IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2026
CORAM: AMADU JSC (PRESIDING)
PROF. MENSA-BONSU (MRS.) JSC
KULENDI JSC
ADJEI-FRIMPONG JSC
BARTELS-KODWO JSC
CIVIL APPEAL NO. J4/03/2022
3RD JUNE, 2026
C. A. LIMITED ………… PLAINTIFF/RESPONDENT/ RESPONDENT
VRS
1. ANOINTED STAR CONSTRUCTION ………… 1ST DEFENDANT/
& TRADING LIMITED APPELLANT/APPELLANT
2. SOLOMON KWAME GYAN ………… 2ND DEFENDANT/APPELLANT
JUDGMENT
TANKO AMADU, JSC:
INTRODUCTION
1. This is a second appeal. It is brought by the 1st Defendant against the judgment of the Court of Appeal, Cape Coast, dated 16th December, 2020, which emanated from the judgment of the High Court (Commercial Division), Sekondi, dated 29th March, 2019. For ease of reference, we shall, in this judgment, describe the Plaintiff/Respondent/ Respondent simply as “the Respondent” and the 1st Defendant/Appellant/Appellant simply as “the Appellant.” Where it is necessary to refer to the original 2nd Defendant, who is the Managing Director of the Appellant company, we shall refer to him “the 2nd Defendant.”
2. The appeal arises out of an ordinary commercial transaction, the supply of building materials on credit but it has been argued before us as though, it raised large and unsettled questions about the law governing the sale of goods in this country. It does not. The principles that govern this dispute are, for the most part, plainly stated in the Sale of Goods Act, 1962 (Act 137), and have been applied by this court for the better part of six decades. We have nonetheless thought it useful, because the appeal touches several of the central provisions of the said Act, and because some of the arguments urged on us betrayed a measure of confusion about them, to restate the relevant law with some fullness before applying it.
3. The appeal raises four questions. First, whether the courts below were obliged to ascertain and award a “reasonable price” for the goods supplied. Secondly, whether those courts erred in holding that certain metal columns and beams answered the contract and that the appellant had in law accepted them. Thirdly, whether the Appellant’s counterclaim for the loss of use of a scaffold was wrongly refused and the damages awarded in its place inadequate. Fourthly, whether the judgment is, in the round, against the weight of the evidence. Beneath all four lies a single feature that shapes our whole approach: the findings now impugned are concurrent findings of the two courts below.
THE FACTS AND BACKGROUND
4. The Respondent is a dealer in hardware and building materials carrying on business at Takoradi. The Appellant is a construction company which, in 2013, won a tender to put up buildings on the external campus of the University of Education, Winneba, at Onwe in the Ejisu-Juaben Municipality of the Ashanti Region. Lacking the means immediately to finance the materials the project required, the Appellant, acting through its Managing Director, approached the Respondent for the supply of building materials on credit, payment to be made within three months. The Respondent was at first reluctant. On her account, she relented only upon the 2nd Defendant’s assurance that, in the event of default, he would sell his own property to liquidate the debt.
5. Between 13th June, 2013 and 19th December, 2015 the Respondent supplied goods to the value of Gh¢908,940.00 and advanced Gh¢97,700.00 in cash. The Appellant paid Gh¢398,140.00 on account, leaving, on the Respondent’s case, an outstanding balance of Gh¢608,500.00. Repeated demands for payment having failed, the Respondent issued her writ out of the High Court, Sekondi, claiming recovery of that balance, interest at the prevailing bank rate, and costs. The Appellant and the 2nd Defendant resisted the claim. The Appellant counterclaimed for the return of a 50-room scaffold said to belong to it, and for special damages of Gh¢6,750.00 per month from February, 2016 until its return, as loss of use.
6. The dispute revolves around certain vital documentary evidence. They are: Exhibit “C,” a written Credit Sale Agreement of 1st October, 2014, drawn by the Appellant’s own lawyer, fixing the cost of metal columns and beams and a schedule of payment; Exhibits “A” and “A1” to “A16”, a series of invoices for the goods supplied, each signed by the Appellant’s representative; Exhibit “3”, the letter of 22nd August, 2015 by which the Appellant claims to have rejected the metal columns and beams; Exhibit “6”, the Appellant’s letter to the Structural Engineering Department of the University of Cape Coast requesting an examination of certain metal plates; Exhibit “G”, a dishonoured cheque for transport costs; and Exhibits “H” and “H1”, invoices of a different supplier (B5 Plus) said to show lower prices. We shall return to each in its place.
7. On 29th March, 2019 the High Court entered judgment for the Respondent on all the reliefs endorsed on the writ and dismissed the counterclaim in its entirety. Both Defendants appealed to the Court of Appeal. That court allowed the appeal in part. It set aside the judgment against the 2nd Defendant holding that, he was not a proper party and had not in law guaranteed the debt. It allowed the counterclaim to the limited extent of ordering the return of the scaffold to the Appellant, but declined to award the special damages claimed, awarding instead Gh¢10,000.00 as nominal damages. In every other respect it affirmed the judgment of the trial court. The Appellant, still aggrieved, now appeals to this court per a Notice of Appeal dated 9th March 2021 upon the following grounds:
(i) The Court of Appeal fell into the same error as the High Court when it failed to make a determination as to a reasonable price of the iron rods sold by the Plaintiff and purchased by the 1st Defendant;
(ii) The Court of Appeal erred when it held that the metal plates/beams (howsoever described) supplied by the Plaintiff to the 1st Defendant were to specification; and further erred when it held that the 1st Defendant’s repudiation of the metal plates/beams was belated;
(iii) The refusal of the counterclaim of the 1st Defendant as being unproven was wrongful;
(iv) The award of damages in the sum of Gh¢10,000.00 for the denial by the Plaintiff of the 1st Defendant’s use of its scaffold is grossly inadequate;
(v) The judgment is against the weight of the evidence on record;
(vi) Additional ground(s) of appeal may be filed.
8. No additional ground was filed. Before turning to the substance, we make one observation about form. Grounds (i) to (iv) are not models of the precise, particularised formulation that Rule 6 of the Supreme Court Rules, 1996 (C.I.16) requires. A ground of appeal, other than the omnibus ground, must give the precise particulars of the error, mistake or misdirection alleged; a ground that does no more than register dissatisfaction with the result, or that quarrels with the facts without identifying the supposed error of law, is defective and liable to be struck out.
9. We have nevertheless, as this court ordinarily does, considered the grounds on their merits, reading ground (v) as the omnibus ground it plainly is. We take ground (ii) first, since it concerns the most substantial single component of the claim; then ground (i); and grounds (iii) and (iv) together; and finally the omnibus ground.
