HENDRICKS VRS. ASADTEK ROOFING (C11/111/2024) [2025] GHACC 12 (30 April 2025)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON WEDNESDAY, THE 30TH DAY OF APRIL, 2025, BEFORE HER LADYSHIP JUSTICE AGNES OPOKU-BARNIEH, ADDITIONAL CIRCUIT COURT JUDGE SUIT NO. C11/111/2024 ATO HENDRICKS ---- PLAINTIFF VRS. ASADTEK ROOFING ---- DEFENDANT PLAINTIFF PRESENT DEFENDANT ABSENT EUGENIA SOMAH BRUCKU, ESQ. WITH GEORGE ARMAH TEIKO,ESQ. HOLDING THE BRIEF OF KWAME AYEH, ESQ. FOR THE PLAINTIFF PRESENT JUDGMENT FACTS: The plaintiff caused a writ of summons to be issued against the defendant on 13th September, 2024 for the following reliefs; a. An order directed at the defendant to replace the 0.40mm pre-coated aluminium used in roofing plaintiff’s two (2) buildings situate at Saki and Afienya-Mataheko respectively with the prescribed pre-coated aluminium sheets. b. Damages for breach of contract c. Costs and legal fees incurred by the plaintiff. The plaintiff’s case is that he is a businessman resident in Tema and the defendant is a limited liability company incorporated under the laws of the Republic of Ghana with the object among other things of manufacturing of roofing sheets and roofing materials. 1 The plaintiff says that he undertook the construction of two buildings for residential and commercial purposes at Saki and Afienya Mateheko respectively. The plaintiff states that for the roofing, his architects recommended 0.50 aluminium sheets. He then contracted the defendant for the procurement of 0.50mm aluminium roofing sheets and the roofing of the two buildings with the same. The plaintiff further says that the defendant raised two invoices dated 7th August 2023 and 13th December 2023 for 0.5mm pre-coated aluminium roofing sheets at GH₵45,626.80 and GH₵22, 965.56 respectively. The plaintiff further avers that upon payment of the stated amounts on the invoices, the defendant moved the materials and workmen to the two sites to roof the building. According to the plaintiff, after the completion of the roofing by the defendant, he inspected the work done and realised from the pieces of the roofing sheet used that the specification paid for and intended was not used for the roofing. The plaintiff states that he took the pieces to the defendant and when same was measured, they realised that instead of 0.50 mm pre-coated aluminium sheets, the defendant used 0.40mm aluminium sheets. The plaintiff says the architects have admonished that the use of 0.40mm aluminium sheets for the type of plaintiff's building was a risk and dangerous in case of a storm. The plaintiff says that the defendant has since remained silent and failed, refused or neglected to take any action to rectify the anomaly. The processes were served on the defendant but the defendant failed to enter an appearance. On 20th January, 2025, Learned Counsel for the plaintiff filed a Motion on Notice for interlocutory judgment in default of appearance. On 5th February, 2025, the court entered an interlocutory judgment in default of appearance for the plaintiff to lead evidence to prove his claim. 2 THE BURDEN OF PROOF The principle of law is that he who alleges must prove. In civil cases the party who bears the burden of proof is required to lead sufficient evidence so that on all the evidence, a reasonable mind will find the existence of the fact alleged to be more probable than its non-existence. This is the foundation of the burden of proof in civil cases codified in Sections 10, 11(1) and (4) and 12 of the Evidence Act 1975 (NRCD 323). In the case of Senanu v. SSNIT & Ors. [2013-2015] 1 GLR 664 @ 674, the court held that: “The law is now settled that in all civil matters, per sections 11(1) and (4) and 12 of the Evidence Act, 1975 (NRCD 323, a plaintiff to an action succeeds on the balance of probabilities or on preponderance of probabilities. And even though it is the totality of the evidence that ought to be considered in arriving at this position, it is also necessary to bear in mind that the principle that the plaintiff will succeed on the strength of his case is still good law, for what it means is that, once it is plaintiff that is asserting that he has certain rights and that the said rights were infringed upon, then he should be capable of producing enough cogent and admissible evidence to prove that….” The obligation on a plaintiff to prove his claim on a balance of probabilities remains unchanged even when the action is uncontested. Thus, the failure of a defendant to enter an appearance to defend the suit in this case will not automatically entitle the plaintiff to the reliefs sought unless the plaintiff adduces cogent and admissible evidence in proof of his case. ANALYSIS From the pleadings and the evidence led by the plaintiff, he contends that he entered into an agreement for the sale of goods, in this case, aluminium roofing sheet with the defendant company. Under Section 1 of the Sale of Goods Act, 1962(Act 137) 3 “A contract of sale of goods a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price, consisting