BLACKCHILD CO. LTD VRS SEKONDI – TAKORADI METROPOLITAN (E2/15/18) [2023] GHAHC 557 (23 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HELD IN SEKONDI ON THURSDAY, THE 23RD DAY OF MARCH, 2023 CORAM: G. K GYAN-KONTOH ‘J’ JUSTICE OF THE HIGH COURT SUIT NO: E2/15/18 BETWEEN: BLACKCHILD CO. LTD ::: PLAINTIFF H/NO. AA2, WEST ANAJI ESTATES ANAJI - TAKORADI vs SEKONDI – TAKORADI METROPOLITAN ::: DEFENDANTS ASSEMBLY, SEKONDI. JUDGMENT By a writ of summons, the Plaintiff on 21/11/2017 instituted an action against the Defendant herein for the following reliefs: (a) General and special damages for breach of contract. The writ was accompanied with a statement of claim where the Plaintiff, a limited Liability Company in Ghana, upon a proposal on the Management of the Jubilee Park in Takoradi, a property of Defendant Metropolitan Assembly was requested to manage the Jubilee Park (facility) on a pilot basis for 1/1/2014 to 31/12/2014 so as to assess the possibility of the project before the parties could bind themselves by a formal agreement and the agreement was evidenced in writing providing the details of the pilot project. According to the Plaintiff, the project was extended for 1/1/2015 to 1/12/2015 by a short agreement and this was done. The parties, according to the Plaintiff then in 2016 engaged each other for a deal resulting in a Build-Operate-Transfer Agreement (BOT) where upon the Plaintiff sourced for some financial facilities to commence work as it was Capital-intensive. But in May 2017 the Defendant wrote to the Plaintiff to hold on for further constructional works but 3 days later, the Defendant wrote to terminate the contract unilaterally. This, according to the Plaintiff is unlawful and so he caused his lawyers to write to the Defendants on the work done on the facility and also the cost incurred and demanded his money. But this was not heeded to hence the instant suit to demand damage and breach of contract. The Defendant admitted having put out a notice for proposals for the private management of the Jubilee Park and requesting applications but vehemently denied having entered into any contract with the Plaintiff on working on the facility on pilot basis. The Defendant however admitted entering into a contract with the Plaintiff on BOT basis and added that prior to the execution of the agreement, the Plaintiff had represented to the Defendant that he had the requisite financial and technical resources to undertake the project. The Defendant admitted writing to the Plaintiff to hold on with the project because of fundamental breaches of the contract of the Plaintiff. The Defendant states that the breaches included the inability to execute the project envisaged in the agreement within the agreed duration of 10 months and the refusal or failure to make out certain payments to the Defendant. The Defendant wrote to terminate the agreement and admitted also receiving letters from the Plaintiff’s Solicitor and upon the Plaintiff’s Solicitor letters. The parties caused the extent of work done by the Plaintiff to be valued which stood at GH¢51,153.50 and upon agreeing to the valuation, the Defendant paid GH¢40,000.00 on account of such valuation to the Plaintiff and so the Plaintiff is not entitled to her claim. Upon an application for direction, the following issues were set out: (a) Whether or not the contract was unlawfully terminated by the Defendant. (b) Whether or not the Plaintiff was in breach of the contract. (c) Whether or not the sum of GH¢51,153.50 truly represented the work executed by the Plaintiff. (d) Whether or not the Plaintiff is entitled to recover loss of future earnings. THE PLAINTIFF’S CASE: The Plaintiff’s evidence is that in March, 2014, he went to the Defendant’s office on a different matter and saw posters on the Defendant’s notice board inviting the public to place bids for the management of the Jubilee Park, Takoradi (hereafter called the Facility) requiring all those interested and meeting their criteria to put up and submit proposals on how to manage the facility and this was done and same submitted on 27/3/2014 to the Defendant. According to the Plaintiff, in April, 2014, the Chief Executive Officer of the Defendant called him on the telephone, invited him to a meeting on his application submitted and the meeting included in the Defendant’s part – the Metropolitan Solicitor (Lawyer Kwaitoo), the Works Engineer (Amponsah), the Coordinating Director (Alhaji Asira), the Budget Officer (Tony Moses), the Physical Planning Officer (Affum), another gentleman called Affeddy, the Secretary to the meeting and the Quantity Surveyor. According to the Defendant, at the meeting he was informed that his application and proposals had been accepted and he had the month of May to take over but to begin the contract on 1/6/2014 to 31/12/2014 with the reasoning being that the project was a Novelty and so needed time to assess if the project could be effectively done and that a formal agreement would be executed between the parties to which the Plaintiff agreed. This was evidenced in Exhibit “A”. Again, after submitting a report on the pilot project which was successfully completed (as per Exhibit “B”), the pilot project was extended for one year but the witness said he could not produce his copy of the agreement. The Defendant did not deny this. After successfully completing the entire one year pilot project, the parties, after series of meetings and discussions eventually entered into a new formal contract on “BUILD-OPERATE-TRANSFER” agreement (BOT) as exhibited in Exhibit “C” which provided the details of the contract. According to the Plaintiff, as a requirement, he was obliged to obtain loan facilities from creditors including the Commercial Bank, Gesro Union, the SSB and Bayport Financial Services all totaling GH¢ 64,000.00 at the interest rate of 30% for the project and all were evidenced as Exhibits D, D1, D2, and D3 most of which were secured in his personal name but some too were in the name of the company. All the monies were applied to undertake the contract in issue. According to the Plaintiff, when he began the first phase of the project in September 2016 which included repairing structural defects, change of roofing ceiling and facial boards and painting works, electrical, plumbing, sewerage and others, all the above were completed as per the report of same and evidenced as per Exhibit “E”. According to the Plaintiff, he started the second phase of the project in April 2017 which included excavation works when the Defendant’s Engineer came to the site directing the Plaintiff to hold on to the works and NOT to do any further constructional works. Surprised by the above directive and sudden turn of events, the Plaintiff instructed his Solicitors to demand the reasons for the directive as per Exhibit “E” to which the Defendants replied through Exhibit “G”. According to the Plaintiff, three (3) days after the receipt of Exhibit “G” from the Defendant, they sent him document terminating the contract as per Exhibit “H”. According to the Plaintiff, Exhibit “H” constituted a breach of contract and so he instructed his lawyers to reply to the contents of Exhibit “H” which they did as per Exhibit “J” to which the Defendants in turn replied to same by Exhibit “K”. According to the Plaintiff, by Clause 14.1 of Exhibit “C” (the contract), the Defendant ought to have served him with notice to terminate as stipulated in Exhibit “C” – just three (3) days after the oral directives to stop the project. Again, according to the Plaintiff, he did not also receive any written notice to rectify any default as per Clause14.2 of Exhibit “C”. The Plaintiff denied being in breach of Clauses 7.2 and 7.4 of Exhibit “C”. According to the Plaintiff, the Defendant’s manner of termination of the contract was a breach of contract resulting in the loss of income and profit from the project as he costed same and sent it to the Defendants to pay him GH¢ 6,068,548.62 as per Exhibit “L”. But the Defendants paid only GH¢40,000.00 to her vide two (2) cheques as per Exhibits M and M1. According to the Plaintiff, she is not aware of any valuation work done by the Defendant on the work that he did and neither was he a party to any known valuation, and therefore demands as per his claim against the Defendant for breach of contract. The following may be of relevance: Q: After the termination of the contract, the Defendant invited you to the site for measurements to be taken for the works you have done? A: That is not correct. Q: