IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
EKOW ESSUMAN, BODJA ESSUMAN AND NANA ASARE BEDIAKO - (Plaintiffs/Respondents)
ABOSO GOLDFIELDS LTD - (Defendant/Appellant)
DATE: 27 TH JULY, 2018
CIVIL APPEAL NO: H1/22/2018
JUDGES: IRENE C. LARBI (MRS) J.A. (PRESIDING), LAWRENCE L. MENSAH) J.A., A. M. DOMAKYAAREH (MRS.) J.A.
DOE TSIKATA FOR THE DEFENDANT/APPELLANT
JOHN MERCER FOR THE PLAINTIFF/RESPONDENT
A. M. DOMAKYAAREH (MRS), J.A
1. This is an appeal against the judgment of the High Court, Sekondi dated 21st June 2017. In the said judgment, the learned High Court judge entered judgment for the plaintiff/respondent herein on all the reliefs endorsed on his Writ of Summons save for relief III(a) which will be particularised shortly.
2. The background to this appeal is that, the parties entered into two separate agreements by which the plaintiff/respondent was to provide haulage of tailing services to the defendant/appellant. The first agreement, marked Exhibit B is dated 30th March 2015 and was to take effect on 1st April, 2015 and expire on 31st December 2015. The second agreement marked Exhibit B1, is dated 6th July 2015 and was to take effect on 7th July 2015 and expire on 30th December 2015. There was no serious contention about the delivery of the first agreement but it is the operation of the second agreement that landed parties at the High Court, Sekondi, culminating in this appeal before this court. The controversy with this second agreement is about payments due under the agreement and the abrupt end of the agreement on 15th December 2015 that was expressly stated to expire on 30th December 2015.
3. The plaintiff/respondent’s case is that from July 2015 to December 2015, at the request of the defendant/appellant, he supplied the latter with truckloads of tailings amounting in value to Gh⊄2,582,000.00. He averred that the defendant/appellant paid for the cost of the haulage with an outstanding balance of Gh⊄220,000.00. He further averred that the defendant/appellant however failed to pay even a pesewa for the cost of the tailings despite several demands to that effect by the plaintiff/respondent, including a written demand letter from his lawyers. It is the further case of the plaintiff/respondent that the defendant/appellant further contracted him in or about April 2015 to haul tailings from various concessions of the defendant/appellant to its mine site at Damang which the plaintiff/respondent executed from the said April 2015 to 15th December 2015.
The plaintiff/respondent averred that there were regular weekly meetings as regards the performance of the contract and that at a weekly meeting held in the last week of November 2015, the defendant/appellant represented or instructed the plaintiff/respondent that it (the defendant/appellant) urgently needed an increased supply of the tailings.
4. The plaintiff/respondent averred that, relying on the said representation and/or instruction, and to the knowledge of the defendant/appellant he incurred cost by increasing his fleet of trucks and pool of equipment in order to meet the increased demand. The increased fleet of trucks and pool of equipment were procured through rental which he paid for upfront. He said a few days after the defendant/appellant had instructed the plaintiff/respondent to increase the supply of tailings and he beefed up his operations as aforesaid, the defendant/appellant unilaterally and without any justifiable reason, terminated the contract on 15th December 2015. By reason of the foregoing, the plaintiff/respondent claimed the following reliefs from the defendant/appellant as endorsed on his Writ of Summons; namely:
I(a) Recovery of the sum of Gh⊄2,582,000.00 being the cost of tailings supplied by the plaintiff to the defendant from July 2015 to December 2015 at the defendant’s request.
(b) Interest on the said sum of Gh⊄2,582,000.00 at the prevailing Commercial Bank lending rate from July 2015 to date of payment.
II(a) Recovery of the sum of Gh⊄220,000.00 being outstanding payment of the cost of haulage of the said tailings
(b) Interest on the said sum of Gh⊄220,000.00 at the prevailing Commercial Bank lending rate from July 2015 to date of payment
III(a) Recovery of the total sum of Gh⊄624,000.00 being losses incurred by plaintiff by reason of the wrongful termination of the contract for the supply of tailings made between the parties
(b) General damages for breach of contract
The defendant/appellant denied being indebted to the plaintiff/respondent. As averred to in its Statement of Defence, the defendant/appellant’s case was that its agreement with the plaintiff/respondent was for him to haul from one part of its Damang Mine Concession to another, tailings, also known as G-sand found there that met the minimum grade of “1g/t”. This was to be done as and when the appellant required it. The defendant/appellant further averred that it promptly paid the amounts invoiced by the plaintiff/respondent upon receipt of monthly invoices issued by him covering the services rendered and that it was not indebted to the plaintiff/respondent as alleged.