wholly or partly of money.” Under Section 3 of Act 137, a contract of sale of goods may be in writing or by word of mouth, or partly in writing and partly by word of mouth or may be implied from the conduct of the parties. The term “goods” is defined in Section 81 as movables which include emblements, industrial groups, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. In the case of Glecore A-G v. Volta Aluminium Company Limited [J4/40/2013) [2015] GHSC 10 delivered on 28th January, 2015, the Supreme Court held that: “… the transaction in the instant case between the parties even though not specifically mentioned, is one under section 1(1) of the Sale of Goods Act, which states that “Contract for the sale of goods is a contract by which the seller agrees to transfer the property in the goods to the buyer for a consideration called the price, consisting wholly or partly of money.” Applying the above definition to the contract that was deemed to have been entered between the parties herein in or about August 2008 is one covered by the definition in section 1(1) of the Sale of Goods Act. Thus, once the facts of the case support the legal position stated in the Sale of Goods Act, it is incumbent and imperative for the courts to apply such a law. As a matter of fact, being an issue, regulated by substantive law, means that it cannot be ignored once the facts relate to the given situation.” Thus, in the present case, the transaction between the parties being in respect of goods, this court will apply the provisions in the Act 137 to evaluate the rights and obligations of the parties under the agreement. The plaintiff testified that sometime in the year 2023, he completed two commercial buildings situate at Mataheko and Saki respectively to the roofing level. He contacted the defendant a company that manufactures and installs roofing sheets. Upon 4 agreement, he requested for 0.50mm aluminium sheets and installation on two buildings. He was issued with two invoices; one for the Mataheko building dated 7th August 2023 for 271.59 (m) of 0.50mm Precoated Alum IBR at a price of Forty-Seven Thousand, Five Hundred and Sixty-two Ghana Cedis, Sixty-one Pesewas (GH₵47,562.61) and another invoice for 263.1(m) of 0.50mm Precoated Alum IBR at a price of Forty-Five Thousand, Six Hundred and Twenty-Six Ghana Cedis, Eighty Pesewas (GH₵45,626.80). In support, the plaintiff tendered in evidence Exhibits “A” and “A1”, receipts issued by Asadtek Roofing evidencing this fact. The plaintiff also tendered in evidence the two waybills, Exhibits “B” and “B1” in respect of the two consignments showing that the goods were dispatched from the company on 8th August 2023. The invoice for the house at Saki dated 20th December, 2023 was for 139.39m of 0.50mm Precoated Alum F.B.2 wine red at Twenty-Two Thousand, Nine Hundred and Sixty-five, Fifty-Six Pesewas (GH₵22,965.56). He tendered in evidence a copy of the tax invoice admitted and marked as Exhibit “C” and tendered a delivery note No. 166 admitted and marked as Exhibit “D” issued for the delivering of the goods. According to the plaintiff, a day after delivering the goods, the defendant commenced the installation of the roofing sheets on the building. After completion of the installation, he noticed that whenever there was rain and storm, the roofs leaked badly. In support, the plaintiff tendered in evidence pictures of the leakages admitted and marked as Exhibit “E” Series. The plaintiff further testified that as a result, his contractor drew his attention to the quality of the roofing sheets supplied. He took samples to the defendant and asked for similar one and when they took the measurement, it was 0.40 mm instead of the 0.50mm he initially requested. He lodged a complaint formally to the effect that the goods he requested, purchased and installed were not up to the specification requested. The defendant then sent its technical officer to the site to pick up samples and when the measurement was taken it read 0.40mm and not 0.50mm. They held a meeting 5 where the officers of the defendant company inquired from the plaintiff how to resolve the issue and he informed them to change the roofing sheets to the specification he requested. Ever since, the defendant has not taken any steps to rectify their mistake hence my claim against it. The plaintiff states that due to the extensive leakage, he has not been able to rent out that portion of the building though prospective tenants continue to bid for the place but due to the leakage, it is unfit for purpose making him lose income of approximately Eleven Thousand Ghana Cedis (GH₵11,000) a month since August 2023 when the place would have been fit for purpose. Section 8 of Act 137 provides for the fundamental obligations of a seller in a contract for the sale of goods and states that in a sale of specific goods, the fundamental obligation of the seller is to deliver those goods to the buyer and that a provision in a contract of sale which is inconsistent with or repugnant to the fundamental obligation of