Agate-Mabot Company Limited v W3msys Company Limited (A2/188/21) [2025] GHADC 133 (20 March 2025)

IN THE KOTOBABI DISTRICT COURT 1, BEHIND THE KOTOBABI CLUSTER OF SCHOOLS, KOTOBABI, ACCRA HELD ON THURSDAY 20th MARCH, 2025 BEFORE HER WORSHIP MAAME YAA A. KUSI-MENSAH (MS.) SUIT NO: A2/188/21 AGATE-MABOT COMPANY LIMITED - PLAINTIFF KOKOMLEMLE ACCRA VRS. W3MSYS COMPANY LIMITED - DEFENDANT KOKOMLEMLE ACCRA PARTIES: Plaintiff Company represented by Mercy Danquah present. Defendant Company represented by Kwabena Owusu Danquah present. COUNSEL: Daniel Fiador Esq. holding the brief of Ato Afful Esq. for Plaintiff Company present No Legal Representation for Defendant JUDGMENT PROCEDURAL BACKGROUND Plaintiffs commenced this action on 26th March, 2021 at the Adabraka District Court 2 (formerly Kaneshie District Court 2) seeking the following reliefs: i. A refund of Fifty-Three Thousand Ghana Cedis (GHC 53,000) paid by Plaintiff to Defendant for services; ii. Interest on the said Fifty-Three Thousand Ghana Cedis (GHC 53,000) from April 2020 till date of final payment; iii. Damages for breach of contract iv. Legal Cost Defendants filed their statement of defence on 7th June 2021 and essentially denied all the averments of Plaintiff. Subsequently, parties were directed by the Adabraka District Court 2 to file their respective witness statements with relevant annexures for conduct of case management conferencing and commencement of trial. Plaintiff company filed two witness statements through one Issac Tawiah and Mercy Danquah both on 4th November 2021 while Defendant company filed theirs through one Dr. Kwabena Owusu Danquah. Although the date of filing was not indicated on Defendant Agate Mabot Co. Ltd vs. W3msys Co. Ltd 1 witness’ witness statement the record of proceedings of the Adabraka District Court 2 dated 31st March 2022 indicates that same was filed on 29th March 2022. Trial commenced in the Adabraka District Court 2 on 22nd June 2022, however before the trial concluded, the suit was transferred from my sister at the Adabraka District Court to this Court to continue with hearing by order of the Honourable Chief Justice dated 29th February, 2024. Accordingly, hearing notice was served on Defendant company and the record of proceedings was adopted by this Court on 9th December, 2024 upon satisfaction by this Court that there was notice to the Defendant company of sitting for that day. Defendant company further failed and/or refused to file any other processes to the instant suit or attend any other court hearings. Indeed the Defendant’s last appearance in Court from the record was 29th November 2023 although the record shows that Defendant company has been served with all relevant processes at every stage of the proceedings. Plaintiff’s case The facts that gave rise to this case are relatively straightforward. Plaintiff is a limited liability company that provides banking support and cash-in-transit services among others while Defendant is a limited liability company that provided Information Technology (IT) services. Plaintiff company herein contends that per an agreement dated 26th January 2019 Defendant company was to design, develop and install an enterprise resource planning (ERP) IT system for Plaintiff company. As part of the scope of work under this agreement Defendant company was to develop and install an operating data control system, a human resource management system, an accounting system interface and a flexible report generation system. Defendant company further agreed to perform all these services to the satisfaction of Plaintiff. Plaintiff states that, it provided all the material Defendant demanded for piloting this system and further paid for the hosting of the system on the cloud server on which the system was to be piloted. Plaintiff adds that based on several demands by Defendant company it also paid the sum of Fifty- Three Thousand Ghana Cedis (GHC 53,000) paid by Plaintiff to Defendant for the services it agreed to provided. However, according to Plaintiff, the Defendant company only developed two out of the agreed systems it was to provide, namely the data operation control system and the human resource management system. Furthermore, the piloting of these two systems was unsuccessful because accessing the system was difficult and the systems were not tailored to fit the operations of Plaintiff. Plaintiff states that in light of this, it requested Defendant to make changes to the systems to allow for them to be useful to Plaintiff company but Defendant failed to rectify any of the anomalies Plaintiff company complained of. Accordingly, Plaintiff company terminated the contract based on the terms of their agreement and demanded for a refund of the monies paid to Defendant company. Plaintiff also had to incur additional expense to acquire a new accounting software Agate Mabot Co. Ltd vs. W3msys Co. Ltd 2 system for its operations. Yet despite the demand made, Defendant company failed and/or refused to refund the monies paid by Plaintiff company. It is for this reason Plaintiff company instituted the present action to recover the money paid in addition to the other reliefs endorsed on its writ as enumerated above. Defendant’s case As I already indicated above, Defendant failed and/or refused to attend any of the subsequent hearings although the record shows that they were consistently served with notices of same. I will quickly note here that, I am not in any way trying to insinuate that a defendant is obliged to appear in court or provide an answer or response to processes. However, he ignores court papers at his own risk. This is because, when a party is given the opportunity to contest or lead evidence in defence of allegations against him