5. The defendant/appellant further denied the allegation by the plaintiff/respondent that it made a representation to him or instructed him to increase the tailing supplied to it. Regarding the allegation that the defendant/appellant unilaterally terminated the agreement between the parties, the defendant/appellant contended that under the agreement, it was to call upon the plaintiff/respondent to supply it with tailings as and when it required them and was therefore not bound or under any obligation to request the supply of tailings by the plaintiff/respondent when it did not require them. It was also the defendant/appellant’s case that it paid the respondent in all, a total sum of Gh⊄6,592,649.31 against invoices issued by him between April 2015 and December 2015 in respect of the tailings that met the required grade and for that matter there was no outstanding payment to the plaintiff/respondent.
6. After full trial, the High Court, Sekondi on 21st June 2017, granted the plaintiff/respondent, the following reliefs:
i. Recovery of the sum of Gh⊄2,582,000.00 being the cost of tailings supplied by plaintiff to the defendant from July 2015 to December 2015 at the defendant’s request
ii. Interest on the said sum at the prevailing bank rate from July 2015 to date of payment
iii. Recovery of the sum of Gh⊄247,674.00 being outstanding claim for haulage charges
iv. Interest thereon at the prevailing bank rate from July 2015 till date of payment
v. General damages of Gh⊄200,000.00 and
vi. Cost assessed at Gh⊄30,000.00
7. Both parties expressed their dissatisfaction with the judgment. The defendant/appellant complained of the whole judgment whiles the plaintiff/respondent complained of that part of the judgment refusing relief III(a) as endorsed on the Writ of Summons i.e. recovery of the sum of Gh⊄624,000.00.
8. Consequently, the defendant/appellant promptly filed a notice of appeal a day after the judgment on 22nd June 2017 seeking a reversal of the judgment of the High Court anchored on two grounds of appeal, namely:
(i) The judgment is against the weight of the evidence adduced at the trial and
(ii) Further grounds of appeal will be filed upon receipt of the judgment of the High Court
Pursuant to ground (ii) above, the defendant/appellant, on 7th July 2017 filed an Amended Notice of
Appeal, this time, based on six grounds as follows:
(i) The judgment is against the weight of evidence adduced at the trial
(ii) That the trial judge erred in his holding that the defendant’s additional issues, in particular
“whether or not the contract between the parties required the plaintiff to haul tailings as and when requested by the defendant” are hardly relevant to the determination of the real controversy between the parties.
(iii) The learned judge erred in law by inter alia increasing the amount claimed by the plaintiff in respect of outstanding haulage cost from the amount of Gh⊄220,000.00 endorsed on his Writ of Summons to Gh⊄247,674.00 and upholding the plaintiff’s claims for various amounts without his producing any invoice to support them.
(iv) The learned judge’s finding that the plaintiff increased the tailings he supplied after November 2015 at additional cost is not supported by the evidence on record.
(v) The learned judge erred in holding that the defendant breached the contract between the parties and
(vi) The learned judge erred in holding that there were inconsistencies in the case of the defendant whereas the plaintiff’s evidence was consistent with his pleadings.
9. The plaintiffs/respondents also filed their Notice of Cross-Appeal on 7th September 2017, relying basically on one ground of appeal, namely, that:
(i) The learned judge failed to enter judgment for the plaintiff for relief III(a) as endorsed on the Writ, i.e. recovery of the sum of Gh⊄624,000.00 having found that the agreement between the parties was prematurely terminated by the defendant.
There was the open door ground that additional grounds of cross- appeal may be filed but no such additional grounds have been filed by the plaintiff/respondent/cross appellant.
10. Two preliminary legal issues were raised during the hearing of this appeal, one by the defendant/appellant and the other by the plaintiff/respondent/cross-appellant.
The issue raised by the defendant/appellant related to the capacity of one Nana Asare Bediako who described himself as the Head of Family of the Abradze Royal family to be substituted through an Ex-parte application in place of Ekow Essuman the original plaintiff who died while the appeal was pending. This matter was determined and upheld by this court on 20th March, 2018 as it was weighty enough to be taken alone. Pursuant to that determination, new processes were initiated by the rightful applicants for substitution which application was granted by this court on 16th April, 2018 thus paving the way for today’s judgment.
