ACCESS BANK VS BIG BOYS (H1/164/2020) [2020] GHACA 17 (26 November 2020)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA, AD 2020 CORAM: - BARBARA ACKAH-YENSU, JA (Ms.) (PRESIDING) AMMA GAISIE, JA OBENG-MANU JNR, JA DATE: 26TH NOVEMBER, 2020 Civil Appeal Suit No. H1/164/2020 ACCESS BANK LTD DEFENDANT/APPELLANT STARLETS 91 ROAD, OSU-ACCRA VRS BIG BOYS COMPANY LTD PLAINTIFF/RESPONDENT HOUSE NO.4, ABLA ST. NMAI-DZORN ---------------------------------------------------------------------------------------- JUDGMENT OBENG-MANU JNR, JA BACKGROUND FACTS 1 9 t involving an action brought by the This appeal arises out of proceedings Plaintiff/Respondent against the Defendant/Appellant in the High Court, Commercial Division, Accra. There were two companies, both were incorporated under the Companies Act 1963, (Act 179). They were both limited liability companies. One was THE BIG BOYS COMPANY LIMITED (Plaintiff/Respondent herein) which was incorporated on 8th October, 2009. The number of authorized shares was 1,000,000, out of which 100,000 were issued. These 100,000 issued shares were subscribed by two shareholders namely, Dr. Ras Seth Djamah Tei who took 75,000 shares and paid a consideration of Ghs 750 therefor. The remaining 25,000 issued shares were taken by Angela Quartey who also paid GHs 250 therefor. The authorized business or nature of objects of the company were: a. Haulage of heavy-duty equipment b. Hiring of heavy-duty equipment c. Mining and hydro construction equipment couriers. The first directors of the company were Dr. Ras Seth Djamah Tei, an Industrialist, Mr. Kwabena Asante Wiredu, a Chartered Accountant and Miss Angela Quartey, a Businesswoman. All shareholders and directors are Ghanaians. The other company was ROCKSHELL INTERNATIONAL LIMITED, (not a party to the present proceedings). Both companies were promoted, incorporated and substantially owned by one Dr. Ras Seth Djamah Tei. Dr. Ras Seth Djamah Tei had immense powers of control over both companies. It is apparent that either company could do business with the other formally. THE BIG BOYS COMPANY imported into the country, a huge used 450-TON 28 PKGS BOOM QUADRUPLE AXLE TRAILER MOBILE CRANE which was cleared from the port on 24th April, 2010. This crane which was manufactured in 1997 was described in an unsigned document by engineers of Intercity STC who allegedly assessed and valued same as “VERY POWERFUL, ROBUST AND GIGANTIC MACHINE”. It was hired out to firms especially in the quarry and construction industries to lift very heavy weights. In this connection THE BIG BOYS COMPANY hired out the crane to ROCKSHELL INTERNATIONAL LIMITED pursuant to a formal written equipment hire agreement dated 1st February, 2016, to be used in their quarry operations at their quarry site at Asutsuare in the Shai Hills. By an “ ALL ASSETS DEBENTURE” of unstated date and month but clearly executed in the year 2011, ROCKSHELL INTERNATIONAL LIMITED obtained a facility of GHs 2 500,000 from ACCESS BANK (GHANA) LIMITED, the Defendant/Appellant herein and secured for the payment and discharge thereof of the principal sums, interest and all other moneys intended to be secured by ROCKSHELL INTERNATIONAL LIMITED as “BENEFICIAL OWNER”, a charge to the bank by way of fixed charge, all the estate title, interest, claim and demand in or over the estate which were more particularly described in the schedule to the debenture; and including but not limited to all its plants and machinery whether present or future and whether or not trade fixture and all its assets or soever. By paragraph 2.2, 2.3, 2.4 and 2.5 several other assets of ROCKSHELL INTERNATIONAL in the nature of goodwill and uncalled capital, all book debts and other debts in the future due or owing to the company, all intellectual property rights, choses in action and claims now and in the future due and owing to the company and all the company’s present and future undertakings and properties and assets whatsoever and wheresoever situated (without Limitation) including its stock of raw material, works in progress, finished products and other properties and assets not subjects to the fixed charge under the present debenture were all by way of fixed or floating charge used to secure the repayment of the facility. The only asset listed in the schedule attached to the all asset debenture is the crane described as 1989 450 TON CRANE DMAG HC 1020. The quantity was stated as 1. The unit price was stated as USD 1,140,000. The value was also stated as USD 1,140,000. With this all assets debenture ready, ROCKSHELL INTERNATIONAL LIMITED signed the offer letter from ACCESS BANK (GHANA) LIMITED dated 20th January, 2011 and addressed to the managing director of ROCKSHELL INTERNATIONAL LIMITED and specifically to the attention of Dr. Ras Seth Djamah Tei, (please see page 85 of the ROA). This offer letter contained a memorandum of acceptance signed by 3 officers of ROCKSHELL INTERNATIONAL LIMITED namely; the Managing Director, Dr. Ras Seth Djamah Tei, Mr. Kwabena Asante Wiredu, Director and the Executive Chairman. The purpose of the facility was; “to augment ROCKSHELL INTERNATIONAL LIMITED’s working capital required to enable ROCKSHELL purchase fuel, diesel and other materials required for the production and supply of granite stones to Amandi Limited for railway construction”. The facility was only available upon fulfilment of all condition’s precedent to Drawdown and the security required were: 1. All assets debenture over equipment valued at GHS1,000,000. 2. Personal guarantee of Dr. Ras Seth Tei, chairman of ROCKSHELL INTERNATIONAL LIMITED. 3 3. Irrevocable Domiciliation of Contract proceeds from Amandi Limited to ACCESS BANK (GHANA) LIMITED. Among the 15 listed conditions precedent to Drawdown was a receipt of executed bill of sale and debenture agreement over assets pledged as collateral (please see item 10 at page 86 of the ROA). It is of interest to state that Dr. Ras Seth Djamah Tei and Miss Angela Quartey signed as witnesses to this agreement (offer letter) which was signed by the executive chairman of ROCKSHELL INTERNATIONAL LIMITED for and on behalf of the company. Officers of ACCESS BANK (GHANA) LIMITED namely the Director and the Secretary signed for and on behalf of the bank. It so happened that, strangely, ACCESS BANK (GHANA) LIMITED did not demand and or take possession of the legal documents of title of ROCKSHELL INTERNATIONAL LIMITED, covering the mobile crane which was the subject matter of the all assets debenture, and which ROCKSHELL INTERNATIONAL LIMITED claimed to be the “BENEFICIAL OWNER”. Apparently, Access Bank Ghana Limited understood the expression “BENEFICIAL OWNER” to mean that the crane legally belonged to ROCKSHELL INTERNATIONAL LIMITED. According to Access Bank Ghana Limited they had also sighted the documentation regarding insurance cover of the mobile crane in question in the name of ROCKSHELL INTERNATIONAL LIMITED. According to the Appellant ACCESS BANK (GHANA) LIMTED, the crane was insured with INTERNATIONAL ENERGY INSURANCE in the name of ROCKSHELL INTERNATIONAL LIMITED and they were therefore of the firm belief that ROCKSHELL INTERNATIONAL LIMITED provided documentation as regards their legal ownership of the crane against which the insurance company insured the crane in the name of ROCKSHELL INTERNATIONAL LIMITED. It obviously did not cross their mind that ROCKSHELL INTERNATIONAL LIMITED as a bailee of the crane had an insurable interest in the crane which could have been insured by them. ROCKSHELL INTERNATIONAL LIMITED defaulted on the facility agreement and failed to repay the loan when the time was due. ACCESS BANK (GHANA) LIMITED sued ROCKSHELL INTERNATIONAL LIMITED in the Commercial Court, Accra and obtained judgment in Suit No. BFS71/14 and titled: 4 ACCESS BANK (GHANA) LIMITED V 1. ROCKSHELL INTERNATIONAL LIMITED. 