THE LAW AND PRINCIPLES GOVERNING A SECOND APPEAL TO THE SUPREME COURT
10. Because the manner in which this appeal was argued repeatedly invited us to retry the facts, it is as well to begin by recalling what a second appellate court does and does not do. An appeal is, of course, by way of rehearing. This court is therefore entitled, and where the omnibus ground is raised is bound, to examine the entire record, to evaluate the oral and documentary evidence, and to satisfy itself that, the conclusions reached below are, on a preponderance of the probabilities, reasonably and amply supported by the evidence: TUAKWA VS. BOSOM [2001-2002] SCGLR 61 applied. The Appellant who complains that a judgment is against the weight of the evidence assumes a corresponding burden: he must identify, with precision, the pieces of evidence that were wrongly applied or wrongly ignored and demonstrate that, properly weighed, they would have yielded a different result: DJIN VS. MUSAH BAAKO [2007-2008] SCGLR 686; OWUSU-DOMENA VS. AMOAH [2015-2016] 1 SCGLR 790.
11. There is, however, a further and more exacting constraint where the findings under attack are concurrent findings of the trial court and the first appellate court. In that situation, this court does not interfere merely because, on a fresh look, it might itself have found differently. It interferes only where it is shown, with clearness, that, the courts below committed some blunder or error that has occasioned a miscarriage of justice: ACHORO VS. AKANFELA [1996-97] SCGLR 209; KOGLEX LTD. (NO.2) VS. FIELD [2000] SCGLR 175. The recognised instances were collected in those cases and the authorities that follow them, and they repay restatement. This court will disturb concurrent findings where: (a) the findings are not supported by the evidence on record; (b) the reasons given in support of them are unsatisfactory; (c) there has been an improper application of a principle of evidence; (d) the court below failed to draw an irresistible inference from proved facts; (e) the findings rest on a wrong proposition of law, which, once corrected, causes the findings to disappear; or (f) the findings are inconsistent with crucial documentary evidence on the record. See also GREGORY VS. TANDOH IV & HANSON [2010] SCGLR 971; GLADYS MENSAH VS. STEPHEN MENSAH [2012] 1 SCGLR 391. Where a trial court has fallen into a fundamental error which the first appellate court failed to detect and instead affirmed, this court will not hesitate to correct the resulting miscarriage of justice. However, in the absence of any of these vitiating features, concurrent findings must stand undisturbed. The Appellant must bring its complaints within this framework or fail; a bare invitation to prefer its account is not enough.
THE LAW GOVERNING THE SALE OF GOODS
12. The Sale of Goods Act, 1962 (Act 137) is the primary source of the law regulating contracts for the sale of goods in Ghana, customary law and the common law remaining secondary and operative only so far as they are not inconsistent with the Act (Sections 78 to 80). The Act is, in its structure and much of its language, modelled on the English Sale of Goods Act, 1893, and the English authorities decided on the parent statute remain of persuasive value where our provisions correspond. But the correspondence is not complete, and on more than one matter material to this appeal Act 137 has charted its own course.
13. The most important of these departures is the Act’s distinctive treatment of the seller’s obligations, to which we now turn. We restate the scheme under five heads: formation and the classification of goods; the obligations of the seller; the ascertainment of the price; the obligations of the buyer and the passing of property; and the matter at the centre of this appeal, the buyer’s remedies, in particular the right to reject and its loss through acceptance.
FORMATION OF THE CONTRACT AND THE CLASSIFICATION OF GOODS
14. By Section 1 of Act 137 a contract of sale of goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a money consideration called the price. The Act draws, and builds much upon, a threefold classification of goods. Specific goods are goods identified and agreed upon at the time the contract is made. Unascertained goods are goods defined only by description and not identified at the time of contracting. Ascertained goods are goods that, though unascertained at the outset, have become identified to the contract afterwards.
15. This classification matters because, as we shall see, the content of the seller’s fundamental obligation under Section 8 differs according to whether the goods are specific or unascertained, and because the passing of property under Sections 25 and 26 depends upon ascertainment. We note, that the statutory definitions have been criticised as not always easy to apply at the margins but the present case raises no difficulty of classification.
THE FUNDAMENTAL OBLIGATION OF THE SELLER AND THE IMPLIED TERMS
16. The cornerstone of the seller’s position is Section 8, which is in these terms. In a sale of specific goods the fundamental obligation of the seller is to deliver those goods to the buyer; in a sale of unascertained goods it is to deliver goods substantially corresponding to the description or sample by which they were sold; and a provision of great practical importance, any term of the contract inconsistent with or repugnant to that fundamental obligation is void to the extent of the inconsistency. Section 8(3) thus places the seller’s core obligation beyond the reach of exemption clauses: a seller cannot, by the small print of his contract, contract out of the duty to deliver what he agreed to sell. This is one of the respects in which Act 137 is more protective of the buyer than the common law was, and it should be well understood by those who draft contracts of sale.
17. Around that fundamental obligation, the Act arranges a series of implied conditions and warranties. The distinction between the two is fundamental and is preserved by the Act: a condition is a stipulation going to the root of the contract, breach of which entitles the buyer to reject the goods and treat the contract as repudiated; a warranty is a subsidiary stipulation, breach of which sounds only in damages and does not justify rejection. The principal implied terms are these. By Section 10 of the Act, there are implied undertakings as to title, that the seller has a right to sell the goods and that the buyer will enjoy quiet possession.
18. Under Section 11 of the Act, where goods are sold by description, there is an implied condition that, the goods correspond with the description; and it is settled that a sale may be by description even where the buyer has seen the goods, if he relies substantially on the description. By Section 13, although the general rule preserves the maxim caveat emptor, there being no implied condition of quality or fitness except as the section provides, there is an implied condition that the goods are free from defects not declared to or known by the buyer, save where he has examined the goods and the examination ought to have revealed the defect; and, where the seller deals in goods of that description and the buyer makes known the purpose for which they are required, an implied condition that the goods are reasonably fit for that purpose.
19. By Section 15 of the Act, (sale by sample) there is an implied condition that the bulk corresponds with the sample in quality and that the buyer is afforded a reasonable opportunity of comparing the bulk with the sample. The operation of these provisions was examined by this court in PYNE & ASSOCIATES VS. AFRICAN MOTORS (CIVIL APPEAL NO.J4/38/2013, 27TH JULY 2017), where a buyer of a new vehicle that proved unfit for its made-known purpose was held entitled to reject under Sections 13, 49 and 50 of the Act, and the doctrine of caveat emptor, as qualified by Section 13, was earlier considered in ROCKSON VS. ARMAH [1975] 2 GLR 116.
20. The decision of this court in Pyne & Associates Vs. African Motors (supra) repays closer attention, for it shows the implied conditions and the remedial provisions working together. There the buyer, a construction company known by the seller to need a rugged vehicle for extensive travel, bought a new vehicle that proved to be afflicted by persistent defects which the seller, despite repeated attempts, could not cure. This court, affirming the courts below, held that, the vehicle was neither of the quality the buyer was entitled to expect under Section 13 nor fit for the made-known purpose, that the buyer was in consequence entitled to reject under Section 49, and that it had effectively done so under Section 50.
