IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
MCS ENTERNATIONAL LIMITED - (Plaintiff)
GLOBALPAK LIMITED - (Defendant)
DATE: 3RD DECEMBER, 2015
SUIT NO: RPC/132/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
DR. OWUSU DAPAAH FOR PLAINTIFF
KWADWO OWUSU ANSAH FOR ADU GYAMFI FOR DEFENDANT
In this suit commenced at the Commercial Division of the High Court, Kumasi, the Plaintiff herein claimed an amount of US$ 18, 686.24 being the outstanding balance of goods supplied to the Defendant which the defendant has defaulted in paying since 24/09/2012. The Plaintiff further sought damages for breach of contract,recovery of expenses incurred as telephone charges , and debt recovery fees in pursuing the Defendant for over two and a half years.
Upon service of the writ of Summons and Statement of Claim on the Defendant Company, Adu Gyamfi & Associates entered appearance on its behalf, but failed to file a defence within the limited period of 14 days.
Consequently, the Plaintiff filed a motion on notice for judgment in default of defence on 25/09/2015, with a return date of 05/10/2015. The said motion was served on Counsel for the Defendant, Mr. Paul Adu Gyamfi, through his clerk by name Beatrice on 28/09/2015.
On 05/10/2015, both parties were absent. Counsel for the Plaintiff was present, but Kwadwo Owusu Ansah Esq. held brief for Counsel for the Defendant. The motion was duly moved and final judgment was entered against the Defendant for the liquidated sum endorsed on the writ of summons .
Pursuant to Order 13 r 5 of C.I. 47, the Plaintiff obtained an interlocutory judgment in respect of the claim for damages, recovery of telephone expenses and monies spent in trying to recover the monies owed by the Defendant. When the case came up for assessment of damages on 21/10/2015, the Defendant and its Counsel did not show up. The case was further adjourned to 11/11/2015. This time round, the Defendant Company was duly represented by its Director of Operations, Louis Adugu and their lawyer, Kwadwo Owusu Ansah.
Venkat Raman, a representative of the Plaintiff Company, gave evidence on its behalf. He told the court that upon the default of the Defendant in paying for goods supplied to him by the Plaintiff, a series of telephone calls were made to the company to demand payment. According to him, these telephone calls originated from the Plaintiff's Headquarters in London. On the average, the witness said three calls were made per day, but because the UK is a paperless country, he was unable to get an itemized bill. He also indicated that each call lasted for ten (10) minutes. He tendered in evidence a document detailing the estimated cost of telephone calls as exhibit 'A' , and urged the court to grant the Plaintiff the estimated phones calls as per that document.
In cross-examination, counsel for the Defendant sought to discredit the figures in exhibit 'A' as it was impossible for each call to last for the same period. To these line of questioning, the Plaintiff's representative answered that the figures in exhibit 'A' are estimates.
Is the Plaintiff entitled to general damages for breach of contract? Obviously, it is not in doubt that there was a contract for sale/supply of goods between the parties to this suit. By supplying the goods to the Defendant, the Plaintiff had fulfilled its obligations under the said contract. It was the duty of the Defendant to make full payment for the goods in the manner agreed upon by the parties. As the evidence shows, the Defendant failed to fulfill his duty to make full payment as agreed by the parties and that has landed the Company in this court. Clearly, there has been a breach of the agreement between the parties herein by the Defendant. How then, can the Plaintiff be compensated?
The law is that general damages lie for every infringement of an absolute right. The Supreme Court so held in the case of Delmas Agency Ghana Ltd v Food Distributors International Ltd. (2007/2008) SCGLR 748 at 760 per Dr. Seth Twum JSC 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 nominal 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.
Also, in AG v Faroe Atlantic Co. Ltd (2005/2006) SCGLR 271, Dr Seth Twum again stressed on the measure of damages for breach of contract in these words:
A claim for damages for breach of contract would only entitle a plaintiff to nominal damages unless the plaintiff gave particulars of special damages. The court would not order particulars of general damages which were such as the law would presume to be the natural or probable consequences of the defendant's act, arising by inference of law, and therefore not necessary to be proved by evidence. Hence, general damages might be averred generally..."
In the instant case, the Plaintiff averred that for over two and a half years, formal demands were made on the Defendant to pay off its debt but to no avail. Even though the writ was endorsed for recovery of expenses incurred as telephone charges, these charges were not particularized in the accompanying statement of claim.
The Plaintiff's exhibit A was tendered to show that various telephone calls were made over a period of time to demand payment. On the average, three calls are said to have been made each day. Was that necessary under the circumstances of this case? I think not! This is because if a person is in the habit of giving the same excuses so as to avoid paying his or her just debt, it does not make both business and economic sense to telephone the person three times a day for an average of ten minutes per call to as it were convince the debtor to liquidate his or her indebtedness. A prudent business man would have changed his course after a reasonable period, and would not have undergone this telephone "ritual" for ten months.
The remedies open to an unpaid seller could have been used by the Plaintiff in this case when payment was not forthcoming within a reasonable time so as to mitigate its losses. Besides, exhibit A which was compiled by the Plaintiff Company is self-serving. There is no independent way of ascertaining the accuracy and/or reliability of the contents therein. I accept the Plaintiff's evidence as regards the making of telephone calls, but I have serious misgivings on the frequency and duration of the calls! The estimated cost of telephone expenses smacks of special damages but the same was never particularized in the statement of claim as required. Be that as it may, some telephone expenses were incurred as a result of the agreement breached by the Defendant herein.
By the preponderance of the evidence on record, the Plaintiff is entitled to general damages for breach of contract and nothing more. I have already found that the Plaintiff herein could have mitigated its losses within a reasonable time. In the absence of any agreement to the contrary, a period of three months following the breach would have been reasonable for the Plaintiff to take steps to recover its money. Yet, the Company waited for two and a half years!
As Dr Seth Twum observed in the Delmas Agency Ltd. case, supra, at page 764:
Where the plaintiff has failed to mitigate his loss where there were reasonable opportunities for doing so, he is only entitled to nominal damages".
In deciding the quantum of general damages, I am also mindful of the fact that the Court made an award of interest on the liquidated sum claimed by the Plaintiff, and in respect of which final judgment was given in its favour on 05/10/2015. The award of interest ought to be reasonable compensation for the loss of use of Plaintiff’s money over the period in issue, up to the date of final payment.
From the foregoing, I award the Cedi equivalent of GBP 300 as general damages in favour of the Plaintiff. It is to be noticed that no cost was awarded when the interlocutory judgment was entered against the Defendant on 05/10/2015. Cost, follows the event.
The Plaintiff was driven to court by the defendant's refusal to pay its just debt. The plaintiff has incurred expenses in instituting this action in court to recover the debt owed by the Defendant. For instance, the Plaintiff paid as much as GH¢ 1, 310.00 as filing fees for the writ of summons and statement of claim. When the Defendant failed to file a defence, the Plaintiff had to again spend money to conduct searches and did file a couple of motions. I have taken into consideration the provisions of order 74 of the High Court (Civil Procedure) Rules, 2004 C.I. 47 on the award of cost. Accordingly, I award cost of GH¢ 5,000.00 against the Defendant and in favour of the Plaintiff.