MAWUMS LTD VRS PRIMUS INDUSTRIES (A2/106/21) [2023] GHADC 850 (29 November 2023)

CORAM: IN THE DISTRICT COURT, ACHIMOTA – ACCRA HELD BEFORE HIS WORSHIP PRINCE OSEI OWUSU SITTING AS DISTRICT MAGISTRATE ON THE 29TH NOVEMBER 2023 SUIT NUMBER: A2/106/21 - PLAINTIFF - MAWUMS LTD GD-71-5075 SPINTEX RD ACCRA VS. 1. PRIMUS INDUSTRIES DEFENDANTS 2. RICHARD OWUSU-ANSAH ALL OF OPPOSITE LATEX FOAM SHOWROOM INDUSTRIAL AREA, ACCRA …………………………………………………………………………………………………… TIME: 9:55AM PLAINTIFF REPRESENTED BY ABDUL YAKUBU 1ST DEFENDANT REPRESENTED BY 2ND DEFENDANT CHRISTIAN AMPAW WITH ME DANIEL DZORKPE HOLDING BRIEF OF ERIC OSEI KORANTENG FOR PLAINTIFF JUDGMENT The Plaintiff herein instituted the present action against the Defendants by way of Writ of Summons filed on 28/9/21 praying for the following reliefs; P a g e 1 | 8 a. An order from the Court to Defendants to supply outstanding 2,000 bags of cement or refund amount owned the Plaintiff equivalent to 2,000 bags of cement at current market price. b. Cost including legal fees. c. Any further order(s) as this Honorable Court may deem fit. It is the case of the Plaintiff per the statement of claim that he contracted 1st Defendant through the 2nd Defendant for the delivery of 10,000 bags of cement based on agreed terms of payment. Plaintiff averred that he paid an amount of GH¢160,000.00 to the Defendant on the 10/3/21 to supply 4,000 bags of cement by cheque. It is the Plaintiff’s case that the Defendant only provided 2,000 bags of cement out of the 4,000 bags that had been paid. Plaintiff stated that upon failure on the part of the Defendants to supply the remaining 2,000 bags, the Plaintiff caused his lawyers to write a Demand Notice to Defendants but Defendants failed to respond. In defending the suit by way of their statement of defence filed on 7th July,2022, the Defendant admitted that the 1st Defendant presented a cheque dated 4th March, 2021 with a face value of GH¢160,000.00 which was returned as unpaid due to insufficient funds. Defendants stated that within the period the cheque was represented, there was a review of the price of Cement and same was communicated to the Plaintiff on the 9th March, 2021. The Defendant further averred that he incurred cost when they cancelled an arrangement with Haulage trucks that was coming to load the goods to the Plaintiff. From the pleadings of the parties, and in order to determine whether the Plaintiff is entitled to the reliefs sought, the main issues for determination by this Court are; a. Whether or not there was a contract between Plaintiff and Defendant for the delivery of 4,000 bags of cement. P a g e 2 | 8 b. Whether or not the Plaintiff performed his obligation of the contract as agreed by the parties. c. Whether or not the Defendant failure to perform his part of the contract was occasioned by the Plaintiff. d. Whether or not the review of prices of the cement contributed to the failure to deliver the 2,000 bags of cement by Defendant to Plaintiff. Evaluation of Evidence and Resolution of Issues It is a trite that in Civil Cases, the general rule is that the party who in his or her pleadings or Writ raises issues essential to the success of his or her case assumes the onus of proof. The one who alleges whether a Plaintiff or Defendant assumes the initial burden of producing evidence, it is only when such a party has succeeded in producing evidence that the other party will be requested to lead rebuttal evidence. If need be, proof lies upon him who affirms or alleges, not upon him who denies since by nature of things he who denies a fact cannot produce proof. See Sections II (1) & 2, 12(2) and 14 of the Evidence Act 1975 (NRCD 323) Tagoe V Accra Brewery [2016] 93 GMJ 105, SC, Deliman Oil V HFC Bank [2016] 9 GMJ 1 CA. In the case of Takoradi Flour Mills V Samir Faris (2005-2006) SCGLR 882, the Supreme Court captured that the trite position of the law relating to the burden of proof and stated as follows at page 900 “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Sections 12(2) of Evidence Decree 1975(NRCD 323). Our understating of the rules in Evidence Decree 1975, on the burden of proof is that in assessing the balance of probabilities all the evidence