JINS COMPANY LIMITED VRS 1ST AFRICAN PAGE LIMITED (H1/186/2021) [2023] GHACA 179 (7 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA A. D. 2023 CORAM: JUSTICE SENYO DZAMEFE (MR.) J. A (PRESIDING) JUSTICE SOPHIA ROSETTA BERNASKO ESSAH (MRS.) J. A. JUSTICE GIFTY AGYEI ADDO (MRS.) J. A CIVIL APPEAL NO.:H1/186/2021 DATE: 7TH DECEMBER, 2023 - - PLAINTIFF/RESPONDENT DEFENDANT/APPELLANT JINS COMPANY LIMITED VRS 1ST AFRICAN PAGE LIMITED WESTLAND, WEST LEGON ACCRA. J U D G M E N T __________________________________________________________________ SOPHIA R. BERNASKO ESSAH (MRS) JA: This is an appeal at the instance of the Defendant/Appellant against the decision of the High Court Commercial Division delivered on the 5th of November, 2019, in which Judgment was granted in favour of the Plaintiff/Respondent. The appeal is on the following grounds: a. The judgment is against the weight of evidence. b. The learned Trial Judge erred in law when she held that the cost of the remaining items that were procured from the local market totaling GH₡840,380, constitutes special damages. c. The learned Trial Judge misapplied the rules regarding special damages having regard to the circumstances of this case. d. The learned Trial Judge erred in law when she dismissed the counterclaim of the Defendant. Additional grounds of appeal filed were the following: e. The learned Trial Judge erred in law when she failed to hold that the Defendant should have been responsible for the payment of the market price of the goods at the time of the contract together with interest up to the date of final payment. f. The learned Trial Judge erred in law when she failed to hold that the Defendant should have paid for the prevailing market price of the said goods outside this jurisdiction or as agreed by the parties at the time of the contract. g. The Trial Judge erred when she failed to hold that the Plaintiff ought to have been entitled to the difference between the contract price of the goods and the prevailing market price at the time of final payment as special damages. h. The learned Trial Judge erred in law when she held that the Defendant should pay for the cost of the goods procured by the Plaintiff from the local market without the Defendant’s consent. The facts of this case do not lend themselves to much controversy. A simple sub-contract entered into between the parties on the 22nd of January, 2015, wherein Defendant was to deliver 2,333 student metal bunk beds with accompanying 4,666 mattresses at a unit cost of GH₡341 per set totaling GH₡795,553.00. The agreed payment terms were an advance of 30% of the total cost amounting to GH₡238,666 payable before the commencement of work; a further payment of 55% of the total cost amounting to GH₡437,554.15 for purposes of shipment of the items by Defendant; a final payment of 15% of the total cost amounting to GH₡119,332 to be paid to the Defendant to enable clearing of the items from the ports when the goods arrive in Ghana. Agreed too were the various delivery points of the bunk beds and mattresses at the designated schools in the Volta Region of Ghana, as well as the assembling of the bunk beds. Plaintiff was to provide food and accommodation for workers who will be at the various delivery points to do the assembling. Pursuant to the terms of the contract Plaintiff paid the initial GH₡ 238,665 on the 22nd of January, 2015. A second payment of GH₡ 200,000 was made on 25th of March, 2015, and a third payment of GH₡237,554.17 made to the Defendant on the 11th of May, 2015. Upon representations to Plaintiff by the Defendant that the items had arrived in Ghana and were at the ports, it made a final payment of GH₡119,332.95 on the 24th of June, 2015, bringing the total payments made to the Defendant in respect of the contract to GH₡ 795,553.00. On the 2nd of September 2015, Defendant requested an additional amount of GH₡15,810 representing cost of accommodation and food for the technicians going to the various delivery points in the Volta Region to assemble the beds, and an amount of GH₡9,600 as cost of transportation of 4 containers from the Tema Port to the various schools in the Volta Region. Plaintiff contested this figure as not being part of the contract yet he agreed to pay a total amount of GH₡10,000 as part payment. As of December, 2015, which was six months after representing to Plaintiff that all the items had arrived at the port, and full payments effected, Defendant delivered and assembled only 2,283 bunk beds, being 50 short of the agreed contract quantity of 2,333 beds, and failed to deliver the contracted 4,666 mattresses. In the same month, Defendant then demanded an extra payment of GH₡100,000 to enable it ship into the country the remaining consignment of 50 metal bunk beds and 4,666 mattresses alleging the request had arisen out of foreign exchange fluctuations. This was rejected by the Plaintiff as not being part of the terms of contract