Brasille Engineering & Technology v Tako Construction (A2/08/24) [2025] GHACC 55 (28 April 2025)

IN THE KOTOBABI DISTRICT COURT “1”, BEHIND THE KOTOBABI CLUSTER OF SCHOOLS, KOTOBABI, ACCRA, HELD ON MONDAY 28TH APRIL, 2025 BEFORE HER WORSHIP MAAME YAA A. KUSI-MENSAH (MS). SUIT NO. A2/08/24 BRASILLE ENGINEERING & TECHNOLOGY - PLAINTIFF LEGON ACCRA VRS. TAKO CONSTRUCTION - DEFENDANT ACCRA JUDGMENT PARTIES: Plaintiff Company represented by Mr. Yaw Kemeh (CEO) present Defendant Company absent COUNSEL: David Koko Esq. for Plaintiff Company present Randy Brafo for Defendant Company present PROCEDURAL BACKGROUND On 7th May, 2024 Plaintiff Company (also referred to simply as ‘Plaintiff’ in this judgment) commenced this action with a writ and summary of claims endorsed with the following reliefs: a) Recovery of cash the sum of Fifty-Six Thousand Three Hundred Ghana Cedis (GHC 56,300) being money Defendant owes Plaintiff since 16th August 2023. b) Interest on the said amount of Fifty-Six Thousand Three Hundred Ghana Cedis (GHC 56,300) from 16th August, 2023 till date of final payment. Brasille Engineering Technology vs. Tako Construction 1 c) An order directed at Defendant to return the machine at its own expense. d) Damages for breach of contract. e) Solicitor’s fees of 10% of the total amount involved f) Defendant mulcted with cost of this suit In addition to this writ, the Plaintiff Company also filed an application for the suit to be placed on the undefended cause list as permitted under Order 8 of the District Court Procedure Rules, 2009 (C.I 59). Had this been successfully done, this would’ve allowed Plaintiff to obtain final judgment on the basis that Defendant has no valid defence to the action. However, Defendant Company (also referred to simply as ‘Defendant’ in this judgment) filed a notice of intention to defend on 5th July, 2024 and an affidavit in opposition on 8th July, 2024 and successfully opposed this attempt to place the matter on the undefended cause list. The suit was thus placed on the general list for same to take its normal course. Thereafter, Defendant Company filed their response to the summary of claim of Plaintiff on 31st July, 2024. Plaintiff Company’s witness statement was filed on 18th July, 2024 while that of Defendant Company’s was filed on 31st July, 2024. Following the conduct of case management, trial in this matter took place and was finally concluded on 10th December, 2024. Parties were given leave to file their respective addresses and Plaintiff Company filed its address through its counsel on 19th March, 2025. Defendant Company chose not to file any address. Plaintiff’s Case Brasille Engineering Technology vs. Tako Construction 2 It is the case of Plaintiff from its pleadings and witness statement that, it entered into an oral contract with the Defendant sometime on or about 22nd July, 2023 for the renting of Plaintiff’s scaffolding machine for a sixth-floor project at Cocoa Clinic for a duration of fourteen (14) days from 22nd July 2023 to 16th August, 2023. Plaintiff further indicates that the entire cost for renting the scaffolding equipment was Three Thousand Six Hundred Ghana Cedis (GHC 3,600) and Defendant Company paid the deposit of One Thousand Five Hundred Ghana Cedis (GHC 1,500) and took the machine away leaving the amount of Two Thousand One Hundred Ghana Cedis (GHC 2,100) unpaid. Plaintiff laments that thereafter Defendant initially failed and/or refused to pay the balance remaining but after persistent demands, Defendant Company eventually paid the amount of Two Thousand Ghana Cedis, leaving One Hundred Ghana Cedis (GHC 100) still unpaid. Plaintiff’s main bone of contention however is not the Hundred Ghana cedis that has not been paid but that upon the expiration of the agreement, Defendant Company has till date failed to return the scaffolding machine and has moved the machine to an unknown location preventing Plaintiff from access to its scaffolding equipment. To make matters worse, according to Plaintiff, not only has Defendant Company refused to return the equipment and prevented Plaintiff Company’s access to same, it has also continued to use Plaintiff’s scaffolding equipment for its own benefit without paying for same. Plaintiff indicates that it has made several attempts to reach out to Defendant Company through its Chief Executive Officer (C.E.O) and any of its staff including through call and visits to the Defendant office to get its scaffolding equipment back but these attempts have proven unsuccessful. Plaintiff Company further indicates that its further attempts to physically locate their scaffolding machinery by going round various construction sites has also proven futile as it has been unable to locate same. Consequently, Plaintiff Company issued a demand notice to Defendant Company for the return of the scaffolding equipment as well as recovery of payment for the use of the machinery while in the Brasille Engineering Technology vs. Tako Construction 3 possession of Defendant. However, upon the recipt of the said demand letter and despite verbal promises from Defendant Company’s project manager to pay for the use and return the machine, Defendant has still failed to do so and continues to use the machine without paying for its use or returning the equipment to Plaintiff as the lawful owners. Plaintiff therefore finally instituted this action on the basis that Defendant will continue to be in breach