SECURITY TECHNOLOGY GROUP LTD vs BANK OF GHANA
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    ACCRA - A.D 2018
SECURITY TECHNOLOGY GROUP LTD - (Plaintiff)
BANK OF GHANA - (Defendant)

DATE:  28 TH FEBRUARY 2018
SUIT NO:  RPC/104/2013
JUDGES:  JENNIFER DODOO (MRS) JUSTICE OF THE HIGH COURT
LAWYERS:  EGBERT FAIBILLE JR. FOR PLAINTIFF
J. K. AGYEMANG FOR THE DEFENDANT
JUDGMENT

 

 

1. Contract: Offer and Acceptance, Intention to be legally bound

2. Special Damages to be particularized and proven

3. Damages

4. Quantum Meirut

 

In its amended writ and statement of claim filed on 10th April 2014, the Plaintiff claimed against the Defendant the following reliefs:

a. A Declaration that there existed an agreement/contract between Defendant and Plaintiff to provide maintenance service in respect of the maintenance and servicing of Defendant’s electronic security systems from the 2nd day of January 2012 to the 21st of August 2012 or in the alternative a declaration that the Plaintiff provided maintenance services in respect of the maintenance and servicing of Defendant’s electronic systems from the 2nd day of January 2012 to the 31st day of August 2012 in respect of which service Plaintiff ought to be paid on a quantum meirut basis.

b. A declaration that the Defendant has breached the terms of the agreement/contract referred to in (a) above.

c. An order for the recovery of the sum of US$172,055.82 being the outstanding amount owed Plaintiff in respect of services rendered by Plaintiff to Defendant pursuant to the agreement/contract referred to in (a) above/or in the alternative an order for the recovery of US$172,055.82 on quantum meirut basis.

d. Interest on the sum of US$172,055.82 at the prevailing bank lending rate from the 31st day of August 2012 till the date of final payment.

e. An order for the recovery of an amount of GH¢24,107.75 being outstanding payments for “call out” services rendered since 1st September 2012 till 30th day of October 2012.

f. Interest on the sum of GH¢24,107.75 from 14th day of November 2012 till the date of final payment.

g. Special damages of US$112,693.00 or its cedi equivalent in respect of the 5 programming cards.

h. General Damages

i. Costs including legal fees

 

The Plaintiff which described itself as a limited liability company with an international reputation for the installation and maintenance of electronic security systems sued what it described as its former clients for the above stated reliefs.

 

 

According to the Plaintiff, Siemens South Africa had won a contract from the Defendant for the installation and maintenance of electronic security systems at all its offices. Part of this contract had been assigned to the Plaintiff. It was Plaintiff’s case that when Siemens South Africa discontinued its contract with the Defendant, the latter appointed it to take over the provision of the same services for the period 15th July 2010 to 14th October 2010. The contract continued to be extended for periods between October 2010 to December 2010 and then from 2nd January to 1st July 2011. It was Plaintiff’s case that whilst awaiting payment on the last contract, it was informed through verbal communication from Defendant’s head of General Services that the Defendant would require quotations for services to be rendered in Ghana Cedis and not United States dollars and also asking for a discount. It said it obliged this request and continued to work for the Defendant from 2nd July 2011 although the contract had not been renewed. The bills presented for this period had remained unpaid. The defendant later informed it that it had decided to enter a maintenance service agreement on a call out basis with Plaintiff. The Plaintiff stated further that the Defendant collected access cards from its staff deployed at the Defendant’s office thus disabling the Plaintiff and its staff from having access. It later discovered that 6 of its employees deployed to the Defendant’s offices had resigned their employment with the Plaintiff and had been employed by the Defendant. It was their plaint that the said staff had taken away with them programming cards belonging to the Plaintiff and which were used for programming the entire electronic systems they had installed for its clients.

 

The Plaintiff accused the Defendant of exhibiting bad faith towards it by its conduct. The Defendant in its defence maintained that the contracts with the Plaintiff were concluded by 1st July 2011 and that the Plaintiff’s agents were given a permanent office at the Cedi House branch of the Defendant with full access to other sites to enable them carry out their agreed functions. According to the Defendant, the Plaintiff later agreed to adopt a call out service starting from 1st September 2013. To this agreement, it attached an invoice to the tune of

US$172,055.82 which it claimed as cost of services rendered from 2nd January 2012 to 31st August 2012. It was the Defendant’s case that it queried the figure since it did not know the mechanisms by which that figure was arrived at. It said the Plaintiff’s claim had since been settled out of court. On the issue of bad faith, the Defendant denied enticing away Plaintiff’s staff and stated that it maintained a database of all applications made to it and only resorted to these applications to fill vacancies as and when they were declared.

