GLANDERSON BUILDERSPAK CO. LTD VRS ADLER STEEL COMPANY LIMITED (H3/119/2023) [2023] GHACA 160 (26 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA. A. D. 2023 CORAM: JUSTICE ALEX B. POKU-ACHEAMPONG (MR.) J. A. (PRESIDING) JUSTICE AFIA SERWAH ASARE BOTWE (MRS.) J. A. JUSTICE KWEKU T. ACKAAH-BOAFO (MR.) J. A SUIT NO: H3/119/2023 26TH OCTOBER, 2023 GLANDERSON BUILDERSPAK CO. LTD – PLAINTIFF/RESPONDENT VERSUS ADLER STEEL COMPANY LIMITED – DEFENDANT/APPELLANT __________________________________________________________ __________________________________________________________________ J U D G M E N T Ackaah-Boafo, JA i. Overview: [1] The overriding question in this appeal is whether the judge of the court below erred in holding that the Defendant/Appellant breached the contract it entered into with the Plaintiff/Respondent. There is also the supplemental question of whether the lower court ought to have declined jurisdiction in the matter because, according to the Appellant, Glanderson Builderspak (Plaintiff/Respondent) and Adler Steel Company pg. 1 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT Limited (Defendant/Appellant) chose Ontario (Canada) law as governing law applicable to the contract between them and also chose arbitration as the mode of resolving any conflict between them. [2] The Plaintiff’s action was for damages (Specific, punitive and general) for breach of contract and loss of reputation. The court below granted all of the claims and also awarded costs against the Appellant. The impugned judgment is from the High Court (Commercial Division), Accra dated 11th November, 2020. The Appellant filed the Amended Notice of Appeal, the subject matter of this appeal, on 12th March, 2021. For ease of reference the Defendant/Appellant will be referred to in this appeal as Appellant and the Plaintiff/Respondent as Respondent. ii. Background [3] The Respondent commenced the action against the Appellant on the 4th of April, 2019 for damages for breach of contract and interest on the damages. The writ of summons and the statement of claim was later amended on May 22, 2019. The case of the Respondent was that, further to a email correspondence between it and the Appellant company based in Canada, it purchased 200 tons of colour-coated Aluzinc coils, which the Appellant ordered from China. According to the Respondent, upon receipt of the products it “manufactured Standing Seam Roofing Panels and installed them for numerous customers in Ghana”. The Respondent contended that, within six months after the installation, customers started to complain of the fading and rusting of the respective roof panels manufactured with the colour coated Aluzinc coils. [4] The Respondent contended that it informed the Appellant of the customers’ complaints and the Appellant proposed that the rust and the colour could be rectified for the customers by spraying of the roofs. According to the Respondent, the Appellant reneged on the promise to provide the requisite paint and therefore, it did the spraying of the roofs itself and incurred cost as a result. The Respondent also contended that other customers, who refused the compromised condition of respraying the roofs, initiated pg. 2 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT court action against it and obtained a judgment, which it had to settle. Based on the above contentions, a Writ of Summons with a Statement of Claim was originated at the Registry of the High Court seeking the following reliefs: 1. Specific Damages in the sum of US$224,947 (Two Hundred and Twenty Four Thousand, Nine Hundred and Forty Seven United States Dollars). 2. 3. 4. 5. 6. Damages for loss of business reputation. Punitive damages. Commercial interest on the said amount at the prevailing Bank of Ghana rate from date of breach to date of final payment. General damages. Costs on full indemnity basis. See page 97 of the ROA [5] The Defendant/Appellant herein generally denied the claim in the Amended Statement of Defence filed. The Appellant contended that it supplied the Respondent with 200 tons of pre-painted Aluzinc coils based on their contractual relationship and the firm order of the Respondent. It also contended that, when the Respondent complained of the fading and rusting, it only made suggestions without any contractual obligations regarding their suitability or otherwise. It was also contended that the Appellant was never made aware of the specific end-use application of the products supplied. It was also the case of the Appellant that the Respondent was fully aware that the products were being procured from a third party in China and the Appellant was not the manufacturer of the Aluzinc Coils. [6] The Appellant further contended that it supplied the Glanderson Builderspak with the quality and quantity of the goods it ordered and therefore, it was not in breach of the contract it entered into with the Respondent. According to the Appellant, prior to the shipment of the goods to the Respondent, the goods were duly tested for any manufacturing defects and they were all good and based on the order made. The pg. 3 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT Appellant also averred that the Respondent failed to “request for any pre-shipment inspection, inspection of Mill Test Certificates and is therefore estopped from making any claim as to quality or suitability of the products supplied”. Another defence the Appellant mounted was that by the terms of the agreement entered into with the Respondent, the parties contracted to settle all disputes by arbitration in accordance with “Ontario’s Alternative Dispute Resolution Regulations”. It therefore in effect prayed the court to refer the matter for arbitration in Ontario, Canada. Based on the above and others contained in the statement of defence filed, the Appellant prayed the court below to dismiss the suit. iii. Grounds of Appeal: [7] As stated above, the court below after trial entered judgment on March 12, 2021 in favour of the Plaintiff/Respondent as follows: “Judgment is therefore entered in Plaintiff’s favour against the Defendant in the sum of Two Hundred and Twenty-Three Thousand, Four Hundred and Forty – Seven United States Dollars (US$223,447.00) with interest at the prevailing Bank of Ghana rate from the date of breach till date of final payment. Considering the circumstances of this matter, damages for loss of business operations is assessed at Seventy Thousand Ghana Cedis (GH¢70,000.00). Costs of Ten Thousand Ghana Cedis (GH¢10,000.00) is awarded against the Defendant for Plaintiff”. See pages 119 to 120 of the ROA, Volume 2 [8] The Judgement can be found at pages 110 to 120 of the Volume 2 of the Record of Appeal (ROA). Dissatisfied by the decision of the trial court, the Appellant filed the instant appeal and stated two main grounds of appeal in its Notice of Appeal filed on 26th May, 2021 The grounds of appeal filed are as follows: pg. 4 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT 1. The Judgment is against the weight of the evidence adduced at trial; 2. The quantum awarded by the Court as specific damages is excessive, unjust and unreasonable judging from the evidence before the court. 3. Additional grounds of appeal to be filed on receipt of the Record of proceedings. See page 121 of the ROA. iv. [9] The Grounds of Appeal: I note that even though the Appellant indicated that additional grounds of appeal were to be filed upon receipt of the record of proceedings, no additional grounds of appeal were in fact filed by the Appellant. Consequently, this court will consider the two main grounds of appeal stated in the Notice of Appeal. It is also noted that the Appellant raised the omnibus ground of appeal “The Judgment is against the weight of evidence on record” as the first ground of appeal. [10] My Lords, I begin with the principles of law an appellate court is to apply when the omnibus ground of appeal is raised. I then consider the law in relation to the facts of this case and to decide whether the trial judge’s decision is justifiable and sustainable based on the evidence. With the Appellant contending that the judgment was against the weight of evidence, the Appellant has invited this court to evaluate the totality of the evidence on record by putting ourselves as Appellate judges in the shoes of the trial court to see if we would come to the same conclusion as the trial court. In other words, an appeal against a judgment on the ground that it was against the weight of evidence is an invitation to the court to take a second look at the evidence on record by means of an examination of the record to find out if the findings and conclusions of the trial Judge are supported by the evidence proffered at trial or the conclusions are perverse. [11] There are no paucity of authorities on the omnibus ground of appeal. Some of the notable decisional law on this ground of appeal include such cases as the Republic v. Conduah; Ex Parte Aaba (substituted by) Asmah [2013-2014] 2 SCGLR 1032 and Owusu pg. 5 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT Domena v. Amoah [2015-2016] SCGLR 790 where the