Plaintiff, a company registered under the laws of the Republic of Germany, per the endorsement on its amended writ of 12/02/15 claims the following reliefs:

a. Recovery of the value of US$276,465.00 on a bill of exchange dated 13^th March, 2014 drawn on the Defendant by the Plaintiff and accepted by the Defendant.

b. Recovery of the remainder of the value of US$443,614.50 (after considering relief A above) being the total value of the consignment of frozen meat supplied on C.I.F terms by the Plaintiff to the Defendant, less the amount of US$100,200.00 realised on the resale of part to a third party.

c. Interest at the prevailing commercial lending rate from the 15^th May, 2014 till the date of final payment on the amounts in Reliefs A and B.

d. Recovery of the amount of US$40,497.50 being charges incurred in recovering possession of containers marked as MWSU9098805, MNBU9007695, and MWCU6663794.

e. Recovery of the amount of US$44,000.00 being demurrage charges charged against the Plaintiff to date.

f. An order directed at the Defendant to be liable for all further charges to be levied against the Plaintiff in respect of the transaction in issue, and

g. Costs, inclusive of the cost of litigation and lawyer’s commission

PLAINTIFF’S CASE

Plaintiff has provided the basis for his claim in the Statement of Claim that accompanied the amended writ on 12/2/15. Plaintiff avers that between 20^th November, 2013 and 1^st February, 2014 the Plaintiff and the Defendant contracted for the supply of frozen meat products for the value of US$443,614.50.

Plaintiff claims that it performed its obligation under the contracts and duly delivered the aforementioned goods to the port of Tema-Ghana.

Plaintiff states that on 13^th March, 2013 upon agreement with the Defendant, it drew on the Defendant in favor of the Plaintiff a bill of exchange for the amount of US$276, 465.00 to be payable to the Plaintiff at Fidelity Bank Limited, Ridge Towers, Accra. The bill of exchange so drawn covered seven (7) out of eleven (11) invoices and was due for payment on the 14^th April, 2014. The Plaintiff says that the defendant accepted the bill of exchange and indicated same by its official stamp and signature of the authorized officer.

Plaintiff further avers that the defendant and its Bank- Fidelity Bank requested an extension of the due date for a further thirty (30) days. Plaintiff by an email accepted to extend the due date from 14^th April, 2014 to 15^th May 2014 and requested the Defendant to accept the new due date which it did. Plaintiff says that its bankers, Commerzbank received a message from the Defendant’s bankers of its unwillingness to issue a bank guarantee for the payment of the Bill.

Plaintiff makes the case that the production of a bank guarantee for the honouring of the Bill was a condition precedent to the release of the bills of lading relating to the consignment, notwithstanding that the contract was on C.I.F terms.

Plaintiff concludes that the Defendant defaulted and that in order to avoid substantial losses it tracked and secured possession of the containers labeled MWSU9098805, MNBU9007695, and MWCU6663794 and disposed of them to a third party. Plaintiff further avers that the remaining containers have been seized and auctioned off by the Ghana Customs Authority and it has incurred other charges as a result of the Defendant’s default.

DEFENDANT’S CASE

Defendant has denied the essential averments of the Plaintiff. Defendant says that even though the parties had agreed for Plaintiff to supply the defendant with a consignment of frozen poultry products, the said poultry products were never supplied and/or delivered as alleged by the Plaintiff or at all.

Defendant further avers that the contract between the parties was on terms being net cash against documents, requiring the defendant to pay for the price of the goods only after sighting and receipt of the appropriate shipping documents. Defendant says that the shipping documents were never delivered by the Plaintiff to it, and that on the 21^st March, 2014 the Defendant’s bank advised the Defendant that the Plaintiff’s remitting bank requested the return of all the documents covering the consignment.