On 9/8/2017, you were present at the site when these measurements were taken of the work you did? A: On 9/8/2017, I was invited to the office of the Works Engineer where I was asked to allow my workers to fix the pavement blocks which had been removed for maintenance. Q: On the said 9/8/2017, you availed yourself at the site and the measurements were showed that the work you did came to GH¢ 51,103.50. A: That is not correct. THE DEFENDANT’S CASE: The Defendant represented by William Tei-Kpoti as the Works Engineer admitted that the Plaintiff completed seven (7) months’ management of the facility in 2014 and put in a bid for the reconstruction of the facility later. The Defendant also stated that after series of negotiations and assurances from the Plaintiff, he had both the financial and technical capacity to carry out the reconstruction of the facility, the parties on 14/9/2016 executed a BUILD- OPERATE-TRANSFER (BOT) agreement as per Exhibit “C” which both parties would rely on for the purposes of the case. According to the Defendant, from Exhibit “C”, the time lines were set and agreed upon, the Plaintiff was to do certain basic and fundamental things with the view of accomplishing what was intended. It included time lines of 10 months within which to start and complete the project, to make some monthly payments to the Plaintiff from the 11th month after executing Exhibit “C” (but which never happened in spite of reminders to the Plaintiff, the failure to renew her Business Operating Permit and which permit even the Plaintiff never obtained one, failure /refusal to post the performance bond of GH¢450,000.00, refusal to undertake concrete works on the facility at the appropriate time (but undertaking same only during raining season when it was not safe to do so). The Defendant wrote to the Plaintiff by Exhibit “G” (as exhibited by the Plaintiff) and relied on by the Defendant for his defence, the Defendant due to the virtual non-performance by the Plaintiff in addition to all the above wrote to the Plaintiff by a letter dated 30/6/2017 terminating the contract as per Exhibit “H” – to be relied upon in the Defendant’s witness statement. According to the Defendant, having terminated the contract, he invited the Plaintiff to be present at the project site for valuation of works done by the Plaintiff for the purposes of payment due to the Plaintiff which the Plaintiff attended on 9/8/2017 where the valuation was done and valued at GH¢51,153.50. According to the Defendant, the witness prepared a memo on the above valuation to the MCE together with details of the valuation as per Exhibit “1”, as a copy of the said valuation had already been given to the Plaintiff without any protest and so the Defendant started to pay off the amount albeit in tranches as per Exhibit “M” and “M1”. According to the Defendant, the Plaintiff is not due any amount beyond the recommended valuation of GH¢51,153.50 as contained in Exhibit 1. DETERMINATION OF ISSUES: In this case, each party testified for himself without calling any witness. Fundamentally, the subject matter bothered on documentary evidence as it indeed focused on Exhibit “C” which is BUILD-OPERATE-TRANSFER Agreement between Sekondi-Takoradi Metropolitan Assembly and Black Child Company Ltd. I now wish at this juncture to bring to the fore that – when the writ of summons in this case was issued on 21/11/2017 during the tenure of P. Bright Mensah J (as he then was), it has passed through the hands of 4 justices including the present one now delivering this judgment. I therefore pray you if I do not provide any finer details of the matter, you forgive me. Indeed, at the close of this case, parties were directed to file their respective written addresses by a deadline. Counsel failed to comply with the directives. And extension of time was provided for Counsel to file the said process. Yet it is only the Counsel for the Plaintiff who did file his written address. As at the time of the delivery of this judgment, only the Plaintiff has complied with the directives to file a written address. And before I proceed to deal with the issues as raised and set out for the determination of the matter, I wish to make some comments regarding the case in point. There is no doubt that a contract, in this case Exhibit “C” was entered between the parties voluntarily with the intent of both parties benefitting from such arrangement. And each party is bound by his part of the contract, entered into voluntarily and freely. (See the case of MAGNA TERRIS LIMITED v. BERTHOLD PAA JOE GADAGUBI [2017] 115 GMJ 268, CA. On NTHC LIMITED v. ANTWI [2009] SCGLR 117 @ 125, per Dr. Date-Bah, JSC, the court held thus: “Basically, an offer is an indication in words or by conduct by an offeror that he or she is prepared to be bound by a contract in the terms expressed in the offer, if the offeree communicates to the offeror his or her acceptance of those terms. Accordingly, the offer has to be final and definite and must not leave significant terms open for further negotiation ….. it is important to emphasize the proposition that the mere acceptance of an offer is sufficient to turn the offer into a contract, if there is consideration for it, together with an intention to create legal relations”. It must also be noted that contracts must be certain. This was stated in the case of the REPUBLIC V. HIGH COURT, CAPE COAST, EX-PARTE GHANA COCOA BOARD, (APOTOI III – INTERESTED PARTY) [2009] SCGLR 603 @ 619, AND PARTICULARLY PER ATUGUBA, JSC thus: “But if such terms of settlement are to be effective, they must, in my opinion, be CERTAIN enough so as to bind the parties for that is their intent or purpose”. “It is trite that for a contract to be enforceable it must be CERTAIN at least as to its essential terms. In modern times, however, the courts have taken the stand that, especially as here, there has been part performance, the agreement should survive as a contract! See also the case of KOGLEX LTD. V. FIELD [2009-2010] 2GLR 427, SC. Therefore, certainty of a contract is a logical and necessary requirement which has never been questioned. It must be noted as it is indeed settled by the holding in the case of MADINA SHOPPING MALL ASSOCIATION v. ROSEHILLGH. LTD [2012] 39 MLRG 81, SC, that “to be a good contract there must be a concluded bargain, and a concluded contract is one which settles everything that is necessary to be settled and leaves nothing to be settled by agreement between the parties”. Also, in contracts, TIME is of essence. Even it has been held that, in the absence of stipulating time in a contract, reasonable time applies as has been so held in the Supreme Court case of KOGLEX LTD. v. KATE FIELD [1998-99] SCGLR 451 (supra). Indeed, such was the position held in the Supreme Court case of ATTA & ANOR v. ADU [1987-88] 1 GLR 233. It has also been always held by the courts that it is not the duty of the courts to make new contracts for parties on terms that they have not mutually agreed upon. A case that easily comes to mind on this position of the law is MIREKU & TETTEH (DEC’D); IN RE MIREKU v. TETTEH [2011] 1SCGLR 520. Again, on Freedom of contract and the right to terminate same, the Apex court of Ghana in the case of SSB BANK LIMITED v. CBAM INC (2007-2008) 2 SCGLR 894 @ 897-898, per Atuguba JSC, held thus: “It has often been said that the courts will not make contracts for the parties or refuse to give effect to the terms of their contract, subject to a few exceptions relating to illegality, fraud and gross unconsciousability, etc.” PER WOOD JSC @ page 904, it was held thus: “INDEED it is open to the parties to a contract to expressly provide that either of them has an option to terminate the contract”. The court of Appeal case of SOFT SHEEN CARSON v. WILLIAM FUGAL [2014] 79 GMJ 162, on sanctity of contract also stated that: “THE DOCTRINE of sanctity of contract directs that a court cannot intervene and substitute any other interpretation of the contractual intentions of the parties, but to owing what the parties have themselves contracted to do”. Having now extensively taken pains to discuss and give various terms, ingredients, features and import of a valid contract, I will now proceed to deal with the issues raised in the pleading and as per the Directions, as the evidence is that and which is indeed the agreed position of the parties that there is indeed a valid, voluntarily agreed contract vide Exhibit “C” between the parties. Having provided the above, it may now be of interest to analyze some of