Sahdo Industries Limited v Sulu Investment Limited (A26/14/22) [2025] GHADC 125 (14 May 2025)

IN THE DISTRICT COURT AT LA HELD ON WEDNESDAY THE 14TH DAY OF MAY, 2025 BEFORE HER WORSHIP ADWOA BENASO ASUMADU-SAKYI, SITTING AS MAGISTRATE SUIT NO: A26/14/22 SAHDO INDUSTRIES LIMITED SPINTEX ROAD BEHIND COCA COLA CO. LTD ACCRA >>> PLAINTIFF VRS. SULU INVESTMENT LIMITED SPINTEX, ACCRA >>> DEFENDANT PARTIES: Plaintiff represented by Mukesh Pandey Defendant represented by Gurdeet Singh LEGAL REPRESENTATION: Akosua Kyinkyinapa Christian holding brief for Alfred Paapa Darkah for the Plaintiff Daniel Nii Aryee Ankrah holding brief for Kwaku Owusu Agyemang for the Defendant JUDGMENT _______________________________________________________________ INTRODUCTION Counsel for the Plaintiff Company filed this instant suit on the 11th of February, 2022 against the Defendant and prayed for the following reliefs; 1. An order for the recovery of an amount of Ninety-Six Thousand, Nine Hundred and Fourteen Ghana Cedis (GH¢ 96,914.00). 2. Interest on the above-mentioned amount at the prevailing bank rate from July, 2021. 3. Cost including legal fees of the Plaintiff. On the 29th of May, 2022 the court granted the Plaintiff company leave to amend the writ of summons and statement of claim and same was filed on the 26th of May, 2022 and prayed for the following reliefs; 1. An order for the recovery of an amount of Ninety-Six Thousand, Nine Hundred and Fourteen Ghana Cedis (GH¢ 96,914.00) 2. Interest on the above-mentioned amount at the prevailing bank rate from July, 2021 3. Cost including legal fees of the plaintiff On the 31st of May, 2022 the court ordered parties to file their respective witness statements. Appearance was entered on behalf of the Defendant Company on the 28th of June, 2022 and a statement of defence and counterclaim was filed on the 18th of July, 2022 where the Defendant Company sought for the following reliefs; a. A declaration that the Plaintiff breached its fundamental duty under the agreement for the supply of goods b. An order directed at the Plaintiff to pay the sum of GH¢ 76,552.70 being the cost of defective, rejected and short preforms received by the Defendant for both 17gm and 13gm preforms. Preforms GH¢ 17gm 61,552.70 13gm 15,000.00 TOTAL 75,552.70 c. Damages for breach of contract d. Cost of legal fees. The Plaintiff Company filed a reply and defence to counterclaim on the 1st of September, 2022. The Plaintiff Company representative Mukesh Pandey filed a witness statement on the 15th of July, 2022 and the Defendant Company representative also filed a witness statement for one Manabhjan Pattnaik on the 8th of November, 2022. Hearing commenced on the 24th of January, 2024 and it ended on the 26th of November, 2024. PLAINTIFF COMPANY CASE The Plaintiff Company’s which is a limited liability company states that sometime in May 2021, its managing director, Mukesh Kumar Pandey agreed to mould bottles at a rate of GH¢ 0.07 for the Defendant Company. It goes on to state that as part of the agreement, the Defendant Company provided a total of 1,363,500 pieces of preform for the moulding of the bottles. It also states that it informed the Defendant Company that due to thinness of the preform that the Defendant Company provided, there was a likelihood of at least 10% of the preform getting damaged and that this was communicated to the managing director of the Defendant Company. This condition was accepted by the managing director of the Defendant Company and he gave the Plaintiff Company approval to proceed with the moulding since it had timelines to adhere to. The Plaintiff Company states that from 10th May, 2021 to 2nd July, 2021, it cumulatively supplied the Defendant Company with a total of 1,361,100 bottles but the Defendant Company failed to make payment. It also states that it was compelled to cease the supply of the bottles as it became apparent that the Defendant Company did not intend to adhere to their part of the agreement by paying for the bottles it had supplied. The Plaintiff company states that it incurred an additional cost of GH¢ 1,130 and GH¢ 10,507 for the procurement of jumbo sacks and linear bags respectively upon the direction of the Defendant company for the storage of the manufactured bottles. The Plaintiff company states that the Defendant company’s total indebtedness stands at GH¢ 106,914 being the cost of manufacturing 1,361,100 bottles and the procurement of jumbo sacks and linear bags. It also states that despite several calls on the Defendant company to pay the amount owed, it has refused and only sent a cheque to the tune of GH¢ 10,000 as remuneration for the work done without any reference to how the outstanding balance of GH¢ 98,914 would be paid. The Plaintiff Company states that it caused its lawyers to issue a demand notice to the Defendant on the 24th of November, 2021 but same was not adhered to. DEFENDANT COMPANY’S CASE The Defendant Company states that sometime in May 2021, it entered into an agreement through its managing director with the Plaintiff Company to blow 750ml (17mg) and 500ml (13gm) of preform moulds into specific size and shapes of bottles at an agreed price of 0.07p. It goes on to state that it acquired 17gm preforms mould at a cost of 0.22p and the 13gm preform moulds at a cost of 0.15pm per preform. The Defendant Company states that pursuant to the agreement it provided the Plaintiff Company with 1,363,500 pieces of preforms. The Defendant company states that out