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JUDGMENT:
The Plaintiff is claiming
against the Defendants, the
following reliefs:
“ a. General Damages for
breach of contract
b. Loss of profit on
export of the teak
c. The amount Plaintiff
has over paid Defendants for the
overestimation of the total
teak volume on the said
concession.
d. GH¢42,000 in
demurrage charges from
transporters
occasioned by Defendants’
unlawful delays in processing
conveyance of work
e. GH¢57,500 for the 23
days of work stoppage from March
25, 2009
f. GH¢2,500 per each
day from May 8, 2009 until the
day
Defendants lift the ban or
until judgment, whichever is
earlier in time
g. Any further and other
damage(s) as the Court shall
deem
fit or as the circumstances
of the case shall demand
h. Costs, including
attorney fees.”
The Plaintiff’s case is that it
won by competitive bidding and 1st
Defendant granted Plaintiff the
right to fell teak timber from
the Kaboso West Taungya Series
in the Kabo River Forest Reserve
(“the concession”). Having won
the competitive bidding for the
said concession, Plaintiff and 1st
Defendant entered into a
Plantation Utilization Contract
for the period 14th
April 2008 to 13th
April 2009. 1st
Defendant initially indicated by
the contract that the concession
contained a total teak volume of
12,671Cubic Meter (m3).
However, upon re-assessment, it
was confirmed that the actual
teak volume of the concession
was much lower than what was
stated in the contract. On the
31st March, 2009, 1st
Defendant revised the assessed
total teak volume from 12,671m3
to 6,773m3.
As a further condition for the
grant, which Plaintiff performed
relying on the understanding
that Defendants would not
derogate from the grant,
Plaintiff secured a performance
guarantee from its bank at a
substantial cost of GH¢22,000.
According to Plaintiff, it paid
GH¢1,662,729.77 for the grant at
GH¢245.50 per cubic meter based
on a total teak volume of 6773m3.
Upon further due diligence
however the Plaintiff believes
the actual teak volume in the
concession is 4,700m3
and despite protestations,
Defendants have refused to
revise the teak volume and
refund the excess payment by the
Plaintiff back to it. It is
Plaintiff’s estimation that it
has overpaid Plaintiff by
GH¢508,921.50. Plaintiff’s
further case is that it had to
take a bank facility and
committed the facility to the
wrong total volume of 12,671m3
provided by 1st
Defendant for the concession.
Plaintiff also entered into a
Social Responsibility Agreement
(SRA). The Social
Responsibility Agreement
required Plaintiff to provide
assistance to the community at
GH¢1.18 per cubic meter on the
total volume of timber to be
removed from the concession.
Even at the total volume of
6,773m3, Plaintiff
was to pay a total Social
Responsibility obligation of GH¢7,992.14.
Plaintiff had paid a total of GH¢5,500,
i.e. 68.8% of the total required
amount although Plaintiff had
removed a total of 2,490m3
of teak timber representing
36.7% of the total teak volume
of 6773m3.
Plaintiff claims further that in
the course of Plaintiff’s
operations in the felling and
export of the teak, 2nd
Defendant put a lot of improper,
unlawful impediments in
Plaintiff’s way and
unnecessarily stopping Plaintiff
from its rightful operations.
That Defendants on a number of
occasions unlawfully stopped
Plaintiff from its operations in
the concession. Defendants
conduct, Plaintiff states, is in
breach of the contract, is
improper, unlawful and derogates
from the grant. As a result of
the said conduct, Plaintiff has
suffered and continues to suffer
damages. Plaintiff
particularized the special
damages as follows:
a.
GH¢42,000 in demurrage charges
from transporters occasioned by
Defendants’ previous unlawful
stoppage of work.
b.
GH¢57,500 for the 23 days of
work stoppage from March 2, to
March 25, 2009.
c.
GH¢2,500 per each day from May
8, 2009 until the day Defendants
would lift the ban or until
judgment, whichever is earlier
in time.
d.
Loss
of profits on export of the
teak.
e.
The
amount of GH¢508,921.50 being
over payment to Defendants for
Defendants’ over estimation of
total volume of teak trees by
2073m3.
