IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
YAW OWUSU BREFO - (Plaintiff/Respondent)
MECHANICAL LLOYD CO. LTD - (Defendant/Appellant)
DATE: 22 ND NOVEMBER, 2018
SUIT NO: H1/132/18
JUDGES: K. A. ACQUAYE JA (Presiding), BARBARA ACKAH-YENSU JA, TANKO AMADU JA
MR. PETER ZWENNES FOR DEFENDANT/APPELLANT
MR. PETER OSEI ASAMOAH FOR THE PLAINTIFF/RESPONDENTS
BARBARA ACKAH-YENSU, JA
In this appeal against the judgment of the High Court (General Jurisdiction) Accra delivered on 21st December 2016, the Defendant/Appellant (alternately referred to as the Defendant, or the Appellant) prays that the judgment of the court below be set aside and the Plaintiff/Respondent’s (referred to alternately as the Plaintiff, or the Respondent) application for summary judgment be accordingly dismissed.
The Plaintiff’s claim against the Defendant at the court below was for the sum of US$11,912 or its cedi forex buying equivalent being the sum of money spent by Plaintiff in renting a vehicle from 4th June 2015 to 16th October 2015, together with interest at the commercial bank lending rate from 16th October 2015 until date of final judgment. Plaintiff also claimed general damages and costs.
The facts giving rise to the suit are pretty simple. The Plaintiff was the owner of Ford Mondeo saloon car with registration number GE 6132-12. The Defendant is a registered automobile company and holds franchises in various automobiles including Ford and BMW vehicles. By virtue of the franchise it holds in Ford vehicles Defendant is authorized to carry out maintenance and after sales services on Ford vehicles in Ghana.
On or about 1st June 2015, the Plaintiff sent his vehicle to the Defendant’s workshop at South Industrial Area, Accra for servicing of the air conditioning system. The Parties agreed that the Plaintiff would pick up his vehicle the same day, however, the Plaintiff was asked to pick up his vehicle on 3rd June 2015 since the job was not completed. The vehicle was still not ready as of 3rd June 2015. Later the same day there were heavy rains in Accra and several places were flooded, including the Defendant’s premises. Plaintiff’s vehicle was affected and thus was eventually returned to him on 16th October 2015.
In his Statement of Claim, Plaintiff alleged that after 3rd June 2015, he was unable to contact the office of the Plaintiff in spite of various efforts, including numerous phone calls which were neither answered nor returned, and a personal visit to the offices of the Defendant on 8th June 2015 he found out that the offices were closed to the public. Plaintiff was informed by a phone call from the Defendant on 30th June 2015 that his vehicle had been damaged as a result of the floods caused by the heavy rains on 3rd June 2015. Plaintiff averred that in a letter to the Defendant dated 14th July 2015, Defendant was made aware of the fact that they would have to reimburse him with the vehicle rental expenses when his vehicle was finally returned to him. As aforesaid Plaintiff’s vehicle was returned to him on 16th October 2015. Thereafter, on 25th November 2015, Plaintiff caused his Solicitors to demand from the Defendant the sum of US$11,912 being the total amount spent on the rental of a vehicle from 4th June to 16th October, 2015.
In their Statement of Defence, the Defendant expressly admitted most of Plaintiff’s factual assertions. The only controversy between the Parties was regarding the issue of rental of the vehicle. The Defendant denied ever giving assurance to the Plaintiff to pay for all expenses incurred by the Plaintiff for vehicle rental. Defendant also contended that Plaintiff rented the vehicle without their consent. Defendant therefore was not liable for Plaintiff’s claim. Furthermore, that the delay to the repairs on Plaintiff’s vehicle was caused solely by the unprecedented rains.
After the Defendant filed their Defence, Plaintiff filed a Motion on Notice for Summary Judgment. In the supporting affidavit, Plaintiff averred that Defendant did not have a defence to the action. Defendant filed an Affidavit in Opposition to the Application in which they contended that their Statement of Defence raised triable issues for determination.
The learned trial Judge after hearing Counsel on both sides, granted the Application whose grant has occasioned the instant appeal.
The grounds of appeal are that:
The learned judge erred in law in granting the application for summary judgment when clearly there were triable issues for determination by the Court.
The judgment was against the weight of the affidavit evidence put before the Court at the hearing of the application for summary judgment.
Counsel for the Respondent, in his written submissions, stated that he was abandoning the 2nd ground and argued only the first as the sole ground of appeal. Counsel for the Appellant submitted that the claim itself which is essentially a liquidated one and constitutes Special Damages is not premised on any breach or tortious wrong on the part of the Appellant. He further argued that if it was the Respondent’s case that the Appellant breached a contract or owed a duty of care and was therefore negligent, that cause of action should have been specified in the indorsement to the Writ as well as the Statement of Claim. That omission, he argued, rendered the claim itself fundamentally defective and not amenable to the grant of Summary Judgment.