 

It invited 15 of these applicants which included 4 of Plaintiff’s former employees. Out of these 4 employees, 2 were employed. It also denied the contention that it caused the employees to take away programming cards belonging to the Plaintiff. It contended that the said programming cards were its property and had always been in its possession.

The issues forwarded to this court for trial are:

1. Whether or not the Plaintiff is a legal entity capable of suing and being sued in Ghana?

2. Whether or not Defendant’s engagements of Plaintiff to perform services for Defendant were for specific and agreed periods and prices?

3. Whether or not the Plaintiff is entitled to recover the sum of US$172,055.82?

4. Whether or not the Plaintiff is entitled to recover the sum of GH¢24,107.75?

5. Whether or not the Defendant agreed to engage Plaintiff for performance of maintenance services covering the period from 2nd January 2012 to 31st August 2012 at the total fee of US$172,055.82

6. Whether or not the Defendant enticed away all Plaintiff’s workers by getting them to resign from their employment with Plaintiff and work with Defendant/

7. Whether or not the Defendant’s act of inciting Plaintiff’s workers to resign en masse resulted in damages to the Plaintiff.

8. Whether or not only 2 of various individuals employed by the Defendant at all material times had previously worked with the Plaintiff?

9. Whether or not the Defendant employed Plaintiff’s workers to work for Defendant with tools of the Plaintiff?

10. Whether or not Defendant requested Plaintiff to investigate problems relating to camera numbers 462, 458 and 474 and submit quotations for Defendant’s consideration?

11. Whether or not Defendant agreed with Plaintiff to rectify problems relating to camera numbers 462, 458 and 478 for a fee of GH¢24,107.75?

12. Whether or not the Plaintiff is entitled to interest on the sums claimed above?

13. Whether or not the Plaintiff is entitled to special damages in the sum of $112,693.00

14. Whether or not the Plaintiff is entitled to its claims against the Defendant?

 

The first issue for consideration would be whether or not the Plaintiff is a legal entity capable of suing or being sued in Ghana. This is important as it deals with the Plaintiff’s capacity to sue. The Defendant has stated in its Statement of Defence that it did not admit paragraph 1 of the Statement of Claim in which the Plaintiff described itself as a limited liability company registered in Ghana. It therefore disputed the contention that the Plaintiff was a legal entity registered in Ghana. In cross-examination of the Plaintiff on 18th October 2016 the following ensued:

Q: What is the full name of this Plaintiff?

A: Security Technology Group (STG) Ghana.

Q: When was it incorporated?

A: My Lord, I believe in 2004.

Q: I have checked on this and it looks as if it was incorporated in 2013; is that correct.

A: No, My Lord.

Q: Incorporated where?

A: The Registrar’s Department, Accra, Ghana.

Q: Do I then understand you to be saying that it was this company that dealt with Bank of Ghana in this matter?

A: Yes. My Lord

 

The Plaintiff’s representative filed with leave of the court, a supplementary witness statement on 16th December 2016. The Exhibit T series were attached to this witness statement. Exhibit T which is 2 page document consists of a Certificate to Commence Business and a Certificate of Incorporation. The Certificate of Incorporation is dated 18th November 2004. The Certificate bears the No. CA-14,594 and the Certificate to Commence Business is dated 13th December 2004. The number on this document is TIN 824V010971. Exhibit T1 is also a 2 page document consisting of a Certificate to Commence Business dated 31st July 2013 and a Certificate of Incorporation. On the top right hand corner of the 1st page is the Number C0002342731. Underneath this number is the following information: Old TIN 824V010971, Old RGD number CA-14,594. Old Commencement Date 13/12/2004. On the top right hand corner of the 2nd page is the number C0002342731. Underneath these figures is the following information: Old TIN 824V010971, Old RGD number CA-14,594. The incorporation date is given as 18th November 2004.

 

In the case of Morkor v. Kuma (East Coast Fisheries Case) (1998/99) SCGLR 620 @ 632, the court per Akuffo JSC (as she then was), stated the position of the law regarding companies thus:

Save as otherwise restricted by its regulations, a company after its registration has all the powers of a natural person of full capacity to pursue its authorized business. In this capacity, a company is a corporate being, which within the bounds of the Companies Act, 1963 (Act 179) and the Regulations of the company may do everything that a natural person might do. In its own name it can sue and be sued and it can owe and be owed legal liabilities. A company is, thus a legal entity with a capacity separate, independent and distinct from the persons constituting it or employed by it. From the time the House of Lords classified this cardinal principle more than a century ago in the celebrated case of Salomon v. Salomon & Co (1897) AC 22, it has subject to certain exceptions, remained the same in all common law jurisdictions and is the foundation on which our Companies Act is grounded.