The Defendants admit that 1st
Defendant entered into a
contract with Plaintiff but deny
that Plaintiff satisfied all
conditions prior to the issuance
of entry permit. Defendants’
contention is that 1st
Defendant indicated that the
concession had estimated total
volume of 12,671m3,
nonetheless Plaintiff had ample
opportunity to employ due
diligence in assessing the
volumes involved before
accepting the offer made by the
Defendants. Defendants also
state that the re-assessment
carried out revealed that some
of the teak trees enumerated in
the initial assessment had been
damaged by fire to the extent
that they could not be felled
for use as timber; hence such
trees were not enumerated during
the re-assessment. Another
significant observation was that
holes were detected in lower
sections of some of the teak
trees that might have been
caused by wildfires and
senescence of the teak trees at
the site. It was also detected
that Plaintiff’s harvesting
operation was ineffective as
indicated by a high level of
waste that characterised
Plaintiff’s operations. For
instance, just one or two
billets were produced from an
entire log, and the remaining
lengths were abandoned on many
occasions.
Defendants state further that
Plaintiff paid 50% i.e. GH¢1,662,729.77
as the initial deposit in
respect of the GH¢3,110,730.50
for the 12,671m3
initially estimated. Plaintiff
paid the said amount as a
requirement before it commenced
operations in the area
allocated. Defendants also
state that they took into
consideration payment of the 50%
initial deposit before demanding
payment of GH¢107,379.77 from
Plaintiff by 3rd
April 2009 to ensure full
payment for the re-assessed
volume of 6,772.83m3
at GH¢245.50 per cubic meter.
It is therefore Defendants’
contention that Plaintiff never
fully paid for the 12,671m3
initially estimated but only 50%
of the value thereof (GH¢1,662,729.77).
The Plaintiff accepted the
re-assessed total volume of
6,772.83m3 being GH¢107,379.77
since March 31, 2009 but has
failed and/or refused to pay the
said amount.
The issues set down for the
trial were as follows:
a.
Whether or not Plaintiff was
granted the right to harvest
teak trees from the Kaboso West
Taungya Series in the Kabo River
Forest Reserve (the Concession)
b.
Whether or not the teak volume
in the said concession was
overestimated by Defendant.
c.
Whether or not as a result of
the overestimation, Plaintiff
overpaid Defendants by
GH¢508,921.50
d.
Whether or not Defendants
unlawfully stopped Plaintiff
from its operations in the
concession from March 2nd
to March 25th, 2009 and
indefinitely from May 8th,
2009.
e.
Whether or not Plaintiff
overpaid Social Responsibility
to the Community.
f.
Whether or not Defendants caused
unlawful delays in processing
conveyance permits.
g.
Whether or not Defendants
breached the contract with
Plaintiff and/or derogated from
its grant of the concession to
Plaintiff
h.
Whether or not Plaintiff is
entitled to its claim.
In my opinion, the fact that
Plaintiff was granted the right
to harvest teak trees from the
Kaboso West Taungya Series in
the Kabo River Forest Reserve is
not in dispute. As stated
above, the gravamen of
Plaintiff’s case is that the
concession allocated to
Plaintiff was over estimated by
Defendants as a result of which
Plaintiff overpaid Defendants.
Also Plaintiff overpaid the
Social Responsibility obligation
to the community. Furthermore,
Defendants unlawfully stopped
Plaintiff from its operations.
Defendants have therefore
breached the contract, and/or
derogated from its grant of the
concession to Plaintiff.
Plaintiff has consequently
suffered injury and loss.
The evidence adduced on behalf
of Plaintiff by Dilesh Patel,
P.W.1, who said he was a
Director/Shareholder of
Plaintiff Company, was that
pursuant to the execution of
Plantation Timber Utilization
Contract (Exhibit “C”),
Plaintiff was granted permission
per exhibit “D”, to harvest the
allocated teak trees within the
allotted concession. P.W.1’s
further evidence was that
Plaintiff engaged one Mr. Bright
of Ingot Company to complete the
operations under exhibit “C” on
behalf of the Plaintiff.
According to P.W.1, the
prospectus stated that there
were 20,885 standing trees with
the volume being 12,671 m3.