Supreme Court pointed out that: “Where the sole ground of appeal is that the judgment is against the weight of evidence, it throws up the case for a fresh consideration of all the facts and law by the appellate court….. Thus, when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters.” [12] Also, based on the law, it is the duty of the Appellant to point out in a very clear and succinct manner to the Appellate Court, the pieces of evidence on record which were ignored or overlooked by the trial court and which, if applied correctly, would have caused judgment to be entered in his favour. This position was clarified by the Supreme Court in the unreported case of Olivia Anim v. William Dzandzi Suit Number Civil Appeal No. J4/10/2018 delivered on the 6th June, 2019. [13] I also note that the Supreme Court has further explained what an Appellate Court ought to do when the omnibus ground is raised by an Appellant in the case of Solomon Tackie & Bannerman v. John Nettey (Sub by Bibi Ayimey); JA/44/2019 (unreported) delivered on the 24th of March, 2021. The court speaking through Dotse JSC (as he then was) at page 23 of the unedited judgment opined that; “When a ground of appeal like the instant, formulated on the basis that “the judgment is against the weight of evidence” what the courts have to do are the following: i. ii. Consider the case as one of rehearing. This means an evaluation of the entire record of appeal, Consider the reliefs claimed by the Plaintiff and if there is a counterclaim by the Defendant, that must equally be considered, iii. Consider and evaluate the evidence led by the parties and their witnesses in support of their respective cases especially the cross-examination as this pg. 6 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT is the evidence that is now elicited from the parties and their witnesses after the tendering of the witness statements, iv. An evaluation of the documents tendered during the trial of the case and how they affect the case, v. An evaluation of the application of the facts of the case vis-à-vis the laws applied by the trial judge and the intermediate appeal court, vi. A duty to evaluate whether the trial court….correctly or wrongly applied the evidence adduced during the trial, vii. The burden…to carefully comb the record of appeal and ensure that both in terms of substantive law and procedural rules, the judgment appealed against can stand the test of time. In other words, that the judgment can be supported having regard to the record of appeal. The above criteria are by no means exhaustive, but only serve as a guide to appellate courts such as the task facing us in the instant appeal”. [14] I shall have regard to the above guidelines in analysing the instant appeal based on the Appellant’s grounds of appeal stated above because the rule is that should this court agree with the Appellant that the judgment is against the weight of evidence and therefore set aside the judgment of the court below, this court must show where the learned trial judge erred. The rationale is to correct the court below and also for the judgment to serve as a guide to all lower courts to follow the decision of this court on questions of law. v. Arguments of Counsel on the Grounds of Appeal: Now, to the merits of the instant appeal. Ground 1 [15] It has been argued extensively on behalf of the appellant based, on the evidence presented at trial, the learned trial judge misdirected herself on the facts and the law. Counsel argued that the supply of the 200 tons of Aluzinc Coil to the Respondent was pg. 7 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT based on specifications, and same was supplied and shipped to the Respondent. Counsel also argued that the contract signed stipulated that upon completion of the order, the Respondent had the right to verify the products prior to shipment, but the Respondent failed to exercise that right and therefore it cannot turn around to complain. Learned Counsel argued that the Appellant has not breached any of the terms of the contract with the Respondent because “the products requested by the Respondent were the same products that were supplied by the Appellant”. [16] Counsel further submitted that “the Respondent took delivery of the 200 tons of the product, and over a period of fourteen months the Respondent did not raise any issue as to its quality after the delivery. The Respondent went ahead to install the products for its customers”. Counsel further stated that “the fact of taking delivery of the products, taking the products through their conversion processes, converting the products into roofing sheets and installing same on the buildings of its customers is an indication that the Respondent had accepted the products as supplied by the Appellant”. Counsel further argued that the Respondent’s complaint fourteen months after receiving the products and using same should not be entertained by the court. Counsel drew the court’s attention to the fact that under the Sales of Goods Act, 1962 (Act 137), a buyer of goods by description has a duty to ascertain if the goods supplied meet the quality of the order placed. [17] Counsel further submitted that “it is trite that the Sale of Goods Act allows a buyer of goods to assess the quality of the goods before putting them to use”. In this case, Counsel argued that the Respondent’s act of using the goods by converting them into roofing sheets and installing same on customer’s buildings is an indication of its acceptance of the products supplied. Learned Counsel further stated: “My lords, it is our further submission that “The property in the products ordered has been transferred to the Respondent and the risk, if any, has been passed to the Respondent”. pg. 8 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT My Lords, immediately the products left the shores of China and/or the Respondent took delivery of the products, all risks associated with the products passed from the Appellant to the Respondent. My lords, it is our humble submission that, the Respondent being a big player in the roofing industry, only accepted the products without any objection because the products supplied by the Appellant matched the exact specifications as ordered by the Respondent. We can almost, irrefutably presume that the Respondent used the entire 200 tons of the products ordered for, without any objection and/or complaint, because the Respondent was satisfied with what it received as same match the Respondent’s specifications. The Respondent was very much aware of the quality of the product, before, during and even after the conversion and installation”. [18] To demonstrate what in his view is confirmation that the Appellant did not breach the contract, Learned Counsel referred to the Respondent’s cross-examination evidence of June 9, 2020 found at pages 38 to 40 of the ROA, Volume 2, some of which are as follows: “Q: Tell the Court whether or not you collected samples from the Defendant Company for any form of assessment of the quality before placing the order. A: No, they claimed they understand what we wanted and we had agreed on the colour fastness. So they sent samples for us to be able to identify the exact colours we wanted because there were different kinds of colours and shades. So they sent those colours but not the metals themselves. So when you give your requirement in respect of the metals everybody understands. In the industry there are different types of metals. We have the galvanized, the Aluzinc Pure Aluminium and Copper. So once you say I want Aluzinc, the industry understands exactly what you want. pg. 9 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT Q: You know as a fact with colours, we have tropical colours and colours A: Q: A: Q: used in cold countries. Yes. During your relationship with the Defendant Company, a representative of your Company visited them to check on the product before they were shipped to your Company. That is not true. By your answer, you are saying that no body from your Company visited the Defendant Company. A: Around 2009 and 2010, another director of our Company had travelled to China and when one went, he was taken around a Company by the Defendant where they made the coils and they assured him that they had good quality coils and that they could supply our Company. That was even before we placed the first order. But before the first coils were shipped in 2011, no one went there to inspect. The Defendant Company are middle men who sourced the materials from different Companies. So they have more than one Company they buy the coils from. Q: You agree with me that the Defendant Company is not the actual A: Q: producer of the coils. Yes, I agree. You also agree with me that when you took delivery of the coils any time, you never registered any complaints or protest to the Defendant regarding quality. A: We did with the first consignment in 2011, when the orders came, we realized that some of the colours were not what we had selected. Also, we realized a little problem with the inside of the materials. So, we drew pg. 10 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT their attention to it which they said they would rectify it. See page 26 (Exhibit “C1”). Q: Beyond Exhibit “C1”, do you have any other materials or documentation to show to this Court about your protest? A: With the quality of the materials, you would not be able to test or see the quality of the colours as soon as you see it; only time will tell. With regards to the metal itself, with little experience I have in the industry, I know that if indeed they used Aluzinc, it should not rust because the Aluminium component in the metal prevents the metal from rusting”. [19] Based on the above, learned Counsel further submitted in the submission filed that “the following are not in dispute. 