It is the case of the Defendant that since the Plaintiff never delivered at any material time the shipping documents on the said poultry products the property in the said poultry never passed to the Defendant and thus it assumed no liability to the Plaintiff. Defendant makes the case that even if it accepted the bill of exchange the Defendant was induced to accept the said bill of exchange by the fraud of the Plaintiff. He then proceeds to provide the particulars of the fraud as follows:

i. Falsely and fraudulently representing to the defendant that plaintiff had shipped a consignment of poultry products for the delivery Defendant, whereas it had not in fact so shipped the said products for delivery to the defendant.

ii. Falsely and fraudulently representing to the defendant that plaintiff had given out final and irrevocable instructions to its remitting Bank to deliver documents covering the alleged shipment of poultry products to the defendant, whereas no such irrevocable instructions had been given for the delivery of documents covering the alleged shipment of the said poultry products to the defendant.

ii. Falsely and fraudulently representing to the defendant that there would be no counter instructions regarding delivery of documents covering the alleged shipment of the said poultry products to the defendant, when the plaintiff well knew same to be false.

iv. Falsely and fraudulently representing to the defendants that plaintiff had full title in the said consignment of poultry products to pass to the defendant whereas plaintiff well knew to be false.

v. The plaintiff made the aforesaid representations to the defendant knowing the same to be false, or reckless nor caring whether the same were true or false.

Defendant accordingly denies accepting liability to pay for the amount of US$276,465.00 or any part thereof. Plaintiff joined issues with the Defendant in its reply filed and says that, the Plaintiff had discharges its obligation to deliver the consignments.

ISSUES

At the close of pleadings the matter was referred for pre-trial settlement. The settlement having broken down the following issues were set down for trial:

.Whether or not the transaction for the supply of frozen meat products was on C.I.F terms.

Whether or not the Plaintiff fulfilled its obligations for the delivery of the shipping documents to th defendants.

Whether or not the defendant failed to obtain the shipping documents by reason of its inability t discharge its obligation.

Whether or not the Plaintiff fraudulently induced the defendant to accept the bill of exchange.

Whether or not the defendant is liable for the value of the consignment.

Whether or not the Plaintiff is entitled to its reliefs.

Any other issue arising from the pleadings.

EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW

Plaintiff testified through its lawful, Mohammed Sidahmed and its subpoed witness from Fidelity Bank Suzzane Appau. Among the critical documents tended were the contract documents in the form of Ex ‘B eries, a bill of exchange drawn in the amount of US$276,465,00 Ex ‘D’ being a request for extension for th of payment, Ex ‘H’ being communication from plaintiff to defendant notifying it of the unwillingness of the bankers of defendant to issue a guarantee for the payment that was due on the 15^th of May, 2014. Ex ‘L eries is what plaintiff deem to be as a condition precedent for the release of the bill of lading, that is th provision of a bank guarantee and defendant’s failure to do same.

On the other hand defendant testified through its director, Henry Manly Spain and seem not to hav endered any document in support of its resistance of the claim of the plaintiff. Did plaintiff who bore th burden of persuasion and the burden of producing evidence prove his case before the court? First is th ssue of whether the contract was on CIF terms and if it was its implications for the contract.

Section 61 of the Sale of Goods Act, Act 137 provides the scope of an international contract whose terms i C.I.F. It is loosely interpreted to mean that the price of the goods includes cost, insurance and freight. Th ssential nature of a C.I.F contract is that the seller does not undertake that the goods shall arrive bu grees that one he will procure and tender to the buyer the conforming shipping documents. Two, he wi ransfer the property in the goods to the buyer at the due time for such transfer, provided that the good re in existence. In this respect C.I.F contracts have been referred to as sale of documents relating to th goods and not sale of goods.

So in the case of MANBRE SACCHARINE V. CORN PRODUCTS LTD [1919] 1 K.B. 198; Corn Product greed to sell corn syrup and starch to Manbre Saccharine on CIF terms London. Goods answering th ontract were accordingly shipped to the buyers. The ship was sunk by a torpedo mine on 12/3/1917. Th ellers tendered the shipping documents relating to the goods on 14/3/1917 but the buyers refused to tak hem up and pay the price. It was held that the seller may validly tender the documents even though h knows the ship to be lost, that the buyers were bound to do so, and that their refusal to pay amounted to breach.

McCardie J. poses the question whether the seller can tender documents on goods that are lost.