the seller is void to the extent of the insistency or the the repugnancy. Section 81 of Act 137 also defines specific goods as goods identified and agreed on at the time of the contract. From the testimony of the plaintiff, before the contract of sale of the aluminium sheets, the parties identified and agreed on the aluminium sheets to be sold and installed for the plaintiff. From Exhibit “A” and “A1” tendered by the plaintiff, the VAT invoice issued by Asadtek Group, the item description on both exhibits is 0.50mm Precoated Alum IBR with a list of the specific items agreed upon by the parties. Thus, this constitutes the basis of the contract of the sale of goods between the parties. The way bills issued by the defendant company and the tax invoice also bear the same description of the goods to be supplied and installed for the plaintiff. Per the delivery note tendered as Exhibit “D”, it states that they delivered the 0.50MM Precoated Alum IBR. The plaintiff contends on his testimony that the defendant did not supply and install the aluminium sheets in strict compliance of their agreement and that the roofing sheets supplied and installed by the defendant was not fit for purpose. Section 13 of Act 137 6 provides for the implied warranty or condition as to the quality and fitness of goods supplied under a contract of sale of goods. In the case of Andrea Bschor GMBH & Co. KG V. Birim Wood Complex Ltd. Birim Timbers Ltd [CIVIL APPEAL: NO.J4/9/2015] delivered on 22nd March, 2016, a case which is on all fours with the case at bar, the defendant in that case contended that the plaintiff breached the fundamental obligation of the seller and that plaintiff did not deliver in strict compliance with the list they agreed on since instead of a Brenta Band Saw 1800 that was listed in the pro forma invoice, plaintiff supplied and installed a Brenta Band Saw 1600, the plaintiff on its part stated that they supplied all the equipment on Exhibit “A”, the pro forma invoice, the Supreme Court stated as follows; “The origin of the condition of merchantability and fitness for purpose is a statement by Best CJ in the case of Jones v Bright (1829) 130 ER 1167 at 1171 where he gave the policy behind the law as follows; “It is the duty of the court in administering the law to lay down rules calculated to prevent fraud, to protect persons necessarily ignorant of the qualities of a commodity they purchase, and to make it the interest of manufacturers and those who sell, to furnish the best article that can be supplied. ... I wish to put the case on a broad principle. If a man sells an article he thereby warrants that it is merchantable — that is fit for some purpose. ... If he sells it for some particular purpose he thereby warrants it fit for that purpose.” The Supreme Court then affirmed the position in the Jones v. Bright case and held as follows; “So the purpose of the statutory condition of quality and fitness is to protect buyers when they rely on the skills and knowledge of business sellers. We will therefore broadly construe Section13 (1) (b) of Act 137 and give effect to the purpose of the provision by including any sale where there is an element of regularity showing the seller has been selling goods of that description as part of his business, whether it is his main business or not; or where the seller accepted an order from the buyer to supply 7 goods of that description. Where the goods were sold on “where is” basis or as a private sale, the provision is not applicable.” The plaintiff states that a day after the delivery of the goods, the defendant commenced the installation of the roofing sheets on the building and that after completion of the installation, he noticed that the roofing sheets were not fit for purpose. He took samples to the defendant and asked for similar one and when they took the measurement was 0.40mm instead of the 0.50mm that he initially requested. He then lodged a complaint with the defendant to the effect that the goods he had purchased and installed was not up to the specifications. This was confirmed by the technical officer the defendant sent to the site. The defendant has been duly served with the processes in the suit but has failed to appear in court to challenge the plaintiff on the testimony. The evidence before the court shows that immediately after the installation, the roofing began to leak with the rains. I therefore find that the defendant breached the fundamental obligation to supply the sceptic goods contracted for and that being in the normal course of business to supply and install roofing sheets, there is an implied warranty or condition that the goods supplied were fit for purpose which the defendant breached. The plaintiff in the circumstance, prays the court to order the defendant to replace the 0.40mm pre-coated Aluminium used in roofing plaintiffs two (2) buildings with the specified 0.50mm pre-coated aluminium sheets as prescribed. Section 58 of Act 137 provides for specific performance of contracts of sale of goods and states as follows: “Section 58. Specific Performance (1) In an action for breach of contract to deliver specific or ascertained goods, the Court may by its judgment direct that the contract should be specifically performed without giving the seller the option of retaining the goods on payment of damages. 