2. DR. RAS TEI. Judgment was delivered in favour of Access Bank (Ghana) Limited for a cumulative sum, a little under a million Ghana Cedis (GHS 1,000,000) on 15th December, 2015. In levying execution of the judgment, ACCESS BANK (GHANA) LIMITED caused the Deputy Sheriff to ROCKSHELL to attach several motor vehicles belonging INTERNATIONAL LIMITED at the quarry site where ROCKSHELL INTERNATIONAL LIMITED was operating. In addition, the mobile crane in contention which was also at the quarry site was attached at Rockshell International. At the time of attachment there was boldly written on the mobile crane, the words ‘THE BIG BOYS’ at two different places on the crane. In preparation towards auctioning the goods attached by Access Bank as the the Plaintiff/Respondent herein, THE BIG BOYS Plaintiff/Judgment creditor, COMPANY, filed a notice of claim at the Registry of the court. ACCESS BANK (GHANA) LIMITED, the Defendant Appellant herein, who were the Judgment Creditors in their action against ROCKSHELL INTERNATIONAL LIMITED also filed a notice of dispute in response to the notice of claim. THE BIG BOYS COMPANY as the claimants in response to the Registrar’s Notice to maintain or relinquish their claim then filed before the court, particulars of their claim and attached among others, DVLA registration documents covering the crane in dispute. They also filed Customs duties documentation together with receipts issued for payment of customs duties and other port charges in connection with clearance of the crane from the port. Ordinarily, as a debenture holder, it was expected that these documents filed by THE BIG BOYS COMPANY, the claimants, should have been in the custody of ACCESS BANK (GHANA) LIMITED. However, for want of due diligence, ACCESS BANK (GHANA) LIMITED appeared to have been satisfied with sighting, (not even possession) of the documents covering the insurable interest insured by ROCKSHELL INTERNATIONAL LIMITED in respect of the crane. ACCESS BANK (GHANA) LIMITED was apparently content that the insurance documentation was as good a title and signified indefeasible ownership of the crane. In the end ACCESS BANK (GHANA) LIMITED had to concede that the crane 5 indeed belonged to THE BIG BOYS COMPANY. The court therefore made an order for the release of the crane to The Big Boys Company. Upon securing possession and custody of their crane, THE BIG BOYS COMPANY then launched the present action against ACCESS BANK (GHANA) LIMITED, claiming the following reliefs; a) Special damages of twenty-five thousand US dollars ($25,000) per day that is from May 12, 2016 to release date – Wednesday, 15th March, 2017 of the crane (when the crane was under wrongful attachment) and the Plaintiffs could not earn fees under the contract. b) Payment for the cost of any damage caused to the crane as a result of its non-usage during the period of its attachment. c) Costs of the action including counsel’s fees set at the Ghana Bar Association scale of approved fees. The defendant resisted the action by filing its statement of defence (subsequently amended) and counterclaimed for the following reliefs; a) A declaration that the Defendant is not liable to the Plaintiff. b) An order for lifting of the corporate veil to attach personal responsibilities to the individual responsible for the actions of the company and for their actions. c) That persons found to have committed fraudulent acts be so convicted. d) General damages for the inconvenience caused the Defendants by Plaintiff. e) Payment of legal fees and other expenses incurred by Defendants for defence of this suit. f) Costs. After a full trial, judgment was delivered by the High Court against ACCESS BANK (GHANA) LIMITED. HIGH COURT JUDGMENT On 7th June, 2019 judgment was entered for the Plaintiff against the Defendant in the following terms; “On the balance, I find no substance or merit in the Counterclaim of the Defendant. Same is accordingly dismissed. Judgment is entered for the Plaintiff on its relief (1) That is to say, the Plaintiff is to recover the sum of USD 25,000 per day from 12th May, 2016 to 15th March 2017 as special damages. The relief (2) is hereby dismissed. The plaintiff should have its costs against the defendants assessed as eighty thousand Ghana Cedis (GHS80,000)”. 6 APPEAL The defendant being aggrieved and dissatisfied with this judgment filed an appeal on 27th June, 2019 against the judgment with the following grounds; a. The judgment is against the weight of evidence adduced at the trial. b. That the learned trial judgment erred when he exercised jurisdiction to determine the suit for a relief for payment of Special Damages in foreign currency (US dollars) contrary to law. The learned trial judge erred in making an order for payment of special damages in United States Dollars. c. d. the learned trial judge erred when he proceeded to exercise jurisdiction to determine a suit for which the reliefs claimed by the plaintiffs were consequential and not based on any substantive relief. e. the learned trial judge erred when he failed to lift the corporate veil on the respondent’s company despite clear evidence of fraud apparent on the record, committed by the directors of the respondents against the appellants and the court. f. The learned trial judge erred by holding the Defendant liable for special damages for Plaintiff’s inability to earn fees without first making a specific finding of liability against the Defendant. g. The learned judge erred when he ignored the requirement for special damages to be pleaded and particularized. h. The learned judge erred when he held that the equipment hire agreement between The Plaintiff and Rockshell Company Limited without more, was sufficient evidence to prove special damages and i. The learned trial judge erred when he made an award in respect of relief one (1) which was more a relief for loss of revenue rather than special damages. j. The learned trial judge erred in law when he held that the attachment of the crane was unlawful without considering the merits of the attachment itself. PARTICULARS OF ERROR 7 I. II. That a legitimate attachment done by a qualified officer of the court pursuant to a judgment of the High Court, cannot be said to be unlawful That the learned trial judge erred when he held that the Sheriff was wrong in attaching the crane only because there was an inscription of “Big Boys” on the said crane, although the chassis and registration number indicated on the Writ of Execution were the same as that of the crane attached. k. . The learned trial judge erred in awarding special damages on a daily basis of USD$25,000 from the date of execution till the date of release PARTICULARS OF ERROR I. II. That the learned trial judge failed into taking into consideration weekends, holidays, possible breakdown of the crane, etc. in awarding the special damages. That the award of special damages to the Respondent was without regards to the clear evidence that the crane could not be used to work every day. l. Cost awarded in favour of Plaintiff is excessive, having regard to the circumstances of the case. m. Further grounds of Appeal to be filed upon receipt of the Record of Appeal. ANALYSIS OF THE GROUNDS OF APPEAL GROUND A: THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE ADDUCED AT THE TRIAL. In the case of OWUSU DOMENA V AMOAH [2015-2016] SCGLR 790, the Supreme Court speaking through Benin, JSC held as follows; “the sole ground of appeal that the judgment is against the weight of evidence, throws up the case for a fresh consideration of all the facts and law by the appellate court… The decision in Tuakwa v Bosom has erroneously been cited as laying down the law that, when an appeal is based on the ground that the judgment is against the weight of evidence, then, only matters of fact may be addressed upon. Sometimes, a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged a burden of persuasion or producing evidence is a matter of law”. Earlier on, the Supreme Court had in the case of ATTORNEY-GENERAL V FAROE ATLANTIC COMPANY LIMITED [2005-2006] SCGLR 271, held per Wood, JSC (as she then was) as follows; 8 “It seems to me that in strictness, this common ground of appeal is one of law, for in essence, what it means, inter alia, is that, having regard to the facts available, the conclusion reached, which invariably is the legal result drawn from the concluded facts, is incorrect. The general ground of appeal is therefore not limited exclusively to issues of fact. Legal issues are within their purview”. Therefore, the numerous grounds of appeal set out by the Appellant which are either of facts or law or a mixture of both can all be subsumed under this omnibus ground and analysed together. In the case of DJIN v MUSAH BAAKO [2007-2008] SCGLR 686, the Supreme Court took pains to explain what an Appellant really means when he alleges that a judgment is against the weight of evidence in the following words; “where an Appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied could have changed the decision in his favour, or that there are certain pieces of evidence that had been wrongly applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the Appellate Court the lapses in the judgment being appealed against”. We shall therefore subsume, under this omnibus ground, some of the several grounds of appeal urged by the Appellant in this appeal. GROUNDS B AND C: THAT THE LEARNED TRIAL JUDGMENT ERRED WHEN HE EXERCISED B. JURISDICTION TO DETERMINE THE SUIT FOR A RELIEF FOR PAYMENT OF SPECIAL DAMAGES IN FOREIGN CURRENCY (US DOLLARS) CONTRARY TO LAW. THE LEARNED TRIAL JUDGE ERRED IN MAKING AN ORDER FOR C. PAYMENT OF SPECIAL DAMAGES IN UNITED STATES DOLLARS. In arguing ground B, the Appellant contends that the amended Writ of summons and statement of claims by the Respondent, having been endorsed with a relief denominated in United States Dollars and not Ghana Cedis violates Sections 3(1) and (4) of the Foreign Exchange Act, 2006 (Act 723) rendering the Writ together with the statement of claim null and void. The Appellant quotes Section 3(1) and 4(b) of the Foreign Exchange Act 2006 (Act 723) which provides as follows: 9 “3(1) A person shall not engage in the business of dealing in foreign exchange without a license issued under this Act. (4) The business of dealing in foreign exchange includes the (b) receipt of payment of foreign currency”. The Appellant submits that the above provision clearly prohibits the receiving and the payments of foreign currency by persons or entity which do not have dispensation from the bank of Ghana to deal in such currencies. According to the Appellant, an examination of the Respondents relief (a) as endorsed on the Writ of summons and statement of claim shows that the Respondent seeks to receive payment of foreign currency from the Appellant in violation of Section 3(1) and 4(b) of the Foreign Exchange Act 2006 (Act 723). There is no law which bars the Ghana courts from making foreign currency orders. Foreign contractors would not ever have executed contracts in Ghana since Ghana Cedi is not legal tender in their countries of origin. The government of Ghana would in such circumstances have been put in the awkward position of not finding foreign contractors to execute contract outside the competence of local contractors. Such foreign contractors can sue in courts of Ghana ad recover judgments and orders in foreign currency, and the Bank of Ghana readily grants them the dispensation to recover or enforce payments through the court in the awarded foreign currency (please see the case of SAM JONAH v. LORD DUODU-KUMI [22/01/2003] CA NO. 1/2003 in which the Supreme Court held per Sophia Akuffo, JSC (as she then was) that: “Although the amount demanded in exhibit ‘B’ is stated in US Dollars, it is patently clear from the amended Statement of Claim that the amount claimed by the Appellant as rent arrears is Cedi equivalent thereof. What the abovementioned law expressly prohibits is payment or in receipt external currency. It imposes no prohibition on the denomination of monies due in such currency. external It does not relate to the legality or enforceability of an agreement that denominates, in such any currency, amount payable thereunder”. payment the of 10 In the case of TEMA OIL REFINERY VRS AFRICAN AUTOMOBILE LTD H1/213/2009 (unreported) decided on 11th March, 2010, this court speaking through Akamba, JA (as he then was) made an award in foreign currency on the basis that parties are at liberty to contract in a unit of currency other than the cedi where the goods or services to be supplied are from the country of the unit of currency in the following words: “The trial court awarded what it called legal cost of euro 30,000 as well as court cost of GHC 3,000 against the appellants. I wonder what the basis for the award of the legal costs and in euros is. Did the respondent engage counsel from the euro zone to do the case? Or is it the case that the Ghana cedi is no longer the sovereign currency of this country? I can understand the parties fashioning out their contract in a unit of currency other than the cedi when the product to be supplied is produced outside this country. (The emphasis is mine) But for a situation wherein counsel are engaged in Ghana to provide legal service in Ghana I fail to understand why the court would award legal costs in a currency other than the cedi. Order 74 of CI 47 regulates the award of costs. The award of costs is at the discretion of the court but, like every discretion, it is to be exercised in accordance with due process of law. This means an exercise of such discretion shall not be arbitrary, capricious or biased either by resentment or personal dislike. (See article 296 of Constitution 1992.) The trial judge gave no reason for the award of the legal cost in euros and the court costs. The court simply stated the following: “Defendant is also ordered to pay plaintiff’s legal cost, which is set (sic) 30,000 euros. Court costs is set at cedis GHC 3,000 after looking at the court filing fees and the 30 or so times the parties had to come to court. All sums ordered to be paid in euros may be paid at the euro selling price of the cedi.” Even local contractors are permitted to sue in the Ghana courts for amounts denominated in foreign currency but in their case the payment of the award made by the court denominated in foreign currency is effected in its equivalent in Ghana Cedis at the current inter-forex bureau exchange rate (please see the case of CITY AND COUNTRY WATER LIMITED v ACCRA METROPOLITAN AUTHOURITY) [2007-2008] 1 SCGLR 409) 11 An appeal is always by way of re-hearing. What is re-hearing? “Re-hearing” was defined by Osei-Hwere, J (as he then was) in the case of NKRUMAH V ATAA [1972] 2 GLR 13. It was held in that case that the Appellate Court is in the same position as the Trial Court as if the re-hearing were the original hearing. It may receive evidence in addition to the evidence on record. It may review the evidence. It may also consider facts that occurred since the trial and what relevant changes have been made in the law etc. But it will not reverse findings of facts supported by evidence. Where evidence turns on credibility, the trial court’s findings will not be disturbed As an appellate court, we are not to interfere with the findings of a trial court if those findings are supported by the evidence on record. However, we have the right to interfere with, and substitute our own findings, where the findings of the trial court are not supported by the evidence on record and in other circumstances. In the case of AMOAH vrs LOKKO & ALFRED QUARTEY (Substituted by) GLORIA QUARTEY & OTHERS [2011] 1 SCGLR 505 at pages 514-515, the Supreme Court speaking through Aryeetey, JSC, stated thus regarding the findings of the trial court: “It is only when the findings of the trial court are not supported by the evidence that the appellate court could interfere and substitute its own findings for that of the trial court. It is trite law that the trial court has the exclusive duty to make primary findings of fact which will constitute the means by which the final outcome of the case would be arrived at. For the trial court’s findings to be irrefutable: first, it must be supported by the evidence on record; second, it must be based on credibility of witnesses: third, the trial court must have had the opportunity and advantage of seeing and observing the demeanor of witnesses; and fourth it must be satisfied of the truthfulness of the testimony of witnesses on any particular matter……… the appellate court can only interfere with the findings of the trial court if they are wrong because (a) the court had taken into account matters which were irrelevant in law; (b) the court excluded matters which were critically necessary for consideration; (c) the court had come to a 12 conclusion which no court properly instructing itself would have reached, and (d) the court’s findings were not proper inferences drawn from the facts.” The learned trial judge ought to have qualified his judgment or order for the payment of whatever judgment he awarded to the plaintiff, Ghanaian company by the addition of the words “or its equivalent in Ghana Cedis”. However, the said omission is not fatal. We, sitting as an Appellate court and re-hearing this case hereby in the exercise of our powers add the said words