the salient features of Exhibit “C” which is the fulcrum of this suit, the breach of which we are now delivering this judgment. Clauses of Exhibit “C”: (The Contract): “4(a): THIS Agreement shall commence on the date of execution and remain in force for a period of ten (10) years certain (excluding of the construction period of 10 months) unless otherwise extended or renewed for a further period of time upon such terms and conditions to be mutually agreed between the parties or until terminated in the manner provided on this Agreement. “5.1. THE Estimated total investment cost of the entire project is Gh¢487,790.45 ( ) comprising the cost of actual rehabilitation, interest on loan FACILITY AND DEVELOPER’S, MARGINAL PROFIT as particularly set out in… “5.2. It is HEREBY agreed that the company shall pre-finance the TOTAL COST OF ACTUAL REHABILITATION of the project of Gh¢487,790.45 partially from its own resources in the sum of Gh¢150,000.00 constitution 67% from a financial institution of repute documentary evidence of which the company shall provide to the Assembly not later than six (6) weeks after commencement of the project. “5.4. WITH effect from the 10th month after the execution of this agreement, a monthly royalty payment of 10% on the gross revenue accruing from the project shall be made to the Assembly at least first week of every month. “6.1. THE Assembly SHALL generally provide TECHNICAL SUPERVISION to FACILITATE the smooth implementation of the project. “7.1. BEFORE the commencement of this agreement, the company SHALL register with the Assembly and obtain an annual business operating permit that shall be renewable at the beginning of every year. “7.2. The company shall be responsible for the development and rehabilitation works, reconstruction of ground works at Jubilee Park, Takoradi. WITHIN TEN (10) months from the date of execution of this agreement. “7.4. The company shall, in the 10th month after the commencement of this agreement or a month prior to the commencement of its management activities, submit to the Assembly a performance bond in the sum of GH¢450,000.00 issued by a reputable bank to cover the 1st year of management of the Jubilee Park ……….. expiry”. “7.5. The company shall take appropriate insurance policies to cover its operation and personnel and shall be responsible for all liabilities occasioned by acts of negligence of its personnel, workmen or agents throughout the term specified under this agreement. “9.1. The works department of the Assembly shall have oversight responsibility for monitoring and supervision of the physical development of the project and the company shall co-operate fully with such officers as shall be designated by the Assembly for purpose. “9.4. The company shall submit to the Assembly monthly and periodic progress reports in a format acceptable to the Assembly including update on work done, areas of operation and general performance. “12. WAIVER OF BREACH – The waiver by a party of a breach of any provisions of this agreement shall not operate or be construed as a waiver of any subsequent breach by either party. “14. TERMINATION: “14.1. In the event of non-performance of the obligations accepted by the company to be performed, or unsatisfactory performance contrary to the provisions of this agreement the assembly shall be at liberty to terminate this agreement upon giving the company three months prior notice in writing of such intention. “14.2. Prior to the termination of this agreement as in the foregoing provision, the Assembly shall have given a written notice to the company to rectify the default and the company shall have neglected, failed and/or refused to do so. “14.3. The above provision not withstanding either party may for good reason terminate this agreement by giving the other party a three month prior notice in writing of such intention. “14.4. Termination shall be without prejudice to such payments or claims as may be due from one party to another. “16. FAIRNESS AND GOOD FAITH; The parties UNDERTAKE to act in good faith with respect to each other’s right under this agreement and to adopt all reasonable measures to ensure the realization of the objectives of this agreement. Now, from the above and having concluded that, and as the parties are ad idem on Exhibit “C” as the basis of their relations, I venture to consider issues thus: 1. “WHETHER OR NOT THE CONTRACT WAS UNLAWFULLY TERMINATED BY THE DEFENDANT AND 2. WHETHER OR NOT THE PLAINTIFF WAS IN BREACH” The evidence is that the contract between the parties was determined. The following evidence, by way of cross-examination of the parties support the above. CROSS-EXAMINATION OF THE DEFENDANT BY COUNSEL FOR THE PLAINTIFF; Q: You yourself are a signatory to Exhibit “C” as a witness? A: Correct. Q: Can you tell the court the commencement and the conclusion of the contract? A: The contract was executed on 14/11/2016 for a period of ten (10) months. Q: Can you tell the court how you terminated the contract with the Plaintiff? A: The contract was formally terminated firstly, we wrote to the contractor for non-performance before the formal termination letter was issued. Q: You are aware that after the contract with the Plaintiff was terminated, it was re-awarded? A: Yes. Q: Before the actual contract was to be performed by the Plaintiff, there was a pilot one? A: Yes. Q: And Exhibit “H”, which terminated the contract is dated 30/6/2017? A: Yes, my Lord. From the above cross-examination, it clearly establishes that indeed the contract was determined between the parties. And as per Wood JSC (as she then was) in the case of SSB Bank Limited v. CBAM INC (supra) at 904, Her Ladyship stated thus: “Indeed, it is open to the parties to a contract to expressly provide that either of them has an option to terminate the contract.” WOOD, JSC (as she then was) continued with her decision in the said case thus: “Clearly, at law, alternative grounds exist for determining contracts. A breach of fundamental or essential term is one of the grounds which a contract may be terminated. Where this is the stated ground, and the allegation that the term is essential or fundamental is disputed, a court is bound to determine the issue as a primary fact. But a contract may also be determined where as in the instant case, the innocent party is empowered by the terms to terminate.” The question which then arises is whether or not the termination was unlawful. Generally, very good contracts have termination clauses in them. Such was the case in Exhibit “C”. The termination clause in Exhibit “C” states thus: “14. TERMINATION: “14.1. In the event of non-performance of the obligations accepted by the company to be performed, or unsatisfactory performance contrary to the provisions of this agreement the assembly shall be at liberty to terminate this agreement upon giving the company three months prior notice in writing of such intention. “14.2. Prior to the termination of this agreement as in the foregoing provision, the Assembly shall have given a written notice to the company to rectify the default and the company shall have neglected, failed and/or refused to do so. “14.3. The above provision not withstanding either party may for good reason terminate this agreement by giving the other party a three month prior notice in writing of such intention. And per ASIAMAH JSC in SSB BANK LIMITED v. CBAM INC (supra), it was stated at page 968 thus: “In every contract there is an implied term that none of the parties thereto would do anything in relation to the performance of the contract which would endanger the purposeful and beneficial realization of the ultimate intent of the contract……. Determination of a contract is such a serious matter that justice and equity demand that a court exercising jurisdiction in such matters must proceed with integrity and judicial circumspection and rectitude. The occurrence of an event in relation to a stipulation which would justify an innocent party to abrogate a contract must be a kind that excludes a conduct in the defaulting party which discloses a deliberate intention to frustrate the actualization of the inducement which prompted the parties to embark on a particular activity. This must be the underpinning factor in considering whether non-performance of an obligation in a commercial contract can be said to have vitiated the reasonable expectation of the contracting parties in achieving their ultimate intentions and thereby lead to an outright repudiation or be regarded as a mere innocuous