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MARGARET
INSAIDOO J (MS).
JUDGMENT
PRELIMINARY REMARKS
This court unfortunately was not
assisted with "all" the evidence
as it were. The reason being that
although the defendant filed a
defence and a counterclaim, and
despite the fact that it was
represented in court a few times,
and also the fact that there is
evidence on record that it had
been served with copies of the
proceedings to enable it cross-
examine the plaintiff, the
defendant failed and or refused to
attend court. The court was thus
constrained to proceed without the
defendant's input. The court
inferred from the conduct of the
defendant that it had waived its
right to give evidence. From June
2006,
to
22nd
January 2007, several
notices, faxes, telephone and
email messages were sent to the
defendant and or defendant's
solicitor, but no response was
received. There is on record an
affidavit of non-service dated
2nd
February 2007 that
indicates that the defendant
company had been closed down. The
court thus feels justified in
delivering this judgment.
THE BRIEF FACTS
In August
2004,
the defendant had an
agreement for the hire or lease of
the Plaintiff's caterpillar
bulldozer (D9R Dozer) to work on
the Defendant's project site at
Newmont Mining Company at
Ahafo-Kenyase in the Brong Ahafo
region of the Republic of Ghana.
It was agreed that the rate for
the lease would be one hundred and
twenty dollars
($120)
per hour. The hourly meter
reading of the machine at the
start of the lease was
14060
hours.
Due to the urgent nature of the
work to be done, it was agreed
that the machine would be released
to the defendant on 9th
August
2004 before the formal
execution of the contract by the
parties on
1ih
August 2004.
It was agreed that the plaintiff
would have an operator on site to
supervise the operation of the
said machine while being used by
the defendant.
Contrary to the agreement, the
defendant started operating the
machine even before the
plaintiff's operator arrived on
site. As a result of this it found
that the hydraulic pump of the
machine had failed after 42 hours
of use and was repaired by the
defendant at a cost of ¢35 million
cedis.
On 16th
November 2004, the
plaintiff decided to withdraw the
machine from the defendant's
project site because the defendant
persistently failed to pay the
accumulated charges for the use of
the machine. At the time the
plaintiff withdrew the machine
from the site, the meter reading
was
14,356 hours. This
meant that the defendant had used
the machine for two hundred and
ninety six (296) hours. This
translates into an amount of
$35,520.00.
The plaintiff's claim against the
defendant is for an amount of
$35,520.00 or its cedi equivalent
and interest on the said sum at
the current bank rate with effect
from 18th November 2004
to date of final payment.
The Defendant basically agreed
with the facts as stated by the
Plaintiff, it however claimed that
soon after delivery of the machine
it broke down and all attempts to
contact a responsible officer of
the Plaintiff Company to address
the issue failed with the
ostensible reason that the
Managing Director had then
travelled to the United States.
The Defendant in it statement of
Defence said that it was forced to
undertake major repairs on the
machine before it could start
using it. Additionally, the
operator that the Plaintiff was
supposed to provide came to the
site only at the time the machine
was being repaired. He never
returned thereafter forcing the
Defendant to employ an operator at
extra cost.
The Plaintiff faxed an invoice to
the Defendant on 12/11/04 and on
18/11/04 the Plaintiff withdrew
the machine after it had
authorized Naachiaa Plant Pool
Limited to take possession of it
by letter dated 16/11/04.
As a result of the Plaintiff's
precipitate withdrawal of the
machine the Defendant averred that
it was forced to hire a
replacement machine at the same
rate. According to the defendant,
the cost of repairing and
maintaining the Plaintiff's
machine came to US$32,lOO.00.
The defendant denied that it had
utilized the machine up to the
number of hours that the plaintiff
was claiming that the time-clock
shows the number of hours the
machine is switched on including
stand by and stand-down time, time
spent greasing and fuelling the
machine, testing of hydraulics and
transmission in situ and
performance testing totaling up to
ten per centum of the number of
hours shown on the meter.
The defendant claimed that it had
incurred losses as a result of the
plaintiff's precipitate withdrawal
of the machine. It therefore asked
for a set off in the sum of
$32,100 being cost incurred by it
in repairing the machine. It also
counterclaimed for general damages
for breach of contract.
ISSUES FOR TRIAL
I)
Whether or not the
Plaintiff was to maintain and keep
the machine in a good state of
repair and condition to ensure
optimum availability to carry out
the contract and the plaintiff as
a result was to provide an
operator for the machine.
II. Whether or not the hire rate
was inclusive of VAT, NHIL and
withholding tax to be paid 30 days
following receipt of a VAT
invoice.
III. Whether
or not the machine broke down soon
after delivery and
whether or not a responsible
officer of the plaintiff company
was got to address the problem.
IV. Whether or
not the defendant company employed
an operator at an
extra cost.
V. Whether or
not there was a breach of contract
by the plaintiff.
VI. Whether or not the
defendant is entitled to a set off
of $32,100,000.
VII. Whether or not the
Defendant is entitled to its
counterclaim.
VIII. Whether or not
the Defendant operated the machine
for 296 hours.
IX. Whether or not the
Defendant was entitled to repair
the machine
without the express approval of
the plaintiff.
X. Whether or not the
cost of the repair to the machine
was $32,100.00.
XI. Whether or not the
defendant owes the plaintiff
$35,520.00 being the
cost of the use of the machine for
296 hours.