as stated by the Supreme Court in CITY AND COUNTRY WATER LIMITED v ACCRA METROPOLITAN AUTHOURITY) [2007-2008] 1 SCGLR 409) as follows… “the total sum awarded as calculated in US dollars or its equivalent in Cedis was to be paid at the current inter-forex bureau exchange rate…” I must hasten to add that this does not mean that we agree with the award of special damages made by the learned trial judge to the plaintiff. We shall make an award to the plaintiff but not by way of special damages. Our award, which we make shall be denominated in United States Dollars but to be paid in the cedi equivalent; and it shall be by way of general damages as shall be explained in due course Save for this small addition or qualification to the judgement of the trial court, we hereby dismiss grounds B and C of the grounds of appeal. GROUN D and E: D: THE LEARNED TRIAL JUDGE ERRED WHEN HE PROCEEDED TO EXERCISE JURISDICTION TO DETERMINE A SUIT FOR WHICH THE RELIEFS CLAIMED BY THE PLAINTIFFS WERE CONSEQUENTIAL AND NOT BASED ON ANY SUBSTANTIVE RELIEF. E. THE LEARNED TRIAL JUDGE ERRED WHEN HE FAILED TO LIFT THE CORPORATE VEIL ON THE RESPONDENT’S COMPANY DESPITE CLEAR EVIDENCE OF FRAUD APPARENT ON THE RECORD, COMMITTED BY THE DIRECTORS OF THE RESPONDENTS AGAINST THE APPELLANTS AND THE COURT. In arguing ground D, the Appellant sought to create the impression that then Plaintiff’s Writ of summons failed to endorse any substantive claim therein. According to the Appellant, the reliefs (a) and (b) as endorsed on the amended Writs 13 are all in the nature of special damages which are all consequential and not substantive. The Appellant cited the case of REPUBLIC v HIGH COURT, TEMA; ex- parte Owners of the MV ESSCO SPIRIT (Darya Shipping SA, Interested Party) [2003- 2004] 2 SCGLR 689. The Appellant proceeded to quote DR. Seth Twum, JSC in the following words, “in our view, the Writ was not indorsed in accordance with the mandatory provisions of the High Court (Civil Procedure) Rules, 1954. It was therefore a nullity upon which no valid orders could be based; see Mosi v Bagyina [1963] 1 GLR 337, SC” With all due respect the facts in the case of the Owners of the MV ESSCO SPIRIT are clearly distinguishable from the facts of the present case. In the MV ESSCO SPIRIT case, the interested party Darya Shipping SA straight away applied for a preservation order against the MV ESSCO SPIRIT pursuant to which vessel was arrested and impounded upon the order of the High Court Tema. There was no substantive relief sought by MV ESSCO SPIRIT SA against the Owners of the MV ESSCO SPIRIT. It appeared that Darya Shipping was now gearing up to go and issue a Writ to claim substantive reliefs arising out of alleged breaches of contract by the owners of the MV ESSCO SPIRIT. They need to preserve the vessel which had berthed at the port of Tema and was due to set sail at any moment. Darya Shipping SA fearing that their only hope of realising the fruits of an eventual judgment they may obtain in court lay in the preservation of MV ESSCO SPIRIT rushed and obtained a preservation order by motion against the vessel without first having issued the Writ properly endorsed with a substantive relief. The Supreme Court quashed then preservation order and struck down the entire action as a nullity for want of proper endorsement. In the present case, the Defendant/Appellant’s act of causing the Deputy Sheriff to attach the Plaintiff/Respondent mobile crane constituted a tort for which the Defendant/Appellant was liable to an action in damages. The fact that the Plaintiff/Respondent succeeded in recovering their crane in the interpleader does not foreclose their rights. The loss of earnings they suffered as a result of the attachment and detention of their income-earning is remediable by an action in tort for liquidated and or unliquidated damages. Ground D is therefore without merit and the same is accordingly dismissed. GROUND E THE LEARNED TRIAL JUDGE ERRED WHEN HE FAILED TO LIFT THE CORPORATE VEIL ON THE RESPONDENT’S COMPANY DESPITE CLEAR 14 EVIDENCE OF FRAUD APPARENT ON THE RECORD, COMMITTED BY THE DIRECTORS OF THE RESPONDENTS AGAINST THE APPELLANTS AND THE COURT. on for fraud having LIMITED committed the Appellant accused the Directors of THE BIG BOYS COMPANY and ROCKSHELL INTERNATIONAL the Defendant/Appellant bank. The accusation is mainly against Dr. Ras Seth Djamah Tei who happens to be the majority shareholder and Director of both companies. The evidence is clear that Dr. Ras Djamah Seth Tei is a signatory to the all assets debenture executed by ROCKSHELL INTERNATIONAL LIMITED to secure the loan facility of GHS 500,000. He was also a signatory to the memorandum of acceptance dated 27th January, 2011 by virtue of which ROCKSHELL INTERNATIONAL LIMITED accepted the offer letter dated 20th January, 2011, which offered a loan of GHS 500,000 to ROCKSHELL INTERNATIONAL LIMITED. The accusation of the Appellant against Dr. Ras Seth Tei to the effect that Dr. Tei fraudulently offered the mobile crane to be used as collateral when he very well knew that the crane did not belong to ROCKSHELL INTERNATIONAL LIMITED. In paragraph 21 of their amended statement of defence (please see page 119C and 119D of the ROA) the Appellant had this to say about alleged fraudulent act of Dr. Ras Seth Tei; “21 that it is clear that plaintiff and its principal are committing multiple frauds on the Honourable Court and the Defendant. Particulars of Fraud i. ii. The Managing Director and owner of Rockshell International Ltd. (who is the same person as the owner and Managing Director of Plaintiff Company) did personally represent to the Defendant in or about 2011 that it was the owner of the crane in question, and personally executed a Debenture in favour of Defendant creating a charge over the crane. The Plaintiff is now claiming that Rockshell International Ltd. is not the owner of the crane but is rather owned by Plaintiff, The Big Boys Company Limited. iii. Clearly Plaintiff is saying that at the time of the creation of the charge in favour of Defendant, Rockshell International Ltd, it was fraudulently misrepresenting the ownership of the crane. 15 iv. That if that is not the case, then it would mean that the Plaintiff had v. fraudulently misrepresented the court now about its ownership of the crane. That is a fact that the two parties, Plaintiff and Rockshell Limited cannot both claim absolute title to the crane at all times. vi. The Director of Rockshell produced and executed documents showing that the crane belonged to Rockshell, and then subsequently has produced documents purporting to show that the same crane belonged to The Big Boys on or about the same time. Plaintiff also purported to transfer title or interest in the crane during the pendency of Suit No. BFS/71/14 on the blind side of the Defendant in furtherance of its fraudulent activities and to create a smokescreen to conceal the truth. vii. viii. That Rockshell obviously misrepresented the ownership to enable his company Rockshell to obtain a facility from the Defendant, and after defaulting in payment, returned to court in the cloak of “The Big Boys” to argue that the crane belonged to The Big Boys, and thereby procured its release. ix. The Plaintiff knew the whole time that Rockshell was using the crane to secure a facility and due to fraudulent intent to rip-off Defendant, actively conspired to enable Rockshell achieve its fraudulent objective”. In response to these arguments of the Appellant by which the Appellants are strenuously striving to impute fraud on Rockshell International Limited, its Directors especially Dr. Ras Djamah Seth Tei as well as The Big Boys Company, it is clear that there was no fraud practice on the Appellant by anybody. There was a clear finding to this effect by the learned trial High Court judge. In the first place, the learned trial High Court judge found as a fact that the Appellant Company (ACCESS BANK (GHANA) LIMITED) never had any dealings with the Respondent Company (THE BIG BOYS COMPANY) prior to the attachment of the Respondent’s crane by the Deputy Sheriff at the instance of the Appellant. Although the Appellant Company dealt with some Officers of The Big Boys Company, particularly Dr. Ras Seth Tei in connection with their loan transaction with Rockshell International Limited, that does not mean that the Appellant/Bank ipso facto had dealings with The Big Boys Company Limited. In