FORM-SCAFF GHANA LTD. VRS. SWISS GROUP LTD. (CM/RPC/0329/2023) [2024] GHAHC 471 (16 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COMMERCIAL DIVISION (COURT 1) OF THE HIGH COURT OF JUSTICE ACCRA, HELD ON WEDNESDAY THE 16TH DAY OF OCTOBER, 2024 BEFORE HER LADYSHIP JUSTICE SHEILA MINTA SUIT NO. CM/RPC/0329/2023 FORM-SCAFF GHANA LTD. - PLAINTIFF VRS. SWISS GROUP LTD. - DEFENDANT --------------------------------------------------------------------------------------------------- JUDGMENT INTRODUCTION The Plaintiff is in the business of hiring equipment and the Defendant hired the equipment of the Plaintiff for its business of providing automotive products. The parties entered into a working relationship for the hiring to Defendant some scaffolding and other equipment by the Plaintiff. The Plaintiff’s case is that in pursuit of this working relationship between the parties they executed an agreement on 9th April, 2018 for which an upfront payment of GHS24,621.76 was made in accordance with the terms of the agreement. That several transactions were done by the parties between April 2018 and August 2019 for which invoices totaling some GHS454,907.07 was raised for payment. Out of this said figure the Defendant paid GHS199,112,31 P a g e 1 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. to Plaintiff leaving an outstanding balance of GHS255,594.76 due and unpaid according to the Plaintiff. The Defendant affirmed that the parties entered into an agreement for the rental of Plaintiff’s equipment to it at a total cost of some GHS141,264.00 for which some part payments were made in terms of the agreement. The Defendant however contended that the standard form contract executed by the parties as contained Exhibits “A” and “E” was an invitation to treat and not a contract and that the contract between the parties was only those contained in Defendant’s Exhibits “1” and “1A”. The Defendant’s story is that there were only two (2) contracts between the parties as contained in Exhibits “1” and “1A” and that upon receipt of the equipment it noticed that some of the equipment were badly damaged and could not be used for the purpose intended. The Defendant further posited that it notified Plaintiff’s representative about the conditions of the equipment and a promise was made by the Plaintiff’s representative that Defendant would not be billed for that damaged equipment. Such a damaged equipment were to be collected at the end of the contracting period together with the good equipment supplied. By this understanding, and according to the Defendant, having paid for the two contacts executed between the parties, it had settled all its “legitimate” outstanding bill with the Plaintiff and therefore did not owe any balance as alleged. Attempts were made by the parties to resolve this otherwise simple matter but same remained unresolved until the Plaintiff issued a Writ of Summons and Statement of Claim on 3rd March, 2023 against the Defendant, seeking the following reliefs:- P a g e 2 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. a) Recovery of the sum of GHS255,594.75 being unpaid money for hire- services provided to Defendant between 9th April, 2018 and 30th August, 2019. b) Interest on the said sum of GHS255,594.75 at the prevailing commercial bank rate from August 2019 until the date of final payment. c) Damages for breach of contract. d) Cost including legal fees. In support of the Plaintiff’s claim, it tendered the following:- Exhibit “A” – Application Form-Deposit Account. Exhibit “B Series” – Samples of Hire Delivery Notes. Exhibit “C Series” – Samples of Hire Return Notes. Exhibit “D Series” – Copies of Invoices from April 2018 to October 2018. Exhibit “E” – Application Form Deposit Account, which is the same as Exhibit “A” Exhibit “F Series” – Samples of Hire Delivery Notes. Exhibit “G Series” – Samples of Hire Return Notes. Exhibit “H Series – copies of Invoices from April 2018 to August 2019. And in support of Defendant’s case it also tendered the following: Exhibits “1” Series – agreement dated 25th June, 2018 made between the parties. Exhibit “1 A” – agreement dated 17th December, 2018 also made by the parties. P a g e 3 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. Exhibit “2 Series” – email dated 18th May, 2019 with pictures of damaged equipment. Settlement broke down at pre-trial settlement conference, so at the close of pleadings the following issues were set down for trial. ISSUES SET DOWN FOR TRIAL 1. Whether or not there was an agreement for the services of the Plaintiff to the Defendant. 2. Whether or not the Defendant breached its payment obligation under the terms of the agreement for the services of the Plaintiff. 3. Whether or not the Defendant owes the sum of GHS255,594.76 for services rendered by the Plaintiff. 4. Whether or not the parties agreed on any contract sum for the transaction executed. 