of the oral agreement for use of their machinery for only two weeks without paying for same or returning same to Plaintiff Company unless compelled by this Court to do so. Plaintiff thus endorsed this action with the above stated reliefs. Defendant’s Case On its part, while Defendant Company admits that there was an oral agreement regarding the scaffolding of Plaintiff Company, it denies any misrepresentation or concealment of any material facts as alleged by Plaintiff. Defendant further denies that Plaintiff has at any material time called or visited its offices or construction site to retrieve or demand for its scaffolding machine. Defendant Company rather indicates that Plaintiff has at all times known the whereabouts of the scaffolding machinery. In fact, Defendant states categorically that it was rather Defendant Company that contacted Plaintiff Company on several occasions to retrieve its machinery from the construction site as Defendant had no further use for them after the completion of the column moulds per their oral agreement. Defendant states that Plaintiff however for reasons best known to it, refused to retrieve its scaffolding equipment and two months after the expiration of the rental agreement visited Defendant’s office and with impunity demanded payment for the months during which the scaffolding machine had remained in Defendant’s possession. Defendant indicates that it reminded Plaintiff of its responsibility to collect the scaffolding machinery and informed Plaintiff through Plaintiff’s CEO that the machinery was at the same location it had originally been delivered to and asserted that it was not responsible for the delay caused by Plaintiff. Defendant further asserts that neither the CEO nor its staff have any reason to evade Plaintiff over such a trivial matter and Plaintiff has maliciously chosen not to collect its machinery in order to extort Brasille Engineering Technology vs. Tako Construction 4 Defendant Company due to the fact that Plaintiff C.E.O is a former employee of Defendant Company. Defendant adds that the alleged search of the scaffold equipment by Plaintiff is a figment of the Plaintiff C.E.O’s imagination since Defendant has on several occasions called and informed Plaintiff of the location of the machinery to aid in its retrieval by Plaintiff. Defendant also states that since the expiration of the work, it did not use the scaffolding machines of Plaintiff Company for any other work, rather Defendant states it has had to rent a different type of scaffold necessary for the project’s completion. Defendant goes on to categorically deny receipt of any demand notice from Plaintiff and insists that the scaffolding equipment has remained at the same location where Plaintiff initially delivered it for which reason Defendant insists that Plaintiff is not entitled to any of its reliefs. ISSUES There were no issues expressly agreed to by the parties and set down for trial. Plaintiff however outlines the following issues in his address: i. Whether or not it was the duty of Plaintiff to retrieve its scaffolding machine after the contractual period. ii. Whether or not Defendant used the scaffolding machine on another project after the contractual period. I agree with Counsel for the Plaintiff Company that the above are the two substantial issues raised from the facts which this Court must resolve. A third resultant issue that will need to be addressed is iii) Whether Plaintiff ought to be awarded damages and compensation for the breach of contract by the Defendant. However the resolution of the first two issues will inevitably affect whether there will be a need for the resolution of the third. Brasille Engineering Technology vs. Tako Construction 5 I will now proceed to determine the said issues based on the facts and evidence established before me. Prior to that however, it is necessary to lay down the evidential law on the burden and standard of proof required in civil matters such as this. The Evidential Burden and Standard of Proof It is an unquestionably well-established principle of evidential law that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion lies on both a plaintiff and defendant, and the standard of proof required of both parties in civil cases is on the “preponderance of the probabilities”. These evidential rules have been provided for by the virtue of sections 10, 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323). In Ababio vs. Akwasi IV [1994-1995] GBR 774 Aikins JSC expounded on this position of the law as follows: “The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead evidence to tip the scale in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this she wins, if not, she loses on that particular issue.” Similarly, in Ackah vs. Pergah Transport Ltd [2010] SCGLR 728 these evidential rules were summed up eloquently by her Ladyship Adinyira JSC where it was held that: “It is a basic principle of the law of 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, short of 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…. 