 

From the evidence, the Plaintiff company was incorporated on 18th November 2004. The new certificate issued to it in 2013 supports this view when it put up the Plaintiff’s incorporation date as 18th November 2004 and also gave its old TIN and RGD numbers. Since it was duly incorporated as at the time it issued its original writ on 5th April 2013, it was capable of suing and being sued in Ghana. Most of the other issues could be subsumed under a determination of whether or not the Defendant agreed to engage Plaintiff for performance of maintenance services covering the period from 2nd January 2012 to 31st August 2012?

 

The Plaintiff’s case was that it had entered into various contracts of 3-6 months duration with the Defendant at certain periods from 15th July 2010 to 1st July 2011. It was again the Plaintiff’s case that due to the sensitive nature of its services it continued to work for the Defendant without renewal from 2nd July, 2011 till 1st January 2012. According to the Plaintiff, the Defendant paid the invoice for that period. Indeed as it put it in paragraph 27 of its witness statement:

 Even though the last contract between the parties had come to an end on the 1st day of July, 2011, Plaintiff with the tacit approval of Defendant continued to work for Defendant maintaining its electronic security systems all over the country.

 

According to Cheshire & Fifoot’s, Law of Contract 11th edition at p. 27, an agreement is said to be not a mental state, but an act and as an act is a matter of inference from conduct. The parties are to be judged by not what is in their minds but what they have written, said or done. For as Chief Justice Brian proclaimed “the devil himself knows not the intent of a man.” What have the parties said and done in relation to the transactions between them?

Exhibit C is a letter from the Head of General Services Department to the Plaintiff Company’s Chief Executive Officer dated 9th June 2010 inviting him for a meeting. The subject for the meeting was the service and maintenance of the Defendant’s CCTV and access control systems. Thereafter, the Plaintiff wrote to the Defendant with a quotation for maintenance from 15th July 2010 to 14th October 2010. (See Exhibit D). Thereafter, the Plaintiff was formally informed by an award letter dated 28th July 2010 that there was an acceptance of its quotation for the maintenance of the Defendant’s integrated system from 15th July 2010 to 14th October 2010. (See Exhibit E). Exhibit F written on 18th October 2010 further extended the maintenance contract from 15th October 2010 to 31st December 2010. (See Exhibit F). Exhibit G further extended the maintenance contract between the parties from 31st December 2010 to 1st July 2011. Exhibit J and J1 are letters written by the Chief Executive of the Plaintiff Company dated 16th September 2011. These were captioned Acceptance and quotation for Maintenance Extension from 2nd July 2011 to 1st January 2012. Whilst Exhibit J gave the pricing for the 6 month period in United States dollars i.e. $112, 210.32, J1 gave the pricing in Ghana Cedis i.e. GHC 174,114.60. In the 4th paragraph of each letter were the following words:

Duration of this offer is for a period of six months from 2nd July, 2011 to 1st January 2012 and can be extended upon mutual agreement by both parties.

 

Exhibit K is communication from the Plaintiff to the Defendant dated 3rd January 2012. In its final paragraph, the letter stated:

Your attention is also drawn to the fact that the maintenance period from 2nd July

2011 to 1st January 2012 has expired. Please arrange for full payments to be made and advice on the way forward.

 

On 9th January 2012 the Defendant caused a letter to be written to the Plaintiff’s Manager. (See Exhibit K1). The letter was captioned Review of Maintenance Contract of Security Systems. The contents were as follows:

We  refer  to  your  letter  dated  3rd  January  2012  about  the  expiration  of  the maintenance contract for the period 2nd July 2011 to January 2012 for the total cost of GH¢190,220.20.

The Bank has examined the total maintenance cost in respect of your operational cost and finds it expensive and unsustainable.

In view of the above, the Bank is requesting for:

1. A rebate of the total cost of GH¢165,408.87 (VAT exclusive)

2. Reconsideration of the operational cost

3. An outline of specific work to be done by your permanent staff at site on daily basis and resubmit your proposal for our consideration.

 

After that Exhibit 11 dated 10th January 2012 was received from the Plaintiff in respect of the subject Review of Maintenance Contract of Security Systems. The contents of this letter are:

We refer to your letter dated 9th January 2012 and we are sorry to hear that the bank finds our cost expensive and unsustainable, especially since we have not changed our prices for close to two years.

