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Contract -
Agreement - Terminating the
contract - Dealership - Petrol
outlet unit – Working capital -
Interest on that amount -
Recovery of overdraft facility -
Damages for wrongful termination
- Refundable “security deposit -
HEADNOTES
The plaintiff
and the defendant at the trial
court entered into a
dealership agreement which
was tendered as exhibit A. The
purpose of the agreement was to
enable the plaintiff to run the
Legon Road Service Station as
petrol
outlet unit. For the
implementation of the agreement,
the plaintiff paid the defendant
ten thousand Ghana Cedis (GHS
10,000.00) as “working capital.”
The agreement was terminated by
the defendants at a time when
the defendants claimed that the
plaintiff owed it some moneys.
The High Court dismissed all but
one of the claims: It awarded
GHS 6000.00 as damages for the
wrongful termination of the
agreement and cost of GHS
1000.00 in favour of the
plaintiff. The plaintiff
appealed to the Court of Appeal
and argued inter alia that the
damages awarded were on the low
side. The appeal was dismissed.
Against that judgment, the
plaintiff appealed to this court
HELD
Considering
the circumstances of the case,
this court finds no basis for
interfering with the award of
the trial court, notwithstanding
that there could be some amount
of speculation on the basis of
the award. The award of the
trial judge which was endorsed
by the Court of Appeal is
upheld. In the end, the appeal
fails in its entirety and should
be dismissed
STATUTES
REFERRED TO IN JUDGMENT
Evidence
Decree, NRCD 323
High court
(Civil Procedure) Rules, 2004
(CI 47),
CASES
REFERRED TO IN JUDGMENT
Hammond v
Odoi [1982-83] 2 GLR 1215
Awuku Sao v
Ghana Supply Commission [2009]
SCGLR 710;
Jass Co Ltd v
Appau [2009] SCGLR 265
Achoro v
Akonfela [1996-97] SCGLR 209
Attorney-General v Faroe
Atlantic Co Ltd [2005-2006]
SCGLR 271.
Standard
Chartered Bank v Nelson
[1998-99] SCGLR 810
Zik’s Press v
Ikoku (1951) 12WACA 188
Majolagbe vrs
Larbi [1959] GLR 190
Flint vrs
Lovell [1936] 1 KB 360 and
Societe
Generale De Compensation vrs
Moshic Ackerman [1972] 1 GLR
413, C.A.
Oduro vrs
Davis 1952 14 WACA 46
ZACCA vrs
CFAO [1969] C.C. 156
Owen vrs
Sykes [1936] 1 KB 192 C.A
Watt (or
Thomas vrs Thomas) [1947] AC
484: [1947] 1 A.E.R. 582: 176
L.T 49, H.L
Clarke vrs
Edinburgh Tramways & District
Tramways Co. [1919] SCH L 35, 56
S CLR 303
Powell vrs
streatham Manor Nursing Home
[1935] AC 243
Jass Co. Ltd
vrs Appau [2009] SCGLR 265
holding 4
Awuku Sao vrs
Ghana Supply Commission [2009]
SCGLR 710
Obeng &
others vrs Assemblies of God
Church, Ghana [2010] SCGLR 1,
Bisi vrs
Tabiri [1987-88] 1 GLR 360 at
368
Koglex (No.
2) vrs Field [2000] SCGLR 175
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BROBBEY,
JSC:-
COUNSEL
KENNETH
MAINOO FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
STANLEY
AMARTEIFIO FOR THE
DEFENDANT/RESPONDENT/RESPONDENT
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
BROBBEY,
JSC:-
The plaintiff
and the defendant at the trial
court entered into a dealership
agreement which was tendered as
exhibit A. The purpose of the
agreement was to enable the
plaintiff to run the Legon Road
Service Station as petrol outlet
unit. For the implementation of
the agreement, the plaintiff
paid the defendant ten thousand
Ghana Cedis (GHS 10,000.00) as
“working capital.” The agreement
was terminated by the defendants
at a time when the defendants
claimed that the plaintiff owed
it some moneys.
Following the
termination of the agreement,
the plaintiff sued the defendant
in the High Court for recovery
of the GHS 10,000.00,
interest
on that amount, recovery of GHS
49300.00 being overdraft
facility taken by the plaintiff
from its bankers, interest on
that overdraft and damages for
wrongful termination of the
dealership agreement.
The High
Court dismissed all but one of
the claims: It awarded GHS
6000.00 as damages for the
wrongful termination of the
agreement and cost of GHS
1000.00 in favour of the
plaintiff.
The plaintiff
appealed to the Court of Appeal
and argued inter alia that the
damages awarded were on the low
side. The appeal was dismissed.
Against that judgment, the
plaintiff appealed to this court
on the following grounds:
1.
That the judgment was against
the weight of evidence.
2.
That the Court of Appeal erred
in not allowing the appeal.
In this
judgment, the plaintiff shall be
referred to as the appellant
while the defendant will be
referred to as the respondent.
In arguing
the appeal in this court, the
appellant contended that the GHS
10,000.00 that it paid was not
working capital but was rather a
refundable “security deposit”
which was “mistakenly referred
to as the working capital.” That
argument was simply untenable
for the following reason: The
appellant conducted the entire
case in the High Court and the
Court of Appeal on the basis
that that amount was the working
capital. The case started with
the plaintiff’s claim for
“the recovery
of its working capital of
¢100,000,000.00 paid to the
defendant to enable the
plaintiff operate the Legon Road
Shell Service Station and the
attached groceries shop.”
In paragraph
14 of the statement of claim,
the appellant referred to the
amount as the working capital.
In the evidence of the Managing
Director of the plaintiff, he
stated right from the beginning
of his testimony that “the first
condition (in exhibit A) was for
the plaintiff to pay ¢100
million as deposit as a working
capital.”
In exhibit E,
the letter acknowledging the
plaintiff’s indebtedness to the
defendant which was tendered on
behalf of the plaintiff, the
plaintiff used the expression
“working capital” six times at
page 2.
The agreement
on the dealership, exhibit A,
referred to only the working
capital in several places and
goes on to define minimum
working capital in paragraphs
8.4.
In the
written address of counsel for
the appellant in the High Court,
he persistently referred to the
amount as the “working capital.”
It was on the
basis that the plaintiff’s claim
was for the working capital that
the High Court considered the
case and gave its judgment.
When the
appellant appealed to the Court
of Appeal, it based its case on
the fact that the amount was
working capital. Ground 1 of the
grounds of appeal stated that:
“The learned
trial judge erred in not
ordering the defendant to pay to
the plaintiff the working
capital of the plaintiff
inclusive of interest thereon.”
Counsel for
the appellant then proceeded to
argue the case on the basis that
the appeal was to claim the
working capital.
The Court of
Appeal considered the appeal on
the basis of working capital and
gave its judgment based on the
working capital.
It was in
this court that the appellant
for the very first time raised
the argument that the claim of
the plaintiff was for a
refundable deposit of GHS
10,000.00.