21. However, the case is equally instructive on the limits of the right, for the court was at pains to examine the timeline, the dates of delivery, of the successive complaints, and of the eventual rejection because the seller had contended that the rejection, coming after a period of use, was an afterthought. Therefore, conformity and timeliness are not separate inquiries to be run in isolation but two halves of a single question: was there a breach of condition, and, if so, was the right to reject it exercised before it was lost by acceptance? It is by reference to that composite question that ground (ii) in the present appeal must be judged.
22. Two refinements of the condition/warranty distinction should be kept in mind, for they were the subject of confusion in argument. The first is that a buyer faced with a breach of condition is not obliged to reject; he may elect instead to treat the breach as a breach of warranty, retain the goods, and sue or set off in damages. The election is the buyer’s, but once made by acceptance it is irrevocable: he cannot accept the goods, take their benefit, and afterwards purport to reject them.
23. The second is that, the characterisation of a term as condition or warranty does not depend on the label the parties attach to it but on its place in the contract, whether, as a matter of construction, it goes to the root of the bargain. The distinction matters in this appeal because the appellant’s complaint, if it had been made out at all, would have had to be a breach of condition grounding rejection under Section 49 of the Act, and not a mere breach of warranty; and because, having dealt with the goods as its own, the appellant had in any event made the irrevocable election to which we have referred.
ASCERTAINMENT OF THE PRICE
24. The price is of the essence of a contract of sale, but the Act does not require that it be fixed in advance to the last cedi. Where the price is determined by the contract, that price governs, and there is no room for the court to substitute its own assessment. It is only where the price is not determined by the contract, and is not left to be fixed in a manner the contract lays down, such as valuation by a third party, that the law intervenes to imply an obligation to pay a reasonable price, what is reasonable being a question of fact Dependent on the circumstances of each case.
25. This is elementary, but it is the proper starting point for ground (i), and we emphasise it because the Appellant’s argument on that ground depends upon an assertion that no price was agreed which, if it were true, would be the only circumstance capable of bringing the reasonable-price provision into play at all.
THE BUYER’S OBLIGATIONS AND THE PASSING OF PROPERTY
26. The buyer’s side of the bargain is governed by Sections 21 to 24 of the Act. His fundamental obligation, by Section 21, is to accept and pay for the goods in accordance with the contract; by Section 22, payment and delivery are, unless otherwise agreed, concurrent conditions. As to property, Section 25 provides that no property in unascertained goods passes until they are ascertained, and Section 26 that, unless a different intention appears, the property in the goods passes when they are delivered to the buyer. The significance of the passing of property, and of delivery, extends beyond title: as we shall see, the buyer’s dealing with goods as owner is one of the acts from which acceptance, and the consequent loss of the right to reject, may be inferred.
THE BUYER’S REMEDIES: THE RIGHT TO REJECT, AND ITS LOSS BY ACCEPTANCE
27. We come to the provisions at the heart of this appeal. The buyer’s right to reject is conferred by Section 49 of the Act. By Section 49(1) the buyer is entitled to reject the goods, and to refuse to pay or to recover the price, in three situations only: (a) where the seller is guilty of a breach of a fundamental obligation; (b) where the seller is guilty of a breach, not being of a trivial nature, of a condition of the contract; or (c) where the buyer entered the contract as a result of fraudulent or innocent misrepresentation by the seller.
28. Three points deserve emphasis. First, not every breach grounds rejection: a breach of warranty does not, and even a breach of condition will not if it is of a trivial nature. Secondly, the right to reject is the law’s strongest remedy for the buyer, for it permits him to throw the whole transaction back upon the seller; and the law therefore hedges it with conditions. Thirdly, and crucially, the right to reject is not perpetual. It may be lost.
29. How it is exercised, and how it is lost, are governed by Sections 50, 51 and 52 of the Act. By Section 50, where the buyer has the right to reject and exercises it, he need not return the goods to the seller; it is enough that he intimates to the seller that he rejects them, whereupon the seller becomes entitled to have them placed at his disposal. Two features of this provision are easily overlooked and were overlooked in the present case.
30. The first is that a rejection presupposes communication: there must be an intimation to the seller. A decision to reject locked in the buyer’s own breast, never conveyed, is no rejection. The second is that the buyer who would reject must be able to prove that he did so, and when; the burden of establishing a valid and timely rejection lies on the buyer who asserts it.
31. Sections 51 and 52 then mark the outer limit of the right. By Section 51 the buyer may not reject goods which he has accepted. By Section 52 the buyer is deemed to have accepted the goods in any of three events: (a) where he intimates to the seller that he accepts them; (b) where, after delivery, he does an act in relation to the goods which is inconsistent with the seller’s continued ownership such as using, consuming, reselling or otherwise dealing with them as his own; or (c) where, after a reasonable time, he retains the goods without intimating to the seller that he rejects them. The first is acceptance by words; the second, acceptance by conduct; the third, acceptance by lapse of time. The policy is that a buyer may not keep goods, treat them as his own, and hold in reserve a right to reject them whenever it later suits him to do so.
32. The third mode of acceptance turns on what is a “reasonable time,” and here Section 77 is decisive: what is a reasonable time is in every case a question of fact. There is no fixed period. It depends on the nature of the goods, the circumstances of the trade, the opportunity the buyer has had to examine the goods, and the use, if any, to which he has put them.
33. The retention of a second-hand car for a month has been held to exceed a reasonable time (see the discussion in ROCKSON VS. ARMAH AND, IN ENGLAND, BERNSTEIN VS. PAMSON MOTORS LTD. [1987] 2 ALL ER 220), while in other trades a longer period may be reasonable. Because the question is one of fact, the trial court’s finding upon it is entitled to great weight, and a second appellate court will be slow to disturb it. The short point, which we shall develop when we reach ground (ii), is that a buyer who takes delivery, transports the goods to his site, raises them into use on his project, and says nothing about rejection until a dispute over payment erupts many months later, has on any view accepted the goods within Section 52 and lost the right to reject under Section 51.
34. That the right to reject is readily lost by delay or by dealing with the goods is well illustrated in our own cases. In ROCKSON VS. ARMAH [1975] 2 GLR 116 the buyer of a second-hand car who retained and used it for about two months before attempting to repudiate was held to have waived any right of rejection by retaining the goods for an unduly long period; and in ARMAH VS. BAFFOUR (supra) a like result followed upon some five months’ use of an engine. These decisions show that what is a reasonable time under Section 77 is measured not by the calendar alone but by the buyer’s opportunity to examine and by what he does with the goods in the meantime. A buyer who puts the goods to the very use for which he bought them can rarely be heard to say that the time for rejection has not run.
