IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
HAWKRAD JOD CONTRACTS LTD - (Plaintiff)
CAITEC DELTA LTD - (Defendant)
DATE: 12TH JULY, 2016
SUIT NO: OCC/58/2014
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
AUGUSTINE KESSIE FOR PLAINTIFF
PATRICK BAIDOO FOR DEFENDANT
OPOKU BOATENG, ESQ., FOR PLAINTIFF
ANITA SHEILA CRABBE, MRS FOR DEFENDANT
Plaintiff claims per the endorsement on its writ of summons the following reliefs:
1. Declaration that the Defendant is in breach of the warranty covering the ten shackman trucks purchased by the Plaintiff from the defendant to execute a haulage contract with Adamus Resources Ltd.
2. An order for the recovery of Gh¢1,877,289.75 being the total loss of income for the period February to June, 2014 as a result of the breakdown of the said trucks.
Plaintiff has provided the basis for his claim in the statement of claim that accompanied the writ. Plaintiff avers that in the year November, 2013, it won a near pit haulage contract to undertake for Adamus Resource a haulage of its ore at Adamus Nzema site in the Western Region. It accordingly approached Cal Bank for a loan to enable it purchase trucks to undertake the haulage contract. Cal Bank accordingly granted it two banking facility loans all totaling an amount of $US845.000.000. Plaintiff upon the release of an amount of $US422.500.00 to defendant by Cal Bank procured the ten trucks to start its operations. Plaintiff claim that it took delivery of the ten trucks in January, 2014 to start the operation of the haulage of the ore with an assurance by defendant that the trucks were fit for the purpose which they were purchased for and with a one year warranty or a 30.000 km whichever was earlier in time.
According to Plaintiff it realized a few months into the operation of the trucks that the trucks purchased proved to be unfit for the purpose for which they were bought. Plaintiff started experiencing break down of the trucks just two months of being used and this compelled it to resort to alternative means of the haulage of the ore and in February alone the trucks were down for 65 days and the use of alternative means of haulage cost it Ghc166.272.75. Further breakdown for the subsequent months were provided as follows:
March – 32 days with the cost of alternative hiring of trucks at Ghc77.112.00
April – 98 days with the cost of alternative trucks at Ghc259.308.00
May – cost of Ghc375.732.00
June - cost of Ghc463.050.00.
July - cost of Ghc535, 819.75 and that all these were the aggregate cost of hiring alternate trucks to execute the contract.
Plaintiff further claim that two of the trucks were involved in accident due to break failures which then compelled Adamus Resources Ltd. to warn Plaintiff that the trucks being used for the work did not meet mining safety requirements and needed to be withdrawn. It claims that it is entitled to be reimbursed for the losses incurred as a result of the breakdown of the trucks. Besides, it had been notified of the non-renewal of its contract with Adamus Resources Ltd. because of the poor performance of the trucks and this has occasioned serious financial hardship to the plaintiff. And hence the reliefs he seeks as per the endorsement on the writ of summons.
Defendant has denied the essential averments that form the basis of the claim of the Plaintiff contending that the trucks were fit for the purpose for which they were purchased for. To defendant it was the agents, workers and drivers of Plaintiff who were responsible for the malfunctioning of the trucks delivered to them. And that whatever accident that the trucks were involved in was purely due to the incompetent and illiterate drivers and workers of the Plaintiff coupled with their negligence. Defendant then proceeded to claim that most of the drivers that were trained by defendant to handle the trucks were dismissed by the Plaintiff and replaced with incompetent ones. Defendant refuted the claim of the Plaintiff that its contract with Adamus Resources Ltd. was not renewed due to the poor performance of the trucks but rather its contract had run its full course for six months and had come to an end. Defendant particularized the negligence of Plaintiff’s workers as follows: the non-service of the trucks by Plaintiff, the technical advice given by defendant’s representative on site was ignored, the non-lubrication of the vehicles, the continuous running of the engines of the vehicles without adequate oil, the non-maintenance of the hydraulic systems of the trucks, the trucks driven over rocky and bad terrains etc.
Plaintiff in its reply joined issues with the defendant. As the pretrial conference failed to resolve the issues between the parties, the following nine issues were agreed and settled upon at the close of the pretrial conference and they were:
1. Whether or not defendant has breached the warranty covering the trucks acquired from her by Plaintiff.
2. Whether or not the losses incurred by plaintiff were the direct result of the frequent breakdowns of the trucks supplied by defendant.