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 Decree.” Brasille Engineering Technology vs. Tako Construction 6 This means that ideally, whoever makes an assertion of a fact bears the burden of proving that fact by providing cogent evidence of same. The above notwithstanding, it is also the law that where a party makes an averment and that averment is not denied, then no issue is joined and there is no need for the party making the averment to lead evidence on that averment to establish same. (See the cases of Tutu vs. Gogo (Civil Appeal No 25/67, dated 28th April 1969, Court of Appeal, unreported, digested in [1969] CC 76); Fori vs. Ayerebi [1996] GLR 627 SC; Hammond vs. Amuah [1991] 1 GLR 89 at 91; and Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 890). Furthermore, where an opponent admits to a fact in issue, it is deemed that that fact or issue has been conceded and is no longer in contention. In such circumstances, the court can act on the admitted facts without further proof by the other party of the facts constituting the admissions. This is gleaned from section 7(3) of NRCD 323. In Fynn vs. Fynn [2013-2014] SCGLR 727 at 738 the Supreme Court emphasised: “….in the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by) Laryea Ayiku III [2005-2006] SCGLR, this court laid down the following salutary rule of law, namely that: ‘Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such an admission, which is an example of estoppel by conduct.’” (See also the learned jurist S.A. Brobbey (JSC retired) in his book, ‘Essentials of the Ghana Law of Evidence’ at pages 112-113 where he opined that the rationale for the rule on admissions is obvious because if a person admits or concedes to facts which are against his interests, there is no need to proceed further to prove those facts before such a person would be bound by the terms of those facts). Having discussed the above legal requirements on evidential burdens and the standard of proof to be met by either party, I will now go on to analyse the issues at hand within the context of the evidence established by parties herein. 1) Whether or not it was the duty of Plaintiff to retrieve its scaffolding machine after the contractual period? Brasille Engineering Technology vs. Tako Construction 7 The instant case borders on a contractual agreement between the parties herein and if at all there was a subsequent breach of this agreement by the Defendant. Being an oral agreement however, the specific terms agreed to by the parties were not written down and it is the absence of such expressly written down terms that has led to this “he said/ she said” conflict on the exact obligations of the parties. Nonetheless, what both parties do agree to is this: Firstly, that there was a contractual agreement between them which was entered into orally for the provision of scaffolding equipment by Plaintiff Company to Defendant. It is also agreed that the duration of this rental of the equipment was for two weeks. Another thing the parties agree on is that the contract sum for the renting of the machinery for the contracted two-week period was Three Thousand Six Hundred Ghana Cedis (GH¢3,600). This is the position of Plaintiff, and this was also admitted to during trial by Defendant’s witness (DW1), Mr. Frank Boamah (i.e. the Project Manager), where he stated: “Q: So you can confirm that you were physically present when the terms of the agreement were reached? A: Yes Q: Can you tell the Court, the terms of the agreement? A: Mr.Kemeh was to provide us with scaffolding and we needed it for two weeks for a specific job. Q: So is that all the terms? A: And we were to pay him GH¢3,600 (Three Thousand Six Hundred Ghana Cedis) for the period and he was to deliver and collect it after use.” It was further stated during trial that the total sum of Three Thousand Five Hundred Ghana Cedis was eventually paid to Plaintiff Company through its C.E.O. This is what transpired under cross- examination: “Q: Can you confirm to the Court when you made the last instalment payment to the Plaintiff representative? A: I don’t recall the specific date but it was months after the first payment. Q: This last payment you made was, it before or after the expiration of the rental period? A: It was after. Brasille Engineering Technology vs. Tako Construction 8 Q: You can also confirm to the Court that you met Plaintiff representative at the car park of Afrikiko restaurant? A: Yes my lady. Q: So can you tell the Court what transpired there between you and the representative of Plaintiff company? A: That was the day I paid him another GH¢2000 (Two Thousand Ghana Cedis) Q: The Gh¢2,000 represented what? A: Out of the agreement of GH¢3,600.00 we gave him GH¢1,500 (One Thousand Five Hundred Ghana Cedis) on the first day. And the GH¢2,000.00 I gave him when I met him at Afrikiko.” (See record of proceedings dated 5th December, 2024) The above interaction confirms that the real bone of contention between the parties herein which has led to the culmination of this suit is whose responsibility it was to collect the scaffolding after the agreement terminated. If it was Plaintiff’s, had Plaintiff Company then failed in its duty to do so for which reason Defendant Company should not be made to bear any responsibility for keeping the scaffolding? I noted the following transpired under cross-examination of PW1: “Q: Mr. Kemeh, pursuant to the contract, you delivered the scaffolds to the construction site? A: Yes my lady. That is correct. Q: So ordinarily since you delivered the scaffold to the construction site, it would be in order that you pick it up from the construction site, isn’t that correct? A: Yes my lady. But that would have to be done by notification that we need to come for the item. Q: I put it to you that