In this light we will not be able to honour your request for yet another rebate as a condition of payment for work done from July 2 to 1st January 2012. We would also want to inform you that for the same period we have had to pre-finance our operations as result of the delay in payment. We are still attending to emergency cases as you may be aware in Kumasi regional office, but from the tone of your letter we might have to revise our position and wait for your final decision.

 

The burden of proof was initially on the Plaintiff to lead evidence that would entitle it to judgment. See Section 17(2) of the Evidence Act, 1975 NRCD 323. This burden continues to shift depending on the nature of evidence adduced by the parties and their witnesses. Thereafter, it was up to the Defendants to lead evidence in proof of their contention that they were not indebted to the Plaintiff as alleged. In Re Ashalley Botwe Lands: Adjetey Agbosu & Others v. Ebenezer Nikoi Kotey & Others (2003/2004) 1 SCGLR 420 @ 444 the court held as follows:

It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case is not fixed but shifts from party to party at various stages of the trial depending on the issue(s) asserted or denied.

 

In Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the court held:

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 varied and 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 sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.

See also Section 12(1) of the Evidence Act which provides as follows:

Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

Section 12(2):

Preponderance of the probabilities’ means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.

 

The Plaintiff therefore assumed the burden of proof to establish that it had contractual relations with the Defendant after 1st January 2012. What is the evidence that it has led to establish this? The court has had access to the letters between the parties in respect of the maintenance and service agreements. They have all followed a particular pattern. The contracts have been renewed for 3-6 months periods. The Plaintiff’s assertion in its paragraph 27 of its witness statement therefore cannot be true where it states:

Even though the last contract between the parties had come to an end on the 1st day of July, 2011, Plaintiff with the tacit approval of Defendant continued to work for Defendant maintaining its electronic security systems all over the country.

 

Though the contract had come to an end, there were successive renewals. The last renewal of the service agreement came to an end on 1st January 2012 and it was the Plaintiff which alerted the Defendant to this fact in Exhibit K. Therefore the Plaintiff could not have been working for the Defendant with the latter’s tacit approval. It was working on the basis of agreements relating to the extension of maintenance services between the parties the last of which then expired on 1st January 2012.

In Exhibit K1, the Defendant had requested the Plaintiff to provide the following information:

1. A rebate of the total cost of GH¢165,408.87 (VAT exclusive)

2. Reconsideration of the operational cost

3. An outline of specific work to be done by your permanent staff at site on daily basis and resubmit your proposal for our consideration.

In answer to Exhibit K1, the Plaintiff wrote Exhibit 11. In its final paragraph were the words:

We are still attending to emergency cases as you may be aware in Kumasi regional office, but from the tone of your letter we might have to revise our position and wait for your final decision.

 

Did the Plaintiff give the Defendant the details it asked for? Did it present to the Defendant a reconsideration of its operational cost? Did it also present an outline of specific work to be done by its permanent staff at site on a daily basis? Did it resubmit its proposal for Defendant’s consideration? And more importantly, did it revise its position as promised in Exhibit K1and await the Defendant’s final decision?

In the case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another [2012] 2 SCLR 845 the court held at p. 867 that:

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”

 

The Plaintiff did not prove that there was an agreement further extending the maintenance and service agreement beyond 2nd January 2012. It has not shown the court that the Defendant had given it the go ahead to continue maintaining and servicing its security installations. Indeed after the communication of 9th and 10th January 2012 there was no indication that there was any communication between the parties on this maintenance agreement until 29th August 2012 when the Plaintiff wrote Exhibit L captioned Maintenance of Bank of Ghana Security System to the Defendant which stated:

Following our discussion in your office on the 29th of August 2012. I would like to confirm the following points raised by you

·         Review of current maintenance services.

·         Adoption of a call out services

·         Commencement of such services

We have no objections to commence a call out service and we are prepared to adopt this service from 1st September, 2012. However we expect that services rendered from 2nd January 2012 to August 2012 should be settled as soon as possible. Please find attached our invoice for payment from 2nd January 2012 to 31st August

2012.

 

To this the Defendant responded by writing Exhibit L1 dated 7th September 2012. The letter stated:

Dear Sir,

RE: MAINTENANCE OF BANK OF GHANA SECURITY SYSTEM

We refer to your letter dated 29th August, 2012 on the above subject and comment as follows:

The contract between Bank of Ghana and STG expired on 1st July 2011. Since then, there has not been a renewal of the contract. Attempts by both parties to renew the contract have not been successful due to differences in pricing mechanisms. However considering the fact that you had performed some services for the Bank, we decided to pay you an amount of GH¢190,220 for services rendered from 2nd July 2011 to 1st January 2012.