Counsel for the Respondent, on the other hand, contended that the claim arose out of the breach of contract between himself and the Appellant related to their repair of his vehicle and that the Appellant breached the contract by refusing to deliver Respondent’s vehicle to him on the agreed date resulting in him incurring losses when he had to rent a vehicle for the period that the Appellant had not released the vehicle to him. Counsel contended further that it was not an acceptable response to the Plaintiff’s claim to aver that the Defendant did not consent to the renting of an alternative vehicle or that they did not assure Plaintiff that they would pay for same. He also contended that Plaintiff was able to prove by the invoices and letters attached to the application that the losses flowed directly from the Defendant’s breach, a fact conceded by the Appellant.
At the center of Counsel for the Appellant’s submissions is the question whether the Respondent’s action was properly constituted. Counsel in this regard contended that the Writ as issued disclosed no cause of action, and further that it contained no substantive claim or remedy. If these submissions are correct as contended by Counsel, then there was no jurisdiction in the trial High Court to have proceeded with the action at all, and consequently, the decision on appeal to this Court must be set aside together with the Writ on which it was founded. So we shall discuss the issue of the competency of the Writ first since the issue of jurisdiction could bring an end to the determination of the proceedings herein.
The current position of the law on this issue was expounded in the case of Opoku (No.2) vrs Axes Co. Ltd (No.2)  2 SCGLR 1214. Atuguba Ag. CJ (as he then was) commented on the decision of the Supreme Court in Republic vrs High Court Tema; Exparte Owners of MV Esso Spirit (Darya Shipping S. A. Interested Party) [2003-2004] 2 SCGLR 689 to the effect that a Writ which does not disclose any cause of action is a nullity upon which no trial can ensue. He observed as follows:
“The position has been endorsed by Mr. S. Kwami Tetteh in his record-shattering and ultra-monumental work CIVIL PROCEDURE: A Practical Approach, otherwise known as the Black Book at 183-188. It is however, to be noticed that the aforementioned decisions turned on the old High Court (Civil Procedure) Rules, 1954 (LN 140A), the judicial construction of Order 70 of which drew a sharp distinction between mere non-compliance which earned an irregularity as opposed to a fundamental error which earned nullity. Even under that old regime of civil procedure in the High Court, there were some at least, persuasive decisions that a writ which did not disclose a cause of action could be cured by amendment. …………………………………
I agree with the reasoning of Lord Denning MR in the Sterman vrs E.W. Moore (A Form) (supra) to the effect that a defect in a writ, i.e. a writ which did not state the cause of action, would not render the writ a nullity. It was an irregularity which was waived on entry of unconditional appearance by the defendants. The defendants here are caught by it since they have also entered unconditional appearance to the writ herein and since the relevant Rules under C.I.47 are substantially the same as those dealt with by Lord Denning MR in that case.
For the avoidance of doubt, however, I would emphasis that rule 1 of Order 81 of C.I.47 is truly a comprehensive insurance policy covering all procedural defects arising from the provision of C.I.47 except where the same also have a constitutional pedestal”.
Hence, for the reason that the indorsement of the Writ herein did not state the nature of the claim made and the relief or remedy required; for example, damages for breach of contract or negligence, this Writ did not comply with the rules. It was defective in that it simply stated that: “The sum of US$11,912 or its cedi forex buying equivalent being the sum of money spent by plaintiff in renting a vehicle from 4th June 2015 to 16th October 2015”. It did not state the cause of action, viz-, breach of contract. Nonetheless, that defect did not render the Writ a nullity. It was at most an irregularity, and the irregularity was waived when the Defendant entered unconditional appearance to that Writ.
We find support for this position in the same case, Opoku (No.2) vs Axes Co. Ltd (No.2) (supra), where Gbadegbe JSC expatiated further thus:
“………..the writ of summons ought to be read together with the statement of claim, in order to determine if there was any cause of action before the court. This is so because a statement of claim may, in appropriate cases, as provided for in rule 15(2) of order 11 of the High Court Civil (Procedure) Rules, 2004 (C.I.47), amplify or diminish the scope of the writ on which it is founded”.
Since the objection of Counsel for the Appellant is not that the facts or claims contained in the Statement of Claim are different from those contained in the Writ, the Court is enabled to have regard to the said pleadings in determining the question of competency of the action: See Brickfield Properties Ltd vrs Newton  3 All ER 323.
In our view, there is abundant proof of the existence of a contract between the Parties herein from the pleadings. It is also clear that the said contract was breached by the Defendant. As a matter of fact, the Defendant admitted to the fact that there was a contract which had been breached; Defendant admitted all of Plaintiff’s assertions in paragraphs 1-16 of the Statement of Claim. Defendant only denied liability for Plaintiff’s claim.