of the 1,363,500 17gm pieces it provided to the Plaintiff company, only 1,022,600 pieces were blown according to the specifications agreed by the parties and this brought the Defendant company’s liability under the contract to GH¢ 71,582.00. It conducted further inspections and it came to light that 245,500 bottles out of the 1,022,600 supplied to it by the Plaintiff Company were defective with either swellings on their neck, bent, or some other issues, making then unfit for purpose at a cost of GH¢ 54,010 (245,500*0.22p). The Defendant Company also conducted further inspections and it came to light that the Plaintiff delivered bottled with a shortage of 34,285 pieces short in preforms at a cost of GH¢ 7,542.7 (34,285*0.22p). This brings the total to 279,785 pieces of defective and unsupplied bottles and that there was no agreement as to the 10% likelihood of preforms being damaged due to the thinness of the preforms supplied. The Defendant Company states that the Plaintiff Company later sent it 61,115 pieces of preforms it had damaged. The Defendant company also states that it issued a cheque of GH¢ 10,029.30 to the Plaintiff company which is the amount outstanding after reconciliation and set off which amount the Plaintiff has since received. The Defendant further states that it issued the cheque to bring an amicable settlement between the parties and it was on this premise that Defendant Company suggested to the Plaintiff company to only pay cost of damages of the 279,785 preforms at the cost of 0.22p per mould bringing the total to GH¢ 61,552.70. Defendant company states that it supplied the Plaintiff company with 100,000 (13g) pieces preform moulds for blowing out into bottles, however, 93,000 pieces of bottles were identified by the Defendant company as defective at a cost of GH¢ 13,950 (93,000*0.15p). In addition, 40 pieces of bottles provided by the Plaintiff company were short in preform, at a cost of GH¢ 6 (40*0.15p). Defendant company also states that the Plaintiff company further damaged 6,960 preforms of the total preforms supplied by the Defendant at cost of GH¢ 1,044 (6,960*0.15p). It also states that it incurred a total loss of GH¢ 15,000 (13,950 +6+1,044) for the 13gm preform supplied to the Plaintiff, of which the Defendant did not get a single bottle fit for purpose. It finally states that it is not indebted to the Plaintiff Company and that the Plaintiff Company is not entitled to the reliefs as contained in the amended claims and particulars. DISCUSSION OF THE LAW The law is trite that a party who asserts a fact assumes the responsibility of proving same and thus the burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by the virtue of sections 10,11 and 12 of the Evidence Act, 1975 (NRCD 323). The above stated provisions have received judicial blessings by the Supreme Court who has pronounced on them in the past to be the nature and standard of proof in civil cases. This position of the law has been reiterated in the case of Ackah v. Pegrah Transport Ltd And Others [2020] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held as follows: “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. The method of producing evidence is carried and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).” See the case of Ababio v. Akwasi IV [1994-1995] GBR 774 The Court has a duty to examine the evidence on record and determine whether the Plaintiffs have met the burden of proof. It is settled law that he who alleges must prove his case on the strength of his own case. This principle was enunciated in the case of Owusu v. Tabiri and Another [1987-88] 1 GLRR as follows: “It was a trite principle of law that who asserted must prove and win his case on the strength of his own case and not the weakness of the defence”. Issues for determination 1. Whether or not the parties agreed that the margin of damage was at least 10% of the total preforms supplied under the agreement. 2. Whether or not the Plaintiff damaged more than the 10% of the preforms agreed to under the agreement. 3. Whether or not the Defendant was in breach of the contract by failing to pay the outstanding debt owing to the Plaintiff. 4. Whether or not Plaintiff is entitled to the payment of damages for breach of contract. 5. Whether or not the Plaintiff is liable for the cost of defective, rejected and short preforms supplied to the Defendant. I will discuss the first issue whether or not the parties agreed that the margin of damage was at least 10% of the total preforms supplied under the agreement. Before I begin with my discussion on the first issue, I will first talk about whether or not per the terms of the agreement; the supplied preforms were to be blown into specific size and shapes of bottles. The Plaintiff’s case is that in May 2021, its managing director, Mukesh Kumar Pandey agreed to mould bottles at a rate of GH¢ 0.07 from a total of 1,363,500 pieces of preforms supplied by the Defendant Company. The Defendant’s company on the other hand states that it entered into an agreement with the Plaintiff Company to blow preforms moulds into specific size and shapes of bottles. During cross examination of the Plaintiff’s witness on the 24th of January, 2024 by Counsel for the Defendant Company, the Plaintiff witness maintained the assertion of the Plaintiff Company and his testimony was not discredited as follows; Q. The Defendant Manager approached you to blow 1,361,100 pieces of 17gl preform to mould into 750ml and shape of bottles