In case the
appellant was not sure of the
meaning of working capital, the
term “working capital” was
defined in paragraph 8.4 of
exhibit A to cover the value of
Shell products on location,
value of Shell products in
transit, all cash in hand at
location and the balance on the
dealers’ account created with
Shell. The appellant claimed
that the GHS 10,000.00 given to
the respondent was a deposit to
be held in the dealer’s account
as minimum balance. However,
paragraph 8.2 of exhibit A
defines the dealer’s account as
a record of all the appellant’s
financial transactions with the
respondent. Indeed, all products
purchased from the respondent
were to be procured through and
reflected in the dealer’s
account.
The appellant
also argued that if the GHS
10,000.00 was intended as
working capital, then products
would have been purchased from
the said monies. However, in
paragraph 3 of the appellant’s
own statement of claim, the
appellant stated that when the
GHS 10,000.00 was given, GHS
7000.00 was intended for fuel
and GHS 3000.00 was intended for
groceries. The business was
operational from 1996 to 2000.
The business comprised the
purchase of fuel and groceries
and therefore the intention of
the GHS 10,000.00 was realized.
Another point
which buttressed this view was
this:
In paragraph
6 of the statement of defence,
the respondent stated that
“The
defendants say that as the
plaintiffs were in business for
themselves this minimum capital
was plaintiff’s own capital used
by her in the business.”
To this the
appellant reacted by its reply
in paragraph 3 that:
“Paragraph 6 of the statement of
defence is admitted.”
That clearly
was an admission that the
appellant had used the GHS
10,000.00 on its own business of
purchasing petroleum products
and groceries. So, what again
was the appellant asking the
court to refund to it? Even if
the GHS 10,000.00 was considered
as a deposit, it had been used
by the appellant itself in its
operations and therefore was no
longer available to be given
back to the appellant.
The appellant
admitted in exhibit E that it
was indebted to the respondent.
That admission of indebtedness
amply demonstrated that the
initial working capital
investment was exhausted. If the
appellant had its money to the
tune of GHS 10,000.00 with the
respondent, one would naturally
have expected the appellant to
have pointed out to the
respondent that it did not owe
any GHS 5360.00 because the GHS
10,000.00 would have covered
that indebtedness.
From the
foregoing, it was apparent to
the appellant throughout the
proceedings prior to this court
that the GHS 10,000.00 was
working capital. The legal
hurdle confronting the appellant
after conducting the case that
way was that the
Evidence Decree, NRCD 323,
s 26 provides that:
“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 of that
party in proceedings between …
the replying person or his
successors in interest of that
person.”
Since the
appellant had made the High
Court, the Court of Appeal and
the respondent to believe that
the GHS 10,000.00 was working
capital as explained in exhibit
A, none of them can be faulted
in holding the view that that
amount was indeed working
capital and for disposing of the
case on that basis.. Section 26
provides a presumption. By the
way it conducted its case
throughout the proceedings, the
appellant is estopped from
asserting a different meaning to
the GHS 10,000.00 in this court.
There is no
reference in exhibit A to the
fact that the working capital
was refundable. The term
“refundable” was so significant
that if the amount was meant to
be refunded or refundable, it
would have been stated in
exhibit A because it would
substantially affected the
contractual relationship of
parties. The evidence rather
showed that the mount was used
to purchase petroleum products
and groceries. It was exhausted
and that was why the appellant
became indebted to the
respondent as admitted in
exhibit E. The respondent could
not be made to refund what it
had not contracted to refund. In
any case, it could not be made
to refund what had been
exhausted as a result of the
appellant’s own business
activities of purchasing
petroleum products and groceries
with the GHS 10,000.00.
The
contention of the appellant that
the amount was a refundable
deposit was not only an
afterthought. It was also a
belated attempt to change its
case from that of working
capital to refundable deposit.
That change flies in the face of
the known principles of
pleadings, especially as
provided in the
High
court (Civil Procedure) Rules,
2004 (CI 47), Order 11, r
10(1).
The
significance of pleadings to a
party’s case was underscored in
Hammond v Odoi [1982-83] 2
GLR 1215 when Charles Crabbe
JSC stated at p 1235 that:
“Pleadings
are the nucleus around which the
case – the whole case- revolves.
Their very nature and character
thus demonstrate their
importance in actions, as for
the benefit of the court as well
as for the parties. A trial
judge can only consider the
evidence of the parties in the
light of their pleadings. The
pleadings form the basis of the
respective case of each of the
contestants. The pleadings bind
and circumscribe the parties and
place fetters on the evidence
that they would lead. Amendment
is the course to free them from
such fetters. The pleadings thus
manifest the true and
substantive merits of the case.”
To this, we
would add that the essence of
pleadings is inter alia not only
to inform the opposing party of
the case it will meet but also
to put the opposing put on
notice so as to prepare its case
in response to the facts pleaded
against it.
Since the
appellant based its case on
working capital throughout the
High court and in the Court of
Appeal, the respondent also put
up its defence on the basis of
working capital. The respondent
cannot now be bound by the view
that the amount was a refundable
deposit. If the appellant was
minded to rely on the fact that
the amount was a refundable
deposit, it should have amended
its pleadings or pleaded that
specifically. This was because
the respondent could in turn
have pleaded facts in support of
its defence that the amount was
a working capital. By raising
the case of the refundable
deposit for the first time and
so belatedly in this court, the
respondent was not given the
opportunity to adduce evidence
or plead facts in defence of its
stand. That a fortiori is
another reason why the case of
refundable deposit should not be
upheld in this court.
By the manner
it presented its case in the
High Court and the Court of
Appeal, the appellant led the
two courts to make concurrent
findings against it. The
established rule of law is that
where findings made by a trial
court have been concurred in by
an appellate court, a second
appellate court should be slow
in coming to a different
conclusion unless there is clear
evidence which indicates that
the two courts were manifestly
wrong in their conclusions. This
principle has been applied in
several cases including
Awuku
Sao v Ghana Supply Commission
[2009] SCGLR 710; Jass Co Ltd
v Appau [2009] SCGLR 265 and
Achoro v Akonfela
[1996-97] SCGLR 209. In the
instant case, the findings of
the two courts cannot be
described as manifestly wrong.
If the case had not progressed
to this court, the appellant
would have rested its case on
the basis that the amount was
working capital.
The most
serious point that militates
against the contention that the
money should be regarded as
refundable security was the fact
that the appellant never raised
that as the basis of his claim
in the High Court or the Court
of Appeal until the case reached
this Supreme Court. The
principle has been well
established that where a point
of law was not raised or relied
upon in the trial court and in a
first appellate court, it cannot
be raised in the Supreme Court
as the final court of the land:
See
Attorney-General v Faroe
Atlantic Co Ltd [2005-2006]
SCGLR 271. Exceptions to
this rule were set out at page
279 of the report are (i) where
a jurisdictional issue has been
raised, (ii) where the act or
conduct has been made illegal by
a statute and (ii) where the
legal issue raised is
substantial and could be
disposed of without the
necessity for fresh evidence to
be adduced, such as
constitutional issues. This case
does not involve a
jurisdictional, illegal or
constitutional issue. None of
those exceptions is applicable
to the instant case. Not having
raised refundable security at
the trial court and in the Court
of Appeal, the appellant cannot
raise it for the first time in
this court.
