ADM COCOA GHANA LIMITED vs. INTERNATIONAL LAND DEVELOPMENT COMPANY LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
ADM COCOA GHANA LIMITED - (Plaintiff/Respondent)
INTERNATIONAL LAND DEVELOPMENT COMPANY LIMITED - (Defendant/Appellant)

DATE:  15TH DECEMBER, 2016
SUIT NO:  HI/6/2015
JUDGES:  GYAESAYOR JA (PRESIDING), K.N. ADUAMA OSEI JA, M.M. AGYEMANG (MRS) JA
LAWYERS:  EDEM KUTSIENYO FOR THE PLAINTIFF / RESPONDENT
KWAME BOAFO AKUFFO FOR DEFENDANT / APPELLANT
JUDGEMENT

 

AGYEMANG JA:

In this appeal, the appellant seeks a setting aside of the judgment of the High Court of the 25th of July 2014.

 

These are the matters antecedent to the present appeal.

 

On 1st February 2008, the plaintiff/respondent (hereafter referred to alternately as the respondent, the plaintiff, or the Employer) describing itself as a company involved in cocoa processing, signed a works contract with the defendant/appellant (referred to hereafter alternately as the appellant, the defendant, or the Contractor), for the construction of a sixteen thousand square meters warehouse at Kaase in Kumasi: the approximate size of two international football parks. The construction was expected to be completed by 1st September 2008 when the respondent was due to receive a consignment of cocoa for storage thereat.

 

Among the terms contained in the contract exhibit Awere these: That the standard of work, workmanship and materials were to be in accordance with the British Standard Specification or Codes of Practice; the specifications intended to govern the construction were said to be contained in two documents attached thereto:the approved designs, and the bill of quantities. The appellant’s obligations included the carrying out of the works in accordance with another document referred to as the Program of Works. In that enterprise, the appellant was required to: use reasonable skill, care and diligence; good quality materials approved by the respondent; to employ the best workmanship and experienced craftsmen; to execute the works in the best careful and first class manner; to comply with statutory requirements; to work in accordance with standard technical specification and requirements of the employer as agreed by the parties; to execute the works to the respondent’s satisfaction;to complete the works by the due date of September 1, 2008, and to deliver same up.

 

There were also clauses setting out the Contractor’s liability for defects: we reproduce them as follows:

 

“3.4 LIABILITY FOR DEFECTS

3.4.1 The Contractor covenants and undertakes to promptly repair all defects in the structure, walls, floors, plumbing, installations and all the works he has executed which occurs within one year of the completion date.

3.4.2 The Contractor shall be liable to the Employer for all loss damage or injury caused to the Employer or its servants and licenseeswhich is caused by any structural defect, inferior materials used or poor workmanship, negligence of the contractors workmen, negligent working or maintenance of lighting or plumbing installations or other equipment or lack of drainage.

3.4.3 The Contractor agrees to compensate the Employer in full for all loss, damages, expenses, costs including legal costs the Employer shall incur for loss damage or injury which arises out of the works or any product or material used or installed on the property”

 

The defendant commenced the construction which was supervised in some measure by servants of the plaintiff: notably, the plaintiff’s representative and Project Manager at site whose duties on his showing, were quality assurance and supervision to ensure that the defendant worked within prescribed timelines. When construction was completed, the warehouse was handed over to the plaintiff. The plaintiff stored its cocoa on the premises; the cocoa was carried into the huge warehouse by thirty-five ton trucks, and forklifts were then used to pack them on the warehouse floor. The warehouse was reportedly filled with bags of cocoa almost immediately, and while stored bags were constantly removed for processing, others were brought in to replace them. It was for this reason that the plaintiff allegedly noticed nothing untoward until the floor was emptied of the bags. It was the case of the plaintiff in pleading that “about a year after” the warehouse was handed over to it, it discovered that the concrete floor of the warehouse had developed cracks and failure; dust was everywhere,cracks were seen on the concrete floor of the warehouse, and foreign materials such as vegetative material were visible everywhere. In his sworn testimony however, the said representative of the plaintiff alleged that the discovery was made eighteen to twenty-four months after the handing over of the warehouse to the plaintiff. The plaintiff brought the defects as noted to the attention of the defendant. The plaintiff also commissioned two experts to investigate the cause of the failure of the concrete floor. The defendant whose attention was brought to the problem commissioned an expert (who happened to have been the warehouse’s designer) to look into the problem. The experts produced their reports, and although all of them recommended works to bring the concrete floor to a satisfactory state, they differed in the cause of the problem, and in what was required to remedy it.