the case of PREST v PETRODEL RESOURCES LIMITED and OTHERS [2013] UKSC 34. The Supreme Court of the United Kingdom speaking through Lord Sumption had this to say at paragraph 8 of his opinion; 16 “8 Subject to very limited exceptions, most of which are statutory, a company is a legal entity distinct from its shareholders. It has rights and liabilities on its own which are distinct from those of its shareholders. Its property is its own, and not that of its shareholders. In SALOMON v A SALOMON and CO LTD [1897] AC 22, the House of Lords held that these principles applied as much to a company that was wholly owned and controlled by one man as to any other company. In MACAURA v NORTHERN ASSURANCE CO LTD [1925] AC 619, the House of Lords held that the sole owner and controller of a company did not even have an insurable interest in property of the company, although economically he was liable to suffer by destruction. Lord Buckmaster, at pp 626-627 said: ‘no shareholder has any right to any item of property owned by the company, for he has no legal or equitable interest therein. He is entitled to a share in the profits while the company continues to carry on business and a share in the distribution of the surplus assets when the company is wound up’.” I am in perfect agreement with this statement of the Law by Lord Sumption as it relates to limited liability companies. Consequently, Dr. Ras Djamah Seth Tei may have been the majority shareholder and dominant controller of Rockshell International Limited as well as The Big Boys Company Limited; but that does not in any way make him the owner of the assets of either of them. The Appellant therefore dealt with the legal entity known as Rockshell International Limited in its capacity as an artificial person as opposed to its Director shareholder Dr. Ras Seth Tei who is a natural and different person. It is also clear that the Appellant/Bank which has a whole legal department woefully failed in its duty to do due diligence as regard this particular transaction. The all assets debenture which can be found at pages 72-84 of the ROA was very clear in its purport and intendment. There was no attempt by Rockshell International Limited or any of its Officers notably Dr. Ras Seth Tei to defraud the Appellant/Bank as they are forcefully asserting. Paragraph 2 of the all assets debenture was very clear as to the nature of “Ownership” Rockshell International Limited purported to have and to hold in the mobile crane. They stated in black and white that Rockshell International Limited was the “BENEFICIAL OWNER” of the crane. Paragraph 2 of the all assets debenture which can be found at page 72 of the ROA stated as follows; “2 As security for the payment and discharge of the principal sums and interest and all other monies intended to be hereby secured the Company as “BENEFICIAL OWNER” hereby charges to the Bank…” (the emphasis is mine) 17 Clearly, therefore, the Appellant/Bank entered into the all assets debenture contract with its eyes open. The legal advisors of the bank did not carry out due diligence by: a. insisting that Rockshell International provides “LEGAL OWNERSHIP” instead of “BENEFICIAL OWNERSHIP”. b. take possession and custody of the documents of title of the mobile crane as security. c. Register its security interest in the crane with the Collateral Registry established by the Bank of Ghana under the Borrowers and Lenders Act, 2008 (Act 773). d. By section 25(3) of the Borrowers Lenders Act, 2008, (Act 773). “ a charge which is not registered in accordance with subsection (1) is of no effect as a security for borrowers of the obligations for repayment of money secured and the money shall immediately become payable despite any provision to the contrary in any contract”. Upon the Appellant/Bank’s failure to do this, it was not strange that Rockshell International reneged on its covenant in the MEMORANDUM OF ACCEPTANCE dated 27th January, 2011 (see page 92 of the ROA) to provide an executed bill of sale and debenture agreement over the asset pledge as collateral (mobile crane) as is contained in item 10 of the Conditions Precedents to Drawdown in the letter of offer from the Appellant/Bank to Rockshell International dated 20th January, 2011 (see page 86 of the ROA). It was no wonder the Appellant/Bank could do nothing to compel Rockshell International to deliver the bill of sale after the later had taken the money and subsequently defaulted to repay same. The bank has itself to blame for these serious lapses the Appellant/Bank cannot turn round and accuse either company or any of their Director or Officers of fraud. There being no fraud, there is no need to lift the veil of incorporation. Ground E has no merit and is therefore dismissed. GROUND F: THE LEARNED TRIAL JUDGE ERRED BY HOLDING THE DEFENDANT LIABLE FOR SPECIAL DAMAGES FOR PLAINTIFF’S INABILITY TO EARN FEES WITHOUT FIRST MAKING A SPECIFIC FINDING OF LIABILITY AGAINST THE DEFENDANT. The Appellant grounds of appeal are numerous. They span pages 313-315 of the ROA. They are serially distinguished by the alphabets (a) to (m). The Appellant whether by oversight or in a bid to abandon ground F failed, neglected and or omitted to advance 18 any arguments in support of this particular ground. It is trite learning that in such circumstances it is safe to presume that the Appellant has elected to abandon that particular ground of Appeal. There is therefore no need to belabour the point of going through an analysis of that ground. Ground F is therefore treated as abandoned and is therefore dismissed. GROUNDS G, H, I and K: G: THE LEARNED JUDGE ERRED WHEN HE IGNORED THE REQUIREMENT FOR SPECIAL DAMAGES TO BE PLEADED AND PARTICULARIZED. H: THE LEARNED JUDGE ERRED WHEN HE HELD THAT THE EQUIPMENT HIRE AGREEMENT BETWEEN THE PLAINTIFF AND ROCKSHELL COMPANY LIMITED WITHOUT MORE, WAS SUFFICIENT EVIDENCE TO PROVE SPECIAL DAMAGES AND I: THE LEARNED TRIAL JUDGE ERRED WHEN HE MADE AN AWARD IN RESPECT OF RELIEF ONE (1) WHICH WAS MORE A RELIEF FOR LOSS OF REVENUE RATHER THAN SPECIAL DAMAGES. K: THE LEARNED TRIAL JUDGE ERRED IN AWARDING SPECIAL DAMAGES ON A DAILY BASIS OF USD $25,000 FROM THE DATE OF EXECUTION TILL THE DATE OF RELEASE PARTICULARS OF ERROR I. II. That the learned trial judge failed into taking into consideration weekends, holidays, possible breakdown of the crane, etc. in awarding the special damages. That the award of special damages to the Respondent was without regards to the clear evidence that the crane could not be used to work every day. Grounds G, H, I and K, all relate to special damages and so would be treated together. What then is special damage? Special Damage means damages relating to a business or profession, or property that are easily calculable in monetary terms; also called consequential damages. At page 578 of Street on Torts, 11th edition by John Murphy, special damage is defined as 19 “in short, the substantial damage capable of pecuniary assessments that must be proved in the case of all torts…is called special damage”. The requirement that special damages must be particularised and proved is trite. The respondent argues, in line with the judgment of the learned trial judge that, in cases like the instant one where the damage arose out of a tort committed in the face of a valid written subsisting contract covering a functioning machine which was attached in good working condition at the site where it had been deployed to discharge the contract, the particulars of damages are sufficiently particularised in the written contracts. Respondent further argues that, the written contract identifies the machine involved. The parties to the contract are also identified in the written contract. The terms of the contract for instance, the fees charged by the hour are stated in the contract. There is no dispute as to the attachment of the machine by the Appellant. The Appellant before the summary hearing of the interpleader proceedings voluntary agreed that the judge makes an order releasing the machine from attachment and same was done. There was no argument about the number of days the crane remained under attachment at the instance of the Appellant. With all these, the respondent argues that there were enough particulars to prove special damages suffered by the Respondent. In the case of Tema Oil Refinery vrs African Automobile Limited (H1/213/2009) [2010] unreported (11TH March, 2010) the