The issue of
refundable security cannot be
disposed of without giving the
defendant the opportunity to
react by facts and evidence
which will establish its side of
the nature of the GHS 10,000.00.
It is simply not enough to fight
the case on one basis and at the
very end of the litigation make
a bare assertion that the basis
of the claim should have been
that the amount was a refundable
deposit and hope to succeed by
that volte face. A number
of questions would arise to be
examined if the case had been
prosecuted at the inception as
refundable deposit or refundable
security.
Some of them
are these: Since when did the
amount become refundable
security or refundable deposit?
Was it from the inception of the
agreement on the dealership or
from the middle of it? What kind
of security was envisaged? Was
it security for non- payment of
petroleum products supplied or
security against non- payment of
groceries? Was it security
against running the business at
a loss? Was it security against
damage to the station by fire,
by accident or natural sources?
Under what circumstances should
the deposit or security be
refunded? Was it refundable
where the damage was
attributable to the appellant or
its agent? Was it refundable
where the termination of the
contract was as a result of the
fault of the appellant? Was it
refundable where the appellant
was the one pulling out of the
agreement or where the
termination was brought about by
the respondent? It was argued on
behalf of the appellant that the
amount was described
“mistakenly” as working capital.
Whose mistake was it? Since when
did the mistake become apparent
for it to be raised only at the
very end of the litigation?
These and many more questions
will forever remain unanswered
if the case is allowed to be
disposed of by a bare assertion
that the amount was a refundable
deposit or refundable security
without going into the merits
and demerits of that assertion.
The claim of
the appellant for the GHS 4, 930
overdraft facility taken by the
appellant These and many more
questions will forever remain
unanswered if the case is
allowed to be disposed of by a
bare assertion that the amount
was a refundable deposit or
refundable security without
going into the merits and
demerits of that assertion.
was baseless;
this was because there was no
evidence that the respondent
induced the appellant to take
that overdraft. It was a
facility which the appellant
sourced to improve its own
business. The amount went to the
respondent in its reasonable
attempt to retrieve debts owed
to it from the appellant. There
was no basis for the claim for
the refund of that amount to the
appellant.
Liability for
the termination of the agreement
was determined by paragraph 25
of exhibit A. The respondent was
required by paragraph 25.1 of
exhibit A to have given the
appellant three months notice
before
terminating the contract.
That it failed to do. The trial
court was justified in ruling
that the termination was
unlawful and proceeding to award
damages.
The appellant
argued that the award of six
thousand Ghana Cedis as damages
was on the low side and should
be reviewed. The principles on
the review of award of damages
are well known and need no
expatiation. Such an award may
be reviewed only if the correct
law is wrongly applied, or
incorrect law is applied or
where the award is so
excessively high or so
excessively low as to be
erroneous. Authorities abound on
these principles, with
Standard
Chartered Bank v Nelson
[1998-99] SCGLR 810 and Zik’s
Press v Ikoku (1951) 12WACA
188 standing out as virtual
locus classicus. The trial judge
did not indicate the basis of
the award. But it appeared to
have been based on lost future
earnings and unearned future
commission. These could not be
legitimate bases for damages at
times when the trend of business
was in the decline. At such
times, it would have been
impossible to convince a court
that profits and corresponding
profits were imminent without
indulging in speculation.
Considering
the circumstances of the case,
this court finds no basis for
interfering with the award of
the trial court, notwithstanding
that there could be some amount
of speculation on the basis of
the award. The award of the
trial judge which was endorsed
by the Court of Appeal is
upheld.
In the end,
the appeal fails in its entirety
and should be dismissed.
S. A.
BROBBEY
JUSTICE OF
THE SUPREME COURT
G.T. WOOD
(MRS)
CHIEF JUSTICE
ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
N.S.
GBADEGBE
JUSTICE OF
THE SUPREME COURT
DOTSE, JSC:-
The facts of
this case admit of no
complexities whatsoever. The
Plaintiffs/Appellants/Appellants
hereafter referred to simply as
the plaintiffs, initiated action
in the High Court against the
Defendants/Respondents/Respondents,
referred to hereafter as
Defendants, claiming the
following reliefs:-
The
plaintiff’s claim against the
defendants is for:
1.
Recovery of its working capital
of GH¢10,000.00 paid to the
defendant to enable
the plaintiff operate the Legon
Road Shell Service Station and
the attached groceries
shop.
2.
Interest on the said sum of
money from the 7th
day of June, 1996 at the
current bank rate till the day
of payment.
3.
Recovery of the sum of
GH¢4,930.00 being an overdraft
from its bankers to the
defendant for the supply of fuel
on the 26th day of
April, 2000.
4.
Interest on the said sum of
money from the 26th
day of April, 2000 at the
current bank rate till the day
of payment.
5.
Damages for wrongful termination
of the plaintiff’s dealership
agreement.
The
plaintiff’s averred that on the
7th day of June, 1996
they entered into a dealership
agreement with the defendant to
operate the defendants service
station on the Legon Road in
Accra. Pursuant to the said
agreement, the plaintiffs paid
an amount of GH¢7,000.00 to the
defendants for the supply of
fuel and GH¢3,000.00 was paid
for the supply of goods for the
shell shop at the station,
making a total of GH¢10,000.00
According to the plaintiffs at
the time they took over the
management of the Service
Station, business was very good
as there was only an additional
service station from the Tetteh
Quarshie Circle to Madina.
Business however started to
decline with the opening up of
more filling stations in the
neighborhood, coupled with the
spate of armed robberies that
rocked the Service station
leading to loss of revenue and
customers as a result of
negative press publicity.
The
plaintiffs further averred that
the defendants did not approve
of armed guards at their service
stations, and despite the spate
of armed robberies at the
station the plaintiffs were
prevented from engaging armed
security guards.
The
plaintiffs discussed strategies
aimed at revamping their
dwindling fortunes at the
Service Station with the
defendants and this led to the
plaintiffs successfully
accessing an overdraft facility
of GH¢4,930.00 from their
Bankers which they paid to the
defendants on 26th
day of April, 2000 with the aim
of strengthening their financial
base with the defendants.
Unfortunately, as fate would
have it, the defendants
terminated the Dealership
agreement with the plaintiffs on
the 28th day of
April, 2000, barely two days
after receipt of the amount of
GH¢4,930.00 from the
plaintiff’s.
The
plaintiffs therefore contended
that the termination of their
dealership agreement was
wrongful.
The
plaintiffs further contended
that as a result of the wrongful
termination of the contract they
lost their working capital of
GH¢10,000.00 which they paid to
the defendants at the inception
of the dealership agreement and
also lost the amount of
GH¢4,930.00 (which was an
overdraft) which they paid to
the defendants with the aim of
revamping their business
transactions.