executed by the parties. Per letter of 24th December 2015, Plaintiff complained to Defendant about the effect the delays were causing them in relation to their main contractors and the risk of being blacklisted by them. A deadline of the end of January, 2016 given to Defendants to deliver the remaining items failing which Plaintiff will be compelled to procure the remaining items from the local market and seek a refund from the Defendants was countered by a representation by the Defendants that they will deliver the items at Plaintiffs doorstep by end of March, 2016. This time, Defendants attributed the delay to information received from its Chinese manufactures that they were at the time celebrating Chinese New Year, and that all their manufacturing plants were shut down and will resume production in another month or two. They also consequently asked the Plaintiff to hold on to the purchase of the remaining items from the local market. Although rejecting the new date of delivery, on grounds of inconsistency, contradictions and unreliability in the positions of the Defendant, Plaintiff nonetheless waited till April, 2016 to enable the Defendant deliver the items, which they failed to do. In July, 2016, Defendant then demanded from Plaintiff an extra amount of GH₡70,000 as cost of fabrics to cover the mattresses claiming that the subcontract was silent on same. This demand and claim were rejected by Plaintiff on grounds that the parties had agreed on a specific sample shown to Plaintiff’s officials by defendants and same was approved as the specific mattresses to be delivered under the contract even though the contract was silent on same. The various letters written on 16th of April, 2016, and 20th July, 2016 by the Plaintiffs lawyers, notifying defendant that further delays in delivery will compel them to move onto the local market to purchase the remaining items to enable it supply same to its main contractors and to mitigate its losses did not yield performance by Defendant. Consequently on 13th September, 2016, Plaintiff wrote to inform the Defendant that it had finally purchased the remaining items at a cost of GH₡840,380, attached the invoices from Latex Foam Rubber products limited, and requested the defendant to reimburse them within 2 weeks of receipt of the letter. Having failed to reimburse the Plaintiff, they initiated an action against the Defendant on 2nd November, 2016. By an amended Writ of Summons and Statement of Claim filed on 1st March, 2018, pursuant to leave of the Court, the Plaintiff sought the following reliefs against the Defendants: a. Special damages of GH₡840,380 made up of the following: i. Cost of 4666 mattress – GH₡821,880.00 II. Cost of 50 bunk beds – GH₡18,500.00 TOTAL GH₡840,380.00 b. Interest on the amount of GH₡840,380, from 13th September, 2016 up to date of final payment. c. General damages for the lost business and reputation damages as a result of Defendants delays and deliberate refusal to supply items contracted on time. d. Legal fees; and e. Cost. Defendants in defence admitted receipt of the various payments made by the Plaintiff. However they maintained that the Plaintiffs were not entitled to any reimbursement by law, since they did not obtain their consent to procure the remaining items from the local market, same not contained in their contract. That if at all, they are only liable for the payment of the remaining contract sum to the Plaintiff or cost of the remaining 50 bunk beds and 4666 mattresses at the then prevailing price under their contract, plus damages for breach of contract, and nothing more. That in any event the parties specified only the sample for the bunk beds and not the mattresses. They alleged that they had only shown the Defendants a piece of foam as sample and not a covered mattress hence their demand for payment for mattress fabrics. They also said they picked up an invoice from Ashfoam Limited, for the price of the items short delivered which turned out to be cheaper than that of the Plaintiff. Finally that to the extent that the loss was occasioned by exchange rate problems, the Plaintiff is not entitled to any reimbursement. They counterclaimed as follows: a. A declaration that the defendant is not obliged to reimburse the Plaintiff with the costs of the remaining items it procured from the local market as same was not part of the said contract. b. A further declaration that the Plaintiff is only entitled to costs of the remaining 50 bunk beds and 4,666 mattresses respectively they failed to supply under the contract at the then prevailing prices together with damages for the breach of contract if at all. c. A declaration that the Defendant did not give its consent or authority to the Plaintiff to purchase the remaining items from the local market for the reimbursement. Plaintiff joined issue with the defendants and said the Defendant is not entitled to their counterclaim. The trial Court