11. The legal issue raised by the plaintiff/respondent/cross-appellant concerns the Amended Notice of Appeal filed by the defendant/appellant on 7th July 2017. Counsel’s complaint is that there is no indication on the face of the said “Amended Notice of Appeal” or from the records that leave was granted for the defendant to amend its Notice of Appeal of 22nd June 2017. Counsel therefore submitted that for such failure to obtain leave before filing the Amended Notice of Appeal, the said Amended Notice of Appeal filed on 7th July 2017 is invalid and ought not be considered in this appeal. Counsel supported his submission with the case of DIABUO V DAVID KWAKU BANK (2016)98 GMJ 157 at 176-178.
12. The response of Counsel for the defendant/appellant as captured in the appellant’s Reply pursuant to Rule 20(5) of the Court of Appeal Rules, 1997, C.I. 19 as amended is that the Amended Notice of Appeal was filed within the three-month period stipulated by the Rules of the Court of Appeal for filing an appeal against a final decision of the High Court. Counsel contended that as both the original Notice of Appeal and the Amended Notice of Appeal were filed within the time window permitted by the Rules of Court, the need to obtain leave before filing the Amended Notice of Appeal did not arise. Counsel distinguished the DIABUO case cited supra in that, in the said case, the appellants’ additional grounds of appeal and Counsel’s written submissions arguing those grounds were filed on the same day thus triggering the element of surprise to the respondent therein whereas that is not the case in the instant appeal.
13. Rule 9 of C.I. 19 deals with time limits for appealing. Specifically Rules 9(1)(b) 9(2) provide as follows: -
“9. Time limits for appealing
(1) Subject to any other enactment for the time being in force, no appeal shall be brought after the expiration of-
(b) three months in the case of an appeal against a final decision unless the court below or the Court extends the time.
(2) The prescribed period within which an appeal may be brought shall be calculated from the date of the decision appealed against. “
Rule 9(4) of C.I. 19 also provides as follows: -
“(4) No application for extension of time in which to appeal shall be made after the expiration of three months from the expiration of the time prescribed by this rule within which an appeal may be brought.”
Rule 9(I)(b) provides the time for appeals as of right. This is within three (3) months from the date of a final judgment of the court below. No leave is required for an aggrieved party to appeal within this period. However, after the time allotted has run out, an aggrieved party must obtain leave before filing either a Notice of Appeal, Amended notice of Appeal or Additional Grounds of Appeal. Per Rule 9(4) of C.I. 19, such a window within which to seek leave is a further three months beginning after the expiration of the three months allowed under Rule 9((1)(b). In other words six months after the date of a final judgment of the court below, no application for extension of time shall be made. It is noted that Counsel for the cross-appellant relied on the first part of Rule 8(7)of C.I. 19 which directs thus: -
“(7) The appellant shall not, without the leave of the Court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal upon such terms as the Court may think just.”
Rule 8 of CI 19 deals with Notice and Grounds of Appeal but as demonstrated, the relevant Rule when it comes to seeking leave is Rule 9 and not Rule 8.
14. Since the judgment in contention was delivered on 21st June 2017, it means the aggrieved parties could appeal against same as of right from the said 21st June 2017 up to and including 20th September
2017. Based on this, the cross-appellant filed his Notice of Cross-appeal on 7th September 2017 without any leave of the court. It is therefore awkward that the same party should be complaining that the defendant/appellant who filed the Amended Notice of Appeal on 7th July 2017, i.e. 16 days after the date of the judgment should have obtained the leave of the court before doing so. The objection of Counsel for the cross-appellant is misconceived and accordingly dismissed.
We shall now proceed to consider the substantive grounds of appeal and the cross-appeal.
Ground (i) - The judgement is against the weight of the evidence adduced at the trial.
15. This ground can be combined with ground (iv) which is that the learned judge’s finding that the plaintiff increased the tailings he supplied after November 2015 at additional cost is not supported by the evidence on record.
As a plethora of authoritative decided cases have pointed out, an appellant relying on the omnibus ground that the judgment is against the weight of the evidence has a duty to point out the lapses in the judgment without arguing points of law. The appellate court also then has the duty to examine the totality of the evidence before it and come to its own conclusions. See BROWN VRS. QUARSHIGAH [2003-2004] SCGLR 930; EFFISA VRS .ANSAH [2005-2006] SCGLR 942; DJIN VRS. MUSA BAAKO [2007-2008 SCGLR 686 and AYEH & AKAKPO VRS. AYAA IDDRISU  SCGLR 891.