 

According to the two experts commissioned by the plaintiff, the cause of the failure of the floor was the poor workmanship of the defendant, the use of defective materials, and the failure or neglect to adhere to the specifications contained in the designs and bills of quantities incorporated into, and said to govern the execution of the works contract. More particularly, PW1 a structural engineer from SOCOTEC Africa based in Abidjan in Cote D’Ivoire who was one of two persons engaged by the plaintiff to conduct an investigation, authored exhibit E in which he identified the problems to include a quasi-generalised wear of the surface of the ground floor slab which he attributed to ‘wear resulting from the poor quality of concrete and no surface hardener’. The problems also reportedly included dust on the ground floor slab; multidirectional cracks of varying depth of the ground floor slab which the witness said were caused by concrete shrinkage due to the poor quality of sand used; spalling along existing joints and located settlements which he attributed to stresses generated by loads greater than the strength of the concrete as well as the lack of steel on the lower ground floor slab, and the presence of foreign objects such as shells, roots, pieces of tires, plastic film.Giving evidence in court he added that apart from what he observed being: the presence of dust on the floor, cracks, uneven surfaces, erosion of the floors surface, and the presence of foreign materials including roots of trees, pieces of car tyres and some plastics exposed in the concrete, he also tested concrete thickness level of 15 centimeters and inferior quality concrete which tested 5.4/6.4 instead of the requisite C20/25 in strength.

 

To solve the problem, he recommended among other things, a partial demolition of located settlement areas; the addition of 10 centimeters of concrete reinforced with wire mesh sealed into the existing connectors; that the ground floor should be split, or alternatively, that truck trailers be denied access into the warehouse.

 

In the executive summary to the report exhibit F produced by plaintiff’s second expert: PW2 and his team, it was stated (as it was in exhibit E), that the floor slabs showed cracks and that vegetative materials and soft spots were present thereat. The report attributed these to the use of sand that was not properly sieved or at all, or perhaps to sand with a high silt/clay content. The investigation revealed (using the rebound hammer test), that the average strength of the concrete was 23N/mm2. He testified that while the said strength may have been suitable for ordinary loads, it was not adequate for traction loads and for the use to which the warehouse was put. Remedial measures were said to include strengthening the floor slab by the installation of 100 mm slab of grade 25 concrete, the use of steel mesh, quarry and, 10mm size coarse aggregate and the addition of clay pozzolana to Ordinary Portland Cement. The plaintiff which alleged that by reason of the damage to the floor, the defendant ought to be liable for the costs of replacement of the entire floor, gave the replacement value in the various sums of GHC 2,760,000 and GHC4,495,067 being quotations from two firms: Consar Limited and Taysec Limited respectively, while its expert PW2, set the cost of remedying the defective floor, at GHC935,000.

 

It was the defendant’s case that the problems arose out of the use to which the plaintiff had put the floor: the use of thirty five ton trucks and forklifts on the warehouse floor. The defendant alleged that the said use caused the deterioration as the floor was neither designed for such loads, nor the traction produced by the activity of the said trucks thereat.It was the defendant’s case that the contract for the construction had never contemplated the use of trucks on the floor. In this regard, the defendant pleaded that when during construction,the plaintiff introduced the idea that trucks might be used on the warehouse floor, thedefendant recommended the use of a floor hardener to meet the said intended use. The defendant alleged that the plaintiff, having been apprised of the price of the floor hardener did not pursue the matter any further. This assertion of the defendant was not denied by the plaintiff who chose not to file a Reply to the Statement of Defence. That the information that trucks might be used in the warehouse was only introduced during construction,was admitted by the plaintiff’s witness.