3. Whether or not the non-renewal of Plaintiff’s contract with Adamus Resources Ltd was a result of the non-performance of the trucks supplied by defendant.
4. Whether or not the frequent breakdowns were due to the terrain in which the trucks were used, and the overloading of the trucks by the Plaintiff.
5. Whether or not the Plaintiff sacked the qualified drivers engaged originally by her and replaced them with illiterate drivers.
6. Whether or not the vehicles acquired by Plaintiff from defendant were fit for the purpose for which they were acquired.
7. Whether or not Plaintiff is entitled to her claim for damages for breach of contract.
8. Whether or not Plaintiff is entitled to her claim.
9. Any other issues arising from pleadings.
ANALYSIS OF THE EVIDENCE AND APPLICATION OF THE LAW:
The plaintiff testified through its representative, Augustine Kwabena Kessie and its Pw1, the CEO, – Nana Antwi Darkwah in line with the pleadings of the plaintiff company. These two witnesses put in a number of exhibits during the Case management conference and the supplementary Case Management Conference. Key among these are Ex ‘A’ being the facility agreement for the procurement of the loan for the purchase of the shackman trucks; Ex ‘B’ that contains the warranty provision which is in contention here; email correspondence and accident report as Ex ‘C’; then a series of invoices for from plaintiff as Exhibits D series, E to J.
The defendant on the other hand testified through its Sales and Credit Manager Patrick Baidoo and the mechanic that was posted to the plaintiff’s site, Jewel Larnyor. Between them were tendered at the Case Management Conference the principal exhibits of Ex ‘1’ series consisting of photos of the trucks at various stages of breakdown; Ex ‘2’ being a report allegedly filed by Dw1 of his impression whiles at the site of the plaintiff; Exhibit ‘3’ being invoices of charges levelled by defendant for services conducted on the trucks.
The nine or dozen issues filed by the parties could conveniently be subsumed in two or three issues by the court for determination. And that is whether plaintiff proved any latent defects in the operation of the ten shackman trucks so as to have breached the warranties of Ex ‘B’ or implied ones in a contract for the sale of goods; two whether plaintiff proved losses and if they can be said to directly flow as a result of any breach of contract for the sale of goods by the defendant. I find issues 1, 4, 5 and 6 fall under the first broad issue on the breach of an alleged warranty whiles issues 2, 3, 7 and 8 will fall under the loss recovery and the sub issues that goes with it.
The purchase of ten shackman trucks by the plaintiff from the defendant was for the specific purpose of being used by plaintiff to do a near pit haulage of ore for the Adamus Resource Ltd at its mine at Teleko Bokazo, Nzema. The ore which contained gold was to be washed to extract the gold mineral from the ore. Though the trucks started work on the 22nd of January, 2014 there seems to be reports of defects as early as February, 2014, less than a month after the start of work by the trucks. Augustine Kessie list some of the defects experienced as follows:
“as early as 15th February, 2014 breakdowns had occurred, and this continued notwithstanding the fact that at plaintiff’s request, defendant sent her own mechanic to the site… this arrangement did not stop the breakdowns which varied from brake system functionality; air generation systems, alternator malfunction, tipping difficulties, toll gate locker defects, clutch etc and all these were not attributable to a particular truck but several or almost all of them”.
Counsel for defendant claim that the plaintiff did not lead evidence to prove any latent defect for which implied warranty theory should be invoked. But going through the evidence, especially Ex “D” series, “E” series, “F” series, “H”, “F” etc it shows that as at March, 2014 the plaintiff was complaining of breakdown of the trucks with the hiring of alternative trucks. The cost involved were itemized and sent to the defendant. It continued even in June and July, 2014 when the contract was ending. The itemized billing sent just a couple of months into the purchase of the trucks and when barely half of the purchase price had been paid cannot be said to have been made ante litem motam. I find as a fact that cogent evidence was led going through the documents tendered by plaintiff as exhibits as proof of the defects that plaintiff was experiencing.
It is also the further claim of defendant that at the time of the purchase of the trucks plaintiff had the opportunity to observe the trucks with a mechanic of their choice and having done so, the defendant cannot be liable for any latent defect that may be found with the trucks.
Is that the law?