be it P a g e 3 | 8 that of Plaintiff or Defendant must be considered and the party whose favor the balance tilts is the person whose case is more probable of the rival version and is deserving of a favorable verdict. Again in the case of GIHOC Refrigeration & Household V Jean Hanna Assi [2005- 2006] SCGLR 458, the Supreme Court held that “Since the enactment therefore, except otherwise specified, by status, the standard of proof in all Civil cases by preponderances of probabilities based on the determination of whether or not the party with the burden of producing evidence on the issue has on all the evidences, satisfied the Judge of the probable existence of the fact in issue. Hence, by virtue of provision of NRCD 323, in all civil cases judgment must be given in favor of a party on the preponderances of probabilities. The Plaintiff therefore has the onus of discharging the burden of producing evidence in respect of his claim on a balance of probabilities. In his Evidence in Chief by way of witness statement filed on 3rd October,2022 and adopted by the Court, the Plaintiff by basically rehashing the averments in his pleading. His Evidence was that he contacted the 1st Defendant through the 2nd Defendant for the delivery of 10,000 bags of cement based on the agreed terms of payment, by offer and acceptance letters marked Exhibit “A” & “B” attached to the Plaintiff’s witness statement. According to the Plaintiff an amount of GH¢160,000.00 was paid to the Defendant on 10th March, 2021 to supply 4,000 bags of cement by cheque. It is the case of the Plaintiff that the Defendants supplied 2,000 bags of cement out of the 4,000 that was paid which the Defendants have failed to do so. It is the Plaintiff’s case that he caused his lawyer to write Demand Notice on Defendant but to no avail. This according to the Plaintiff made him to file this instant suit. P a g e 4 | 8 Plaintiff testify that Defendant failure to deliver the remaining 2,000 bags of cement made him to order for 2,000 bags from different supplier at GH¢40.00. This ensued under cross examination of the Plaintiff by the Counsel for Defendant; Q: You agree with me that out of the GH¢160,000.00 that you paid, the 1st Defendant had supplied cements value of GH¢80,000.00? A: Yes my Lord. Q: And therefore, the balance the 1st Defendant was supposed to give you to supply the cement will be GH¢80,000.00? A: That is not correct. He was supposed to pay the value of 2,000 bags of cement. Q: Per Exhibit “A” how much was a bag of cement? A: GH¢40.00 Q: Kindly tell the Court the bag of cement multiplied by 2,000 bags how much will it be? A: That will be GH¢80,000.00 if he was to pay the day he received the money into his account. Q: How much did you pay for the bags of cement in June 2021 when 1st Defendant failed to supply you with 2,000 bags of cement? A: GH¢40.00 From the pleadings of both parties, there was a contract for the Defendants to supply 4,000 bags of cement, which Defendant admitted to have supplied 2,000 bags per Exhibit “A” & “B”. Per Section 8(1) of the Sales of Goods Act 1962, Act 137, the Act provides as follows; P a g e 5 | 8 1. In the sale of specific goods, the fundamental obligation of the seller is to deliver these goods to the buyer. The Court in the case of Buirch V Asempa & Another, 1992 2GLR 416 – 440 held per holding one, the fundamental obligation of the vendor under a contract for the sale of goods is to deliver them to the purchaser when they were paid for, the purchaser was also obliged under Section 21 of Act 137 to accept delivery of the goods. The duties under this Section are seen to be a fundamental obligation of the seller and a breach of either the entitles the buyer, there Plaintiff herein to repudiate the contract and or sue for damages for a breach of the condition. Whenever there is a breach of fundamental obligation of the seller to deliver the goods in respect of specific goods to the buyer after later has made payment to the former, the personal right of the buyer accrues. This will entitle the buyer to sue for damages for non-delivery. See Section 53 of the Sale of Goods Act, 1962 (Act 137) provides that, where the seller wrongfully neglects, or refuses to