The Plaintiff signed a contract
with the contractor and the
operator to do the complete
operation for Plaintiff.
Mr. Patel ran the Court through
what the operations entailed.
His evidence was that Plaintiff
having paid the price, the role
of the 1st Defendant
was to measure the log which is
the volume of the tree. After
the measurement had been taken,
then the Plaintiff was permitted
to load the log unto their
container. After the total
volume of the log loaded into a
container was determined, the
final document was sent to the
Plantation Manager to sign off
the conveyance. The Conveyance
is the document which allowed
the transporter to take the logs
from the site to the Tema Port
for shipping.
The further evidence of Mr.
Patel was that the logs were not
measured in time at the
beginning; Defendants would not
sign the conveyance on time; and
the transporter refused to send
the containers to Plaintiff
because the conveyance had not
been signed. This cost
Plaintiff demurrage charges.
Furthermore, 1st
defendant stopped Plaintiff from
working on four (4) different
occasions. In spite of all the
difficulties, Plaintiff managed
to export 2,490 cubic meters
from the overall 12,671 trees
allotted to the Plaintiff. Mr.
Patel tendered in evidence a
letter from 2nd
Defendant dated 2nd
March 2009 (Exhibit “E”) in
which letter, Plaintiff was
stopped from working without
giving any reason for the
stoppage. Pursuant to an appeal
to the Minister for Lands,
Forestry and Mines (Exhibit “F”)
the “suspension” of logging and
harvesting operations was lifted
per letter dated 25th
March 2009 (Exhibit “G”).
So, what evidence did the
Defendants’ lead to rebut this?
The 2nd Defendant and
Hugh-Clement Addoquaye Brown,
Operations Manager of the 1st
Defendant Company gave evidence
for the Defendants. According
to Mr. Addoquaye Brown, prior to
the grant of a Timber
Utilization Contract, an
inventory of the area in
question was taken and trees to
be harvested were clearly
marked. Any tree that fell
outside of those marked for
felling or any other species
felled outside those allocated
constituted an offence under the
law.
Mr. Addoquaye Brown’s evidence
was that about eight (8) months
after the grant of a permit was
made to Plaintiff, the Company
wrote to 1st
Defendant indicating that after
working for sometime they had
contracted the services of some
forestry expert who had combed
through the concession and in
their estimation, the 12,671m3
which they had bid for would not
be realized at the end of the
operation. Plaintiff therefore
requested for re-assessment of
the standing trees (Exhibit
“4”). With the consent of the
CEO of 1st Defendant,
a request was made to Plaintiff
to pay the re-assessment fee to
enable the exercise to be
undertaken (Exhibits “5” and
“6”). And even though, according
to Mr. Addoquaye Brown, they
found the request rather strange
coming in the middle of
Plaintiff’s operations. 1st
Defendant acceded to the
request.
A team was constituted, after
the fee was paid, and the
exercise commenced in February
2009; the exercise ended in
March 2009. The Report that was
generated at the end of the
exercise was tendered in
evidence as Exhibit “7”. He
said the Plaintiff’s operations
were stopped to allow the
exercise to be conducted. After
the re-assessment, the Plaintiff
was informed about the new
volume, which was much lower
than what had been advertised
during the competitive bidding.
The value that was realised was
more than the 50% deposit that
Plaintiff had paid and so
Plaintiff was asked to pay the
difference owed to the 1st
Defendant per letter dated 31st
March 2009 (Exhibit “H”). The
balance to be paid was stated as
GH¢107,379.77, and Plaintiff was
to make the said payment by 3rd
April 2009.
It was also Mr. Addoquaye
Brown’s evidence that while the
re-assessment was going on, the
1st Defendant
received directives from the
Ministry to stop the operations
of all timber companies in the
Volta Region to enable some
investigations to be
undertaken. The two incidents,
according to him, occurred
simultaneously. He denied any
knowledge of Plaintiff’s
allegation that 1st
Defendant had again suspended
their operations since 8th
May 2009, and stated that
Plaintiff’s permit expired on 28th
May 2009; He said the earlier
suspension at the instance of
the Ministry was lifted around
the said period.
