AGYEMANG JA:

In this appeal against the judgment of the High Court delivered on the 6^th of May 2015, the appellant seeks the following reliefs:

An order setting aside the judgment of the trial High Court…

An order directing the defendant/respondent to pay the Cedi equivalent of Euros 318,000.00 as of date(less the initial payment less the initial payment of GHC 801, 360.00 to the plaintiff/applicant) in settlement of the cost of the machinery and equipment purchased from the plaintiff/appellant in the year 2012.

The matters that have given rise to the present appeal are sufficiently simple:

It is common cause that the parties entered into a contract sometime in October 2012 for the plaintiff/appellant (hereafter referred to alternately as the plaintiff or the appellant), to supply two (2) DAF Tipper Trucks and one (1) CAT Roller to the defendant/respondent (hereafter referred to alternately as the defendant or the respondent).

The plaintiff supplied the items contracted for and then sent two invoices to the defendant for the payment of the purchase price. One invoice (exhibit A), was in the sum of Euros 318,000.00, and the other (exhibit A1), said to be the equivalent of the said sum, was quoted in Ghana Cedis: the sum of GHC801,366.00. In the words of the Managing Director of the plaintiff, although the plaintiff purchased the items in Euros, she issued an Euro invoice, and then its Ghana Cedi equivalent invoice, so the customer would choose to pay what he/she preferred.

After a week of presenting the two invoices, the plaintiff made inquiry per its Managing Director, and was told by the defendant’s Managing Director that one Mr. Amoabeng would settle the bill. When after a while nothing was paid by the said gentlemen, the plaintiff reached out to the defendant again and learnt of the demise of its Managing Director.

In the period following the death, and because the defendant had neglected to settle its indebtedness, the plaintiff wrote to the defendant indicating its decision to repossess the items supplied. The defendant’s new Managing Director in a letter exhibit B, asked for about six weeks to settle the bill for the items the subject of this suit although she indicated her willingness to permit the repossessing of some other items. In spite of this promise no monies were paid to the plaintiff. Thus did the plaintiff commence an action at the court below seeking inter alia, a payment of the sum of Euros 318,000.00 as well as interest on same.

The defendant rushed to the plaintiff and settled the amount contained in the Cedi invoice exhibit A1: the sum of GHC 801,366.00, as well as the bill for registering the items, a total of GHC 803,760.00. The defendant then entered appearance to the suit and filed its pleading in which it alleged that it had settled its indebtedness. The plaintiff in its Reply, indicated that the said sum of Euros 801,366.00 represented a only part-payment of what was due as the delay in payment in Cedis of a sum originally in Euros, had led to loss by reason of an increase in the Cedi-Euro exchange rate.

The learned trial judge having heard all the evidence dismissed the plaintiff’s case on the main ground that the plaintiff in issuing two invoices had put the defendant to his election regarding which invoice to honour in settlement of its indebtedness and that having chosen the Cedi invoice to settle in full, what the appellant was entitled to was the award of damages as well as interest.

Aggrieved by this decision, the defendant has brought the instant appeal on the following grounds:

That the judgment is against the weight of the evidence adduced at the trial;

The learned trial High Court Judge failed to acknowledge the fact that the sum of GHC 801,360.00 paid by the defendant/respondent to the plaintiff/appellant in December 2014 is not the Cedi equivalent of the sum of Euros 318,000.

The learned High Court Judge erred by failing to order the defendant/respondent to pay the plaintiff/appellant the sum of Euros 318,000 or its cedi equivalent as of date;

The learned High Court Judge erred by failing to appreciate that in view of the continuing decline of the Cedi against the Euro currency, an application of the doctrine of election would occasion huge financial loss to the plaintiff/appellant;

The learned High Court Judge erred by failing to consider the economic considerations canvassed by the plaintiff/appellant…

In arguing the appeal, the appellant limited itself to Grounds (a) and (d). Grounds (b), (c), and (e), are therefore struck out as abandoned.

