IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2017
DR. ALEX PUPULAMPU (DECEASED) - (Defendant /Appellant)
SASTIN LIMITED - (Plaintiff /espondent)
DATE: 13TH JULY 2017
CIVIL APPEAL NO: H1/52 /2017
JUDGES: MARIAMA OWUSU J.A. (PRESIDING), A.DORDZIE J.A., M. AGYEMANG J.A.
ALBERT QUASHIGAH FOR RESPONDENT
ADELE ACOLATSE FOR APPELLANT
This is an interlocutory appeal from the ruling of the High Court, Accra dated 10th October 2016.
The plaintiff who is the respondent in this appeal sued the defendant one Dr. Puplampu (deceased) for breach of contract. The defendant died in the course of proceedings, the suit is being pursued against his estate and the wife, who representsthe estate had been substituted as the defendant in the suit.
The plaintiff is a salt mining company, the parties entered an agreement dated 13th February 2006 whereby the defendant was to install a B-Transformer (Pump/Compressor) at the plaintiff company’s site at Kokodo in the Central Region for salt production at a cost of USD10, 000
For one reason or the other up to January 2007 the defendant failed to install the B-Transformer. The plaintiff maintain that it had paid the substantial part of the contract sum but the defendant failed to perform his side of the contract which is to install the B-Transformer. His delay in installing the B-Transformer has frustrated the plaintiff’s business hence this action praying for
i) General damages for breach of contract
ii) Interest on the damages from the date of the award to the date of payment
The defendant denied liability and counter claimed for the following reliefs:
The sum of GHc 4,435 being the demurrageand storage charges paid by the deceased’s estate to the fabricating workshop which the plaintiff owes the deceased’s estate at GHc15 per day for 281 days,
from January 2008 to 15th November, 2008 occasioned as a result of the failure and or refusal by the plaintiff in providing the outflow flange to be coupled into the B-Transformer and thereby delaying the completion of the Transformer.
The sum of GHC2, 400 made up of GHc1, 600 in respect of a generating set the deceased purchased for the plaintiff and the balance due from the plaintiff to the deceased in respect of the B-Transformer of GHc1, 800.
General damages for breach of contract.
Interest on all the sums found due under reliefs (a) to (c) at the prevailing bank rate from their due dates to date of final payment.
In the course of proceedings at the trial court, the defendant sought to tender a document, the plaintiff raised an objection to the tendering of the said document. The trial court upheld the objection, the document was therefore rejected and marked R1.
The ruling upholding the said objection is the subject matter of this appeal.
The grounds of appeal per the notice of appeal are:
(i) The learned judge erred in law when he upheld the plaintiff’s lawyer’s objection to the tendering of the defendant’s attorney’s letter dated 24th January 2007 on grounds that it had not been pleaded, when the fact of notification by the defendant to the plaintiff before applying the workshop surcharges had been pleaded in paragraph 13 of the further amended statement of defence filed in court.
(ii) The learned trial judge erred in law when he upheld the objection and rejected the said letter as being irrelevant contrary to section 51(1) of the Evidence Act, 1975 (NRCD 323)
An additional ground was filed which is that: the learned judge erred in law when he held that there was no relationship between the said letter of 24th January 2007 and paragraph 13 of the further amended statement of defence filed on 9th May 2016.
Counsel for the appellant argued the grounds of appeal together and made the following submissions:
Grave and substantial miscarriage of justice would be caused the defendant if the document in issue is excluded from the evidence. The said document forms the basis of the defendant’s counter-claim and it is a necessary document to prove the defendant’s counter-claim.
The rejected document was pleaded in paragraph 13 and 16(a) of the defendant’s further amended statement of defence. The pleadings in the said paragraphs are in conformity with requirements of the procedural rules of court; particularly Order 11 Rule 7(1), 7(4) and Rule 8(1) of the High Court (Civil Procedure) Rules, 2004 C. I. 47.
The rejected letter gave notice to the plaintiff on the defendant’s intention to exact workshop charges from 29th of January 2007. The letter is relevant to prove those facts and is relevant to the facts pleaded in paragraph 13 of the statement of defence. Exclusion of the letter is a breach of section 51 of the Evidence Act and therefore erroneous.
The defendant appellant is therefore praying this court to set aside the order of the trial court excluding exhibit R1 from the evidence and admit the said document in evidence.
In response to the arguments stated above in support of the appeal counsel for the plaintiff respondent argued that paragraph 13 of the statement of defence did not state particularly that there was another letter of 24th January 2007 as a follow up to an earlier one dated 18th January 2007 which is in evidence as exhibit 9. In effectthe defendant appellant failed to plead the document it sort to tender.
The main issues in this appeal to my mind are a) whether or not the document marked exhibit R1 has been pleaded by the defendant appellant and b) whether the ruling of the court excluding it from the evidence is erroneous or not.
It is a settled position of the law that pleadings form the basis of an action placed before the court and it tells the position of both parties so far as the facts of the case are concerned. Thus the court admits evidence based on the pleaded facts placed before it by the parties in their pleadings.