So, did the Defendants over
estimate the teak tree volume in
the allotted concession as is
being alleged by Plaintiff?
Even though the evidence of
D.W.1 was that the Plaintiff
voluntarily bid for the
concession based on independent
assessment carried out by
Plaintiff itself; and also that
Plaintiff operated in the area
for eight (8) months before it
requested for re-assessment of
the teak volume; the fact of the
matter is that the total teak
volume of 12, 671m3
stated in the Plantation Timber
Utilization Contract (exhibit
“C”) was reduced to 6,772.83 m3
after the re-assessment
exercise.
The Report and or findings of
the team which carried out the
re-assessment stated the reasons
which accounted for the
shortfall in volume. The first
reason attributed fire out break
as the cause of the shortfall
and it is presumed that the fire
outbreak took place after the
initial assessment. Another
significant observation was the
issue of holes in lower sections
of teak trees that might have
been caused by wildfires in the
area. Some of the teak trees
were observed felled but
rendered useless by the large
holes. Thus some lying logs
with holes were excluded from
the measurement of the log
length during the
re-assessment. The report also
conceded that 10% of the
sampling intensity employed in
the estimation of the standing
tree volume during the initial
assessment might have been
biased, and this might have over
estimated the mean volume.
Lastly, the level of waste
associated with Plaintiff’s
harvesting operations during the
early stages was relatively
high.
These pieces of evidence were
not debunked by the Plaintiff.
Plaintiff did not lead an iota
of evidence to establish the
basis for their belief that the
correct volume ought to be 4,700
m3. I will therefore
find that even though the teak
tree volume was reduced as a
result of the re-assessment,
Plaintiff has not been
established that 1st
Defendant over estimated the
volume in its initial
assessment.
The evidence placed before the
Court was that as a result of
the re-assessment, the total
outstanding amount owed by
Plaintiff on the contract was GH¢107,379.77
which was to have been paid by
the Plaintiff by 3rd
April, 2009. Plaintiff led no
evidence to establish its claim
that it had over paid Defendants
by GH¢508,921.50 as a result of
the said over estimation of the
teak volume. As a matter of
fact, Plaintiff has not
established that it has overpaid
Defendant by any amount
whatsoever; and I will so find.
The evidence adduced on behalf
of the Defendants was that when
Plaintiff failed to pay up the
outstanding balance of GH¢107,379.77
by the deadline of 3rd
April 2009, 1st
Defendant wrote to the
Plaintiff’s bankers,
Intercontinental Bank, to demand
payment under a Guarantee issued
by the Bank. The Bank complied
and paid. The Bank subsequently
informed 1st
Defendant that Plaintiff had
defaulted in some payments to
the Bank, and therefore
requested the 1st
Defendant to hand over the
rights of harvest in the
concession to the Bank (Exhibit
“8”). 1st Defendant
wrote to Plaintiff informing
them of the Bank’s demand and
requested for their consent
(Exhibit “9”). Plaintiff wrote
back to 1st Defendant
to ask for time to consult their
majority shareholder (Exhibit
“10”). Subsequently, Plaintiff
wrote to 1st
Defendant on December 2, 2009
giving their consent for the
transfer (Exhibit “11”). 1st
Defendant consequently wrote to
the Bank to fulfil certain
conditions and when those were
fulfilled, the area was
transferred to the Bank. So the
concession has been allocated to
Intercontinental Bank.
Plaintiff did not lead evidence
to debunk any of the above
stated pieces of evidence.
However, the Plaintiff’s case is
that during the existence of the
contract between them and 1st
Defendant, 1st
Defendant stopped Plaintiff’s
operations in the concession on
three (3) separate occasions.;
(1) for an alleged illegal
felling; (2), without stating
any reason; (3) for allegedly
failing to pay on a Social
Responsibility Agreement (SRA)
and compensation to some farmers
who complained about their crops
having been destroyed. And (4),
Defendants refused to issue
Plaintiff with conveyance
certificate (LMCC) to enable
Plaintiff transport its teak
lumber to the Port for
shipment. It is Plaintiff’s
claim that the said stoppages
were in breach of the contract,
were improper, unlawful and
derogated from the grant of the
concession by Defendants. As a
result of Defendants’ conduct,
Plaintiff contends that it
suffered and continues to suffer
damages as endorsed on the writ
of summons.