Was the judgment against the weight of the evidence? The principles governing how an appellate court deals with such a complaint, and what is expected of an appellant who makes such, have been set out in decided cases. These include that the complaint invites the appellate court which is in much the same position as the trial court regarding the evidence led, to evaluate the same, and come to its own conclusions, in support of or against the trial court’s findings, see: Oppong Kofi and Ors v. Attibrukusu III [2011] 1 SCGLR 176.

The complaint also places the burden on the appellant to point out pieces of evidence which not having been properly evaluated at trial, led to a conclusion different from what ought to have been, see: Tuakwa v. Bosom [2001-2002] SCGLR 61. Furthermore as was so succinctly put by Brobbey JSC in Lin v Tonado Enterprises Ltd [2008] 13 MLRG 197 at 200 “the defendant who claims that the judgment is against the weight of the evidence assumes the onus of proof of satisfying the appellate court that the evidence led in actual fact was not strong enough to substantiate the findings made on it…”

The caveat is that this court, sitting on appeal, must be slow to overturn findings of fact made by the trial court which having the exclusive right to make primary findings of fact, had the advantage of seeing the witnesses and observing their demeanour, see: Agyenim-Boateng v Ofori and Yeboah [2010] SCGLR 861.

In the instant matter, it was the evidence of the plaintiff’s Managing Director that after the supply of the two (2) DAF Tipper Trucks and one (1) CAT Roller, the plaintiff sent two invoices to the defendant for payment: one was in Euros, and the other in Ghana Cedis, being the equivalent of the sum quoted in Euros. In her sworn testimony, the said Managing Director stated that the plaintiff could choose to pay upon either invoice.

It is common cause that when the plaintiff instituted its action at the High Court, the defendant rushed to settle its indebtedness, and that it did so by paying the sum stated on the Cedi invoice. Having issued alternative invoices, the plaintiff, in order not to be bound by the Cedi invoice, ought in accepting the sum stated on the Cedi invoice, to have clarified that the Cedi invoice was no longer valid, and that the amount proffered in Cedis was payment on account of the Euro invoice. This is because the payment made by the defendant was in the exact sum stated on the Cedi invoice issued in respect of the purchase of the said items by the defendant. The plaintiff made no such abandonment of the Cedi invoice. The alternatives in currency contained in the invoices exhibits A and A1 which obtained all the way until payment was effected, vested in the defendant the right to elect to pay the sum expressed in Ghana Cedis, or to pay in Euros. The two invoices were, as the plaintiff acknowledged, mutually exclusive. It was thus for the plaintiff who had commenced suit for the payment of the Euro invoice, to either decline to receive the Ghana Cedis, and pursue its claim at the court, or to state its position that in view of the change in the value of the currencies, the invoice exhibit A1 was no longer an option, so that the sum paid in apparent reliance thereon, only represented part-payment of the outstanding debt set out in invoice exhibit A.

In making the payment in satisfaction of the invoice exhibit A1, the plaintiff had elected to pay on the Cedi invoice.

That learned counsel for the plaintiff subsequent to receipt of the payment, indicated that in view of the currency inflation, the amount was payment on account only, did not help the case of the plaintiff which had issued two invoices and did not at any time withdraw the Cedi invoice.

The definition of law of election, given by Lord Goff of Chieveley in Motor Oil Hellas (Corinth)

Refineries S.A. v Shipping Corporation Of India (The Kanchenjunga) [1990] 1 Lloyds Rep 391 HL states that it: “…may arise in the context of a binding contract when a state of affairs comes into existence in which one party becomes entitled either under the term of the contract or by the general law to exercise a right, and he has to decide whether or not to do so. His decision being a matter of choice for him is called in law an election.”

It is our view that the learned trial judge properly directed himself on the law of election, in that once the defendant elected to pay up on the Cedi invoice, there was no going back to the Euro invoice, see:

Chitty on Contracts, General Principles (Volume 1) 28^th Ed. 1099 at pp. 22-006.