The defect on the Plaintiff’s Writ is, therefore, cured by the accompanying Statement of Claim which was filed together with the Writ. The cause of action of the Plaintiff was amply pleaded in his Statement of Claim. In view of the admissions made by the Appellant regarding the contract of repair and its consequential default the objection to the Writ is devoid of substance and grounded upon pure technicality which the new provisions on non-compliance contained in Order 81 of C.I.47 seek to remedy by emphasizing that a substantive approach is preferrable to technicalities which have been to some extent a blot on the administration of justice.
We will now turn our attention to the Ruling of the trial High Court on the application for summary judgment which has provoked the appeal herein.
As aforesaid, the instant appeal has been brought against a Summary Judgment. Order 14 of C.I.47 regulates the procedure for the grant of summary judgment. It is observed that under both the old rules contained in Order 14 of the High Court (Civil Procedure) Rules, 1954, L. N. 140A (repealed) and the new rules under C.I.47, also Order 14 thereof, the provisions for summary judgment have been similar in content. Similar provisions apply under the English rules, thus the English authorities on this subject are quite germaine and persuasive.
Rule 1 of Order 14 states thus:
“Where in an action a defendant has been served with a statement of claim and has filed appearance, the plaintiff may on notice apply to the Court for judgment against the defendant on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or that the defendant has no defence to such a claim or part of a claim, except as to the amount of any damages claimed”.
Rule 5(1) (a) also states that:
“(1) On the hearing of the application the Court may
(a)give such judgment for the plaintiff against the defendant on the relevant claim or part of a claim as may be just having regard to the nature of the remedy or relief sought, unless the defendant satisfies the Court, with respect to that claim or part of it, that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part to of it”.
The position of the law as to what considerations are to apply in proceedings for summary judgment have been expressed in different ways in a number of cases. Some of these authorities are as follows:
In Sadhwani vrs Al-hassan [1999-2000] 1 GLR 19 C.A Georgina Wood, JA (as she then was) observed at page 225 as follows:
“I think that in such applications i.e. applications to sign final judgment, what is required of a Trial Judge is that he or she examines the pleadings and determines whether there does exist a bonafide or good defence, that is a defence known in law. In my view, any such bonafide or good defence or a defence known in law when raised would constitute a triable issue or an issue fit to be tried. It could be an issue of fact or law. But the judge is not empowered to test the success or otherwise of the defence intended to be relied on; otherwise stated, he is not to try the merits of the respective claims using the affidavit evidence on hand. Indeed, the affidavit evidence presented in an application for summary judgment is not intended to be used for the resolution of triable issues that may emanate from the pleading.”
This statement of the law was referred to with approval by the Supreme Court in the case of Bavast Nedam Ghana B. V. vrs. Horizon Marine Construction Ltd.  SCGLR 435. Gbadegbe JSC in delivering the opinion of the Court held thus:
“Although the procedure for summary judgment under Order 14 of the High Court (Civil Procedure) Rules 2004 C. I. 47 enables the plaintiff to obtain speedy and summary judgment without a trial, even in cases where the defendant to the action expresses an intention to defend the action, the court may only grant the application in cases where the defendant is unable to set up a good defence or raise an issue which sought to be tried.”
To buttress the application of the procedure, Gbadegbe JSC referred to Halsbury’s Laws of England Vol. 37 (4th Edition) paragraph 414 pages 308-309 where the learned authors stated that:
“The power to give summary judgment under Order 14 is intended to apply in clear cases where there is no reasonable doubt that the applicant is entitled to judgment and where it is expedient to allow a defendant to defend for more purposes of delay. Leave to defend will therefore be given where the defendant shows that he has a fair case, that there is an issue or question which ought to be tried, or that there are reasonable grounds for setting up a defence. However, the defendant does not have to show a complete defence but only a fair probability of a defence, or that there is a real or substantial issue or question to be tried or that there is a dispute as to fact or law which raises a reasonable doubt whether the appellant is entitled to judgment. The procedure under Order 14 was not intended to shut out a defendant who could show that there was an issue or question that ought to be tried or that for some other reason there ought to be a trial.”
Earlier on, in the case of Sam Jonah vrs. Duodo-Kumi [2003-2004] SCGLR 50, the Supreme Court speaking through Sophia Akuffo, JSC (as she then was), had expressed the same opinion and what an appellate court like this one is called upon to do in an appeal against the grant or refusal of an application for summary judgment. Her Ladyship observed as follows;
“The objective of Order 14 is to facilitate the early conclusion of actions where it is clear from the pleadings that the defendant therein has no cogent defence. It intended to “prevent a plaintiff being delayed when there is no fairly arguable defence to be brought forward”: see Halsbury’s Laws of England (4th Edition) 516. What we are, therefore, required to do in this appeal is to ascertain whether, on the totality of the pleadings the summary judgment, like respondent had, demonstrably, any defence, in law or on the available facts, such as would justify his being granted leave to defend the appellant’s claim.”