In view of
the peculiar circumstances of
this case, the defence filed by
the defendants will have to be
considered in some detail,
because that is the only case
that has been proffered by the
defendants. This is because,
after the settlement of the
pleadings the defendants and
their Counsel were unable to
attend court after several
adjournments as a result of
which the learned trial Judge
took evidence from the
plaintiff’s representative and
concluded the case.
Whilst the
defendants admitted the
Dealership agreement with the
plaintiffs they contend that it
was a term of the said agreement
that in consideration of
commissions to be paid by the
defendants to the plaintiffs,
the plaintiff was to purchase
from the defendants and resell
petroleum and allied products.
The plaintiff was also to sell
in the shell shop only approved
products by the defendants. It
was in pursuit of meeting the
above obligations imposed on the
plaintiffs under the dealership
agreement that the plaintiffs
were required to have and
maintain a minimum working
capital determined from time to
time, in order to effectively
and efficiently operate the
station.
The
defendants averred that the
working capital was the capital
that the plaintiff’s used in
their business and are
responsible for it.
The
defendants also accused the
plaintiffs of poor management as
the cause for the low sales,
since according to them “ever
since a new dealer took over,
sales have gone up considerably”
and denied that these were due
inter alia to the armed
robberies.
The
defendants admit the receipt of
an amount of GH¢4,930.00 from
the plaintiffs but contend that
as at the material time, the
plaintiff’s were owing an amount
of GH¢6,313.62.00 they therefore
used the GH¢4,930.00 to set it
off against the debt owed it by
the plaintiff.
The
defendants also deny that they
wrongfully terminated the
contract with the plaintiffs,
and contended that the
plaintiff’s are not entitled to
the relief they claim at all.
As was stated
earlier in this judgment, it was
only the plaintiff’s
representative who testified,
and tendered the following
exhibits into evidence.
1. Exhibit
A
Shell
Dealership Agreement dated 1st
January, 1998.
2. Exhibit B
Statement of Account showing the
performance of Shell Service
Stations in
order of performance.
3. Exhibit
C
Letter
dated 17th November,
1999 from the defendants
reminding Shell
Service station Managers not to
use armed guards at their
stations.
4. Exhibit
D
Letter
dated 20th April,
2000 from the defendant’s
to the plaintiff’s
updating them on
their Trading Account Balance in
which they
threatened to
terminate the dealership
agreement if the debt owed
them is
not paid within a period of
seven days.
5. Exhibit
E
Letter
dated 25th April,
2000 from the plaintiff’s to the
defendant’s which
contained proposals
from plaintiffs to the
defendants aimed at
revamping their
sales performance.
6. Exhibit
F
This is
the termination letter from the
defendants to the
plaintiffs dated 28th
April, 2000
7. Exhibit
G
This is
the Police report dated 21st
May 2002 on the armed
robbery
attack at the
plaintiff’s station which
occurred on 8th July,
1999 at
3.30am.
8. Exhibit H
This is
a letter from Ecobank to the
plaintiff’s dated 16th
October, 2000
on the repayment of
an outstanding overdraft
facility granted the
plaintiffs to revamp their
business with the defendants.
9. Exhibit J
This is a writ of
summons issued by Ecobank
against the plaintiff’s in
respect of the balance of an
overdraft facility of
¢35,548,210.79 granted
the
plaintiffs.
The learned
trial Judge, after considering
the probative effect of the
above exhibits as well as the
evidence led by plaintiff’s
representative without any input
from the defendants delivered
judgment on 25th
June, 2007 in the following
terms:-
“I therefore enter judgment
in favour of the plaintiff to
recover the sum of ¢60
million as general damages for
the wrongful termination of the
Dealership Agreement
between the parties in
accordance with the principle
stated in of
Majolagbe vrs Larbi [1959] GLR
190 and state that in
respect (sic) relief (5)
the Endorsement on the writ of
summons the plaintiffs were able
to discharge both the
burden of proof and standard of
proof on balance of
probabilities. I
thereby dismiss reliefs (1) to
(4) of the endorsement on the
writ of summons. I award
cost of ¢10million in favour of
the plaintiff.”
Aggrieved by
the inadequacy of the awards,
the plaintiff’s appealed against
the judgment to the Court of
Appeal which also dismissed the
appeal by a unanimous judgment
dated 27th November,
2008.
It is this
Court of Appeal judgment that is
the subject of the instant
appeal to this court.
GROUNDS OF
APPEAL TO SUPREME COURT
1.
That the judgment is against the
weight of evidence.
2.
That the Court of Appeal erred
in not allowing the appeal.
Since no
additional grounds of appeal
have been filed, only the above
two grounds have been argued by
learned counsel for the
plaintiffs.
STATEMENT OF
CASE OF PLAINTIFF’S
The arguments
of learned Counsel for the
plaintiff’s as I understand them
is to the effect that based on
the pleadings, the oral evidence
as well as documentary evidence
that had been put before the
trial court, there was no basis
for the court to have accepted
the bare assertions of the
defendants in their pleadings
that an amount of GH¢6,313.60
was owed it by the plaintiffs.
Out of
abundance of caution, let me
quote exactly what was stated by
the plaintiff’s in their
statement of case.
“It is interesting to note
that no evidence was proferred
by the defendants to
substantiate it claim that the
appellant owed it GH¢6,313.60.
This figure was
contradicted by appellant in
exhibit E at page 77 of the
record of appeal”.
The
plaintiff’s argued further that,
since they denied this piece of
averment in their reply, issues
were joined as between them and
the defendants. Having failed
and or refused to lead any
evidence, the plaintiff’s
contended that the learned trial
judge ought to have held that
the defendants were obliged to
refund to the plaintiff’s the
sum of GH¢4,930.00 being the
overdraft facility the
defendants induced the
plaintiff’s to access in order
to revamp their business
transactions.
What must be
noted is that, in evaluating
evidence in a judicial
proceedings, a court has several
sources to draw material
evidence from:
1.
First are the pleadings. Where
the pleadings are not in
contention, it is safe for
the trial judge to draw from it
and make his conclusions. For
example, where as in
this case, the plaintiff’s and
defendant’s are adidem on the
payment of an amount of
GH¢10,000.00 by plaintiffs to
the defendants, there is no
problem about the acceptance of
this piece of evidence. The only
difficulty that arises is
whether to accept the
plaintiff’s version that it is
now a refundable
security deposit and no longer
a working capital. I will revert
to this issue as to whether
the plaintiff’s at this stage of
the trial are entitled to change
their arguments without having
done so previously in the trial
court and at the Court of
Appeal.
2.
The second is the oral evidence
that has been led in court. The
credibility of oral
evidence is normally tested
through cross-examination but in
this case, since the
defendant’s did not participate
during the trial of the case,
that opportunity is lost, and
the only credible evidence on
record is that led by the
plaintiff’s representative.
3.
The third is the documentary
evidence. This normally takes
the form of documents that
are tendered during the course
of trial and upon which
questions are asked
during examination in chief and
cross-examination. It can also
take the form of reports
submitted by court appointed
expert witnesses such as
Surveyors, Accountants, Medical
Doctors, etc who testify and
tender in reports prepared by
them to help the judge in
determining the case one way or
the other.