It is trite learning that if a
contract has been breached, or
if a breach is threatened or
imminent, there must be a
remedy. And, damages are the
normal remedy for a contracting
party who suffers as a result of
a breach of contract by the
other. In a claim for damages,
the court considers two matters;
remoteness of damages (i.e. the
proximate cause of the breach)
and the measure of damages (i.e.
quantum or the amount of money
that must be awarded).
Remoteness of damages means that
the damage i.e. the loss
suffered and therefore claimed
must be proximate to the breach.
The case of Hadeley v
Baxendale [1854] 9 Ex. 341
is the locus classicus.
This case supplies two tests for
determining which damages are
proximate and recoverable, and
which are too remote and
therefore unrecoverable. The
tests are:
1.
Do the
damages arise naturally from the
breach? Or
2.
Were
the damages reasonably
contemplated by both parties
when they made the contract as
being a probable result of the
breach.
The first damage suffered by
Plaintiff, according to P.W.1
was with regard to
transportation of logs to the
Tema Port. The Plaintiff’s case
is that the 2nd
Defendant unnecessarily and/or
wilfully delayed/withheld the
processing of conveyance permit
to enable Plaintiff’s teak which
it had prepared and loaded into
trucks to be conveyed to the
Port. P.W.2, Bhavish Patel, who
said he represented the
international investors and
assisted in the day to day
operations of Plaintiff Company
also testified on behalf of
Plaintiff. P.W.2 however did not
corroborate the evidence of
P.W.1 that the alleged conduct
of the Defendants to the effect
that 2nd Defendant
unlawfully delayed in processing
Plaintiff’s conveyance permits.
Both P.W.1 and P.W.2 testified
that Plaintiff engaged the
services of one Bright to carry
out its operations, but the said
Bright was not called to
testify. In my opinion, Mr.
Bright is a material witness and
should have been called to
testify.
2nd Defendant denied
the allegation that he
delayed/withheld the processing
of conveyance permits and
testified that the Plaintiff
exhibited some level of
incompetence and
unprofessionalism in their
operations. When they started
their operations they used some
local boys within the community
who were inexperienced in
loading the trucks and thus it
took them longer than usual to
load the containers. His
further testimony was that
Plaintiff only used the
allegation that 1st
Defendant was the cause of the
delay as an excuse to the truck
owners. 2nd
Defendant also said that
Plaintiff was incompetent in
processing or computing the
volumes of the material
contained in their packing list,
resulting in delays. And even
though, 2nd Defendant
conceded that he refused to sign
LMCC’s when there were
complaints against Plaintiff
with regard to the Plaintiff’s
obligations under the SRA, in my
opinion Plaintiff did not lead
sufficient evidence to establish
that this was the cause of the
alleged damage suffered by
Plaintiff.
The position of the law as
stated in the oft-cited case of
Majolagbe v Larbi [1959]
GLR 190 at 192 is that:
“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.,
producing documents,
descriptions 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 by oath,
or having repeated by his
witness. He proves it by
producing other evidence of
facts and circumstances from
which the court can be satisfied
that what he avers is true”.
Plaintiff also alleged that
Defendants unlawfully stopped
their operations a number of
times. The first occasion was
when 1st Defendant
accused Plaintiff of illegally
felling three (3) trees which
were not the approved teak but
of different species; namely
mahogany and emire. Plaintiff’s
case is that it agreed to pay
the fine/fee although it was not
guilty of the offence. But more
importantly, it is Plaintiff’s
case that the contract did not
give Defendants the right to
stop the Plaintiff from
operating. 2nd
Defendant’s evidence was that
Plaintiff’s permit only allowed
them to fell teak trees and
within their operational area.
However, during the course of
its operations it was found that
Plaintiff had felled some
mahogany and emire trees.
Plaintiffs were accordingly
fined with a deadline of August
28th 2008 to pay the
fine. Plaintiff failed to pay
the fine even after three (3)
months.
