IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2019
EMMANUEL CO-OP. CREDIT UNION - (Plaintiff)
MCOTTLEY CAPITAL LIMITED - (Defendant)
DATE: 6TH JUNE, 2019
SUIT NO: RPC/53/2019
JUDGES: HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
LAWYERS: LINDA FREMAH ADOM FOR DENNIS BOAMAH OKYERE FOR PLAINTIFF
On 10th December, 2018, the plaintiff herein issued a writ of summons against the defendant herein seeking the following reliefs:
a. An order compelling the Defendant to pay (GHC468,322.35) being amount outstanding in respect of the 182-day Fixed Deposit investment, 365-day fixed deposit investment and McFund Plus account as at their respective due dates to the Plaintiff.
b. Interest on the sum of (GHC468, 322.35) from the respective due dates till date of final payment.
c. General damages.
On 22nd January, 2019 the plaintiff filed a motion ex-parte for judgment in default of appearance after the defendant had failed or refused to enter an appearance when it was duly served with the writ of summons and statement of claim. On 29th January, 2019 judgment was entered in favour of the plaintiff against the defendant in respect of reliefs (a) and (b) of the writ of summons. The matter was adjourned for hearing relating to the assessment of damages.
The law is that general damages lie for every infringement of an absolute right. The Supreme Court held in the case of Delmas Agency Ghana Ltd vrs Food Distributors International Ltd [2007/2008] SCGLR 748, 760 thus:
‘‘General damages is such as the law will presume to be the probable or natural consequences of the defendant’s act. It arises by inference of 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 general damages are awarded.
Where a 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.’’
When the plaintiff’s representative testified, he stated that the plaintiff had to engage the services of a lawyer after negotiations for the redemption of their investment failed. He stated that the processes filed by the plaintiff cost more than GHC 2,000.00. He also stated that plaintiff was charged a legal fee amounting to 9% of the invested capital. That the fee amounted to over GHC 42,000.00. In sum, the plaintiff incurred costs in pursuit of its legitimate demand for payment of its investment.
It must be noted, however, that the plaintiff failed or refused to back its claim relating to the losses with documentary evidence. In spite of this, general damages are appropriate as of right in the circumstance.
Consequently, I award general damages of GHC 20,000.00 in favour of the plaintiff.
I have taken into consideration the provisions of Order 74 of C.I. 47 on award of cost. I have taken cognisance of the expenses incurred (including lawyer’s fee) in prosecuting this case by the plaintiff. Accordingly, I also award costs of GHC 30,000.00 against the Defendant and in favour of the plaintiff.