infraction. A breach of an obligation in a contract that would, of necessity, call for an election on the part of the non-offending party to exercise his right of determination in the contract, must fit into one of the following situations: (i) That which goes to the whole root of the contract and not merely a part of it, or (ii) (iii) That which makes further performance impossible. That which affects the very substance of the contract. However, if prima facie, there appears to be a breach in any of the three situations but the innocent party, with full knowledge of the facts makes it clear by words, or acts or even by silence, that he refuses to accept the breach as a discharge of the contract, the effect is that the status quo ante is preserved intact. The contract remains in being for the future on both side. In such a situation the law would regard the innocent party to have repudiated his obligation of exercising his right to abrogate the contract…” The above dictum from the Great Jurist greatly resolves lots of concerns to be raised on the subject. From the above authority, questions that come up for answers and/or consideration in this case are: • Were there breach or breaches? • By which party? • Were the actions resulting in the breach (es) deliberate/intentional? • Was it on non-performance? • Could such non-performance have vitiated the reasonable expectation of the contracting parties in achieving their ultimate intentions? • Did the breach go to the root of the contract and not merely a part of it? • Did the breach make the further performance of the contract impossible? • Did the breach affect the very substance of the contract? To answer all the above questions so as to help in whether or not the termination was unlawful, the following, quite comprehensive cross- examination may be of great help: CROSS-EXAMINATION OF THE DEFENDANT BY COUNSEL FOR THE PLAINTIFF; Q: Before the actual contract was to be performed by the Plaintiff, there was a pilot one? A: Yes. Q: Exhibit “B” was addressed to the Coordinating Director of the Defendant’s office? A: Yes. Q: Exhibit ‘B’ was a report submitted by the Plaintiff about the pilot project? A: Yes. Q: As a result of Exhibit ‘B’, your office extended the pilot project for a further year? A: Yes. Q: And this additional year the Plaintiff completed as well? A: Yes. Q: And it was after the completion of the second pilot project that your office engaged him to discuss for a permanent one? A: Yes….. Q: As far as your office was concerned you did not have any issues with the Plaintiff regarding the two phases with the pilot that the Plaintiff did for the Assembly? A: Correct. Q: And I am sure that the Plaintiff’s performance of these two pilot projects encouraged your office (Defendant) to enter into the contract in Exhibit ‘C’? A: Correct. Q: In Exhibit ‘C’ the Plaintiff was to rehabilitate structure at the Jubilee Park which included the following; (a) The sewerage system (b) The electrical works (c) Convert the floor from the pavement blocks to concrete slaps. A: Correct. Q: It is also the case that in Exhibit ‘C’ under the Terms of the contract, the Plaintiff was obliged to provide 30% self-finance and 70% cooperate loans? A: True. Q: You would agree with me that the Plaintiff could satisfy these component of raising 30% self-finance and 70% cooperate loans? A: True. The financial agreement is 20% for the Plaintiff and 80% for the financial management. Q: You will agree with me that Exhibit ‘D’ is a loan approval from GCB bank to the Plaintiff? A: True. Q: Exhibit “D” is a credit facility which was approved for the Plaintiff? A: True. Q: You are also aware that the Plaintiff began by repairing the structural defects of the subject (Jubilee Park)? A: Correct. Q: Do you know when this work began? A: No. Q: I suggest to you that the Plaintiff began in September 2016? A: Yes. Q: You will agree with me that repairing the structural defects involved the clearing of the roofing, the ceiling and the facial boards? A: Correct. The changes were to do with damaged parts and not all. Q: It included electrical, plumbing and the sewerage system? A: Correct. Q: But you are aware that after the completion of all the repair work, after the completion, the Plaintiff submitted a report on that? A: True. That is a work progress report. Q: The report is Exhibit “E”? A: True. Q: As soon as the Plaintiff began the excavation work to tackle the park work in April, 2017, the Engineer from your office verbally came to ask him to stop the works? A: True. Q: In April, 2017, when you asked the Plaintiff to stop the work, he was within the contract period? A: True. Q: And you know from Exhibit “C” that there was obligation from your office to give a three (3) month prior notice to the Plaintiff before terminating the contract? A: True. Q: By clause 14 (2) of Exhibit “C”, your office was required to give notice to the Plaintiff to rectify any defect or default in the execution of the contract? A: True Q: Did your office ever serve the Plaintiff with a notice to correct the defect/default before the termination was served on the Plaintiff? A: No, my Lord. Q: The Plaintiff did not even complete Ten (10) months on the job when he was asked to stop work A: True. Q: You are aware that after the contract with the Plaintiff was terminated, it was re-awarded? A: Yes, my Lord. Q: Can you tell the company to whom the contracts was re-awarded? A: I do not know. I have painstakingly decided to set out the above evidence through cross- examination of the Defendant’s officer. From the above, the answers to the questions posed rhetorically above in resolving Issues (1) and 2(a) have been provided. From the evidence as above stated and from the Defendant himself before Exhibit “C”, the contract was formally entered into, the parties had engaged themselves in pilot projects on the same Jubilee Park on two pilot basis and the Defendants were satisfied with the work and performance of the Plaintiff’s work resulting in the execution of Exhibit “C”. This was confirmed by the Defendant in the cross-examination above. The Defendant confirmed from the evidence that, the Plaintiff was contracted to undertake a pilot project on which he executed and presented a report to that effect to the Defendant. Again, the Plaintiff was tasked to undertake yet another pilot project for which the Plaintiff executed to the satisfaction of the Defendant. From the cross-examination above, the Defendant confirmed that indeed it was as a result of the satisfactory work of the Plaintiff that the Defendant entered into negotiations resulting in the execution of Exhibit “C”. From the above therefore, I find that it was not fair on the part of the Defendant to argue that the Plaintiff did not register with the Defendant as required under Exhibit “C” so as to be considered as a ground or contribute to the termination of the contract. If the Plaintiff had not registered with the Assembly, in the first place, the Defendant would not have dealt with the Plaintiff even on the two (2) pilot projects which the Plaintiff executed satisfactorily and presented reports culminating in the execution of Exhibit “C”. Regarding the time frame, I find from the evidence and particularly from the cross-examination of the Defendant itself above that the time, per Exhibit “C” is ten (10) months. Also, the contract was terminated within the agreed ten (10) months. I find therefore that the Defendant’s argument in the cross- examination above that the time for the execution of the contract within the ten (10) months was not adhered to was very unfortunate and the argument of the Defendant is actually self-defeating as the Plaintiff was within the time frame when the Defendant terminated the contract. Again, from Exhibit “C”, I find that the requirement for the Plaintiff to post a performances Bond was within the ten (10) months. So, the Plaintiff, in not posting the performances as at the time of the termination by the Defendant was not wrongful so as to have caused a breach to enable the Defendant use same to trigger the termination clause. Performance Bond states: “7.4 The company shall, in the 10th month after the commencement of this agreement or a month prior to the commencement of its management activities, submit to the Assembly a performance Bond in the sum of Gh¢450,000.00 issued by a reputable bank to cover the 1st year of management of the Jubilee Park… expiring”. I also find that from the above, the Defendant to also failed to go by the agreed procedure of termination by not giving the required notice to the Plaintiff of the termination. “14.1 In the event of non-performance of the obligations accepted by the company to be performed, or unsatisfactory performance contrary to the provisions of this Agreement, the Assembly shall be a liberty to terminate this Agreement upon giving the company three months prior notice in writing by such intention. 