Thus in the case of Asamoah v. Sevordzie [1987-88] 1 GLR 67-87 the Supreme Court per Adade JSC emphasized the purpose of pleadings as follows: “The purpose of pleadings is to define the issues for trial. Pleadings plead facts, but not evidence. The evidence is led at the trial to prove the facts relied on”
The procedural rules of Court clearly define the form pleadings should take and make it clear that, fact, and not evidence should form the content of any pleading.Order 11Rule 7 reads: “7(1) Subject to this rule, and rules 10 to 12, every pleading shall contain only a statement in a summary form of the material facts on which the party pleading relies for the claim or defence, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits.
Order 11 Rule 7(4) further provides:
“A statement that a thing has been done or that an event has occurred, which is a thing or even the doing or occurrence of which constitutes a necessary condition precedent for the case of a party is to be implied in the party's pleading.”
The ground of objection to the admissibility of the document marked R1 is that the letter is a material fact and it had not been pleaded. The defendant maintain that the pleadings as contained in paragraph 13 of the their further amended statement of defence is sufficient statement of facts upon which the rejected document is admissible
Paragraph 13 of the defendant’s further amended statement of defence filed on the 19th of April 2016 reads as follows:
“The defendant says the continued delay and failure by the plaintiff to hand over the outflow flange for incorporation into the B-Transformer delayed the completion of the B-Transformer and the fabrication workshop after plaintiff was notifiedof the demurrage charges and storage charges for 281 days, from the 29th of January 2008 to the 15th of November 2008 at GHC15 per day of GHC4,435 when the workshop stopped charging the said fees on compassionate grounds due to the death of Dr. Alex Puplampu, and which said sum the deceased’s estate has paid.”
Based on the above pleading the defendant in paragraph 16(a) of her pleadingput in a counter claim demanding payment of the demurrage charges.
The plaintiff in their reply to the amended statement of defence and indefence to the counter claim averred in paragraphs 12, 13, 16 and 17 as follows:
12. “Plaintiff says in answer to paragraph 13 that he has no knowledge of the matters averred to therein and that as far as plaintiff is concerned defendant went into an agreement with the plaintiff to fabricate and install a B-Transformer to pump salt at a fee which at all material times to deceased’s breach plaintiff paid and the deceased received.
13. In further answer, plaintiff says that it is not privy to any arrangement between deceased and a certain fabrication workshop and that, as already said, plaintiff paid consideration to deceased for a complete project to be executed and handed over to plaintiff within a certain period and if deceased was more diligent to performing the contract, would have completed it way before his untimely death, therefore matters of demurrage and storage charges for an alleged 281 days is completely new and has never been part of the agreement and if any such cost arose it is attributed to ineptitude on the part of the defendant and not because plaintiff delayed or failed to hand over an outflow flange.
16. Plaintiff denies paragraph 1-14 of defendant’s amended statement of defence and denies thereto its counterclaim in specific terms as follows:
17. Plaintiff says in answer to paragraph 16(a) of defendant’s counterclaim that it is not privy to any relationship between the fabricating workshop and the deceased and that the plaintiff paid a total consideration agreed for the execution i. e. the fabrication and installation of the B-Transmitter for salt to be pumped which agreement deceased breached.”
From the pleadings of both parties’part of which I have so far quoted it is clear that the issue of demurrage payment is not new to any of the parties. It is also clear that issues as to whether or not plaintiff is liable to pay demurrage charges had been clearly joined between the parties.
Prior to tendering the letter which is the basis of the ruling which forms the subject matter of this appeal, the trial court admitted in evidence exhibit 9. Exhibit 9 is a letterdated 18th of January 2007 fromAsap Atlantic Ltd. the fabricating workshop, notifying the plaintiff that sanctions would apply if the parties fail to honour their promises by 22nd of January 2007.
The document in controversy R1 is another letter from the same company and is dated 24th January 2007, it begins by making reference to Exhibit 9 and said a continued delay in performing their side of the agreement will attract workshop charges beginning 29th of January 2007.
I have copiously quoted paragraphs 13 and 16(a) of the further amended statement of defence and paragraphs 12, 13, 16 and 17 of the plaintiff’s reply to demonstrate that the contents of the rejected document had been pleaded. The defendant’s counterclaim is based on the facts pleaded in paragraphs 13 and 16(a) of her further amended statement of defence. The relevant substance in exhibit 9, which has been confirmed in the rejected document is the issue of demurrage charges. This has been pleaded by the defendant appellant and the plaintiff respondent replied to same.
The letters exhibit 9 and R1 are evidence in proof of the pleaded facts.It is a misconception to hold that R1 is not related to paragraph 13 of the amended statement of defence. The content of R1 is sufficiently implied in paragraph 13 of the further amended statement of defence, and expressly pleaded in paragraph 16(a) of the amended statement of defence.
The document is admissible, the ruling excluding the said document from the evidence is hereby set aside.
The appeal succeeds, we do hereby order that the document rejected at the trial and marked exhibit R1 be admitted and given the appropriate numbering.
AGNES M. A. DORDZIE
(JUSTICE OF APPEAL)
Owusu, (J. A.) I agree MARIAMA OWUSU
(JUSTICE OF APPEAL)
Agyemang, (J. A.) I also agree MABEL AGYEMANG
(JUSTICE OF APPEAL)