found as fact that the Plaintiff had proved on a balance of probabilities that Defendant was in breach of its obligations to deliver the quantity of items in accordance with the terms of the contract. Although the contract was silent on date of delivery, having relied on Section 16 (1) of the Sale of Goods (1962) Act 137, and examined the conduct of the parties, and the evidence adduced, the trial Court inferred, and rightly so in our view, that the Defendant was expected to deliver the items in question within a period not later than Six months after execution of the contract, by which time the Plaintiffs had fully paid the contract sum. It rejected as afterthought the reasons proffered by the Defendant as justification for the failure to deliver on the contract. The trial Court opined that, the Defendant ought to have reasonably foreseen that the Plaintiff will incur losses as a result of its failure to deliver, in that the Plaintiff being under an obligation to supply the beds and mattresses to its employers at all cost, they will be compelled to consider other ways of fulfilling their obligations under the main contract which would result in Plaintiff incurring losses. The trial Court found that the damages claimed by the Plaintiff arose from the breach; and the damages were reasonably contemplated by both parties as being a probable result of the breach. Further that the Plaintiff having pleaded, particularized and proved special damages, the Plaintiffs were entitled to their relief sought under the head of Special damages. It awarded interest calculated from 28th September, 2016 rather than from 13th September as sought by the Plaintiff. Having failed to lead cogent evidence on the general damages claimed same was refused but nominal damages awarded. It found the Defendant not entitled to their counterclaim. This is the impugned judgment against which the Defendant seeks this Court’s intervention. It appears Counsel for the Defendant in his written submissions based his case on grounds a,b & c, of the Grounds of Appeal and argued them together, the other grounds will be deemed abandoned thereby and we strike them out. He contended that the Trial Judge ought not to have accepted the amount of GH₡840,380 as special damages as there was no proof during the trial that, the Plaintiff indeed paid the said sum of money to Latex foam for the purchase of the 50 metal bunk beds and the 4666 mattresses, in that, during the trial, Plaintiff only tendered Exhibits ‘J1 and J2’ which were purported invoices from Latex Foam as proof of purchase of the said items, without any receipt from Latex Foam as evidence of payment. That having so failed to adduce any evidence in the form of receipts for the actual payment of the said sum of money the Plaintiff failed to meet the test for proof of special damages. In so saying counsel for Defendant relied on 2 cases, Kwadjo vs. Speedline Stevedoring Co. Ltd 2017-2018) SCLRG 101, where the Supreme Court rejected invoices relied on by Plaintiff as evidence of purchase of goods which had nothing on them to show that the Plaintiff had actually paid for the goods itemized thereon. Counsel for the Defendant also relied on the case of Environmental Development Group vs Provident Insurance Co Lt. & Ors civil appeal JS/31/2019 UNREPORTED DATED 18TH March, 2020, wherein a dispute arose between the parties involving a construction contract. The Plaintiff had sought special damages relying on the fact that if reasonable time were extended it would have completed the project, and would be paid the remaining contract sum, 15% of which would have been its profit. It would also have earned 5% of the value of subcontracts for works and material supplies. These were challenged by the 3rd Defendant who said that based on the fact that it took Plaintiff 18 months to achieve only 17% of the works, six extra months would not have taken it far. The Court held the Respondent’s argument valid and that the Plaintiff was not to expect that the Court would award its speculative claim of earning a certain amount without offering concrete proof. On the basis of these cases, Counsel for Defendant herein contended that similarly Exhibits ‘J1 and J2’ did not show that the Plaintiff had actually paid the amount of GH₡840,380 claimed as special damages and same should have been rejected by the Trial Court as being bare assertions. Thus, the trial Judge fell in error when she held that the Plaintiff having pleaded, particularized and proved the said losses, was entitled to its prayer for Special damages. In response, Counsel for the Plaintiff submitted that the appeal is misplaced or misconceived. He contended that since the Defendant at the trial and in its defence had admitted that the Plaintiff indeed procured the remaining items from Latex Foam, then that put an end to the controversy over that allegation or claim, and the adversary does not need any better evidence to