14.2 Prior to the Termination of this agreement as in the foregoing provision, the assembly shall have given a written notice to the company to rectify the default and the company shall have neglected, failed and/or refused to do so. 14.3 The above provision notwithstanding either party giving the other party a three (3) months prior notice in writing of such intention.” Therefore, the Plaintiff did two different pilot projects to the satisfaction of the Defendant before Exhibit “C” was executed, Plaintiff in Exhibit “C” did two of the three phases of Exhibit “C”, sourced for loans, requested a report on work, Defendant was to alert Plaintiff to rectify any breach but which he failed to do, failed to give 3 months’ notice as per Exhibit “C”, terminated the Exhibit “C” before the end of the project and reawarded the contract immediately after termination. I therefore on issues (1) and (2) find that Defendant unlawfully terminated Exhibit “C". I also find from the Evidence and the above cross-examination that the Plaintiff did not breach any fundamental provision of the Exhibit “C” to warrant a termination of the contract. The Plaintiff in cross-examination answered with confidence and dexterity all the punches thrown by the Defence Counsel on the alleged breaches of provisions of Exhibit “C”. Starting from the registration of the Plaintiff’s business with the Assembly, the posting of performance bond, securing facilities with all financial institutions, in the process of cancelling all the rehabilitation works within time and within the contract period. From the totality of the evidence, the Defendant in this cross- examination, it was indeed a complete Admission of the innocence of the Plaintiff in so far as the Contract is concerned. The witness could not fault the Plaintiff in his performance on his part of the Contract save the timing for the Concrete Works in or around April/May just around the raining season’s commencement which the Defendant find to be untimely. But must that terminate the Contract? This in my view did not go to the root of the contract and cannot be a fundamental provision of the contract (the default of which (if any) would have triggered the termination of the contract. (see the Dictum of Asiamah JSC in the case of SSB BANK LTD v. CBAM INC (supra). Rightly, the experts of the Defendant, upon seeing the concrete works, which per the contract was about the last leg of the project, when they went on inspection and considered the time, they immediately, orally asked the Plaintiff to SUSPEND work. That is a good sign from a party acting bona fide. That could not in any way have influenced the termination of the contract particularly so as there was a provision to that effect thus: EXHIBIT “C”: “6.1. THE Assembly SHALL generally provide TECHNICAL SUPERVISION to FACILITATE the smooth implementation of the project. “9.1. The works department of the Assembly shall have oversight responsibility for monitoring and supervision of the physical development of the project and the company shall co-operate fully with such officers as shall be designated by the Assembly for purpose. “14.2. Prior to the termination of this agreement as in the foregoing provision, the Assembly shall have given a written notice to the company to rectify the default and the company shall have neglected, failed and/or refused to do so. “16. FAIRNESS AND GOOD FAITH; The parties UNDERTAKE to act in good faith with respect to each other’s right under this agreement and to adopt all reasonable measures to ensure the realization of the objectives of this agreement. From the above provisions in Exhibit “C” particularly Clauses 14.2 and 16, it is very clear that the Defendant acted mala fide in spite of their undertaken to transact in good faith resulting in the breach of Clause 14.2 where they even, in spite of the obligation to direct the Plaintiff to rectify the defect overlooked same. Indeed I find that Exhibit “G” & “H” from the Defendant on the expiration and termination of Exhibit “G” did not help the Defendant in the termination of the with the Plaintiff at all. The law is that he who asserts must prove. The Defendant having asserted that the Plaintiff was in breach ought to have proved as the evidential burden was on him. See S. 10, 11 and 12 of NRCD 323 and also the cases of Takoradi Floor Mills v. Samir Food [2005-2006] SCGLR 290. The Defendant was not to just mount the witness box and repeat his averment. But that is exactly what the Defendant did. It is settled that when a party’s allegation or averment is denied, he proves it by other, evidence, acts, conduct, description of things, events, etc. the court will conclude that what he avers is true. He does not prove it by repeating his averment on oath or having it repeated by his witness – 1. ABBEY & ARS v. ARTHUR [2010] SGLR. 2. A-G v. FORDE ATLANTIC CO. LTD [2005-2006] 1SGLR 271. 3. MAJOR LABBE v. LARBI [1957] GLR 190. On admission, in the case of FORI v. AYIREBI [1966] GLR 627, the Supreme Court held amongst others that when a party makes an averment and same is not denied, then NO issues are joined on the averments and NO evidence is therefore required to be led on those averments. To add to all the above, aside the refusal on the part of the Defendant to deny, he did expressly admit the part the Plaintiff played in the two pilot projects resulting in the execution of the Exhibit “C”. And the Defendant had no problems with those and neither did they question the Plaintiff’s registration with the Defendant. The Plaintiff from all of his answers in cross-examination by Defence Counsel, as above stated, proved that he did not breach any provision of Exhibit “C” varying from time, performance bond, securing loan facilities, reporting, among others. Indeed, the opposite was the case for the Defendant who breached various provisions of Exhibit “C” ranging from their refusal to trigger various clauses in Exhibit “C” on notice to rectify defects, notice on termination and others which the Defendant conceded in cross- examination as above stated in the above cross-examination. To conclude on these, I find that the contract was unlawfully terminated by the Defendant. ISSUE 3: WHETHER OR NOT THE SUM OF GH¢51,153.50 TRULY REPRESENTED THE WORK EXECUTED BY THE PLAINTIFF. FROM the evidence, the Defendant presented a figure of GH¢51,153.50 as the valuation of the Plaintiff’s work upon the termination of the contract. THE FOLLOWING CROSS-EXAMINATION OF THE PLAINTIFF IS ON THE ABOVE THUS: Q: After the termination of the contract, the Defendants invited you to the site for measurements to be taken for the works you had done? A: That is not correct. Q: On 9th August 2017, you were present at the site when these measurements were taken of the work you did? A: On the 9th August 2017, I was invited to the office of the Works Engineer where I was asked to allow my workers to fix the pavement blocks which had been removed for maintenance. Q: On the said 9th August 2017, you availed yourself at the site and the measurements showed that the work you did came to fifty one thousand one hundred and three point five Ghana cedis (GH¢51, 103.50)? A: That is not correct. Q: Now the total value of works you did before the termination had been determined by yourself and the experts from the Defendant’s establishment? A: I had my figures and they also had separate figures from mine. Q: You were invited by the Defendant and present at the site when the valuation exercise was undertaken? A: That is not correct. From the above and the totality of the evidence, I find that the Plaintiff was on the last part of the project when the contract was terminated. Also, from the evidence, the Plaintiff contracted some loans as provided for in Exhibit “C” wherein it was stipulated as follows: 20% - Self-financed 80% - Loan There is a dispute as to the valuation of the work done by the Plaintiff up to the time of the termination of the contract. Since the parties are not ad idem and particularly so when the Plaintiff is on record to have presented his own version of the valuation to the Defendant which is totally different