1. That the Applicant supplied the Respondent with samples of the products they ordered for to enable them test and confirm the quality before placing the order. 2. That a representative of the Respondent was invited to the factory that produced the products that the Respondent ordered for, for factory inspection. 3. That the Applicant is not the manufacturer of the products, but only an agent without more. 4. That the Respondent did not register any complaint nor dissatisfaction regards the supply of these products in dispute. 5. The Respondent notified the Appellant of the defect well over 1 year of delivery and usage of the products; which usage includes processing the products in their own premises by a process known only to the Respondent and without giving any indication or information of the process to the Appellant. Had the Appellant known about the process, Appellant could have advised the suitability of the process to the supplied products”. pg. 11 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT Basing himself on the above and other arguments captured in the written submission, learned Counsel prayed the Court to overturn the judgment on the basis that it is against the weight of evidence because the judge’s conclusion that the Appellant breached the contract is not supported by the evidence and the law. Responding Arguments [20] Per contra, learned Counsel for the Respondent takes the position that the findings of fact by the court below were supportable by the evidence and the judgment is not against the weight of the evidence. Counsel therefore urged on the court in the submission filed not to disturb those findings and the judgment. Arguing in support of the correctness of the judgment of the court below, learned Counsel at paragraph 46 of the submission stated that the Appellant was to supply the Aluzinc Coils based on the terms of the agreement signed and “exhibited on pages 110 to 131 of the Record”. Counsel stated that the “Appellant has no plausible case but to waste the Court’s time and resources” and therefore the appeal should be dismissed with costs. [21] Responding to the Appellant’s contention that a representative of the Respondent travelled to the manufacturing factory in China, counsel for the Respondent stated that it “does not in any way negate the terms of the agreement for the purchase and supply of the Aluzinc Coils” and same does not exonerate the Appellant from the terms of the contract. Counsel further stated that the said travel was in 2010 and therefore it does not have any link with the instant matter which was a contract in 2012. Counsel also submitted that there was no term in the agreement signed that the “Respondent was to verify the Aluzinc Coils prior to shipment or that Respondent was to travel to the Appellant and or country of shipment to verify the Aluzinc coils”. [22] Counsel for the Respondent further argued that the contract was one for the sale of goods by “description and or sample” and therefore pursuant to Section 11 and 12 of the Sale of Goods Act, there was an implied condition incorporated into the contract that the Aluzinc coils corresponded with the description or sample. Counsel further wrote pg. 12 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT that there was also an implied condition incorporated into the contract by Section 13 of the Sales of Goods Act that “the Aluzinc coils must be reasonably fit for the purpose they were purchased for, as in for the manufacture of the Standing Seam Roofing Panel by the Respondent which clearly had been breached”. [23] Counsel also submitted that “the defect complained of in the instant suit is a latent defect that could not be seen or identified by a reasonable inspection of the Aluzinc coils. The defect is/was only noticeable after some time and so the Respondent could not have identified the defect when the Aluzinc coils were delivered to it”. Counsel also stated that the product was a sale by description or by sample and according to him the end usage of the Aluzinc coils were made known to the Appellant. Counsel referred to Exhibit V (at pages 6 - 8 of the ROA, Volume 2) to submit that the Appellant provided a 13 year warranty to the Respondent before the order was made. Based on all of above and the other arguments made, Counsel submitted that Counsel for the Appellant is “ignorant” of the matters before the court and “has intentionally misstated the facts in some attempt to mislead” the court. Counsel for the Respondent concluded his submission by stating that that the Appellant’s submissions are misconceived and same should be dismissed. vi. Applying the Law and Analysis: [24] My Lords, as stated from the outset, in my view the overarching issue in this appeal is whether or not the Appellant breached the agreement to supply Aluzinc products to the Respondent. This is because the gravamen of Respondent’s claim at the lower court pivoted on the alleged breach of the contract it executed with the Appellant. It is important to note that the apex court elucidated the general rule in interpreting contracts such as the one, which is the subject matter of this appeal in the case of Gorman & Gorman v Ansong [2012] SCGLR 174 that, “…the court must give effect to the intention of the parties as found in the document and not what was intended to have been written so as to give effect to the intentions expressed. The courts would be hesitant to construe private documents pg. 13 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT outside the four corners of the documents for good reason...? [25] What was the intention of the parties in the contract they executed for the supply of the Aluzinc coils? I am of the view that, in order to ascertain whether the Appellant complied with the terms of the agreement, it is important that the foundational document executed by the Appellant and the Respondent is looked at and the terms of the order made also ascertained. The Appellant’s witness tendered a copy of the General Conditions of Sale agreement as Exhibit 3 at trial. It is at pages 302 -305 of the ROA, Volume 1. It has sub-headings like quantity, quality and prices, execution, destination, inspection, delivery etc. The document outlines the general conditions of the contract including the obligations of the seller (Appellant) and the buyer (Respondent), transfer of risks, allocation of costs etc. [26] Foremost, it is not in dispute that the third purchase of the Respondent which amounted to $220,752, with Appellant’s invoices numbered 121071 and 121090 tendered as Exhibits “E” and “E1” is the subject matter of the suit. To leave no one in quandary, I hereby state exactly, what was ordered. It is as follows: Description Weight (MT) USD/MT Total Invoice PRE-PAID ALUZINC COILS Value (USD) 0.40 X 1220 mm Azure Blue RAL 5009 49.040 1095.00 53,698.80 0.40 X 1220 mm Wine Red RAL 3005 50.360 1095.00 55,144.20 0.40 X 1220 mm Pale Green RAL 6021 49.940 1095.00 54,673.35 0.40 X 1220 mm Pine Green RAL 6028 52.270 1095.00 57,235.65 It is noted that the invoice for the first two is Numbered 121071 and it is dated July 31, 2012 and the amount on it is USD 108,843.00. The invoice for the last two above is invoice number 121090 and it is dated September 11, 2012. The total amount on it is USD 111,909.00. pg. 14 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT [27] In my opinion, it is not disputed that the above is the order for the Aluzinc coils made and delivered by the Appellant. It is also not disputed that the Respondent also paid for same. The evidence shows that the Respondent upon receipt converted the Aluzinc coils and used same into manufacturing Standing Seam Roof Sheets. In “manufacturing” the standing seam roof sheets, I am not unmindful of the Respondent’s position that it did not add any chemical or substance to the Aluzinc coils, but the fact remains that, the nature of the product being the Aluzinc coils, which were delivered were converted into roofing sheets and therefore not the same product in the strict sense. The issue of the colour-change and the rusting complained of occurred after the conversion of the Aluzinc coils. Consequently, the question is: was the judge right to hold that the Appellant was in breach of the contract? [28] Treitel on Law of Contract, 15th edn (1995) stated that a breach of contract is said to occur “when a party without lawful excuse fails or refuses to perform what is