35. One further feature of Section 13 must be noticed, for it bears directly on a party who, like the Appellant, says he inspected the goods. The implied condition that goods are free from defects does not apply, by the proviso to Section 13(1), in respect of defects which an examination actually made by the buyer ought to have revealed, nor, in a sale by sample, in respect of defects a reasonable examination of the sample would have disclosed.
36. The policy is one of fairness to the seller: a buyer who has had and taken his opportunity to examine cannot afterwards complain of defects that opportunity should have exposed. The provision cuts in two directions in the present case. If, as the Appellant at one point asserted, it inspected the consignment at length, then patent defects of the gross kind its expert later described, plates of twice the expected weight are just the defects such an inspection ought to have revealed, and the implied condition would not avail it. If, on the other hand, it did not truly inspect the contract goods at all, its expert’s evidence about other goods proves nothing. On neither footing does the appellant advance.
37. Finally, the right to reject may be partial. By Section 49(2), and subject to the contract being severable, a buyer may reject part of the goods for a non-trivial breach of condition affecting that part while retaining the rest; and in instalment contracts the section makes detailed provision for breaches affecting one or more instalments, allowing the buyer to treat the whole contract as repudiated only where the breaches are persistent and grave. None of this assists the Appellant, whose complaint was directed at a discrete category of goods, the metal columns and beams which, for the reasons we give under ground (ii), it neither showed to be non-conforming nor rejected in time. We have set the provision out only to complete the picture.
THE SELLER’S REMEDIES, AND THE MEASURE OF DAMAGES
38. Where the buyer wrongfully neglects or refuses to pay for or to accept the goods, the seller may maintain an action for the price where the property has passed or the price is payable on a day certain, and otherwise an action for damages for non-acceptance. The damages recoverable on either side of a contract of sale are governed by the principle long associated with HADLEY VS. BAXENDALE (1854) 9 EXCH 341, which Act 137 reflects: the injured party recovers such loss as arises naturally, in the ordinary course of things, from the breach, together with such loss as may reasonably be supposed to have been in the contemplation of the parties, at the time they contracted, as the probable result of the breach. Losses outside that measure are too remote to be recovered. The Plaintiff’s claim here was, in substance, a claim for the agreed price of goods sold, delivered and accepted, together with interest and the courts below were right to treat it as such.
39. The Act’s own provisions on damages repay precise statement, for they were imperfectly understood in argument. Where the seller wrongfully fails to deliver, the buyer’s action lies under Section 53, and by Section 54 the measure is the loss reasonably foreseeable at the time of contracting as likely to result from the breach, prima facie (where there is an available market) the difference between the market price and the contract price. Where the seller is in breach of a fundamental obligation, or of a condition or warranty, the buyer’s remedy is under Section 55 whether by action for damages or by setting up the claim in diminution or extinction of the price and Section 56 fixes the same foreseeability measure.
40. The governing idea, common to the Act and to the rule in HADLEY VS. BAXENDALE (1854) 9 Exch “341”, is that the law compensates the loss that flows naturally from the breach or was within the contemplation of the parties, and no more. The principle was applied in KWETEY VS. BOTCHWAY [1980] GLR 722, which held that, a buyer deprived of a fishing boat could not recover the profits she hoped to earn from fishing, such profits being merely speculative and not a loss actually sustained nor flowing naturally from the non-delivery; her proper measure was the cost of acquiring a substitute, and as the price had been repaid her damages were nominal. To like effect is TAWIAH VS. GHANA CIVIL AVIATION AUTHORITY [1989-90] 1 GLR 542, applying Sections 54 and 56 and the available-market measure. These authorities bear directly on the counterclaim, to which we now come: a claim for speculative loss of use, unsupported by proof of actual loss, attracts no more than nominal damages.
41. As to the proof of damages, a distinction of long standing, and central to grounds (iii) and (iv) below, must be drawn between general and special damages. General damages are such as the law presumes to flow from the wrong and need not be specifically pleaded or proved in amount; they are at large and are assessed by the court. Special damages are the precise pecuniary losses the claimant has actually sustained, which are not presumed and which must therefore be both specifically pleaded and strictly proved, item by item and in amount. A claimant who pleads a special loss but fails to prove its quantum does not thereby forfeit all recovery where the fact of loss is established; the court may award nominal damages as a reasonably fair approximation.
EVALUATION
GROUND (II): THE METAL COLUMNS AND BEAMS —CONFORMITY AND ACCEPTANCE
42. This ground concerns the sum of Gh¢250,000.00 attributable to the metal columns and beams. The Appellant’s case engages the implied conditions we have restated: it contends that the goods did not correspond with the sample and description that, it was on that account entitled to reject under Section 49, and that it did reject, by Exhibit “3”, the letter of 22nd August, 2015. It says the courts below erred both in finding the goods to conform and in finding any rejection belated. The argument is, with respect, doomed for two independent reasons. The Appellant failed to prove that the goods condemned by its expert were the goods the Respondent supplied; and, in any event, the Appellant accepted the goods within Section 52 and so lost any right to reject under Section 51.
WHETHER THE CONDEMNED GOODS WERE THE CONTRACT GOODS
43. The Appellant’s case on conformity rested entirely on the report and evidence of its expert, DW2, a Structural Engineer, who concluded that all but six of 143 metal plates weighed some 56 kg each, more than twice the unit weight of concrete, and were therefore unfit to serve as formwork. The fatal weakness, identified by the Court of Appeal and amply borne out by the record is that, the expert was never shown to have examined the goods the Respondent in fact supplied. Under cross-examination he conceded that he did not know the source of the metals he assessed, that he did not see metal columns and beams at the site, and that the items he photographed were simply what the Appellant placed before him — “what Anointed Construction showed them at their site.”
44. An expert opinion is only as good as the factual foundation on which it rests; an impeccable analysis of the wrong subject matter proves nothing about the right one. The Court of Appeal was entitled to conclude, as it did that, the equipment examined was more likely than not different equipment from the contract goods.
45. That conclusion is reinforced by the Appellant’s own documents and by the shifting character of its evidence. Exhibit “6”, the Appellant’s letter to the University of Cape Coast, described the items to be examined as “metal steel plates” “supplied by our customer” yet the Respondent was the Appellant’s supplier, not its customer, so that the description fits goods from some other source. The Appellant’s representative, for his part, gave irreconcilable accounts of what he had inspected and where: at one point that he had spent a day inspecting the contents of a forty-foot container shipped by an Italian consignor; at another that he had inspected only samples in the Respondent’s shop; at another that he was shown a mere six items. Meanwhile the Respondent’s evidence not effectively challenged was that she did not deal in metal columns and beams at all and held no samples of them. A litigant whose account of the very transaction on which his case depends shifts in this way is not to be given a favourable finding upon it; such a shift is not a permissible variation but a conflict in the party’s own case that disentitles him to relief.