and the agreed price was 0.07 pesewas. Is that so? A. There was no specific quantity mentioned when the Defendant Manager approached us. They told us to blow 750ml bottles and 500ml bottles with the blowing cost per bottle 7 pesewas Q. In your agreement you were to deliver a sum of 1,363,500 pieces of 750ml bottles according to their specific size and shape. Is that so? A. No that is not so. From the unchallenged testimony by Plaintiff witness it is clear that there was is no agreement for the supplied preforms to be blown into specific size and shapes of bottles as being claimed by the Defendant. I hereby hold that there was no agreement between the parties for the preforms to be blown into specific sizes and shapes. I will now discuss the first issue; that is Whether or not the parties agreed that the margin of damage was at least 10% of the total preforms supplied under the agreement. The Plaintiff Company’s case that it was agreed as the standard practice dictates in their business that the agreed percentage of the preforms likely to be damaged was 10% of the total preforms to be supplied. The Plaintiff Company had the following to say in its amended statement of claim as follows; 6. Plaintiff says that the 1st Defendant was informed that due to the thinness of the preform that has been provided by him, there was likelihood of at least 10% of the preform getting damaged. 7. Plaintiff says further that despite the caution, the 1st Defendant gave approval for the Plaintiff to proceed with the moulding since they had timelines to deliver them. 8. Plaintiff avers that from 10th May, 2021 to 2nd July, 2021, it cumulatively supplied the Defendants with a total of 1,361,100 bottles of which they did not make payment for. 9. Plaintiff states that it was compelled to cease the supply of the bottles as it became apparent that the Defendant did not intend to adhere to their part of the agreement. The Defendant Company denied this fact and stated as follows in its statement of defence; 5. Defendant denied paragraphs 6,7,8 and in further denial avers that, out of the 1,363,500 (17gm) pieces provided by the Defendant Company to the Plaintiff, only 1,022,600 pieces were blown according to the specifications agreed by the parties bringing the Defendant’s liability to the Plaintiff under the contract to GH¢ 71,582. The Plaintiff Company therefore bears the burden to prove that the agreed margin of error was 10%. In support of its case, the Plaintiff Company’s manager by name Mukesh Kumar Pandey, mounted the witness box and relied on his witness statement on the 24th of January, 2024 and repeated the assertions the Plaintiff Company had made against the defendant company. I will repeat the relevant portions of the Plaintiff witness statement as follows; 6. That based on the agreement I informed the Director of the Defendant Company that due to the thinness of the preform that has been provided by him, there is a likelihood of at least 10% of the preform getting damaged. 7. That after informing Manabhanjab Pattnaik of the likelihood of damage as explained in the preceeding paragraph, he gave approval for the Plaintiff to proceed with the moulding since they had timelines to deliver them. The Plaintiff Company also attached Exhibit B which is a statement generated by Plaintiff Company detailing how much bottles were supplied to the Defendant Company and when they were supplied. It states that out of a total of 1,363,500 (16.5gms) preforms supplied by Defendant Company, 1,268,100 (750ml) were blown into bottles and supplied to the Defendant Company. It also states that out of 99,960 (13gms) preforms the Plaintiff supplied 93,000 (500ml) bottles to the Defendant Company from the 10th of May, 2021 to 2nd of July, 2021 and this brings the total number of bottles supplied to the Defendant Company to 1,361,100. The Plaintiff witness was cross examined by Counsel for Defendant Company on the 24th of January, 2024 and this is what ensued; Q. You stated in your witness statement that you supplied a total of 1,363,500 bottles to the Defendant. Is that so? A. Yes My Lady Q. What happened to the rest? A. In the process of blowing bottles that is when bottles are blown some preform gets damaged. The percentage of damage depends on the quality and sizes of preform and the size of bottle to be blown. It was agreed between the Director of the Plaintiff Company and the Defendant Company that the percentage of waste will not exceed 10% and the bottles that were supplied to the Defendant Company was more than 90% of the preform. So the wastage was within the agreement between the Plaintiff Company and Defendant Company. Q. You speak of a 10% marginal damage. Do you have any evidence to confirm that this was the agreement between the parties? A. I do not have a written agreement. It is a standard practice of the Company From the above it is clear that the parties did not have a written agreement and that thus it can be concluded that any agreement which took place between the parties was verbal. If this Court concludes that there was a verbal agreement between the parties, this does not mean that same is unenforceable. Section 11 of the Contracts Act, 1960 (Act 25) provides as follows; “Subject to this Act, and to any other enactment, a contract whether made before or after the commencement of this Act, is not void or unenforceable by reason only that it is not in writing or that there is no memorandum or note of the contract in writing.” It is