Supreme Court held that: “the position of the law regarding special damages is that as the name indicates they are special and must be claimed with such particularity that the defendants know, not only the amount of loss or damage alleged to be suffered but also how that amount is made up or calculated. Any monetary loss suffered by the applicant up to the date of trial must be pleaded, particularised and proved or else it cannot be recovered.” The same Supreme Court had a year earlier held in the case of Delmas Agency Ghana Limited vrs Food Distributors International Limited [2007 – 2008] SCGLR 748 at 760 that “… where the plaintiff has properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate”. In this case, the plaintiff’s pleadings are very terse. The requirements of pleadings as relates to a claim of special damages were not met. There were no pleadings as regards damage specially suffered. Nothing was particularised to indicate any damage specially suffered by the plaintiff. No evidence was led before the trial court in the nature of 20 comparative earnings of a machine of the type in this case. This is by no means a basis for saying that the plaintiff suffers no damage. However, the damage suffered by the plaintiff is anything but special damage. In this connection, the award of special damages by the trial court made in favour of the respondent is problematic as it goes contrary to all known norms guiding the award of special damages. I will therefore interfere with that part of the judgment of the trial court which awarded the Plaintiff/Respondent special damages. I consequently set aside the award for special damages made by the learned trial judge in favour of the Plaintiff/Respondent. In place thereof I shall make an award of the cedi equivalent of USD 200,000 by way of general damages as it is clear that the attachment of plaintiff’s mobile crane at the instance of the Defendant/Appellant was wrongful. Grounds G, H, I and K, are therefore allowed in part. GROUND J: THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN HE HELD THAT THE ATTACHMENT OF THE CRANE WAS UNLAWFUL WITHOUT CONSIDERING THE MERITS OF THE ATTACHMENT ITSELF. The conduct of the Appellant itself belies any potency this ground could have had. It was the Appellant itself which conceded that the crane it caused the Deputy Sheriff to attach did not belong to Rockshell International Limited. This concession came after the Appellant/Bank had seen and scrutinised all the documents of title to the crane produced by the Respondent during the interpleader proceedings at the High Court. The documents included the customs duties documents, the bill of lading, and the DVLA registration document, all bearing the name of The Big Boys Company Limited. The appellant having conceded that the ownership of the crane of vested in the respondent and not in Rockshell International, it lies ill in their mouth to turn round to fault the learned trial judge when they say the attachment of the crane at the instance of the appellant was wrongful. Ground J is therefore dismissed. GROUND L: COSTS AWARDED IN FAVOUR OF PLAINTIFF IS EXCESSIVE, HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE. 21 The learned trial judge awarded GHS 80,000 in favour of the Respondent. The appellant argues that the costs so awarded is excessive having regard to the circumstances of the case. Costs, it is said, generally follow a successful litigant and is at the discretion of the judge. It was therefore held in the case of African Auto Ltd. v. Tema Oil (2012) 39 MLRG 1 @ 10, that; "It is generally accepted that costs follow a successful litigant unless the prevailing circumstances makes it quite certain that costs should not be awarded." Also at page 11: 'Although the award of costs was discretionary it must not only reflect the result of the suit but must also bear a reasonable relation to the amount of work that the preparation and conduct of the suit must have been involved." - Per Dotse JSC The award of costs by a trial judge, though discretionary may be interfered with by the appellate court under certain circumstances; one of them being the value of the subject matter under litigation. In this particular case, the learned trial judge awarded a judgment debts in the sum of USD 7,675,000. On the basis of this huge sum, he awarded cost of GHS 80,000. I have had to interfere with this award. I set aside the award and in its place made an award of the cedi equivalent USD 200,000. This was because the learned applied a wrong principle in making an award of special damages. In the case of Darpoh v. Teye Akrong [2016] 95 GMJ 71 @ 104 this Court speaking through Acquaye, J.A. held that “Costs are always awarded against a losing party at the discretion of the trial court and would be interfered with if the appellate court considers it minimal or excessive. An important consideration for the determination of costs – Per Acquaye J.A. is the value of the subject matter under litigation.” It is therefore reasonable that an award of the cedi equivalent of USD 200,000 must attract a lesser amount as costs. This Court again speaking through Kanyoke, J.A. held in the case of Abdulai Braimah v. Adisa Gbankulso [2016] 92 GMJ 107 @ 119-120 that; “It is a known fact that the award of costs is at the discretion of the court. The principle is that an appellate court would only interfere with the exercise of discretion where the court below applied wrong principles or the conclusions reached would work manifest injustice or even that the discretion was exercised on wrong or inadequate material” – Per Kanyoke JA 22 The learned trial judge having applied the wrong principle in awarding special damages eventually awarded costs which were excessive in the circumstances and which warrant my interference. Ground L is therefore allowed in part. GROUND M: FURTHER GROUNDS OF APPEAL TO BE FILED UPON RECEIPT OF THE RECORD OF APPEAL. No further grounds of appeal have been filed. CONCLUSION In conclusion, I hereby set aside the award of special damages made by the learned trial judge in favour of the Plaintiff/Respondent in the sum of USD 25,000 per day from the date of attachment of the machine i.e. 12 May 2016 to the date of its released i.e. 15 March 2017. In its place, I make an award in the nature of general damages in the sum of the cedi equivalent of USD 200,000. I set aside the costs of GHS 80,000 made in favour of the Plaintiff/Respondent. In its place, I make an award of GHS 20,000. SGD ……………………… JUSTICE OBENG MANU JNR (JUSTICE OF THE COURT OF APPEAL) SGD ………………………….. JUSTICE AMMA GAISIE (JUSTICE OF THE COURT OF APPEAL) 23 B. ACKAH-YENSU, JA INTRODUCTION I have had the benefit of reading the opinion of my learned brother, Obeng-Manu Jnr., JA. I am in agreement with his conclusion but I have a few thoughts which I want to add to the said opinion, particularly in respect of the award of special damages by the trial court. BACKGROUND FACTS Plaintiff/Respondent asserted that it had hired its 450 ton Crane to Messrs Rockshell International Limited under a contract for a period of 23 months at the rate of $25,000.00 per day. While the Crane was under the custody of Rockshell Int. Ltd., it was attached by the Deputy Sheriff at the instance of Plaintiff/Respondent for the reason that Rockshell Int. Ltd. had defaulted in the payment of a loan granted by the Bank to Rockshell Int. Ltd. Defendant/Appellant consequently obtained judgment against Rockshell Int. Ltd. Defendant/Appellant filed a Notice of Claim and an Affidavit of Interest in respect of the Crane, and the Crane was consequently released from attachment. After the release of the Crane from attachment, Plaintiff/Respondent issued a writ against the Defendant/Appellant claiming that it has suffered loss as a result of the fact that it was not able to honour the contract with Rockshell Int. Ltd. Plaintiff/Respondent claimed against Defendant/Appellant as follows: “a. Special damages of $25,000 per day, that is from May 12, 2016 to release date – Wednesday 15th March, 2017 of the Crane (when) the crane was under wrongful attachment) and the Plaintiff’s could not earn fees under the contract. b. c. Payment of the cost of any damage caused to the crane as a result of its attachment Costs of the action including Counsel’s fees set at the Ghana Bar Association scale of approved fees”. 