5. Whether or not there is any outstanding debt owed to the Plaintiff in respect of the transactions executed by the parties. Burden and Standard of Proof Before analyzing the issues before the Court, I will state the law on the burden of proof. Proof was defined in the case of Majolagbe vrs. Larbi [1959] GLR 190 by Ollenu J (as he then was) thus:- “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence.” The general rule of evidence is that a party has the burden of persuasion as to each fact, the existence or non-existence of which is essential P a g e 4 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. to the claim or defence that the party is asserting. Section 14 of the Evidence Act, 1975 NRCD 323 therefore provides thus:- “Except as otherwise provided by law, unless it is shifted, a party has the burden of persuasion to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. The Section 10(1) of the Act also provides; “For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal”. Sophia Adinyira JSC as she then was in the case of Ackah vrs. Pergah Transport & 2 Ors. [2010] SCGLR 729 at 736 defined evidence in the following words:- “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility without which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the Court or tribunal of fact such as jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under Sections 10 and 11 of the Evidence Act”. P a g e 5 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. In Takoradi Flour Mills vrs. Samir Faris [2005-2006] SCGLR 882, Ansah, JSC also stated:- “It is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities as defined by Section 12(2) of the Evidence Decree NRCD 323. Our understanding of the rules in the Evidence Decree 1975 on the burden of proof is that in assessing the balance of probabilities all the evidence be it that of the Plaintiff or the Defendant will be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival person and is deserving of a favourable verdict.” ANALYSIS Now on the analysis of the issues as set down for trial, I am guided by the decision of Georgina Wood JSC (as she then was) in the case of Fatal vrs. Wolley [2013-14] 2 SCGLR 1070, where she stated:- “Thus, if in the course of the hearing, an agreed issue is found to be irrelevant, or moot or even not germane to the action under trial, there is not duty cast upon the Court to receive and adjudicate upon it.” Issue 1 is moot since both parties agreed that the parties entered into some working understanding of some sort with terms and consideration. This can be gleaned from the corroboration in paragraph 3 of Defendant’s Witness Statement thus; “The parties entered into a total of two contracts on this subject matter.” It is therefore not in doubt the parties agreed that Plaintiff supplied some rental equipment to Defendant at some agreed sum. The P a g e 6 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. Court on the strength of the Fatal vrs Wolley case cited supra will therefore discuss the issue 4 in a manner that would resolve the issues in controversy. ISSUE 4 Whether or not the parties agreed on any contract sum for the transaction executed. Undisputed facts As stated earlier, both parties are ad idem that there was an agreement for the provision of some services between the parties. I shall attempt to enumerate the points of agreement between the parties and briefly comment on points of departure. Firstly, both parties admitted that the Defendant engaged the services of the Plaintiff to supply scaffolds and other equipment, but their point of departure is on which of the documents before the Court constituted the terms of the said contract. Secondly, the Plaintiff tendered Exhibits “A” and “E” dated 5th April, 2018, the same document tendered by two different witnesses for which an upfront payment was made and the said payment has not been challenged by the Defendant save to say it could best be described as an invitation to treat. Thirdly, the Defendant also tendered Exhibits “1” and “1A” as the executed agreement between the parties. These documents are titled “Supply of basement to second floor Dreck soffit and support” dated 25th June, 2018, and “Supply of second to third floor Deck soffit and support” dated 17th December, 2018 respectively with the price quotes of GHS141,264.00 and GHS41,000.00 respectively stated thereon totaling GHS182,264.00 as full and final bill for the contract between the parties that P a g e 7 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. the Defendant ought to have paid to the Plaintiff. This notwithstanding, the Plaintiff stated that the Defendant had made a total payment for only GHS199,112.31 per the agreement between them and this has not been challenged by the Defendant nor explained by the Defendant how and why this higher total payment had been made by it. In the nutshell, the above analysis present a picture of two theories; that of the Plaintiff about a contract by which series