due from him under the contract, performs defectively or incapacitates himself from performing”. Further, in The Law of Contract in Canada, (6th ed.) Professor G. H. L. Fridman, Q. C. (2011, Thomson Reuters Canada Limited, Toronto, Ontario) explains that the notion of fundamental breach of contract requires a consideration of the nature and purpose of the contract and the benefits for which the parties to the contract bargained: pp. 576 – 77. He states that it is a question of fact in each case whether there is a breach and same amounts to a fundamental breach. Professor Fridman stated at p. 576 as follows: “That question, in turn, depends upon: the terms of the contract; the intended benefit to the innocent party; the purpose of the contract; the material consequences of the breach…” [29] It is noted that the trial judge relied on Section 8(1) and (13) of the Sale of Goods Act to hold that the Appellant was in breach of the agreement. The court below stated at page 117 of the ROA, Volume 2 after referencing the above sections of the Act as follows: pg. 15 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT “In summary, Section 13(1)(b) of Act 137 states that where the goods are of a description supplied by the seller in the course of his business and the buyer expressly or by implication makes known the purpose for which the goods are required there is an implied condition that the goods are reasonably fit for that purpose. Defendant was therefore under an implied condition obliged to supply Plaintiff with Aluzinc coils free from defects and reasonably fit for the purpose of manufacturing roofing sheets” The court further held that there was evidence that the Appellant was made fully aware of the end use of the coils. [30] At page 118 of the ROA, Volume 2 the court further stated: “There is also enough evidence that the products supplied were however not up to specification because the roofing seams manufactured from the said Aluzinc coils supplied by the Defendant started going rusty and faded after six (6) months of being used to roof the buildings of Plaintiff’s customers. The colour coating of the said Aluzinc coils which was to have lasted for Thirteen (13) years (as indicated in an email correspondence between one Pierre Hiegal of Defendant Company and Plaintiff dated 21st December, 2010 at page 18 of Exhibit ‘B3’) could not last for even a year as the colours started fading after barely six (6) months of usage”. Based on the above, the court held that the Appellant breached the agreement by “supplying sub-standard Aluzinc coils which could not withstand the test of time after being manufactured into roofing seams which were used to roof the buildings of Plaintiff customers”, even though there was no direct evidence led by the Plaintiff. [31] I note that the trial judge did not make any reference to the foundational document of the parties in her judgment at all. It is noted that by Exhibit “C” found at page 302 of the ROA, Volume 1, the sub-clause 3 - titled “Execution” at paragraphs (f) (g) and (h) pg. 16 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT state as follows: (f) Weight at loading port is final and binding. Customers are more than welcome to witness weight at the time of shipment to satisfy themselves. No claims on this account will be entertained after shipment. (g) Clauses which ship brokers or ship-owners insert in bills of lading or other documents regarding condition of material will not be regarded as conclusive. (h) Steel material has the inherent property of being subject to oxidation/rusting. We therefore decline all responsibility in respect of any clause inserted in the shipping documents regarding rust/oxidation. Sub-Clause 5 headed “Inspection” also provides at paragraph (a) as follows: (a) Goods after having left the works are considered approved definitely and in conformity with the conditions of contract, even if not tested or inspected. No claims will be acceptable after the material has left the works. [Emphasis Mine]. [32] My Lords, at page 186 (Volume 2) of the ROA, the trial judge again stated as follows: “There is enough evidence that the products supplied were however not up to specification because the roofing seams manufactured from the Aluzinc coils supplied by Defendant started going rusty and faded just six (6) months of being used to roof the buildings of Plaintiff’s customers”. In my respectful opinion, above statement of the trial judge was erroneous because the pivotal question ought to be whether or not the invoices numbered 121071 and 121090 tendered as Exhibits “E” and “E1” were delivered by the Appellant. From the evidence before the judge, the answer is YES. The Appellant was required to supply the Aluzinc coils and there is no evidence that the Aluzinc coils stated in the said invoices were not delivered to the Respondent. The Respondent plaint is the fact that after using same to pg. 17 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT manufacture the Standing Seam Roofing Panel, it faded within six months. To my mind, that is a different issue all together. In my respectful opinion, that cannot be said to be a breach of the contract based on the agreement executed. There is no evidence that the Appellant without lawful excuse failed or refused to deliver the quantities and specifications listed in the invoices referenced above. [33] Based on the law and in giving effect to the intention of the parties as found in the foundational document in particular Clause 5 (a), it is my opinion that what was intended by the parties was complied with by the Appellant. The Respondent applied for Aluzinc coils of certain specifications and same were supplied. The Respondent upon receipt of the Aluzinc coils raised no issue with regards to its quality and quantity after examining same. It used same to “manufacture” the Standing Seam Roofing Panel and the complaints of rusting and fading came after that. To that extent, I am of the view that the trial judge fell into error, when she held that the Appellant breached the contract to supply the Aluzinc coils to the Respondent. [34] The above holding in my view does not end the analysis because of the judgment of the court and the submission of Respondent’s Counsel. This is because as stated above, the trial judge relied on Sections 8 and 13 of Act 137 to come to her conclusion. Also, Counsel for the Respondent in his written submission stated that; “the defect complained of in the instant suit is a latent defect that could not be seen or identified by a reasonable inspection of the Aluzinc coils. The defect is/was only noticeable after some time and so the Respondent could not have identified the defect when the Aluzinc coils were delivered to it”. From the record of proceedings, the Respondent built its case on a breach of contract and not the fact that the products supplied were defective. In any case, it is my opinion that the Respondent, as the Plaintiff, had the onus of particularizing the said defects in the products and proving same by evidence. In effect, the Respondent bore the burden of persuading the Court that indeed the products received had latent defect and therefore pg. 18 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT it was defective upon delivery. Were there latent defects in the Aluzinc Coils? [35] In considering whether the Aluzinc Coils, the subject matter of appeal was defective, I deem it appropriate to refer to the Supreme Court case of G A Sarpong & Co. v. Silver Star Auto Ltd [2013-2014] 2 SCGLR 1313. Even though the subject matter product was a vehicle, I am of the view that the Court distilled the law succinctly on what constitute defects which were hidden and the Sale of Goods Act. I do so because it is the contention of the Respondent that the defect complained of is a “latent defect”. The apex Court speaking through Ansah JSC (as he then was) referred to the Black’s Law Dictionary (8th ed) which defines hidden or latent defect as “a product imperfection that is not discoverable by reasonable inspection”. The Court further referred to 6th Edition of the Black’s Law Dictionary which also defines latent defect as: “hidden or concealed defect, one which could not be discovered by reasonable or customary observation or inspection; one not apparent on the face of the goods, product or document…Defect which the owner has no knowledge of.” [36] The Court also referred to the case of US v Lembke Const Co Inc (CA Ariz 786 F 2d 1386-87) and stated that; “the term ‘latent defect’ has been described as ‘one which cannot be discovered by observation or inspection made with ordinary care’. Stroud’s Judicial Dictionary (5th ed, Vol 2, page 663) describes the term ‘latent defect’ as: “A latent defect is not simply any defect not discoverable through ordinary use and maintenance, but a defect or a flaw, generally in the metal or material itself, which could not be discovered by known and customary test.” pg. 19 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT A manufacturer’s defect is defined as “an imperfection in a product that departs from its intended design.” In Parente (Robert A) v Bayville Marine Inc and General Insurance of America (1975) 1 Lloyds Reports 333), it is defined as “a defect generally in the metal or material itself which could not be discovered by any known and customary test”. Was there a breach of the Sale of Goods Act, 1962? [37] The pivotal jurisprudence on latent defects and the applicability of the Ghana Sale of Goods Act on latent defect was decided by the Supreme Court in G A Sarpong & Co. v. Silver Star Auto Ltd. Supra. The Supreme Court reviewed the English Sale of Goods Act and the Ghana Sale of Goods Act and stated that: “the general rule under the Ghana Sale of Goods Act 1962, distinguished from the English Sale of Goods Act 1979, is that a seller of goods in Ghana, whether new or second- hand, is liable for all defects in them. This duty is an implied condition of the contract of sale. The seller is, however, not liable for those defects which he declares or makes known to the buyer before or at the time of the contract. Again, where the buyer has examined the goods, the seller is not liable for defects, which should have been revealed by the examination. It would appear then that where the defects complained of were not declared or made known to the buyer before the contract and could not have been revealed by the buyer's examination, if any, the seller is liable. But even so, where the seller is not a dealer in the kind of goods sold and it is established that he did not know or could not reasonably have been aware of the defects complained of, he escapes liability”. [Emphasis Mine]. [38] The Supreme Court after analyzing the Sale of Goods Act further held that under section 13 of the Sale of Goods Act of Ghana, the seller has the duty to deliver goods of the right quality and fitness. According to the apex Court "the rules to be applied under Ghana law where a buyer complains of latent defects are completely different from those pg. 20 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT existing under English law and under which most of the cases relied on by both parties have been decided”. The Court further stated that under the Ghana provisions dealing with defects in goods, no determination as to the merchantability of the goods is required because according to the Court the Ghana Sale of Goods Act does not use term "merchantable quality". [39] Text writers, Atakora & Atakora on Sale of Goods1 at 83 (3.4.42) state that Section 13 of the Sale of Goods Act is headed ‘Quality and Fitness for Purpose’ but notes that the provision of quality is an entirely different from fitness for purpose and therefore the two provisions should not be treated as an implied term in a contract. They also note that “there is an overlap of the two provisions in that the implied term of quality subsumes the issue of fitness for purpose but this does not necessarily apply for fitness for purpose”. The learned Authors further state at (3.4.45) that Section 13(1) provides protection for “latent defects in goods at the time the contract was made and for goods that are delivered but are not fit for the purpose”. According to them, both provisions are subject to exceptions. [40] At page 84, (3.4.47), Atakora & Atakora write that Section 13(1)(a) can be invoked only when the defect was present in the goods either at the time of the making of the contract or before it was made. According to them “a buyer cannot be heard to complain that there has been a breach of the said provision if the defect developed in the goods after the contract had been executed by the seller and the buyer or their agents. Defects, which manifest after the conclusion of the contract of sale, are likely to be the result of mere wear and tear and not defects existing at the time of delivery”. [41] Also, in Georgia Hotel Ltd v. Silver Star [2012] 2 SCGLR, a case which subject matter was also a vehicle, the apex Court per Adinyira JSC again held that under the Sale of Goods Act, the buyer bears the burden to prove the existence of latent defects in goods 1 LexisNexis – Printed and bound by Pinetown Printers, 2020 pg. 21 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT bought at the time the contract was concluded. According to the Court, in order for there to be a breach of Section 13 (1) of the Sale of Goods Act, a purchaser must show that the seller knew or was, in the first place, aware of defects in the product (vehicle) they sold to him at the time of sale or delivery, and also that the seller deliberately or negligently failed to disclose his knowledge of the defects to the purchaser. [Emphasis Mine]. [42] In my opinion, these words of Adinyira JSC (as she then was) are directly applicable to the case at bar. From the instant facts, no evidence was led to show that the Appellant knew of the alleged defects but deliberately failed to disclose. It is also clear that where the buyer, as the Respondent herein, examined the goods and took custody of same but had no complaint upon delivery, then the seller is not liable for defects, which should have been revealed by the examination. As indicated above, the Respondent, as the Plaintiff, bore the burden of proving that there were defects in the Aluzinc coils supplied. From the ROA, the Respondent did not provide any cogent evidence except the photographs of buildings with roofs that have signs of fading said to have been manufactured from the batch of Aluzinc coils from invoices numbered 121071 and 121090. No witness among the building owners was called at trial to confirm the period of time his/her building was roofed and when the fading was observed. To my mind, this was necessary because of timelines and nexus between the Aluzinc coil batch supplied per invoices numbered 121071 and 121090 and the alleged fading and rusting. There was no evidence as to how the Respondent, upon receipt stored the product, converted it into the Standing Seam Roofing Panel, the process of installation etcetera and whether or not that may have impacted the later allegation of fading and rusting. To my mind, there ought to have been evidence of rigorous scientific proof of the Respondent’s allegations than the bare statements of the sole witness called. [43] Indeed, when the Respondent’s witness was cross-examined on the proof of the allegations, she provided none. The following are the excerpts of the cross-examination of June 15, 2020 between the Appellant’s Counsel and Delali Detty, the witness of the pg. 22 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT Respondent: Q: I am putting it to you that the order placed with the defendant company was what was supplied to your company. A: That cannot be true. First of all, the materials we received if indeed they were SMP, the colour would not have faded within 6 months. Also, if the materials they supplied to us were indeed Aluzinc, they would not have been rusted. With metals, like I said earlier, we have galvanised metal which is made up of 100% zinc. With that, when the metal is exposed to the weather, it would rust. We also have the Aluzinc metal made up of 45% zinc and 55% aluminium. The aluminium component in Aluzinc prevents the metal from rusting. Then we have pure aluminium which is the best metal. Aluminium is expensive so in the roofing industry, we use the Aluzinc. Most gates in Ghana are made of galvanised metals that is why they rust. So in order to preserve it, we apply paint to it. Q: Do you have any expert report on the quality of the coils received from the defendant company? A: No, this is basic knowledge in the world. You can google it and it would pop up. You do not need any expert to tell you”. [Emphasis Mine]. [44] Contrary to the position of the witness, the issue required expert knowledge/opinion because it is not common knowledge when the Respondent contended that the products supplied were defective. It is interesting that the witness asked Counsel to “Google” and would find the answer. The problem is that, there is no certainty as to who may have originated the information accessible through search engines like Google, and whether or not the person is qualified to proffer such an opinion. Having reviewed the evidence as contained in the ROA, it is my opinion that there was no evidence before the Court that the Aluzinc coils supplied by the Appellant to the pg. 23 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT Respondent were defective. The trial judge wrongly drew inferences from the testimony of the Respondent’s witness to conclude that there was a breach of contract because the Appellant supplied “sub-standard Aluzinc coils which could not withstand the test of time after being manufactured into roofing seams which were used to roof the buildings of Plaintiff customers”. With respect to the trial judge the process of drawing inferences from evidence is not the same as speculating even where the circumstances permit an educated guess. The basis for a reasonably drawn inference requires an evidentiary foundation which in this case in my respectful opinion was lacking. I say the evidentiary foundation was lacking because the Respondent did not plead and particularize