24 The trial court entered judgment for the Plaintiff/Respondent on its relief one (1); that is Plaintiff was to recover the sum of USD25,000 per day from 12th May, 2016 to the 15th March, 2017 as special damages. THIS APPEAL As comprehensively discussed in the lead judgment, the Defendant/Appellant has appealed against the judgment of the trial court and is seeking an order setting aside the judgment of the trial court dated 7th June, 2019, upon a myriad of grounds. As aforesaid, I will limit myself to the grounds regarding the award of special damages in this opinion, i.e.: g) The learned judge erred when he ignored the requirement for special damages to be pleaded and particularized. h) The learned trial judge erred when he made an award in respect of relief (1) which was more a relief for loss of earnings than special damages. i) The learned trial judge erred when he made an award in respect of relief one (1) which was more a relief for loss of revenue rather than special damages. k) The learned trial judge erred in awarding special damages on a daily basis of USD 25,000 from the date of execution till the date of release.” In this delivery, I shall refer to the Parties as Plaintiff and Defendant respectively as in the trial court. In the judgment of the trial court, the learned trial judge posited as follows: “Having examined the evidence adduced by the Plaintiff regarding its claim for special damages in respect of the losses it incurred by reason of the unlawful attachment of its Crane at the instance of the Defendant, I am convinced that the Plaintiff has succeeded in 25 proving that it had a contract in place between it and Rockshell International Limited and that under the said contract, Plaintiff was to obtain a fee of USD 25,000 per day but for the unlawful attachment. In the circumstances, I uphold the claim of the Plaintiff for special damages against Defendant”. With all due respect to the learned trial Judge, in my opinion, this is not the position of the law. As aforesaid, the case of the Plaintiff was that the Defendant had wrongfully attached its Crane. Subsequently, the High Court on 15th March, 2017 made an Order for the release of the Crane to Plaintiff (see page 175 of record of appeal). Clearly, the case of the Plaintiff falls under Tort law. It is trite learning that Tort law is the area of the law that covers most civil suits. Generally, every claim that arises in a civil court, with the exception of contractual disputes falls under tort law. The concept of this area of law is to redress a wrong done a person and provide relief from the wrongful acts of others, usually by awarding monetary damages as compensation. The original intent of tort is to provide full compensation for proved harms. Damages in tort are awarded generally to place the claimant in the position in which he would have been had the tort not taken place; that is to say, damages are meant to return an injured party to the position it was in before the defendant’s wrong. Two types of damages that frequently appear in tort cases are compensatory and non-compensatory damages. Courts award plaintiffs compensatory damages as recompense for harm the Plaintiff suffered. Compensatory damages often fall into two sub-categories: general and special damages. General damages normally compensate a Plaintiff for non-monetary aspects 26 of their loss, such as pain and suffering. Special damages, on the other hand, compensate a plaintiff for financial aspects of their loss. Courts might also award non-compensatory damages such as punitive, aggravated, and nominal damages. Courts award punitive damages when a party has committed egregious behaviour which the court wishes to punish and deter. Courts also award aggravated damages where the defendant’s conduct has caused the plaintiff particular distress, grief, or humiliation. And then, Courts will award a small, “nominal” damages award when the defendant only slightly infringed the plaintiff’s rights, the plaintiff failed to prove a meaningful loss, or the plaintiff failed to mitigate. In order to obtain damages, however, the Plaintiff will still have to prove that his/her injuries were not too remote, were caused by the defendant’s behaviour, and should not be reduced due to a failure to mitigate. Even if a plaintiff suffered an injury, the court may deny damages that prove too remote, were not caused by the defendant’s conduct, or which the plaintiff took no steps to mitigate. Liability for payment of an award of damages is established when the Plaintiff/Claimant proves on the balance of probabilities that a defendant’s wrongful act caused a tangible, harm, loss, or injury to the plaintiff. Once that threshold is met, the plaintiff is entitled to some amount of recovery for the loss or injury. No recovery is not an option. The court must then assess the amount of compensation attributable to the harmful acts of the defendant. As aforesaid, special damages compensate the claimant for the quantifiable monetary losses suffered by the plaintiff. Special damages can include direct losses (such as to mitigate damages) and consequential or economic losses resulting from lost profits in a 27 business. Special damages basically include compensatory damages for the injury or harm to the plaintiff that result from the tort committed by the defendant. Special damages are sometimes divided into incidental damages and consequential damages. Incidental losses include costs needed to remedy problems and put things right. The Claimant may also be entitled to any consequential losses. These may include lost profits. General damages, on the other hand, are awarded to compensate for the direct effects of injury or loss, where the claimant’s injury/loss can be clearly linked to the defendant’s actions or behaviour. In the case of Yungdong Industries Ltd. v RoRo Services & Ors. [2005-2006] SCGLR 816, Dr. Twum, JSC, delivering the lead judgment of the Court stated as follows: “Generally, damages in tort are awarded by way of monetary compensation for a loss or losses which plaintiff has actually sustained, and the measure of damages awarded on this basis may vary infinitely according to the individual circumstances of any particular case. It is for a plaintiff to prove what loss, if any, it has suffered by reason of a tort, and when, as in this case, the effect of the tort is potentially adverse interference with the course of its business operations, it is for it to establish by evidence that there was, in fact, such adverse interference and that it suffered a properly quantifiable loss by reason of it”. In the instant appeal, the Plaintiff’s claims were anchored on an allegation that it had suffered loss as a result of the wrongful or unlawful attachment of the Crane. The loss being that it had lost income it would have made from the contract it had entered into with Rockshell Int. Ltd. for the rental or hiring of its Crane. Plaintiff asserted in its Statement of Claim that the Crane had been “taken unlawfully in execution”. 28 The Plaintiff had to prove this at the trial court on the preponderance of probabilities. The facts that Plaintiff is the owner of the crane in question, is without question. The learned trial judge found that the plaintiff proved its ownership of the Crane before him in the following words: “In further support of its case relating to ownership, the Plaintiff tendered in evidence certain legal documents to establish its title to the Crane, the subject matter of the dispute. These documents are the documents relating to the Registration of the Crane at DVLA, Customs, Excise and Preventive Service documents in respect of the importation of the Crane, and Bill of Lading.” And even though Rockshell Int. Ltd. used the crane as security for repayment of the facility granted it by Defendant, the trial court made a finding that the said security was unenforceable because it was not registered as required under the provisions of section 107(1) of the Companies Act, 1963 (Act 179) and Section 25(1) of the Borrowers and Lenders Act, 2008 (Act 773). From the evidence on record, the Defendant did not do due diligence to ascertain whether the properties listed in the Assets Debenture belonged to Rockshell Int. Ltd. before accepting them as securities. In the circumstances the trial judge held that: “If the Defendant had conducted a proper enquiry from the appropriate sources coupled with some form of vigilance, it would have been