BATTIS COMPANY LIMITED vs ACCENT KFINANCIAL SERVICES
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION),
    ACCRA- A.D 2019
BATTIS COMPANY LIMITED - (Plaintiff)
ACCENT FINANCIAL SERVICES -(Defendant)

DATE:  2 ND MAY, 2018
SUIT NO:  CM/RPC/0685/17
JUDGES:  DOREEN G. BOAKYE-AGYEI (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS:  EMMANUEL AMETEFE REPRESENTS PLAINTIFF DEFENDANT ABSENT
DR. RAINER AKUMPERIGYA FOR PLAINTIFF - PRESENT COUNSEL FOR DEFENDANT – ABSENT
JUDGMENT

 

The Plaintiff sued the Defendant on 6th November, 2017 and claimed as follows:

a)    An order for the recovery of the sum of Four Hundred and Eighty Three Thousand, Nine Hundred and Thirteen Ghana Cedis and Forty Three Pesewas (GHS483, 913.43) being the matured value of the investment with the Defendant. Interest on the matured value of the investment based on the prevailing commercial interest rate counting from the day of the breach until date of final payment.

b)    General damages for breach of contract.

c)    Cost of initiating this legal action including Solicitor’s cost. e. Any further or other reliefs that this Honourable Court mat deem fit.

 

Defendant was duly served on 8th November, 2017 but failed to Enter an Appearance or cause one to be entered on their behalf until 15th January, 2018. An Amended Writ of Summons and Statement of Claim was filed on 23rd January, 2018 without leave pursuant to the rules and same was also served on Defendant on 24th January, 2018 to which they did not Enter Appearance. An Application for an Order to Preserve Property was filed together with the Amended Processes and also served on the same day, fixed for 2nd February, 2018. Supplementary Affidavit in Support and a Hearing Notice ordered by the Court were also served on Defendant per the records. The Application was heard and granted on 13th February, 2018. On 13th March, 2018 Plaintiff Counsel filed an Application for Judgment in Default of Defence, served same on Defendant with no reaction. The Court heard and granted same on 9th April, 2018 granting the reliefs except relief c and d endorsed on the Amended process. Those reliefs were for an order for judicial sale of the land described in paragraph 15 of the Amended Statement of Claim and General damages for breach of Contract. The Court adjourned same for evidence to be led and Defendant was once more served with a Hearing Notice but was a no-show.

 

Plaintiff’s evidence through its witness the Accountant of the company was that Plaintiff Company was into real estate and commercial building with contracts awarded by entities to them to build for them. That for such projects awarded to them, they would usually be given initial mobilization to start until such time as the Consultant would issue a certificate certifying the work done so far for more monies to be released. That Defendant was one of the financial institutions they dealt with to invest idle cash to recoup with interest. Essentially he says what happens is that they receive payments to cover works that run for a specific period and based on their work plan and cash flows for the project, funds that will not be immediately used for the next three months deemed as idle cash are invested.

 

When they recoup the invested money according to the witness, it goes into the on-going project by way of purchases and payments. Exhibit A was the Certificate issued by the Ministry of Works and Housing to Plaintiff. Exhibit was contract awarded to Plaintiff by one of their clients. Exhibit C is an Investment Certificate Plaintiff has with Defendant for an initial investment of Ghc400, 000.00 invested on 17th February, 2017 with a 30% interest rate per annum for 182 days for maturity on 18th August, 2017. Exhibit D is also an Investment Certificate for the rollover of Exhibit C together with its interest making a new principal of Ghc476, 087.34 with an interest rate of 30% per annum for 20 days on 30th September, 2017. According to Plaintiff witness on 18th August, 2017 they were to have received Ghc459835.62 but Defendant could not honour same and upon discussions Defendant requested for a grace period of 20 days to October 20th, 2017. Plaintiff witness said they agreed to make it an additional investment but Defendant stiff failed to make good the investment compelling them to resort to the Court.

 

Plaintiff says in the Statement of Claim and in testimony that as a result of that failure, they had to procure commercial loans from The Seed Funds Savings and Loans to be able to buy materials to complete their time bound projects. These were a Ghc250, 000.00 on 20th June, 2017 with an interest rate of 4.5% per month and a processing fee of 2% and a Ghc150, 000.00 on July 27th, 2017 with 4% interest rate per month and processing fee of 2.5%. These were tendered as Exhibits E and F. The witness said the total cost for accessing those loans was Ghc36, 000.00 and Ghc24, 000.00 for a sum of Ghc60, 000.00. The witness went on further to testify that most of the projects were to be execute within the contract period and any form of delay would occasion them having to pay for the debt or finding another means for funds to complete same. That material prices changed and so if you did not stick to your schedule and budget you ended up paying more for the same item at a later date. To demonstrate this, Exhibits G and H were tendered to show the price of cement bought on 24th August, 2017 at Ghc21, 50 per bag vis a vis the same item bought on 26th March, 2018 at Ghc28.80.

 

Plaintiff Witness then said they had intended to recoup the investment to build a factory but the progress had stalled due to the inability of Defendant to make good the investment sum. He said Plaintiff had suffered and estimated their losses at Ghc250, 000.00 and he prayed the Court to award them that sum.

