IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ADOLPH TETTEH ADJEI - (Appellant]
ANAS AREMEYAW ANAS AND HOLY QUAYE -[Respondents]
DATE: 29 TH NOVEMBER, 2018
CIVIL APPEAL NO: H1/107/2018
JUDGES: AGNES M. A. DORDZIE (MRS.) J.A. (AS SHE THEN WAS) (PRESIDING), F. G. KORBIEH J.A., I. O.TANKO AMADU J.A.
EMMANUEL BRIGHT ATOKOH APPEARING WITH FRANCIS OFFIN, PEARL SADAH AND FRIDA AMOAKO
FOR THE PLAINTIFF/APPELLANT
MR. DAVID AMETEFE FOR THE DEFENDANTS/RESPONDENTS
BARBARA ACKAH-YENSU, JA
The Plaintiff/Respondent (hereinafter simply referred to as the Respondent) instituted the action culminating in this appeal, against the Defendants/Appellants (also to be referred to simply as the Appellants). The claim was for:
“1. Recovery of the sum of Gh¢552,486,368.50 being monies owed and due the Plaintiff as financial facility granted the Defendant.
2. Interest on the sum at the agreed rate of 15% per annum from the 30th June 2010 to date of final judgment”.
These are the matters that gave rise to the action at the trial High Court.
The Respondent is a financial institution registered and doing business in Ghana. The 1st Appellant is a limited liability company registered under the laws of Ghana and a customer of the Plaintiff. The 2nd Appellant is the Managing Director of the 1st Appellant-Company. By their Amended Statement of Claim, the Respondent at the request of Appellants approved a loan facility of Gh¢3,000,000.00 on
2nd January, 2010 to 1st Appellant to purchase 99,000 mini bags of maize for storage and re-sale under a dual control arrangement with the 2nd Appellant guaranteeing the facility. It was agreed between the Parties that the facility should attract interest of 33% per annum. The facility granted the Appellants was secured with a charge over their plant and machinery which was executed by the 2nd Appellant, together with a Directors’/Shareholders’ Indemnity. Respondent disbursed the loan facility to the Appellants in tranches.
The first tranche of Gh¢1,500,000.00 was paid in February 2010, which 1st Appellant used to purchase and store 52,000 mini bags to maize. After releasing the first tranche, the Appellants applied for the release of the second tranche in April 2010 to purchase and store the remaining bags of maize which was 47, 000mini bags. The release of the second tranche was contingent upon fulfillment of dual control over the stocks to be ensured at the storage site by the Respondent and the 1st Appellant. According to the Respondent, the available warehouse for the storage of the maize could not contain the remaining 47, 000 mini bags. As a result, the Respondent disbursed Gh¢550,000.00 to the Appellant for the purchase and storage of 25,000 mini bags of maize in May 2010.
In all, the Respondent released an amount of Gh¢2,050,000.00 to the Appellants for the purchase and storage of maize, however, the Appellants have defaulted in its repayment. As at 31st January 2011 the Appellants indebtedness to the Respondent stood at Gh¢2,486,368.50.
By their Amended Statement of Defence, the Appellants, on the other hand, admitted that the Respondent approved a loan facility of Gh¢3,000,000.00 to the 1st Appellant but contended that the Respondent failed without any justifiable cause, and in breach of its obligation, to make the total sum available to the 1st Appellant. The 1st Appellant therefore counterclaimed against the Respondent for:
“1. Damages for breach of Plaintiff’s obligations under the facility agreement.
2. Damages for wrongful debiting of its accounts.
3. Interest on any damages awarded against the Plaintiff up to the date of payment”.
The learned trial Judge entered judgment for the Respondent and against the Appellants jointly and severally, and also dismissed the Appellants’ counterclaim.
It is this decision that the Appellants are aggrieved by and which the instant appeal has been brought against.
The Appellants set out four grounds of appeal which we reproduce as follows;
“i. The learned trial Judge erred by holding that the Plaintiff’s failure to disburse the entire loan approved for the 1stDefendant was justified.
ii. The learned trial Judge erred by dismissing the counterclaim in its entirety.
iii. The judgment (in relation to the counterclaim) is against the weight of the evidence on record.
iv. The learned trial Judge erred in stating what the Plaintiff is entitled to recover without taking into account loss suffered by the Defendant for the non-disbursement of the entire loan approved”.
The Appellants are praying for the following reliefs;
“i. An order setting aside the judgment in relation to the counterclaim.
ii. An order granting the Defendants/Appellants’ counterclaim and awarding them the appropriate damages”.