4.
The fourth are judicial
decisions and authorities
touching and dealing with
principles of law in the subject
matter of the case on trial.
This is normally done
during the closing addresses by
Counsel of the parties to the
court.
Since the
defendant’s did not take part in
the trial process, the only
applicable method of assessing
their case is for the court to
consider the pleadings, and
perhaps the applicable case law
on the subject.
The
plaintiffs have in their
statement of case argued that
the learned judges of the Court
of Appeal were wrong in
affirming the decision of the
trial court that the
GH¢10,000.00 was a working
capital.
Referring to
clause 8:5 of exhibit A, the
Dealership Agreement, which
states as follows:-
“The Dealer shall pay for all
products purchased from Shell in
such manner, and on
such terms and at such times as
shell shall advise from time to
time and shell may cease
making deliveries to the Dealer
upon the failure of the Dealer
so to pay”.
The
plaintiff’s submit that, the
GH¢10,000.00 paid by them to the
defendants was a security which
was misleadingly referred to as
“working capital”, and therefore
concluded that the said amount
could therefore not have been
referred to as working capital
since it could not have been
used to pay for products
supplied by the defendants to
the plaintiff’s.
The
plaintiff’s refer also to clause
8:2 of Exhibit A to buttress
their submissions on this point.
Clause 8 : 2 of Exhibit A states
as follows:-
“The Dealer shall maintain
with Shell an account to be
designed as the ‘Dealer’s
Account’ which account shall be
a record of all the Dealers
financial transactions with
Shell. The Dealer shall not
allow this account to reflect a
debit balance unless so
authorised in writing by Shell”.
The
plaintiff’s submit that, this
Dealers account is different
from the working capital and
refer to exhibits D and E as
relating to the Dealers Account
and therefore a security which
should be refunded.
The
plaintiff’s argued in support of
their contention that the award
of GH¢6,000.00 damages was
woefully inadequate by referring
to exhibit B which placed
plaintiff’s Service Station at
the material time as the (5th)
fifth best performing station in
terms of sales volume to
buttress their point of
anticipated loss of future
business due to the wrongful
termination of the dealership
agreement.
The
plaintiff’s further submit in
their statement of case that it
was wrong for the Court of
Appeal to have stated that
reliance on Exhibit B to compute
the quantum of damages would
have been an exercise in
speculation. It is the
plaintiff’s case therefore that
Exhibit B presents the only
credible and fair idea about the
future course of their business
if the agreement had not been
wrongfully terminated by the
defendants. The plaintiff’s
refer to the proposals contained
in their Exhibit E, and submit
therein that, the defendants, if
they had considered the contents
of Exhibit E, would not have
terminated Exhibit A, but give
an opportunity for the business
to be revamped.
Based on the
above, the plaintiff’s submit
that the award of GH ¢6,000.00
as damages is on the low side
since the termination led to
heavy loss of future earnings
and pray that this be enhanced
by the Supreme Court.
STATEMENT OF
CASE OF DEFENDANTS
The learned
Counsel for the defendant’s
invited this court not to
consider the argument of the
plaintiff’s about the effect of
GH¢10,000.00 as a refundable
security because that was not
the complaint before the Court
of Appeal and therefore, the
Court of Appeal cannot be
faulted if it did not consider
it.
Learned
Counsel for the defendant
submitted that, not having
raised this issue of refundable
security in the trial and
appellate court, it is
unacceptable for the plaintiff’s
to do so at this late stage.
The
defendants contend that the
description of the amount of
GH¢10,000.00 as a minimum
working capital is what the
parties agreed upon in their
respective pleadings. This
therefore did not make the
payment of the said amount an
issue.
Even though
learned Counsel for the
defendants made capital of the
Reply filed by the plaintiff’s
an issue, especially paragraph 3
thereof which admitted paragraph
6 of the defence, the
plaintiff’s however in paragraph
4 of the Reply made other
averments in further reply which
negate the blanket admission
made in paragraph 3 of the
reply.
Secondly, I
am of the opinion that the
reference to Section 26 of
the Evidence Act, 1975 NRCD 323
is misplaced and does not apply.
There is
absolutely nothing in the
conduct of the plaintiff’s to
call in aid the provisions of
Section 26 of NRCD 323.
In response
to the reliance by the
plaintiff’s on clauses 8 : 2 and
8 : 5 of Exhibit A, the
defendants invite this court to
refer to clauses 8 : 1, 8 :3 and
8 : 4 in order for a holistic
understanding of the provisions
therein to be captured.
After
discussing the said clauses
learned Counsel posed the
question whether upon the
material evidence that was
before both the trial judge and
the Court of Appeal the
defendants had a duty to refund
the working capital to the
plaintiffs.
Based upon
the definition of working
capital in the Oxford Concise
English Dictionary as the
“capital of a business which is
used in its day to day trading
operations, calculated as the
current assets minus the current
liabilities,” the defendants
submit that they would only be
under an obligation to refund
the said working capital if it
is established that the
plaintiffs have not used and
exhausted the said amount of GH¢
10,000.00 in their day to day
operations. My understanding of
the said submissions is that,
the plaintiffs must explain to
the satisfaction of the court
that in their day to day
business transactions with the
defendants during the period
they were in business, payments
of their supplies were effected
otherwise than by reference to
this GH¢10,000.00.
Under the
circumstances, this court would
have to ascertain whether there
was oral or documentary evidence
to suggest that the said amount
of GH¢10,000.00 had been
exhausted by the plaintiff’s in
their business dealings with the
defendants.
2.
The defendants then briefly
dealt with the arguments on the
issue of the damages of
GH¢6,000.00 awarded the
plaintiff’s by the trial court
and affirmed by the appeal
court. It is the contention of
the defendants that the reasons
given by the Court of Appeal
for dismissing the appeal on
this ground be maintained.
The Court of Appeal stated on
this ground of appeal as
follows:
“It
is to be noted that the trial
judge did not explain the basis
for the
award. What was in evidence was
Exhibit B, the sales record book
and
although the court did not
specifically refer to that
Exhibit in assessing
the quantum of damages, it is
not doubted that the figures in
Exhibit B
influenced her decision in
making the award.”
The Court of
Appeal then relied on a long
line of cases to wit:
1.
Standard
Chartered Bank vrs Nelson
[1998-99] SCGLR 810
2. Flint vrs Lovell
[1936] 1 KB 360 and
3. ZIK’s Press Limited
vrs I Koku [1951] 13 WACA 188
and by these
cases held that the award of GH
¢6,000.00 as damages by the
trial court was adequate.
Learned
Counsel for the defendants
whilst relying on the same
cases, referred also to the
following cases to support their
contention that the plaintiffs
failed to satisfy this court,
that the court of Appeal and the
trial Judge acted on wrong
principles of law or that the
amount was too low under the
circumstances.
The cases
are:
1.
Societe
Generale De Compensation vrs
Moshic Ackerman [1972] 1
GLR 413, C.A.