establish that fact than to rely on such admission. He referenced the case of Opoku & Ors vs Axes Co. Ltd. (No. 2) (2012) 2 SCGLR 1214. . He also contended that Defendant having admitted that the remaining items were supplied to the secondary schools in the Volta region albeit without the consent of the Defendant then the issue of no proof of payment for the items supplied is raised in bad faith. He further contended that the said Exhibits ‘J1 and J2’ which the Defendant seeks to impugn is not a mere invoice, but is stated on it that Latex foam had supplied the items listed on it. That ones it is supplied the buyer is indebted to the supplier, and it does not matter when the buyer settled its indebtedness to the seller as same is a debt incurred by the buyer which shall be settled. That in any case, the debt was a result of the Defendant’s breach of its contract with the Plaintiff. In respect of the case of Kwadjo vs. Speedline (supra) relied on by his opponent. Counsel for Plaintiff said same is not applicable because, there was no evidence the items listed on the said invoice were ever supplied to the Plaintiff therein. Additionally, that the case of Environmental Development Group (supra) has no relation or bearing whatsoever to the instant appeal in that, the case was about a dispute in a construction contract wherein, the Plaintiff claimed special damages for loss of profit or anticipated profit if the project had been completed. That the instant appeal does not have such a scenario, and is not for loss of anticipated profit but rather reimbursement for a debt or cost it has incurred as result of the Defendant’s breach of contract. He urged this Court to affirm the judgment. For reasons of convenience, the parties to the appeal shall bear the description which they had in the trial Court. Defendant/Appellant shall be referred to as Defendant whilst the Plaintiff/Respondent the Plaintiff. The nub of this appeal is that the Plaintiff failed to prove that it was entitled to the Special damages of GH₡840,380 granted by the trial Court because it failed to prove that it had paid the amounts stated on the invoices. A good starting point is an acknowledgement that both parties agree and the trial Court found as fact that there was a breach of contract in that the Defendant failed to deliver fully the quantity of items contracted albeit full payment under the contract had been made to the Defendant. Every breach of contract entitles the injured party to recover damages for the loss suffered. The general objective of awarding damages is to place the injured party as far as money can do it, in the position they would have been in if the breach had not occurred or if the contract had been performed. That is the principle of restitutio in integrum as espoused in the case of Royal Dutch Airlines (KLM) and Another vs Farmex Ltd (1989- 90) 2 GLR 623. The law recognizes several types of damages recoverable in an action for breach of contract but of concern to us in this case is that of special damages which is best understood when a distinction is drawn with General Damages. Chitty on Contract 29th Edition pages 1426 - 1427, illustrates this when it states that whereas General damages are awarded in respect of such damage as the law presumes to result from the infringement of a legal right or duty, Special damages is that precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in his pleadings. And in the case of Monarch SS Co. vs Karlshmans Oljefabriker (1949) AC 196 at page 221 relied on by the trial Court, the difference is stated as follows: “The distinction there drawn (in Hadley vs. Baxendale) is between damages arising naturally (which means in the normal course of things) and cases where there are special and extraordinary circumstances beyond the reasonable provision of the parties. In the latter event it is laid down that special facts must be communicated by and between the parties. The distinction between these types is usually described in English law as general and special damages” To that we will add the definition by Bowen LJ in Radcliffe v Evans [1892] 2 QB 524 at 528 in the following words: “… Lest we should be led astray in such a matter by mere words, it is desirable to recollect that the term “special damage” which is found for centuries in the books is not always used with reference to similar subject-matter, nor in the same context. At times (both in the law of torts and of contract) it is employed to denote that damage, arising out of the special circumstances of the case which if properly pleaded may be superadded to the general damage which the law presumes in every breach of contract and every infringement of an absolute right. In all such cases, the law presumes that some damage will flow from the ordinary course of things from the mere invasion of the Plaintiff’s rights, and calls it general damage. Special damage in this context means that the