clear to them that the crane did not belong to Rockshell International Limited and would not have attached some. What is incomprehensible is the fact that despite the said crane having the name of the Plaintiff boldly written on it, the Defendant went ahead to have it attached. There was no legal basis for such an attachment of the Crane. For the foregoing reasons, I find that the attachment of the Crane was unlawful and I so hold”. I agree with the opinion of the learned trial Judge; Plaintiff had established that the attachment of the Crane was wrong. As the right to compensation, according to the case of the Plaintiff arose subsequent to the unlawful attachment of the Crane, with the 29 consequent loss of revenue or income, the Plaintiff’s claims appear to be in the nature of special damages. As aforesaid, the right to the award of damages must flow from the wrongful attachment of the Crane. So what does the law say on special damages? The position of the law is elucidated by Bowen L J in Radcliffe v Evans [1982] 2 QB 524 at 528 in the following words: “…. Lest we should be led astray in such a matter by mere words, it is desirable to recollect that the term “special damage” which is found for centuries in the books is not always used with reference to similar subject-matter, nor in the same context. At times (both in the law of tort and of contract) it is employed to denote that damage arising out of the special circumstances of the case which if properly pleaded may be superadded to the general damage which the law presumes in every breach of contract and every infringement of an absolute right. In all such cases, the law presumes that some damage will flow from the ordinary course of things from the mere invasion of the plaintiff’s rights, and calls it general damage. Special damage in this context means that the particular damage (beyond the general) damage which results from the particular circumstances of the case, and of the plaintiff’s claim to be compensated for which he ought to give warning in his pleadings in order that there may be no surprise at the trial. But when no actual positive right (apart from the damage done) has been disturbed, it is the damage done that is the wrong; and the expression used of this damage denotes the actual and temporal loss which in fact occurred. Such damages is called variously in old authorities “express loss”, “particular damage” …, “damage in fact”, “special or particular cause of loss””. The requirement to particularize and prove special damages strictly has been emphasized in a number of cases by our courts and we make reference to the statement of Dr. Twum, JSC in the case Delmas Agency Ghana Ltd. v Food Distributors International Ltd. [2007- 2008] SCGLR 748 at 760 as follows: 30 “…. Where the plaintiff has a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate”. In my view, the words of both Bowen L. J and Dr. Twum, JSC are of value to our determination of the nature of the damages that was claimed by the Plaintiff as a consequence of the wrongful attachment of the Crane. From a careful reading of the above pronouncements, there is no doubt that losses which refer to specific sums of money fall into the category of special damages and not general damages. While general damages is presumed by the law from the invasion of a right, special damages on the other hand refers to the particular damage suffered by a party beyond that presumed by the law form the mere fact of an invasion of a right and must be proved strictly by evidence adduced at the trial. The insistence on giving particulars as explained by Bowen L. J is to avoid surprise to the other party and afford him the opportunity of challenging the loss else an award may be made against him in a manner that deprives him of defending himself. The Plaintiff herein did not particularize its claim for special damages. Also, the Plaintiff in order to succeed in this claim which is put at US$7,675,000.00 only relied on the contract between the Plaintiff and Rockshell Int. Ltd as proof for the special damages claimed. I am of the view that the evidence led by the Plaintiff in support of its claim falls short of obligation placed on him under Section 11(1) of the Evidence Act as follows: “The burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue”. In effect, Plaintiff did not lead sufficient evidence to satisfy the burden of strictly proving its claim for special damages. As posited by Dr. Twum, JSC in the Delmas Agency case on award of general damages may be considered in circumstances like this. 31 I am strengthened in this position by the decision of the Supreme Court in the decision of Bogoso Gold Ltd. v Ntrakwa & Anor [2011] 1 SCGLR 415, in which case Gbadegbe, JSC stated as follows: “We have carefully and anxiously considered the considerable submissions urged on us in support of this and have come to the view that although the damages were not specifically pleaded, having regard to the fact that they related to loss of income over a period of years that could not have reasonably computed by anybody with arithmetical precision, as might be the case regarding, for example, loss of wages or salaries that were previously predetermined. Under a contract of employment or past expenses incurred consequent upon a tort ………… the head of damage that was suffered by the plaintiff’s flowing from the tortious act of the defendants included past and future loss of income from their forms. These earnings being the natural consequence of the defendant’s wrongful acts, where in their nature, at large and were to be awarded by the court taking into account what it considered fair and reasonable. It appears therefore that it is impossible for them to have specifically pleaded these as special damages and that the proper mode of seeking relief on them is to lead evidence thereon for the trier of facts and or court of law to assess the damages. The statement by the defendant that general damages must be nominal is perhaps, in our view, too broad in the context of this case to be accepted as correct. The correct position that runs through a collection of cases on the point is that where an act of a defendant ordinarily entitles a plaintiff to an award of damages without proof of actual damage such as an act of unlawfully entering upon the land of another, the award under this head is general damages, which in its nature is nominal and only intended to vindicate the right of the occupier to have undisturbed possession of his property”. His Lordship goes on to say that: “… we wish to observe that since the claim is essentially one in general damages, the pleadings and the evidence led on the quantity of the yield per acre are 32 only anticipatory and are only offered to enable the trial court or the court to determine from the totality of the admitted evidence what it considers fair and reasonable”. In the circumstances of the instant case I find that it is fair and reasonable to award the Plaintiff general damages. As aforesaid, Plaintiff herein has successfully established that its Crane was wrongfully attached by the Defendant. He was however not able to prove special damages. I do not believe in the circumstances that he is only entitled to nominal damages. In any case, as pointed out by the Earl of Halsbury in the “Mediana” (1900) AC 113 at p 116, the term “nominal damages” does not necessarily mean “small damages”. The Supreme Court of Ghana has expatiated on the subject of nominal damages in the unreported case of Messrs Askus Company v Boakye & Ors. (J4/14/2015) 20th April 2016 as follows: “…. “nominal damages” dies not stand on its own, separate from General Damages. Nominal damages are an aspect of General Damages. They are the type of general damages that are awarded when no actual harm has been caused by the tort complained of, or the contract breached ……………………………… Aside of nominal damages, there are either types of damages that also fall under General Damages. Examples are: Substantial damages, aggravated and parasitic damages, exemplary or punitive damages and incidental or consequential damages”. CONCLUSION I therefore agree that the Plaintiff be awarded general damages of US$200,000.00 or its cedi equivalent. 33 SGD BARBARA ACKAH-YENSU (JUSTICE OF THE COURT OF APPEAL) ………………………. COUNSEL: CHARLES TETTEH WITH DAVID AGYEKUM FOR THE DEFENDANT/APPELLANT EMMANUEL GOKA FOR THE PLAINTIFF/RESPONDENT 34