IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2016
BERTHA BOATENG BEITZEL - (Plaintiff)
THOMAS ANTWI - (Defendant)
DATE: 11TH APRIL, 2016
SUIT NO: RPC/73/13
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
NANA ABU BONSRA FOR ASANTE KROBEA FOR PLAINTIFF
KWAKU YEBOAH APPIAH FOR DEFENDANT
The Plaintiff herein who issued out a writ of summons and statement of claim per her Lawful Attorney for the recovery of the sum of GH¢ 10,000.00 had her claim struck out for failing to file her witness statement despite an extension of time granted for her to do so.
The background facts are that the Plaintiff allegedly invested in the Defendant/Counterclaimant's School in Cash and in kind. The name of the school in issue was given as Modern Star Preparatory School situate at Adawomase. Subsequently, the joint venture fell apart and the matters arising have culminated in the instant case.
It is provided under Order 12 rule 4(1) of the High Court (Civil Procedure) Rules, 2004 C.I. 47 as follows:
A counterclaim may be proceeded with although judgment is given for the Plaintiff in the action or the action is stayed, discontinued or dismissed."
The independent nature of a counterclaim came up in the case of Yormewu v Awute (1987/88) 1 GLR 9. It was stated in holding (3) thus:
It was settled law that when at the close of a case the judge came to the conclusion that the plaintiff's case was weak and that of the defendant's too was weak, the judge could not prefer the plaintiff's weak case to that of the defendant and it would be wrong to grant to the plaintiff the reliefs he sought. Where the defendant did not call any evidence at all the position would not be different unless there was a counterclaim. In which case, the evidence which would be require from the defendant, would be the evidence to establish the counterclaim and not evidence in rebuttal of the plaintiff's claim." emphasis mine. See also Gbedemah v Awoonor Williams G & G 438, SC.
Based on the above authorities, I proceeded to hear the Defendant's counterclaim for a refund of the sum of GHS 2, 946.00 being the cost of blocks which the Plaintiff took from the Defendant in excess of the amount owed her, interest thereon and damages.
The Defendant's case is that he does not dispute that he owed the Plaintiff GH¢10,000.00 arising from their joint educational venture. However, the Plaintiff collected 5,680 sandcrete blocks which he had molded to construct another structure and the value thereof exceeds the amount he owed.
In the Reply and Defence to Counterclaim filed by the Plaintiff on 10/04/2015, she averred that the blocks which she carted away were intended to be used by her to undertake further constructions at the school. She invited the Court to disregard the Defendant's Counterclaim as being frivolous.
The sole issue before the court is whether or not the Defendant is entitled to his counterclaims. As is always the case in civil suits, the burden of proving the counterclaim rests on the Defendant/counterclaimant.
In this case, the Defendant/Counterclaimant testified in person after which three witnesses also testified on his behalf. They relied on their respective witness statements filed 25/11/15.
In proof of his Counterclaim, the Defendant said in evidence that after the parties had agreed that he owed the Plaintiff the sum of GH¢10,000.00 plus GH¢5,000.00 interest, he later paid GH¢5,000.00 cash to the Plaintiff. He continued that on 03/07/2014, the Defendant came to the school premises in issue and carted away 5, 680 sandcrete blocks which he had molded for the purpose of expanding the school buildings that year. At that time, the Defendant said each block cost GH¢ 2.20 and the total value of blocks carted away by the Plaintiff stood at GH¢12,496.00. When GH¢10,000.00 is deducted from the GH¢ 12,496.00, the balance will be GH¢2,496.00. According to the Defendant/Counterclaimant, the Plaintiff's action has caused him serious hardship. For instance, he said the cost of each block is currently GH¢3.00 and that the number of enrolment has dwindled as a result of the Plaintiff's misconduct.
DW1, Justice Kwaku Boakye and DW2, Daniel Kofi Gyimah also said in their respective evidence that they were present when the parties agreed that the Defendant/Counterclaimant shall pay GH¢ 10,000.00 and GH¢5,000.00 in full and final satisfaction of the Plaintiff's investment in the joint venture. They further indicated that the Defendant/Counterclaimant informed them Plaintiff had carted away blocks in excess of the amount owed after receiving GH¢ 5,000.00 cash.
DW3, Amos Baah Acheamfour gave evidence to the effect that he is a teacher at Modern Star Preparatory school and that he was present when the Plaintiff carted away the blocks in issue in a tipper truck. He said the matter was reported to the chief of Adawomase and later to the Police.