46. Nor can the Appellant complain that the courts below wrongly disregarded its expert. The law as to expert evidence is well settled. The opinion of an expert is admitted to furnish the court with information likely to be outside its own experience; but it is not binding. The tribunal of fact is not obliged to accept it, for expert evidence is a guide to assist the court to its own conclusion on the whole of the evidence, not a substitute for that conclusion. What the law requires is that, where such evidence is rejected, it be rejected judicially, for reasons that are given and that are grounded in the record and not capriciously. Here reasons were given, and they were sound: the expert had not been shown to have examined the contract goods, and to have acted on his opinion would have been to find a breach of the implied conditions upon evidence directed at the wrong subject matter. The rejection of DW2’s evidence was thus the very opposite of capricious. It was compelled.
ACCEPTANCE AND THE TIMELINESS OF ANY REJECTION
47. Even if the Appellant had proved non-conformity, the result would be the same, for it had long since accepted the goods. Applying Section 52 to the facts found below, each of two routes to acceptance is made out. As to acceptance by conduct (Section 52(b)), the Appellant took delivery of the goods, transported them to its site at Onwe, and raised them into use upon the University project acts in relation to the goods inconsistent with the Respondent’s continued ownership. As to acceptance by lapse of time (Section 52(c)), the Appellant retained the goods without any communicated rejection for a period that, on any view of the facts, exceeded a reasonable time; and what is a reasonable time is a question of fact (Section 77) on which the concurrent finding below is entitled to great weight.
48. This conclusion is fortified by authority of long standing in our courts. In ARMAH VS. BAFFOUR [1989-90] 1 GLR 207, the buyer of a second-hand engine, having discovered an alleged latent defect, nonetheless repaired the engine and used it commercially for upwards of five months before purporting to reject; it was held that his conduct was consistent only with acceptance, that he had waived any right of rejection by keeping the engine so long after discovering the defect, and that the sale was binding upon him. In the present appeal, the appellant used the goods on its project and raised no complaint until the dispute over payment is exact. To similar effect is FARAH VS. ROBIN HOOD FLOUR MILLS LTD [1962] GLR 377, where a buyer who, after delivery, surrendered flour to the public health authorities for destruction was held, on appeal, to have done an act exercisable only by an owner and so to have accepted the goods, losing any right of rejection he might otherwise have had.
49. The Appellant’s attempt to escape this conclusion does not withstand scrutiny. It sought to fix the date of delivery in July, 2015, so as to bring its purported rejection of 22nd August, 2015 within a short interval, by reference to the date on Exhibit G, a cheque for transport costs. But that cheque was dishonoured and never honoured, and the date upon an unpaid cheque for carriage is a frail foundation on which to date the delivery of goods, the more so against the Respondent’s evidence, accepted below, that inspection and transport took place in October, 2014, contemporaneously with the execution of Exhibit “C.” More telling still, the Appellant’s representative admitted under cross-examination that, the complaint of unsuitability and rejection was being voiced for the first time from the witness box: asked whether this was the first occasion on which he had said the goods were unsuitable, he answered, “Yes.” A rejection first ventilated at trial, unsupported by any proof that Exhibit “3” was ever served on the Respondent, is no intimation of rejection within Section 50 at all. The burden of proving a valid and timely rejection lay on the Appellant, and proof is not the repetition of an averment on oath. That burden was not discharged.
50. The concurrent finding that the metal columns and beams answered the contract, that the Appellant accepted them, and that any purported rejection was belated, is therefore supported by the evidence, consistent with the documents, and reached by a correct application of Sections 49 to 52 and 77 of Act 137. It discloses no error of the kind that would entitle this court to interfere. Ground (ii) fails.
GROUND (I): THE ALLEGED FAILURE TO DETERMINE A REASONABLE PRICE
51. By this ground the Appellant contends that, there being no agreed price for the iron rods, the courts below were bound to ascertain and award a reasonable price; that the prices in the Plaintiff’s invoices (Exhibits “A” and “A1” to “A16”) were inflated and indeed fraudulent, the invoices bearing serial numbers running consecutively over two years such that, it is said, they must all have been written at a single sitting; and that lower prices appearing in Exhibits “H” and “H1”, and in the Plaintiff’s own answers under cross-examination, prove the inflation. The argument is unsound at every stage, and we take its defects in turn.
52. First, and as we explained in restating the law on price, the obligation to pay a reasonable price arises only where the price has not been determined by the contract. The courts below found, concurrently, that the price was agreed; and that finding is amply supported. Exhibit “C,” drawn by the Appellant’s own lawyer, stipulated the cost of the metal columns and beams and a schedule of payment. Each invoice, Exhibits “A” and “A1” to “A16”, was signed by the Appellant’s representative, signifying assent to the price stated upon it. Where there is a written agreement alongside conflicting oral testimony, the court leans to the documentary evidence, the more so where its authenticity is unchallenged. The reasonable-price provision simply does not arise where the parties have themselves fixed the price.
53. Secondly, the Appellant’s own pleaded case destroys the ground. Its statement of defence did not plead that, no price had been agreed; at paragraphs 13 to 15 it pleaded only that payment was to await receipt of funds from the University of Education, Winneba. The complaint about price surfaced first in the Appellant’s witness statement, and even there the assertion was that the Respondent had charged “far above the agreed prices.” An allegation that agreed prices were exceeded presupposes that prices were agreed; it is the precise opposite of the case the appellant now advances, that no price was ever agreed. The two positions cannot stand together, and a party may not run both. This migration from “the agreed prices were inflated” to “there were no agreed prices” is exactly the kind of fundamental shift between a party’s pleaded case and its argument which should disentitles it to relief on the point.
54. Thirdly, once it is accepted that prices were agreed, the burden of establishing what the agreed prices were, and that the invoices departed from them, lay on the appellant, as the party asserting it (Sections 11, 14 and 17 of NRCD 323). The appellant produced no schedule of agreed prices, no statement of account, and no reliable evidence of the figures it says should have governed. A bare assertion of a different price, unsupported by such proof, does not discharge the burden of persuasion: MAJOLAGBE VS. LARBI & ORS [1959] GLR 190.
55. Fourthly, the Appellant did not merely say the prices were too high; it alleged that the invoices were fraudulent. An allegation of fraud in a Civil Suit must be proved beyond reasonable doubt (Section 13(1) of NRCD 323; must be distinctly pleaded, and must be established by facts and not by inference. The whole of the Appellant’s “proof” of fraud was the inference it sought to draw from the consecutive numbering of the invoices. But the Respondent explained, without contradiction, that she maintained a dedicated invoice book for her credit customers, as distinct from the cash customers to whom she issued VAT invoices and receipts; consecutive numbering within such a book, over the life of a continuing credit relationship, is entirely unremarkable. An inference of that character does not begin to approach proof beyond reasonable doubt. The charge of fraud was rightly rejected, and its rejection leaves the Appellant with nothing.