 

Exhibit 2 that was produced by the defendant’s expert: Mace Consult, supported the case of the defendant, for it placed the blame for the wearing off of the concrete floor slab squarely on the heavy traffic loads on the slab, more particularly the use of trucks and forklifts that would “turn, reverse and apply brakes inside the warehouse”. Furthermore, Exhibit 2 indicated that the rough finish of the concrete would not be hard enough to withstand the abrasive forces. Thus was it recommended that floor hardeners be applied to make the floor resistant to abrasion.

 

At the close of pleadings, the court set down issues for determination in the suit. We reproduce them as follows:

1. Whether or not the warehouse was constructed in accordance with the agreed specification in the agreement between the parties;

2. Whether or not the defects in the floor of the warehouse was due to poor workmanship and the use of inferior materials by the defendant;

3. Whether or not after the expiration of the defects liability period of one year, the defendant was liable to compensate the plaintiff in the sum of USD 3,500,000;

4. Whether or not the defendant was aware of the intended use of the warehouse before construction

5. Whether or not the plaintiff is entitled to its claim.

 

The learned trial judge, having heard all the evidence which included the said documentary evidence, entered judgment for the plaintiff, holding inter alia, that the damage to the floor was caused by the defendant’s failure to adhere to the terms of the contract regarding the concrete strength, concrete depth, the quality of sand used. The learned trial judge made awards that were not easy to understand, for having found that the defendant was in breach of the contract, he awarded the sum of USD2 million being the replacement value of the concrete, as well as general damages and costs.

 

It is against the said judgment that the present appeal has been brought.

 

The appellant filed six grounds of appeal which we reproduce as follows:

 

That the trial judge erred in holding that the warehouse floor was not constructed in accordance with the agreed specification;

 

That the trial judge erred in holding that despite the expiration of the one year defects liability period, the defendant was liable to compensate the plaintiff in full for the costs of the repair or reconstruction of the warehouse floor;

 

That the trial judge erred in awarding the sum of USD2 million or its cedi equivalent as the cost of reconstructing the warehouse floor to the plaintiff against the defendant

 

That the trial judge erred in awarding general damages of GHC50,000 in favour of the plaintiff against the defendant

 

That the costs of GHC8, 000 awarded is excessive in the circumstance; That the judgment of the High Court is against the weight of the evidence.

 

Due to the sheer prolixity of the appellant’s submissions, an impression is created that the issues in this appeal are complex. They are not, although they are admittedly weighty. We therefore intend to make short work of the mattersraised and we will in that enterprise, consider the arguments canvassed on grounds a, b, and f together, as they are interlinked one with the other.

 

The cardinal principle that guides the exercise of the appellate jurisdiction is that an appellate court such as we are, must be slow to overturn findings of fact made by the trial court. Indeed, unless it is demonstrated that the findings of the trial court are perverse, or cannot be supported by the evidence, same ought not as a general rule be disturbed on appeal, see: In Re Okine (Decd); Dodoo and Anor v. Okine and Ors [2003-2004] SCGLR 582. This is because the trial court which has the exclusive right to make primary findings of fact, has among other things, the advantage of listening to the entire evidence and observing the demeanour of the parties and their witnesses, see also: Agyenim-Boateng v Ofori and Yeboah [2010] SCGLR 861. Yet because an appeal is by way of rehearing, see:Rule 8(1) of the Court of Appeal Rules CI 19 , acomplaint that the judgment is against the weight of the evidence, invokes the jurisdiction of this court to look at the totality of the evidence led, evaluate same, and come up with its own conclusions as to the findings of the trial court, see: Oppong Kofi and Ors v. AttibrukusuIII [2011] 1 SCGLR 176, also: Djin v. Musa Baako [2007-2008 SCGLR 686].