2. Oduro vrs Davis 1952
14 WACA 46
3. ZACCA vrs CFAO [1969]
C.C. 156
4. Owen vrs Sykes [1936]
1 KB 192 C.A per Slesser L. J at
199-200
Based on the
above submissions, the learned
Counsel for the defendants
prayed this court to dismiss the
appeal.
ISSUES FOR
DETERMINATION
From the
grounds of appeal that have been
argued in the respective
statements of case by learned
Counsel for the parties, the
following issues stand out
boldly for determination.
1.
Whether or not the Court of
Appeal was right on the basis of
evidence led before the trial
court to conclude that the
defendant’s were not entitled to
refund the GH¢10,000.00
“working capital” or “security
deposit” to the
plaintiffs upon the termination
of the dealership agreement. In
determining the above issue,
the following subsidiary but
related issue would have to be
dealt with. This is:
a. Whether this court
can consider the late
introduction of the issue of
“security deposit” raised by the
plaintiff’s of the amount of
GH¢10,000.00.
2.
Whether or not the award of
GH¢6,000.00 by the learned trial
judge and confirmed by the
court of Appeal judge is
inadequate and should be
enhanced by this
court.
CONCURRENT
FINDINGS OF FACT BY TRIAL COURT
AND APPELLATE COURT
It would
appear that the plaintiff’s have
a daunting task in this second
appeal in view of the concurring
findings of fact made by the
trial court and concurred in by
the first appellate court, the
Court of Appeal.
The
authorities are fairly well
settled that, where findings of
fact have been made by a trial
court, and those facts have been
concurred in by the appellate
court, a second appellate court
such as this Supreme Court must
tread cautiously in its attempt
to come to different conclusions
on the findings of fact.
The task is
not an impossible one, but there
are certain basic principles
that the courts have developed
over the years.
It is
pertinent to refer to some of
the important and landmark
decisions illustrating this
principle – and apply them where
necessary.
I am aware of
the principle of law which has
been stated in times without
number in a number of decided
cases both local and foreign
that where findings of fact have
been made by a trial court and
concurred in by the first
appellate court, (that is the
Court of Appeal) then the second
appellate court, in this
instant, the Supreme Court,
should be slow in coming to
different conclusions unless it
is satisfied that there are
strong pieces of evidence on
record which are manifestly
clear that the findings of the
trial court and the first
appellate court are perverse.
The above
principle was laid down in the
following cases:
1. Achoro vrs Akanfela
[1996-97] SCGLR 209 holding 2
2.
Watt (or
Thomas vrs Thomas) [1947] AC
484: [1947] 1 A.E.R. 582: 176
L.T
49, H.L
3. Clarke vrs Edinburgh
Tramways & District Tramways Co.
[1919] SCH L
35, 56 S CLR 303
4. Powell vrs streatham
Manor Nursing Home [1935] AC 243
5. Jass Co. Ltd vrs
Appau [2009] SCGLR 265 holding 4
6. Awuku Sao vrs Ghana
Supply Commission [2009] SCGLR
710 at 713,
holding 4 and
7. Obeng & others vrs
Assemblies of God Church, Ghana
to be reported in
[2010] SCGLR 1, at 5
holding 4
Where the
Supreme Court speaking with one
voice through me (Dotse JSC)
stated thus:
“Where findings of fact had
been made by the trial court and
concurred in by the first
appellate court, (as in the
instant case) the second
appellate court must be
slow in coming to
different conclusions unless it
was satisfied that there were
strong pieces of evidence on
record which were manifestly
clear that the findings of
the trial court and the first
appellate court were perverse.
It was only in such
cases that the findings of fact
could be altered thereby
disregarding the advantages
enjoyed by the trial court in
assessing the credibility and
demeanour of
witnesses” emphasis supplied.
It should
therefore be clearly noted that
in some circumstances, the
Supreme Court will depart from
the findings of fact made by the
trial Court and concurred in by
the first appellate court, such
as the Court of Appeal in this
instance.
There are
again a lot of decided cases to
illustrate instances where the
Supreme Court did depart from
such concurrent findings of
fact.
In the recent
unanimous unreported decision of
the Supreme Court dated 12th
May, 2010 suit No. J4/8/10
intituled Sylvia Gregory –
Plaintiff/Appellant/Appellant
vrs Nana Kwesi Tandoh IV and
another –
Defendants/Respondents/Respondents
the Supreme Court took pains to
state the criteria that the
court used to depart from the
concurrent findings of fact made
by the trial and the first
appellate court in that case as
follows:-
“It is therefore clear that,
a second appellate court, like
this Supreme Court can and is
entitled to depart from findings
of fact made by the trial court
and concurred in by the
first appellate court under the
following circumstances:
1. Where from the record
the findings of fact by the
trial court are clearly
not supported by evidence on
record and the reasons in
support of the
findings are
unsatisfactory.
2. Where the findings of
fact by the trial court can be
seen from the record
to
be either perverse or
inconsistent with the totality
of evidence led by
the witnesses and the
surrounding circumstances of the
entire evidence
on record.
3. Where the findings of
fact made by the trial court are
consistently
inconsistent with
important documentary evidence
on record.
4. Where the first
appellate court had wrongly
applied the principle of law
in
Achoro vrs Akanfela (already
referred to supra) and other
decided
cases on the
principle, the second appellate
court must feel free to
interfere with the
said findings of fact, in order
to ensure that absolute
justice is done in the case”.
The Supreme
Court in a unanimous decision in
the case of Fosua and Adu
Poku vrs Dufie (deceased) and
Adu Poku Mensah, [2009] SCGLR
310 at 313, also
differed from the findings of
fact made by the trial court and
the first appellate court.
By those
decisions, the Supreme Court as
it were followed principles of
law laid down in cases like:
1.
Bisi vrs
Tabiri [1987-88] 1 GLR 360 at
368 and the locus classicus
decision in
2.
Koglex (No. 2) vrs Field [2000]
SCGLR 175
This
therefore means that, for
example, as in the instant case,
where much of the evidence has
turned on documentary evidence,
then there is very little
advantage that the trial court
has had over and above the
appellate courts by virtue of
the observing of the demeanour
and credibility of witnesses. In
such a case, the probative value
or weight that will be attached
to the mass of documentary
evidence on record by this
Supreme Court is the same as the
learned trial judge had when she
heard the case as the court of
first instance or trial court.
From the
evidence on record by which is
meant the pleadings which have
been admitted, the evidence led
by the plaintiff’s
representative as well as the
documentary evidence, it is
clear that the learned trial
judge made the wrong deductions
from the evidence on record, and
the Court of Appeal also fell
into that same error by
concurring in them.
WHAT ARE SOME
OF THOSE INSTANCES?
1. By
paragraph 2 of the defence, the
defendants admitted paragraph 3
of the statement of
claim by which the plaintiff’s
averred that they paid a total
of GH¢10,000.00 to the
defendants as minimum working
capital.
