IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
W B H O GHANA LIMITED - (Plaintiff)
EMMANUEL OWUSU - (Defendant)
DATE: 1ST FEBRUARY, 2016
SUIT NO: OCC/67/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
ANDREW DANIELS FOR PLAINTIFF
NO LEGAL REPRESENTATION FOR THE DEFENDANT
WBHO GHANA LIMITED, a Limited Liability Company registered under the laws of Ghana, commenced the instant action against the Defendant on 24/11/2014. As the Defendant could not be traced for personal service, the Plaintiff obtained an order for substituted service of these processes on him. By an order of this court, the writ of summons and statement of claim were duly published in the Thursday, April 2, 2015 edition of the Daily Graphic Newspaper, page 68.
After the said publication, the Defendant failed to enter an appearance or cause an appearance to be entered on his behalf. Thus, on 17/06/2015, an interlocutory judgment was entered in favour of the Plaintiff on an ex-parte application brought by its counsel.
Again, the Defendant could not be located for service of hearing notice for damages to be assessed as indicted in an affidavit of non-service filed on 21/07/15. So, on 26/10/2015, the Plaintiff obtained another order for substituted service of a hearing notice on the Defendant. Service was effected as per the affidavit of posting filed on 12/11/2015 and a publication in the Wednesday, November 25, 2015 edition of the Daily Graphic Newspaper. The return date was 07/12/2015, but the Defendant neglected to come to court. Accordingly, the court proceeded to take evidence for the assessment of damages in respect of the following reliefs for which interlocutory judgment was earlier entered:
i. A declaration that the Defendant is in breach of contract in respect of the purchase of equipment ( more particularly referred to in the statement of claim) from the Plaintiff and or in the alternative damages for conversion and unlawful retention of the Plaintiff's property.
ii. Special Damages and general damages for consequential losses incurred by the Plaintiff from the unlawful removal and detention of its property; and from the Plaintiff's attempt to recover the property.
iii. An order for preservation of the property wrongfully removed from the Plaintiff's premises
iv. An order for the recovery of possession by the Plaintiff of its property.
Daniel Simbarashe Gwini who described himself as a Senior Plant Administrator for WBHO gave evidence on 07/12/2015.According to him, the Defendant who is a former employee of the Plaintiff successfully bid for three items on an on-line auction held in the year 2014 for the sale of its equipment. After the auction, the Defendant is said to have obtained another Plant equipment under the same terms of the on-line auction. The witness outlined the terms of the online auction as follows:
(i) payment of the bidding price Defendant won with;
(ii) 10% extra payment of buyer's premium;
(iii) VAT on the buyer's premium and
(iv) VAT on the bidding price. A copy of the terms of the on-line auction was put in evidence as exhibit B. The Plaintiff's representative testified further that the Defendant paid the bid price but failed to pay the VAT and premiums. However, he moved the equipment away from the Plaintiff's premises.
Continuing, the Plaintiff's representative told the Court that the Defendant was summarily dismissed after a summary hearing on removing Company property without authorization. At the time of his dismissal, the witness said the Defendant's indebtedness stood at GH¢69, 282.25 as contained in a demand letter, exhibit E. He prayed the court to order the Defendant to pay this money and / or pass a judgment for all the reliefs endorsed on the writ, particularly a preservation of the equipment itemized in paragraph 6 of the statement of claim.
Was there a contract between the parties herein, and, if so, has the contract been breached? Clause (1) of exhibit B stipulates the terms and conditions of the on-line sale thus:
“By participating in this online Auction, you the bidder/buyer consent and agree to be bound by the Auctioneer's terms and conditions in addition to the Sale Specific Terms and Conditions and General Terms and Conditions applicable to the use of the website..."
In clause (3) of exhibit B, there are specific terms on payment and clearance. Among these are (i) 10% premium to be added to the winning bid; 14% VAT to be charged on all sales including buyer's premium. The Defendant executed exhibit B to indicate his acceptance of the terms and conditions stated therein. From then on, these terms became binding on him. Thus, a binding contract came into existence between the parties.
From the oral evidence adduced by the Plaintiff's representative, the Defendant failed to pay the VAT and buyers premium on the purchases he made, contrary to the terms of sale. There is no doubt that the Defendant's failure to pay these outstanding sums of money before moving the equipment from the Plaintiff's premises amount to a breach of contract and so declare.
Now, to the question of damages. Generally, damages are recoverable whenever there is a breach of contract. The quantum however depends on the circumstances of each case, and on the principle of Restitutio in Integrum. Damages are not awarded to over rich a plaintiff far beyond his actual losses. The general principle for the award of damages, be it general or special, was stated by the Supreme Court in Delmas Agency (GH) Ltd v Food Distributers International Ltd ( 2007/2008) SCGLR 748. At page 760, Dr Seth Twum JSC stated:
“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 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." See also AG v Faroe Atlantic Co. Ltd. (2005/2006) SCGLR 271 where the same principle on the award of damages was applied; Nogbey v Asante ( 1992) 1 GLR 506 which dealt with the assessment of damages even though in a Road Traffic Accident case.