but fails to avail himself of the opportunity, the court will be entitled to proceed with trial to its conclusion and make findings on the basis of the evidence adduced at the trial, after which the court may then proceed to give judgment. This was the position taken by the High Court in J.A. Plant (Gh) Ltd vrs. Mahamadas Company Ltd (Suit No: BC 127/2015; judgment dated 15th January, 2016). In that case, the High Court noted that the defendant had knowledge of the time, date and place of the trial and yet failed to appear. Accordingly, the court entered judgment in favour of plaintiff per the reliefs endorsed on the writ based on the viva voce evidence and the exhibits filed by the plaintiff therein. In such circumstances there cannot be a breach of the audi altarem partem rule of natural justice when it is clear that sufficient opportunity was given to a party to be present and heard on the matter but same was abused by him. A party who has been duly served with processes and accordingly notified of court proceedings has no one but himself to blame when he is made to suffer the consequences or liabilities for not attending court. I am fortified in this view by the case of The Republic Vrs. High Court (Fast Track Division) Accra, Ex Parte State Housing Corporation (No. 2) (Koranteng Amoako - Interested Party) [2009] SCGLR 185 where the Supreme Court speaking through Wood JSC (as she then was) stated the position of a Defendant who fails to attend court as follows; “…A party who disables himself or herself from being heard in any proceedings cannot later turn around and accuse an adjudicator of having breached the rules of natural justice...” See also The Republic vrs. Court of Appeal, Accra, Ex Parte East Dadekotopon Development Trust and Anor (Civil Appeal No. J5/39/2015, judgment dated 30th July 2015) where the Supreme Court again took the same view. Thus, the result of this failure of Defendant company to attend court was that their witness statement was never admitted in evidence nor was there a cross-examination of Defendant on same. This Court was therefore unable to rely on their evidence and excluded same in accordance with section 62 of the Evidence Act, 1973 (NRCD 323). Agate Mabot Co. Ltd vs. W3msys Co. Ltd 3 Nonetheless, from its pleading, it is gleaned that Defendant’s case is effectively that it developed all the four components of the ERP system and that all components of the software were in conformity with the agreement between the parties and were all functioning to optimum capacity. By reason of this claim, Defendant insists that Plaintiff company is not entitled to the reliefs it is claiming. ISSUES There were no issues expressly agreed to by the parties and set down for trial. The substantial issues in my view raised from the facts which this Court must however resolve are: 1. Whether Defendant failed to develop the appropriate software for Plaintiff’s use per their agreed terms which amounted to a breach? 2. Whether the Plaintiff is entitled to the recovery of Fifty-Three Thousand Ghana Cedis (GHC 53,000) paid by Plaintiff to Defendant for the services which Defendant failed to perform. 3. Whether the Plaintiff is entitled to damages and compensation for the breach of contract by the Defendant? 4. Whether Plaintiff is entitled to costs? THE LAW AND ANALYSIS Before considering the law and analysis of the issues above, it is helpful that I first set out in further detail the progression of the suit to this point. The record of proceedings indicate that Plaintiff representative one Isaac Tawiah (ie PW1) was being cross-examined by Defendant’s counsel at the original trial court as at 31st August, 2022. Cross-examination was to have continued on 1st September, 2022 but the record indicates that it was further adjourned to 22nd December, 2022 although both lawyers were present on the said 1st September, 2022. For some further reason, which is not evident on the face of the record, the next time the case was called at the original trial court was on 16th May, 2023 approximately eight months afterwards but on that day Counsel for the Defendant and Defendant itself were both absent. The suit was then adjourned to 18th May, 2023 for continuation. Again, there is no record of why the suit was not called on that date of 18th May, 2023 but the next record of the suit is 29th November, 2023 and once again the matter was adjourned to 29th March, 2024. It was at this stage the suit was transferred to this Court by order of the Chief Justice as I have already stated in the procedural background. After this Court received the record of proceedings from the original trial court, same was adopted by this Court on 9th December, 2024. The cross-examination of Plaintiff Agate Mabot Co. Ltd vs. W3msys Co. Ltd 4 was ended and Plaintiff elected to close its case in light of the continuous absences of Defendant company and any representation for it. This progression has led us to this point where the matter having been deemed concluded, this Court must consider the law with respect to Plaintiff company’s claims and reliefs sought and deliver judgment in respect of same. 1. Whether Defendant failed to develop the appropriate software for Plaintiff’s use per their agreed terms which amounted to a breach? The law is well-established 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 in civil cases is on the “preponderance of the probabilities”. These evidential rules have been provided for by the virtue of sections 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323). In Ababio vrs 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 scaled 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.” From the above therefore, ideally, whoever makes an assertion of