IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
FIRST NEW AGE COMPANY LIMITED - (Plaintiff)
ISAAC KWABENA BOAHEN & 3 ORS - (Defendant)
DATE: 18TH NOVEMBER, 2015
SUIT NO: OCC/184/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.)
ANNA FORDJOUR FOR PLAINTIFF
NO LEGAL REPRESENTATION FOR DEFENDANTS
By a writ of summons and statement of claim filed on 28/04/2015, the Plaintiff Company sought the reliefs as set down below:
An order for the recovery of the sum of Twenty-five Thousand, Three Hundred and Ten Ghana Cedis (GH¢25,310.00) being the value of assorted Samsung mobile telephones that the Plaintiff delivered to 1st and 4th Defendants to transport to Sunyani.
Interest on the said amount from March 26, 2015 until date of final payment.
Damages for breach of contract.
Loss of profit.
Costs incidental to this suit.
Such further order(s) as this Honourable Court may deem fit.
The said writ of summons and statement of claim were duly served on the 1st and 3rd Defendants on 29/04/2015 and 06/05/2015 respectively, but they failed to enter appearance. On an ex-parte application filed by counsel for the Plaintiff on 1/10/2015, an interlocutory judgment was entered against them in respect of relieves (3) and(4), and final judgment in respect of reliefs (1) and (2), pursuant to Order 13 rules 1(1), 2 and 5 of C.I. 47.
Subsequently, a hearing notice was served on the 1st and 3rd Defendants for assessment of damages and other consequential matters to be gone into. Thus, on 28/10/2015, the Managing Director of the Plaintiff Company mounted the witness box to give evidence. He described the procedure for dispatching the Plaintiff 's packages , through the 4th Defendant Drivers Union and how the packages are received at the designation, i.e. Sunyani. According to him, a package consisting of 29 pieces of assorted brand new Samsung Mobile phone handsets, one empty I- phone 5s box and a remote control were dispatched through a driver of the 4th Defendant Union. The particulars of the driver and his vehicle were given to the Plaintiff after payment of the requisite fees, but the package was never delivered to the Plaintiffs' agent in Sunyani. It could also not be traced by the Defendants. The witness gave the value of the assorted mobile phones as GH¢25,310.00 and GH¢ 9,500.00 as the loss of profit. Concluding, the witness said the Plaintiff has been unable to sell the I-phone 5s without the box because prospective buyers think it is a used phone.
The 1st and 3rd Defendants were given an opportunity to cross-examine the Plaintiff's representative.
They did not challenge the fact that the parcel which was received by the 4th Defendant was never delivered to the intended recipient. They also conceded that the 4th Defendant agreed to pay for the lost items installment but has only been able to pay a single installment in the sum of GH¢ 1,000.00.
It is obvious from the foregoing that indeed the Plaintiff has suffered some detriment arising from the loss of the parcel in issue. In respect of the claim for loss of profit, it was the duty of the Plaintiff to prove on the balance of probabilities the expected profit on each hand set. It is common knowledge that some hand sets are highly patronized while others remain in stock for a relatively longer period. What was the cost price and sale price of each unit or hand set? These were suppressed . If these prices hand been given, taking into consideration the prevailing market conditions, the expected profits could have been ascertained. On the evidence as it stands, it appears to me that the Plaintiff 's representative has merely quoted a figure which he wants the court to accept as the gospel truth. This piece of oral evidence is not sufficient. He ought to have gone a step further to support it with some form of documentary evidence since this assertion is capable of positive proof. In my view, the Plaintiff has failed to prove on the balance of probabilities that it is entitled to the sum of GH¢ 9,500.00 as loss of profit.
Next, I will determine the question of damages from breach of contract. From the evidence on record, the Plaintiff delivered its parcel to the 4th Defendant to be transported to Sunyani by any of its drivers. The 1st Defendant acted as the agent of the 4th Defendant. His duty was limited to receiving parcels in the name of the 4th Defendant. I do not think there is any contractual relationship between the receiving officer (1st Defendant) and the consignor (the Plaintiff). Similarly, the Station Master also acted in the name of the 4th Defendant and there isn't any contractual relationship between him personally and the consignor. Thus, no ward for breach of contract can be made against the Station Master in favour of the Consignor. The Plaintiff will have to proceed against the 2nd and 4th Defendants in that regard.
Accordingly, the claim for loss of profit and damages for breach of contract against the 1st and 3rd Defendants cannot be granted.
No order as to cost.