of procurements had been made with an outstanding balance unpaid and the theory of the Defendant that there were only two contracts which resulted in procurements that were totally paid for without any extras due to any party. Weakness in Defendant’s case The Defendant’s case is that Exhibits “A” is a standard application form and upon the acceptance by the Plaintiff to provide the services requested by the Defendant, the agreed terms were then reduced into agreement as contained in Exhibits “1” and “1A” tendered by the Defendant. Counsel for the Defendant therefore invited the Court to treat same as an invitation to treat and not an agreement between the parties and that the only agreed terms are those tendered by the Defendant as same contained the scope of work and consideration payable. In NTHC vrs Antwi [2009] SCGLR 117 the Supreme Court set out the distinction between offers and invitation to treat and stated thus:- “… Accordingly, offer has to be definite and final and must not leave significant terms open for further negotiation. By significant, we here mean P a g e 8 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. terms that are essential to the bargain contemplated … It is this need for finality and definiteness which leads to the analytical need for the concept of invitation to treat. If a communication during negotiations is not the final expression of an alleged offeror’s willingness to be bound, it may be interpreted as an invitation to the other party to use it as a basis as an offer. Thus, the indefinite communication may be what generates an offer from the other side. An invitation to treat is thus to be distinguished from an offer on the basis of the proposal’s lack of an essential characteristic of an offer, namely, its finality which gives a capacity to the offeree to transform the offer into a contract by the mere communication of his or assent to its terms.” This distinction has therefore been said to be based on the intention of the parties, convenience and commercial usage and practice as stated in the NTHC case cited supra. The first document executed by the parties was Exhibit “A” “Application Form- Deposit Account” dated 5th April. The said document was duly executed by both parties and same had not been challenged. Payments flowed from this document and the date thereon indicating procurements and invoice raised begun well before the dates in Defendant’s theory. I am satisfied with the explanation of the Plaintiff’s witness during cross- examination on 27th May, 2024 that Exhibit “A” serves as a guide whilst the quotes determine the nature of supply when the Court recorded the following:- P a g e 9 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. Q: Exhibit “A” is not a hire agreement but a mere application form. I am putting that to you. A: As you have said, it is an application form but there are terms and conditions there that are binding. Q: I am further putting it to you that this application form has been described as an expression of a customer’s interest to conducting business with the Plaintiff. A: Yes, it is an expression of doing business with the Plaintiff, but it also serves as a guide that determines the terms and conditions of the business relationship. Q: The terms and conditions you have stated does not in any way or form make an application form into a hire agreement. I am putting it to you. A: Initially I said this document Exhibit A forms the genesis of the relationship between the customer and the Plaintiff, and it serves as a guiding principle of the business relationship between the customer of the parties. After this document has been dully signed and endorsed, a rental account is opened in the name of the client. Once this account is opened, the said customer can now make quotation requisitions from us. These quotations can be in the nature of an item per week quotation and any of these two documents are required to be signed as a form of acceptance by the client. To sum everything up, the Exhibit “A” serves as a guide whilst the quotes determines the nature of the supply. Again, the Defendant averred that it had fully settled all “legitimate invoices” issued by the Plaintiff and that there were no outstanding balances as alleged P a g e 10 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. by the Plaintiff. It did not identify any of the invoices in its name tendered by the Plaintiff as not legitimate either in cross-examination or Written Address. It is also the claim of the Defendant that some of the goods were defective at the time of delivery and the cost of the damaged goods were waived for which reason the invoices were illegitimately generated but not a single invoice from what the Plaintiff submitted was so identified as such. Why it would receive damaged and unusable goods and keep same over three (3) months also begs for “legitimate” answers. It again posited that the invoices submitted by