First virtually all the complaints of the plaintiff are latent defects not visible to the ocular eye upon inspection of the vehicles at the time of purchase. How would one determine the effective functionality of a faulty break pad upon inspection of a brand new vehicle? It is necessary that I spend time to address this issue regarding the terms of the contract. For it is what defines the scope and extent of the obligations of the parties to the contract. For where an item forms part of the contract it is usually said to be a term of a contract. The term could come into being in a number of ways. One by express agreement of the parties as reflected in the contract, where they specifically state what should animate their dealings. It used to be the law that breach of a term entitled the innocent party to greater damages than breach of warranty. It is not the nomenclature that matters any more than the essence of what has been breached.
Here the parties seems by Ex ‘B’ agreed on a warranty whereby defendant did undertake by guaranteeing the smooth running of the vehicles for one year or 30.000 km whichever is earliest. But even if there was no such express condition, it is trite that the other ways in which terms of a contract could be seen are terms implied by common law or statute law. In Ghana there are implied terms in respect of the sale of goods for both the seller and the buyer. And this contract was a contract for the sale of goods within section 1 of the Sale of Goods Act, Act 137.
Specifically section 13 on implied condition of fitness and quality of the goods sold, which both counsel referred to states as follows:
Quality and Fitness of Goods.
(1) Subject to the provisions of this Act and any other enactment there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale except as follows—
(a) There is an implied condition that the goods are free from defects which are not declared or known to the buyer before or at the time when the contract is made:
Provided that there is no such implied condition—
(i) where the buyer has examined the goods, in respect of defects which should have been revealed by the examination;
(ii) in the case of a sale by sample, in respect of defects which could have been discovered by a reasonable examination of the sample;
(iii) where the goods are not sold by the seller in the ordinary course of his business, in respect of defects of which the seller was not, and could not reasonably have been aware.
(b) Where the goods are of a description which are supplied by the seller in the course of his business and the buyer expressly or by implication makes known the purpose for which the goods are required there is an implied condition that the goods are reasonably fit for that purpose.
Counsel for defendant explains the provision supra by concluding that once at the time of the sales plaintiff had the opportunity and did admit in court that they examined the vehicles at the show room, their claim of warranty must totally fail. With profound respect to the views of learned counsel for defendant regarding section 13 of Act 137, that is incorrect. What the provisions mean is that Ghana’s sale of Goods Act, has moved away from the common law position of caveat emptor where the buyer must beware to one of caveat glovoson, where the seller must beware of the goods he is selling. The Act places onerous responsibility on the shoulders of sellers of both brand new and second goods as being liable for defects in them. The exceptions are, one, where the seller has declared the defects in the goods and nonetheless proceed to go ahead with the transaction, second where the buyer has examined the goods to satisfy himself and has been aware of defects that are manifest on the face of the goods. How would physical examination of a vehicle at a showroom expose a tipping defect in a truck, or a breaking defect, or a non-durable rim that can easily crack or a tyre that is susceptible to bursting when exposed to our rugged and rough roads? So by section 13 (1) (a), it is implied that the goods are free from defects which are not declared or made known to the buyer before or at the time of the contract. Thus where the defect is not visible or declared to the buyer the seller is bound by the defect and the buyer may reject same. The exceptions are what I have stated. Julius Ansah JSC beautifully explains what section 13 of Act 137 means eloquently in the case of GEORGE SARPONG v SILVER STAR Suit No J4/43/2013 dated 15th January, 2014 in the following:
“Ghana law imposes a heavier responsibility on sellers of goods than is the case under English law. Moreover, the duty imposed by the Ghana law is the same for sellers of both new goods and second-hand goods. In short, the Ghana law approaches the topic of Sale of Goods with a Caveat Venditor gloveson rather than the Caveat Emptor approach of the English common law”.
A similar conclusion had earlier been reached by the same Supreme Court in the case of
CONTINENTAL PLASTICS ENGINEERING CO. LTD v IMC INDUSTRIES – TECHNIK GMBH
 SCGLR 298 where the court speaking through Wood, CJ, noted the following:
The legal position can therefore be summed up as follows: a seller of either first or second hand goods is by an implied condition, liable for all defects in them. Based on what we believe is pure common sense the seller is however not liable for defects which he fully disclose or declares to the buyer at the time of the contract of sale. When the buyer has examined the goods the seller cannot be held liable for defects which ought to have been discovered on examination, as for example, patent defects. It does follows that if there were defects particularly latent defects which are not discoverable on examination, and which are not disclosed to the buyer before the conclusion of the contract, the seller cannot escape liability for the breach of an essential condition of the contract”
I find that per the agreement entered between the parties both as fact and law and on the express and implied terms of the contract, defendant was liable for all the defects that were reported by the plaintiff at the mining site. The story of the non-servicing of the vehicles, non-maintenance, plaintiff not washing the vehicles, not purchasing spare parts from defendant etc seems to miss the mark. Why would there be the need to change parts on a less than two month brand new car, and what has washing of a vehicle has to do with its breaking system or its failure to discharge goods?