56. Fifthly, the comparison evidence proves nothing to the point. The prices in Exhibits “H” and “H1” are those of a different supplier, B5 Plus; the figures the Respondent gave under cross-examination were quoted in January, 2018. The Respondent’s evidence, again unchallenged, was that the prices of building materials fluctuate with the market and with the value of the currency over time. A price charged by another trader, or by the Respondent herself years after the contract sales, cannot establish what these parties agreed in 2013 to 2015. We add, finally, that the issue of price was never set down at the directions stage, the Appellant having filed none; and a party cannot fault the trial court for failing to resolve an issue it never placed before the court. For all these reasons, no occasion arose for the courts below to ascertain a reasonable price, and there was no error in their declining to do so. Ground “i” is therefore without merit.
GROUNDS (III) AND (IV): THE COUNTERCLAIM AND THE QUANTUM OF DAMAGES
57. It must be said at once, because the grounds are framed as though the Appellant had lost on its counterclaim, that the appellant in fact succeeded on it in part: the Court of Appeal ordered the return of the scaffold and awarded Gh¢10,000.00 as nominal damages. The live complaint is therefore one of quantum only, that the appellant should have recovered Gh¢6,750.00 per month from February, 2016 (on its own arithmetic, Gh¢357,750.00) rather than Gh¢10,000.00.
58. The claim for loss of use was a claim for special damages, and the law governing such claims is settled. Special damages must be specifically pleaded and strictly proved, both as to the subject matter of the loss and as to its value. The two requirements are distinct, and the consequences of proving the one but not the other are important. Where a claimant proves the subject matter of his loss but fails to prove its value, the court does not dismiss the claim and send him away empty-handed; it awards nominal damages, representing a reasonably fair approximation of the value of what was lost: NORGBEY VS. ASANTE [1992] 1 GLR 506.
59. The Appellant proved that it owned the scaffold and was deprived of its use hence the order for return and the nominal award but it wholly failed to prove the value of the loss. Its entire evidence on value consisted of suggestions put to the Plaintiff’s witness, PW1, under cross-examination, to the effect that the monthly hire of a 50-room scaffold was Gh¢6,750.00; and PW1 rejected those suggestions, explaining that he neither hired nor rented scaffolds and did not know the going rates. A suggestion put in cross-examination and denied by the witness is not evidence of the fact suggested; it does not acquire probative force merely because it was put with assurance. The Appellant called no customer, tendered no hire agreement or invoice, and produced no record of any sum it had ever earned, or could have earned, from the scaffold. There was, in short, no material from which a monthly value could be computed.
60. The Appellant’s reliance on BOGOSO GOLD LTD. VS. NTRAKWA [2010] 33 MLRG 357 is misplaced. That authority assists a claimant who has placed before the court the multipliers: the established figures from which a fair and reasonable award can be computed notwithstanding some imperfection in the proof. Here there were no reliable multipliers at all; the only figure advanced was the bare assertion that PW1 rejected. A court cannot construct a fair award out of a figure proved by nothing; to award the Gh¢357,750.00 the Appellant claims would be not to assess damages but to invent them. In these circumstances the award of nominal damages was not merely permissible but orthodox, and its quantification was pre-eminently a matter for the discretion of the court seised of the facts.
61. An appellate court does not interfere with such an award simply because it might itself have selected a different figure; it interferes only where the award proceeds on a wrong principle or is so high or so low as to be a wholly erroneous estimate. Neither is shown here. These grounds accordingly fail and same are dismissed.
GROUND (V): THAT THE JUDGMENT IS AGAINST THE WEIGHT OF THE EVIDENCE
62. The omnibus ground, properly understood, adds nothing to the grounds we have already considered, and the Appellant’s argument upon it amounted in substance to a re-argument of the facts. We have set out the governing principle: the Appellant must point to specific evidence wrongly applied or wrongly ignored such that, properly weighed, the result ought to have been different (TUAKWA VS. BOSOM; DJIN VS. MUSAH BAAKO; OWUSU-DOMENA VS. AMOAH). The Appellant has not done so.
CONCLUSION
63. A buyer who claims to have rejected goods for breach of an implied condition must establish, first, the breach; secondly, that the breach grounds rejection under Section 49 (being a breach of a fundamental obligation, or a non-trivial breach of a condition, or a vitiating misrepresentation); thirdly, that he intimated his rejection to the seller within Section 50; and fourthly, that he did so before he had accepted the goods within Section 52 whether by words, by dealing with the goods as his own, or by retaining them beyond a reasonable time.
64. From our evaluation of the entire record, the Appellant has failed to establish any of these. Its expert examined goods it could not show were the contract goods; it dealt with the goods as its own and used them on its project; and it voiced no rejection until the witness box. Its complaint about price contradicted its own pleadings and rested on an unproved, indeed, on the proper standard, an unprovable charge of fraud. Its counterclaim, successful in part, failed on quantum only because it led no evidence of value.
65. The whole appeal is without merit and same is accordingly dismissed.
(SGD.) I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
(SGD.) PROF. H.J.A.N. MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
(SGD.) J. BARTELS-KODWO
(JUSTICE OF THE SUPREME COURT)
CONCURRING OPINION
KULENDI JSC:
INTRODUCTION:
1. I have had the opportunity of reading, beforehand, the lead opinion of my venerable brother Tanko Amadu JSC and I concur in his analysis and conclusions on the issues joined in this appeal. However, I wish to contribute to the reasons proffered in the lead opinion, the following as the basis on which I also agree that the present appeal is frivolous and therefore ought to fail.
BACKGROUND:
2. The appeal at hand against the judgment of the Court of Appeal delivered on 16th December, 2020 which upheld, in part, the judgment of the High Court dated 29th March, 2019. The learned Justices of the Court of Appeal, in the said decision, varied the judgement of the High Court by limiting the imposition of the liability to the 1st Defendant/Appellant/Appellant (hereinafter called “1st Appellant”). The Court additionally granted a counterclaim for the return of 1st Appellant’s fifty (50) scaffolds which were in the possession of the Plaintiff/Respondent/Respondent (hereinafter called “the Respondent”).
3. The facts, issues and grounds arising in this appeal have been ably and exhaustively set out in the said lead opinion and therefore it would be superfluous and no useful purpose served by restating them in this opinion. In the premise, i will proceed to the resolution of my Appeal.
RESOLUTION
4. I notice that although it was stated in the Notice of Appeal that additional grounds would be filed, no such additional grounds of appeal was filed. From a careful reading of the grounds, it is obvious that the omnibus ground sufficiently deals with the 1st three grounds of appeal. Consequently, I shall resolve grounds 1, 2, 3 and 5 together as these will require an evaluation of the evidence on record vis-a-vis the applicable law.
