IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
MERIGA SHEIMAWU - (Plaintiff)
MAHAMI BUKARI FUSEINI - (Defendant)
DATE: 21ST DECEMBER, 2016
SUIT NO: OCC 59/2016
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
LAWYERS: JAMES KOJO TSIN
On 27 April, 2016 the Plaintiff herein instituted the instant action against the Defendant herein. The following reliefs were sought by the Plaintiff:
Specific performance of the agreement entered into by the Plaintiff and the Defendant on the 12th day of February, 2016.
Interest on the amount of money entered into on the 12th day of February, 2016.
Cost of legal fees.
After unsuccessful attempts to serve the Defendant with the writ of summons and the statement of claim, the plaintiff applied to the Court for an order for Substituted Service of the processes on the Defendant herein.
Upon service of the writ of summons and statement of claim by substitution, Sambian & Co entered conditional appearance on behalf of the defendant. The Defendant did not set aside the writ of summons and statement of claim neither did he file a defence.
Consequently, the plaintiff filed a motion on notice for judgment in default of defence on 18/07/2016, with a return date of 1/08/2016. The said motion was served on Counsel for the defendant, Sulley Sambian Esq., through his clerk by name Mr. Essibu on 29/07/2016.
On 01/08/2016, both the defendant and his counsel were absent. Counsel for the plaintiff was present. The motion was duly moved and final judgment was entered against the Defendant for the reliefs endorsed on the writ pursuant to Order 13 rule 2 of the High Court Civil Procedure Rules, 2004, CI 47.
The Plaintiff applied to the court on notice to amend the writ of summons. The process was served on the defendant through his lawyer but they (defendant and his lawyer) failed to appear in court when the motion was moved. The motion for an amendment of the writ of summons was subsequently granted. The amended writ of summons read as follows:
1. Specific performance of the agreement entered into by the Plaintiff and the Defendant on the 12th day of February, 2016 or in the alternative the payment of Fifty Two Thousand Ghana Cedis (GHC 52,000) by the Plaintiff to the Defendant.
2. Interest on the amount of money entered into on the 12th day of February, 2016.
3. Cost of legal fees.
It is on record that the amended writ of summons together with the statement of claim was served on lawyer for the defendant on 28/10/2016.
It is observed that the amended writ of summons did not change the colour of plaintiff’s case. When the case came up for assessment of the claim on 13/10/2016, the defendant and his lawyer did not show up. The case was adjourned to 2/11/2016 but they failed to show up once again. The case was further adjourned to 23/11/2016. This time around, even though the Defendant was absent one Felix Osei Bonsu held brief for Sulley Sambian. He prayed for an adjournment and the case was adjourned to 13/12/2016. On the 13/12/2016 the defendant and his lawyer failed to appear and so the court ordered the Plaintiff to testify for assessment of her amended claim.
Plaintiff mounted the witness box and gave a detailed account of her encounter with the defendant. She narrated to the court the circumstances that led her to advance the amount of GHC 52,000 to the defendant. She also told the court that on 12th of February, 2016 the defendant gave her the document covering his house and undertook to pay the money within six months and that upon failure on his part to do so she (Plaintiff ) can take over the house and give him a balance of GHC13,000. She tendered a written agreement and same was admitted and marked Exhibit A. She further stated that the defendant did not comply with the agreement and prayed the court to enforce the agreement by granting her the opportunity to sell the house to defray the debt. She finally prayed the court to grant all the reliefs indorsed on the amended writ of summons.
It is not in doubt that there was an agreement between the parties in this suit for sale/supply of goods. The plaintiff fulfilled her obligation under the said agreement by making full payments for the goods in the manner agreed upon by the parties. The defendant failed to fulfil his duty to supply the goods and that has landed parties in court. Clearly, there has been a breach of the agreement between the parties herein by the defendant. The Plaintiff is therefore entitled to the reliefs indorsed on the amended writ of summons.
Plaintiff’s invitation to the court to treat the contents of Exhibit A as an admission and enforce same cannot be entertained by the Court. This is because the so called agreement did not receive the blessing of the court and cannot be described as consent judgment to be considered in the assessment of claim. The learned author, Justice S. A. Brobbey in his book, Practice and Procedure in the Trial
Courts & Procedure of Ghana, 2nd Edition, par 677 described consent judgment as follows:
‘‘The defendant may admit or consent to the claim of the plaintiff and the plaintiff may similarly admit or consent to the counterclaim of the defendant. The consent of admission may be made orally or by written notice to the court or registrar before or during the trial.
Where there is consent or admission, consent judgment or judgment by admissions may be entered against the defendant or the plaintiff to the extent admitted or consented to.’’
Is the plaintiff entitled to general damages?
The law is that general damages lie for every infringement of an absolute right. The Supreme Court held in the case of Delmas Agency Ghana Ltd v Food Distributors International Ltd [2007/2008] SCGLR 748, 760 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 general 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.’’
In the instant case, the plaintiff failed to seek general damages as a relief in the writ of summons. When the opportunity was presented to her to amend the writ of summons she failed to incorporate general damages as a relief. I am however inclined to award general damages in spite of the procedural lapse, as it is apparent on the face of the record that the plaintiff is entitled to same. I am exercising my discretion in favour of the plaintiff to enable substantial justice to be done.
In relying on the ethos of substantial justice, I am emboldened by the Supreme Court’s decision in the case of Major Mac Dorbi and W. O. Saviour v Richard Adom Frimpong and 2 Others Civil Appeal No. J4/45 2011 (30th January, 2013). In that case, the appellant, W. O. Saviour who had not filed an appearance participated in the trial and emerged victorious. The Supreme Court saved the judgment in favour of the said W. O. Saviour after the Court of Appeal had set it aside. The Supreme Court speaking through Atuguba JSC stated:
“From the record of appeal and the Court of Appeal held it to be fundamental, W.O. Saviour did not enter appearance let alone file a defence. He however participated to the hilt in the proceedings and emerged from them as a victorious counter claimant. As to this we wish to point out that the battle for substantial, as opposed to technical and fastidious justice, has been irreversibly won. At the time of the institution of the consolidated suits herein, as noted by Kanyoke J.A. in the Court of Appeal, the new High Court (Civil Procedure) Rules 2004, C.I. 47 had come into force. The comprehensive terms of Order 81 rule 1(1) and 2(2) have indubitably given statutory stamp to the ancient maxim cuilibet licet renunciare juri pro se introducto, i.e. a person can waive what the law has ordained for his own advantage. In Obeng v. Boateng (1966) GLR 689 Amissah J.A. (as J) did not invalidate the participation in the proceedings of certain third parties who had filed no appearance thereto.”
From the foregoing, I award GHC 2000 as general damages in favour of the Plaintiff.
I have taken into consideration the provisions of order 74 of C.I. 47 on award of cost. I have taken cognisance of the expenses incurred (including lawyer’s fee) in prosecuting this case by the plaintiff. Accordingly, I award cost of GHC6000 against the Defendant and in favour of the Plaintiff.