EVIDENCE ADDUCED AT THE TRIAL
Has the plaintiff adduced
sufficient evidence in accordance
with the Evidence Decree,1975
(NRCD323)? Is the evidence
sufficient to the extent that a
reasonable mind could hold that
the existence of a fact in issue
was more probable than its
non-existence?
The Plaintiff's case was presented
by its director of operations,
Nick K. Baffour. The witness
testified that the plaintiff
normally has an agreement signed
before the machine is rented, but,
the defendant stated that its
contract was under threat if the
machine was not sent to his site
immediately and so the plaintiff
sent the machine to the site on a
Sunday. He was supposed to sign
within the
week but the defendant never did
for all the three months duration
that the machine was with the
defendant.
He stated that the machine was run
for forty two (42) hours and then
it broke down where the hydraulic
pump failed.
The terms of the agreement
included the fact that the machine
would be on lease for $120 per
hour of operation. The plaintiff
would maintain the machine and the
defendant was to provide fuel.
At the time that the machine was
retrieved from the defendant's
project site, the meter reading
was 14,356 hours.
In addition, one of the terms of
engagement was that if the
defendant kept the machine idle
without operating for a certain
number of hours, the defendant was
supposed to pay at least half
rate; but he did not agree to
that. According to the witness,
that was the reason why the
defendant failed and or refused to
sign the agreement.
Exhibit "A" dated 21-10-04 was a
pro-forma invoice from Tractor and
Equipment addressed to the
plaintiff. "A1" was the receipt
from the Tractor and Equipment in
the sum of ¢48,769,535.00 cedis.
The defendant informed the
plaintiff that it could obtain a
cheaper pump from Italy for three
thousand dollars ($3,000.00). The
plaintiff asked the defendant to
provide a pro-forma invoice so
that they would approve the
purchase. The defendant never got
back to the plaintiff on this
issue. Consequently, the plaintiff
recalled it operator from the site
in order that no one would have
access to the machine.
The plaintiff then bought the
parts from Tractor and Equipment
and had the pump repaired to the
tune of ¢48,769,535.00. On
returning the repaired pump to the
site, the plaintiff realized that
the machine had been run for 296
hours after it had broken down.
The plaintiff realized that the
defendant had "quietly gone and
repaired the machine without our
operator's presence and
knowledge".
Exhibit "C" was tendered in
evidence. These were the letters
written to the defendant by the
plaintiff demanding payment for
the hours that the machine had
been run. However, the defendant
refused to settle the amount
demanded by the plaintiff. The
plaintiff decided to withdraw the
machine from the site.
The plaintiff was therefore
claiming:
i) $35,520.00 less
$3000 being the cost of repair by
the Defendant and
ii) interest
ISSUES
1)
Whether or not the
Plaintiff was to maintain and keep
the machine in a good state of
repair and condition to ensure
optimum availability to carry out
the contract and the plaintiff as
a result was to provide an
operator for the machine.
The plaintiff was to provide an
operator for the machine but the
defendant should report any
repairs so that the plaintiff's
would see to the repairs himself.
2)
Whether or not the hire
rate was inclusive of VAT, NHIL
and withholding tax to be paid 30
days following receipt of a VAT
invoice.
The plaintiff's response was that
the defendant would pay the
plaintiff "every two weeks in
advance from the 1st
day of the machine leaving the
premises of Smice".
Whether or not the machine broke
down soon after delivery and
whether or not a responsible
officer of the plaintiff company
was got to address the problem.
The evidence that was adduced was
that, the machine was sent to the
site on 8th August 2004
and the pump was faulty after 42
hours of use by the defendant. The
operator of the plaintiff company
was on site and tried to address
the problem, but he realized that
the repairs to the machine were
not going to be immediate. He thus
came back to the Plaintiff Company
in order to effect repairs on the
pump. However, no evidence was
adduced as to whether or not the
defendant company employed an
operator at an extra cost.
The defendant in essence agreed
that the machine had been used but
indicated that the time clock of
the machine included times when
the machine was switched on
including stand by and stand-down
time and time spent in greasing
and fuelling the machine. The
plaintiff countered this by saying
that the time clock only runs when
the machine is actually being
used.
FINAL ORDERS
I
find the claim of the following as
proved. The Plaintiff is not in
breach on the agreement, it is
rather the Defendant that has not
complied with the terms of the
agreement. The case of
British Crane Hire Corp Ltd v.
Ipswich Plant Hire, Ltd [1974J
1
All ER 1059, CA
cited in support. The Judgment
is therefore given in favour of
the plaintiff in the sum of
$35,520 dollars being the cost of
the number of hours that the
machine was run by the defendant.
•
However, the plaintiff informed
the court that it repaired the
pump at a cost of
48 million cedis. The plaintiff
however claims that the defendant
said that it
could repair the pump in Italy for
$3000, the evidence
before me is that the defendants
repaired the pump for 35 million
cedis. I therefore accept that
figure of
35
million cedis and
reject the figure of
$32,100
being demanded by the
defendants. This judgment
therefore is for
$35,520
less
¢35
million cedis.
COUNTERCLAIM
I
dismiss the defendant counterclaim
as unsubstantiated and the
Defendant is therefore not
entitled to his counterclaim. His
claim for set off has been taken
care off as above.
I
award interest on the resultant
sum with effect from 18th
November 2004 in accordance with
C1. 52 to date of final payment.
Costs of fifty million cedis
(¢50,OOO,OOO.00)
awarded to the plaintiffs.
(SGD.) MARGARET INSAIDOO J (MS)
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