the Plaintiff in support of its claim were never received by the Defendant. In support of this assertion what Defendant tendered was an email dated 18th May, 2019 (Exhibit “2”) and I wish to reproduce same herein:- “We write in reference to your email on 28th Feb. 2019, 3rd, 5th, 8th and 18th of March 2019 and 10th May 2019 on the subject damages and scraps. We wish to state that most of the materials supplied to us were very old which should have been discarded by the company. The Managing Director (Mr. Abdallah Farhat) mostly complain of the deteriorating nature of the materials. However, should we have received new or materials in good condition from your end, we would have return same, if the materials were to see in good condition, they will not have damage in 3 months. Therefore, alluding this materials with the caption damages and scraps to our usage is rather unfortunate and highly unacceptable. Find attached pictures of some of the materials supplied to us before usage.” P a g e 11 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. This email was written on 18th May, 2019 after the invoices dates of the Plaintiff. If indeed at the time of supply these materials were that bad, I believe same would have been rejected upon delivery and Defendant would have produced before this Court evidence of the alleged complaint, the correspondence on same at the time of delivery. Unfortunately, there is no such evidence before the Court apart from Exhibits “2” which does not help the Defendant’s case. To provide this Exhibit “2” which was written several months after the materials were delivered leaves much to be desired on the story of the Defendant. In addition, the Defendant insisted that there were only two (2) agreements, dated 23rd June, 2018 and 17th December, 2018 and yet invoices were issued it by the Plaintiff straddling from the period 10th April, 2018 all the way to August 2019. Which entity would want to issue VAT invoice and make payment on same to the State when it is not certain of the payment? There was no contest from the Defendant on these April 2018 invoices, neither in cross-examination nor Written Address. Defendant’s case is that the invoices raised are not in accordance with their terms of contract when Exhibit “A” provided for such. By the Defendant’s own reckoning there are only two (2) contracts which have been paid for and it insisted that it did not owe the Plaintiff. The Defendant however did not tell us why the invoices issued before these dates. All Defendant did was to deny receipt of the invoices of the Plaintiff in respect of its claim and stated that it paid up all “legitimate invoices” without indicating which ones were P a g e 12 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. the legitimate ones and which of those presented were illegitimate. Defendant’s witness who was engaged in 2021, way after the agreement between the parties in his cross-examination by Counsel for the Plaintiff on 3rd June 2024 had the following recorded:- Q: Are you aware that Defendant undertook to pay for all damaged lost or dirty equipment when they engaged the Plaintiff. A: It is part of the terms and conditions, but as I have stated, in business there are concessions and exemptions. Q: And you are aware that where the duration for the hiring was exceeded, the Defendant incurred extra cost for the extra days. A: There are no records in our office that supports that claim. … Q: In your Exhibit “2”, Defendant refers to a series of emails sent on 28th February, 2019, 3rd, 5, 8th and 18th March 2019 and 10th May, 2019 on the subject of these damages and scrapped equipment. Are you saying you are not aware of these emails? A: No, Exhibit “2” is captured “From Our Sent Items” and or inbox does not contain these emails above, because of Defendant’s server error we had in 2021. Q: I put it to you again that you are not being truthful to this Court. A: I disagree. Q: I further put it to you that if these emails had actually been consumed by viruses on your server, the sender could not have referenced them in your Exhibit “2”. A: These emails were captured in our sent items dated May 18, 2019. P a g e 13 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. … Q: Can you tell the Court how much had been paid to the Plaintiff at the time the relationship ended. A: I remember that there was no financial record of any debt to the Plaintiff. Q: So how much have been paid to the Plaintiff? A: I have to check the statements. Q: I am putting it to you that all invoices were duly sent to the Defendant at the end of every month. A: I disagree. Q: I am further putting it to you that in full knowledge of your indebtedness, you made a total of five payments on account which summed up to GHS199,112.31. A: I cannot confirm that at the moment. Even the Defendant’s own witness could not tell the Court how much it has paid the Plaintiff but posited that it had paid for the two contracts which totaled GHS182,264.00. Plaintiff on the other hand stated the payments in its paragraph 17 and 18 of Alex Acquaye’s witness statement as follows:- 17. At the time of my departure, Defendant had paid a total of GHS124,621.76 on account as follows: a. 9th April 2018 – GHS24,621.76 b. 25th April 2018 – GHS50,000.00 c. 7th September -GHS50,000.00. 