2. By
paragraph 10 of the defence, the
defendants again admitted the
occurrence of armed robbery
attacks at the plaintiff’s Legon
Road Station, thereby giving
proof to plaintiff’s
paragraph 8 of the statement of
claim and by necessary
implication the issue of force
majeure i.e. act of God. Refer
to clause 21 of exhibit
A.
3. An
admission by the defendants of
the receipt of a further sum of
GH¢4,930.00 from the
plaintiff’s but deny that they
induced them to obtain this
facility from their
Bankers to improve their credit
rating.
4.
Since exhibit A, has been
admitted by the defendants and
accepted by the
Court, the definition of minimum
working capital in sections 8:3
and 8:4 ought to have been used
by the learned trial Judge in
her evaluation of the evidence.
5. It
is also clear from clause 8:5 of
exhibit A, that the Dealer, in
this case the
plaintiff shall pay for all
products purchased from shell in
such manner and in such
terms as shall be determined by
Shell, i.e. the defendants.
6.
This therefore connotes an
irresistible conclusion that the
GH¢10,000.00 paid to the
Defendant’s by the plaintiff was
not the amount from which
the purchase of petroleum
products was to be made.
Instead, the
impression is created that it is
like a deposit paid and lodged
with the defendants and
held as a security deposit.
Assuming without admitting
that it is the amount from which
purchases were made, then there
was the need for the
parties to have gone into
accounts for the court to
ascertain the
veracity of who owed who and
what balance was
outstanding.
7. It
is also clear that the
defendant’s failed to give the
requisite three (3) months
notice as required by clause
25:1 and this was rightly found
by the trial Judge.
8.
From the evidence on record, it
is clear the plaintiff’s
representative was emphatic
in his testimony that as a
result of the wrongful
termination of the contract,
he lost the GH¢10,000.00 as well
as the additional overdraft of
GH¢4,930.00. All these were not
addressed by the learned trial
Judge and there is no
evidence to the contrary.
9.
From the nature of exhibits D
and E, it is clear that there
was the need for the
parties to have gone into
accounts in view of the
different figures and minimum
working capital they all stated
in their letters exhibits D and
E.
10.
From the assessment that was
done by the learned trial Judge,
it is clear that exhibit B
was not factored into the
computation. Otherwise, the
figure would have shown some
upward adjustment.
On the whole,
it is my considered opinion that
the evaluation of the entire
evidence on record by the
learned trial Judge did not meet
the standard required of her.
She was required to evaluate the
evidence on a balance of
probabilities but this she
failed to do, even though she
correctly stated the principle
in Majolagbe vrs Larbi
[1959] GLR 190. It is
for the above reasons that I am
of the opinion that the
concurrent findings of fact by
the trial court and the Court of
Appeal being inconsistent with
the evidence on record same must
be departed from.
This then
brings me to the consideration
of the issues set down supra.
ISSUE 1 and 1
(a)
1.
Whether or not the Court of
Appeal was right on the basis of
evidence led before the trial
court to conclude that the
defendant’s were not entitled to
refund the GH¢10,000.00
“working capital” or “security
deposit” to the
plaintiffs upon the termination
of the dealership agreement. In
determining the above issue,
the following subsidiary but
related issues would have to be
dealt with. These
are:
a. Whether this court
can consider the late
introduction of the issue of
“security deposit” raised by the
plaintiff’s of the amount of
GH¢10,000.000.
One issue
that has been hotly contested in
this appeal is whether the
plaintiff’s are entitled in law
to raise for the first time
before this court the issue of
payment of GH¢10,000.00 as a
security deposit and no longer
as a “working capital”.
This
principle featured prominently
in the Supreme Court decision in
the case of
Attorney-General vrs Faroe
Atlantic Co. Limited [2005-2006]
SCGLR 271, at 279 holding 8,
particularly at 309 per Georgina
Wood JSC, as she then was.
In the above
case, the Supreme Court stated
the following general principles
of law which I think should be
applied in this case. The court
held as follows:
“Generally, where a point of
law had not been raised in the
trial court and the
intermediate Court of Appeal it
might not be raised in the
Supreme Court as the final
appellate court. However, there
were exceptions to the general
rule, first namely (i) a
jurisdictional issue could be
taken or raised at any time,
even for the time, (ii)
where an act or conduct has been
made illegal by statute or where
an action has been brought on a
contract which was ex facie
illegal, it was the
duty of the Court to take the
point even though it might not
have been raised by
the defendant, (iii) and
where the legal question sought
to be raised for the first time
was substantial and could be
disposed of without the need for
further evidence such as the
constitutional issue raised by
the defendant in the instant
appeal. Consequently, the
office of the Attorney-General,
as the defendant appellant, was
obliged to raise in the instant
appeal the point of law founded
on article 181 of the
Constitution even if belatedly,
in discharge of its obligation
to uphold the Constitution. And
the court was equally obliged
not to refuse to consider a
point of law directly relating,
as on the facts of the instant
case, to real issues relating to
the interpretation and
enforcement of the
Constitution.”
Explaining
the reasons for her opinion in
the above cited case Georgina
Wood JSC as she then was on page
309 of the report stated thus:-
“The salutary and well known
general rule of law is that
where a point of law is
relied on in an appeal, it must
be one which was canvassed at
the trial. But there are
exceptions to this rule, the
question of jurisdiction being
one of them. Another exception
is that where an act or contract
is made illegal by statute …
Again, the well established
general rule is that where the
legal question sought to be
raised for the first time is
substantial and can be disposed
of without the need for further
evidence, it should be allowed.
Substantial
constitutional issues, such as
the one raised before us, falls
neatly into this category”.
Emphasis supplied
I have had to
quote in extenso from the
Attorney-General vrs Faroe
Atlantic Co. Ltd. case
referred to supra to establish
the fact that, even though the
task of raising for the first
time an issue not raised in the
trial and first appellate court,
but raised in the final
appellate court such as this
Supreme Court, is a rare
phenomenon, the task
nevertheless is not
unsurmountable in view of the
clearly established legal
principles on the point.
Relating the
well formulated principles in
the Attorney-General vrs
Faroe case to the
circumstances of the instant
appeal, the impression is clear
that the plaintiff’s rely purely
on contract contained in the
Dealership Agreement, exhibit A,
to shift their grounds that the
GH¢10,000.00 was in real terms a
“security deposit” and not a
“working capital” as mistakenly
referred to in the trial and
appeal courts.
The argument
for this change in their
submissions has been founded on
clause 8:5 of exhibit A which
has already been referred to but
for purposes of emphasis states
as follows:
“The
Dealer shall pay for all
products purchased from Shell in
such manner, and on such terms
and at such times as shell
shall advise from time to time
and Shell may cease making
deliveries to the Dealer upon
the failure of the Dealer so to
pay”.
Construing
the above provisions strictly, I
am of the view that, unless
there is evidence to the
contrary, it is to be understood
that, the plaintiffs were made
to pay for all products
purchased from the defendant’s
directly and this was not a
credit sale transaction which
was to be debited against their
account of GH¢10,000.00.