and higher than the GH¢51,153.50, the said amount cannot truly represent the work executed by the Plaintiff. The above position has been taken having considered Exhibit “C” on the extent of work by the Plaintiff and also the fact that under Exhibit “C”, the Plaintiff was to self-finance at 20% and take loan facility of 80% which the Plaintiff availed himself with and which were all not factored in the valuation by the Defendant arriving at the figure of GH¢51,153.50. I therefore find that the sum of Gh¢51,153.50 cannot truly represent the executed work of the Plaintiff in the circumstance. ISSUE 4 & 5: WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO RECOVER THE TOTAL SUM OF GH¢88,650.70 On this issue, I wish to present the following cross-examination of the Plaintiff for consideration: Q: Now the total value of works you did before the termination had been determined by yourself and the experts from the Defendants’ establishment? A: I had my figures and they also had separate figures from mine. Q: You were invited by the Defendants and present at the site when the valuation exercise was undertaken? A: That is not correct. Q: The Defendants are not involved at all in whatever calculation you have made? A: That is correct. They are not involved because the company that executed the project presented its bills separately and based on that, the expert also goes to the field to take measurements and prepare their bill then both parties will later meet and work it out and find a middle level. Q: Your company had not presented any valuation done by it to the Defendant before the termination? A: We presented over valuation to the Defendants. Q: When? A: That was before the termination of the contract. Q: You are not being truthful with respect to your last answer? A: That is not correct. The contract even specifies that at every given stage, a report must be presented to the Defendants. Q: Mr. Armah Nyamekye, a report is not the same as a valuation contract? A: A report included financial reports which in this case is the valuation. Q: Do I understand it to mean you envisaged the termination of your contract, hence forwarding to them your valuation? A: That is not correct. The contract states that at every state, there should be a report. The court has also taken note of Exhibit “L” presented to the court with the knowledge of the Defendant as according to the evidence, same was presented to the Defendants even before the termination of Exhibit “C”. Exhibit “L” was not challenged by the Defendant. Exhibit “L” involves works undertaken by the Plaintiff in the execution of Exhibit “C” and these included electrical works, plumbing works, carpentry and painting, demolishing of parade grounds, procurement of construction materials. Exhibit “L” also included loans contracted from banks at thirty percent (30%) interest per annum as at the time of termination. The figures related to the work done were also stated in Exhibit “L”. The court also takes note of Exhibit “J” being a letter written to the Chief Executive Officer of the Defendant wherein issues of expenses were stated taking into consideration possible damages. In Exhibit “J” dated 25/2/2017 and authored by the Plaintiff’s Counsel, Counsel for the Plaintiff stated in paragraph three (3) thereof as follows: “We are instructed that as at the time our client was asked by your office to terminate the works, the Rehabilitation works done amounted to GH¢57,120.50 and this was promptly presented or communicated to you. Again, the cost of the materials on site including the demolishing also amounted to GH¢6,975.00. We are bringing this to your notice as you consider the final monetary payment to be made to our client which legitimately must include fair amount of damages for breach of contract and which we assess at GH¢50,000.00.” The issue of unlawful termination has been resolved in this judgment. The issue of whether the Plaintiff was in any fundamental breach has also been resolved. The issue of an amount of GH¢51,153.50 presented by the Defendant as the valuation for work done by the Plaintiff has been resolved also as not representing the work executed by the Plaintiff in this regard. Also, Exhibit “D” series representing various loan facilities from GCB of GH¢3,000.00, Bayport of GH¢2,459.00 and Relief credit facility amount of GH¢18,615.28 all channeled into the facility and as property captured in the contract wherein the Plaintiff was entitled to source for funding from financial institutions. “5.2. It is HEREBY agreed that the company shall pre-finance the total cost of actual rehabilitation of the project of Gh¢487,790.45 partially from its own resources in the sum of Gh¢150,000.00 constitution 67% from a financial institution of repute documentary evidence of which the company shall provide to the Assembly not later than six weeks after commencement of the project. The following cross-examination of the Defendants provide some assistance on this thus: Q: It is also the case that in Exhibit “C” under the terms of the contract, the Plaintiff was obliged to provide 30% self-finance and 70% corporate loans? A: True. Q: You would agree with me that the Plaintiff could satisfy these component of raising 30% self-finance and 70% corporate loan? A: True. The financial agreement is 20% from the Plaintiff and 80% from the Financial Managers. Since it was part of the contract, the securing of loans by the Plaintiff towards the project was generally not challenged by the Defendant. The Defendant’s breach did not permit the Plaintiff to complete the work. If the Plaintiff had completed the work, it was foreseeable that he would have had profit from the contract. The Plaintiff lost it all. The Plaintiff will have to repay the bank loans with interest. It is therefore prudent and reasonable that the Plaintiff recovers his future earnings from the contract and for those that are not too remote. It is settled that in a claim for special damages, where the claimant succeeds in proving both the matter and the value, he is entitled to be awarded the value he claims. See: Maersk Ghana Limited v. B. T. L Limited (2021) DLSL. 10687@16 per Amegashie JSL It is also settled that where the claimant succeeds in providing only the subject matter but fails to prove the value, he is not to be denied any compensation in that case, he is entitled to be awarded some value from the damage he has suffered-often called Nominal damages. See: (1) HULLBLYTH (GH) LTD & ANR V. ANGLOGOLD ASHANTI (2013) 59 GMJ 89, CA AT 111-112. (2) ANKOMAH V. CITY INVESTMENT COMPANY LTD (2012) 2 SCGLR 1123. On award of damages consequent upon the breach of a contract, as in the instant case, in the case of Juxon-Smith v. KLM Dutch Airlines (2005-2006) SCGLR 438 at 443 per Wood JSC (as she then was), the apex court held thus: “WE would, therefore, relying on Parke B’s dictum in ROBINSON v. HARMAN (1043-60) AU ER Rep 383 conclude that in contract, the correct statement of the law on the measure of damages is: Where a party sustains a loss by reason of a breach of a contract, he is so far as money can do it, to be placed in the same situation with respect to damages, as if the contract had been performed. In carriage of persons contracts, as in the instant one, the normal measure of damages for failure to carry, is the cost of obtaining substitute transport less the contract price. Damages are also recoverable for consequential losses such as hotel expenses and the like and for physical inconvenience as in the case of HOBBS V. LONDON & SOUTH WESTERN RLY COMPANY (1875) LR10 QB111. The court of Appeal, commendably, factored this non- pecuniary loss into the award in line with the modern approval that damages for physical inconvenience and discomfort are clearly allowable: see BAILEY v. BULLOCK (1950) 2 ALLER 1167 AND LANE v. HOLLOWAY (1968) 1 QB 379, CA. Now what would have been the position of the Plaintiff if he had been flown to London?” Also in the HULLBLYTH (GH) LTD & ANR v. ANGLOGOLD ASHANTI (SUPRA) the court held at page 111 thus: “There was no scintilla of evidence from the Respondents to guide the court in assessing the value of each lost container. Probably the Respondents believed Exhibit “M” has provided the values. Unfortunately the law demands more than just mentioning prices without justification how one came by the prices. In the circumstance of this case, we are enjoined by the legal authorities to award nominal damages for the six lost containers i.e. nominal because loss is shown but the necessary