particular damage (beyond the general damage) which results from the particular circumstances of the case, and of the Plaintiff’s claim to be compensated for which he ought to give warning in his pleadings in order that there may be no surprise at the trial. But when no actual positive right (apart from the damage done) has been disturbed, it is the damage done that is the wrong; and the expression used of this damage denotes the actual and temporal loss which in fact occurred. Such damage is called variously in old authorities “express loss”, “particular damage”…, “damage in fact”, “special or particular cause of loss.” A party who seeks special damages from the Court is required to plead it specifically, particularize it and prove it. Dr Twum JSC (as he then was) in the course of the judgment in the case of Delmas Agency Ghana Ltd v Food Distributors International Ltd [2007-2008] SCGLR 748 at 760 held as follows: “… Where the Plaintiff has a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate.” Also, in the case of The Susquehanna (1926) AC 655, Lord Dunedin held as follows: “If there be any special damage which must be attributed to the wrongful act the special damage must be averred, pleaded and proved, and if proved will be awarded. If the damage is general then it must be averred that such damage was suffered but the quantification is a jury question.” Additionally, in the case of Bonham-Carter v. Hyde Park Hotel Ltd. (1948) 64 T. L. R. 177 it was held that: "Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court, saying: 'This is what I have lost; I ask you to give me these damages.' They have to prove it." The Plaintiff did plead and particularize the special damages he claimed but did they prove it? We think they did. The standard of proof on a claimant is as set out in Sections 11(1) and Section 11(4) of the Evidence Act, 1975 (N. R. C. D 323). Section 11 (1), of NRCD 323 deals with the burden of producing evidence as follows:- “For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue’’. Also Section 11(4) of the Evidence Act provides that: “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of a fact was more probable than its non-existence.’’ In effect the obligation on a claimant seeking damages is the usual standard in civil cases, and proof is on the preponderance of the probabilities and nothing more. Minute accuracy is not essential in proving the special damages claimed, but the claimant must indicate the method by which the figure claimed is calculated. The purpose is to enable the defendant to know what case he is up against and to obtain evidence for his defence. The law on the point is stated in Halsbury's Laws of England (3rd. ed.), Vol. 11, p. 305, paragraph. 494 as follows: "Although minute accuracy is not essential in pleading or in proving the special damages claimed, the special damage which is pleaded should make clear what measure of damage is relied on; the method whereby the figure claimed is calculated should, in appropriate cases be set out so as to enable the defendant to know what the case is against him and to obtain evidence for his defence. It is not sufficient merely to plead a certain figure." So what evidence was led by the Plaintiff? The Plaintiff, provided Exhibit ‘J1’ and ‘J2’ found on pages 73 and 74 of the ROA. Exhibit ‘J1’ has the Post Box number, telephone number, Fax, E-mail and Web address of Latex Foam Limited. It is headed “Latex Foam VAT Invoice” and has the TIN number of the company. It has an invoice number as #407380. The date is 8th September 2016. The client name is Volta RCC- GETFUND; JINS COMPANY LTD. The goods are indicated as 4,566 HD1 Mattress s/s and 50 Set of Bunk Bed & mattresses. The unit price of the mattress is indicated as GH₡180. Total amount stated as GH₡821,880. The quantity of bunk beds is stated as 50 and the unit price GH₡370 totaling GH₡18,500. The cumulative total price exclusive of VAT and NHIL comes to GH₡840,380. Clearly the method by which the amount claimed was arrived at has been set out. Exhibit ‘J1’ has stamped on it “Latex Foam SUPPLED”, and there is a signature inscribed in the stamp. Attached to Exhibit ‘J1’ is Exhibit ‘J2’ which is described as “Latex Foam Way Bill” with a waybill number of #407380 which is the same as the invoice number and of even date being 8th September, 2016. The Account number is written as “#6350” on both sheets and the Client Name is as indicated on Exhibit ‘J1’ mentioned above. In the center of the sheet, is a stamp with the words ‘Latex foam SUPPLIED”. Then at the bottom of the waybill are imprinted the following words: “BY SIGNING ON THIS WAYBILL: I acknowledge and confirm that all items listed on waybill are received in good condition and as specified by quantity and brand.” Provision is made for the signature of the person who received the items and it is signed accordingly. There is no suggestion by the Defendant that these exhibits ‘J1’ and ‘J2’ were manipulated or should not be taken as authentic and emanating from the source indicated there on. They convey an impression of regularity and there is no need to believe otherwise. Not only do the Vat invoice and waybill referred to above reflect that the items were, procured and delivered to the Plaintiff or their authorized representative but same is acknowledged by the Defendants themselves. In her witness statement found on page 89 of the ROA, specifically Paragraphs 18 and 19 the Defendant per its Managing Director Faustina Dela Doh, testified as follows: Paragraph 18:” just as the Plaintiff claims that it was not responsible for any loss incurred as a result of foreign exchange fluctuations, as same was not part of the said contract, the same way the defendant is also not obliged to reimburse the plaintiff for any of the items it procured in the local market as same was not part of the said contract. Paragraph 19: In spite of the fact that the Plaintiff informed the defendant of its intention to procure the said remaining bunk beds and mattresses from the open local market the Defendant did not give its consent to same and therefore it is not obliged to reimburse the Plaintiff for any such purchase as it never authorized it to do so for any reimbursement.” Additionally in the Defendant’s counterclaim, they sought the following reliefs: “a. A declaration that the Defendant is not obliged to reimburse the Plaintiff with the cost of the remaining items it procured from the local market as same was not part of the said contract. c. A declaration that the Defendant did not give its consent or authority to the plaintiff to purchase the remaining items from the local market for reimbursement. Indeed during cross examination of the Defendant’s Managing Director she admitted that the Plaintiffs had bought the remaining items from the open market. The following transpired (reference page 175 of ROA). “Q: I am putting it to you that the Plaintiff had to procure the remaining bunk beds one year nine months after the contract and the price at that time is the invoice or receipt that was communicated to you in Exhibit ‘J’ dated 13th September, 2016. A: Yes he went to the open market to buy only the mattresses and fifty (50) beds for GH₡840,380 just for the mattresses and then the fifty beds. The total contract for the Defendant company was GH₡ 795,553.00 and we requested a total of just GH₡170,000 in total to complete the contract and to execute the contract and the plaintiff said it was not part of the contract but he went ahead to purchase only mattresses for GH₡840,380. So it was a bad contract we both signed.’ Earlier on the Defendant during cross examination had also testified that notwithstanding the fact that they had gone to Ashfoam to purchase mattresses, the Plaintiff went and paid for delivery of similar mattresses from Latex foam. The following transpired on page 168 of ROA: “Q: The letter was written on 20th July, 2016 and the contract was signed in January, 2015, so this letter came after the contract is that not so? A: Yes my lord. But the Plaintiff would not listen to me when I went to him to inform him that we have purchased mattresses, he sent somebody to Latex foam or Ashfoam and paid for delivery.” The above apart, from the evidence before us, Defendant was cognizant of the fact that the items had been supplied by the Latex Foam company to the schools in the Volta Region. On the 13th of September, 2016 per a letter, (Reference page 44 of ROA) the Plaintiff informed the Defendant that they had procured the items, from Latex Foam Rubber products who supplied the items to the various Senior High Schools in the Volta Region. The Defendants did not challenge this either by way of response or in cross examination and same are deemed admitted. Clearly then, the Defendant is not in doubt that the items in issue have not only been purchased and procured by the Plaintiff but supplied to the schools in the Volta Region. Could these items have been provided free of payment by Latex foam? We do not think so and there is no evidence to suggest that the transaction was other than a commercial/business transaction. We observe that Counsel for Defendant in submissions in reply to that of the Plaintiff denied that they admitted that the Plaintiff had procured the items, but our reading of the ROA as indicated above clearly shows otherwise. Counsel for Defendant also argued in written submissions that if even they admitted that the Plaintiff procured the items it was no reason for the Plaintiff not to prove that they actually paid for the items. They stated in their reply to the written submissions of Plaintiff as follows: “It is therefore erroneous for the respondent to state that it was because the appellant had admitted that it had procured the said items from the local market that was why there was no need for it to have proved the actual payment of same