 

The well-established rule is that an averment can be proved by evidence of a single witness and further that the court can base its judgment on the evidence of a single witness. See the cases of ZABRAMA V SEGBEDZI (1991) 2 GLR 221, AYIWAH V BADU (1963) 1 GLR 86 SC and KRU V SAOUD BROS & SONS (1975) 1 GLR 46 CA where it was held that “Judicial decisions depend on intelligence and credit and not multiplicity of witnesses produced at the trial”

 

Also in the case of GHANA PORTS AND HARBOURS AUTHORITY V. CAPTAIN ZAVI & NOVA COMPLEX LIMITED, (2007-2008) SCGLR 806 the Supreme Court stated that “It is true that witness are weighed but not counted and that a whole host of witnesses are not needed to prove a particular point”.

 

Again in TAKORADI FLOUR MILLS V. SAMIR FARIS (2005-2006) SCGLR the Supreme Court held, affirming the position of the law that; “A tribunal of facts can decide on the evidence of one party. A bare assertion on oath by a single witness might in the proper circumstances of a case be enough to form the basis of a judicial interpretation. The essential thing is that the witness is credible by the standard set in section of the Evidence Act, 1975 NRCD 323 unless otherwise provided by this or any other enactment, corroboration of admitted evidence is not necessary to sustain any finding of fact or any verdict.”

 

Also see the case of COP V. AMEYAW (1962) 2 GLR 162. If any of these cases is established by the testimony of only one witness whom the Court believes, the Court will be entitled to give judgment on the evidence of that single witness. The outcome of the case will depend more on the credibility given to that evidence by the Court than the necessity for corroboration. In the Case of NYONYO V UNIVERSITY OF GHANA, digested in the March 2, 2009, 22 Monthly Law Reports of Ghana (MLRG) at page 61 dated 2nd March, 2009, the trite position of the law on the burden of proof as earlier stated in the case of ZABRAMA V SEGBEDZI (1991) 2 GLR 221 was reiterated by Kpegah JSC thus; “a person who makes an averment or assertion which is denied by his opponent has the 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 that burden”.

 

With regard to the burden of proof, the case of IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU V ORS V KOTEY & ORS (2003-2004) SCGLR 420 states it aptly. In that case, the Supreme Court held that in a civil case a litigant who is a defendant does not need to prove anything. It is the plaintiff who took the defendant to court who has to prove what he claims he is entitled to from the defendant. On the subject of the burden of proof, reference is also made to the very early case of GYAMFI V BADU (1963) 2 GLR 496. It was in that case held as follows: “it must be observed from the onset that there is no onus upon the defendant to disprove a claim made by a plaintiff, so that, however, conflicting or unsatisfactory his evidence may be, the same cannot avail the plaintiff...;”

 

The rationale for the principle just stated is that no one has obligation to prove the obvious or what is not challenged. See the case of AGBOSU V KOTEY (2003-2004) SCGLR It is the duty of a trial court to make pronouncement on the reliefs that a party seeks. Consequently a Judge who makes an Order for a Relief not sought by a party can be held to have exercised an irregular jurisdiction. NYAMEH VRS AMPONSAH (2009) SCGLR 361 AT 362. It is to be noted that the reliefs were for judicial sale which the Court will not grant as the land has been preserved and execution process can be initiated by Plaintiff to have same valued and sold and for general damages for breach of Contract, not special damages. It is trite learning that the obvious consequences of breach of contract is damages. Thus, where a breach has resulted in loss of profit or revenue, the position of the law is to restore the affected party to where it would have been had the loss not occurred. The Supreme Court in the case of Juxon-Smith v KLM Dutch Airlines (2005-2006) SCGLR, 438 at 442 in its holding (5) held as follows: “Where a party has sustained a loss by reason of a breach of contract, he was, so far as money could do it, to be placed in the same situation with respect to damages, as if the contract had been performed.”

 

The Supreme Court in the case of SG-SSB V HAJARA FARMS LIMITED 2012 1 SCGLR 1 held that the principles in awarding damages for breach of contract has also been that a party must be put in a position he would have been if there was no breach. The Supreme Court per his Lordship Justice Date Bah stated”.... That the recovery of damages would be governed by the usual contract law principles. Beyond remoteness of damages, the measure of damages payable to the plaintiff company would be governed by the usual principle of restitution in integrum, i.e. the company must be restored, so far as money could do it, to the position that it would have been in, had the breach not occurred; that would be in line with the principle of concurrent recovery of damages in tort for the same conduct characterized as breach of contract. If the recovery of damages in tort had already secured for the company a restitution in integrum, it would follow that the company could only be awarded nominal damages for the breach of the loan agreement.”

 

The Court has noted that Exhibit C is an Investment Certificate Plaintiff has with Defendant for an initial investment of Ghc400, 000.00 invested on 17th February, 2017 with a 30% interest rate per annum for 182 days for maturity on 18th August, 2017. However, Plaintiff took the Loans in June and July of 2017 when the investment with Defendant was not yet due at a maturity date in August 2017. In the opinion of the Court therefore what they did was their own business strategy to earn more money and not because they had been pushed into a corner by Defendant’s failure to repay their investment upon maturity. The Court has as already said, entered a Default Judgment for Plaintiff against the Defendant and is minded to award Plaintiff damages for breach of contract but not at the quantum Plaintiff hopes for. They have judgment for the sum claimed with interest and cost.

 

The award of damages for breach of contract is not meant to enrich the party but to put him in the position he would have been if there was no breach. The Court will therefore assess damages for breach of contract at Ghc15, 000.00 for Plaintiff herein.