evidence as to its amount is not given. Refer to the cases of YIRENKYI v. TARZAN INTERNATIONAL TRANSPORT (1962) 1 GLR 75 AT 78; NORGBEY & ANR v. ASANTE & ANR (1992) 1 GLR 506 @ 517. In both cases the courts found that the Plaintiffs had suffered some loss but they failed to establish the quantum of the loss the court awarded them nominal damages. In the Norbgey case, His Lordship Justice Acquah of blessed memory stated that nominal does not mean small but the amount to be awarded under this head should be reasonable. The award of nominal damages for all intents and purposes emerged from consideration of equity which found it unjust to deny a party who had proved some loss any compensation only because, for whatever reason, the party failed to prove the value or quantum of the loss. We endorse these authorities that advocate that nominal damages should not mean small and should be reasonable. We think it is only by such approval that equity will not fail in its aim of giving some compensation to such victim. What should be reasonable is always a question of fact and even though there could be occasions where the judge will find himself in a situation of difficulty determining what is reasonable because of the subject matter, the duty is cast on the judge as a solid engineer to tap on all indications available including his experience in coming out with an award that in all fairness would be accepted as reasonable.” Unlike the HULLBLYTH (GH) LTD & ANR v. ANGLOGOLD ASHANTI (supra), where the court held that there was no scintilla of evidence to guide the court in assessing the value of each lost container, I find enough evidence on special damages suffered by the Plaintiff. Indeed the Plaintiff pleaded in paragraph 14 of his statement of claim that he will show that he lost income as well as profit to be made in the project and the bank loans that he secured as a result of the project per which they are still outstanding as unpaid whilst he keeps on servicing them. Even though the Defendant denied this the Plaintiff in his evidence vide paragraph 15 of his witness statement sought to prove same and he actually did through various Exhibits including Exhibits “L”, “E”, “J”, “D” series which all go to prove strictly the requirement of special damages. Exhibit “D” series are on various loan facilities secured for the project and as properly required and captured in the contract to be secured by the Defendant being an approved loan facility of GH¢3,000.00 (dated 18/5/2017) from GCB to the Plaintiff at an interest of rate of 35%; a facility from Bayport (Exhibit “D1”) of GH¢2,459.09 dated 23/1/2017; a facility of GH¢10,615.28 dated 2/27/2017 at an interest rate of 30%. Exhibit “E”, a report on the project which at page 2 thereof and dated 5/5/2017 and presented to the Defendant prior to the termination cost details, the amount spent on the project at GH¢57,126.50. It must be noted that Exhibit “E” was submitted by the Plaintiff to the Defendant at the time that the project was ongoing. The cost as at 5/2/2017 and its breakdown were as follows: GH¢ Plumbing works -------------------- 21,422.00 Electrical works -------------------- 15,422.00 Replacement of facial bond, plastic and T & G and………….of the blocks --------- 20,160.00 Total ---------------------- 57,126.50 In his demand letter to the Defendant through Plaintiff’s Solicitor, which is Exhibit “J” dated 25/7/2017, the Plaintiff, as stated earlier in this judgment, indeed mentioned the figure as captured in Exhibit “E” as GH¢51,126.50. Beside the above, the Plaintiff demanded the sum of GH¢6,957.30 in Exhibit “J” from the Defendants being the costs of material on site including the demolishing. But I must state that the Plaintiff did not plead this cost of GH¢6,957.30 specially but led evidence on this. Interestingly, the Defendant did not deny Exhibit “J” as he might have understood naturally that there would be some materials which the evidence did not indicate from both parties that they were taken away by the Plaintiff. In that regard, this court being a court of justice and equity will admit this cost of GH¢6,973.60 as natural consequence or part of the special damages. From Exhibit “J”, the sum of GH¢6,957.30 excludes the GH¢57,126.50 and so ought to be added to the GH¢57,126.50 which will total GH¢64,050.00. The Defendant’s position on the above figure by the evidence is GH¢51,103.50. This is captured in the cross-examination of the Plaintiff by the Defence Counsel thus: Q: On 9/8/2017, you availed yourself at the site and the measurement show that the work you did came to GH¢51,103.50? A: Not correct. Q: Now the total value of works you did before the termination had been determined by yourself and the experts from the Defendant’s establishment? A: I had my figures and they also had their figures different from mine. Q: Your company has not presented any valuation done by it to the Defendant before the termination? A: We presented our valuation to the Defendant. Q: When? A: That was before the termination of the contract. Q: You are not being truthful with respect to your last answer? A: Not correct. The contract even specifies that at every given stage, a report must be presented to the Defendant. The “report” mentioned the discussion above is Exhibit “E” and the evidence is that same was presented to the Defendants on 5/5/2017 before the contract was terminated. On special damages in contract, the apex court in MAERSK GH. LTD v. B. T. L LTD (2021) DSLC 10687@18-19) per Amegaschie JSC held thus: “IN the case of special damages, the law is clear that it must be specifically proved and aimed at compensating the affected person for actual loss suffered. Thus in the case of EKOW ESSUMAN (DEC’D) SUBSTITUTED BY RUTH ESSUMAN (MRS) BODJA ESSUMAN AND NANA ASARE BEDIAKO AND ABOSO GOLDFILEDS LTD., CIVIL APPEAL NO. J4/39/2019, SC DATED 11TH DECEMBER 2019, UNREPORTED, GBADEGBE JSC speaking on behalf of the court explained: “IT IS OBSERVED that as claims are derived from a contract and most of the heads of damage are in respect of specific sums of money that are computable by arithmetic calculation and the right thereof arose before the termination of the contract, they are in their nature special damages save the claim for general damages for breach of contract. In the circumstance, better practice required such claims to have been designated as such and all the monetary claims made under one relief with particulars of the separate amounts being provided. For example, going by the action herein, the amount being claimed as costs of tailing and the outstanding balance for haulage and the consequential loss of profits would have been lumped together as a claim for special damages.” Being emboldened by the above, and as specially discussed in this judgment, I find that the Plaintiff having calculated under the various headings as per the exhibits above described and mentioned, has proven to the satisfaction of the court the strict requirement on proof of special damages in the case. I therefore award the sum of GH¢64,050.00 as special damages to the Plaintiff against the Defendant same having been strictly proved to the satisfaction of the court. The Plaintiff claimed for general damages as part of his relief supporting his claim. The Plaintiff in Exhibit “J” which is a letter from the Plaintiff’s Solicitor requested for a fair amount of damages for breach of contract assessed at GH¢50,000.00 as at 25/7/2017. This, per Exhibit “J” excluded the special damages of GH¢57,120.50 and the Plaintiff in his claim for general damages supported same amongst others, with Exhibit “L” fundamentally on future earnings. In contract law and on damages, the Supreme Court has restated the classes of damages by the case of MAERSK GH. LTD v. B. T. L LTD (2021) DSLC 10687@18-19) per Amegaschie JSC held thus: “Based on our research, the correct proposition of the law governing the award of nominal damages as part of general damages may be restated as follows: WHENEVER a court is exercising its jurisdiction to award damages, it may award special damages if a party pleads it and leads evidence to specifically prove that it has suffered that loss and expended money as a result. Where the party fails to prove the specific loss by evidence but can prove that it has suffered an injury or loss, the law will presume general damages, but the classification under the head of damage which the court should award is substantial damages, that is, the result of an effort at measured compensation. On the