MEDLAND HOSPITAL LTD VRS KOS SHIPPING & LOGISTICS LTD (C11/138/22) [2023] GHACC 791 (30 November 2023)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON THURSDAY THE 30TH DAY OF NOVEMBER, 2023, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C11/138/22 MEDLAND HOSPITAL LTD. ---- PLAINTIFF VRS. KOS SHIPPING & LOGISTICS LTD. ---- DEFENDANT PLAINTIFF CO. REP. BY DR. MARTIN ASARE ANIAGYEI (MEDICAL DIRECTOR) PRESENT DEFENDANT ABSENT KOFI KUKUBOR, ESQ. FOR THE PLAINTIFF PRESENT KWAKU ADU-MINTAH, ESQ. FOR THE RESPONDENT ABSENT JUDGMENT FACTS The plaintiff, a limited liability company which provides medical services located within the Tema Metropolitan area caused a writ of summons to be issued against the defendant, a shipping company located within Tema for the following reliefs; a. The recovery of the sum of Twelve Thousand, Four Hundred and Twenty-Two Cedis (GH₵12,422.00) being the amount due and owed the plaintiff as at January, 2020. b. Interest at the prevailing commercial bank interest rate on the said amount of GH₵12, 422.00 from January, 2020 to the date of final payment. c. General damages for breach of contract. d. Costs including legal fees. e. Any other relief (s) deemed fit by the Honourable Court. The plaintiff’s case that sometime in the year 2017, it started the provision of medical services to the defendant's employees and payments for the services were made by the defendant company on behalf of its employees. The plaintiff says that the payments were irregular until the year 2020 when the defendant completely ceased making payments. As a result of the default in payment by the defendant, the plaintiff was compelled to withdraw its services to the defendant in the year 2020. The plaintiff avers further that as at the time of the withdrawal of its services, the defendant company owed the plaintiff a total amount of Twelve Thousand, Four Hundred and Twenty-Two Ghana Cedis (GH₵12,422.00). According to the plaintiff, all attempts to retrieve the outstanding balance from the defendant since the year 2020 yielded negative results. The plaintiff says that as a result of the recalcitrance of the defendant, the General Manager of the plaintiff sent a demand notice to the defendant but the defendant has neglected and or refused to settle its indebtedness and has ignored the demand notice as well. The plaintiff says that unless compelled by this Honourable Court, the defendant company would not settle its indebtedness to the plaintiff in the sum of GH₵12, 422.00. The defendant, through its lawyers filed notice of entry of appearance on 7th June, 2022 but failed to file a defence within fourteen (14) days as required by the rules of court. The plaintiff applied for judgment in default of defence and on 21st July, 2022, the court entered final judgment in default of defence on the liquidated claims and interlocutory judgment in default of defence for the plaintiff to lead evidence to prove his claim for damages. Subsequently, the defendant on 30th November, 2022, filed a motion on notice to set aside the default judgment and for leave to defend the action which the court granted same on 19th July, 2023 and granted leave for the defendant to file the defence with 7 days and awarded costs of Two Thousand Ghana Cedis (GH₵2,000 against the defendant.) Based on the orders of the court, the defendant filed a statement of defence on 24th January, 2023. The defendant denies the claim of the plaintiff and says that it has never entered into any agreement nor made any arrangement with plaintiff under which plaintiff was to provide defendant's employees with medical services. The defendant in further answer says that as part of its employee welfare, it introduced a scheme where employees that accessed medical care from hospitals were reimbursed for the costs incurred upon production of receipts evidencing the services assessed. The defendant says that a number of its employees assessed medical care from plaintiff under the scheme and defendant reimbursed the employees for the costs incurred. The defendant says that it noticed after sometime that some of its employees that went to plaintiff’s facility for medical care did not bring receipts for reimbursement but defendant was rather served bills directly from plaintiff. The defendant says that it honoured a few of these bills out of the personal relationship that existed between its Chief Executive and the Chief Executive of the plaintiff without admission of any liabilities. The defendant says that it reviewed the scheme and came to the conclusion that same was prone to abuse and therefore discontinued it without recourse to plaintiff as defendant has no agreement with plaintiff for the provision of any services on behalf of defendant. The defendant says that it