ANDREAS BSCHOR GMBH & CO. KG vs. BIRIM WOOD COMPLEX LTD AND BIRIM TIMBERS LTD [2016]DLSC2861

Date	2016-03-22
Suit No.	CIVIL APPEAL NO. J4/9/2015
Citation No.	[2016]DLSC2861

ATUGUBA JSC (PRESIDING)

ANSAH JSC

BAFFOE- BONNIE JSC

BENIN JSC

PWAMANG JSC.

J. K. AGYEMANG ESQ. (WITH HIM OSMAN GYAN) FOR THE DEFENDANTS /RESPONDENTS/APPELLANTS.

JUSTIN AMENUVOR ESQ. FOR THE PLAINTIFF/APPELLANT/RESPONDENT.

[2016]DLSC2861
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													<main id="main" class="content" style="min-height: 60rem" >ANDREAS BSCHOR GMBH
&amp; CO. KG<o:p></o:p>vs.<o:p></o:p>BIRIM WOOD COMPLEX LTD
AND BIRIM TIMBERS LTD<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<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">

CIVIL APPEAL NO. J4/9/2015&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;&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: 22ND
MARCH, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>J.
K. AGYEMANG ESQ.&nbsp; (WITH HIM OSMAN GYAN)
FOR THE DEFENDANTS /RESPONDENTS/APPELLANTS.<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">

JUSTIN
AMENUVOR ESQ. FOR THE PLAINTIFF/APPELLANT/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;
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ATUGUBA
(PRESIDING), ANSAH JSC, BAFFOE- BONNIE JSC, BENIN JSC, AND PWAMANG JSC.<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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JUDGEMENT<o:p></o:p>

</div>PWAMANG, JSC.<o:p></o:p>In
1988 the parties herein, who were in timber business in Ghana, entered into a
business transaction worth about DM1.2 million for the supply and installation
of a saw-mill for the defendants/respondents/appellants, hereafter referred to
as the defendants, to be paid for with the supply of timber products to the
plaintiff/appellant/respondent, hereafter referred to as the plaintiff. The
transaction was not covered by a properly drawn up and executed contract
document as the parties must have placed trust in each other. Unfortunately,
events shortly after the installation of the sawn mill proved that trust alone,
without properly executed contract, was not enough to ensure a smooth business
relationship and they ended up in litigation which has lasted for about&nbsp; twenty years. <o:p></o:p>The
litigation commenced in 1994 in the High Court at Akim Oda where defendants are
based and after judgment there was an appeal to the Court of Appeal. This is an
appeal against the decision of the Court of Appeal dated 3rd April
2008 which set aside part of the judgment of the High Court. The High Court had
in its judgment granted the counterclaim of the defendants.<o:p></o:p>After
the installation of the saw-mill plant in 1991, defendants experienced some
technical problems, some of which the plaintiff rectified and the others defendants
had to repair by themselves. Contrary to what was agreed, the defendants
initially did not supply timber products to the plaintiff in payment for the
saw-mill so plaintiff demanded payment of the amount as stated in the pro forma
invoice it had sent to defendants. Defendants then paid DM30, 000 but
afterwards they supplied plaintiff some timber products as further payment. The
timber products supplied did not fully settle the claim of plaintiff but
defendants stopped further payments so plaintiff sued for its balance. When
defendants were served they filed defence and counterclaimed for damages in
diminution. <o:p></o:p><o:p>&nbsp;</o:p>After
a full trial the High Court gave judgment on 20th December, 1999 and
held that the plaintiff did not deliver all the machinery listed in the pro
forma invoice. The court further held that plaintiff breached an implied
condition of the contract of sale by supplying a plant that was not of the
quality and fitness for a saw-mill. The court based its decision on the
provisions of the Sale of Goods Act,
1962, (Act 137). The High Court judge therefore awarded damages to the
defendants on their counterclaim to be deducted from the amount due to
plaintiff as stated in the pro forma invoice. The trial judge refused to grant
plaintiff interest on the sum allowed. The judgment failed to take &nbsp;into account the payments made by defendants
before the case was filed in court so defendants applied for a review of the
judgment for those payments to be deducted from what was due plaintiff. <o:p></o:p>When
the Arithmetic was done to set off what was awarded defendants on their
counterclaim with what was allowed for plaintiff on its claim, the plaintiff
became the judgment debtor in sum of about DM80, 074.58. Being aggrieved,
plaintiff appealed against the judgment.<o:p></o:p>The
Court of Appeal allowed the appeal and dismissed defendant’s counterclaim in
its entirety.&nbsp; The court held that, per
the pro forma invoice tendered in evidence, defendants bought reconditioned,
used and second hand machinery and having retained it for 20 months, they were
not entitled to avoid the contract and refuse to pay. The Court of Appeal also
held that plaintiffs did not sell the sawmill plant to defendants in the normal
course of its business so the provisions of the Sale of Goods Act were not applicable to the contract in this case.
The court further held that, in any case, the defendants did not strictly prove
the special damages they claimed so the High Court was wrong in awarding
special damages to defendants. <o:p></o:p>One
week after the judgment of the Court of Appeal the defendants appealed to this
court setting out 7 Grounds of Appeal as follows:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
i.