ROBERT WOOD vs. OXYAIR LIMITED KWABENA DARKO [2005]DLSC2413

Date	2005-04-27
Suit No.	CIVIL APPEAL NO. J4/35/2004
Citation No.	[2005]DLSC2413

MISS AKUFFO J.S.C. (PRESIDING

MRS. WOOD J.S.C

DR. DATE-BAH J.S.C

PROF. OCRAN J.S.C

ANINAKWA J.S.C.

MR. G. K. BARIMAH FOR APPELLANT.

DR. DANIELS FOR THE RESPONDENT

[2005]DLSC2413
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													<main id="main" class="content" style="min-height: 60rem" >ROBERT WOOD<o:p></o:p>vs.<o:p></o:p>OXYAIR LIMITED KWABENA DARKO<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/35/2004<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 27TH APRIL 2005.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>&nbsp;MR. G. K. BARIMAH FOR APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DR.
DANIELS FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

MISS
AKUFFO, J.S.C. (PRESIDING), MRS. WOOD, J.S.C., DR. DATE-BAH, J.S.C., PROF.
OCRAN, J.S.C., ANINAKWA, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>&nbsp;DR. DATE-BAH, J.S.C:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The material facts of this case, as
established by the learned trial judge, were as follows:&nbsp; the first plaintiff played a leading role in
shaping the course of a successful implementation of the second defendant’s
dream of establishing a viable and profitable oxygen-manufacturing plant in
Ghana.&nbsp; The first plaintiff and the two
other plaintiffs made contributions towards the setting up of the defendants’
oxygen production business upon an understanding, reached with the second
defendant, that forty percent of the shares in the first defendant company
would be allocated to the plaintiffs.&nbsp;
The second defendant admitted in his pleadings that he was the
Managing-Director, Governor and Financial Controller of the first
defendant.&nbsp; The defendants had, however,
failed to honour the agreement concluded with the plaintiffs.<o:p></o:p>&nbsp;The learned trial judge concluded that:<o:p></o:p>&nbsp;“It is my opinion therefore that there was a
valid agreement between the plaintiffs and the defendants whereby the
plaintiffs rendered services and provided monies towards the setting up of the
oxygen manufacturing plant in expectation of allocation to them of forty per
cent shares in the first defendant company.&nbsp;
Failure by the second defendant to allocate forty per cent shares to the
plaintiffs would therefore amount to breach of the agreement for which the
plaintiffs would be entitled to compensation in the form of damages.”<o:p></o:p>&nbsp;This conclusion of the learned trial judge,
Aryeetey JA, sitting as an additional High Court judge, was vigorously
challenged by the defendants on appeal to the Court of Appeal.&nbsp; When their appeal there was dismissed, they
brought the current appeal before this Court.<o:p></o:p>The
defendants, in response to the plaintiffs’ Writ and Statement of Claim,
counterclaimed, seeking relief in relation to the plaintiffs’ behaviour in
stopping production at the plant (by defusing it), in the course of the dispute
between the parties.&nbsp; The counterclaim
was in the following terms:<o:p></o:p>&nbsp;“Damages for loss of use of production to be
calculated from the date removing power to the date restoring power to Oxyair
factory at C1,000,000 (ONE MILLION CEDIS) per day.<o:p></o:p>&nbsp;Perpetual injunction to restrain the
Plaintiffs their servant Agents workers from visiting where the Machine is
installed.<o:p></o:p>&nbsp;An order stopping the Plaintiffs from
harassing the defendants.<o:p></o:p>&nbsp;An order asking the Plaintiffs and electricity
Corporation to restore power to the defendants Oxyair Factory immediately at
Agbogba.<o:p></o:p>&nbsp;Mesne Profit.”<o:p></o:p>&nbsp;However, when the defendants moved the plant
from Agbogba in Accra, where, according to evidence accepted by the trial
judge, the factory had been established on the plaintiffs’ land, instead of on
second defendant’s land at Awutu, as originally proposed by the second
defendant, the counterclaim lost its sting.&nbsp;
The learned trial judge dismissed the defendants’ counterclaim for damages,
because of the defendants’ failure to lead any evidence to substantiate it, and
considered that the other reliefs did not need to be addressed because of the
removal of the factory from Agbogba to a new location.<o:p></o:p>&nbsp;The grounds of appeal filed for the appeal to
this Court were as follows:<o:p></o:p>&nbsp;a)&nbsp;&nbsp; “The
judgment is against the weight of evidence.<o:p></o:p>&nbsp;(b) Their Lordships erred when they held there
was an enforceable contract to give a private limited liability company 40%
shares to the Plaintiffs.&nbsp; And that there
was a breach of that contract.<o:p></o:p>&nbsp;(c) Their Lordships erred when they held that
the rule in Royal British Bank v Turquand (1855) 5 E &amp; B 248 is applicable
in this case, having regard to evidence on records.”<o:p></o:p>&nbsp;<o:p></o:p>The
defendants, in their Statement of Case before this Court, argued that the onus
lay on the plaintiffs to prove that the parties had entered into a binding
agreement.&nbsp; That is trite law.&nbsp; They also argued that the first plaintiff,
who gave evidence on behalf of all three plaintiffs, had&nbsp; failed to discharge this burden of
proof.&nbsp; They contended that the
conflicting evidence of the first plaintiff and the second defendant was
reducible to a situation of oath against oath.&nbsp;
In such a situation, the defendants urge that the decision of the court
may safely be based on the trial court’s impression of the credibility of the
parties and their witnesses.&nbsp; In support</main>