trite that when courts are met with verbal contracts, in order to ascertain the real intention of the parties, the courts are enjoined to apply the objective test by looking at the words or conduct of the parties. In the case of Smith v. Hughes (1871) LR 6QB 597, Lord Balckburn adopted the principle enunciated in the case of Freeman v. Cooke (1848) 2 Exch. 654 as follows: “if, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believer that he was assenting to the terms proposed by the other party, and that the other party, upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.” I must therefore peruse the testimony adduced by the Plaintiff and conclude whether the parties agreed to a 10% margin of damage by inferring from their conduct. A careful perusal of the evidence adduced by Plaintiff witness during cross examination on the 24th of January, 2024 clearly indicates that even though the Plaintiff Company’s case was that its director informed the director of the Defendant Company, there was no written agreement on record that that was what happened between the parties but he maintained that there was a verbal agreement. This is what ensued; Q. You want us to believe that there was no written document that indicates the quality of the preforms that the Defendant brought to your Company to be blown A. There was no written document. It was a verbal agreement. The Defendant Company are also into plastic business so they were aware that when bottles are blown some of them will be damaged so there is no way they will enter into an agreement without discussing what will be destroyed. Q. Do you agree with me that such an important condition should have documented for future references. A. I do not agree. We never had similar experiences so there was no need to document same. Q. I suggest to you that there is no record of this 10% marginal damage because such an agreement was never reached between the parties A. There was an agreement between the two directors of the Plaintiff and Defendant Company He went on to testify that it was the standard practice in their business for 10% percent of blown preforms into bottles to get damaged and that it depends on the quality of the preforms to be blown. This is what he had to say; Q. According to you it is a standard practice that when a preform is blown there is a 10% marginal damage. Not so? A. That is so. Q. I put it to you that 10% is above the expected loss during blowing preform A. I do not agree. It depends on the quality of the preform and quantity to be provided. The analysis was done by the Plaintiff Company director and the Defendant Company director and this was communicated to the Defendant Company. Q. You want is to believe that there was no written document that indicates the quality of the preforms that the Defendant brought to your Company to be blown A. There was no written document. It was a verbal agreement. The Defendant Company are also into plastic business so they were aware that when bottles are blown some of them will be damaged so there is no way they will enter into an agreement without discussing what will be destroyed. Q. Do you agree with me that such an important condition should have documented for future references. A. I do not agree. We never had similar experiences so there was no need to document same. Q. I suggest to you that there is no record of this 10% marginal damage because such an agreement was never reached between the parties A. There was an agreement between the two directors of the Plaintiff and Defendant Company From the above discussion it is clear that there was no written agreement and as such the court has to apply the objective test by looking at the words or conduct of the parties. There is however evidence on record that the Plaintiff Company supplied some defective bottles to the Defendant between 10th of May, 2021 to 2nd July, 2021. It is the Plaintiff Company’s case that it delivered a total of 1,268,100 bottles out of the 1,363,500 (750ml) preforms supplied to it by the Defendant Company. This brings the quantity of damaged bottles to 95,400. The Plaintiff Company also states that it supplied 93,000 bottles out of the 99,960 (500ml) preforms, which brings the quantity of bottles damaged to 6,960. Thus the total quantity of damaged bottles are 102,360 which brings the percentage of damaged bottles to 6.994% and thus falls within the 10% being alleged to have been agreed by the Plaintiff. The Plaintiff also attached copies of the waybills it attached to the bottles it supplied and same indicates how much bottles were damaged and rejected by the Defendant. Despite rejecting some of the bottles, the Defendant Company kept on accepting bottles supplied from the Plaintiff Company for two months that is from the 10th May, 2021 and 2nd July, 2021. It is important to note that the bottles were not supplied all at once but in batches within the two month period and thus it would be more probable that the Defendant Company would have alerted the Plaintiff Company of the damaged bottles which was above the agreed margin of damage earlier and yet it kept on receiving the supplied bottles day in and day out. It can be inferred from the conduct of Defendant Company that the Defendant was agreeable to the quantity of damaged bottles which was being produced by the Plaintiff. There is also evidence on record that the Defendant Company witness testified that there was no communication of a likelihood of at least 10% of the preform