SEGA EXPORTS LTD. vs. DART HILLS LTD. [2013]DLCA8136

Date	2013-05-02
Suit No.	SUIT NO. H1/197/2012
Citation No.	[2013]DLCA8136

ASARE KORANG J.A

DUOSE J.A.

ADJEI J.A

MS. RENNE KUSAH FOR THE DEFENDANT/APPELLANT

MR. ROBERT YARTEY FOR PLAINTIFF/RESPONDENT

[2013]DLCA8136
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >SEGA EXPORTS LTD.<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>DART HILLS LTD.<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL,
ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. H1/197/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 2ND MAY, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MS.
RENNE KUSAH FOR THE DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

MR.
ROBERT YARTEY FOR PLAINTIFF/RESPONDENT <o:p></o:p>

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

ASARE
KORANG J.A, DUOSE J.A., ADJEI J.A<o:p></o:p>

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

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>ADJEI,J.A.:<o:p></o:p>This
appeal is against the judgment of the High Court (Commercial Division)
delivered on 29th November, 2010.&nbsp;
Both parties are dissatisfied with the said judgment and each of them is
praying for the judgment to be set aside but on different grounds. However, the
plaintiff failed to file its Notice of Variation of judgment within&nbsp; time and&nbsp;
same was struck out. The brief facts of the case were that the parties
herein were trading partners.&nbsp; The
plaintiff is a registered external company engaged in the export of goods into
Ghana for sale to its customers. The defendant was one of the plaintiff’s
customers.&nbsp; As per their terms of trade,
the plaintiff sent the defendant inspection pictures of the goods to be shipped
to it and upon confirmation by the defendant, the goods were shipped.&nbsp; As per the terms of the trade, the defendant
was required to pay for the goods of its orders when the goods arrived at the
Tema Port.&nbsp; The defendant would then go
to its bankers; Merchant Bank and pay for the cost of the goods and take
delivery of the clearing documents from its said bank.&nbsp; In the months of April and May, the defendant
ordered for goods made up of roofing nails, louvre glass, mosquito netting and
pickaxe worth USD162, 108.75.<o:p></o:p>On
arrival of the goods, the defendant did not pay for it and did not also go for
the clearing documents from its bankers.&nbsp;
The defendant assigned several reasons why it did not pay for the
goods.&nbsp; When the matter was in court,
another company expressed the desire to buy the goods and same were sold to them.&nbsp; The trial High Court Judge in her judgment
awarded nominal damages of GH¢5,000.00 to the plaintiff for breach of contract,
interest charges of $14,363.43 and lawyers fees of USD7,000.00.&nbsp; The court further dismissed the defendant’s
counterclaim as an afterthought and devoid of merits.&nbsp; The defendant/appellant who would be referred
to in this appeal as the defendant filed four grounds of appeal against the
judgment.&nbsp; The grounds of appeal are as
follows:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “i. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
judgment is against the weight of evidence.<o:p></o:p>ii. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Judge erred in her award of
$14,363.43 as interest charge as same was not based on any specific proven
principal nor founded on the appropriate application of the principles relating
to the award of interest. <o:p></o:p>iii.
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Judge erred by granting the claim
of $7,000.00 for lawyer’s fees when same had not been proven by the Plaintiff/Respondent.<o:p></o:p>iv.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Judge erred when after finding that
the Defendant/Appellant had a right to reject the goods based on a shortage in
quantity supplied, rather held that there had been a breach of contract by the Defendant
resulting in the award of damages of GH¢5, 000.00 against it”.<o:p></o:p>The
parties per Exhibit A series entered into a contract as to the goods the plaintiff
was to supply to the defendant. In Exhibit A1 the parties agreed inter alia,
that the plaintiff must send inspection pictures of the roofing nails&nbsp; to be shipped to the&nbsp; defendant before shipment. The parties
further agreed that the quality, packing, size and everything should be same as
plaintiff regularly shipped to the defendant. In exhibit “A3” the parties
agreed that the plaintiff was to ship mosquito netting and inspection pictures
must be sent before shipment. It&nbsp; was
further agreed that the mosquito netting must be the same as the latest one the
plaintiff shipped to the defendant and the only difference was that the new mosquito
netting should be welded edge. Exhibit “A” was in respect of pick axe in
champion brand. In all the &nbsp;three goods
to be supplied the parties agreed that the&nbsp;
plaintiff must send&nbsp; the pictures
of the goods to the defendant for inspection before shipment. Both parties duly
executed all the contract documents. The plaintiff complied with Exhibits “A”,
“A1” and “A 2” and sent the photographs o</main>