2nd Defendant’s
further evidence was that they
were forced to stop Plaintiff
from operating to put pressure
on them to pay the fine.
Plaintiff was allowed to resume
its operations after it made
part-payment of the fine. 2nd
Defendant conceded under
cross-examination that per the
contract, he was to report any
act of non-compliance to the
Chief Executive Officer (CEO) of
1st Defendant. I
will therefore find that the
contract did not permit 2nd
Defendant to stop Plaintiff’s
operations. The fact however
remains that Plaintiff did not
establish that it was not liable
for not complying with the terms
of the permit.
Plaintiff’s further case is that
Defendants again unlawfully
stopped it from operating from 2nd
to 25th March, 2009.
Exhibit “E” captioned “ORDER TO
STOP WORK” was tendered in
evidence. In the said letter, 2nd
Defendant stated that he had
been directed by the Executive
Director to stop the operations
of all contractors granted
permit to harvest plantation
timber within the Jasikan
Plantation Area. The letter was
addressed to eleven (11)
companies including Plaintiff.
Defendants contended that as
provided in the Contract, the 1st
Defendant gave the reason for
the stoppage; the reason being
that they had been instructed to
suspend operations.
Ordinarily, I would not accept
that this satisfies the
requirement of stating a reason,
but in my opinion there are
unanswered questions with regard
to this issue. For a start, the
provision that Plaintiff is
coming under is captioned
“Timber Operations Inspection
Officers”. It is therefore not
clear that it applies to the
situation in question. Also, it
was the evidence of D.W.1, that
the period in question coincided
with the period when the
re-assessment was done, and
therefore during that period,
Plaintiff could not have
continued with its operations.
His further evidence was that
the stoppage did not go beyond
the period of the re-assessment
exercise. The evidence before
the Court is that Plaintiff was
asked to resume their operations
after the re-assessment. In my
opinion there is not sufficient
evidence placed before the Court
to convince it that Defendants
had breached the terms of the
Contract.
Plaintiff is also claiming that
it has overpaid its Social
Responsibility obligation to the
community. The evidence before
the Court is that the Plaintiff
was to pay GHc1.18 per cubic
meter for the 12,671 m3.
Hence Plaintiff was expected to
pay an amount of GH¢14, 951.78
for the 12,671m3. The
evidence of both D.W.1and 2nd
Defendant was that at the time
Defendants stopped Plaintiff for
alleged non-payment of SRS,
Plaintiff had paid GH¢5,500.
Plaintiff’s unchallenged
evidence was that at the time of
the final stoppage, Plaintiff
had removed a total of 2,490 m3.
By simple arithmetic,
therefore, Plaintiff was to pay
GH¢2, 938.2. I will find
therefore, that Plaintiff had
indeed overpaid its Social
Responsibility obligation to the
community. However, there is
no specific claim for the
overpayment, although the issue
was set down for trial. This is
a specific payment made by
Plaintiff and therefore cannot
form part of the damages being
claimed by Plaintiff. Since
Plaintiff has made no specific
claim for any amount, the Court
cannot give to the plaintiff
what it has not asked for.
The other matter to be
considered is the measure of
damages. The position of the law
is that damages are the
arithmetical computation of how
much money must be paid by the
party in breach to the party
suffering from the breach of the
contract. The purpose of
damages is to put the party who
has suffered as a result of the
breach in nearly the same
position that he would have been
had the other party not broken
the contract. In Royal Dutch
Airlines (KLM) & Another v.
Farmex Limited [1989-90] 2 GLR
623 the Supreme Court held
that on the measure of damages
in breach of contract, the
principle adopted by the courts
was resitutio in integrum,
i.e. if the Plaintiff has
suffered damages – not too
remote – he must, as far as
money could do it, be restored
to the position he would have
been in had that particular
damage not occurred.
It is trite learning that
damages may be general or
special. And in the instant
suit, Plaintiff is claiming both
general and special damages. In
Delmas Agency Ghana
Ltd. v. Food Distributors
International Limited [2007-08]
SCGLR 748, the Supreme Court
held that general damages is
such as the law will presume to
be the natural or probable
consequence of the Defendant’s
act. It arises by inference of
the law and therefore need not
be proved by evidence. The law
implies general damage in every
infringement of an absolute
right. The catch is that only
nominal damages are awarded.