at the trial, particularly when same had been rejected by the appellant who had stated that it took an invite (SIC invoice) from Ash foam and the said items were cheaper there compared to what the Respondent purported to have bought from the local market.” We understand the above submission to be in other words that, because defendant had obtained an invoice for the items from Ashfoam which showed prices lower than that bought by Plaintiff from Latex, it amounted to rejection of Plaintiffs prices and so Plaintiff had to prove that they had paid for the items bought. But the counsel for Defendant is arguing in circles, in that Defendant’s mere piece of evidence that the remaining items could be obtained cheaper at Ashfoam cannot be expected to elicit a response or reaction from Plaintiff proving payment of the items on the Latex foam invoice. The Plaintiffs evidence relied on to prove that they were entitled to be granted the special damages they claimed were Exhibit ‘J1’ and ‘J2’. As stated in Halsbury's Laws of England (supra) minute accuracy is not essential in proving the special damages claimed. Therefore if Counsel for Defendant was dissatisfied with Exhibits ‘J1’ and ‘J2’ he had to extract that detail from Plaintiff by way of adroit cross-examination on the point if he disputed that payment had been made. A party who omits to cross examine a witness on a vital testimony of such witness is deemed to have accepted the veracity of the testimony and further evidence would not be required on the issue. Ghana Port And Harbours vs Nova Complex (2007-2008) SCGLR 806. Quagraine vs Adams (1981) GLR 599; Wiafe vs. Kom (1973) 1 GLR 240 Akyea Djamson vs Duagbor (1989-90) 1 GLR 223 refers. We also mention the dictum of Lord Herschell in Browne v Dunn (1893) 6 R. 67, in which he observed as follows: “… I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses …” It bears saying that not only did Counsel for Defendant fail to cross examine the Plaintiff on whether payment had been made on the invoice but it was also neither raised in their pleadings nor set down as an issue for trial. We are also unable to accept Counsel for Defendant’s submission that by virtue of their Ashfoam invoices reflecting prices lower than that contained in Plaintiff’s Exhibit ‘J1’ and ‘J2’, they had rejected the prices on the said exhibits thereby warranting proof of payment by plaintiff of the items on the said exhibits. On the basis of the above, we do not hesitate to say that Defendant did not provide any justification for Plaintiff to provide further evidence on the said exhibits. In any case, whatever the purpose of the invoice from Ashfoam, Plaintiff was not under an obligation contractual or otherwise to purchase the short delivered items from Ash form Limited. The trial court in dealing with the Defendants claim that the items were purchased from the local market without their consent, rightly stated the position of the law regarding the obligation on an innocent party when the seller fails to deliver. Such a Plaintiff was entitled to take reasonable steps to mitigate its losses by purchasing the remaining items from the local market, particularly in this case, where the Plaintiff had waited for almost two years for the Defendant to fulfill its side of the bargain. Additionally, that although the Plaintiff was to act reasonably in mitigating its losses, it was under no obligation to purchase items from any other than their preferred source in the performance of his obligations under the main contract. And to clarify the principle of mitigation we say that the principal meaning of the term ‘mitigation’ concerns avoiding the consequences of a wrong. The first and most important rule is that the Plaintiff must take all reasonable steps to mitigate the loss to him consequent upon the Defendant’s wrong and cannot recover damages for any such loss which he could have avoided but failed through unreasonable action or inaction to avoid. Put shortly the Plaintiff cannot recover for avoidable loss. The second rule is the corollary of the first and is that where the Plaintiff does take reasonable steps to mitigate the loss to him consequent upon the Defendant’s wrong, he can recover for loss incurred in so doing. This is so even though the resulting damage is in the event greater than it would have been had the mitigating steps not been taken. This well-established rule finds its most authoritative expression in the speech of Viscount Haldane L. C. in the leading case of British Westinghouse Co. vs Underground/Deck Ry (1912) A. C. 673 at 689 where he said: “The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a Plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach and debars him from claiming any part of the damage which is due to his neglect to take such steps.” On the question of duty: Pearson L. J. in Darbishire vs Warren (1963) 1 WLR 1067 gave the proper analysis when he said. “It is important