5. It is to be noted that the foundation of the instant suit is one anchored on the law of contract. Where parties contract with each other, in the absence of any vitiating factor, no court is permitted to interfere with the terms of the contract and to renegotiate its terms for any aggrieved party. Pacta sunct Servanda; agreements must be honoured.
6. It would be injurious to commerce or trade for courts of law to endorse breaches of contract and to enable parties to a contract cleverly avoid performance without any lawful justification.
7. In the case of MIREKU & TETTEH (DECD), IN RE MIREKU & TETTE (DECD)[2011] I SCLR 520, this Court affirmed that it is not the duty of the Courts to make contracts for parties. Therefore, where the terms of the contract have been reduced into writing, the Court would interpret them to give effect to the intentions of the party.
8. Similarly, IN KOGLEX LTD V KATEFIELD [1998-1999| SCLR 451, This Court stated instructively as follows: “it is the duty of the Court to ensure that the doctrine of sanctity of contracts is always maintained”
9. As far as this appeal is concerned, our duty is to ascertain whether or not there was a valid and binding contract between the parties and whether or not the indebtedness of the Appellant was proven. In other words, was the Court of Appeal justified in coming into the conclusion that it did?
10. Significantly, various invoices were tendered at the trial. These invoices were the invoices issued in the name of the Appellant after the purchases. The receipts bore the prices of the goods supplied. The Appellant did not deny receiving those goods but however contended that the prices were inflated. It is to be noted that the Respondent tended in evidence Exhibit A series, the invoices of goods supplied to the Appellant. These invoices were issued from the company’s cash/invoice book of the Respondent.
11. Also, each of those invoices had been signed by the customer, in this case, the Appellant. Their admission into evidence was not contested, it was not alleged that the invoices were fake, forged or fraudulent. Having admitted those invoices therefore, it was up to the Court to evaluate the evidence and attach an appropriate weight to it.
12. It is not enough for the Appellant to demonstrate that those goods to which the receipt/invoices relates are cheaper in other companies. It is a matter of common sense that if the Appellant were a reasonably diligent buyer, as the law would expect, it would have discovered those cheaper sources for the same goods and bought from those sources. The buyer carries the legal duty to beware: caveat emptor.
13. Therefore, the appropriate question would be, why didn’t the Appellant purchase the goods from those other companies offering the same goods at cheaper prices in the first place. Otherwise, is a buyer who neglects to be diligent, reasonable, and exercise common sense entitled to fail, neglect or refuse so to do and turn to the Court to avoid the contractual obligations of its own agreement in absence of any vitiating factor, such as fraud, misrepresentation, duress, undue influence, deceit, mistake etc.
14. Indeed, the averment in the statement of defence whereby the Appellant contended that it only owed the Respondent an amount of GHS 116,330 was given a lie by Exhibit E and E1which are cheques drawn by the Appellant and payable to the Respondent with face values of GHS265,350.00 and GHS 200,000.00 respectively. These cheques were issued on 20th July, 2016. No plausible explanation was given in the Appellant’s evidence in chief and/or under cross examination to justify why cheques of GHS 265,350.00 and GHS 200,000.00 were drawn by the Appellant in favour of the Respondent to settle the far lesser indebtedness of GHS116,330.00.
15. It ought to be borne in mind that the Respondent did not have to prove its case beyond reasonable doubt. The trial Court’s duty was to ascertain whether on the preponderance of the evidence offered at the trial, the Respondent’s case was more probable than the case of the Appellant having regard to the totality of the evidence on record.
16. The Appellant’s main argument against the prices quoted in Exhibit A series which were tendered by the Respondent is expressed in the submissions filed for and on behalf of the Appellant as follows:
“the invoices (Exhibits “A”, “A1” – “A16”) are numbered serially with the first dated 13/6/2013 having serial number 0012952. The last serial number 0012967 is dated 6/5/2015. These invoices cover a period of two years. Respectfully my lords, unless no other member of the public made purchases from the plaintiff within the period of the first to the last invoice, one cannot but conclude that the invoices were written at one instance, and therefore fraudulent.”
17. In respect of the above contention however, both the trial Court and the Court of Appeal found the explanation by Respondent’s witness under cross examination plausible. During Cross examination of Respondent’s witness, questions were asked regarding Exhibit A series and the following ensued;
Q: In your normal course of business, you do issue VAT Invoices?
A: My Lord those who pay cash I do issue VAT receipts and Invoices. But in the case of the Defendants they did not pay at once so I have to issue invoices.
Q: Until you exhaust one invoice booklet you do not resort to a new one
A:I have a separate book for Creditors
Q: What kind of books are you talking about?
A: Invoice
Q: I suggest to you that you don’t keep separate invoice booklet for each of your customers
A: My Lord, the debtors have their special invoice booklet
18. The above testimony clearly explains that the fact that the invoices issued in respect of the goods supplied are serially numbered with the first one dated 13th June, 2013 with serial number 0012952 and the last one dated 6th May, 2015 with serial number 0012967 is not in itself indicative of forgery or foul play as the Respondent testified, it may be purely due to the fact that a separate book was dedicated for Creditors, including the Appellant. In any case, the doubt that Appellant attempts to raise in respect of the serial numbers of the invoices is not so high as to prove forgery or fraud beyond a reasonable doubt as is required by law.
19. Further, what weakens the belated objection to the prices quoted on Exhibit A series is the fact that those very invoices have been signed by Appellant’s DW2 (Kwadwo Gyan). This implies, at the very least an agreement between the Appellant and Respondent in respect of the prices and indebtedness quoted thereon. Consequently, once it is established that a sum had been contractually been agreed upon between parties, in the absence of any vitiating factor, it makes no difference that another company in the same industry as the Respondent allegedly sold those same items at a much cheaper price.
20. The Respondent’s case is further made unimpeachable by Exhibit C which is a credit Sale agreement prepared by Appellant’s lawyer. On the face of Exhibit C, goods supplied were to be paid within three (3) months. Nowhere was it stated that payment for the goods supplied were contingent upon receipt of payment from the University of Education.
21. The issue of the specified and agreed upon metal beams being different from that which were supplied by the Respondent was also never raised in either the pleadings or the issues for determination before the honourable court by the Appellant. It is therefore, in my view, nothing more than an afterthought designed to escape contractual liability. The parties to any dispute cannot deviate from their pleadings. No issue arises in respect of matters which have been specifically pleaded.
22. It is a cardinal principle of law that parties are bound by their prior pleadings and cannot approbate and reprobate whenever it suits their interest or is advantageous for them to do so. Pleadings constitute the foundation upon which every civil action is built. It is through the pleadings that each party discloses the material facts upon which he relies and it is those pleaded facts that determines the evidence that a party could properly lead. Consequently, a trial Court is enjoined to evaluate the evidence before it against the backdrop of the pleaded case. SEE THE CASE OF HAMMOND VRS ODOI[1982-83] GLR1215; FRABINA LTD VRS SHELL GHANA LIMITED [Civil APPEAL NO. J4/31/2009 (JUDGMENT DATED 11TH AUGUST, 2010)]
23. Apart from the fact that the Appellant did not make this an issue by way of pleadings, the evidence on record does not support or justify a favourable decision in favour of the Appellant in respect of the said ground of appeal.