The measure of damages is to put the party who is not in breach in as near a position that he would have been in had the breach not occurred. Thus, in Juxon-Smith v KLM Dutch Airlines (2005-2006) SCGLR 438 at 442, the Court explained the principle thus:
“Where a party has sustained a loss by reason of a breach of contract, he was, so far as money could do it, to be placed in the same situation with respect to damages, as if the contract had been performed."
In the instant case, had the Defendant not breached the contractual terms of the on-line auction sale, the Plaintiff would have been entitled to the 10% buyers premium on the winning bid. Since the same terms are applicable to the subsequent sale off-line, the 10% is again applicable. Obviously, the VAT is to benefit revenue. It is not money which the Plaintiff is entitled to use. It is due and payable to the Ghana Revenue Authority, through the Plaintiff. See the Valued Added Tax Act, 2013, (Act 870). As was stated by Tekper, Seth E. (2011) WG & L VAT Handbook, "Valued Added Tax (VAT) is a tax on general consumption which is ultimately paid by consumers and collected on behalf of a country's tax offices by registered businesses." Abdallah Ali-Nakyea further explained in his book Taxation in Ghana, Principles, Practice And Planning (2014), page 351 thus:
"By its definition as a consumption tax, it is a tax paid by the consumer, often as part of the price. However, it is practically impossible to collect the tax from every single consumer who walks into a retail outlet to buy a commodity or have a service rendered to him. Thus, the seller, that is, trader, manufacturer, importer etc., is often registered as an agent for collecting the tax on behalf of the Ghana Revenue Authority."
The equipment sold to the Defendant can be described as taxable supplies within the meaning of Section 33 of Act 870. By the VAT law, the accounting period for VAT returns is usually one calendar month. The Plaintiff has also not stated that subsequent to the sale, the Ghana Revenue Authority has compelled it to pay the requisite VAT and any penalties thereon so as to place a financial burden on it. Therefore, any monies which the Plaintiff collects from the Defendant as VAT is to be paid over to the Ghana Revenue Authority.
Currently, the VAT rate is 15%. However, with the promulgation of LI 1793, the National Health Insurance Levy, (NHIL) imposed under section 86 of the National Health Insurance Act, 2003 (Act 650), 2.5% single rate is chargeable on every supply of goods and services made or provided in Ghana.
I notice from the agreement that the VAT was pegged at 14% but with the laws as stated above, what ought to be paid is the 17.5% . It is therefore not out of place for the Defendant to be billed at that rate. Per exhibit E, the total amount owed by the Defendant i.e. the 10% buyer's premium and the 17.5% VAT is GH¢69, 282.00 which is the cedi equivalent of US $ 25,660.00
The second leg of the Plaintiff's claim is the Buyer's premium. If the Plaintiff had been paid the buyer's premium, it would have invested the same in other profitable business or businesses. The loss of use can be compensated for by an award of interest, and some nominal damages.
In the circumstance, I will enter final judgment in favour of the Plaintiff against the defendant in the sum of GH¢69, 282.00 together with interest at the prevailing Bank Rate from May, 2014, till date of delivery of judgment; and post judgment interest from the date of delivery of judgment till date of final payment. Since the Defendant's obligations were calculated in US dollars and he is being ordered to pay the cedi equivalent, the rate of interest shall be the prevailing Bank of Ghana Dollar Lending Rate. See NIB Ltd v Silver Peak Ltd (2003/2004) SCGLR 1008.
However, the Plaintiff shall pay the VAT component to the Ghana Revenue Authority and file evidence of the same at the Registry of this Court upon receipt of payment.
From the facts and the evidence adduced by the Plaintiff's representative, I award nominal damages of GH¢10,000.00 in favour of the Plaintiff against the Defendant.
I further order the preservation of the equipment sold to the Defendant and particularly described in paragraphs 6 and 8 of the Plaintiff's statement of claim. They shall be kept at the expense of the Defendant until he fully pays the judgment debt, interest and cost. For the avoidance of doubt, the equipments are as follows:
301 (ZA80381) Caterpillar 336DL Excavator with Asset No. E142CAT0336DL WET00305.
31 (ZA53951) IVECO 380 CRANE TRUCK ASSET No.K492 GT34610 WJME3TRS30C213910.
315 (OLYMPIAN GEP 1102 100KVA Generator Set Asset No. Y181 HB4H00870
Cost is to be assessed at GH¢6,000.00.