
as explained by Bowen LJ is to
avoid surprise to the other
party and afford him the
opportunity of challenging the
loss else an award may be made
against him in a manner that
deprives him of defending
himself before being hurt
injuriously in his pocket. We
hasten to say that the rationale
for the insistence on giving
particulars of special damage
does not in cases where the
proponent’s adversary files no
defence by which the particulars
of damage are specifically
denied, result in a relaxation
of the burden of proof which the
claimant assumes in a civil
action.
The plaintiff in order to
succeed in this claim which is
put at $ 132,000.00 only
recited the bare pleadings
before the trial court without
any effort directed at proving
by way of exhibits the names and
monthly income of the workers
and for example the length of
notice required in the event of
a termination of their service
contract. The mere statement in
the evidence of the plaintiff’s
representative (PW1) at page 120
of the record of appeal that the
cost of labor hire was about
$44, 000.00 was just a
repetition of the particulars of
loss set out in paragraph 26 of
the amended statement of claim
and in our view comes within the
description of the evidence in
the case of Chahin and Sons
Ltd v Epoe Printing Press
[1963] 1 GLR 163 at 168. We
think that the evidence led by
the plaintiff in support of the
severance of labor is unreliable
and falls short of the
obligation placed on him under
section 11(1) of the Evidence
Act as follows:
“The burden of producing
evidence means the obligation of
a party to introduce sufficient
evidence to avoid a ruling
against him on the issue.”
The requirement to prove
special damages strictly has
been emphasised in a collection
of cases by our courts and we
make reference to the statements
made by Dr Twum JSC (as he then
was) in the course of the
judgment in the case of Delmas
Agency Ghana Ltd v Food
Distributors International Ltd
[2007-2008] SCGLR 748 at 760 as
follows:
“… Where the plaintiff has
a properly quantifiable loss, he
must plead specifically his loss
and prove it strictly. If he
does not, he is not entitled to
anything unless general damages
are also appropriate.”
It seems to us from the
circumstances of this case in
relation to the allegation of
severance of labor that
consequent upon the wrongful
termination of the contract, the
plaintiff would have been faced
with workers on its pay roll who
now had no works to undertake
and whose contracts must be
terminated by him by way of
mitigation of his losses. But
then, the plaintiff was required
to lead credible evidence in
respect of such loss such as
payment vouchers, names of
employees affected by the
severance and their letters of
appointment. The plaintiff’s
default in our view should
disentitle it to the actual
damages claimed. In our thinking
some loss may legitimately be
presumed in respect of the
severance of labor as a direct
consequence of the wrongful
termination. According to the
settled practice of courts where
following a plaintiff’s failure
to prove special damages, the
court is of the view that
general damages are appropriate
then it may award a reasonable
sum. Taking all factors into
consideration, and noting in
particular from the nature of
the works that they were
extensive and perilous in nature
and have accompanying health
hazards, we would set aside the
award by the Court of Appeal on
this head of damage and
substitute therefor a modest
sum of fifty thousand dollars
($50,000.00) which we consider
fair and reasonable. See:
Amankwah Addo v Abio Nartey
[2010-2012] 1 GLR 493.
Then comes the question
of the unrefunded deposit on
equipment. We have examined the
receipts which contrary to the
law were made in US dollars
instead of cedis, which is the
legal tender in our
jurisdiction. The plaintiff
again was unable to explain how
the totals on the various
receipts came about and worse
still the length of time for
which such huge payments were
made. It is difficult for us to
comprehend how the plaintiff
came by such huge foreign
currency in payment for the
hiring of equipment for the
haulage. How did the plaintiff
come by such huge sums of
foreign currency that were paid
within a short period? On the
whole as regards this particular
head of damage, we do not find
from the record of appeal
evidence that links such
payments with the haulage
contract between the parties
beyond the mere inscription on
the receipts to that effect in
order to determine the question
of their relevance to the
haulage contract.
Equally baffling is the
absence of any agreement that
entitles the owner of the
equipment to forfeit the
deposits. There is also a
payment receipt, tendered as
exhibit “G” which bears March
22, 2010, a date outside the
date of the termination, indeed
long after the wrongful act on
which the claim is based. We
think that the plaintiff has not
only exaggerated this head of
damage but that the evidence
tendered in support thereof is
very unreliable as for example
the receipts are not referable
to particular to the licensed
plates of the equipment in order
to determine if they were
actually used in connection with
the contract of haulage.
Besides, the date which exhibit
“G” bears gives the claim under
this head of damage a mark of
fraudulent conduct in equity and
we reject it in its entirety. We
are of the opinion that the
plaintiff’s claim under this
head of damage was not proved
and that the learned justices of
the Court of Appeal were wrong
in allowing the claim in respect
of unrefunded deposits on
equipment hired by the
plaintiff. As the Court of
Appeal acted on wrong principles
in the award of damages under
this head, we proceed to set
aside the entire damages allowed
for unrefunded deposits.
Finally, there is the
claim for administrative
expenses in the sum of
$180,000.00. Unfortunately,
there is no evidence of how the
said loss was incurred by the
plaintiff in relation to the
termination of the haulage
contract. We think that the
observation made by us in the
course of this judgment in
respect of the plaintiff’s claim
for severance of labor having
regard to the need to prove such
a head of claim strictly applies
with equal force here. In our
opinion this head of loss is
purely speculative and was
approached by the plaintiff in a
very casual manner that does not
come anywhere near the requisite
degree of proof in respect of
damages that may be allowed by a
court of law. The plaintiff was
required at the trial to have
led sufficiently credible
evidence to show that the
expenses were not in connection
with its business that was
undertaken for six (6) months
previous to the wrongful
termination. Special damages are
not intended by the law to be
thrown away by parties to an
action and a party who seeks an
award must provide cogent
evidence that satisfies the law
in order to justify a person
being condemned in his pocket.
Accordingly, we are of the
opinion that the award of
damages under this head of
damage was based on the
application of wrong principles
and intervene to set the entire
award for administrative
expenses aside.
The result is that the
instant appeal succeeds in part
only. In particular, we set
aside that part of the judgment
of the Court of Appeal by which
it allowed in favor of the
plaintiff the sum of
$1,350,000.00as compensation or
damages and substitute therefor
the sum of fifty thousand US
dollars ($50,000.00) general
damages for severance of labor.
Reliefs 2, 3 and 4 as set out in
paragraph 26 of the amended
statement of claim are
dismissed. We also direct that
the amount adjudged in favor of
the plaintiff in this judgment
be the cedi equivalent of the
fifty thousand dollars (US$50,
000.00) in order not only to
comply with the law but also in
accordance with the practice
evidenced from the record of
appeal between the parties
whereby the amount due to the
plaintiff was paid in the cedi
equivalent.
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE
OF THE SUPREME COURT
(SGD) P. BAFFOE -
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) YAW
APPAU
JUSTICE OF THE SUPREME COURT
(SGD) G.
PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL
YONI KULENDI WITH HIM DANIEL
SEGU OSEI AND ERNEST KUSIFOR
THEDEFENDANT/APPELLANT/APPELLANT.
FELIX QUARTEYWITH HIM BERNICE
QUARTEY FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT. |