Counsel for the Appellants argued grounds (i) to (iii) in his written submissions but not ground (iv). He stated that he did not intend to argue ground (iv) as that had been taken care of by the other grounds argued.
Respondent, on the other hand, did not file written submissions at all, hence did not contest the appeal. Rule 20(4) of The Court of Appeal rules, 1997 (C.I.19) provides thus;
“A party upon whom an appellant’s written submission is served shall, if he wishes to contest the appeal, file the written submission of his case in answer to the appellant’s written submission within three weeks of the service, or within such time as the Court may upon terms direct”.
Rule 20(8) of C.I.19 empowers this Court to proceed to hear an appeal without giving the Respondent a hearing for non-compliance with Rule 20 (4) by failing to file written submissions of its case. Nonetheless, since an appeal is by way of a rehearing, and raises matters of law and facts, it is for this Court to decide from the Record of Appeal (ROA) whether or not to allow the appeal having regard to the evidence on the record. Submissions from Counsel for the parties only assist the Court in this regard. There is therefore no other disadvantage to the Respondent other than that stated in the said Rule 20(8) of C. I.19.
This Court, as the appellate court, is required to satisfy itself that both on the facts or law it is evident that the trial Judge misapplied himself and arrived at an erroneous conclusion justifying its intervention. As reiterated in Djin vrs Musah Baako [2007-2008] SCGLR 684, the onus is on the Appellant to clearly and properly demonstrate to this Court the lapses in the judgment he is appealing against.
Although the Appellants have set out complaints against specific findings, we find that grounds (i) - all complain about the evaluation of the evidence by the learned trial Judge which allegedly led to a judgment that was against the weight of the evidence led. For this reason, in our consideration of the matters on appeal, we will subsume grounds (i) and (ii) under the third ground (iii).
We are by this omnibus ground, which is that the judgment is against the weight of evidence, being invited to reconsider the entire evidence for the purpose of determining if the decision based thereon is reasonable; see Agyenim-Boateng vrs Ofori and Yeboah  SCGLR 861. We will in this endeavor have regard to inter alia, the specific matters of complaint subsumed underground (iii).
This appeal, as aforesaid, is basically against the dismissal of the Appellants’ counterclaim by the trial High Court.
The position of the law is settled as far as the burden of proof in a counterclaim is concerned. Order 12 rule 1 of the High Court (Civil Procedure) Rules, 2004, C.I.47 provides thus;
“(1) A defendant who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in an action in respect of any matter, whenever and however arising may, instead of bringing a separate action, make a counterclaim in respect of that matter.”
Furthermore, in Amon vrs Bobbelt  22 QBD 543 Bowne LJ held at 548 thus;
“A counterclaim is to be treated for all purposes for which justice requires it to be so treated as an independent action”.
In essence, a defendant’s counterclaim is treated in the same way as the plaintiff’s case. The roles are reversed and the defendant (as plaintiff in the counterclaim) assumes the burden to prove his case. In effect because a counterclaim has the nature of an independent action, the counterclaim may still be continued even after judgment has been given in favour of the plaintiff or if the plaintiff’s case is stayed or dismissed.
So, in the instant case, even though the burden of proof rested on the Respondent to prove its case in the court below, on the counterclaim, it was the Appellants’ duty to prove their case.
The Appellants’ counterclaim was essentially about whether or not they were entitled to an award of damages and interest. The Appellants herein pleaded that the Respondent, in breach of its obligation to make the facility approved available to the 1st Appellant, failed to disburse the entire facility which conduct caused the 1st Appellant considerable loss and damage. The 1st Appellant could not go to the capital market to raise the shortfall between what was approved and what was disbursed because it had charged virtually all its assets to the Respondent and could not provide any other company which may be willing to lend money to it with security. That, apart from the 1st Appellant’s own warehouse which alone had a storage capacity of 30,000 mini bags of maize the Ministry of Food and Agriculture which had an interest in the project as it was to provide the country with a buffer stock of maize had made available to the 1st Appellant its warehouses and silos at different locations in the country which were inspected by the Respondent’s officer before the loan was approved. The Respondent’s assertion that its failure to disburse the entire facility was due to the 1st Appellant’s inability to provide adequate storage facilities therefore could not be true.