Furthermore,
once the details of exhibit A,
the dealership agreement are
already in evidence, no further
evidence or submissions ought to
be made to enable this court
come to a conclusion one way or
the other on the subject matter.
Thirdly, it should be noted that
the issue of whether the amount
of GH¢10,000.00 is a working
capital or security deposit is a
substantial issue of law, whose
determination will definitely
enhance or diminish the fortunes
of the parties involved in this
contest.
On the basis
of the formulation in the
Attorney General vrs Faroe
case already referred to supra,
I am of the considered view that
it is perfectly legitimate for
the said issue to be raised for
the first time in this court and
considered.
From the
definition of what constitutes
minimum working capital in
clauses 8 : 3 and 8 : 4 of
Exhibit A, it is clear that what
is envisaged as a working
capital is distinct and separate
from the GH¢10,000.00 paid by
the plaintiff’s to the
defendants.
In the first
place, it has to be noted that,
this minimum working capital by
clause 8:3 is not fixed, but
shall be prescribed by the
defendants from time to time.
Secondly, by
the definition in clause 8:4 of
exhibit A, it is also apparent
that this working capital
includes the following:
a.
The value of all products of the
defendants at the Station at a
given time.
b.
The value of products in
transit, these include products
paid for and receipts
issued which are yet to be
received at the station.
c.
Cash at hand at the station,
which includes the previous days
sales on a working day, at
weekends comprises the sales of
two previous days sales
commencing Friday up to point of
recording. These shall however
never include credit sales
made to the dealer, in this case
the plaintiffs.
d.
The balance on the Dealers
(plaintiff’s) account with
shell.
Considering
the above definitions and the
evidence led by the plaintiff’s
representative to the effect
that
“The first condition was for the
plaintiff to pay GH¢10,000.00 as
deposit as a working
capital”.
and the
totality of the above pieces of
evidence, I am of the firm
conviction that, on a balance of
probabilities, the amount of
GH¢10,000.00 paid by the
plaintiff’s to the defendants,
in real terms was a security
deposit and not a working
capital as erroneously described
in the lower courts.
Ordinarily
any balance that has been
adjudged as due and owing the
defendants by the plaintiff’s
has to be deducted from this
security deposit and the balance
paid over to the plaintiff’s.
However,
considering the unsatisfactory
nature of the way the learned
trial Judge handled this
question and the conduct of the
defendants in unilaterally using
the extra amount of GH¢4,930.00
paid by plaintiff’s to
defendants to set off their
debts, I am of the view that,
the plaintiff’s are therefore
entitled to a full refund of
this amount of GH¢10,000.00 from
the defendants.
This
therefore leaves me with the
resolution of the last issue 2.
ISSUE 2
Whether or
not the award of GH¢6,000.00 by
the learned trial Judge and
confirmed by the Court of Appeal
is inadequate and should be
enhanced by this Court.
If as was
duly recognized by the learned
trial Judge, the plaintiff’s
were able to discharge both the
burden of proof and standard of
proof on balance of
probabilities, in respect of
relief (5) claimed by the
plaintiffs then it appears the
award of GH¢6,000.00 as general
damages is on the low side.
In this case
the learned trial judge referred
to the case of Majolagbe
vrs Larbi and others,
already referred to supra. In
that case, Ollenu J, as he then
was reiterated an earlier
principle stated in Khoury
and another vrs Richter
(unreported) which stated thus:
“Proof in law
is the establishment of facts by
proper legal means where a party
makes an averment capable of
proof in some positive way, e.g.
by producing documents,
description of things, reference
to other facts, instances, or
circumstances and his averment
is denied, he does not prove it
by merely going into the witness
box and repeating that averment
on oath, or having it repeated
on oath by his witness. He
proves it by producing either
evidence of facts and
circumstances, from which the
Court can be satisfied that what
he avers is true.”
In this case,
apart from the evidence of the
plaintiff’s representative, the
exhibits already referred to
supra were also tendered into
evidence. In my estimation, the
learned trial Judge should have
considered the effect of some of
the exhibits in relation to the
damages she awarded to the
plaintiffs.
I have also
considered the authorities
referred to by the plaintiffs
and defendants on the issue of
the assessment of damages.
In sum, I am
of the view that an appellate
court, such as this court must
consider the following
principles whenever the issue of
inadequacy or excessive nature
of an award has arisen. These
are:-
a.
That the Judge acted on some
wrong principles of law.
b.
That the amount awarded was so
extremely high or so very small
as to make it, in the judgment
of this (Court) an entirely
erroneous estimate of the damage
to which the plaintiff is
entitled.”
In this
appeal, exhibit B, which was
tendered by the Plaintiffs,
constitutes the sales volume of
Shell Service Stations in Ghana
in order of performance for
1998.
From the
exhibit B, the plaintiff’s
station at the time was the 5th
best performing station with
total sales for the period of
January – June (6 -month period)
recording ¢3,245,915 in today’s
currency GH¢324.59.
If one
considers the price of fuel or
petroleum products at the time
and the volume of sales as was
captured in that exhibit, and
considering also the fact that
the 1st best
performing service station
clocked ¢4,468,500 in Ghana
cedis GH¢446.85, it means that
the plaintiffs must have been in
good business.
Exhibit B,
should not be considered in
isolation. Other factors like
the amount of GH¢10,000.00 which
the plaintiff’s are admitted to
have invested into the business
with the additional investment
of GH¢4,930.00, then it meant
that not only was the business
one that involved huge movements
of funds, but also was a fast
moving commodity as the monthly
returns in exhibit B have
indicated.
It is again
apparent from exhibit G, the
police report on the armed
robbery attack at the
plaintiff’s station on 8/7/1999
at 3.30am that an amount of
¢22,645 and ¢339.00 in Ghana
cedis GH¢2.67 and GH¢0.04 were
stolen on that particular day.
This is just
to indicate the volume of sales
and monies that the plaintiff’s
were making before the
termination of the contract.
From the
above analysis, it is quite
clear that the Judge did not
consider any of the above
factors before the grant of the
award.
Secondly,
considering the analysis that
has been made in respect of the
business fortunes of the
plaintiff’s at the material time
before the termination, the
award of GH¢6,000.00 should be
considered as woefully
inadequate and not consistent
with what they have lost as a
business entity.
However, it
must also be stated that, the
plaintiff’s could have done
better by giving further and
better particulars indicating
details of their margins by way
of commission from the
defendants. If that had been
done the court would have been
placed in a better position to
assess the loss that the
unlawful termination has caused
the plaintiffs.
Considering
all these issues, I will enhance
the general damages awarded the
plaintiffs from GH¢6,000.00 to
GH¢10,000.00 as the adequate
compensation due plaintiffs in
terms of damages. This is
because by the unilateral action
of the defendants in terminating
them, plaintiff’s have
completely lost on their
investment and future earnings.
J.V.M.
DOTSE
JUSTICE OF
THE SUPREME COURT
COUNSEL:
KENNETH
MAINOO FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
STANLEY
AMARTEIFIO FOR THE
DEFENDANT/RESPONDENT/RESPONDENT.
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