“I conceive that the essential feature of an ordinary contract of sale of goods rests in the fact that performanc of the bargain is to be fulfilled by the delivery of documents and not by the actual physical delivery of th goods by the vendor’’.

n the Ghanaian case of ZAKOUR v. PILLSBURY MILLS, INC [1961] GLR 401; Supreme Court held tha he essential feature of a CIF contract is the delivery of documents and not by actual delivery of the good Among the principal duties imposed by law as spelt out under section 61 of Act 137 on the seller in a CI ontract are the following: for the seller to ship the goods under section 61(a). The seller ships the goods o buys them afloat and appropriates it to the contract. In C.I.F contract, there is no obligation that the selle delivers the goods personally to the buyer. The seller performs his obligations if he is able to furnish th buyer with the requisite conforming shipping documents. In effect, the seller’s duty to deliver the goods i met when the documents are delivered even if the goods are lost. The second principal feature of a C.I. ontract are that the cost of shipment and insurance are borne by the seller under section 61(b). The selle lso at his own expense bears all the cost of the freight and an insurance policy necessary for that type o he goods in question.

The third and most important aspect of a CIF contract is for the seller to deliver or tender the shippin documents to the buyer under section 61(c) and 64 of Act 137. This may be a seller’s invoice for the price, bill of lading and insurance policy. These provides an assurance to the buyer that the goods will arrive an f destroyed or damaged there will be insurance for him. The bill of lading and the insurance policy assure he buyer that the goods shall arrive and even if they do not arrive because they are destroyed or damaged t assures the buyer that he can claim against the carrier or the insurer as the case may be. If the document re not in order, the buyer may reject them. However the seller may make fresh and conforming tender i here is time.

The Supreme Court has held in ROBIN HOOD MILLS LTD AND ANOTHER v FARAH [1963] 1GLR 14 hat,

“In a c.i.f. contract where the seller completely satisfies his part of the contract, that is to say, as soon as h

(i) ships goods of the description contained in the contract, (ii) procures a contract of affreightment which i reasonable and usual in the trade and procures a bill of lading evidencing the contract of affreightment, (ii covers the goods with a policy of insurance upon terms current in the particular trade, and (iv) tenders a the relevant documents to the buyer, the incident to risk passes to the buyer upon shipment of the goods Thereafter the buyer will be under an obligation to pay even if the goods get lost in transit, or becom damaged through any intervening circumstances.”

The parties may prescribe what specific documents should be tendered by the seller to the buyer an where the contract is silent on this, it would be sufficient for the seller to tender to the buyer the bill o lading, policy of insurance and invoice.

The contract may also expressly state that the C.I.F contract is on ‘cash against documents” basis or may b silent on it. This is not fatal to the essential nature of the contract because House of Lords has held in CLEMENS HORST COMPANY V BIDDEL BROTHERS [1912] AC that under a contract for the sale o goods on C.I.F terms the seller fulfils his obligations by shipping the goods and tendering to the buyer

the bill of lading and insurance policy, and the buyer has to pay the agreed price in exchange for thos documents, whether the contract does or does not in terms provide that the payment shall be mad “against documents”.

From the evidence available especially Ex B series are all captioned sales confirmation. On the face of a the three documents making up Ex ‘B’ series delivery terms is stated to be C.I.F. I find and hold tha the contract entered into between the parties was on C.I.F terms and retained the essential features o C.I.F as enumerated supra.

But did the plaintiff fulfil its obligations under such a C.I.F contract that I have found existed between th parties? The general rule is that performance of a contract must be precise and exact. That is a part performing an obligation under a contract must perform that obligation exactly within the time frame se by the contract and exactly to the standard required by the contract. This rule was applied in RE MOOR & CO AND LANDAUER &CO [1921] 2 KB 519.

The import for the instant case is that once the Plaintiff as seller under a contract for the sale of good under C.I.F terms has undertaken to procure shipment of the goods agreed to be sold to the agreed port, t procure and tender to the buyer proper shipping documents covering the goods, the Plaintiff i ontractually bound to ship the goods and ensure that the buyer actually receives the proper documents The parties may agree in the contract that the tender of the documents shall be made to the buyer in perso or to an agent or other person on behalf of the buyer.

Where under the contract tender of the documents is to be made to the buyer in person, tender of th documents by the seller to any other person other than the buyer is non-performance on the part of th eller because it will amount to a departure from the terms of the contract. Where however, the partie have agreed that document may be tendered to an agent of the buyer or other person on behalf of th buyer, then tender of the documents to such persons is good delivery to the buyer.