you were aware when the contract had expired. A: No I was not aware. And my lady, respectfully, the Defendant company under the contract was supposed to use the scaffold at Cocoa Clinic site where it was delivered. But by a breach of contract Defendant company transported the scaffold from the Cocoa Clinic site to another site unlocated where we don’t know where the scaffold was relocated to. All our efforts to reach Mr. Kofi Buckman who is Brasille Engineering Technology vs. Tako Construction 9 the CEO of Defendant company was unsuccessful. We were told he was not available and was out of the country. Till date we don’t know where our scaffold is. One the foremen of Defendant company, his name is Andy, informed us that he was told the scaffold was sent to a site at Asylum Down. Q: You see Mr. Kemeh, I am suggesting to you that you knew of the duration of the contract. A: Yes my lady, that is correct. Q: Mr. Kemeh, I suggest to you that after your contract with Defendant company ended, your responsibility was to pick up your scaffold. A: My lady, that is not true.” (emphasis mine) (see proceedings dated 29th October, 2024) From the above interaction thus, although Plaintiff Company urges that it was Defendant’s duty to deliver the scaffold, in the same breath Plaintiff Company seems to imply that this obligation to retrieve the scaffolding was on them upon notification by the Defendant Company. Considering the established facts and evidence before me, the conclusion I am led to is that it was not expressly agreed to by parties whose responsibility it was to retrieve the scaffolding. Defendant however contends that it is the customary practice within the scaffolding business for the Plaintiff to be responsible for retrieving its equipment (see paragraph 9 of DW1’s witness statement). However, Plaintiff Company having denied that it was their responsibility to retrieve the said machinery, the duty then lay on Defendant Company to prove or establish the existence of this customary practice that it was unequivocally Plaintiff’s responsibility to pick up the scaffolding after the termination of the two-week contract period. As stated by the learned author Goode in his book titled Commercial Law, 4th edition at page 97: “Where parties have consistently contracted on certain terms, so that it may reasonably be assumed that the transaction under consideration was intended to be governed by the same terms, the court will usually be willing to find that the terms apply, even if not expressly adopted in relation to the transaction.” (See also the cases of: McCutcheon v. David Macbrayne Ltd. (1964) 1 All ER 430; Henry Kendall & Sons v. William Lillico & Sons Ltd (1969) 2 AC 31; Vacwell Engineering Co. Ltd. v. B.D.H. Chemicals Ltd. (1971) 1 QB 88; Circle Freight International v. Mideast Gulf Exports (1988) 2 Lloyd’s Rep. 427. The Supreme Court in Oppong Brasille Engineering Technology vs. Tako Construction 10 Banahene vs. Shell Ghana Ltd (Civil Appeal No. J4/34/2016, judgment dated 6th April, 2017; [2017]DLSC2088 referred to both Goode and the above-stated cases with approval). No evidence was led by Defendant Company however either of such a customary practice or that this was an arrangement consistently adhered to by parties herein under previous agreements. Moreover, such a practice not being a notorious fact, judicial notice cannot be taken of same. Indeed, what appears to me to have happened is that, Defendant Company operated under the unspoken and/or uncommunicated expectation that once the contract had terminated after the agreed two weeks, Plaintiff Company would on its own volition retrieve its equipment. Plaintiff Company on the other hand, believed that it would be notified first by Defendant Company upon the completion of the project before coming to retrieve its equipment. This notification from Defendant was however not forthcoming even months after the expiration of the initial two-week duration of the agreement, which led Plaintiff Company to expect Defendant to then deliver the scaffolding to it. However, when this delivery was also was not forthcoming, Plaintiff Company then felt compelled to take steps to locate its equipment and that eventually led to this suit. In the absence of any express agreement regarding whose responsibility for the retrieval was, what would the common-sense approach be in such circumstances? Would it still be the unquestionable duty of Plaintiff company to retrieve its machinery? Counsel for the Plaintiff has urged in his address that a bailment relationship exists in the circumstances of this case because applying the definition of bailment from the Black’s Law Dictionary (9th edition), “there was a delivery of personal property from one person (bailor) to another (bailee) who holds the property for a certain purpose under an express (or) implied in-fact contract.” Indeed, I was originally tempted to agree with this submission, however a careful analysis of the different types of bailment shows that same is inapplicable to the circumstances of this case. I say so because a bailment relationship can be gratuitous, non-gratuitous (bailment for reward), or involuntary. In this case, the applicable type of bailment is Bailment for Reward. A Bailment for Reward (or non-gratuitous bailment) arises where consideration passes between the bailor to the bailee. In such cases, the bailee agrees to take delivery of the goods of the