The question to ask thus is; did the Defendant raise a bonafide or good defence in law to constitute a triable issue or an issue fit to be tried? And our answer is a resounding YES! From the Defendant’s pleadings legitimate questions arise for determination by the High Court. Questions such as; (a) did the Plaintiff rent the vehicle with the consent of the Defendant?; (b) did the Defendant give the Plaintiff any assurance to pay for the rental of a vehicle? and; (c) is the Defendant liable for the Plaintiff’s claim for US$11,912? These unanswered questions which are obvious triable issues can only be determined by taking of evidence at a trial.
In our view, the trial Judge did exactly what Georgina Wood, JSC admonished Judges to refrain from doing in Sadhwani vrs Al-Hassan (supra), when she stated that the judge is not supposed to try the merits of the respective claims using the affidavit evidence at hand.
In her final Judgment, the trial Judge opined as follows:
“…..The Defense put forward by the Defendant herein is inadequate. As a matter of fact, the Defendant Respondent does not deny the fact that it customarily provides vehicles for the use of clients who find themselves in the predicament that befell the Plaintiff-Applicant herein. This Court’s position therefore is that the Defendant has no real Defense to the claim. The suggestion by the Defendant-Respondent herein that they had not given an undertaking to reimburse the Plaintiff-Applicants rental expenses is therefore a sham ………
if one fails to do an act or carry out a function duty, which one admits one must do, and which the beneficiary asks for, then the party who takes up the responsibility or performing that function, must be allowed to bring a claim to reclaim the cost of doing that act. This is especially so in respect of service providers like garages who are paid a fee to provide a specific function. If the service provider retains one’s vehicle longer than expected, surely the service providers must offer an alternative vehicle for the clients use or pay for the cost of procuring same…….”
The trial Judge therefore erred in concluding that there were no triable issues for evidence to be taken because the Defendant’s liability could not be determined summarily once the defendant had denied owing the Plaintiff. Furthermore, there was no documentary evidence of admission of liability. See also the case of Mustapha vrs National Investment Bank Ltd [2005-2006] SCGLR 1037.
More importantly, however, the rule which authorizes the making of summary judgment (Rule 1 of Order14 of C.I.47) bars claims for damages. An application for summary judgment can, having regard to the pleadings in the action herein, be directed at the question of liability in contract but not for damages in view of the preclusion of damages from the scope of Order 14.
Plaintiff’s claim, as aforesaid, was for: the sum of US$11,912, together with interests; and general damages, inter alia. Upon the grant of the application for Summary Judgment the learned Trial Judge adjourned for the Plaintiff to prove the damages at a later date. Plaintiff however subsequently informed the Court that he had abandoned his claim for damages.
It appears that the Court, like the Plaintiff, was under the mistaken impression that Plaintiff’s claim for the sum of US$11,912 was for liquidated damages.
It is common knowledge that if a contract has been breached or if a breach is threatened or imminent there must be a remedy. A claim for damage 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.
Damages may be liquidated or unliquidated. Liquidated damages are contemplated where the parties themselves have agreed to a specific figure which is a reasonable pre-estimate of the loss occasioned by a breach of contract rather than a penalty for breach of contract. See Dunlop Pneumatic Tyre Co. Ltd vrs New Garage & Motor Co. Ltd  AC 79. In the instant case, however, there is no claim that the Parties agreed on any specific amount as a pre-estimate of loss occasioned by a breach. In unliquidated damages, which appears to be the type in the instant case, no specified amount is agreed upon between the contracting parties in the event of a breach by either/any of them.
Damages may also be general or special. The Supreme Court has settled the law on this point in the case of Delmas Agency Ghana Ltd. Vs. Food Distributions International Ltd. [2007-2008] SCGLR 748 where Dr. Twum JSC stated the position of the law at page 760 as follows:
“…General damages is such as the law will presume to be the natural or probable consequence of the defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only nominal damages are awarded where the plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate.”
Clearly, the claim for the amount of US$11,912 was in special damages and not liquidated damages. The claim for US$11,912 being in special damages, therefore, the matter ought not have been determined through the summary procedure. That being the case the trial High Court acted without jurisdiction when it acceded to the application in circumstances which show a clear misapprehension of the powers available to the court.
In summation, the learned trial Judge erred when she granted summary judgment to the Plaintiff in the sum of US$11,912. This appeal, in our view, therefore must succeed and is hereby allowed. The judgment of 21st December, 2016 is hereby set-aside. The substantive suit is hereby remitted to the court below for continuation of proceedings.