 

Before we delve into the merits of the grounds of appeal, we must point out that in its arguments with regard to the first ground, the appellant set out three issues which it made capital of, and which seemed to be the substratum of much of his argument. The said issues are the following:

i. Whether or not the issuance of a final certificate by the plaintiff to the defendant after the discovery of defects during the retention period served as an evidential bar to the plaintiff’s claim;

ii. Whether in the event that the defendant constructed the warehouse in accordance with the agreed specification, same could sustain the use of trucks and forklifts on the warehouse floor or in the alternative

iii. Whether or not the agreed specification could sustain the use of trucks and forklifts.

 

We regret to say however that although substantial arguments were marshaled in support of the appellant’s stance on the said issues, these were never issues at trial.The issuance of a final certificate and its import re the plaintiff’s case was never the case of the defendant, and neither party tendered or relied on such a document. The matter of whether the specifications in exhibit A would have supported the use of trucks and forklifts were also never issues upon which determination was sought and made. The said issuesthus introduce a wholly different case from the defendant’s case at trial. Nor has there been a demonstration of an exceptional circumstanceregarding why this issue which is not one of jurisdiction, should be raised here for the first time.It seems to us that an attempt is being made to smuggle them into this appeal as an integral part of ground (a). Indeed, the second issueactually contradicts the first ground of appeal under which it was purportedly argued. We will therefore discountenance the arguments proffered by the appellant in that behalf, see:Royal Dutch Airline( KLM) v. Farmex ltd 1989-90 1 GLR 46 (CA).

 

With regard to the matters set down for determination at trial, the learned trial judge held, regarding the first issue, that the warehouse floor was not constructed in accordance with the agreed specification contained in exhibit A the contract document. In this regard, he made the following findings: that the defendant had not constructed the floor of the warehouse with concrete that met the requisite strength of C25/20; that the defendant had not used concrete that had the requisite thickness of 17.5 cm, that the concrete floor which contained foreign objects, was evidence of poor workmanship and the use of inferior materials contrary to what was set down as the defendant’s obligation in exhibit A, that good quality materials and not inferior or deleterious materials would be used in the construction of the warehouse.

 

We are not persuaded, in spite of the matters so forcefully canvassed by the appellant, that these findings were erroneously made. We say so for the following reasons:

 

The parties entered into contract for the construction of a warehouse. The agreed specifications of the floor works included:

 

“REINFORCEMENT

 

Steel fabric mesh reinforcement to B.S 4483 reference o A42 (weighing 2.22kg/square metre) with 300 mm laps ways…

 

CONCRETE WORK

 

MASS CONCRETE

 

Reinforced in-situ vibrated concrete class 25/20as described in floor bed 175mm thick…”

 

It is common cause that the floor of the warehouse had serious problems, including the development of cracks, the presence of dust, erosion and exposure of iron rods. Experts were commissioned by both parties to among other tasks, investigate the causes of these problems. Although all the experts commented on the load and pressure the floors had been subjected to, that is: by the use of trucks and forklifts (which matter cannot be ignored), the plaintiff’s experts found that the strength of the concrete was not up to the requisite standard as contained in the specifications for the construction agreed to by the parties in exhibit A the contract document. The first plaintiff’s witness indicated that using the cylindric test on five sampling points, the strength which should have been C20/25 (C25/20 using the cubic test) recorded an average of 18.75/6.75.

 

Using the rebound hammer (Schmidt) test, PW2 found from twelve readings at each location, that the floor had an average concrete strength of 23N/mm2 these values were clearly below the agreed concrete strength of the concrete.