16. Counsel for the defendant/appellant therefore pointed out several instances which in her opinion, demonstrate that some findings by the trial judge were not supported by any evidence in the Record. She said the plaintiff/respondent made a claim of Gh⊄2,582,000.00 for the cost of tailings supplied and Gh⊄220,000.00 for outstanding haulage costs making a total of Gh¢2,802,000.00 but he failed to produce any invoices, details of the grade of tailings supplied, the unite price and the number of truck loads supplied. She submitted that by failing to back up the claim with these pieces of evidence, the plaintiff/respondent failed to discharge the burden of proof imposed on him by the law and contrary to the decision in MAJOLAGBE VRS. LARBI & ORS  GLR 190 and the binding Supreme Court case of KLAH VRS PHOENIX INSURANCE CO LTD.  2 SCGLR 1139. She said the plaintiff/respondent stated in his pleadings that invoices will be tendered at the trial, repeated same in his Witness Statement while PW1 also testified under cross-examination that invoices were issued. Yet not a single invoice was produced during the trial. Counsel also referred to Exhibits 1A, 2A, 3B, 4B, 5B 6A. etc. which are invoices from the plaintiff/respondent in their custody totalling Gh⊄6,961,430.00 and the evidence of payment for the same in Exhibits 1, 2, 3, 4A, 5, 5A, 6 etc. and submitted that this contradicts the respondents evidence that the G-sand was not paid for. Counsel also questioned the non- production of invoices from the third party owners of the G-Sand to the respondent and said this was fatal to his claim.
17. On the plaintiff/respondent’s averment and testimony that he increased the tailings he supplied after November 2015 at the request of the appellant at additional cost, Counsel submitted that the fact that the appellant’s representative accepted that there were discussions about contractors making trips of tailings a day did not amount to an agreement between the parties or an instruction from the defendant/appellant to the plaintiff/respondent for delivery of that amount. Counsel submitted that at those discussions, the representatives of the defendant/appellant “engaged the contractors to meet the targets” agreed with them which was 60 trips a day each but the contractors were not meeting that agreed target. She mentioned that the plaintiff/respondent in particular, was doing 32 trucks per day. The defendant/appellant referred to Exhibit 11 (which is a record of the number of trucks the plaintiff/respondent used to haul the tailings kept by the defendant/appellant) and submitted that even after the November meeting, the respondent did not make any marked increase in his deliveries and certainly never delivered the 100 truckloads a day as he alleged was the new target. Counsel submitted that there was therefore no basis for the trial judge to hold that the respondent increased the tailings he delivered.
18. Counsel further submitted that the respondent failed to produce the minutes of the meeting to prove his averment that the appellant represented or instructed him to increase his deliveries and that he did not call any of the other contractors who were at the meeting to corroborate his evidence and neither did he name the particular representative of the appellant he claims to have made the said representation. Counsel for the plaintiff/respondent on his part submitted that the findings of the trial judge cannot be faulted. He contended that the plaintiff/respondent’s case was that between March 2015 and June 2015, he supplied A-Sand tailings whereas between July 2015 and December 2015 he supplied G-Sand tailings amounting to G⊄2,582,000.00. A-Sand is owned by the defendant/appellant, hence for this grade of sand, the defendant/appellant only pays for the haulage cost. The defendant/appellant had partially paid the haulage fee for both the A-Sand and the G-Sand amounting to Gh⊄6,592,649.31 leaving a balance of Gh⊄220,000.00.
19. G-Sand on the other hand, otherwise known as “gallamsey sand” is mined by small scale miners and is owned by them, hence the defendant/appellant had to pay for the cost of the G-Sand as well as its haulage cost. The defendant/appellant failed or refused to pay for the G-Sand. Counsel submitted that the defendant/appellants’ defence to the claim for the cost of the G-Sand tailings could not hold as it put up two contradicting defences. The first was that it was not required to pay for the G-Sand tailings. The defendant/appellant later changed its position in the course of the trial to say it had paid for the tailings.