bailor for some specific Brasille Engineering Technology vs. Tako Construction 11 reward. Thus, it is the bailee who is compensated for the bailment. An example of this is where a person leaves his car at a commercial parking lot, the parking lot which becomes the bailee is paid for the time the car is left in its possession. In such situations there is a certain duty on the bailee to take reasonable precautions for the safety of the goods bailed to him and to deliver the goods back to the bailor in the condition it was given. In The Document Warehouse Ltd. vs. Airtel Ghana Ltd (Suit No.CM/BDC/0616/17, ruling dated 19th January 2018; [2018] DLHC 3485) His Lordship Eric Kyei Baffour J (as he then was) identified a type of bailment he referred to as “bailment for hire.” This in essence falls under the above category of a non-gratuitous bailment. His Lordship in that case explained that a bailment for hire is “where a bailee is compensated for his services. Parking of a vehicle at a car park for safety in return for fees falls under this category of bailment. Being a bailment for hire there is the attendant incident that the bailor must pay for the service rendered to him failing which there is an implied right of lien over the property which is the subject matter of the bailment.” The key thing to note in such bailment relationships is that it is the bailee and not the bailor who is being compensated. Meaning that apart from the goods being delivered, consideration must also pass from the bailor to the bailee for such a bailment relationship to exist at common law. Yet, what we find in this case is that it is the would-be bailor i.e. Plaintiff Company who is being compensated as opposed to Defendant Company (i.e. the would-be bailee). Thus, the agreement between parties herein indicates to me not a bailment relationship as is being urged by Counsel for the Plaintiff, but strictly a contract for hire relationship. In such contractual relationships, where property is rented for an agreed fee, I believe the common-sense approach would be for the person who rents out the goods, to return to the agreed location and retrieve his goods after the expiration of the period. We see this happen all over the country when chairs, canopies, décor and such similar goods are delivered for events such as weddings, funerals, naming ceremonies and other such ceremonies. At the expiration of the period, it is not the duty of the renter to then send the goods hired back to the owner, rather it is the owner who organises the retrieval of the goods and this cost is often factored into the agreed contract fee. Brasille Engineering Technology vs. Tako Construction 12 In that regard, in the absence of any express term to the contrary, I find that although there was no expressly stated duty, there was indeed an implied duty which lay on Plaintiff to have retrieved the scaffolding from the location where it was delivered. I am further satisfied that this implied duty to retrieve also operated in the mind of parties particularly Plaintiff Company herein despite his denial of same. Why do I think this? Because the Plaintiff’s own conduct through its C.E.O shows that it made every effort to retrieve the scaffolding upon the termination of the two-week period. Under cross-examination this ensued: “Q: I put it to you that Defendant did not move the scaffold from the site where you delivered it. A: My lady, that is not true. Two days after I delivered the scaffold to the site at Cocoa Clinic, there was an item that was left out of the scaffold package. And the driver that was supposed to bring it back, brought the item to the Cocoa Clinic site only to confirm to me that the scaffold was not at the site. This was two days after. During the time I was chasing for my salary, I had to one time pass by the site and the scaffold was not there at the site.” Plaintiff Company further showed its attempts to retrieve its scaffolding from Exhibit A tendered by Plaintiff Company. The said exhibit A is a demand notice to Defendant Company dated 6th February, 2024 approximately seven months after the termination of the two-week period in which Plaintiff Company demanded for the return of its scaffolding equipment. This confirms that indeed, there was such an implied duty on Plaintiff Company to retrieve the scaffolding. Exhibit A was further not sufficiently discredited by Defendant Company. Although Defendant Company sought to imply that this demand letter in Exhibit A was never received and that same is a self-serving document I am not convinced of this. The simple reason for this view is this: The Defendant Company itself admitted that the scaffolding was in its possession and has remained in its possession till date and contends that it is Plaintiff who has failed and/or refused to retrieve its property. Yet this fact is also confirmed in Exhibit A since Exhibit A also affirms that the scaffold equipment remains in the possession of Defendant company. How then does a document by Plaintiff which affirms the own admission of Defendant become a self-serving evidence? Perhaps it is the portion where Plaintiff states that “we don’t know (our) whereabouts (or) where the scaffold are right now since Kofi Buckman took the scaffold to another project site (sic)” that Defendant Brasille Engineering Technology vs. Tako Construction 13 refers to as being self-serving. On this too, I am not convinced. Exhibit A