As aforesaid, on the plaintiff’s own sworn testimony, she issued two invoices so that the defendant could choose which one to settle. The definition aforesaid places the defendant squarely within persons exercising their right to elect performance. We find therefore that it was not remiss of the learned trial judge to apply the doctrine of election and thereby, to find that as the plaintiff had accepted payment on the Cedi invoice, it had no valid claim against the defendant on the Euro invoice the alternative invoice. The learned trial judge’s finding that the defendant having been given alternative modes of payment, had in law, elected to pay the invoice quoted in Cedis, cannot be faulted.

In the instant appeal, the appellant has argued that although it issued two invoices the trade practice between the parties, was for invoices to be settled within one week. Thus has the appellant canvassed in this appeal that the failure to pay within that period of one week, would somehow render the Cedi invoice not quite up to the contract sum contained in the Cedi invoice exhibit A1. But as this alleged time-validity of one week or consequences for failure to comply therewith was not stated anywhere on any of the invoices, it is our view that any circumstance introduced to alter what was stated on the invoices constitutes extrinsic evidence regarding the contract sum. The learned trial judge was not in error when, properly relying upon the general rule against extrinsic evidence, rejected same. The rightness of the trial judge’s decision is made manifest from a number of circumstances, including the fact that no satisfactory evidence, documentary or otherwise, was proffered in support of the plaintiff’s assertion that it was customary for the defendant, an alleged regular customer to pay for items purchased from the plaintiff within one week. On the contrary, from the answers given by the plaintiff’s Managing Director during cross-examination, it was clear that the parties had in fact only dealt with each other on only one previous occasion. The rejection by the court below of the plaintiff’s assertion that the previous dealings between the parties constituted custom and usage of trade (submitted to introduce evidence extrinsic to the invoices exhibits A and A1), was not erroneous. Nor are we also persuaded by the artificial argument made by the appellant in its submissions before us in the following terms, supported by any evidence on record: “the payment of the Cedi equivalent of the consideration payable at the time of payment under a contract which has been executed in foreign currency is an established custom and usage in commercial transactions.”

We are in complete agreement with the learned trial judge that in view of the late payment of the contract price, what was due the plaintiff were damages for breach of contract, as well as the award of interest to take care of the inflation rate that had affected the Cedi adversely, making it weaker against the Euro than when the invoices were issued and the debt became due and owing.

As aforesaid, the plaintiff abandoned all grounds of appeal save two, and in the second ground (d), attacked the award of interest as not being adequate to place the plaintiff in the position he would have been in if the contract had been fully performed on time, in conformity with the principle of restitutio in integrum.

While we are of the view that the said argument is more appropriate for a ground attacking the award of damages, we are not in disagreement that the period of calculation of interest awarded by the learned trial judge found no support in the evidence, and was therefore erroneous.

In our judgment, it was not the place of the learned trial judge to factor in the death of the Managing Director as an event that would occasion inevitable delay in the plaintiff company’s payment of its bills. This was a commercial transaction between two companies and the amount on the invoices became due and owing on the date stated on the invoice: 9^th November 2012. Furthermore, the award of interest must, in accordance with Rule 1 of CI 52, the Court (Award of Interest and Post Judgment Interest) Rules 2005, be calculated at the prevailing bank rate and at simple interest.

For that reason, interest on the sum of GHC801, 360 ought to in line with CI 52 be calculated at the prevailing Bank rate from 9^th November 2012 when the invoice was issued, until December 2013 when the defendant settled its indebtedness.

The appeal therefore succeeds in part, in relation to the commencement date for the calculation of interest as well as the rate of interest to be assessed on the sum of GHC 801,360 appearing on the Cedi invoice Exhibit A1.

No order as to costs.

SGD

MABEL M. AGYEMANG (MRS)

(JUSTICE OF THE APPEAL)

SGD

OFOE, J. A.                             I agree                     VICTOR D. OFOE

(JUSTICE OF THE APPEAL)

SGD

LARBI, J. A.                            I also agree     IRENE C. LARBI (MRS)

             (JUSTICE OF THE APPEAL)