20. After considering the respective submissions of the parties we find that there is evidence from the defendant/appellant’s side which it produced at the trial, that the plaintiff/respondent did supply G-Sand tailings to the defendant/appellant which the latter accepted; that the invoices produced by the defendant/appellant were issued by the plaintiff/respondent in respect of the supply of the G-Sand; that the respective values were stated therein and that indeed the defendant/appellant did make payment in accordance with those invoices and the law on withholding taxes. There was therefore no need to insist on the plaintiff/respondent to also produce the same documentation. Production of same would have amounted to mere surplusage in the light of the documentation produced by the defendant/appellant which the plaintiff/respondent did not contest.
21. The plaintiff/respondent at paragraph 8 of his Witness Statement found at page 29 of the ROA that he purchased the G-Sand on credit because the defendant/appellant represented to him that it had not made financial provision in its 2015 Budget for the purchase of G-Sand and gave him assurance that he would be reimbursed in January 2016 when it would have provided for same in its 2016 Budget. He went on to testify at paragraphs 9 and 10 that the defendant/appellant engaged the gallamseyers in meetings at which the same assurance was given.
In the respective Witness Statements of PW1 and PW2 who are both gallamseyers, they categorically stated that the plaintiff purchased G-Sand from them and informed them that he would pay for same later because the defendant/appellant had not made provision for the purchases in its 2015 Budget. All these testimonies could not be debunked during cross-examination.
22. The issue of non-production of invoices from the third parties (gallamseyers) to the plaintiff/respondent is of no probative value to the determination of the real issues at stake, i.e., whether the defendant/appellant owed the plaintiff/respondent the cost for the supply of G-Sand tailings as well as outstanding haulage costs. As a matter of fact, the transaction between the plaintiff/respondent and third parties relating to the G-Sand cannot determine the liability or otherwise of the defendant/appellant to the plaintiff/respondent. This submission by counsel for the defendant/appellant is not tenable.
23. From the evidence of Record it is true that the plaintiff/respondent did not produce the Minutes of the meeting of 12th November, 2015 to prove his assertion that the defendant/appellant did represent to him and or instructed him at that meeting to increase his supply of tailings to 100 truckloads a day. The defendant/appellant admitted that the said meeting took place although it denied making any representation to the plaintiff/respondent as alleged by him. Although it is trite knowledge that he who alleges must prove and therefore the plaintiff/respondent ought to lead relevant and cogent evidence to prove his case, yet it is also trite law 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 and/or denied. See IN RE ASHALLEY BOTWE LANDS [2003-2004] SCGLR 420. Since the defendant/appellant denied the assertion by the plaintiff/respondent, nothing prevented it and indeed it owed a duty to the court to produce the minutes of the said meeting to contradict the plaintiff/respondent if his assertion was not true. Indeed as a reputable mining company, it would be most unlikely that the defendant/appellant would convene a meeting for the purpose of evaluating the performance of the agreement without taking minutes of the same. In any event, the defendant/appellant’s sole witness admitted that at the said meeting, they urged the contactors to increase their supply of tailings to meet targets already agreed upon. On the balance of probabilities therefore, the issue of increase in the supply of tailings was established.
24. From Exhibit 11, which is found at page 161 of the Record of Appeal it is realised that after November 12, 2015 any time there was an increase in the number of trucks used, the total loads per day also increased. For instance, on 12th November 2015 when 8 trucks were used, the loads were 32 for that day. On 25th November 2015 with 14 trucks, the loads were 77 for that day. The lowest was on 13th November 2015 when 9 trucks delivered 13 loads but on the following day, 9 trucks delivered 50 loads. On the average between November 12, 2015 and 15th December 2015 when the agreement was terminated, there was an improvement in the number of loads delivered but not at additional cost. As a matter of fact, the trial judge did not accept this issue of additional cost and that was the basis on which he disallowed the relief III(a) in the sum of Gh¢624,000.00
Ground s(I) and IV) have not been made out and are accordingly dismissed.
That the trial judge erred in his holding that the defendant’s additional issues, in particular “whether or not the contract between the parties required the plaintiff to haul tailings as and when requested by the defendant” are hardly relevant to the determination of the real controversy between the parties.