 

The said experts also found that the thickness of the concrete was not up to the 17.5 cm agreed upon, but an average of 15cm, (per PW1 in some areas, the thickness as 12cm). Although the defendant countered that the depth of 15cm as found by the experts was the result of “chewing” occasioned by the use of trucks in the warehouse, the defendant’s witness DW1, who was responsible for designing the floor, testified that the defendant gave him a brief to design the substructure of the warehouse with concrete thickness of 15cmand that was what was contained in his design. The said evidence ofthe defendant’s witness, went to corroborate the assertion of the plaintiff, that the concrete thickness was not up to the agreed thickness of 17.5 cm, thus lending credence to the case of the plaintiff, see: Tonado Enterprises and Ors v. Chou Sen Lin [2007-2008] SCGLR 135.

 

The experts also found foreign material in the concrete and exhibited pictures of these (as well as cracks and other types of damage) in pictures exhibit C series. These were said to include vegetative material which had the potential to rot and affect the strength of the concrete, rubber and plastic which could affect the bonding of the concrete. The plaintiff’s representative testified, (and this is supported by exhibits B series, being minutes of meetings with the defendant), that the foreign material found in sand was unacceptable. There were said to be promises by the defendant’s servants to sort out the problem, and sieves were installed to sieve the sand. In spite of these apparent efforts, it was evident from the presence of foreign material in the concrete, visible to the eye and apparent from the exhibit C series at the time the experts were commissioned to undertake their tasks, that the problem persisted, and could only have arisen from the use of less than high quality sand, and the lack of, or improper sieving to remove the foreign material. As was explained by PW2, although the presence of foreign material did not necessarily mean the strength of the concrete would be affected, its potential to affect the bonding and to leave holes after vegetative matter rotted, was enough to affect the quality of the concrete. In that circumstance of weakened concrete, per PW2, even if a floor hardener was used, it would not prevent its deterioration.

 

The defendant and its witness countered that the construction was done under the supervision of the plaintiff, and that strength tests (cubic) were conducted at a frequency of four tests per day and that the plaintiff’s servants approved of the strength during construction. It was their case then that the deterioration for the floor did not arise out of concrete strength, quality of thickness or even the type of materials but the use, being the use of trucks of loads up to thirty-five tons whose traction on a concrete floor not laced with afloor hardener, allegedly produced the damage to it.

 

While we do not discount the alleged effect of the use of trucks on a floor which per its designer, was designed for loads of up to 3.5 tons, we find overwhelming evidence in support of the first issue set out for determination. In our judgment, the plaintiff met the burden of proof regarding what it asserted. This burden included the burden of persuasion being: its obligation to establish a requisite degree of belief, and the burden of producing evidencewhich required it to introduce sufficient evidence to avoid a ruling on the issue against it, regarding the matters it alleged in support of its case, see:Ss. 10, 11 (1) and (4) of the Evidence Act NRCD 323. These matters were that that the defendant failed or neglected to adhere to the specifications agreed upon in exhibit A in the construction of the warehouse.The agreed specifications which the construction fell short of were: concrete strength of C25/20, concrete thickness of 17.5cm, and the use of good materials (including high quality sand which would not contain deleterious material).We have no reason to disturb the trial judge’s finding that the floor was not constructed according to the agreed specifications.

 

The defendant which has valiantly fought this case has also canvassed that the use of the phrase ‘about a year’ placed the discovery of the defect within the defect liability period of one year, thus effectively extinguishing any claims that the plaintiff may have against the defendant if it neglected to pursue its claim against the defendant within the period. Thus the defendant complains that the finding that the plaintiff could bring suit against the defendant after the said period, and after paying to the latter the retention money reserved for such works, was in error. We have carefully considered the arguments proffered in that behalf, but we are unable to agree with the submissions of the appellant in that regard.

 

Having looked up the meaning and usage of the word ‘about’ in the Oxford Learners Dictionary, we are persuaded that the expression “about a year” would mean “near or close to a year”, which would then mean, in line with the pleading of the plaintiff/respondent, that the “cracks and failure” were discovered before the end of one year, and thus, within the liability period. Wehowever find from a reading of the entire Clause 3.4 (including 3.4.2 set out before now which provided for liability for loss et al arising out of the execution of the works by the defendant, and was not time-bound), that liability could exist against the defendant in certain circumstances outside what was set out in Clause 3.4.1 – the one year period.