to appreciate the true nature of the so called duty to mitigate the loss or duty to minimize the damage. The Plaintiff is not under any contractual obligation to adopt the cheaper method; if he wishes to adopt the more expensive method he is at liberty to do so and by doing so he commits no wrong against the Defendant or anyone else”. From the above, the invoice from Ashfoam relied on by Defendant was clearly of no evidential value in either proving that the Plaintiff was not entitled to the relief of special damages on the basis of the price of the items, or that the Plaintiff was required thereby to prove that it had paid for the items indicated on the invoice and waybill as supplied to the Plaintiffs. That said, in law, the payment arrangement between the Plaintiff and Latex Foam is a matter between a buyer and seller. The law gives the parties the right to decide when payment for goods delivered will be made. Section 22 (2) of the Sale of Goods Act provides: Section 22. Payment concurrent with delivery. “Unless otherwise agreed, the buyer shall be ready and willing to pay the price in exchange for delivery of the goods.” The exception words “Unless otherwise agreed” are here emphasized. To the extent that the said Exhibits were stamped “SUPPLIED” and a specific figure indicated on it as to how much the items supplied cost the Plaintiff, the presumption is that seller and buyer are agreed on payment. There is nothing to suggest that the two companies acted anything other than regularly. We are of the opinion that The Trial Court was entitled to make its evaluation by balancing the probabilities and coming to its conclusion which in our view it rightly did. We have taken note of the case of Speed line Stevedodring Co. Limited vs Kwadjo (2017- 2018) SCLRG 101 referred to by Counsel for Defendant in his written submissions to this Court. But in our view, the circumstances of that case and issues raised determined the decision of the Court. Unlike in the case on hand, in the Speedline case, after the accident, and the acceptance of responsibility for the loss by the Defendant, a dispute arose over the appropriate quantum to be paid to the Plaintiff. At the commencement of the trial, the Defendant per its Counsel informed the court that it would not contest the issue of negligence but contest the quantum of damages to be awarded to the Plaintiff. The Plaintiff therefore bore the responsibility of providing appropriate and acceptable answers and concrete proof in order to be awarded damages by the court of law. Further, whereas in the Speedline case, there was an expression on the invoice “Total Payable: 2,460.00. ” thus making it clear that no money had been paid at all, in the instant case, that was not so and in our view, this case is not apposite. Similarly, unlike the case of Environment Development Group vs Provident Insurance Co. Ltd Civil appeal No. JS/31/2019 dated 18th March, 2020, the claim of the Plaintiffs herein cannot be classified as speculative. Our duty as an appellate Court to review the records in its entirety, in this case the pleadings , documents exhibited and the submissions of the parties and make a determination on the correctness or otherwise of the trial judge’s conclusion has been spelt out in myriads of cases, few of which are Ayeh vrs Akakpo vrs Ayaa Iddrisu (2010) SCGLR 891, Akuffo Addo vrs Cathline (1992) 1 GLR 377 and Tuakwa Vrs Bossom (2001-2002) SCGLR 61, Obeng & Others vrs Assemblies of God Church, Ghana (2010) SCGLR 300, Djin vrs Musa Brako (2007-2008) 1 SGLR685. Simply stated our duty demands we scrutinize the evidence, both oral and documentary whether the trial judge was justified both in law and on the facts in her conclusions and judgment. Where there was no justification our duty is to rectify such errors, noting that we are to interfere with the trial judge’s findings only when the records irresistibly so demand. We have carefully read the record of appeal and attended to the written briefs submitted to us by the parties and are satisfied that the Plaintiff led cogent evidence that satisfies the requirement of the law that is on the balance of the probabilities, in order to justify the Defendant being condemned in their pocket. We are of the opinion that the award of damages under the head of special damage was based on the application of right principles and the Defendant has not in the slightest persuaded us to interfere with the conclusion of the trial Court. This appeal is accordingly dismissed. Costs of GH₡30,000.00 awarded in favour of Plaintiff/Respondent. …………………………………………………… JUSTICE SOPHIA ROSETTA BERNASKO ESSAH (MRS) (JUSTICE OF THE COURT OF APPEAL) SGD. SGD. I AGREE ……………………………………… SENYO DZAMEFE, J. A (JUSTICE OF THE COURT OF APPEAL) SGD. I ALSO AGREE ………………………………………. GIFTY AGYEI ADDO, J. A (JUSTICE OF THE COURT OF APPEAL) COUNSEL: RANDY BRAFO FOR THE DEFENDANT/APPELLANT HARUNA MAAMAH FOR PLAINTIFF/RESPONDENT 23