that the Aluzinc Coil supplied was defective and provided no evidence to support the alleged fading and rusting. [45] Before concluding this part of the analysis, I again wish to state that the trial judge’s statement that the Aluzinc coils supplied was to last for thirteen years based on the email of Pierre Hiegal of the Appellant’s Company was not accurate, based on the evidence. I do not read the statement as an undertaking by the Appellant that the Aluzinc coil was to last thirteen years as a certainty. That email was sent on Tuesday, December 21, 2010 before the first order was made and supplied. The part relied on by the judge stated: “The colors of this material will last 13 years (as written in the catalogue as you can see attached) for an outdoor exposure, without taking consideration of the humidity, the sun exposure or strong temperature. The quality of this product is good. Mr. Mensah already saw this material”. [Emphasis Mine]. [46] In my opinion, the statement above is clear and not ambiguous at all. The author of the email qualified that the 13 years indicated in the trade catalogue was subject to certain conditions. The Respondent, it seems, lost sight of the fact that the climate in Ghana includes conditions such as high humidity, high sun exposure and strong temperatures, and went ahead to make the order. For the judge to rely on the above as an pg. 24 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT undertaking by the Appellant (as a supplier and not a manufacturer) and therefore as grounds of liability, to my mind was without basis. [47] In the same vein, I note that Counsel for the Respondent in his submission referred to Exhibit “V” to submit that the Appellant provided a 13 year warranty as part of the contract. Again, having reviewed the evidence I am of the respectful opinion that Counsel’s submission has no basis. There is no evidence that the said document came from the Appellant. And, there is nothing in the contract signed to support Counsel’s assertion that the Appellant was required to give an undertaking and did so by Exhibit V. Based on the above analysis, it is my opinion that contextually, there was no basis for the trial judge’s conclusion that the Appellant breached the contract. The learned trial judge in the instant appeal, therefore, fell into error when she held otherwise. Her decision has occasioned a gross miscarriage of justice to the Appellant. I therefore agree with the Appellant that the judgment is against the weight of evidence. Consequently, that ground of appeal is sustained and resolved in favour of the Appellant. Ground 2 [48] The above analysis, clearly should dispose of the matter. However, I find it prudent to briefly discuss the second ground of appeal, which is that the quantum of award by the court as specific damages is excessive, unjust and unreasonable from the evidence before the court. The central submission of the Appellant’s Counsel on this ground of Appeal was that the trial judge erred in making the awards made because same was not proven. The following is what learned Counsel submitted: “My Lords, the Respondent was not able to adduce a dint of evidence throughout the trial proving a single payment to the Company the Respondent purported to have contracted to respray the alleged faded roofs of the 42 out of the 144 they claimed to have resprayed. It is our respectful submission that mere invoices, without more, do not prove payment and/or expenditure. We further submit that pg. 25 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT the Respondent sprinkled these self-serving invoices to mislead the Trial Court and it succeeded in doing so. My Lords, it is therefore our position, based on the above, that the Trial Court erred in granting damages, in favour of the Respondent against the Appellant, for the respraying of 144 roofs by solely relying on mere invoices covering 42 roofs. My Lords, granted without admitting that the Trial Court was right, for relying solely on the invoices, in holding that the Respondent has met the requirement in proving the cost of respraying the 42 roofs, the Respondent has not been able to prove its case in respect of the remaining 102 roofs. The Respondent did not tender in an/or adduce any evidence, not even by show of any invoice (in this instance) to prove work-done nor anticipated works to be done on the remaining 102 roofs. Indeed, and in fact, the Respondent did not produce any evidence in proving that the remaining 102 roofs had issues: if any at all. My Lords, it is our humble submission that, special damages cannot be awarded and/or granted against the Appellant for anticipated costs; which has not yet been expended by the Respondent. The estimated cost for respraying of 102 buildings should not have been entertained by the Trial Court. The Respondent only made a bare allegations that it would have to respray other buildings without providing evidence of same to the Trial Court. My Lords, the Respondent declared an intention to respray the 102 buildings and such an intention should not be metamorphosed into actual work-done there entitling the Respondent to claim damages from the Appellant”. [49] In response, Counsel for the Respondent submitted that the Appellant had copies of the invoices submitted with regards to the damages of the Respondent and should have raised the issues it now raises at the trial court but chose not to do so. Counsel also submitted that the Appellant has misstated the facts and or is misleading the court because “no proof of payment does not in any way mean that no payments were made”. According to Counsel the Respondent incurred costs in repainting the 42 buildings of its pg. 26 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT customers. Again, according to Counsel the Respondent has paid all “invoices…including the invoice from the Appellant which was in United States Dollars”. It is also the case of the Respondent that “there are ample evidence on record showing the damages incurred by the Respondent and the respraying works that have been undertaken by the Respondent to mitigate its costs, as exhibited at pages 190 to 208”. [50] The Respondent’s Counsel’s submission was a rehash of the evidence in the ROA. From the evidence, the main claim of the Respondent was specific damages. And the law requires that special damages are pleaded, particularized and proven strictly. In Delmas Agency Ghana Ltd v. Food Distributors International Ltd [2007-2008] SCGLR 748 the Supreme Court at page 760 of the report stated as follows; “Where the plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate.” [51] Also, in Chahin & Sons v. Epope Printing Press [1963] 1 GLR 163 SC, the Supreme Court held that “where special damages are claimed it is not enough for the Plaintiffs to write down the particulars, they have to prove them”. See also Kubi v Dali (1984-86) 2 GLR 501 where this court stated and affirmed the law that “special damages in the sense of a monetary loss which the Plaintiff had sustained up to the date of the trial must be pleaded and particularised and then proved by admissible evidence otherwise it could not be recovered”. [52] The question therefore is did the Plaintiff/Respondent, plead, particularize and prove strictly the costs it claimed to have incurred? The Respondent tendered at trial “invoices” from the alleged painting of the faded roofs. None, of the invoices had a “Paid” stamp on it and none is a receipt of payment. No one from the alleged company was called to confirm the work allegedly done and the payment received. To that extent, I do not accept the Respondent’s submissions. With due deference to Counsel for the Respondent, that is not how special damages are proved. With the greatest respect, the pg. 27 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT invoices presented and the photographs showing faded roofing do not constitute evidence in proving special damages. I therefore endorse the submission of Appellant’s Counsel that the Respondent failed to comply with the procedure for a claim for special damages. Consequently, the trial judge fell into error when she granted the claims of the Respondent. Indeed, there was no basis for the judge to make the orders made, especially in regards to the buildings where no invoice was submitted to the court. [53] There was no evidence of reputational damage apart from the say so of the Respondent’s witness as well. The entry of judgment in an alleged case of judgment obtained against the Respondent was not proven because there was no evidence that the suit related to the installation of the seam beam roofing of the Aluzinc coil, the subject matter of the suit. There was no evidence of what the said suit was about and the defence, if any that the Respondent herein put up. To be blunt, all the documents submitted by the Respondent at trial were self-serving and the Court ought not have placed much weight on them because they did not meet the threshold of proving strictly the claim for special damages. I shall therefore grant the second ground of appeal. [54] Finally, I find it necessary to briefly deal