KIJANI RESOURCES GHANA LTD. vs. GHANA CHEMICALS LTD. AND JACOB MAWULI SETSOAFIA [2016]DLHC11580

Date	2016-03-15
Suit No.	BDC/07/2015
Citation No.	[2016]DLHC11580

HER LADYSHIP JUSTICE AKUA SARPOMAA AMOAH (MRS.)

MICHELLE ADWOA AKUFFU HOLDING BRIEF FOR GODFRED YEBOAH DAME FOR PLAINTIFF PRESENT

NO LEGAL REPRESENTATION FOR DEFENDANTS

[2016]DLHC11580
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													<main id="main" class="content" style="min-height: 60rem" >KIJANI RESOURCES GHANA LTD.<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>GHANA CHEMICALS LTD. AND JACOB MAWULI SETSOAFIA<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<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">BDC/07/2015&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; DATA: 15TH MARCH
2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;<o:p></o:p>MICHELLE
ADWOA AKUFFU HOLDING BRIEF FOR GODFRED&nbsp;&nbsp;
YEBOAH DAME FOR PLAINTIFF PRESENT&nbsp;&nbsp;
<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

NO LEGAL REPRESENTATION FOR
DEFENDANTS&nbsp;&nbsp; <o:p></o:p>

</div>CORAM:<o:p></o:p>HER
LADYSHIP JUSTICE AKUA SARPOMAA AMOAH (MRS.)<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;tab-stops:160.2pt;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;The
Plaintiff, a Limited Liability Company incorporated under the laws of Ghana by
the endorsement on her Writ of Summons is claiming the following against the
Defendants jointly and severally:<o:p></o:p>i.
An order for the payment of the sum of Two Million, Seven Hundred and
TwentyThousand Ghana Cedis (GH¢2,720,000.00) being the cost of Extra Neutral
Alcohol (ENA) supplied to the 1st Defendant by the Plaintiff<o:p></o:p>ii.&nbsp; Interest on (i) at the prevailing bank rate
from 8th January 2016 till date of final payment<o:p></o:p>iii.
General damages for breach of contract evidenced by 1st Defendant’s conduct in
terms of the sale and purchase agreement between the parties hereto dated the
8th of January, 2014<o:p></o:p>iv.
General damages for fraud evidenced by the 2nd Defendant’s conduct
particularized in&nbsp;&nbsp;&nbsp; paragraph 16.<o:p></o:p>iv.
Punitive costs. <o:p></o:p>The
Defendants entered appearance to Plaintiff’s writ but failed to file a defence.
Default Judgment was therefore entered against them on the 22nd day of December
2015 in respect of Plaintiffs reliefs (i.) and (ii.) and the matter adjourned for
the assessment of damages. Again, on the 24th of February 2016, the Defendants
even though having been served duly served with hearing notices for the
assessment of damages failed to appear by themselves or by their counsel. This
Court therefore proceeded to hear Plaintiffs evidence in proof of its claim for
damages.<o:p></o:p>&nbsp;Godwin
Frazer, Plaintiff’s representative testified on behalf of Plaintiff, he stated
that he, as the Commodity Manager of the Plaintiff Company, entered into a sale
and purchase contract with the Defendants on the 8th day of January 2016 for
the sale of&nbsp; One Million (1,000,000)
litres of Extra Neutral Alcohol (hereafter referred to as ENA) to the
Defendants.&nbsp; The evidence of Plaintiff’s
representative was essentially in line with Plaintiff’s pleadings. In proof of
Plaintiff’s claim for damages for breach of contract, the witness tendered in
evidence as EXHIBIT A the sale and purchase agreement entered into between the
Parties to the suit.&nbsp; Clauses C and D OF
EXHIBIT A stipulate that the 1st Defendant, represented by the 2nd Defendant,
at the time of execution of the contract had satisfied the condition precedent
for obtaining the Plaintiff’s consent to enter into the said contract by
securing a guarantee bond for the sum of Two Million, Seven Hundred and Twenty
Thousand Ghana Cedis (GH¢2,720,000.00) issued in favour of Plaintiff.&nbsp; According to Plaintiff’s representative, the
guarantee bond was to subsist for a period of 90 days as defined in clause 1
sub clause 1.1 of EXHIBIT A.&nbsp; However,
soon after the Parties executed the contract, the said guarantee bond was
withdrawn. Plaintiff avers in paragraph 6 of its Statement of Claim that the
Unique Insurance Company by a letter, dated the 17th of January, 2014 cancelled
the guarantee bond&nbsp; but&nbsp; it is not clear to this court what gave rise
to the&nbsp; cancellation of the said
guarantee bond. It is however not in dispute that the Defendants refused to
replace the said guarantee bond in flagrant breach of the terms of the
agreement.&nbsp; According to the witness, in
view of the Defendants refusal to replace the guarantee bond, Plaintiff
cancelled the entire contract but was soon to discover that the 1st Defendant
had through its Managing Director forged the signature of the witness and
managed to evacuate over time , the entire consignment of ENA worth Two Million
Seven Hundred and Twenty Thousand Ghana Cedis (GH¢2,720,000.00), from a customs
bonded&nbsp; warehouse without the knowledge
or consent&nbsp; of Plaintiff and without
having made any payments&nbsp; for same.&nbsp; Plaintiff’s representative enumerated the
losses suffered by plaintiff as a result of the said breach by the defendants
to include, “currency loss” of Five Hundred and Twenty Five US Dollars
(US$525.00), an amount of One Hundred and Twenty Eight Thousand US Dollars
(US$128,000.00) spent on two independent security personnel and Two Hundred and
Forty Thousand US Dollars (US$240,000.00) to “follow the transaction and to
maintain a presence”.&nbsp; He also gave the
figure of Nine Hundred and Sixty Thousand US Dollars (US$960,000.00) as
representing loss of profits by the Plaintiff Company for the period material
to the instant suit i.e. the period beginning January 2014 till January 2016. <o:p></o:p>It
would appear from the evidence of Plaintiff’s representative that the losses
allegedly suffered by Plaintiff as a result of the Defendants breach were
clearly calculable and quantifiable losses. In my opinion, these ought to have
been specifically pleaded, particularized and proved in support of a claim for
special damages if the Plaintiff expected this court to take into account all
the specific amounts Plaintiff claims to have lost as a result of the
Defendants breach. Be that as it may, the Plaintiffs’ claims before this Court,
are for general damages for breach of contract and for general damages for
fraud perpetrated on it by the Defendants. I must say, that I do not disregard
the</main>