Services rendered by your company from 1st January 2012 to date had been on call basis since there had not been any formal agreement to the content of maintenance services and the corresponding cost. The discussion held with you on 29th August 2012 was to confirm the above and to draw your attention to the need to submit invoices based on call out services rendered.

Your claim for payment of $172,055.82 for services rendered from 2nd January 2012 to 31st August 2012 therefore needs to be substantiated.

 

Exhibits M, M1 and M2 still saw the parties taking different positions with the payments to be made and on whether or not there was a subsisting contract.

In Re: Ashalley Botwe Lands; Adjetey Agbosu and Others v. Kotey and Others (2003-2004)

SCGLR 420 @ 464-465, the Court speaking through Brobbey JSC had this to say:

The effect of Sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is the Defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if a court has to make a determination of a factor of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause by adducing before the court such facts or evidence that will induce the determination to be made in his favour.

 

There is evidence that the Defendant engaged the Plaintiff in a call out service.  On 20th October and 16th November 2016, the following transpired in cross-examination of the Plaintiff:

Q: Following your letter of 25th September, the bank gave you a call out service; correct?

A: Yes. My Lord for the first time.

Q: And specifically, the bank invited you to visit two sites which they set out where three cameras were not working along with the buzzer correct?

A: Yes, My Lord.

Q: And they said investigate the problems with these and submit your quotation for consideration.

A: Yes My Lord.

Q: You proceeded instead to repair three cameras and the buzzer and submitted your invoice.

A: Yes. My Lord.

Q: And the claim for GH¢24,107.75 related to your repair of the above cameras, buzzer and other call out services; correct?

A: My Lord, the invoice was not in one lump sum. There were several invoices. I now say Yes.

 

It transpired from the evidence that the Defendant had asked Plaintiff in furtherance of its call out service to investigate problems with some faulty cameras numbered 462,468 and 474 as well as a buzzer and had required the Plaintiff to submit its invoice in respect of this equipment. (See Exhibit O). The Plaintiff however, repaired the faulty equipment and submitted an invoice for payment. It had not been instructed to carry on with repairs yet had done so in the teeth of the express instructions on what it had been asked specifically to do which were “to visit the sites, investigate the problem and submit your quotation for our consideration”. There was no evidence indicating that it had submitted its invoice after which there was an agreement reached with the Defendant for the prices endorsed on the invoice. After its tussle with the Defendant over its invoice of $172,055.85 which still remained outstanding, to go beyond its express instructions was hardly the act of prudence.

 

The court has found that the last extension to the service agreement was referred to in Exhibit J in the Plaintiff’s letter of acceptance. After that, there was no formal offer and acceptance of any more extensions to cover the period for which the Plaintiff has sued. It was for the parties who had entered the initial contract and who had made several renewals to have done the same after the last renewal had expired on 2nd January 2012. It is not for the court to impose a contract on both parties when both parties had not come to a consensus on what their future relationship ought to be. The court therefore finds that there was no agreement to engage Plaintiff for performance of maintenance services covering the period from 2nd January 2012 to 31st August 2012 at the total fee of US$172,055.82. The Defendant to its credit has however paid the sums the Plaintiff has sued for in an out of court settlement. In Exhibit V, the Plaintiff has acknowledged receipt of the sums of US$172,055.82 and GH¢24,107.75 being the main sums it sued for in respect of services rendered to the Defendant. It however in Exhibit V, evinced a desire to press for the rest of the reliefs it had sued for. From the Defendant’s conduct, it has acknowledged that it had benefitted from services rendered by the Plaintiff notwithstanding the fact that there was no formal agreement between the parties in respect of the sums claimed. It had thus gained some benefit from the Plaintiff.