Counsel for Appellants argues in his Written Submissions that it was wrong for the learned trial Judge to find as a fact that the contention of the Respondent that it did not disburse the entire facility of Gh¢3,000,000.00 to the Appellants because the Appellants failed to provide storage facilities for the storage of the maize as not borne out by the evidence on record but rather made a finding that the Respondent was exercising due diligence by not disbursing the entire agreed sum. At pages 7 and 8 of his Written Submissions, Counsel stated thus:
“With the greatest respect to the Learned Trial Judge, by holding that the Respondent was influenced by due diligence rather than the inadequacy of warehouses to refuse to disburse the facility in full, he substituted for the Respondent a case which had either not been put forth by it or contrary to that put forth by it since throughout the pleadings, and the trial, the Respondent did not rely on due diligence to justify its failure to disburse the facility in full”.
This submission is based on the opinion of the trial Judge that:
“More probable than the contention that the warehousing was inadequate, I am of the considered view that the Plaintiff was rather concerned about the repayment of the loan and was only being diligent. Due diligence in risk management, judging from Exhibit K-series appears to have influenced the non-disbursement of the second tranche”.
We totally disagree with Counsel’s point of view and disagree partially with the opinion of the learned trial Judge. The pleadings of the Respondent in its Amended Statement of Claim were that the Respondent released the first tranche of Gh¢1,500,000.00 to the Appellants which they used to purchase and store 52,000 mini bags of maize. The first disbursement was made subsequent to the 1st Appellant fulfilling the security conditions attached to the facility. This disbursement was also made based on the Ministry of Food and Agriculture (MOFA) had made two (2) warehouses available for storing the 52,000 mini bags of maize purchased by the Appellants. Subsequently however, there being no certainty that the Appellants would have the required number of satisfactory warehouses for the remaining 47000 mini bags of maize to be purchase, the Respondent released only Gh¢550,000.00 to the Appellants.
In the Respondent’s Approval Letter tendered in evidence at the trial as Exhibit “A” [page 10 of ROA), as part of the security for the facility the Parties herein were to have dual control over the stock of maize. Also, one of the Special Conditions therein was that: “The company shall submit to the Bank, a list of designated warehouses and silo/depot where the maize shall be stored for a visit to be undertaken by the Development Finance Unit for inspection prior to disbursement of the facility” (emphasis ours).
The Disbursement Schedule attached to the said Approval Letter was as follows:
Carriage and handling
Handling Expenses 2
Fumigation and Pesticides
General Admin/Overhead Cost
Clearly this schedule does not support the contention by Appellants that the loan facility was to be disbursed all at once and not in tranches and therefore placing the Respondent in breach of contract as alleged by the Appellants.
The evidence adduced on behalf of the Respondent regarding the schedule was as follows:
“Q. Take a look at Exhibit “A”, you see attached to it the schedule of disbursement?
Q. -Was that amount disbursed for the purchase of the maize?
A. -The amount of Gh¢2,178,000 was meant to purchase
99,000 bags maize. The schedule is itemizing the activities that would make the conditions conducive for the storage of the 99,000 bags of maize. The warehouses that were made available and which had conducive environment to store the maize had a capacity of about 62,000 bags of maize. That is how come the bank disbursed the Gh¢2,050,000. So that as and when the applicant prepared the condition suitable for the storage of the maize, the bank released the funds accordingly.”
It is a fact that in their response to the Appellants’ request for the release of the second tranche of the facility (Exhibit “J”); (see page 29 of ROA), the Respondent indicated that they were deferring release of the second tranche in order to put dual control arrangements over the stock in place at the storage site. Nonetheless, I am of the considered opinion that, this did not do away with the Special Condition in Exhibit “A” to ensure the conduciveness of the warehouses before disbursements were made.
In his Evidence –in-Chief, the Respondent’s Representative testified as follows:
“Q. Defendant state under paragraph 12,1st defendant says in answer to paragraph 7 and 9 of the amended statement of claim that by deciding to disburse the loan in tranches, the plaintiff sought to numerically vary the terms of the loan agreement in a manner that amounted to a breach. What do you say to that?
A. -My lord, as I said earlier the agreement to disburse the loan in tranches was based on the fact that the applicant did not have a single warehouse that have the capacity to contain 99,000 mini bags of maize and therefore as and when the applicant made a warehouse available, because of the dual control that we needed to control the inventory together, the bank will release the funds that will be able to buy enough to be contained in the warehouse. That was how come that facility was disbursed in tranches”.
The Respondent’s Representative’s further evidence was:
“Q. The defendant stated under paragraph 12 of the statement of defence and counterclaim that in answer to paragraph 7 and 9 of the amended statement of claim, that by deciding to disburse the loan in tranches the plaintiff sought to unilaterally vary the terms of the loan agreement in a manner that amounted to a breach. What do you say to that?