25. In all litigation in court, the courts are urged to concentrate their energies on the real issues in controversy between the parties and to desist from spending time on peripheral issues especially if they are not relevant to the real issues at stake. Although so many issues may be thrown into the fray by the parties, what issues were relevant and essential was a matter of law entirely for the judge to determine. See FIDELITY INVESTMENT ADVISORS VRS. ABOAGYE-ATTA [2003-2005] 2 GLR C A. The real issues in controversy in this case are whether or not the defendant/appellant owes the plaintiff/respondent for the cost of supplying tailings and the balance of cost of transporting same and whether or not the agreement between the parties has been breached. We fail to see in what way the frequency of the delivery of the tailings, whether as and when requested or whether on a pre-determined delivery schedule is relevant to the determination of the above issues. If according to the defendant/appellant the tailings were to be delivered as and when required, and it did not require any, it would have been within its right not to demand any but to say that on the basis of that the defendant/appellant could terminate the MoU in flagrant disregard of its termination provisions that signed to is patently not tenable. The trial judge was thus right in holding that the additional issue of “whether or not the contract between the parties required the plaintiff to haul tailings as and when requested by the defendant” are hardly relevant to the determination of the real controversy between the parties. It was also not the case of the defendant/appellant that the plaintiff/respondent supplied tailings when it did not request same. Ground (II) is dismissed.
The learned judge erred in law by inter alia increasing the amount claimed by the plaintiff in respect of outstanding haulage cost from the amount of Gh⊄220,000.00 endorsed on his Writ of Summons to Gh⊄247,674.00 and upholding the plaintiff’s claims for various amounts without his producing any invoice to support them.
26. At the court below, Counsel for the plaintiff/respondent argued, in his Written Submission/Address found at page 191 of the ROA that the total amount paid to the respondent was Gh⊄6,961,430.00. Out of this amount, defendant/appellant conceded at the Case Management stage that Gh⊄616,455.00 was payment in respect of other services rendered by the plaintiff/respondent, not related to the haulage of tailings. Specifically, this payment was for re-handling of ore. Setting off the said sum of Gh⊄616,455.00 from the total amount of Gh⊄6,961,430.00 yields Gh⊄6,344,975.00 to be credited to payment relating to the tailings. By paragraph 5 of the Statement of Defence found at page 27. 15 of the ROA, the defendant/appellant stated that the total amount for the tailings from 12 April to December 2015 was Gh⊄6,592,649.31. This was repeated at paragraph 6 of the Witness Statement of Michael Aidoo found at page 55 of the ROA. Taking into account the fact that out of the amounts paid, only Gh⊄6,344,975.00 could properly be credited to the supply of tailings, it means that the plaintiff/respondent was under paid by Gh⊄247,674.00. Counsel therefore invited the trial court to enter judgment for his client for this amount instead of the Gh⊄220,000.00 endorsed on the Writ of Summons, contending that this latter figure was an obvious error. The learned trial judge upheld this submission on the basis of the decisions in QUAGRAINE VRS ADAMS  GLR 599 AND AMAKOM SAWMILL VRS MANSAH AND ANOTHER  1 GLR 368. Counsel for the defendant/appellant has taken a serious objection to this rectification of error contending that there was no evidence to back that holding in the ROA.
27. Counsel for the plaintiff/respondent defended the position of the trial judge. Counsel submitted that the learned trial judge was entitled to rectify an obvious error endorsed on the Writ in order to do substantial justice to the parties. In any event, it was material tendered by the defendant/appellant that revealed the error in the plaintiff/respondent’s calculation endorsed on the Writ and the trial judge was therefore within his powers when he rectified the error. Order 16 rule 7 of the High Court (Civil Procedure) Rules, 2004 CI 47 which deals with Amendment of other documents, provides thus: -
“7. (1) For the purpose of determining the real question in controversy between the parties or of correcting any defect or error in the proceedings, the court may, at any stage of the proceedings either of its own motion or on the application of any party, order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner as it may direct.
(2) This rule shall not apply in relation to a judgment or order.”
Certainly rule 7(1) of Order 16 of CI 47 empowers the trial judge to rectify errors in documents in court proceedings. This also ties in with Order 1 rule 2 of C.I 47 which in part, mandates that the court shall ensure that as far as possible, all matters in dispute between the parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any such matters avoided.
Ground (III) is accordingly dismissed as not having been made out.
The learned judge erred in holding that the defendant breached the contract between the parties.
28. Counsel for the appellant denied breach of the agreement contending that the plaintiff/respondent failed to establish any breach on the part of the defendant/appellant of any of the terms of Exhibits B and B1 whether express or implied. The bone of contention in this appeal is the implementation of Exhibit B1. This MoU was dated 6th July 2015 to take effect from 7th July 2015 and expire on 30th December 2015. (See P. 37 -40 of the ROA). By its terms, the MoU could end or be terminated on three grounds, firstly by the efflux of time under clause 1.0(i) on December 30, 2015, secondly by termination for cause under clause 4.0(a) if any of the stipulated conditions in the MoU are not strictly adhered to and lastly termination without cause upon five days’ written notice to Ekow Essuman under clause 4.0(b) of the MoU.