 

What is the import of Clause 3.4.1 then? We hold the view that Clause 3.4.1 was as stated in exhibit A, a covenant by the defendant to carry out corrective works which became apparent and needful within the one year period following the completion of the works. The said covenant, being “a formal agreement or promise, usually in a contract” Black’s Law Dictionary 8th Ed (2004) 1381,entitled the plaintiff/employer to recall the defendant to sort out problems connected to the works. It did not, in so far as the contract exhibit A did not expressly exclude the defendant’s liability for defects after the one year period, shut the door against claims that the plaintiff might choose to bring against the defendant for loss, injury, damage suffered by the plaintiff even if same were discovered within the said period of one year, see: Crestar Ltd v. Michael John Carr [1987]37 BLR 118 CA.That is the import of Clause 3.4.2 which fixes the defendant with liability for defective work both in contract: “loss damage or injury caused to the Employer or its servants and licensees which is caused by any structural defect, inferior materials used or poor workmanship…”and in tort: “…negligence of the contractors workmen, negligent working or maintenance of lighting or plumbing installations or other equipment or lack of drainage”,and is not time-bound;and Clause 3.4.3 which sets out the contractors liability for pay compensation for defective work. It is our view therefore, that even if as the plaintiff’s representative alleged (contradicting the plaintiff’s pleading), the defect was not discovered after eighteen to twenty-four months, and only after the floor which was immediately packed with sacks of cocoa was emptied for the first time,the defendant’s liability was not extinguished after the expiration of the one-year period stated in Clause 3.4.1. It is our view then that the finding of the learned trial judge that the instant suit brought outside the one-year defect liability period was maintainable, was not erroneous and we have no problem with upholding it.

 

What we do have a problem with however, is the damages awarded to the plaintiff under two different heads of damage as well as the quantum thereof.

 

First of all, we have had regard to the case of the defendant (as supported by the expert report exhibit 2),and by the evidence of the three experts (two being plaintiff’s witnesses) as well as their reports exhibits E, F and 2, that the use of trucks of up to thirty-five tons on a floor designed (per DW1 the designer) for a load of 3.5tons without the use of a floor hardener may have caused some damage to the floor. But this suit was framed in contract, and we are unable to agree with the learned trial judge that the defendant’s liability arose out of a duty to construct the floor to the “requisite strength” having regard to the size of the warehouse which should,according to the learned trial judge, have alerted the defendantthat trucks would be used to carry the cocoa into the warehouse. We hold the said finding of the learned trial judge erroneous in law, for that would be importing the concept of the duty of care into this matter, and thus, veering into the area of tort. Our duty is to uphold what the parties had in their contemplation at the time of contract and there is no evidence that at the time of contract, it was envisaged that trucks would be used on the floor. Indeed as aforesaid, the plaintiff’s representative and ProjectManager confirmed the defendant’s pleading, that it was during the construction that the matter of the use of trucks came up; but in the absence of a pleading denying the factual averment of the defendant that the plaintiff was advised to use a floor hardener but declined to, it is evident that no agreement was definitively reached with regard thereto.We therefore hold, having found that the defendantfailed to construct the floor according to the specification agreed in the contract document exhibit A, that it was in breach of the contract. It is for this reason that the defendant must be heldliable for the damage and loss occasioned to the floor as a result of such breach even if other factors, including the use of the trucksmay arguably have contributed to such.

 

The award of damages flow from the fact of breach, see: Praah v Anane [1964] GLR 458 at 466, SCand unless special damages are pleaded and strictly proven, what the aggrieved party is entitled to, is the award of nominal damages unless general damages are also sought. In the instant matter general damages were sought, and the evidence of loss, and what it will take to remedy same, contained in exhibit F as well as the evidence of PW2 the author, will serve as a foundation for an award of general damages, for “in coming to a decision as to how much general damages to award, the court would need some guidance as to financial loss”, see: Royal Dutch Airline (KLM) v. Farmex Ltd 1989-90 2 GLR 623 (SC).