contrary, where the party succeeds in proving by evidence that there is a breach of contract or an interference with a right but has suffered no actual injury, loss or damage, a court exercising the power to award general damages should grant the classification known as NOMINAL DAMAGES. This re- statement of the law to the extent that it conflicts with that part of decisions of this court, in A-G v. FAROE ATLANTIC CO. LTD (SUPRA), YOUNG DONG INDUSTRIES LTD v. RORO SERVICES (SUPRA) and all other previous decisions on classification of nominal damages as substantial awards made where special damages are not proved are overruled.” The above is the latest position on the various classes of damages and their headings by special, general or nominal. Nonetheless, on special and general damages, the law has been that general damages are presumed to be the natural or probable consequences of the Defendant’s acts. The law implies general damages in every infringement of an absolute right. It has been held that special damages is distinct from general damages. General damages is such as the law presume to be the natural and 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 damages in every infringement of an absolute right. Where the Plaintiff has suffered the properly quantifiable loss, he must plead specifically loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate – MENT CAPITAL GROUP LTD v. GUARANTY TRUST BANK (GH) LTD & LINKS FILED REALITY LTD (2021) DLSC 10763 @ 9-10 PER OWUSU JSL. Again, on the payment of interest, it has been held that the liability to pay interest in the event of breach is automatic and that parties need not provide in their contract that interest shall be paid in the event of a breach. Interest payment follows the failure of a contract under which payment has been made, as a form of damages for breach of contract. See – KAMA HEALTH SERVICES LTD v. UNILEVER GHANA LTD, CIVIL APPEAL NO. J4/24/2013, (19TH JULY 2013). And by the said Kama case (supra), the interest rate determination is at the prevailing bank rate and as per Rules of C. I 52 i.e. Court (Award of Interest and Court Judgment) Rule. Having stated the above on damages and specifically on general damages, I wish to re-emphasize that the Plaintiff claimed for such relief based on Exhibits “L”, “J”, “C”, “M”, “M1”, “D” series. The Exhibit “D” series concerned various loans secured from various financial institutions with interest rates ranging between 30% and 35%. These were captured in Exhibit “L”. Indeed, the Exhibit “D” series featured prominently in the trial of the case. Exhibit “D” series were forseen in the contract wherein it was stated that the Plaintiff had to raise 20% from his own resources and 80% from financial institutions. (1). “5.2. It is HEREBY agreed that the company shall pre-finance the total cost of actual rehabilitation of the project of Gh¢487,790.45 partially from its own resources in the sum of Gh¢150,000.00 constitution 67% from a financial institution of repute documentary evidence of which the company shall provide to the Assembly not later than six weeks after commencement of the project. (2). Q: It is also the case that in Exhibit “C” under the terms of the contract, the Plaintiff was obliged to provide 30% self-finance and 70% corporate loans? A: True. Q: You would agree with me that the Plaintiff could satisfy these component of raising 30% self-finance and 70% corporate loan? A: True. The financial agreement is 20% from the Plaintiff and 80% from the Financial Managers. Upon the above, the Plaintiff secured various loans and facilities as captured in Exhibit “D” series and which he has, by the evidence, been servicing at some rates. Exhibit “L” also mentioned expected revenue from the park for a ten- year period totaling GH¢5,878,400.00 and as detailed therein. The issue of remoteness of damages is therefore raised. The evidence is that the innocent party in this case is the Plaintiff. Per Exhibit “L”, the Plaintiff was on course to completing the project. The theme of the contract is Build Operate and Transfer for a ten (10) year period. Exhibit “L” included Reconstruction, Management and Raising of Revenue in the facility for a ten (10) year period and expected to generate revenue for both parties and for the Plaintiff to GH¢5,878,400.00. Exhibit “L” made a project of expected revenue for the period around GH¢5,878,400.00. The Plaintiff’s arguments that had he not been stopped abruptly by the Defendant for breaching Exhibit “C”, he would have earned GH¢5,878,400.00 as a foreseeable profits to be made based on Exhibit “C” and Exhibit “L”. The Plaintiff’s inability to earn the above figure was not his fault from the evidence. It was the fault of the Defendant for which the Defendant had to compensate the Plaintiff for the breach. I was convinced from the above and the evidence and the authorities cited above that the Plaintiff on general damages has been able to prove the subject matter but was unable to prove the value. In that case from the cases of: (1) HULLBLYTH (GH) LTD (SUPRA) (2) MAERSK GH. LTD v. B. T. L LTD (SUPRA) the Plaintiff cannot be denied compensation in that regard. Per the authority of Maersk (supra) the Plaintiff who is the innocent party will be entitled to be awarded nominal damages. The above position was held in the cases: (1) ANKOMAH v. CITY INVESTMENT CO. LTD (2012) 2 SCGLR 52 (2) YIENKYI v. TARZAN INTERNATIONAL TRANSPORT (1962) 1 GLR 75 at 78 Also, it was held in the case of SEGA EXPORTS LTD v. DART HILLS LTD (2013 62 GMJ 106, C. A @202, per Dennis Adjei, JA where the court held that the essence of damages is compensatory. It is neither to punish the Defendant nor confer a windfall on the claimant. It is not also meant to punish the claimant and allow the Defendant to go without repairing the actual loss caused to the claimant. Considering the totality of the above, I shall award a nominal damages of GH¢50,000.00 in that regard per the above evidence. It has also been held that damages cannot be awarded to place the Plaintiff in a position that is not justified from the breach, neither can damages be awarded for loss that is too remote from the alleged breach. See the case of IN-PETROL GHANA LTD v. GHANA OIL COMPANY LTD (GOIL) (2021) DLSC 106851, PER TORKONOO JSC. Hence, from the above, the Plaintiff’s claim for expected income for the ten year period cannot all be granted as they are too remote for the fair consideration of the court. Save those catered for here below including costs of material at the site at the time of termination (as found in Exhibit “J” and various loan facilities and other incidentals as earlier discussed above). For the said loan facilities the record is that the Plaintiff is still servicing them and from the Exhibit “D” series, the Plaintiff had to contract those facilities purposely for the project in Exhibit “C” where the Plaintiff was mandated to secure 80% loan facility for the work which he did. And the Defendant ought to compensate him in that regard. The evidence is that upon the institution of this suit, the Defendant made a part payment of a total of GH¢40,000.00 on account. The court has taken note of this amount paid by the Defendant for which the Defendant ought to be applauded. This payment of GH¢40,000.00 shall be deducted from the eventual amount/award that may be awarded the Plaintiff. Truly, where two parties have made a contract and which one of them has terminated same and unlawfully, as in this case, the damages which the other party ought to receive in respect of such breach of contract should be such as may FAIRLY and REASONABLY be considered as either arising naturally, that is, according to the natural course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract itself, or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract, as a probable result of the breach of it – HADLEY v. BAXENDALE (1854) 9 EX 341. In such circumstance, the victim of the breach is entitled to compensation for any loss which results from the breach. The victim should be restored to be position he would have been had the breach/damage not occurred. IN CONCLUSION THEREFORE, I grant the Plaintiff’s relief as claimed. I, in the circumstances award GH¢114,050.00 to the Plaintiff against the Defendant based on the relief sought as compensation upon the above. Costs of GH¢15,000.00 to the Plaintiff against the Defendant. SGD G. K. GYAN-KONTOH ‘J’ JUSTICE OF THE HIGH COURT COUNSEL: 1. E. ARTHUR FOR THE PLAINTIFF. 2. S. AGBOTTAH FOR THE 1ST DEFENDANT. 56