A. My lord that statement is not true. During the course of appraising the report for the approval facility my colleague Mr. Sarpong who is now on retirement went to inspect the warehouses with the 2nd Defendant at Wenchi, Kumasi, Sunyani and another place. And according to Mr. Sarpong, the warehouses in Wenchi and Sunyani were not in good condition. Even the two warehouses in Kumasi were also not in good condition that the defendant was able to put the place in a proper condition within a month to enable disbursement to start in tranches based on availability of space because there was the need to ensure that both the bank and the defendant has dual control over the base consignment”.
The Respondent Bank’s Representative, in my opinion, was consistent in his evidence when he testified as follows under cross-examination:
“Q. I further suggest that if the 1st defendant had not fully satisfied the bank that it was capable of warehousing the entire 99,000 mini bags of maize the bank would not have approved the Gh¢3,000,000.00, it would have approved something less?
A. That is not true. In inventory loan if the applicant provides some evidence to suggest capacity to store and the bank finds the evidence credible as in this case coming from the Ministry of Agriculture, the bank could go ahead to approve the loan but the disbursement would be subject to the bank visiting the storage installation to ensure that indeed they are in the right condition to receive and store the maize till such a time that both the bank and this customer would agree to sell the maize”
“Q. It is not true that the warehouses were found not to be conducive.
A. I disagree, because the schedule officer found the condition not conducive and recommended to the bank to disburse the funds in tranches.
Q. Was that recommendation made prior to the approval of the loan?
A. The recommendation was made prior to the disbursement of the loan and after the inspection of the warehouses.
Q. Are you by that suggesting that the inspection of the warehouses by your officer was done after the loan had been approved?
A. The warehouses facilities were inspected before the loan was approved.
Q. You will agree with me that had the 1st Appellant been told prior to the approval that his warehouses had been inspected and they could not see the entire amount of the 99,000 bags of maize, you would have approved much lower figure.
A. In inventory loan that situation does not apply. In inventory loan, once the bank has some evidence that the customer had some form capacity as alluded to by the letter sent to the bank by the Ministry of Agriculture, the bank could go ahead and approve the total sum. But the releases or the disbursement of the actual funding for the purchase of the commodity would be subject to conditions such as making the warehouses conducive, pest free, rodent free and other conditions so that the maize could be stored over a period of time to enable both the bank and the applicant agree on when to sell, whom to sell to and the proceed paid into the bank’s account”.
The Respondent’s witness (PW1) also stated in his Written Statement that prior to disbursement of the first tranche of the loan and in line with the Special Conditions for the loan, the Bank visited some designated warehouses which were purportedly ready to receive stock. Their analysis of the capacities of the two warehouses suggested that a maximum of 52,000 mini bags maize could safely be stored there. This analysis, he stated, was agreed with the representative of the 1st Appellant. It was based on this that a recommendation was made for the release of Gh¢1.5 million to purchase about 52,000 mini bags of maize. He also stated thus:
“I t should be noted as a Bank, it was more profitable to release the total amount approved as early as possible so as to earn maximum interest on the facility. However, prudence required that the right trade-off was made between earning maximum interest and ensuring the safety/quality of the maize purchased. The capacities of the warehouses that were considered ready to receive maize was estimated at 52,00 mini bags”.
Under cross-examination, PW1 testified thus:
“Q. Can you tell the court the part you played in this transaction.
A. On receipt of the application a facility, I had an initial discussion with the client and then nominated one of my credit officers to handle that project. Now when the facility eventually got approved, I accompanied the nominated credit officer to visit some of the designated warehouses in fulfilment of the one of the pre-disbursement conditions. Thereafter, based on the discussions and agreement with the client, the first tranche of Gh¢1.5 million was recommended to be released to the client to commence his project. The understanding then was that subsequent disbursement would be based on it fulfilling all the other loan conditions spelt out in the approval advice.
Q. In this particular case, was the inspection you undertook done before the approval of the facility?
A. The inspection was done after the approval of the facility, but before the disbursement of the facility.
Q. And at the end of the inspection, the approval that the bank gave for the facility was done because the bank was satisfied that the customer was capable of utilising the amount approved.
A. Yes, at the end of the inspection, the recommend and approved facility of Gh¢1.5million out of Gh¢3 million loan facility that was in the opinion of the bank suitable to meet the client’s recovery”.
Q. I am suggesting to you that the 1st Defendant had adequate storage facility for the entire maize that it was to purchase with the loan approved.