At the time of taking evidence, Counsel for the Plaintiff was in court. Counsel was also present at the case management stage but failed to file his client's witness statement even after he had been granted extension of time to do so. When he came to court on the hearing date, he intimated to the court that he no longer represented the Plaintiff. However, the Court observed that there was no Notice of withdrawal of Representation on Record. Counsel declined an invitation by the court to cross-examine the witnesses.
In the circumstance, the court is left with only the evidence of the Defendant/Counterclaimant and his witnesses to evaluate. There is no cause for me to discredit the evidence of the Defendant and his witnesses as regards the amount owed to the Plaintiff and the value of the blocks she carted away. I accept their evidence as the truth and find that the Plaintiff carted away blocks worth GH¢12,496.00. When this is set off against the GH¢10,000.00 owed the Plaintiff at that time, the difference will be GH¢ 2,496.00.
By the provision under Order 12 rule 4(2) of C.I. 47:
Where a defendant establishes a counterclaim against the claim established by the Plaintiff and there is a balance in favour of one of the parties, the Court may give judgment for the balance, but without prejudice to the court's discretion in respect of costs."
In the case before me, the Plaintiff's claims have been struck out but the Defendant has succeeded in establishing his counterclaim after setting off the amount he owed against the blocks taken away by the Plaintiff.
The manner by which the Plaintiff carted away the blocks is indicative of the fact that she was not aware of the actual value at that time. There is also no evidence on record to the effect that after the Plaintiff had taken away the blocks in satisfaction of the Defendant's indebtedness of GH¢10,000.00, the Defendant communicated to her to return the blocks taken in excess. In the circumstance, there is no basis for the award of interest on that amount before the date of entry of judgment.
As regards the Claim for damages, the law is that general damages lie for every infringement of an absolute right and need not be proved by evidence. Dr Seth Twum JSC in Delmas Agency Ghana Ltd v Food Distributors International Ltd (2007-2008) SCGLR 748 noted at page 760 of the report as follows:
General damages is such as the law will presume to be the natural or probable consequences 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 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."
The Defendant herein pleaded in paragraphs 31 and 32 of his statement of defence and counterclaim as follows:
31. The Defendant avers that the conduct of the Plaintiff has prevented him from putting up the structures he was going to put and will definitely have to take some time to raise funds to get that number of blocks to start the project.
32. The Defendant avers that the conduct of the Plaintiff over the years has caused reduction in the roll of pupils in the school as anytime she comes to the school she threatens to sell the school or pull down the buildings on the land.
By the Defendant's own showing, he is entitled to only a fraction of the blocks taken away by the Plaintiff. The fact still remains that he owed the Plaintiff prior to that action. In as much as I condemn the Plaintiff's unilateral actions without recourse to law, if the Defendant had taken reasonable steps to pay off indebtedness to the Plaintiff, those actions could have been avoided. In short, I find that the Defendant greatly contributed to his own predicament and cannot turn round to blame it entirely on the Plaintiff. I have taken judicial notice of the rise in prices of cement over the years and building materials in general. Obviously, it will cost a little bit more to acquire the blocks which were taken in excess. For these reasons, I award nominal damages of GH¢ 200 against the Plaintiff in favour of the Defendant/Counterclaimant.
Accordingly, I enter judgment in favour of the Defendant Counter/Claimant against the Plaintiff in the sum of GH¢ 2, 496.00 and general damages of GH¢ 200.00. I award post judgment interest on the judgment debt from the date of delivery of judgment till date of final payment.
Having taken into consideration the provisions of Order 74 of C.I. 47 and the circumstances of this case, I award cost of GH¢500.00 against the Plaintiff in favour of the Defendant/Counterclaimant.
Before I sign off, I wish to comment on the amount claimed in the instant case even though it was filed before the amendment introduced by C.I. 87. Counsel is to take note of the provisions of Order 58 rule 2 of C.I. 47 as amended by C.I. 87 where the monetary value of a commercial claim shall not be less than GH¢25,000.00.
From the foregoing, any claim below GH¢25,000.00 must go to the Circuit Court or the District Court as the case may be after the coming into force of C.I. 87. Small claims such as the instant one will unduly over burden the Commercial Court whose core business is to determine or settle Commercial Disputes.