A number of claims were made by the defendants in their attempt to parry the charge of defective goods sold to the plaintiff. First both Patrick Baidoo and Jewel Larnyor claim that the drivers used by the plaintiff were dismissed and replaced with inexperienced ones who could not even negotiate curves leading to rampant accident. The following exchanges came out of counsel for plaintiff’s confrontation with defendant’s representative:
“Q: Mr. Baidoo, in your witness statement you have made a claim that the initial drivers who were hired by the plaintiff to handle the trucks were trained by your company, is that correct
A: Yes that is correct
Q. Did you say they were given orientation
A. I said yes we gave them orientation
Q. Orientation will not be the same as training, you agree with me
A. Yes my Lord but because they are already good drivers we show them the operation of the vehicle that is why I said orientation
Q: Who recruited these drivers
A. The Plaintiff brought the ten drivers for the vehicles, so I will say it is the plaintiff who recruited them …
Q. Over what period did you give them this orientation?
A. The same day they were picking the trucks
Q. So it was one day
A. Yes My Lord
Q. I am suggesting to you that your claim that you trained the drivers on the use of the Shackman trucks cannot be true
A. Yes My Lord. Why I am saying yes is that if you use the word training no but on orientation we put the drivers also on test”
There is no evidence of driver incompetence being the cause of the myriad of problems with the trucks. There is rather evidence of brake failure leading to accident of trucks, trucks failing to discharge, rims cracking.
Again the claim that the trucks were overloaded with ore was also exposed as shallow in the following exchanges between Opoku Boateng, Esq and Patrick Baidoo:
“Q: I am referring to paragraph 19(3) of the statement of defence – particulars of negligence … so Mr. Baiddo you made a claim that the plaintiff most times overloaded the trucks, is that not the case
A: My Lord that is my case
Q. Were you aware that the materials that the plaintiff were contracted to haul was ore from the excavation site to the washing plant contained gold
A: My Lord I am aware that the material contain gold
Q. And that because these materials contain gold the Mine Company will not allow the transporter to load above limits.
A: My Lord I am not aware, I wouldn’t know.
Q. I am suggesting to you that because these vehicles were carrying ore that had gold in it they will not overload the trucks for the ore to fall away in the course of the trip.
A: My Lord I cannot confirm, I am not aware”.
I think the claim of learned counsel makes a lot of sense and logic that no prudent company will throw away the bathwater with the baby and if the very previous mineral they were looking for was embedded in the womb of the ore why will they allow the trucks to be overloaded for some to fall by the way side when they have no idea where the gold would be. I reject this attempt too by the defendants to resist the claim.
Besides, there is also the claim that plaintiffs drove the trucks through rocky terrain contributing to the bad performance of the tyres. How did the defendants understand the purchase of use of the trucks when they were being purchased? That they were to be driven on asphalted roads in some of the plush suburbs of the city or that the trucks were made to run on rough and dusty terrain to cart earth? This is even further evidence that the trucks were not to live up to the purpose and standard which they were intended to be employed.
One more before I rest this issue and that is on Ex ‘2’ the report allegedly prepared by Dw1. I attentively attended to the evidence of this witness and observed the considerable difficulty he experienced when he came under cross examination. He could not tell when he started work at plaintiff’s company and had problems knowing when he finished his work. He did not know who he was reporting to whiles at plaintiff’s mine site. He admit that he did not know of the existence of any warranty between the parties and yet profess to know the contents and obligations placed on plaintiff under the warranty. When pressed he prevaricated and claim not to know anything about it. I was not enamored with the performance and answers by both witnesses for the defendant at all in cross examination and further convinced me of how doomed their defence was.
Taking inspiration from the words of Ollenu J. A. (as he then was) in the case of KYIAFE v WONO  GLR 463 that:
‘It must be observed that the question of impressiveness or convincingness are products of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses”
Defendant’s representative even had difficulty admitting of innocuous issue such as payments made by plaintiff to them to incrementally defray the cost of the trucks and denied any direct debiting of the account of plaintiff in favour of defendant of the latter’s account with Cal Bank.
