HASNEM ENTERPRISES LTD vs. SWISS AFRICAN TRADING CO [1999]DLCA322

Date	1999-04-01
Suit No.
Citation No.	[1999]DLCA322

LAMPTEY JA

WOOD JA

BROBBEY JA

ESSIEN FOR THE APPELLANT COMPANY.

BARTON ODURO FOR THE RESPONDENT COMPANY.

[1999]DLCA322
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">HASNEM ENTERPRISES LTD<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">SWISS AFRICAN TRADING CO<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1999-2000] 1 GLR 1<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.0pt;
mso-border-bottom-alt:solid black .5pt;padding:31.0pt 31.0pt 1.0pt 31.0pt;
mso-border-shadow:yes">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid black .5pt;
padding:0in;mso-padding-alt:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">Date: 1 APRIL 1999<o:p></o:p>

</div>COUNSEL:ESSIEN FOR THE
APPELLANT COMPANY.BARTON ODURO
FOR THE RESPONDENT COMPANY.___________________________________________________________________________________________________________________________CORAM:LAMPTEY, WOOD
AND BROBBEY JJA___________________________________________________________________________________________________________________________JUDGMENT OF LAMPTEY JA.<o:p></o:p>The facts that led to the mounting of the action in the instant
appeal are fairly simple and straightforward. These are that the manager of
Hasnem Company, the plaintiff-respondent (hereinafter referred to as the
respondent) entered the premises of Swiss African Trading Co. the
defendant-appellant (hereinafter referred to as the appellant) in Sekondi,
bought and paid for six chairs on 16 August 1979. He took immediate delivery of
two chairs and was advised by the storekeeper of the appellant to send a
vehicle at his expense to collect the four remaining “executive swivel
secretarial chairs” the following day. Accordingly, a vehicle was sent to the
appellant the next day to collect and take delivery of the four special chairs.
The driver was sent back without the four chairs. After several fruitless and
disappointing journeys, needless to add time consuming and expensive journeys,
when it became obvious that the appellant was in no position to honour and
perform its obligation under the agreement, the respondent sued the appellant
on 16 June 1989, that is, after a period of ten years had elapsed. It claimed
an order of specific performance directed at the appellant as claimed and
stated in its writ of summons. The case was heard on the merits. The trial
magistrate entered judgment for the respondent. In place of an order for
specific performance, which was the relief sought by the summons, he ordered
the appellant to pay damages in the sum of ¢1.5 million to the respondent
together with costs. The appellant was dissatisfied and aggrieved by the
judgment. It appealed to the High Court, Cape Coast. The appeal was heard on
the merits. The appellate court dismissed the appeal and affirmed the judgment
of the district court. It is against the judgment of the High Court Cape Coast
that the appellant appealed further to this court on eight grounds of appeal
and one additional ground of appeal.<o:p></o:p>Before I deal with the appeal on the merits, I must consider an
issue of law raised, in limine, by counsel for the respondent. The issue was
formulated as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“ In response to paragraph (2) it is submitted that to the extent
that no leave of the court was sought and granted to argue additional grounds
of appeal filed on 30 October 1998, the court should ignore all the arguments
purported to be advanced in support of the said additional grounds of appeal.”<o:p></o:p>In reply, counsel for the appellant stated that by consent of
lawyers for the parties herein, the Court of Appeal had ruled that the
additional grounds filed without leave of the court be admitted to form part of
the record of appeal. He did not exhibit a certified true copy of the said
ruling of this court in support of his submission. Be that as it may, since
counsel for the appellant is an officer of the court, I have no doubt that he
stated the true position as he was in duty bound to do and act. In any case,
the objection was raised in open court when the appeal was called for hearing.
I take the view that the objection was abandoned by counsel for the respondent.
I therefore overrule the objection and hold that the additional grounds filed
without leave of the Court of Appeal are properly before this court. I admit
the additional grounds of appeal as part of the record of appeal.<o:p></o:p>In his statement of case on behalf of the appellant counsel
submitted that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(6) The district magistrate awarded damages to the plaintiff. The
authority for the exercise of this power was founded on the case of Lartey v
Bannerman [1976] 2 GLR 461, CA even though there was no alternative relief for
damages as was the case in the circumstances of the case of Lartey v
Bannerman.”<o:p></o:p>He next argued in paragraph (7) that the trial court wrongly
applied the law as stated in Dam v Addo [1962] 2 GLR 200 at 203-206, SC. He
concluded that the trial magistrate erred in law when he failed to dismiss the
claim of the respondent. Based on the above, he submitted that the appellate
court fell into error when it affirmed the judgment of the trial court. He
argued that the appellate court erred in law when it affirmed the award of
damages to the respondent since it did not seek that relief by its writ of
summons. In reply, counsel for the respondent submitted that the appellate High
Court did not err in law when it affirmed the award of damages. He based himself
on the principle of restitutio in integrum. He stated that the case of Dam v
Add</main>