Where the Plaintiff has suffered
a properly quantifiable loss, he
must plead specifically his loss
and prove it strictly. If he
does not, he is entitled to
anything unless general damages
are also appropriate.
In the instant suit, the claim
for loss of profit; GH¢42,000 in
demurrage charges; GH¢57,500 for
the 23 days of work stoppage
from March 2 to March 25, 2009;
and GH¢2,500 per each day from
May 8, 2009 until the day
Defendants lift the ban or until
Judgment; are claims for special
damages and have to be proved
strictly.
Admittedly the authorities have
not held that to establish a
claim receipts should be
provided by all means. They
have nonetheless held that the
party who alleges should lead
cogent evidence to establish the
claim. The nature of the
evidence required was stated in
the case of Kubi v. Dali
[1984-86] 2 GLR 501, His
Lordship Justice Abban stated as
follows:
“I do not think in the
circumstances of this particular
case, the production of receipts
at the trial could be the only
legitimate means of proving
special damages and she led
cogent evidence to that effect.
She led evidence to show that
she incurred hospital expenses,
paid for the cost of the police
report and spent on
transportation to and from the
hospital. In the course of the
evidence, the Plaintiff clearly
indicated that she had no
receipts for some the items but
had receipts of others but had
lost them and they could not be
traced and the court was
therefore entitled to accept
secondary evidence as given by
the Plaintiff. In respect of
those she was not given receipts
for it was again a question of
fact as to whether or not the
expenses were incurred.”
In the opinion of the Court, the
issue to be determined is
whether or not the Plaintiff, in
the circumstances of this case,
is entitled to damages at all?
And why do I raise this issue?
The unchallenged evidence before
the Court, as I have already
indicated, is that Plaintiff,
upon default, consented to the
transfer of its interest in the
concession to Intercontinental
Bank, Plaintiff’s Guarantor.
Now, I can understand that
Plaintiff took the facility from
Intercontinental Bank based on
the initial volume assessment of
12,671m3, and
therefore Plaintiff may have
suffered some loss. Plaintiff
may even have suffered some
injury as a result of the
unlawful stoppage of its
operations. Nonetheless, this
does not necessarily give
Plaintiff a cause of action.
Why do I say so? The evidence
placed before the Court is that
when Plaintiff failed to meet
the deadline for payment of the
outstanding balance of the
contract fee, 1st
Defendant decided to fall on the
Guarantee provided by
Plaintiff’s bankers,
Intercontinental Bank. P.W.1
raised an issue that Mr. Rexford
Agyeman who signed Exhibits “10”
and “11” as Managing Director of
Plaintiff Company, did not
inform P.W.1 as a Director, but
it is apparent from Exhibit “10”
that P.W.1 was copied. There
is no evidence before me to show
that the letters dated 2/10/2009
and December 2, 2009
respectively indeed were not
authorised by Plaintiff. As a
matter of fact, these were not
the only documents signed by the
said Mr. Agyeman that were
tendered in evidence. There is
nothing to show that Plaintiff
challenged 1st
Defendant’s right to fall on the
Guarantee at the time that 1st
Defendant proceeded to do so.
Neither is there any evidence
that Plaintiff made any of the
complaints herein at the time of
the transfer of their interest.
Indeed, the evidence is that
Plaintiff consented to the
transfer of its interest to
Intercontinental Bank without
any complaint. In my opinion
therefore, Plaintiff is estopped
by its own conduct from now
complaining of any act of
commission or omission on the
part of the Defendants that may
have caused any injury to the
Plaintiff during the existence
of the contract between them;
and I will so find.
In conclusion, I will find that
Plaintiff is not entitled to
general damages nor is it
entitled to any of its claims. I
shall accordingly dismiss all of
Plaintiff’s claims.
Costs assessed at GH¢3,000.00 in
favour of Defendants.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
KWADWO OWUSU AGYEMANG
-
PLAINTIFF
DENNIS OSEI HWERE
- DEFENDANT
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