is not indebted to plaintiff in any sum at all as it has not requested the provision of any services by plaintiff for and on behalf of defendant. It states that it received a demand notice but refused to honour same as it does not owe plaintiff any amount of money. The defendant maintains that plaintiff is not entitled to any reliefs at all. At the application for directions stage, the court set down the following issues for trial. ISSUES FOR TRIAL 1. Whether or not the defendant company, represented by its Chief Executive Officer, Kwame Osei Sarpong, in early January, 2017 approached the Medical Director of the Plaintiff Hospital and requested that the Plaintiff Hospital should provide medical services for the employees and the dependents of the defendant company. 2. Whether or not following this agreement, the C. E. O. of the defendant company, its employees and their dependents started patronising the services of the plaintiff hospital. 3. Whether or not the Plaintiff Hospital raised bills on credit basis covering the services so provided and forwarded same to the Defendant Company for payment. 4. Whether or not the Defendant Company issued cheque of Two Thousand Cedis to cover the bills so generated by the Plaintiff Hospital for the services provided. 5. Whether or not the Plaintiff Company also provided the said services to the employees and the dependents of the Defendant Company. 6. Whether or not the Defendant Company started defaulting in making payment as a result of which the Plaintiff ceased the provision of the service on credit basis until 2022 when it withdrew the services to the Defendant Company. 7. Whether or not at the time of the withdrawal of service, the Defendant Company owed the Plaintiff Hospital an amount of Twelve Thousand, Four Hundred and Twenty-Two Ghana Cedis. 8. Whether or not the General Manager of the Plaintiff Hospital sent a demand notice to the Defendant Company to pay up, a demand notice which was ignored. 10. Any other issues arising out of the pleadings. BURDEN OF PROOF In civil cases, a party who alleges bears the duty to produce evidence of facts and circumstances based on which the court can satisfy itself that the averments of the party are true. The burden of proof and the standard of proof in civil cases are codified in Sections 10, 11, 12 and 14 of the Evidence Act, 1975(NRDC 323.) In the case of GIHOC V. Hanna Assi [2005-2006] SCGLR 458 at page 485, the Supreme Court, Per Sophia Akuffo JSC (as she then was) referencing sections 10(1)&(2), 11(1) &(4), 12(1) & (2) and 14 of NRCD 323 stated that: “ Since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof(the burden of persuasion) in all civil matters is by preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue:…Hence, by virtue of the provisions of NRDC 323, in all civil case, judgment might be given in favour of a party on the preponderance of the probabilities.”…rather than on an archaic principle which might not accord with reason or common sense…” Thus, the plaintiff bears the burden to prove its case against the defendant on balance of probabilities. ANALYSIS The term “contract” is often used to refer to an agreement, consisting of the exchange of promises, which is recognised by law as giving rise to enforceable rights and obligations. Every contract, by definition, involves at least two parties and consists of an exchange of promises or the exchange of a promise for an act. As stated by Christine Dowuona-Hammond in her book, “The Law of Contract in Ghana” 2011, in determining whether the parties have reached an agreement, the courts normally begin by looking out for an offer and a corresponding acceptance. It is noteworthy that not all contracts are formed by a process of a direct offer and an acceptance. In some cases, a contract may be inferred from the conduct of the parties. To prove that there exists an agreement between the parties for the plaintiff to provide medical services for the defendant and that the defendant has failed to pay for the services provided, the plaintiff’s witness, Dr. Martin Asare-Aniagyei, the Medical Director of Medland Hospital, testified that in early January, 2017, the Chief Executive Officer of the defendant company, one Kwame Osei Sarpong who was his friend, visited him at the hospital and indicated that he wanted his employees and their dependents to be provided with medical services. In view of this discussion, the parties reached an understanding and Mr. Sarpong consequently informed his employees to seek medical attention at the plaintiff’s hospital. Based on that, the plaintiff started the provision of the said services to the C. E. O. Kwame Osei Sarpong himself, the employees and their dependants. In support, the plaintiff tendered in evidence Exhibit "A" Series. According to his testimony, the bills covering the services were raised on credit basis and sent to the defendant in bulk for settlement. In support, he tendered in evidence Exhibit “B’. The plaintiff’s witness further testified that on the 25th August, 2020, the defendant issued a cheque of GH₵2,000.00 to defray part of its indebtedness to the plaintiff. This is evidenced by Exhibit “C”. According to PW1, the payments were so irregular throughout the period of service to the extent that he was compelled to stop the provision of service on credit sometime in early 2021 and when the defendant refused or neglected to defray its total indebtedness to the plaintiff, it had no alternative than to withdraw service completely. Additionally, PW1 testified that at the time the service was withdrawn, the defendant owed the plaintiff a total amount of Twelve Thousand Four Hundred and Twenty-Two Cedis (GH₵12, 422.00). Also, he states that the refusal of the defendant to settle its indebtedness, made the General Manager of the plaintiff to send a demand notice to the defendant company, but the defendant ignored the demand notice causing the plaintiff to commence the instant suit against the plaintiff. The plaintiff tendered in evidence the demand notice, admitted and marked as Exhibit “D”. PW1 maintains that unless compelled by this Honourable Court, the defendant would not settle its indebtedness to the plaintiff and would continue to ignore the plaintiff’s demands. The defendant and its Counsel were duly served with hearing notice but they failed to appear in court to cross-examine the plaintiff’s witness on his testimony before the court. The defendant’s representative filed a witness statement in court but failed to appear in court to lead evidence in the case after the court on an application by the defendant set aside the default judgment to enable the defendant to defend the suit upon service of due notices on the defendant. It is trite law that witness statement is not evidence. The position of the law on a witness statement not relied on at the trial has been put to rest by the Supreme Court in the case of John Dramani Mahama v. Electoral Commission & Anor [Suit No. J1/5/2021], delivered on 11th day of February, 2021, where the Supreme Court referencing Order 38 rule 3E (5) held inter alia that: “The above rule points to the fact that a witness statement filed and served does not constitute evidence in law till the author of the statement mounts the witness box, takes the oath and prays that the witness statement be adopted as evidence pursuant to Order 38 rule 3E(2)…” The court afforded the defendant every opportunity to be heard on the merits of its case by setting aside the judgment in default of defence entered against the defendant and gave the defendant leave to defend but the defendant, after filing witness statement failed to participate in the proceedings. Again, hearing notices were served on Counsel for the defendant but they failed to appear in court to participate in the proceedings. In the case of the Republic v. High Court (Fast Track Division), Accra Ex-parte State Housing Company Limited (No. 2) [2009] SCGLR 185 at 190, the Supreme Court per Georgina Wood, C. J (as she then was) held that "A party who disenables himself or herself from being heard in any proceeding cannot turn round and accuse an adjudicator of having breached the rules of natural justice". The plaintiff’s evidence stands not contradicted on record. From Exhibit “A”, the names of the staff of the defendant company and their dependents who accessed plaintiff’s health facility are stated and as at April, 2022, the defendant’s indebtedness to the plaintiff stood at GH₵12,422 and there is evidence as shown in Exhibit “C” that the defendant once issued a cheque to the plaintiff to pay part of the debt owed the plaintiff by the defendant. The plaintiff also wrote a demand notice to the defendant in Exhibit “D”, demanding the repayment of the defendant’s indebtedness for services provided to the employees of the defendant company. On the totality of the evidence led by the plaintiff, I find that the defendant entered into an agreement for the plaintiff to provide medical services to the staff of the defendant and based on that agreement, the staff of the defendant benefited from the services of the plaintiff’s facility. The defendant has not challenged the list of the staff on grounds that these are not people in the defendant’s employ that the people listed never accessed the services. The evidence further show that the defendant had reneged on its obligation to pay the bills of these employees who visited the hospital of the plaintiff. I therefore hold that the defendant is indebted to the plaintiff in the sum of Twelve Thousand