is dated 6th February, 2024 some seven months after the termination of the two-week rental period. Defendant itself tendered in Exhibits 1 and 1A to show that the equipment has always been at the location site, both of which exhibits are dated 8th July, 2024- almost a whole year after the two-week contract period. This means that per Defendant’s own admission, it has had possession of the scaffold for a whole year after the termination of the agreement. Could it then be on the balance of probabilities that within that year it remained in Defendant Company’s possession, the scaffold was moved to other locations? I am sufficiently convinced that this is the case. Parties are assumed to be of sound mind and capacity in entering into agreements. Accordingly, they are expected at all material times to act for the benefit of their best interest and welfare. Thus, the above logical deduction that the scaffold was indeed moved by Defendant to another location is reached because, there would be no purpose for Defendant to continue to retain the equipment for so long a period at its own cost and additional expense unless it was getting some added benefit of some kind in one way or another. I am thus satisfied as a trier of fact, that indeed an implied duty was on Plaintiff Company to retrieve its scaffolding equipment. I am also satisfied as a trier of fact, that Plaintiff Company made every effort to discharge this duty but was unable to do so due to the actions of Defendant Company. 2) Whether or not Defendant used the scaffolding machine on another project after the contractual period? Defendant has categorically denied using the scaffolding equipment on any other project. In fact, according to Defendant it had to rent a different type of scaffold necessary for the project’s completion. Defendant has further stated that the equipment at all material times has remained at the site where Plaintiff delivered it, and all Plaintiff Company had to do is go to the site and retrieve it. Assuming that Defendant’s version of events is indeed so, the question that bothered my mind was why then did Defendant Company still choose to continue to keep the scaffolding for so long? As Brasille Engineering Technology vs. Tako Construction 14 I have already indicated, per its own Exhibits 1 and 1A, the scaffolding equipment has been kept until at least 8th July, 2024 almost a year after the original agreement terminated. This fact was also admitted under cross-examination by DW1’s admission (see proceedings dated 10th December, 2024). Was this deliberate retention of possession by Defendant Company simply because it was not their duty to deliver same? I do not think so. Defendant admitted that it kept the scaffolding equipment for months after the two-week period of the contract. Under cross-examination the following ensued: “Q: Can you confirm to the Court when you made the last instalment payment to the Plaintiff representative? A: I don’t recall the specific date but it was months after the first payment. Q: This last payment you made was, it before or after the expiration of the rental period? A: It was after” Further under cross-examination Defendant also admitted as follows: “Q: Can you confirm that at the time you made the payment of GH¢2000, the scaffolding equipment was still in your possession? A: Yes” (see proceedings dated 5th December, 2024) It is interesting to note that Defendant confirms the agreed price for the rental of the equipment was Three Thousand Six Hundred Ghana Cedis (GH¢3,600) out of which Defendant eventually paid Three Thousand Five Hundred Ghana Cedis. This left an unpaid amount of One Hundred Ghana Cedis (GH¢100). This GH¢100 was stated by Defendant to be paid as transportation to Plaintiff Company when he came to retrieve the scaffolding (see paragraph 6 of Defendant’s response to summary of claim and paragraph 16 of DW1’s witness statement). But granted that it was Plaintiff’s duty to retrieve the equipment, then Plaintiff having failed for months to do so, wouldn’t it have made better business sense for Defendant company to deliver the equipment to Plaintiff and then keep this GH¢100 still owed Plaintiff as the cost Defendant incurred in delivering same when it was not their duty to do so? Yet Defendant never paid this Brasille Engineering Technology vs. Tako Construction 15 GH¢100 Ghana Cedis it owed to Plaintiff “for transport” neither did Defendant deliver Plaintiff’s equipment in lieu of payment. This was why the question of why Defendant Company continued to keep the scaffolding for so long bothered my mind. It certainly could not have been out of the magnanimity of their heart. In Shakespeare’s Macbeth, Lady Macbeth laments over the milk of human kindness in her husband. Indeed, there is certainly a time and a place for the milk of human kindness to be displayed extravagantly, but oftentimes this place is not found in business dealings. Businesses operate to make a profit, not a loss. Thus it would certainly not make good commercial sense to continue to keep equipment that is not yours at extra cost or disadvantage to you as a company. No good businessman would do so. One simply does not enter into business to engage in conduct that would be to their detriment. The only logical reason that can be deduced then from Defendant Company keeping the scaffolding equipment for so long was because they were benefitting in some way from continuing