29. It is not in contention that the MoU was terminated by the defendant/appellant on 15 December 2015. Obviously, it was not terminated by the efflux of time since that would have been on 30th December 2015. The termination was not for cause, since the defendant/appellant did not cite any of the stipulated conditions in the MoU that the plaintiff/respondent failed to strictly adhere to. The defendant/appellant did not also produce any five-day notice of termination to the plaintiff/respondent and neither did the plaintiff/respondent receive any such notification. There is thus a very clear breach of the MoU by the defendant/appellant. Even if the MoU was terminated in the manner done by the defendant/appellant thirty minutes to its expiry, it would have still amounted to breach and all the lengthy submissions by counsel for the defendant/appellant on this ground are of no moment.
Ground (V) is dismissed.
The learned judge erred in holding that there were inconsistencies in the case of the defendant whereas the plaintiff’s evidence was consistent with his pleadings.
30. Counsel for the defendant/appellant took issue with the trial judge for his holding that there were inconsistencies in the case the defendant/appellant whereas the plaintiff/respondent’s evidence was consistent with his pleadings. She contended that this finding was not accurate having regard to the evidence on record. She said it was the trial judge who apportioned the A-Sand to the first Agreement and the G-Sand to the second agreement whereas both agreements did not make any such distinction. Counsel also submitted that there was no inconsistency in the location of both the A-Sand and the G-Sand because there were both located within the Mining Concession of the defendant/appellant. In order words, the G-Sand obtained from third parties was also located within the Mining Concession of the defendant/appellant.
31. Counsel also denied that the defendant/appellant had stated that it paid only for the haulage since the tailings from is concession area belonged to it. Referring to paragraph 4 of its Statement of Defence found at page 15 of the ROA, Counsel pointed out that what the defendant/appellant said was that “… upon receipt of monthly invoices issued in arrears, the defendant would pay the plaintiff for the tailings delivered by him at the agreed location that met the grade …” and that under paragraph 5 of the Statement of Defence, the defendant/appellant further averred that the total amount was fully paid for by the defendant/appellant.
32. Counsel conceded that in the Witness Statement of Michael Aidoo, the Head of Mineral Resources of the defendant/appellant at the time of the agreement, found at page 55 of the ROA, Mr Aidoo stated that the plaintiff/respondent was paid Gh⊄6,592,649.31 which sum represented all the monies due to the plaintiff/respondent for the haulage services he provided. Counsel however contended that this does not mean that the tailings were not paid for, because payment was made depending on the grade of tailings the plaintiff supplied and that in any event, it was a 30ton truck that was used for all the tailings.
Counsel further submitted that on the contrary, it was the plaintiff/respondent’s case that was inconsistent because he created the impression that the G-Sand was from outside the Appellant’s concession area, whereas this was not the case.
33. Counsel for the plaintiff/respondent defended the findings of the trial judge that there were inconsistencies in the defence put up by the defendant/appellant. Counsel pointed out that the record supported the trial judge’s statement because the defendant/appellant initially said the G-Sand belonged to it since it was mined from its concession but later on admitted that it belonged to “gallamseyers” who were third parties. There was also evidence to support the finding that the defendant contended that it was not to pay for the tailings but later changed its evidence to say that it had paid for them. See Evidence of Abdel-Razak Yakubu under cross-examination at page 169 of the ROA where he testified that plaintiff would engage all the community members who were claiming ownership of the tailings and persuade them that the tailings did not belong to them but the defendant company. He continued that when the plaintiff reaches an arrangement with them, then he would invite the defendant company to take samples for testing. The defendant company would then demarcate that area based on the grade of the material and then the plaintiff/respondent would then load and transport the material to the defendant company’s processing plant. As pointed out earlier on, there was also unchallenged evidence from the plaintiff/respondent and his witnesses that the defendant/appellant said it could not pay for the G-Sand in 2015 because of lack of budgetary provision.