The question then is this – is ascertaining whether or not a party to a contract has performed his contractua obligation a question of fact or a question of law. Chitty on Contracts, has opined that when an issue arise s to whether performance is sufficient, the court must first interpret the contract in order to ascertain th nature of the obligation (which is a question of law); the next question is to see whether the actua performance measures up to that obligation, which is a question of mixed fact and law.

From the evidence plaintiff contends that he did not deliver the shipping documents directly to th defendant but rather to the defendant’s bankers being Fidelity Bank Ltd. Ridge Towers. And tha defendant had agreed that it would cause its bank to provide in favour of the plaintiff a guarantee for th payment of the amount stated on the bill of exchange before the shipping documents were handed over t he defendant. Indeed in Ex ‘D’ defendant’s bankers write that their client Servistar has accepted the draf with maturity date on 14^th April, 2014. And the agent of defendant makes a request to the plaintiff in term of the following:

“…because the bank is still in possession of the documents and its credit committee is yet to approve th guarantee which is still in circulation. It will be suitable however for MTI to send via swift an extension payment from 14^th April to a further 30 days”.

Here defendant through its agent makes an admission that they were in possession of the documents an what was left was for the provision of the guarantee. In Ex ‘F’ Ivy Manly-Spain is requested to proceed t accept and pick the documents at the bank as soon as possible in order to afford defendant the chance t clear the containers in order to avoid public auction of the containers. Defendant’s representative unde cross examination admitted that it nominated Fidelity Bank to receive the documents on its behalf i terms of the following:

“Q: In respect of the transaction between the plaintiff and the defendant, as claimed from paragraph 3 of you witness statement, you do not deny it, is it correct?

A: I have no denial.

Q: How long has the defendant had a relationship with Fidelity Bank.

A: It is about four or five years. I cannot be specific.

Q. But at the time of the commencement of these transactions, that is as at August, 2013, your bankers wer Fidelity Bank.

A: That is Correct.

Q. It will stand to reason then that it is the defendant that nominated and instructed Fidelity Bank in respect of thi transaction to receive shipping documents on his behalf, is that not so?

A: Yes My Lord”

From the above I will accordingly find as a fact and hold that plaintiff performed his duties in complianc with a contract governed by CIF terms by delivering the shipping documents to the defendant who ha nominated the Fidelity Bank as its bankers. And as defendant nominated an agent, being Fidelity Bank with Plaintiff having delivered the shipping documents to the said agent and per the instructions of th defendant, plaintiff can be deemed to have fulfilled its part of the obligations.

Counsel for defendant in his written address contends that plaintiff failed to include insurance policy i the name of the defendant as required by section 61(b) of Act 137. As far as the evidence on recor demonstrates, the contract was not fulfilled not because of non-provision of insurance but rather th failure of defendant to raise the bank guarantee with his bankers and any claim of non-provision o insurance policy is an afterthought and the attempt of defendant to raise non-provision of insurance b plaintiff as a material breach by plaintiff will be rejected by the court.

Did the defendant fail to obtain the shipping documents because of its inability to discharge it obligations?

The nature of a party’s contractual obligation is deducible from a true and proper construction of th terms of the contract executed by the parties. Where the existing terms of the parties are subsequentl altered the alteration operates to discharge the parties from their obligations under the former terms, an the new terms superimpose the previous terms of the contract. The parties then assume obligations unde the new terms of the contract as the alteration of the terms evidence the parties’ intention to introduc new terms in place of the old.

Consequently, the question whether or not a party has performed or failed to perform its obligation under the new terms of the contract is answered by assessing if the actual acts carried out measure up t that party’s obligation under the contract.

Plaintiff had claimed through its attorney that the bill of exchange which is Ex ‘B’ series was sent an accepted by the defendant as it was endorsed by its appointed representative, with a request fo extension of the due date. To plaintiff there was a further plea emanating from defendant through Iv Manly Spain, one of the directors of defendant. Defendant’s representative, Henry Manly-Spain admitte that Ivy Manly-Spain is a wife and one of the directors of the company and that plaintiff had given verbal instructions to them to provide a guarantee. This is what transpired in court:

“Q: This email shown in exhibit L2 is an email from Ivy Manly-Spain who you have also identified as your wif and the director of the defendant.