18. Also invoices from April 2018 to October 2018 issued to Defendant totaled GHS173,700.83 leaving an outstanding balance of P a g e 14 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. GHS49,079.07. These invoices cover hire, dirty or damaged equipment and sales by loss. (Copies of invoices attached as Exhibit D Series). The Defendant did not produce evidence of payments made to the Plaintiff and its own Witness was unable to state the exact figures owed and the exact figures paid off. It appeared the Defendant’s Witness did not have personal knowledge of the matters for which he was called upon to testify before the Court. Weaknesses in Plaintiff’s case The Plaintiff’s Exhibits F1 and F2 being the “Hire Delivery Note” dated 10th April, 2018 and 27th March, 2019 have no figures on them. It shows Plaintiff had supplied products to Defendant but there is no evidence of debt owned or outstanding on those documents. Plaintiff’s Exhibit “G” Series which are “Hire Return Notes” mixed with Exhibits “H” Series which is the VAT receipts was what it submitted to the Court as proof that Defendant owed Plaintiff. Exhibit “J” Series are just invoices, not evidence that payments have been made or not on same. On 27th May, 2024 the Plaintiff’s Witness during cross- examination by Counsel for the Defendant stated:- Q: I am putting it to you again that you have not brought before this Court the documents on the quotes which determine the very nature of the demand and supply the parties agreed to. A: Yes, I don’t have the documents here, because I no longer have access to the filing system of the Plaintiff, but if I am given time I am sure I will get a copy. P a g e 15 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. The total invoices submitted by Plaintiff in its Exhibit “D” Series of the Plaintiff’s 2nd Witness, Alex Acquaye of GHS169,524.35 was the total invoice raised. Again, Exhibit “H” Series contained the total sum of GHS454,620.21 as per the evidence of Plaintiff’s witness Kwabena Kyere. According to the Plaintiff from the tabulation of the receipts against the invoices raised and tendered in Court, the Defendant owes GHS255,594.85 having paid a total of GH199,112.31 out of a total of GHS454,707.07. Preferred Story From the analysis above, I find Plaintiff’s theory more plausible than that of the Defendant. The reasons are not far-fetched. According to the Plaintiff, Exhibit “A” constituted the main agreement between the parties and not an invitation to treat, as same became binding when both parties executed same and it regulated all the subsequent hire agreements and supplies made to the Defendant by the Plaintiff. Plaintiff submitted that Exhibits “1” and “1A” which the Defendant projected as the only agreements signed by the parties, though specifically curated for specific aspects of Defendant’s project, like all other hire agreements were still subject to the terms in Exhibit “A” and invited the Court to hold that Exhibit “A” constituted a valid contract which terms are to be upheld by the Court. Learned Counsel for the Defendant for his part urged the Court not to hold that Exhibit “A” as binding on the parties and that only Exhibits “1” and “1A” are the agreement between the parties. So, what was the intention of the parties vis-à-vis Exhibit “A” and Exhibits “1” and “1A”? See Koglex Ltd. vrs. Kate Field [2000] 2 GLR 432. P a g e 16 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. Whiles Defendant tried to ran away from Exhibit “A” as the contract between the two parties choosing to rather call it an invitation to treat, it does not explain the VAT invoices before June 2018 and the deposit made pursuant to same upon execution. Every page of Exhibit “A” was also authenticated by the parties and same cannot be construed as an invitation to treat having executed same as there was evidence of a total upfront payment for the 4 weeks. After that from time to time requests were made for supplies as seen in Exhibits “1” Series. See Klimatechnick Engineering Ltd. vrs. Skanka Jensen International [23/07/2003] Civil Appeal No.9/2000. In her book “The Law of Contract in Ghana” cited by Counsel for the Plaintiff Christine Dowouna-Hammond at page 154 described a standard form contract as “a contract, the terms of which are often set out in printed form in a written document and used as a standard contractual document with little or no variation in all contracts of a particular kind”. Standard form contracts are usually pre-prepared contracts containing set clauses used within particular industries and are enforceable. In