 

However, the fact remains that the Plaintiff has not been able to prove that it had entered a formal contract with terms with the Defendant. In view of this, the court is unable to order interest payments on the said sums which the Defendant has stated it paid in an out of court settlement. It is in this court’s view that in spite of the non existence of contractual terms setting out the scope of the Defendant’s engagement, the Plaintiff went ahead to do jobs which it should not have done without the benefit of a contract. It had its own self to blame for the predicament it found itself in. In Akoto v. Gyamfi-Addo & Another (2005/2006) SCGLR 1018, the court held that the general principle for the award of interest to a party is that such party had been unjustifiably kept out of money due to him for the relevant period. But how would the Plaintiff had been unjustifiably been kept out of money when there was no contract upon which it could base its claim? On the question of damages for breach of contract, the classical case in this regard is Hadley v. Baxendale (1854) 9 Ex. 341. The facts of this case were that Hadley, a miller engaged Baxendale, a carrier to take a broken shaft to the manufactures to make him a new one. The Defendant delayed in delivering the shaft. The Plaintiff therefore sued the Defendant for loss of profit whilst the mill lay idle. The court dismissed the claim on the ground that there could have been a spare shaft. The fact that there was no spare shaft was neither in the contemplation nor in the actual knowledge of the Defendant nor would a reasonable man, under the circumstances, have known that there was no spare shaft. As the court stated:

“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as should be fairly and reasonably be considered as either arising naturally, i.e. according to the usual course of things, from such breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as a probable result of the breach of it.”

 

The operative words here being “have made a contract which one of them has broken”. The court did not find evidence of a contract between the parties. As such, a breach of a non-existent contract and damages would not arise. The Plaintiff has also sued for special damages totaling $ US$112,693.00 or its cedi equivalent in respect of 5 programming cards which it said it had purchased for use on the Defendant’s site. In the case of Zabrama v. Segbedzi (1991) 2 GLR 221 CA and re-affirmed in the case of Continental Plastics Ltd v. IMC Industries (2009) SCGLR 298 @ 306-307, the court stated:

“The correct proposition is that 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.

 

It was therefore up to the Plaintiff in addition to pleading and particularizing its claim for special damages to prove same. In the case of Andreas Bschor GMBH & Co v. B. W. C. Ltd (2008) 4 GMJ 203 the court quoting from Stroms Bruks Aktie Bolag v. Hutchinson (1905) AC 515 @ 525-526 per Lord Macnaghten had this to say:

“Special Damages are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character and therefore, they must be claimed specially and proved strictly.”

 

One is also reminded of Blay J.S.C. in Chahin & Sons v. Epope Printing Press [1963] 1 G.L.R. 163 at 168, S.C. when he said:

“They (i.e. the plaintiffs-respondents), merely presented a list of articles they alleged they had lost, fixed prices to them, and without attempting in any way to prove their values, expected the court to award them damages to the tune of the amounts claimed.

 

In the case of Fosua & Adu-Poku v. Dufie (deceased) and Adu-Poku Mensah (2009) SCGLR 316, the court held that Section 11(4) of the Evidence Act, 1975 NRCD 323 put the obligation in civil proceedings of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. The Plaintiff described the programming card as an installation and maintenance product. It was its version of events that the Electronic Security System installed for the Defendant utilized a software system known as the Babylon System. According to the Plaintiff, the programming cards belonged to it and were usually in the custody of its technicians. The Plaintiff singled out for mention Appiah-Korang who gave evidence as DW1 as having custody of the cards since he was the most senior technician on site. The programming cards were described as a maintenance tool. It was the Plaintiff’s case that the initial programming cards went missing and had to be replaced. The witness tendered in evidence Exhibit Q which it said was an invoice evidencing purchase of programming cards in 2010. The Defendant’s version of events was that when Siemens was in charge of the maintenance contract, there were 4 programming cards plus a test programming card which was handed over to the Defendant. These were kept in the Defendant’s control room and had always remained there. The Defendant denied that the programming cards the Plaintiff had sued for were different from the cards that had been in their control room from the time the electronic system was installed. In cross-examination on 14th June 2017 this is what transpired in cross-examination of the Defendant’s representative:

Q: At paragraph 11 of your witness statement, you stated in part that the bank that is, the Defendant is the bona fide owner of the said cards. Not so?

A: Yes. My Lord.

Q: I believe by your saying the said cards, you mean the programming cards in respect of which we are before this Court. Not so?

A: Yes. My Lord. But the programming cards Counsel is talking about is the one I showed this Court which he has said is not what he was talking about and he referred to other programming cards which the Plaintiff took his former employees to the labour office and not the one in the bank’s possession.

Q: So when you say the said programming cards, you are referring to what you claim the Defendant owns. Not so?

A: Yes. My Lord.

Q: Do you have any document that shows that the Defendant is the bona fide owner of those programming cards that you claim the Defendant owns?

