MCS ENTERNATIONAL LIMITED vs. GLOBALPAK LIMITED [2015]DLHC3552

Date	2015-12-03
Suit No.	SUIT NO.RPC/132/15
Citation No.	[2015]DLHC3552

HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

DR. OWUSU DAPAAH FOR PLAINTIFF.

KWADWO OWUSU ANSAH FOR ADU GYAMFI FOR DEFENDANT.

[2015]DLHC3552
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													<main id="main" class="content" style="min-height: 60rem" >MCS ENTERNATIONAL
LIMITED<o:p></o:p>vs.<o:p></o:p>GLOBALPAK LIMITED<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<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">

SUIT NO.RPC/132/15&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: 3RD DECEMBER, 2015<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>DR. OWUSU DAPAAH FOR
PLAINTIFF.<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">

HER
LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<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;
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</div>In
this suit commenced at the Commercial Division of the High Court, Kumasi, the
Plaintiff herein claimed an amount of US$ 18, 686.24 being the outstanding
balance of goods supplied to the Defendant which the defendant has defaulted in
paying since 24/09/2012. The Plaintiff further sought damages for breach of
contract,recovery of expenses incurred as telephone charges , and debt recovery
fees in pursuing the Defendant for over two and a half years. <o:p></o:p>Upon
service of the writ of Summons and Statement of Claim on the Defendant Company,
Adu Gyamfi &amp; Associates entered appearance on its behalf, but failed to
file a defence within the limited period of 14 days.<o:p></o:p>Consequently,
the Plaintiff filed a motion on notice for judgment in default of defence on
25/09/2015, with a return date of 05/10/2015.&nbsp;
The said motion was served on Counsel for the Defendant, Mr. Paul Adu
Gyamfi, through his clerk by name Beatrice on 28/09/2015. <o:p></o:p>On
05/10/2015, both parties were absent. Counsel for the Plaintiff was present,
but Kwadwo Owusu Ansah Esq. held brief for Counsel for the Defendant.&nbsp; The motion was duly moved and final judgment was
entered against the Defendant for the liquidated sum endorsed on the writ of
summons . <o:p></o:p>Pursuant
to Order 13 r 5 of C.I. 47, the Plaintiff obtained an interlocutory judgment in
respect of the claim for damages, recovery of telephone expenses and monies
spent in trying to recover the monies owed by the Defendant.&nbsp; When the case came up for assessment of
damages on 21/10/2015, the Defendant and its Counsel did not show up. The case
was further adjourned to 11/11/2015. This time round, the Defendant Company was
duly represented by its Director of Operations, Louis Adugu and their lawyer,
Kwadwo Owusu Ansah.<o:p></o:p>Venkat
Raman, a representative of the Plaintiff Company, gave evidence on its behalf.
He told the court that upon the default of the Defendant in paying for goods
supplied to him by the Plaintiff, a series of telephone calls were made to the
company to demand payment. According to him, these telephone calls originated
from the Plaintiff's Headquarters in London. On the average, the witness said
three calls were made per day, but because the UK is a paperless country, he
was unable to get an itemized bill. He also indicated that each call lasted for
ten (10) minutes. He tendered in evidence a document detailing the estimated
cost of telephone calls as exhibit 'A' , and urged the court to grant the
Plaintiff&nbsp; the estimated phones calls as
per that document. <o:p></o:p>In
cross-examination, counsel for the Defendant sought to discredit the figures in
exhibit&nbsp; 'A'&nbsp; as it was impossible for each call to last
for the same period. To these line of questioning, the Plaintiff's
representative answered that the figures in exhibit 'A' are estimates.<o:p></o:p>Is
the Plaintiff entitled to general damages for breach of contract? Obviously, it
is not in doubt that there was a contract for sale/supply of goods between the
parties to this suit. By supplying the goods to the Defendant, the Plaintiff
had fulfilled its obligations under the&nbsp;
said contract. It was the duty of the Defendant to make full payment for
the goods in the manner agreed upon by the parties.&nbsp; As the evidence shows, the Defendant failed
to fulfill his duty to make full payment as agreed by the parties and that has
landed the Company in this court. Clearly, there has been a breach of the
agreement between the parties herein by the Defendant. How then, can the
Plaintiff be compensated?<o:p></o:p>The
law is that general damages lie&nbsp; for
every infringement of an absolute right. The Supreme Court so held in the case
of Delmas Agency Ghana Ltd v Food Distributors International Ltd. (2007/2008)
SCGLR 748 at 760&nbsp; per Dr. Seth Twum JSC
thus:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 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 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. ..<o:p></o:p>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 enti</main>