A. This is right. The request of this Bank guarantee was a verbal agreement between the supplier who offered tha we should indicate to the Bank that we will like to have a guarantee to support the goods … all the shipping that ar shipped to us, the documents are released to us based on the relationship that we do have with them, we clear th goods and we pay”

Q. You want this court to believe that an international sale of contract on CIF terms, an international supplier wi supply your company with goods and hand over shipping documents … without any form of security for paymen for the goods, is that what you are telling this court.

A. Yes it is done, the security that you mentioned, to secure or to have security that is why the documents g through the Bank”

As defendant was making an allegation of a verbal agreement, the onus was on him to prove that claim. It is trite learning regarding parol evidence rule that generally once parties to an agreement have reduced their contract into a written form, the parties will be debarred from adducing extrinsic evidence to contradict what they have written. The exceptions to the parol evidence rule is where the written document was not intended to contain the whole of the agreement between the parties as seen in the case of ALLEN v PINK [1838] 4 M&W 140; two a circumstance where oral evidence may be adduced to prove the existence of a custom as it was in the case of GILLESPIE BROTHERS v CHENEY EGGAR & CO [1896] 2 QBD 59; three where there is evidence to show that a contract is invalid due to misrepresentation, mistake, fraud or non est factum as it was in the case of CAMPBELL DISCOUNT v GALL [1961] QBD 431and four where a party is calling for rectification of the written document as in the case of MANN v NUNN [1874] 30 LT 526.

Defendant could not prove any of the exceptions before the court. On the other hand Ex L2 being a email from Ivy Manly Spain notes as follows:

“We would like to inform you that due to the current economic situation in Ghana, our company can n longer receive documents on sight basis. We would appreciate if you can release these documents to us on 30 days period bank to bank guarantee. This means our bank is guaranteeing to pay you on our behalf b 30^th day”.

This Ex ‘L2’, I find to be a communication from defendant that seems to vary the original plan agree between them that payment would be made upon siting of the bill of exchange to one where th documents would be released 30 days with the provision of a bank guarantee. Did the bankers o defendant do that? The answer is no as found in Ex ‘G’ where Fidelity Bank informs plaintiff that:

“Please be advised that we are unable to guarantee for the drawee USD 276,465.00 maturing on the 15 May, 2014”.

It is this Ex ‘G’ that ignited Ex ‘J’ from plaintiff that it had not received payments and therefore it wa terminating the contract. Suzzane Appau, Pw1 from Fidelity bank in her evidence also confirmed tha credit approval for defendant did not go through at Fidelity bank and identified Ex ‘G’ as emanatin from them. I accordingly find as a fact that the obligation imposed by law on a buyer under CIF terms t pay for the goods upon siting of the shipping documents were not complied with by defendant a plaintiff had released the documents to defendant’s own bankers.

Defendant has alleged fraud and in paragraph 13 of its statement of defence and particularized the fraud to encompass plaintiff representing that it had shipped a consignment of poultry products when in actual fact it had not done so, a representation that plaintiff’s bank had given irrevocable instructions to its bankers to deliver shipping document when no such documents or instructions had been given, falsely and fraudulently representing that plaintiff had full title in the consignment of poultry products to pass to defendant when this was actually not the case etc. Allegation of fraud is not treated lightly by the courts and a great and onerous responsibility is thrust on the shoulders of a party that runs to the court with a cry of fraud.

For in the case of REDDAWAY v BOWHAM [1896] AC 199 @ 221 Lord Macnaughten noted on fraud as follows and which was quoted with approval in the case of FOFIE v ZANYO [1992] 2 GLR 475 that:

“fraud is infinite in variety; sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be modesty itself if it could only afford it. But fraud is fraud all the same, and it is fraud and not the manner of it, which calls for the interposition of the court”

Defendant on the issue of fraud bears the burden of proof to show that the conduct of plaintiff in the transaction towards him as he had particularized in paragraph 13 of its statement of defence acted dishonestly as fraud is dishonesty in the description of Dr. Twum JSC in the case of BROWN v QUARSHIGAH [2003-2004] 2 SCGLR 930 @ 946 where the Judge stated as follows:

‘at common law a charge of fraud is such a terrible thing to bring against a man that it cannot be maintained in any court unless it is shown that he had a wicked mind… in short fraud is dishonesty’

The standard of proof of fraud even in a civil case is one of proof beyond reasonable doubt. Section 13 (1) of the Evidence Act states that:

‘In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt’.