A. My lord, I think I have previously explained this position that in terms of intention as expressed on paper that may have been the case.
However, subsequent visits to the warehouses suggested otherwise”.
From all of the above pieces of evidence, we find it difficult to agree with the learned trial Judge when he opined thus: “I find the evidence of the Plaintiff on the issue of the inspection of the warehouses conflictual.
With both the Plaintiff’s representative and PW1 contradicting themselves, I am compelled to prefer the position of the Defendants that the Plaintiff’s inspected the warehouses before the approval for the loan. This leads to the implication that the Plaintiff was satisfied with the warehouses before they approved of the loan or the officer of the Plaintiff’s did a poor job of the inspection. In any of these two cases, the Defendants cannot be blamed”.
Consequent upon this finding, Counsel for the Appellants submitted that:
“In his judgment however, the Learned Trial Judge found as a fact and rightly so in my humble opinion, when he held that the Respondent’s use of the inadequacy of warehouses as an excuse for not disbursing the full amount of the loan approved is not supported by the available evidence. ……………….
Having found that the reason put forth by the Respondent for not disbursing the entire loan was not supported by the evidence and therefore untenable, the Learned Judge proceeded to find for the Respondent, his own reason and justification for not disbursing the entire facility”.
In our view, there was no inconsistency or conflict as opined by the learned trial Judge. As aforesaid, the Loan Approval Letter stated as a Special Condition that the Appellants were to submit a list of designated warehouses where the maize would be stored. The Development Finance Unit was to inspect the designated warehouses prior to disbursement of the facility. Respondent’s
Representative’s testimony, which was not challenged, was that during the course of appraisal for the approval of the facility, they inspected some of the designated warehouses but they were not in good condition. The Appellants were however able to put some in good enough condition for storage of the maize hence enabling disbursement to start in tranches based on availability of space. In line with this piece of evidence, Respondent’s Representative testified under cross-examination that the warehouses were inspected before the loan was approved. That, after this inspection, Appellants had to make the warehouses sufficiently conducive for storing the maize before disbursement commenced.
Now, how would the Respondent know that the warehouses were subsequently conducive if they did not inspect them again before disbursing the facility? In our view, there was no contradiction when PW1 testified that after the facility was approved he accompanied the nominated credit officer to visit some of the designated warehouses in fulfillment of the pre-disbursement condition.
We will therefore disagree with the learned trial Judge when he opined that the available evidence did not support the Respondent’s assertion that the full amount of the loan approved was not disbursed due to inadequacy of warehouses but that the Respondent was rather concerned about the repayment of the loan.
We will nonetheless agree with the opinion expressed by the trial Judge that the Respondent appeared to have been influenced by due diligence. In our opinion, the provision in the Loan Contract regarding the availability/suitability of warehouses for the storage of the maize to be purchased with the loan facility, is a nuance of due diligence.
Respondent as a bank should of course be concerned about the repayment of the loan. We have taken judicial notice of the fact that the core activity of a bank is financial intermediation. This function entails using resources from customers to offer financing to the same or other customers. The bank becomes a debtor of the customer when the customer deposits money in a bank account and must repay the money on demand. Thus a bank is required to exercise due care and diligence in the operation of customers account. A bank therefore has to put prudent measures in place to ensure the money it gives out as loans is paid back. At the same time, a bank has an equal duty of care not to run its customers’ business down.
This position is supported by the evidence of PW1 to the effect that if it was just profit that the Bank was interested in, it would have been more profitable for them to have disbursed the entire amount approved to the Appellants at once.
We are satisfied from the evidence adduced by the Respondent that it was due to the inability of the Appellants to provide the requisite storage facilities that accounted for the disbursement of Gh¢2,050,000.00 and the Appellants received same without objection. This position seems to be part of due diligence as well; can a bank lend out money in the circumstances when there is no suitable warehouse in which the maize would if purchased be kept to avoid it going bad?
The Respondent was able to establish the fact that it disbursed a substantial amount of Gh¢2,050,000.00 to the Appellants which was accepted without objection. The Appellants did not deny receiving the amount of Gh¢2,050,000.00. When 2nd Appellant was asked under cross-examination if he raised any objection to the disbursement of the loan facility in tranches, he said he did not (page 202 of ROA). It was thus unjust for the Appellants to have benefited from the funds disbursed to them and refuse to repay the loan facility. The amounts released and accepted by the Appellants were utilized for the realization of the agreement between the Parties.