with the issue of jurisdiction of the court in regards to the arbitration clause in the agreement executed by the parties. Clause 12 of the agreement stated in unequivocal terms that in the event of a dispute the parties shall engage in mutual discussion to resolve same but if they were unable to resolve then “the dispute shall be finally settled by Arbitration in the Province of Ontario, Canada in accordance with Ontario Alternative Dispute Resolution regulations. Award, including costs, rendered by Arbitration shall be final and binding upon both parties”. [55] Based on the above, the Appellant in the Amended Statement of Defence filed averred at paragraph 26 that “having agreed that the Contract is subject to Canadian Law, Plaintiff is barred from instituting the present action in Ghana”. The trial judge in her judgment did not comment on this aspect of the Appellant’s case. Therefore, in this pg. 28 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT appeal Counsel for the Appellant argued that because of the arbitration clause, the trial court had no jurisdiction and the judge ought to have declined jurisdiction. In response, Counsel for the Respondent argued that the court had jurisdiction because the Aluzinc coils were delivered to the Respondent in Ghana and the “the performance of the obligation under the contract to supply the Respondent with Aluzinc coils was, also, to be delivered in Ghana”. [56] Undoubtedly, the flavour of the Appellant’s Counsel’s statement is anchored in clause 12 of the foundational document executed by the parties. The said clause is to the effect that in the event of any disputes arising from their relationship, if mutual discussions fail, they were to resort to Arbitration and the laws to be governed are the laws of the Province of Ontario, Canada. In effect, the parties agreed that their dispute would be determined by arbitration in Ontario, Canada. The Supreme Court of Ghana affirmed in the case of BCM Ghana Ltd v Ashanti Goldfields Ltd (2005-2006) SCGLR 602 that where there is an arbitration clause, Courts should endeavour to uphold same per Adinyira JSC (as she then was) thus: “The Courts must strive to uphold dispute resolution clauses in agreements which I consider to be sound business practices” [57] The above notwithstanding, I note that the Supreme Court has further clarified its position in the case of De Simone Limited v. Olam Ghana Limited2 that in dealing with Arbitration Clauses, certain Sections including Section 6 and 7 of the Ghana Dispute Resolution Act, 2010 (Act 798) are important. The apex court stated as follows; Where a court is called upon to decide whether or not it may proceed with a case notwithstanding the inclusion of an arbitration clause in the contract, two provisions in the Act have to be considered. The first is contained in section 6(1) which provides: 2 Civil Appeal No. J4/03/2018 dated 28 March 2018 pg. 29 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT “Where there is an arbitration agreement and a party commences an action in a Court, the other party may on entering appearance, and on notice to the party who commenced the action in Court, apply to the Court to refer the action or a part of the action to which the arbitration agreement relates, to arbitration.” The apex court further stated that, the right to apply to the court to refer the matter to arbitration “is waived if the defendant proceeds to file a defence to contest the case on merit”. [58] In this case, the Appellant did not at any time before filing the statement of defence apply to the court to stay the proceedings and to make reference to arbitration. The ROA (pages 12 to 26, Volume 2) show that the Appellant applied to the Court and filed submission that the suit should not be entertained on the grounds that it was statute barred. In that submission, the issue of arbitration was never raised. Subsequently, after the dismissal of the application, a statement of defence was filed. From the above, it is clear that the right to apply to the court for reference to arbitration is waived if the Defendant (Appellant herein) proceeds to file a defence to contest the case on merit. After that the Court can proceed to hear the case on the merit, the arbitration clause notwithstanding. [59] This is because a right to arbitration, like any contractual right, can be waived either expressly or by conduct. The waiver of a Defendant’s right to arbitration is conclusively presumed under Section 6(1) of the Act if the Defendant does not raise it after the entry of appearance and goes on to take fresh steps in the matter aimed at defending the claim. The underlying reason is that parties should not proceed with litigation if they do not intend to do so. Thus, any objection to the Court as the forum should be raised in the early stages of the process whilst the opportunity avails the parties. Section 6(4) clearly anticipates that at the time section 6(1) is invoked, only interim measures would have been filed and considered. Consequently, based on the above pg. 30 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT analysis, it is my holding that regardless of the arbitration clause in the agreement signed, the court below had jurisdiction to deal with the matter after the Appellant waived its right. [60] Before I sign off, my Lords permit me to comment on parts of the written submission filed by Counsel for the Respondent in this appeal. In doing so, I wish to refer to the case of The Republic v. High Court Judge, Kumasi: Ex Parte Hansen Kwadwo Koduah; Paragon Investment Limited – Interested Party3 where the Supreme Court established that lawyers owe it as a duty to assist the Court in maintaining that litigation is conducted in a civil manner devoid of indecent attacks on opponents or parties to the litigation and to project the profession as the most honourable one. In the case at bar, Counsel for the Respondent wrote at paragraph 62 of his submission that “the Appellant has clearly misunderstood and or is ignorant of the position of the law pertaining to the matter before the Honourable Court”. Again, at paragraph 82 Counsel wrote “in response to this submission from the Appellant the Respondent submits that the Appellant is very ignorant of the industry and the matters before the court”. At paragraph 84, again Counsel wrote “the Respondent again respectfully submits that the Appellant is ignorant of the matters before Your respectful Lordships, or the Appellant is just intentionally misstating the facts in some attempt to mislead Your Lordships of the matters”. In many parts of the submission, Counsel accused the Appellant of “misstating facts” and accused the Appellant of being “very disingenuous in alleging that the Trial High Court was not fair in its decision”. [61] My Lords, I have chosen to make reference to the above because it cannot be denied that Counsel was responding to the submissions filed by his learned friend who represents the Appellant as a party. To my mind, to refer to a colleague lawyer as ignorant of the matters before the court and misstating facts to “mislead’ the court without any 3 Civil Motion No: J5/10/2015 pg. 31 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT proof is abusive, indecent, offensive and scandalous and this court should not accept same but deprecate same. In my respectful opinion, Counsel ought to know that the ethics of the profession as set out in all the applicable legislations demand that litigation is conducted in a civil manner because civility enables us all to conduct adversarial legal proceedings in a controlled environment of mutual trust and discipline. While Counsel has the right to zealously advocate his client’s interest, he ought to be reminded that civil behaviour ought to be the core element of every lawyer’s professionalism. The use of abusive and indecent language makes a lawyer obnoxious, and sadly, poisons the well for all participants and the public as a result loses trust in the credibility of the profession. I trust that going forward Counsel shall be mindful of both his written and oral submissions to the court. vii. Conclusion & Disposition: [62] My Lords, I am of the respectful opinion that I have sufficiently dealt with all the crucial and other related issues the instant appeal raises, capable of disposing of the appeal. In my opinion, based on the pleadings and the evidence led on record, the Appellant has been able to make out his case and is therefore entitled to judgment. Ultimately, I agree with the Appellant’s Counsel that the judgment is against the weight of evidence because the conclusion of the trial court is not supported by the evidence. It is therefore my opinion that the judgment should be set aside based on the above analysis. Consequently, the appeal of the Appellant succeeds. The reasons, conclusions and all the orders made by the court below are set aside. The Plaintiff/Respondent’s claims are dismissed in entirety. Costs of GH₡10,000.00 is awarded to the Defendant/Appellant. SGD ………………………………………….. KWEKU T. ACKAAH-BOAFO (JUSTICE OF THE COURT OF APPEAL) pg. 32 