getting damaged. This is what he had to say in his witness statement; 11. The Director of the Plaintiff Company did not inform me of a likelihood of at least 10% of the preform getting damaged due to the thinness of the preform supplied to it. He however admitted during cross examination that it was a usual thing for the margin of damage to be agreed on by parties in transactions of this nature even though he denied paragraph 6 of the Plaintiff Company’s statement of claim. This is what he had to say during cross examination on 14th October, 2024; Q. So you will agree with me that before a transaction of this kind is entered into by parties, the margin of damage is always agreed on by parties A. Yes Q. You further agree with me that in respect of this transaction being the subject matter of dispute the parties agreed on the margin of damages. A. Yes He also went on to state that there was a margin of damage when blowing preforms into bottles and that a maximum of 1% of damage occurs during this process. This is what he had to say; Q. So you are also aware that blowing of preforms into bottles comes with some margin of damage depending on the quality and the size of the preform A. Yes. With my experience, I am aware that a maximum of 1% damage occurs while blowing the preforms into the bottle. This same witness then changed his testimony and stated that the error of the damage depends on the quality of the preforms and the size of the preforms. Q. I suggest to you that, the blowing of preforms into bottles, the error of damage depends on the quality of the preforms and the size of the preforms. A. That is correct. If the preform quality is bad then the damage can go maximum 3% that as per my experience. Again when the Defendant Company’s witness was pressed further he stated that the margin of error agreed to was 2% but there was subsequent discussion to increase the margin to 5%. This is what he said during cross examination; Q. I put it to you that the margin of damage which was agreed on by the parties in respect of this transaction is at least percent of the total preforms supplied by the Defendant Company. A. No. Initially we had agreed for 2% and later they inform me that because the blowing machine are of substandard imported from China the damage should be agreed as 5%. There is a clear difference in the statement of defence of the Defendant and the admission of Defendant’s witness during cross examination. In the case of Obeng v. Obrempong [1992-1993] GBR part 3 @ page 1027 the Court of Appeal held that: “Inconsistencies, thought individually colorless, may cumulatively discredit the claim of the proponent of the evidence”. It must be noted that not every inconsistency makes a witness a stranger to the truth. A minor, immaterial, insignificant, little inconsistencies, conflicts and contradictions from many witnesses should not call for wholesale rejection of evidence. The court, if the evidence is overwhelming, could gloss over it. See the case of Effisah v. Ansah [2005-2006] SCGLR 943. However that is not the case in this instant case and this court will not gloss over it. This inconsistency in the Defendant Company witness testimony makes it more probable that there was a prior agreement between the parties on the margin of error. I hereby conclude that the testimony of the Plaintiff witness is more probable than that of the Defendant witness and as such from the conduct of the parties and the inconsistent testimony of the Defendant witness I conclude that the margin of error agreed to by the parties was 10%. The second issue to be discussed is whether or not the Plaintiff Company damaged more than the 10% of the preforms agreed to under the agreement. The Plaintiff Company’s case is that it supplied a total of 1,268,100(750ml) bottles and 93,000 (500ml) bottles out of a total 1,463,460 bottles which brings the total damaged bottles to 102,360 and this makes brings the percentage of damaged bottles to 6.994%. The Plaintiff Company in support of its case attached Exhibit B which is a statement it generated in respect of the how much and the date the bottles were supplied to the Defendant Company. On the 14th of March, 2024, the Plaintiff Witness was across examined by Counsel for Defendant Company and he maintained the Plaintiff Company’s case. This is what ensued; Q. Out of the 1,268,100 pieces of preforms 16.5grams of bottles you supplied to the Defendant only 1,022,600 bottles you supplied were delivered to according to the agreed specifications. A. The amount of 1,268,100 preforms was supplied to the Defendant according to the specifications and not 1,022,600. Q. I suggest to you that out of this same 1,268,100 bottles delivered to the Defendant a quantity of 245,500 bottles were unfit for purpose because they had defects on them. A. This is false. We supplied 1,268,100 bottles all in good condition. Q. I suggest to you that further delivered a quantity of 34,284 pieces of bottles to the Defendant which were short in preforms. A. No My Lady Counsel for Defendant Company asked Plaintiff witness which evidence the Plaintiff Company it was relying on in support of its case and this is what he had to say; Q. Can you show this Court which evidence you have provided to corroborate your claim that 1,268,100 pieces of preforms were made according to the agreed specifications. A. I have the waybills signed by the representative of the Plaintiff Counsel which is either me or another person for the Plaintiff