deliver the goods to the buyer in accordance to the terms of the contract or where the buyer rejects the goods delivered by the seller, the right thing to do, the buyer will maintain an action against the seller for damages for non-delivery. However, the measure for damages is accessed and stipulated in Section 54, of Sale of Goods Act, 1962 (Act 137). The Act provides that; 1. “The measure of damages in an action under Section 53 of this Act is the loss which could reasonable have been foreseen by the seller at the time when the contract was made as likely to result from its breach of contract. In the case of Tawiah V Gh Civil Aviation Authority & Others [1989 -1990] 1GLR 452-456, the Court noted that “for non-delivery of goods to the buyer under Section 53 of Act 137 or for a breach of the seller’s fundamental obligation to deliver goods to the buyer under Section 8(1) of the Act, the same principle was laid in Section 54(1) and 56 respectively for the assessment of damages i.e. measure of damages was the loss which P a g e 6 | 8 could reasonably have been foreseen by the seller at the time the contract was made and likely to result in his breach of contract. The measure of such damages is the loss which the Defendant could reasonably have foreseen at the time the contract was made is likely to result from his breach of contract”. It is trite that general damages in such as the law will presume to be the natural or probable consequences of the Defendant’s act. This implies that general damages in every infringement is an absolute right. See the case of Delmas Agency V Food Distribution [2007-2008] SCGLR 748 and Yarydon Rovo Services [2005-2006] SCGLR 816 at 839. From the totality of the evidence adduce and based on Defendant’s admission of liability to the cost of 2,000 bags in June 2019, it is evident that the Defendant had breached the fundamental duty to supply 2,000 bags of cement to the Plaintiff causing damage to the Plaintiff. On the nature of losses to be considered in the granting of the award for damages, the Court of Appeal in the case of Kwadwo Appiah V Kwabena Ance [2018] 125 GMJ at page 142, held that the assessment of damages can be put under pecuniary and non-pecuniary damages. The evidence of the Plaintiff together with the documents tendered before the Court are questionable to prove the injury, Defendant’s non-delivery of 2,000 bags of cement caused him. Having regard to the evidence adduced and the submission of liability by Defendant, it would be reasonable and just to in the circumstance award the plaintiff general damages to compensate him for the loss he suffered as a result of the Defendant’s breach. From the instant case, the Plaintiff failed to adduce any evidence to show any cost incurred in buying the non-supplied bags of 2,000 cements. The Court is also mindful of the fact that damages must not be a means for parties to enrich themselves. This in the case of Debrah Investment Company V Aramex Express Services [2017] DLHC 329, the P a g e 7 | 8 Court stated that “damages not intended to clear enrich a party far beyond his actual losses and neither is intended to make him worse off”. The Plaintiff’s relief before this Court is for an order for specific performance for the Defendants to supply 2,000 bags of cement or to pay the equivalent of 2,000 bags of cement at today’s market price. It is a trite that parties are expected to take steps to mitigate loss he would have suffered. See the case of British Westinghouse Electric and Manufacturing Co. V Underground Electric Railways Co. of London [1912]. In this instant case the Plaintiff mitigated the loss by taking steps to purchase the 2,000 bags at GH¢40.00. Again, specific performance will be granted where the goods failed to be supply are readily available in the market. In the instance case the Plaintiff can be compensated adequately. The Court hereby enter Judgment for the cost of GH¢80,000.00 with interest from June 2019 at the prevailing bank rate till final date of payment and a cost of GH¢2,000.00 awarded in favor of Plaintiff. In addition, general damages of GH¢20,000.00 is awarded in favor of Plaintiff. HIS WORSHIP PRINCE OSEI OWUSU DISTRICT MAGISTRICT P a g e 8 | 8