A: No. My Lord. The said programming cards in my possession is a repair kit or a system kit that is given to anyone who buys or purchases the Babylon System. It is like a car key which is given to a car owner who buys a car and the car key is not paid for exclusively or mentioned in the document of the purchase contract. And anyone who buys the system is given for its installation and its maintenance. Like the car key, you only pay for it when it is lost or it needs a spare one and during the initial stage of the contract, Siemens gave us the drawings and all the equipment we needed which included the cards and the price of this card according to the manufacturers Redlec, the cost is not up to $30.00

Q: So the Redlec programming cards that you are talking about, where were they purchased from?

A: My Lord, it is not purchased from any place apart from Siemens who supplied to us as tool kits for the system and these programming cards that we are talking about, even before Mr. Tolo came to the scene we have had photocopies of the programming cards on file. And we use these cards just after the installation of the system and we also use it during training and that these cards are not sold in the market for technicians of electronic systems to buy. Because if you don’t buy the card readers together with the system you would not need these Redlec programming cards. And that one is supplied by the manufacturers to those who buy them and the manufacturers are the Redlec Company.

 

DW1 told the court he used to work with the Plaintiff and now works for the Defendant. It was his testimony that he was present when the Defendant’s staff was being trained on how to use the programming cards. He said after the training programme, the facilitator handed over the cards to the System Administrator. It was his testimony that although he had at a point, some equipment belonging to the Plaintiff, he had handed these in to the Labour Office. These were a laptop, dongle and tool bag. This was corroborated by Exhibit 5 (a) which was a receipt issued by the Chief Labour Officer on 8th January 2013 in respect of items DW1 had deposited. The court only has the Plaintiff’s oath against the oath of Defendant and its witness. Exhibit Q which is said to be an invoice evidencing the order and receipt of the cost price of 5 Redlec cards does not tell the court much. When did the original cards which Plaintiff said was used in the installation and maintenance of the security network get missing and have to be replaced? When were they delivered and where is the evidence that the Plaintiff paid for them? There is only an invoice (Exhibit Q) but this invoice did not evidence payment. Also how did they get into the Defendant’s custody? This becomes a nagging question as the Plaintiff did say the cards were given to DW1. DW1 in turn says they were never given to him but rather handed over to the Defendant’s System Administrator after initial training. So were these cards provided for by the Plaintiff or were they an integral part of the software system initially supplied by Siemens?

 

There are now 2 versions of events being canvassed by the parties. In the case of Duagbor v. Akyea Djamson (1984-86) GLR 697 the court held that where the evidence is unsatisfactory the judgment should be in the Defendant's favour on the ground that it is the Plaintiff who seeks relief but has failed to prove that he is entitled to what he claims. Since it is Plaintiff who is seeking the relief, the onus of proof on a preponderance of probabilities rested on it. It has failed to discharge same and is not entitled to a ruling in its favour. As per Faibi v. State Hotels Ltd (1968) GLR 411, the onus in law lay on the party who would lose if no evidence were led in the case and where some evidence were led, it lay on the one who would lose if no further evidence were led. See also the case of Sarkodie v. FKA Company Ltd (2009) SCGLR 65. In view of this, the court does not see its way clear in awarding special damages of $112,693.00 in Plaintiff’s favour. The Plaintiff has also accused the Defendant of causing its employees to resign en masse to seek employment with it.

 

It is the case that Defendant’s act caused it damage.

From cross-examination of the Plaintiff on 5th April 2017, it could be gleaned that the Plaintiff had at one point, 15 staff. Staff resignations happened over the years and as the Plaintiff itself had said, by 2009, half of the staff in employment was no longer there. The names of staff at post as at October 2012 were Samuel Appiah Korang, John Danso, Richmond Andoh, Tony Wayo, Evans Acheampong, Michael Owusu-Acheampong, Philip Aboa and Patrick Odoom. Out of these persons, the Plaintiff named Richmond Andoh, Samuel Appiah Korang, John Danso and Patrick Odoom as having resigned to join the Defendant. The court however does not have any evidence of what the Defendant is said to have done either covertly or overtly to cause these employees to leave the Plaintiff and join up with the Defendant. If there was an agreement between the Plaintiff and the Defendant for the latter not to employ any of the former’s employees, no evidence was led on that fact. Similarly if the Plaintiff had restrictive contracts with its employees not to seek employment in a similar establishment, no evidence was led in that respect. In Kobea v. Tema Oil Refinery (2004) SCGLR 1033, the Court held that the relationship between an employer and his employees is essentially contractual. At common law, an employer and his employee are free and equal parties to the contract of employment. Hence either party has the right to bring the contract to an end in accordance with its terms. It therefore came to pass that the DW1 per Exhibit 3 (a ) wrote a resignation letter giving notice of his intention to resign from the Plaintiff Company.