Four Hundred and Twenty Two Ghana Cedis being the amount due and owing for medical services provided to the employees of the defendant. The plaintiff also claims interest on the amount of Twelve Thousand Four Hundred and Twenty Two Ghana Cedis. The Court (Award of Interest and Post Judgment Interest) Rules, 2005, C. I. 52, provides in Rule 1 of CI 52, that: “1. If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated a) at the bank rate prevailing at the time the order is made, and b) at simple interest but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner “. In the case of Standard Chartered Bank (Ghana) Ltd. v. Nelson [1998-99] SCGLR 810, the Supreme Court held in holding 4 as follows; “Interest might be awarded by a court under the following circumstances; (i) by the custom or trade practice. Such interest was usually awarded on moneys due and payable upon proof of such custom or trade practice. (ii) by agreement in transactions between parties where such interest might become payable upon action brought after default. (iii) interest charges arising out of contracts-actually stated or implied; and (iv) by (a) statute arising under the Money Lenders Ordinance, Cap 176 (1951 Rev or (b) the Courts (Awards of Interest) Instrument, 1984 (LI 1295).” In the instant case, there is no express agreement between the parties for the award of interest but on the amount due and owing, the law presumes the defendant to have agreed to pay interest on the amount having unjustifiably kept the plaintiff out of the use of its money. In the case of Akoto v. Gyamfi-Addo [2005-2006] SCGLR1018, the Supreme Court per Atuguba JSC stated at page 1023 that: “the general principle for the award of interest to a party, is that such party, has been by defendant, unjustifiably kept out of money due to him for the relevant period.” Based on the foregoing, I hold that the plaintiff is entitled to interest on the amount due and owing from January 2020 till date of final payment. The plaintiff also claims general damages for breach of contract. I am mindful that the plaintiff has been awarded the full amount owed by the defendant with interest on the amount from the date of the breach till date of final payment. On the authorities, the plaintiff under such circumstances is only awarded a trifling sum. The Supreme Court in the case of Lizori Ltd. v. Boye & School of Domestic Science & Catering [2013- 2014] 2 SCGLR 890. The Supreme Court held in its holding 5 that: “On the issue of nominal damages to be awarded by the court,… the scope of nominal damages could not be defined with any degree of certainty; thus the court would not be restricted as to how much to award as nominal damages, but as the name implied, it must not be a huge or substantial award since its main purpose was to vindicate the right of the successful party in the action. At various times in England, the award has ranged between 1 pound and 5 pound” In the circumstances of this case, I will award an amount of Two Thousand Ghana Cedis (GH₵2,000) as general damages for breach of contract in favour of the plaintiff against the defendant. On the issue of costs, plaintiff claims costs including legal fees but there is no evidence of how much the plaintiff paid as legal fees. See the case of Owuo v. Owuo [2017- 2020] 1 SCGLR page 780. The court has heard the oral submission of Counsel on costs and the prayer of Counsel to award costs of Two Thousand Ghana Cedis. In accordance with Order 74 of the High Court (Civil Procedure) Rules, 2004 (C. I. 47), considering the nature of the case, the length of the trial and the fact that the action is uncontested, the reasonable expenses incurred by the plaintiff in filing processes in court and providing reasonable remuneration for Counsel for the plaintiff, and the cost awarded upon the setting aside the judgment in default of defence, I will award an amount of Two Thousand Ghana Cedis (GH₵2,000) as cost in favour of the plaintiff against the defendant. CONCLUSION In conclusion, I hold that the plaintiff proved its claim against the defendant on a balance of probabilities. I accordingly enter judgment in favour of the plaintiff to recover from the defendant the following reliefs; 1. Recovery of the sum of Twelve Thousand, Four Hundred and Twenty-Two Cedis (GH₵12,422.00) being the amount due and owing the plaintiff as at January, 2020. 2. Interest at the prevailing commercial bank interest rate on the said amount of GH₵12, 422.00 from January, 2020 to the date of final payment. 3. An amount of Two Thousand Cedis (GH₵2,000) as nominal damages for breach of contract. 4. Costs of Two Thousand Ghana Cedis (GH₵2,000) is awarded in favour of the plaintiff against the defendant. SGD. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 10