 

The plaintiff which sought for a specific replacement value had the burden of proving them as special damages but failed to do so.The measure of damages in the circumstance should aim at placing it in the position it would have been in had there been no breach, see: Benda v Awuku. [1979] GLR 320.

 

The learned trial judge awarded the sum of USD2million to the plaintiff, saying that he had upwardly adjusted what was actually proven - the sum of GHC 1,714,822.50to take care of inflation.

 

We do not find proof of the said sum for the works required to place the plaintiff in the positionit would have been if there had been no breach. What we do find is that the learned trial judge lifted the said figures from the bill of quantities which formed an integral part of exhibit A and it included reinforcement, formwork, concrete work, miscellaneous and substructure which may not necessarily be what may be needed to remedy the breach.

 

Regarding what it would take to place the plaintiff in the position he would have been in if the contract had been performed, although the plaintiff adduced evidence per its experts on the loss, with regard to the costs of repair/replacement in spite of the reports exhibits D, D1 which quoted the value of such works, only one expert: PW2 gave evidence regarding how he arrived at the figure contained in exhibit F. Inthe executive summary of exhibit F, which was authored in April 2012 as the report of an expert who undertook the task of investigating the problem and recommending remedial measures, remedial measures were said to be: “The use of concrete of high strength, at least grade C25;The use of fine aggregate material with low silt/clay and sulphate chloride contents…the use of steel mesh in the concrete; the use of pozzolana additive to OrdinaryPortland Cement”.

 

The figure quoted for these works was the sum of GHC935,000.

 

The other two documents: exhibits Dand D1 were invoices from Consar Ltd and Taysec Ltd which quoted the replacement value of the floor as: GHC4, 459,067.54 and GHC 2,760,000 respectively. No evidence was led by these two companies regarding how the figures were arrived at. In the absence of such, exhibits D1 and D reveal on their face that the works for which the said sums were quoted went beyond the original contract contained in exhibit A. For example, exhibit Dcalls inter alia, for concrete grade of C30/20, in 200mm thick pavement and exhibit D1 for among other things, reinforced concrete paving slab of 300mm.both went beyond the original specification of C25/20 strength and 175mm thickness. As aforesaid, in the absence of the proof of special damages, the plaintiff is entitled to an award of general damages whichshould place him in the position he would have been in had there been no breach, that is, to permit him to obtain a floor of concrete strength of C25/20 and thickness of 17.5 centimeters with the use of proper materials. It is for this reason that the figure of GHC935,000 quoted in exhibit F and defended by the plaintiff’s own expert which was said to be the replacement value, is the proper award of general damages in the circumstances. There was no basis for the duplication of awards that the learned trial judge made, and we set aside the sum of USD2 million as well as the GHC50,000 and in its place award the sum of GHC935,000 to the plaintiff as general damages.

 

By reason of inflation in this country which we cannot shut our eyes to, we further hold that this is a proper circumstance for the award of interest on the said sum of money, to take care of the inflation the learned trial judge tried to factor in his award. Indeed PW2 whose report quoted the said sum said while giving evidence in 2014, regarding the repair value of GHC935,000 stated in exhibit F: “It should be more…” and he added that the Quantity Surveyor placed a proviso on the figure that it would be influenced by market prices.Of the effect of market prices on the price from 2012 until 2014 when he gave evidence, he added: “I am not a quantity surveyor but it can easily be twice what is put there”. We therefore hold that interest be calculated on the said sum of GHC935,000 at the prevailing bank rate from April 2012 when the replacement value was quoted in exhibit F to be the sum of GHC935,000.

 

With regard to the last ground of appeal, the appellant failed to demonstrate the area of error regarding the trial judge’s discretion in the award of costs as is required by Rule 8(4) of CI 47. Nor were arguments proffered in that behalf. We therefore decline to consider the said ground.

 

The appeal therefore succeeds in part.

 

Costs…

 

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