The defects were latent defects that were not observable even upon careful examination. What is latent defect has been defined in Stroud’s Judicial Dictionary (5th ed, Vol 2, page 663) as:
“A latent defect is not simply any defect not discoverable through ordinary use and maintenance, but a defect or a flaw, generally in the metal or material itself, which could not be discovered by known and customary test.”
Whiles Black’s Law Dictionary (8th ed) defines hidden or inherent or latent defect as:
“a product imperfection that is not discoverable by reasonable inspection and for which a seller or lessor is generally liable if the flaw causes harm. Upon discovering a hidden defect a purchaser may revoke a prior acceptance”.
The defects identified with the trucks were latent defects as these were concealed and could not be noticed on mere observation except with use of the trucks.
I find as a fact that the trucks failed to meet the terms and warranties in its express and implied terms of being fit in terms of quality for the purpose for which they were purchased by the plaintiff. As a corollary I find that there was a breach of warranty and that the trucks were not fit for the purpose for which they were purchased.
This then brings the court to the determination of the second broad issue as to what is recoverable by the plaintiff. Plaintiff is not asking for the cost of the trucks purchased but rather an amount of Ghc1,877.289.75 being loss of income due to the breakdown of the trucks and the cost occasioned it for the hiring of alternative trucks.
In its quest to prove the loss of income plaintiff through its Nana Darkwah tendered additional invoices from companies such as Global Parts, Jesus Open Doors Ltd. This was in addition to Ex ‘C’ series, ‘D’, ‘E’, ‘F’, ‘G’. These were resisted by the defendant on a number of grounds. First that Jesus Open Door (JOD) is the other half of the company that has formed a joint venture with Hawkrad and are the joint plaintiffs herein and if any invoices have been generated by such an entity then it is self- serving. One can know what is recoverable only when a look at the law has exhaustively been taken with regard to damages recoverable upon a breach of contract.
What is recoverable by a party has been stated under section 48 of the Sale of Goods Act, Act 137 as follows:
“the measure of damages in an action for damages is the loss which could reasonably have been foreseen by the buyer at the time when the contract was made as likely to arise from the breach of contract”
This provision is nothing but another rendition given by Alderson B in the locus classicus case on damages, that is the case of HADLEY v BAXENDALE (1854) 9 Exch 341 156. E.R.145. See also Dotse
JSC in GLENCORE v VOLTA ALUMINIUM J4/40/2014 dated 28th January, 2013 where the learned
Judge quoted with approval the principle in the HADLEY case in the following:
Now … the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances … But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from, such a breach of contract”.
See also the Supreme Court case of TEMA Oil REFINERY v AFRICAN AUTOMOBILE LT.  2 SCGLR 907. The special damages that the plaintiff is claiming will be possible if he shows that either that the damages are foreseeable from the nature of the breach itself or that the damages are foreseeable by the parties at the time of agreement and was within the reasonable contemplation of the parties.
In other words in determining how much to award as compensation for damages the courts usually considers two main factors and these are the measure of damages, that is the quantum or lump sum that must be awarded and two; remoteness of damages, that is the proximate cause of the breach. This means that the damages to be awarded must not be remote but proximate to the breach. And in the case of VICTORIA LAUNDRY (WINDSOR) LTD v NEWMAN INDUSTRIES LTD  2KB 528 Asquith LJ emphasised that the test of remoteness was whether the loss was reasonably fore-see able as liable to result from the breach.
For the purpose of damages either in tort or in contract is not to over enrich a party beyond his actual losses whiles the court must also ensure that the damages awarded must not be so paltry as to make the party feel that the amount awarded was incapable of covering the losses.
The Supreme Court emphasised this principle in the case of ROYAL DUTCH AIRLINES v FARMEX LTD [1989-90] 2 GLR 623 @ 625 that:
“on the measure of damages for breach of contract, the principle adopted by the courts was restitutio in integrum, i.e. if plaintiff has suffered damage not too remote, he must as far as money could do it, be restored to the position he would have been in had that particular damage not occurred. What was required to put the plaintiff in the position they would have been in was sufficient money to compensate them for what they had lost”.
There is further law that bolster this view by virtue of section 54 of Act 137 which is to the effect that the measure of damages is the loss reasonably foreseeable by the seller at the time when the contract was made. With the trucks having failed to perform the role for which they were purchased leading to the hiring of alternative trucks as seen in the number of days they were grounded from February, 2014 till the completion date, these flow as losses that were reasonably foreseeable by the parties and seems to be recoverable and I find same as a matter of fact and law. Learned counsel in cross examination of Augustine Kessie sought to portray that the trucks could not have been grounded for 65 days as the plaintiff alleged in the following:
“Q: In paragraph 21 of your amended statement of claim you claim you lost or incurred cost of GHc 1.666, 272.75 as a result of the truck being broken down for 65 days in February alone. How many days are in February?