to keep it. I am further fortified in this logical deduction from all the exhibits tendered in evidence. As I have already stated in my analysis of same, I am satisfied as a trier of fact that Defendant indeed retained the scaffolding long after the period agreed by the parties and the deduction made from this conduct is that same was retained to continue to benefit from its use in breach of the terms and duration of the rental period agreement. I am also further satisfied that Plaintiff has successfully discharged its evidential burden of the existence of the contract and the breach of same by Defendant. I therefore hold that Plaintiff is entitled to its reliefs a) Recovery of cash the sum of Fifty-Six Thousand Three Hundred Ghana Cedis (GHC 56,300) being money Defendant owes Plaintiff for the rental of the scaffold equipment which Defendant has retained since the termination of the agreement on 16th August 2023. I also hold that Plaintiff is entitled to its relief b) Interest on the said amount of Fifty-Six Thousand Three Hundred Ghana Cedis (GHC 56,300) from 16th August, 2023 till date of final payment at the current prevailing bank rate; and relief c) An order for at Defendant to return the machine at its own expense. Brasille Engineering Technology vs. Tako Construction 16 3) Whether Plaintiff ought to be awarded damages and compensation for the breach of contract by the Defendant? Having resolved the first two issues of i) Whether or not it was the duty of Plaintiff to retrieve its scaffolding machine after the contractual period; and ii) Whether or not Defendant used the scaffolding machine on another project after the contractual period in favour of Plaintiff, the third resultant issue of damages must now be determined. Damages are one of the remedies open to a plaintiff who suffers injury or harm as a result of the breach of contract by another, and is a sum of money claimed as compensation or awarded by a court as compensation to the plaintiff and/or claimant for some harm, loss or injury suffered by that plaintiff and/or claimant as a result of the breach of contract committed by the defendant or his agent. [See Ecobank Ghana Limited vs. Aluminium Enterprise Limited (Civil Appeal No. J4/18/2020); judgment dated 13th May, 2020 SC). With respect to the award of damages for a breach of contract, the law is that the award of general damages flows from what the law will presume to be the natural and probable consequences of a defendant’s act which constitutes a breach. Thus, unlike other types of damages, General damages arise out of inference by the law and therefore need not be specifically proved by evidence other than the fact of the breach itself. This is because the law implies general damages in every infringement of a right of a plaintiff. [See Delmas Agency Ghana Ltd vs. Food Distributors International Ltd [2007/08] 2 SCGLR 748 per holding 3]. The purpose of damages is to put the party who has suffered as a result of the breach in nearly the same position that he would have been had the other party not committed the breach or as if the contract had been performed. Damages are however not awarded to over-enrich a plaintiff far beyond his actual losses nor should a Plaintiff get far less than his actual loss [See the cases of Hadley vs. Baxendale [1854] 9 Ex. 341; Royal Dutch Airlines & Another vs. Farmex Ltd [1989-90] 2 GLR, 623 @ 625; Juxon-Smith vs. KLM Dutch Airlines [2005-2006] SCGLR 438 @ 442 per holding (5); and Charles A. Nyarko vs. Barclays Bank Ghana Ltd (Civil Appeal No. J4/38/2020), judgment dated 10th November, 2021]. Brasille Engineering Technology vs. Tako Construction 17 Flowing from the above authorities the following principles are established regarding the award and assessment of damages in contract: 1) There must be a contract which terms have been breached; 2) There must be some loss or harm suffered (and this may include actual pecuniary loss as well as non-pecuniary losses such as inconvenience and discomfort); and 3) The loss or harm suffered must not be too remote in the assessment of quantum damages to be awarded. In the instant case, I have already concluded that there has been a breach of the terms parties agreed to by Defendant Company. Clearly therefore, Plaintiff is entitled to damages for this breach. The real question is what quantum of damages is to be awarded in the circumstances bearing in mind the legal principles for the award of damages I have outlined above. Having weighed the entirety of the circumstances of this case, I will hold that Plaintiff is entitled to general damages to the tune of Thirty Thousand Ghana Cedis (GHC 30,000). In coming to this amount I have noted the position of the Supreme Court echoed by the dictum of HL Kulendi JSC in the Charles A. Nyarko vs. Barclays Bank Ghana Ltd case (referred to supra), where the apex court opined: “On the other hand, where it is clear that some substantial loss has been incurred, the fact that an assessment is difficult because of the nature of the damage is no reason for awarding no damages or merely nominal damages…the fact that damages cannot be assessed with certainty does not relieve the wrong doer of the necessity of paying damages…where precise evidence is obtainable, the court naturally expects it; but where it is not, the court must do the best it can.” (emphasis mine). I also took into account the rates of interest and inflation in Ghana from 