Company. Q. I put it to you that waybills do not show whether a product has been supplied according to specifications but only shows the amount of products delivered to the buyer. A. The waybills signed by both the customer and supplier shows the quantity of goods supplied and facts that they are in good quality. The customer will return any defective goods with their own waybill if there is any defective goods. As such our waybill is valid to prove that the goods we supplied were all fit. The Defendant witness was cross examined on the 14th of October, 2024 and he admitted that Exhibit B and Exhibit 4 were the same. This is what he said; Q. Please have a look at Plaintiff exhibit B. You will agree with me that per Plaintiff exhibit B which a statement prepared by the Plaintiff in respect of this transaction the quantity of preforms you supplied to the Plaintiff and the quantity of bottles of bottles of both 500ml and 750ml if the same as per your exhibit 4. A. Yes. That is correct the total are the same Having admitted that exhibit B and Exhibit 4 are the same, I hereby conclude that the waybills tendered into evidence state that the Defendant Company rejected some bottles that were supplied by the Plaintiff Company. He however pointed to exhibit 5 as his evidence to corroborate his testimony that the Defendant Company rejected some of the bottles supplied to it. This is what he had to say during cross examination; Q. You further agree with me that you have no evidence on record to substantiate this claim. A. I do not agree to this because I have evidence on record Q. Can you please take your witness statement and tell this court the evidence that you have put in to support your claims A. Exhibit 5 attached is a transcript of my message on the record to the Plaintiff. On the 26th of November, 2024 the Defendant Company cross examination was continued and he admitted that Exhibit 5 does not specifically state that it rejected 245,500 bottles which it found as defective. This is what he said; Q. You will agree with me that your exhibit 5 is just a plea to help you salvage something from your suppose damage bottles A. No I don’t agree. My message to the Plaintiff was for their intervention towards the damaged bottles which they supplied to me out of the preforms supplied to them Q. You will agree with me that exhibit 5 does not state that out of the 1,258,100 750ml bottles that Defendant received from Plaintiff 245,500 were defective as you want this court to believe. A. My exhibit does not specifically mention this fact but, me and Mr. Sahdo were aware that this is the damaged bottles we received out of the preforms we supplied The Defendant Company witness then moved on to the waybills as the evidence in support its case. This is what happened on the 26th of November, 2024; Q. You will further agree with me that your exhibit 5 does not state that the supplies that the Plaintiff made to the Defendant were in short of 34,285 pieces of preforms A. Yes but we have all the waybills to prove the number of preforms we had supplied and the waybills from the Plaintiff to prove the number of bottles they supplied and the number of damage preforms they supplied so when we deduct the number of bottles supplied and the number of damaged preforms we will arrive at the 34,285 shortage. The Defendant witness when pressed admitted that exhibit 5 does not state that all the 93,000 (500ml) supplied by the Plaintiff Company were damaged. This is what transpired; Q. You will also agree with me that your exhibit 5 does not state that all the 93,000 bottles of 500ml preforms supplied to the Defendant by the Plaintiff were damaged. A. Yes I agree but in my message I have generalized the damaged bottles by saying close to 300,000 bottles and I have not separated between 750ml and 500ml because all this discussion already happened between myself and Mr. Sahdo. I have carefully perused Exhibit 3 series and although it is stated that a number of bottles were marked as rejected, it does not state a specific number of bottles. This was admitted by Defendant witness during cross examination as follows; Q. Have a look at your exhibit 3 series, it clearly states rejected delivered to the Defendant by the Plaintiff.is that correct? A. No because it states the rejected in sacks, it does not specify the number of bottles Q. So your exhibit 3 series indicates the rejected bottles. Is that correct? A. Yes but without specific numbers This admission by Defendant Company witness makes the determination of the exact number of bottles damaged by the Plaintiff Company by this Court very difficult. It also raises a question as to whether these damaged bottles were returned to the Plaintiff Company. This is what transpired during cross examination of the Defendant Company witness; Q. You will agree with me that upon receipt of these rejected bottles from the Plaintiff you did not raise any objection to same A. That is not true. We have objected to the damaged bottles and Mr. Sahdo himself had visited our plant to see the kind of damage and it impact on our machines. Q. I put it to you that you did not raise any objection to the rejected bottles as indicated in your exhibit 3 series. A. That is not true. We had objected Assuming that an objection was raised by the Defendant Company, there is no evidence on record that these alleged damaged bottles were returned to the Plaintiff Company. I will reproduce the relevant portion of Exhibit 5 as follows; Boss plz do