8 (2) The judgment may be unconditional or on the terms as to damages, costs and otherwise that the Court thinks fit.” In the instants case, the plaintiff prays the court to order the defendant to replace the roofing sheets with the 0.50mm agreed upon. Thus, I hereby order the defendant to specifically perform the contract between the parties by replacing the 0.40mm pre- coated aluminium used in roofing the plaintiff's two buildings situate at Saki and Afienya-Matehoko respectively with the specified 0.50mm pre-coated aluminium sheets as prescribed. The plaintiff also prays the court for damages for breach of contract. On the issue of damages for breach of contract of sale of goods, Sections 55 and 56 of Act 137 respectively provide as follows; “55. Damages for breach of condition or warranty Where the seller is guilty of a breach of the seller’s fundamental obligation or of a condition or warranty of the contract, the buyer (a) may maintain an action against the seller for damages for the breach complained of, or (b) may set up a claim to the damages in diminution or extinction of the price. 56. Assessment of damages under section 55 The measure of damages in an action under section 55 is the loss which could reasonably have been foreseen by the seller at the time when the contract was made as likely to result from the breach of contract.” In the Andrea Bschor case, supra, the Supreme Court in pronouncing on Sections 55 and 56 stated that state: “The settled position of the law is that General Damages are at large, meaning the court will award a reasonable amount having regard of the circumstances of the 9 case. A court may award nominal damages under General Damages where no real loss has been occasioned by the infringement of a right, or award substantial damages where actual loss has been caused to the plaintiff… S. 55 of Act 137 states the common law principle of remoteness of damages that limits damages to only losses that arise naturally from the breach of the contract and losses that can be said to have reasonably been within the contemplation of the parties as likely to be suffered in the event of a breach of the contract.” See the case of Hadley v. Baxendale [1854] 9 Ex. 341, 156 ER 145 @151. Here, the plaintiff states that due to the extensive leakages, he has not been able to rent out that portion of the building though prospective tenants continue to bid for the place but due to the leak, it is unfit for purpose making him lose income of approximately Eleven Thousand Ghana Cedis (GH₵11,000) a month since August 2023 when the place would have been fit for purpose. The plaintiff has not led any evidence in proof of his assertion that he would have rented the room and earned this amount monthly. There is no doubt that the plaintiff has suffered damage for the leakage of the roof which has affected his enjoyment of the property. This loss is reasonably foreseeable as a consequence of the defendant’s breach. I will therefore award an amount of Twenty Thousand Ghana Cedis (GH₵30,000) as general damages for breach of contract of sale of the roofing aluminium sheets. On the issue of costs, the plaintiff claims costs including legal fees but there is no evidence of how much the plaintiff paid as legal fees. See the case of Owuo v. Owuo [2017-2020] 1 SCGLR page 780. The court has heard the oral submission made by Counsel for the plaintiff on costs. In accordance with Order 74 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), considering the nature of the case, the length of the trial and the fact that the action is uncontested, the reasonable expenses incurred by the plaintiff in filing processes in court and providing reasonable remuneration for Counsel for the plaintiff, I will award an amount of Fifteen Thousand Ghana Cedis (GH₵15,000) as cost in favour of the plaintiff against the defendant. 10 CONCLUSION In conclusion, I hold that the plaintiff proved his claim against the defendant on a balance of probabilities to entitle him to the reliefs sought. Accordingly, I enter final judgment in default of appearance against the defendant in favour of the plaintiff against the defendant for the following reliefs; 1. I hereby grant an order directed at the defendant to replace the 0.40mm pre-coated Aluminium used in roofing plaintiff’s two (2) buildings situate at Saki and Afienya- Mataheko respectively with the specified pre-coated aluminium sheets as prescribed (0.50mm) within one month from the date of this judgment. 2. I award an amount of Thirty Thousand Ghana Cedis (GH₵30,000) as general damages for breach of contract. 3. Costs of Fifteen Thousand Ghana Cedis (GH₵15,000) is awarded in favour of the plaintiff against the defendant. SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 11