P.Y. Atta & Sons Ltd vrs. Kingsman Enterprises Ltd [2007-2008] SCGLR 946, the Supreme Court held having regard to the evidence on record, especially the conduct of the parties, that the agreement signed by the parties in that action although expressed in writing as an assignment was in fact a sublease. In effect, what the Court looks out for is the objective intention of the parties, it considers what a P a g e 17 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. reasonable man will infer from what is both written and the conduct of the parties. In the P.Y. Atta & Sons case supra the apex Court said:- “The paramount consideration was what the parties themselves intended or desired to be contained in the agreement. The intentions should prevail at all times. The general rule was that a document should be given its ordinary meaning if the terms used therein were clear and unambiguous. In conflicting situations, the process of determining the intentions of the parties should be objective. The objective approach in that context implied the meaning that words in the document would convey to a reasonable person seized with the facts of the case. In such exercise, the entire document, the effect it had on the parties, the conduct of the parties and the surrounding circumstances would have to be taken into account”. The story of both parties has weakness but the parties both accept that there was some agreement of some sort for the hiring of Plaintiff’s goods to Defendant. I am unable to hold that Exhibits “1” Series are the only agreements between the parties. On the basis of just the VAT invoice which predated June 2018, I can fairly infer that they had a contract prior to Defendant’s Exhibit “1” Series”. After December 2018 invoices still were issued by Plaintiff to Defendant even up to August 2019. Clearly by the evidence and documents presented the parties intended to be bound by Exhibits “A” and Exhibits “1” and “2” were borne out of Exhibit “A”. P a g e 18 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. Exhibit “A” entitled the Plaintiff to invoice the Defendant for “lost equipment”, “damaged equipment” and “dirty equipment” with the mode of calculation stated thereon. It is stated in Clause 3 of Section 4 of the said Exhibit that; each hire shall be a separate contract governed by the terms in Exhibit “A” and that hires are to be charged on a weekly basis with invoices issued monthly for charges within the period unless stated in writing. Again, the agreement provided that where goods are not returned on agreed dates a further hire charge would be applied after forty-eight (48) hours. The Plaintiff’s invoices were therefore based on these prior arrangements as agreement between the parties. Is the Plaintiff entitled to its claim against the Defendant? On the face of those invoices tendered by the Plaintiff in the nature of the Defendant’s payment of GH199,112.31 which as conceded by Plaintiff would leave GHS255,594.76 outstanding to be paid by the Defendant. A probe of the Defendant’s contention against the balance creates huge credibility issues for the Defendant’s story. The Defendant’s position is that only two (2) contracts being that of June 2018 and December 2018 totaling GHS182,264 was due from them and settled. And yet Defendant went further to say that they have been billed for the damages of Plaintiff’s goods, which head of liability they do not accept. But if the Defendant is rejecting a bill of damaged goods within the two (2) contracts that he had conceded then it would have paid the Plaintiff something less than the GHS182,264, that was the conceded contract value and not the full GHS182,264. The Plaintiff’s account of GHS199,112.31 payment received from the Defendant was also not denied. P a g e 19 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. From the stories and evidence of both parties, oath against oath, which is more probable? The duty of the Court when oath is against oath is guided by Section 80 of the Evidence Decree as was stated in the case of Edem Afram & Nana Obour Nimako vrs. Bernard Yaw Owusu-Twumasi & 2 Ors [2023] DLSC15005. The apex Court in this case stated thus:- “In deciding whose story is preferable in a situation of oath against oath as in this case, a Court ought to consider a number of matter from the trial including those stated under section 80 of the Evidence Act, 1975 (Act 323). It provided that; Section 80. Attacking or supporting credibility 1) Except as otherwise provided by this Act, the Court or jury may, in determining the credibility of a witness, consider a matter which is relevant to prove or disprove the truthfulness of the testimony of the witness at the trial. 