something for the damaged bottles I have almost close to 300k pcs bottles which have swollen neck which I cannot use Is there any way we can sell them to anyone From the above it is clear that the Defendant Company still had the alleged damaged bottles in its custody and never returned them back to the Plaintiff Company. The Defendant Company therefore failed to adduce any evidence to establish its case. Thus this court only has to rely on the evidence adduced by the Plaintiff Company in support of its case. Exhibit B series which are a series of waybills signed by representatives of both parties indicates the quantity of bottles supplied and those damaged and rejected by the Defendant Company. There is also evidence on record that the Defendant Company failed to raise any objection to the supplied bottles it considered damaged. Having received the supplied bottles, the Defendant Company received the risk in the goods. In the case of Mr. Philip Gyasi Appiah v. Surf Publications GH. Limited (2013) JELR 64545 (CA), the Court of Appeal held as follows: “… by receiving goods with their waybill, the risk in the goods were therefore transferred to the Plaintiff. It is my ruling that the plaintiff conduct in not rejecting the goods when he alleged found the defect in the sample took him out of the protection given under section 13(1) of Act 137 and his receipt of the goods with their waybill passed the risk in the goods to the plaintiff.” Accordingly I hereby accept the Plaintiff’s testimony and conclude that the Plaintiff Company supplied a total of 1,268,100(750ml) bottles and 93,000 (500ml) bottles out of a total 1,463,460 bottles which brings the total damaged bottles to 102,360 and this makes brings the percentage of damaged bottles to 6.994% which is within the 10% of the margin of damage of preforms agreed to under the agreement. The next issue to be discussed is whether or not the Defendant was in breach of the contract by failing to pay the outstanding debt owing to the Plaintiff. Having already concluded that there was no agreement as to the specific size and shape of the bottles to be produced under the agreement and the Plaintiff Company supplying a total of 1,361,100 bottles at a price of 0.07pesewas, it is clear that the Defendant Company was in breach of contract by failing to pay the outstanding purchase price for the bottles supplied. In the case of Jidem Security v. Bulk Oil Storage and Transportation (2018) JELR 65596 (HC), the court held that “A breach of contract is committed when a party without lawful excuse fails or refuses to perform what is due from him under the contract, or perform defectively incapacitates himself from performing.” The Plaintiff Company’s case is that the Plaintiff issued a cheque to the tune of Ten Thousand Ghana Cedis (GH¢ 10,000.00). The Defendant Company however stated that it issued a cheque of Ten Thousand and Twenty Nine Ghana Cedis and Three pesewas (GH¢ 10,029.3). Unfortunately both parties failed to attach a copy of the cheque and thus the court is left with no option than to peruse the testimony adduced on the matter. On the 26th of November, 2024 Counsel for Plaintiff Company cross examined the Defendant Company witness on this fact and his testimony was not discredited but he changed the amount from GH¢ 10,029.3 to GH¢ 10,029.00. This is what transpired; Q. I finally put it to you that out of defendant’s debt of GH¢ 106,941.00 owing to the Plaintiff, Defendant has only paid GH¢ 10,000.00 remaining a balance of GH¢ 96,914.00. A. It is not true. The GH¢ 10,029.00 cheque which I sent to the Plaintiff I had given detailed calculation in which I even did not deduct the value of 500ml preforms cost looking into our personal relationship. Q. I am putting it to you that at no point in time did you demand from the Plaintiff to replace or pay you the supposed damaged bottles. A. That is not true. Even at time of sending the final amount I had drafted a letter and I had given all the details regarding the damage and mentioned that the cost of the damaged bottles and preforms was beyond 5% of the agreed waste which should be recovered from the Plaintiff. The Plaintiff collected the cheque and refused to acknowledge the letter. I hereby conclude that the Defendant Company having issued a cheque to the tune of Ten Thousand and Twenty and Nine Ghana Cedis (GH¢ 10,029.00), it breached the contract by failing to pay the outstanding amount of Eighty Five Thousand Two Hundred and Seventy Seven Ghana Cedis (GH¢ 85,277) for the bottles supplied. The next issue to be discussed is whether or not Plaintiff is entitled to the payment of damages for breach of contract. Damages refer to the compensation awarded to a party who has suffered harm or loss as a result of another party’s actions. The compensation awarded can vary depending on the circumstances of the case. The damages awarded should provide reparation for the wrongful act and all the natural and probable consequences of the Defendant’s act. Special damages must be pleaded and particularized and then proved by admissible evidence otherwise it could not be recovered. The damages being claimed by the Plaintiff in the instant case is in the form of general damages although the Plaintiff failed to state same. In the case of Klah v. Phoenix insurance Company Limited (2012) 2 SCGLR 1139 the Supreme Court held that general damages described as arising by inference of law and therefore does not need to be proved by evidence. Thus since General