Did defendant lead any evidence of fraud in line with the notice of particulars he gave? Defendant’ representative, Henry Manly Spain states in paragraph 11 of his witness statement that he was induced t accept the bill of exchange. I have combed the entire evidence adduced at the trial and I find nothing i support of this bare assertion of having been induced to accept the bill of exchange. On the contrary th evidence on record shows that the defendant nominated its own Bank to receive the shipping document and as the guarantee could not be provided the contract had to be abrogated. I find and hold that th claim and allegation of fraud made by defendant was unproved even on a balance of probabilities le alone the criminal standard of prove beyond reasonable doubt.

It appears that the defendant failed to obtain the shipping documents because of its inability to raise th bank guarantee necessary for him to obtain the shipping documents to enable him clear the container from the Tema harbour and I find defendant liable for the value of the US$276,465,00 as shown on th face of the bill of the bill of exchange drawn on the defendant by the plaintiff and accepted by th defendant through its authorised agent, the Fidelity Bank.

I think also that plaintiff is entitled to interest on this amount of USD$276,465.00 from the date of 15^th o May, 2014 when it became due till date of final payment at the commercial bank rate.

Plaintiff also seeks in relief D and E the recovery of amounts of US$40.497.50 and US$44,000.00 being th cost incurred in recovering possession of the containers and demurrage charges paid respectively. Di the plaintiff at the trial prove this claim of monies spent in recovering possession of containers and wa there any evidence on record that demonstrates that plaintiff paid monies in demurrage charges becaus of the failure of the defendant to obtain the shipping papers to clear the containers.

Plaintiff in his attempt to claim its entitlement to an amount for the value of all the eleven container totalling US$443,614.50 (after considering relief A) less the three it sold in Lubumbashi, Democrati Republic of Congo for the price of US$100,200.00. Plaintiff’s attorney in his witness statement claime that the eleven containers were all auctioned by Ghana Customs Authority and managed to retrieve onl three of the containers by selling them to mitigate its losses. Ex ‘K’ series was tendered by plaintiff wher the three containers sold in Democratic Republic of Congo with each fetching an amount of 33.400.0 Euros. The total value, therefore, will come to US$100200.00. Plaintiff claims that less the amount o US100.200.00 the total value of the eleven containers and that of Relief A being US$443,614.50 should b borne by the defendant.

The law is that a party is required to take steps that are reasonable to mitigate losses. Damages awarde are subject to the rule that an innocent party to a contract is under obligation to take reasonable steps t mitigate losses. So in the case of SOCIETE GENERAL DE COMPENSATION v ACKERMAN [1972] GLR 413@432 the Court of Appeal per Anin JA noted as follows:

“what steps a plaintiff in an action for breach of contract should take towards mitigating the damages is question of fact and not of law…”

I hold and find that the value of the containers being US$443,614.50 which only three were retrieved an sold as seen in Ex ‘K’ to the tune of US$100,200.00, and after the payment of the value of the bill o exchange raised to the tune of US$ 276.465,00 the balance still outstanding on the amount o US$444,614.50 is recoverable by the plaintiff from the defendant and I so find.

Not only that but also plaintiff seeks to recover the cost of demurrage which he attributes to hav occurred because of the conduct of defendant that resulted into the containers attracting the demurrag charges. Ex ‘M’ series. Ex ‘M’ has a face value of US$13,640.00, there is Ex ‘M2’ with the value o US$8,682.50, I can also see Ex ‘M4’ with a demurrage charge of US$3,000.00. There is also Ex ‘M3’. seems to me to be reasonable that plaintiff be made to recover for the cost of these expenses it was mad to pay and I so grant it.

Interest that plaintiff also seeks in respect of reliefs A and B are reasonable and l grant same. In th exercise of the discretion of the court I will award cost assessed at 8% of the value of the claim in favour of the Plaintiff.