We find no merit in the Appellants’ claim that the Respondent breached its obligations under the facility agreement. The gravamen of the Appellants’ counterclaim being that the Respondent’s refusal to disburse the entire loan facility in the sum of Gh¢3,000,000.00 occasioned loss to them, they ought to have established in evidence on the balance of probabilities that the available storage facilities was adequate enough to contain the 99,000 mini bags of maize. Having failed to discharge their burden of proving how unjustifiable it was for the Respondent to refuse to disburse the entire facility, the claim of the Appellants failed.
1st Appellant also claimed damages for wrongful debiting of its accounts which the Respondent made by debiting the 1st Appellant with 2% of Gh¢3,000,000 as processing fee as well as interest payments on that amount. The learned trial Judge found that it was wrongful for the Respondent to have deducted 2% processing fee on the total loan amount approved when it did not disburse same, and ordered the processing fee charged on the undisbursed amount and interest thereon to be refunded to the 1st Appellant. Counsel for the Appellants is therefore contending that in the circumstances, the trial Judge ought to have also acceded to the 1st Appellant’s claim for wrongful debiting of its account by the Respondent, and awarded damages in its favour. He contends further that by the fact that the processing fee was levied on the total facility of Gh¢3,000,000.00 which was not disbursed, the Respondent was in breach of the facility agreement.
Counsel also contends that the Appellants’ claim was not special, but in general damages. Even though the claim was presented as general damages for breach of contract simpliciter in their pleadings, Appellants sought to particularize the damages under paragraph 15 of 2nd Appellant’s Witness Statement (page 309 of ROA).
The law distinguishes between General Damages and Special Damages. The Supreme Court has settled the law on this point in the case of Attorney-General vrs Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271 where Dr. Twum, JSC stated the position of the law at page 290 thus:
“……. a claim for damages for breach of contract will entitle the plaintiff to a nominal damages only unless the plaintiff gives particulars of special damage. No particulars of general damages are ever ordered, …. special damages, on the other hand, are such a loss as the law will presume to be the consequence of the defendant’s act, but depend at least, on the special circumstances of the case. They must therefore always be explicitly claimed in the pleadings …. the law is also clear that whenever damages of any kind is an essential portion of the cause of action, it is special damages and as much certainty and particularity will be insisted upon both in pleadings and proof of damages, as is reasonable, having regard to the nature of the acts themselves by which the damages is done.”
The trial Judge stated regarding this issue that:
“There is yet another important issue to resolve concerning the pallets, sacks, warehouses and expected profit. On the authority of KUBI VS DALI [1984/6] GLR 501 the evidence in paragraph 15 of the Defendants Witness Statement ought to have been pleaded and particularized. In this paragraph the Defendants seek to lead evidence in proof of their Counterclaim for GH2 million.
I must also add that not having pleaded those pieces of evidence and particularized them in the pleadings to enable the Plaintiff to have reacted to them by way of rebuttal, it would be unfair to put any store on paragraph 15 of the Witness Statement. In any case the evidence itself is not only discreditable but it is self-evidently weak and fictional.”
The Appellants’ counterclaim was essentially for an award of damages for alleged breaches of contract by the Respondent. The well-known position of the law is that if a contract has been breached there must be a remedy. A claim for damages is one such remedy. As it is said, damages follow the event. A claim for consequential damages is therefore in order; i.e. a claim for all the losses that have occurred as a result of the breach.
In our considered opinion, there was no need to consider the Appellants’ claim for wrongful debiting at all. As aforesaid, damages are the normal remedy for a contracting party who suffers as a result of a breach of contract by the other party. It follows therefore that damages cannot be awarded if there is no breach, and we have already found that there was no breach.
In summation, we are of the view that the learned trial Judge’s conclusion was sound and finds support from the evidence on record. He stated that:
“On the totality of the evidence on the record and considering the balance of probabilities, I am convinced that the Plaintiff has successfully made out their case. The Plaintiff is entitled to recover from the Defendants the debt and the interest on it. The Defendants’’ counterclaim fails and is dismissed”.
Having found that there was no breach of contract by the Respondent, the trial court was right in dismissing the Appellants’ counterclaim. The appeal therefore lacks merit altogether and accordingly fails. It is hereby dismissed and the judgment of the Court below is affirmed.
(JUSTICE OF APPEAL)
ACQUAYE, JA I AGREE K. A. ACQUAYE
(JUSTICE OF APPEAL)
AMADU, JA I ALSO AGREE TANKO AMADU
(JUSTICE OF APPEAL)