32. More importantly, in paragraph 3 of the defendant/appellant’s Statement of Defence found at page 15 of the ROA, the defendant/appellant pleaded thus: -
“In response to paragraph 2 of the Statement of Claim, the Defendant says that by an agreement between the parties made orally in March 2015, the plaintiff agreed to, from time to time when requested by the defendant, haul from one location of The Defendant’s Damang Mine concession to another, tailings (also known as G-Sand) that met the minimum grade of ‘1g/t’” (Emphasis added)
Of course, it is clear from that Record that the March 2015 agreement was in writing tendered as Exhibit B without objection and that indeed it was not just one written agreement, but actually two, the second written agreement being the July 2015 Agreement also tendered as Exhibit B1 without objection.
35. Even though the defendant/appellant denied authorising an increase in the supply of the G-Sand, the document tendered by it, (Exhibit 11) shows that on the average, there was an increase in the supply of tailings after the 12th November 2015 meeting. A careful and thorough review of the Record of Appeal shows that the finding by the trial judge that there were inconsistencies in the appellant’s case which he enumerated in his judgment is supported by the evidence on record.
Ground (VI) of the Amended Notice of Appeal is accordingly dismissed.
36. The plaintiff/respondent/cross-appellant contends that the learned trial judge erred by failing to enter judgment for his relief III (a) as endorsed on the Writ i.e. recovery of the sum of Gh⊄624,000.00 having found that the agreement between the parties was prematurely terminated by the defendant/appellant.
Counsel urged on this court that the plaintiff/respondent could not have been expected to conjure the machines and vehicles to perform the services required of him under the MoU. Consequently, he took steps to procure them from Kumasi as per Exhibits D and D1 issued on 25th November 2015 at the cost of Gh⊄624,000.00 based on the representation and/or instruction of the defendant/appellant and just as he did so, the defendant/appellant terminated the contract. Counsel contended that this is a direct loss incurred by the plaintiff/respondent flowing from the breach of contract by the defendant and therefore the plaintiff/respondent was entitled to recover same in addition to general damages. The defendant/appellant did not proffer any response to this ground of cross-appeal. Although the defendant/appellant could thus be deemed to have admitted this ground of appeal sub silentio, yet this court will not invoke this principle against the defendant/appellant. As every appeal is by way of rehearing, the appellate court has a duty to analyse and evaluate all the evidence on record so as to come to its own conclusion and not merely on account of the fact that a party has said so and the other party did not respond.
37. In respect of this issue, the trial judge held as follows at page 9 of his judgment which can be found at page 204 of the ROA from Line 33:
“I do not find the basis for the claim that defendants ought to pay for the hiring of those equipment. My simple reaction is that if indeed those kinds of equipment were hired in furtherance of the performance of the contract, I do hold that the defendants were only obliged to pay for the tailings supplied and the haulage. I do not think that the defendants ought to be saddled with the cost of hiring those machines. In any event, it was a term of the contract as provided for in Exhibits B and B1 that the plaintiff was responsible for his transport and equipment. At best the cost of hiring additional equipment and trucks at a short notice may be taken into account in assessing damages if the plaintiff succeeded in proving that there was a breach of contract on the part of the defendants. Consequently, I disallow this claim”
38. We agree with the learned trial judge. Under clause 1.0(ii) of Exhibit B1 found at page 38 of the Record of Appeal, it is unambiguously stated as follows:
“(ii) Ekow Essuman shall perform the services with his own equipment at an agreed fee”.
Besides, under paragraph 9 of the Statement of Claim found at page 3 of the Record of Appeal the plaintiff/respondent particularised the additional trucks and equipment he procured as follows:
(i) The plaintiff increased his trucks from fourteen (14) to twenty-two (22)
(ii) Increased his excavators from three (3) to five (5) and
(iii) Added an additional Bulldozer to make two (2).
Exhibit 11 found at page 161 of the ROA gives the number of trucks deployed daily for the services between 12th November 2015 to 15th December 2015, when the agreement was terminated. At no point in time did the plaintiff/respondent deploy more than 14 trucks per day i.e. his original number of trucks. Indeed, it was only on two days, namely 23rd November 2015 and 25th November 2015 that he deployed 14 trucks. On the rest of the days he deployed less than 14 trucks and in fact on 3rd December 2015 he deployed 6 trucks. Thus, even if the defendant/respondent was responsible for the cost of the trucks and equipment (which is not the case) it could not be saddled with such additional cost as there is no evidence that the additional trucks were deployed for rendering the services. The sole ground of the cross-appeal is dismissed.
39. In sum, both the appeal and the cross-appeal are dismissed respectively. The judgment of the High Court, Sekondi dated 21st June 2017 is hereby affirmed.