A: 28 days but in leap year 29 days
Q. The same statement of claim paragraph 22 and 23 states that the trucks were down for 32 days in March and a whole 98 days in April. How do you explain that?
A. My Lord I think we are talking about 10 trucks, therefore you add the number of days each truck is down so it is not necessarily one truck but ten trucks of which they are down for a very different kind of days that is why you can get more than a calendar month in any instance”.
I think it is the cumulative number of days trucks break down in a month put together that makes it seem that the days the trucks do not work outstrip the days in the month. I have taken a look at the exhibits in support of this claim especially the ones coming from Jesus Open Doors Ltd. It is my view that as trucks were specifically purchased for the hauling and they could not perform leading to the hiring of alternative ones albeit by a sister company, it is right that a claim be put for the services rendered. There will be difficulty in granting the plaintiff the relief it seeks if there is evidence to show that the trucks purchased from defendant was deliberately grounded in order to enable plaintiff use trucks from its sister company to do the work with intent to claim those monies from defendant. But I find none of such here.
Indeed where a seller has committed a breach under section 55 of Act 137 the buyer can sue under this head. Where the seller breaches a condition or a warranty, the buyer may sue the seller for the breach complained of. The buyer may in the alternative set up a claim to such damages in diminution or extinction of the price. According to section 56, the measure of assessment is the loss foreseeable by the seller at the time of the contract.
It is therefore not the correct position of the law as counsel for defendant attempt to claim in her written submission that a party who invokes an implied warranty has a remedy to reject the goods sold and as plaintiff made no attempt to return the trucks there should be no remedy for him. For the law allows the buyer two principal remedies. One to reject the goods under sections 49 to 52 or to sue on his personal rights under sections 53 to 58. Having resorted to the second remedy it is well within his right and counsel’s submission is not the position upon a clear reading of the Sale of Goods Act, at all.
The amount of Ghc1, 877,289.75 seems by my arithmetical calculation to be closer or same to the exhibits tendered as cost incurred and I so grant the relief for the recovery of that sum by plaintiff following my finding that the defendant was in breach of the conditions and warranty for the sale of the trucks to plaintiff.
But plaintiff wants to claim damages on the basis that the non-renewal of his contract was the direct result of the non performing trucks of the defendant. Where is the evidence? From the record the evidence plaintiff adduce in support of this claim is Ex ‘M’. This Ex ‘M’ is letter of notification of regret by Adamus Resources Ltd. that plaintiff was unsuccessful in the tender process to renew its contract with them. The reasons were not provided safe to say that the tender was keenly contested. I think it would be speculative to conclude that the reasons for the non-renewal was the non-performance of the trucks. As to the non-performance of the trucks being a factor can only remain at the realm of suspicion and the court has always dealt with evidence and not even a multitude of suspicions. The attempt by plaintiff to seek damages for non-renewal of its contract with Adamus Resources Ltd. is accordingly declined.
Though plaintiff did not specifically ask for interest on the amount of Ghc 1,877,289.75 claimed but it is my understanding of the law on award of interest that interest is payable on damages awarded by the court. See ROYAL DUTCH AIRLINES v FARMAX LTD. [1989-90] 2 GLR 623 SC. For in NTHC v ANTWI  SCGLR 117; interest was not claimed for, nonetheless the Supreme Court granted an award of interest to avoid unjust enrichment. This is what the Supreme Court had to say on award of interest not specifically claimed for in the case of SMITH v BLANKSON [2007-2008] 1 SCGLR 374 at holding 3 as follows:
“the plaintiff-appellant did not make any claim for an award of interest on the amount which was to be refunded …, the court would in the interest of justice order that since the defendant –respondent did not immediately refund the money after the receipt of the request for refund, interest must be paid on the amount due at the prevailing commercial bank rate from the date of judgment of the trial High Court until the date of payment”.
As the invoices for the hiring of alternative trucks and the cost of repairs were forwarded to the defendant by plaintiff for refund and same were ignored or refused I think the justice of this case demands that I award interest on the amount payable by the defendant at the prevailing commercial bank rate from when they became due till date of final payment.
I will award cost of Ghc 25.000.00 in favour of the plaintiff.