2024 till date as guided by Taylor JSC in the case of Sowah vs. Bank For Housing & Construction [1982-83] 2 GLR, 1324 where he noted: “…I am persuaded by the apparent modern approach of the English courts to the view that since the money was due at a point in time and it is now being paid at a subsequent point in time, the interest which the money attracts during the period…is, inter alia, a fair yardstick by which to measure to some extent the damages so suffered by the appellant”; See also Boasiako vs. Ghana Timber Marketing Board [1982-83] 2 GLR 824, HC]. From the data provided by the Bank of Ghana and Ghana Statistical Services https://statsghana.gov.gh/gssmain/fileUpload/Price%20Indices/Bulletin_%20CPI%20March%2020 Brasille Engineering Technology vs. Tako Construction 18 24.pdf) websites, I found the interest and inflation rates in 2024 was 29% and 25% respectively, and these rates were taken into consideration. I also bore in mind the non-pecuniary losses that Plaintiff has undoubtedly had to bear including the inconveniences and stress that Defendant has put on Plaintiff in chasing after this claim from 2024 till date. I believe this amount to be fair bearing in mind the principles on the assessment and award of damages enumerated above particularly that a plaintiff is not to be overly enriched nor get far less than his losses when being awarded damages. I will conclude on this issue of award of damages by repeating the sentiments of the Supreme Court in the case of Muller vs. Home Finance Ltd. [2012] SCGLR 1234, where the eminent jurist Dotse JSC emphasised: “Perhaps it will not be out of place at this juncture to reiterate the fact that, if it is desirable for people to use contracts in the business world to regulate and control their dealings with one another, then it is the duty of the law courts to give teeth to these contracts to enable them bite and bite very hard when the contracts are [dis]honoured in the breach by the parties. It has recently been stated that there are some babies who have very strong teeth who can bite very hard. If that is so, then adults who enter into legally enforceable contracts, conscious of the consequences whenever there is a breach must be held accountable for any such lapses.” Thus, on the second issue of damages, I hold that Plaintiff is entitled to general damages and award Plaintiff the said general damages to the tune of Thirty Thousand Ghana Cedis (GHC 30,000). 4) Costs including Solicitor’s costs Having resolved the above issues in favour of Plaintiff, there is predictably a need to deal with the issue of costs. With respect to costs, I have had regard to the nature of the agreement between the parties i.e. the fact that the agreement is business-related in nature. I have also had regard to the time spent in prosecuting the case, and the reasonable legal and other incidental expenses such as filing fees, solicitor’s fees and transportation costs Plaintiff inevitably would have incurred in prosecuting this case. With the above in mind, I will award Plaintiff costs of Two Thousand Ghana Cedis (GHC 2,000). I will also award Plaintiff the solicitor’s fees of 10% of the total cost. Brasille Engineering Technology vs. Tako Construction 19 From the total sums awarded, this brings the final judgment debt of Defendant to Ninety-Seven Thousand One Hundred and Thirty Ghana Cedis (GHC 97,130) exclusive of interest on the principal sum of Fifty-Six Thousand Three Hundred Ghana Cedis (GHC 56,300). Conclusion In conclusion, having found in favour of the Plaintiff, I will hold that Plaintiff is entitled to all its reliefs. Furthermore, for the avoidance of doubt, and in summary of the judgment herein, judgment is entered in favour of Plaintiff as follows: 1) On relief a: Plaintiff is entitled to Recovery of cash the sum of Fifty-Six Thousand Three Hundred Ghana Cedis (GHC 56,300) being money Defendant owes Plaintiff for the rental of the scaffold equipment which Defendant has retained since the termination of the agreement on 16th August 2023 in breach of the parties oral contract. 2) On relief b: I also hold that Plaintiff is entitled to its relief b) being interest on the said amount of Fifty-Six Thousand Three Hundred Ghana Cedis (GHC 56,300) from 16th August, 2023 till date of final payment at the current prevailing bank rate 3) On relief c: I hold that Plaintiff is entitled to a an order directed at Defendant to return the machine at its own expense, and Defendant is so ordered. 4) On relief d (being damages): the Court awards Plaintiff general damages of Thirty Thousand Ghana Cedis (GHC 30,000). 5) On reliefs e and f (being costs including solicitor’s fees): I will award Plaintiff costs of Two Thousand Ghana Cedis (GHC 2,000). I will also award Plaintiff the solicitor’s fees of 10% of the total cost. Brasille Engineering Technology vs. Tako Construction 20 This accordingly brings the total judgment debt of Defendant owed to Plaintiff to Ninety-Seven Thousand One Hundred and Thirty Ghana Cedis (GHC 97,130) exclusive of interest. Plaintiff is further awarded interest at the prevailing bank rate on the principal judgement debt sum of Fifty- Six Thousand Three Hundred Ghana Cedis (GHC 56,300) until date of final payment in accordance with the Court (Award of Interest and Post Judgement Interest) Rules, 2005 C.I 52. SGD. MAAME YAA A. KUSI-MENSAH (MS). MAGISTRATE Brasille Engineering Technology vs. Tako Construction 21