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT SGD I AGREE …………………………………………. ALEX B. POKU-ACHEAMPONG (JUSTICE OF THE COURT OF APPEAL) CONCURRING OPINION. AFIA SERWAH ASARE-BOTWE JA I have had the opportunity of reading the Judgment of my learned brother, Kweku T. Ackaah-Boafo, JA. I agree entirely with his reasoning and conclusion that the Judgment of the court below is unmerited given the facts and the evidence before it. I agree that the Judgment was against the weight of the evidence with respect to the goods supplied and taken over by the Appellant. I agree that the damages awarded was unjustified in the circumstances of the case. I also agree that in spite of the Arbitration Clause, having acceded to the jurisdiction of the Court by filing a defence and contesting this matter, raising an objection at this late stage is improper. Please see the case of XIN BING ZHANG v. NKRUMAH KOBBY JONES CIVIL APPEAL NO. H1/76/2016 (CA, KUMASI) dated 12TH APRIL, 2017, in which the Court of Appeal cautioned that a defendant who wishes to raise matters such ought to do so timeously, at any time before filing appearance, or, if the Defendant has filed a conditional appearance, within fourteen days after filing appearance in accordance with Order 9 rule 8 of C. I. 47. pg. 33 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT I wish however, to make a brief contribution to the discourse for the record. The background and facts leading to this appeal have been well set-out in the lead opinion of my brother. I do not intend to rehash them in this very brief concurring Judgment. ON THE EVIDENCE LAID BEFORE THE COURT: It is my candid view that the Court below lost sight of the nature of the case as being one of breach of contract (and not a breach of warranty, at best). For a contract to be said to have been breached, the Plaintiff, who has the evidential burden, must prove that a term of the contract has not been complied with. It is trite learning that where parties have formally recorded the whole of their agreement in writing, the written agreement is prima facie, taken to be whole contract. The terms of the written contract are, therefore usually limited to the contents of the written document and nothing more. As a general rule, where the agreement is wholly reduced in writing, extrinsic evidence will not be admitted to add to, vary or contradict the terms of the written agreement. Mere negligence in not reading and appreciating the document before signing would also not detract from the terms to which the parties have appended their signatures. The only circumstances under which one would not be responsible for a document signed would be if fraud or undue influence are proven. See: • See MOTOR PARTS TRADING CO. v. NUNOO [1962] 2 GLR 195 • WILSON v. BROBBEY [1974] 1 GLR 250 • QUAO v. SQUIRE [1978] GLR 270 • INUSAH v. DHL WORLDWIDE EXPRESS [1992] 1 GLR 267. pg. 34 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT • DABI v. ANOBAH [1965] 38 It also needs to be stated further the general rule that, when a document containing contractual terms was signed, in the absence of fraud or misrepresentation, a party of full age and understanding was bound to the contract to which he appended his signature. In that case, it would be immaterial whether the document was read or not. In the case of INUSAH v. DHL WORLDWIDE EXPRESS [1992] 1 GLR 267 it was held that a plaintiff who was a literate trained professional, a man of full age was bound by the disclaimer he read and signed. See also: DOWUONA-HAMMOND, CHRISTINE, THE LAW OF CONTRACT IN GHANA, BUCK PRESS, 2011 @pages 129 to 131) In this case, I also hold the view that the Plaintiff/Respondent failed to prove to the Court that what the parties agreed to was not what was supplied. As was held by the Supreme Court per Adinyira, JSC in ACKAH V PERGAH TRANSPORT LTD [2010] SCGLR 728 at p. 736: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…” It must be borne in mind, for emphasis, that in a case such as this, where the Defendant had no counterclaim, there is no burden to disprove the case of the Plaintiff. The burden is wholly on the Plaintiff to adduce sufficient evidence to prove its claims. This evidential burden is not discharged by merely entering the witness box and repeating claims or averments on oath, but by offering positive proof of the claims. Please see: IN RE WA NA ISSAH BUKARI (SUBST. BY MAHAMA BUKARI & ANOR) v. MAHAMA pg. 35 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT BAYOUNG & ORS [2013-2014] 2 SCGLR 1590. In this case, the evidence offered by the Plaintiff did not, in my view, prove the claims for reasons briefly stated below. The proviso or disclaimer in the written Contract, Exhibit 3 (at page 302 of the ROA) states at sub-clause 3 (h); “(h) Steal material has the inherent property of being subject to oxidation/rusting. We therefore decline all responsibility in respect of any clause inserted in the shipping documents regarding rust/oxidation” Further, the email communication of 21st December, 2010 also made a representation, but with a proviso; “The colors of this material will last 13 years (as written in the catalogue as you can see attached) for an outdoor exposure, without taking consideration of the humidity, the sun exposure or strong temperature. The quality of this product is good. Mr. Mensah already saw this material” In the circumstances, unless the Plaintiff could demonstrate that the conditions stated in the provisos, being adequate and appropriate humidity, sun exposure or temperature, were in existence or that the rust or loss of colour in the products that were supplied for the purpose of making their roofing sheets were an aberration from the norm, the verdict ought not to have been delivered in its favour. In my view, Google, as put forward by the Plaintiff/Respondent’s witness, is not a proper or authentic demonstration of such evidence. In the circumstances, I conclude, in agreement with the Judgment of my learned brother, Justice Ackaah – Boafo JA, that the evidence on the record ought not to have weighed sufficiently before the Court to merit a finding in favour of the Plaintiff/Respondent. ON THE AWARD OF DAMAGES BY THE COURT BELOW In a paper presented at an induction course for newly appointed Circuit Judges at the pg. 36 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT Judicial Training Institute entitled ASSESSMENT OF DAMAGES by Justice Yaw Appau, then of the Court of Appeal (available www.jtighana.org ), states in the second paragraph; “When a claim for damages is included in an action, the plaintiff or claimant is required under the law to provide evidence in support of the claim and to give facts upon which the damages could be assessed. Simply put, before assessment of damages could be made, the plaintiff or claimant must first furnish evidence to warrant the award of damages. He must also provide facts that would form the basis of assessment of the damages he would be entitled to. His failure to do so would be fatal to his claim for damages. That is why in all actions where damages is one of the reliefs claimed, the plaintiff or claimant is always called upon to give evidence in support of the claim for damages after interlocutory judgment is entered in his favour upon the failure of the defendant to either enter appearance or to defend the action.” In its claim, the Plaintiff was seeking as the following reliefs; 1. Specific Damages in the sum of US$224,947 (Two Hundred and Twenty- Four Thousand, Nine Hundred and Forty-Seven United States Dollars). 2. 3. 4. 5. 6. Damages for loss of business reputation. Punitive damages. Commercial interest on the said amount at the prevailing Bank of Ghana rate from date of breach to date of final payment. General damages. Costs on full indemnity basis. In agreement with my learned brother’s finding, I state that the Plaintiff/Respondent did not lead any evidence to merit or justify any of the reliefs being sought by way of damages, whether general, specific or punitive. Invoices cannot be equated to receipts and photographs labelled as “Parliament House” etc. as they occur on the record, do not go to prove either actual cost incurred and/ or reputational damage. pg. 37 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT As stated in of KLAH v. PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139, LTD., “Where a party makes as averment at capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denies, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can satisfy itself that what he avers is true.” Clearly, the Plaintiff/Respondent did nothing to satisfy the court that the claims made, regarding actual loss or reputational damage, were true. In the circumstances then, I hold that the failure of the Plaintiff to prove damage and the justification for damages claimed would be fatal to its case. The appeal is accordingly upheld. SGD I ALSO AGREE ………………………………………. AFIA SERWAH ASARE-BOTWE (JUSTICE OF THE COURT OF APPEAL) COUNSEL: KWAME NYAMPONG FOR DEFENDANT/APPELLANT NATHAN TSORMETSRI FOR PLAINTIFF/RESPONDENT pg. 38 GLANDERSON BUILDERSPAK CO v. ADLER STEEL COMPANY LTD - JUDGMENT