 

The Plaintiff responded by informing DW 1 that he had forfeited a month’s salary in lieu of notice. So how did the Plaintiff come to the conclusion that its employees had been induced to resign from their employment? Was there enough evidence to substantiate this allegation?

In the case of Nyame v. Tarzan Transport (1973) 1 GLR 8 CA, the court held:

“There is a distinction between pure conjecture and reasonable inference. A conjecture may be plausible but it is of no legal value for its essence is that it is a mere guess. An inference in the legal sense on the other hand, is a deduction from the evidence and if it is a reasonable deduction, it may have the validity of legal proof. The attribution is always a matter of inference.”

See also Section 18(2) of the Evidence Act, 1975 NRCD 323 which states:

“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.”

 

The court finds the allegations made by the Plaintiff unsubstantiated by the evidence at its disposal.

Moreover, DW1 said in his witness statement that he had not been poached or induced to resign from the Plaintiff’s employment. The Plaintiff did not cross-examine him on this assertion. What was the significance of this failure to cross-examine? See the case of Quagraine v. Adams (1981) GLR 599 where the court held that where a party made an averment and his opponent failed to cross-examine on it, the opponent would be deemed to have acknowledged that averment by the failure to cross-examine. See also the case of Takoradi Flour Mills v. Samir Faris (2005/2006) SCGLR 882 @ 890 where the court quoted with approval Tutu v. Gogo (1969) CC thus:

“in law where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.”

 

The court also referred to the case of Fori v. Ayirebi (1966) GLR 627 @ 647 where it was stated:

“The law is that when a party makes an averment and that averment is not denied, no issue is joined on that averment, and no evidence need be led. Again, when a party gives evidence of a material fact and is not cross-examined upon it, he needs not call further evidence of that fact.”

 

I am mindful of the case of Acquie v. Tijani (2012) 2 SCGLR 1252 where the court held that the law does not require a party to prove his case with absolute certainty in civil proceedings. A court must however satisfy itself that the evidence led on a particular issue is proved in accordance with the requisite standards required by law. The court quoting from Hawkins v.Powells Tillery Steam Coal co. ltd (1911) KB 988 @ 996 said:

When it is said that a person who comes to the Court for relief must prove his case, it is never meant that he must prove it with absolute certainty. No fact can be proved in this world with absolute certainty. All that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that the fact is so. That may be done either by direct evidence or by inference from facts. But the matter must not be left to rest in surmise, conjecture or guess.

 

The obligation on parties invoking the jurisdiction of the court is neatly captured in

Sections 10(1), 11(1) and 11(4) of the Evidence Act (1975) NRCD 323:

Section 10(1)

For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

Section 11(1)

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.

Section 11(4)

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 the fact was more probable than its non-existence.”

 

In the case of Takoradi Flour Mills v. Samir Faris (2005/2006) SCGLR 882 at 900 the court said:

in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.

And as Adade JSC put it succinctly in Nartey v. Mechanical Lloyd Assembly Plant Ltd (1987/88) 2 GLR 314 at 344:

“A person who comes to court no matter what the claim is must be able to make a case for the court to consider otherwise he fails.”

 

The Plaintiff’s case fails and it is deemed not entitled to a declaration that there existed an agreement/contract between Defendant and Plaintiff to provide maintenance service in respect of the maintenance and servicing of Defendant’s electronic security systems from the 2nd day of January 2012 to the 21st of August 2012. The alternative relief of a declaration that the Plaintiff provided maintenance services in respect of the maintenance and servicing of Defendant’s electronic systems from the 2nd day of January 2012 to the 31st day of August 2012 and recovery of the sums of US$172,055.82 and GH¢24,107.75 have been overtaken by events as the Defendant has made the sums available to the Plaintiff before the hearing was concluded. The Plaintiff is also not entitled to a declaration that the Defendant has breached the terms of the agreement/contract as there was no existing contract for which a breach could have occurred. The rest of the claims are also refused.

 

I hold each of the parties liable for the unfortunate scenario that has unfolded in court. The Plaintiff tried to over reach the Defendant by acting in consonance with an expired contract which to its knowledge had not been renewed. The Defendant also did itself no favours when it permitted the Plaintiff and its workmen on its premises after the contract had expired and had not been renewed. Much time and effort has been wasted in this laissez faire attitude.

On this score, each party is to bear its own costs.

 

 

 

(SGD)

 

JENNIFER A. DODOO

 

JUSTICE OF THE HIGH COURT