24. On the contrary, the evidence on record shows that the metal columns and beams were not directly supplied by the Respondent. The Respondent’s witness explained how the metal columns and beams became a part of their transactions when she testified as follows:
Q: You don’t normally deal in metal columns and beams?
A: Yes
Q: And the metal columns and beams in issue (emphasis mine) were given to you by an expatriate. Is that not correct?
Q: And in Exhibit “C” the agreement was to supply metal columns and beams (emphasis mine) to the 1st Defendant.
A: Yes, My Lord.
Q: And you caused your driver to transport the construction metal envisaged in Exhibit “C” from Takoradi to the construction site of the 1st Defendant i.e. Ejisu, Kumasi.
A: That is not correct, there was a white man who came from Italy and brought us 40 feet container containing the metals. When he gave us the goods Solomon Kwame Gyan and Kojo Gyan together with their lawyer Abakah came to inspect them and said they were interested in purchasing them. So they off loaded the goods from the container. They said they were going to use it for construction purpose. The white man then said that he wanted his money and to go back home.
Later that evening, Kojo Gyan came to my house persisting that they wanted the goods. That white man priced the goods for GH$250,000.00. I told the white man I don’t have that money to pay him. So the next morning Kojo Gyan came to me that I should pay off the white man and add the cost to their indebtedness to stand at GH$608,500.00. The cost of the goods was GH$250,000.00. The next morning Solomon and Kojo Gyan went to my warehouse loaded all the goods and took them to Ejisu. The Driver who conveyed the goods to Ejisu was not paid in fiscal cash but was given a cheque. I later went to Ejisu to find that the 1st Defendant had raised all scaffolds and they were grateful to me for supplying them with the metals. They said if I had not supplied them with the goods they would have been unable to do the work for the school.
…
Q: You represented to the 1st defendant that the construction materials were metal column and metal beams
A: I dont sell those items. It was that white mans friend who came from Italy who bought those goods to me. The Defendants themselves came and inspected them and had them removed from the containers and put in my warehouse and said they were interested in buying them.
25. The testimony above was corroborated by the 2nd Defendant during cross-examination when he testified as follows:
Q: The metal columns and beams were in a container brought by an Italian business man called Sergio to be sold to the Plaintiff Company? (emphasis mine)
A: Yes, My Lord
Q: You heard about the said metal columns and beams?
A: Yes, My Lord
Q: And you expressed your interest and requested that the scaffolds for the metal columns and beams be brought out of the container?
A: I did not collect metal columns and beams from CA Ltd.
Q: You expressed interest and requested that the metal columns and beams were brought out of the container?
A: Yes, My Lord
Q: Infact for three (3) clear days you inspected the contents of the container
A: It is not correct
Q: For how long did you inspect?
A: One (1) day. But the Plaintiff never supplied us the same kind of goods that I inspected and became satisfied that we wanted to buy
26. The testimony above was further corroborated during cross-examination of Respondent’s representative on 11th January, 2018 when Appellant’s counsel elicited the following testimony by way of cross-examination;
Q: You don’t normally deal in metal columns and beams?
A: Yes
Q: And the metal columns and beams in issue (emphasis mine) were given to you by an expatriate. Is that not correct?
A: It is correct
27. Therefore, the evidence on record shows that the metal column and beams were supplied to the Appellant pursuant to an agreement that was prepared by the Appellant’s lawyer and executed by the parties. These were not goods ordinarily supplied by the Respondent. The Appellant had the opportunity to inspect the said goods prior to receipt of same. Both the High Court and Court of Appeal did not find favour in the explanation given by the Appellant that they merely inspected samples and that the goods they delivered was different from the samples they inspected. The two lower Courts having made a concurrent finding in respect of a factual evidential matter, we do not think that the Appellant has amply demonstrated to our satisfaction that the said finding ought to be disturbed.
28. The position of the law is clear that we can only set aside a concurrent finding if some blunder or error resulting in a miscarriage of justice was apparent in the way in which the lower courts had dealt with the matter.
SEE WOOD CJ’S DICTUM IN MOHAMMED WOLLEY V SALAMI FATAL CIVIL APPEAL NO.J4/41/2014
ALSO SEE THE ENGLISH CASE OF ALLEN QUEBEC WAREHOUSE CO (1886)12 App Cas 101.
29. In this case however, we find no proof of a blunder or error occasioned by the lower Courts evaluation, appreciation and application of the facts and law that have resulted in any miscarriage of justice to the Appellant. We shall therefore not disturb the said finding.
30. In respect of the claim that the Court of Appeal erred in concluding that the Appellant had failed to prove its counterclaim, we find no merit whatsoever in this contention. This is because, unlike general damsages, Special damages ought to be specifically pleaded and proven. There was no evidence offered in Court to demonstrate that indeed the Appellant had suffered a loss of use of the amount of GHS6750.00 per month for the Scaffold.
31. There is also no guarantee that if the scaffold had been in the possession of the Appellant, it would have generated the said amount as profit or income for the Appellant. No evidence was also offered to prove that in the absence of the scaffold, the Appellant incurred cost of GHS 6750.00 to rent scaffold for its work. Therefore, the counterclaim on special damages was speculative and one not substantiated by any shred of evidence. The Court of Appeal was therefore right in awarding nominal damages in the stead of the special damages.
31. The burden of proof rested on the Appellant to prove its counterclaim. Merely alleging that the Respondent’s seized its scaffolds without more could not amount to proof of special damages. The Appellant did not tender any documentary evidence in support of its assertion of having made a loss of GHS 6,750.00 on a monthly basis following the alleged seizure of the scaffold by the Respondent.
32. The Appellant completely failed to prove the special damages as claimed. But that failure did not disentitle it to some damages. There is no doubt that Appellant suffered some loss. As such, the counterclaim of the Appellant against the Respondent and its endorsement for special damages remained unproven. In the circumstances, the nominal damages of GH 10,000 is a reasonable award.
CONCLUSION:
33. For the reasons canvassed above, I am also of the considered view that the appeal must fail. Accordingly, I also herby affirm the judgment of the Court of Appeal dated 16th December, 2020 and dismiss the instant Appeal in its entirety as without merit.
(SGD.) E. YONNY KULENDI
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ERNEST HARDI SILAS ESQ. FOR THE 1ST DEFENDANT/APPELLANT/
APPELLANT WITH CYNTHIA ADDAE ESQ.
AUGUSTINE ARVOH MENSAH ESQ. FOR THE PLAINTIFF/RESPONDENT/
RESPONDENT.