2) Matters which may be relevant to the determination of the credibility of the witness include, but not limited to a) the demeanour of the witness; b) the substance of the testimony; c) the existence or non-existence of a fact testified to by the witness; d) the capacity and opportunity of the witness to perceive recollect or relate a matter about which the witness testifies; e) the existence or non-existence of bias, interest or any other motive; f) the character of the witness as to traits of honesty or truthfulness; P a g e 20 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. g) the statement or conduct which is consistent or inconsistent with the testimony of the witness at trial; h) the statement of the witness admitting untruthfulness or asserting truthfulness. See also In re Yendi Skin Affairs; Yakubu vrs. Abdulai (No.2) [1984-86] 2 GLR 239. Who would issue VAT invoice and make payment to the Ghana Revenue Authority (GRA) when they are not expecting payment from anywhere? How much has Plaintiff been able to prove for the Court to grant judgment in its favour? In the absence of an explanation as to how bills were raised on Defendant before June 2018 and after December 2018 till August 2019 how would the Court be persuaded by the Defendant’s theory of Invitation to treat and only two contracts that were executed between the Parties? In litigation a party desirous of a ruling in its favour has to lead evidence that would convince the Court that the existence of a fact is more probable than its non-existence. In other words, such a party is required to lead evidence that will convince the Court that his case has more merits than that of his opponent as stated in Section 10(1) and (2) of the Evidence Act NRCD 323. It is trite that preponderance of probabilities or balance of probabilities which terms are mostly used synonymously to mean that which of the existence of facts is likely than its non-existence is the standard of proof required in all civil trials. P a g e 21 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. The Defendant could not prove what charges were not applicable to it had been laid at its door as damages and in view of the fact that its contract being relied on has no indication of damaged goods prior to receipt or delivery of the goods and for the return of the goods. I will feel safer in relying on the GRA Vat invoices to grant the Plaintiff the outstanding balance arising out of the total amount of the values of those invoices less the sum paid by the Defendant. From these Exhibits, I can safely infer that the story of the Plaintiff is more probable than that of the Defendant. And this was the calculation put forth by the Plaintiff in its claim. How much has Plaintiff been able to prove for the Court to grant judgment in its favour? The Plaintiff from the GRA invoices in the name of the Defendant from 10th April 2018 to 2019 established GHS454,620.21 in the Exhibit “H” Series less payments Plaintiff conceded as GHS199,112.31, a figure that was not contested by the Defendant. The Plaintiff is therefore entitled to its claim against the Defendant for the sum of GHS255,594.76 and interest on the said sum from August 2019 till date of judgment. On the claim for damages for breach of contract, having awarded interest on Plaintiff’s claim, I am unable to grant that relief as the interest awarded would compensate Plaintiff. CONCLUSION As stated earlier, oath against oath on the evidence adduced before me, the Plaintiff’s story is more likely than that of the Defendant. I will therefore enter P a g e 22 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. judgment in favour of the Plaintiff against the Defendant as follows:- I. Recovery of the sum of GHS255,594.76 being unpaid money for hire services provided to Defendant. II. Interest on the said sum of GHS255,594.76 at the prevailing commercial interest rate from August 2019 till date of judgment. III. Cost of Ten Thousand Ghana Cedis (GHS10,000.00) is awarded in favour of the Plaintiff against the Defendant. (SGD.) SHEILA MINTA, J. JUSTICE OF THE HIGH COURT REPRESENTATIONS PARTIES: ABSENT COUNSEL: SUSANA DONUKI NARH, ESQ., HOLDING BRIEF FOR ANTHONY DJOKOTO, ESQ., FOR THE PLAINTIFF – PRESENT KINGSLEY ANSAH, ESQ., HOLDING BRIEF FOR K. AMOFA, ESQ., FOR THE DEFENDANT - PRESENT P a g e 23 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD. AUTHORITIES: 1. MAJOLAGBE VRS. LARBI [1959] GLR 190 2. ACKAH VRS. PERGAH TRANSPORT & 2 ORS. [2010] SCGLR 729 AT 736 3. TAKORADI FLOUR MILLS VRS. SAMIR FARIS [2005-2006] SCGLR 882 4. FATAL VRS. WOLLEY [2013-14] 2 SCGLR 1070 5. NTHC VRS ANTWI [2009] SCGLR 117 6. KOGLEX LTD. VRS. KATE FIELD [2000] 2 GLR 432 7. KLIMATECHNICK ENGINEERING LTD. VRS. SKANKA JENSEN INTERNATIONAL [23/07/2003] CIVIL APPEAL NO.9/2000 8. P.Y. ATTA & SONS LTD VRS. KINGSMAN ENTERPRISES LTD [2007-2008] SCGLR 946 9. EDEM AFRAM & NANA OBOUR NIMAKO VRS. BERNARD YAW OWUSU-TWUMASI & 2 ORS [2023] DLSC15005 10. IN RE YENDI SKIN AFFAIRS; YAKUBU VRS. ABDULAI (NO.2) [1984-86] 2 GLR 239 11. EVIDENCE ACT, 1975 NRCD 323 12. THE LAW OF CONTRACT IN GHANA P a g e 24 | 24 SUIT NO. CM/RPC/0329/2023 – FORM-SCAFF GHANA LTD. VS. SWISS GROUP LTD.