damages arise by inference of the law and therefore need not be proved by evidence. See the cases of Royal Dutch Airlines KLM and Another v. Farmex [1989-90] 2 SCGLR 623 and Youngdong Industries Limited v. Roro Services [2005-2006] SCGLR 816. It is trite law that where there has been a breach, in general, a claim in damages is available to the innocent party for the loss suffered. In the instant case it is clear that the Plaintiff Company has suffered loss for the benefit of the value of the bottles supplied to the Defendant Company for which it had failed to pay. In the case of Mokab Company Ghana Limited v. Bragha Construction Limited (2023) 182 GMJ 458 SC, the Court held as follows: “On the measure if damages for breach of contract, the principle adopted by the courts in many cases is that of restitution in integrum, i.e., if the plaintiff has suffered damage that is not too remote, he must, as far money can do it, be restored to the position he would have been in had that particular damage not occurred: see Robinson v Harman (1848) 1 Exch 850 and Wertheim v. Chicoutimi Pulp Co. (1911) 1 AC 301 at 307. This means that the plaintiff has to be put into the position he would have achieved if the contract were preformed, and he is allowed to recover damages on the basis of returning him to the position before the contract was made.” This Court has already concluded that the Defendant was under an obligation to pay an amount of GH¢ 95277 for the bottles supplied and had failed to do so. Having concluded that the Defendant Company failed to pay the amount owed to the Plaintiff Company, the Defendant Company breached the contract and as such the Plaintiff Company is entitled to be compensated for damages for the breach of the contract. Taking into consideration the circumstances of the case and evidence adduced by the Plaintiff Company, I hereby order the Defendants to pay an amount of Ten Thousand Ghana Cedis (GH¢ 10,000) as compensation for damages for the breach of the contract. The last issue to be discussed is Whether or not the Plaintiff is liable for the cost of defective, rejected and short preforms supplied to the Defendant. The Plaintiff Company’s case is that due to the Defendant Company refusing to pay for the bottles supplied it decided to cease the supply of the bottles it had blown for the Defendant Company as per the agreement. It goes on to state that as a result of the stopping of the supply of the bottles it incurred an additional cost of GH¢ 1,130 and GH¢ 10,507 for the procurement of jumbo sacks and linear bags respectively for the storage if the manufactured bottles. To make matters worse the Defendant Company’s managing director refused to do anything about the bottles which the Plaintiff Company was keeping. Unfortunately the Plaintiff witness admitted during cross examination that there was no prior written consent from the Defendant Company in respect of the jumbo sacks and linear bags. This is what was said during cross examination of Plaintiff Company’s witness on the 24th of January, 2024: Q. It is your case that you incurred an additional cost of GH¢ 1,130 and GH¢ 10,507 for the procurement of Jumbo Sacks and linear bags. Is that correct? A. Yes My Lady Q. I put it to you that there is no evidence before this Honourable Court showing that the Defendant authorized you purchase the Jumbo Sacks and linear bag on its behalf. A. There is no such evidence. The supply of the Jumbo bags and linear bags is a small part of the business and as such we did not get a written consent from the Defendant Company. It was based on the trust between both Company’s and in fact there is no written agreement in respect of the entire business The Plaintiff Company bears the burden to proof that the Defendant Company had to pay the extra cost of storing the bottles it blown but did not supply to the Defendant due to its refusal to pay for the bottles it had already supplied to the Defendant Company as held in the case of Zabrama v. Segbedzi [1991] 2 GLR 221 at 224 as follows: “a person who makes an averment or assertion which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden, unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden.” I have carefully perused the evidence adduced by the Plaintiff Company and unfortunately, all the Plaintiff Company witness did was to mount the witness box and repeat the Plaintiff Company’s assertions against the Defendant Company. This did not meet the burden on it and having unilaterally procured jumbo sacks and linear bags for the storage of the bottles when same was not part of the verbal agreement between the parties, the Plaintiff Company did so at their own cost. Having only done so the Plaintiff Company failed to meet the burden on it and as such this court will not accept his version of facts. See the case of Majolagbe v. Larbi (supra). CONCLUSION I hereby enter Judgment in favour of the Plaintiff and make the following orders; a. The Defendant Company ordered to pay an amount of Eighty Five Thousand Two Hundred and Seventy Seven Ghana Cedis (GH¢ 85,277.00) being the outstanding amount owed for the 1,361,100 bottles supplied by the Plaintiff Company, b. The Defendant Company is ordered to pay an amount of Ten Thousand Ghana Cedis (GH¢ 10,000.00) as damages for the breach of the contract to the Plaintiff Company c. Cost of Five Thousand Ghana Cedis (GH¢ 5,000.00) is awarded against the Defendant Company. H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE SGD