a fact bears the burden of proving that fact by providing cogent evidence of same. In this case, that would mean that Plaintiff who is asserting their contract was breached by Defendant for failing to develop the agreed ERP system for use for Plaintiff’s operations had the burden of proving not only that a contract existed in the first place but further that the particular conduct of Defendant was in breach of their contractual agreement. Agate Mabot Co. Ltd vs. W3msys Co. Ltd 5 It is also the law however that, when a party has given evidence of a material fact and was not cross examined upon it, he need not call further evidence of that fact. In Tutu vs. Gogo (Civil Appeal No 25/67, dated 28th April 1969, Court of Appeal, unreported, digested in [1969] CC 76), Ollenu JA (as he then was) stated: “In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court."(See also the cases of 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). Plaintiff submitted in evidence the Agreement between the parties dated 26th January, 2019 (Exhibit A) which outlined the scope of work and included that Defendant shall design, develop and install software for an operations data control system, a human resource management system, an accounting system interface and a flexible report generation system. These four systems were what was to comprise the enterprise resource planning (ERP) IT system for Plaintiff company Additionally, Plaintiff tendered the invoices and payments made to Defendant for the development of the said ERP system (i.e. Exhibit C), as well as the data on staff for the inputting of same by Defendant (i.e. Exhibit B). Plaintiff further tendered a series of communications which were submitted to Defendant showing the dissatisfaction and issues that Plaintiff company was facing with the software system developed by Defendant company (i.e. Exhibits E, F and K). The payment by Plaintiff Company to a new company called Hopsys Consult for a different software system was also tendered in evidence (i.e. Exhibit H). None of these pieces of evidence were discredited by Defendant. Accordingly in line with the evidential rules outlined above, I am satisfied as the trier of fact that Plaintiff has satisfactorily discharged its evidential burden of proof and I am persuaded on the preponderance of probability that Defendant company’s conduct amounted to a breach of the contract between parties. I therefore resolve the first issue in favour of Plaintiff. 2. Whether the Plaintiff is entitled to the recovery of Fifty-Three Thousand Ghana Cedis (GHC 53,000) paid to Defendant for the services which Defendant company failed to perform? I have resolved the first issue in favour of Plaintiff as elaborated on above. Quite clearly therefore, Plaintiff would be entitled to the recovery of Fifty-Three Thousand Ghana Cedis (GHC 53,000) since the amount paid was for a service by Defendant and Defendant failed and/or refused to render the said service it was originally contracted for. It would therefore be most unjust for Defendant company to benefit from a contract which they failed to perform despite repeated demands to do so. Accordingly I hold that Plaintiff is entitled to the recovery of the sum of Fifty-Three Thousand Ghana Cedis (GHC 53,000) Agate Mabot Co. Ltd vs. W3msys Co. Ltd 6 3. Whether Plaintiff ought to be awarded damages and compensation for the breach of contract by the Defendant? 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]. 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 losses 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 of damages to be awarded. In the instant case, is clear that the conduct of Defendant has cost Plaintiff company additional expenses by reason of their failure to develop the necessary software for the agreed purpose or rectify the software actually developed. Plaintiff has had to contract a different company to do the original job that Defendant was supposed to have done in the first place and this cost Plaintiff company Twenty One Thousand Six Hundred and Seventy Five Ghana Cedis (GHC 21,675) per Exhibit H. Furthermore, Plaintiff company has had to litigate over this claim since 2021 a period of Agate Mabot Co. Ltd vs. W3msys Co. Ltd 7 over five years and has therefore also had to bear costs of hiring the services of a lawyer and bearing administrative legal costs by way of filing fees and transportation costs to and from court on multiple occasions. This is only the monetary expenses of Plaintiff alone, not to even talk of the expenses it has had to bear with respect to the inconveniences and stress Plaintiff has borne in pursuing this claim. Bearing these in mind, I will award Plaintiff damages of Eighty Thousand Ghana Cedis (GHC 80,000). In coming to this amount I have considered not only the above factors and principles I have stated on the award of damages but also inflation and interest rates over the last five years which has devalued the original refund of money which Plaintiff is entitled to. [See the case of 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]. 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 (now retired) 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.” 4. Whether Plaintiff is entitled to costs? Having found in favour of Plaintiff, the final relief of Plaintiff is for costs. I will award Plaintiff company costs of Ten Thousand Ghana Cedis (GHC 10,000). This brings the total judgment debt of Defendant to One Hundred and Forty-Three Thousand Ghana Cedis (GHC 143,000). Plaintiff is further awarded interest at the prevailing bank rate in accordance with the Court (Award of Interest and Post Judgement Interest) Rules, 2005 C.I 52. This interest is however to be paid on the total judgment debt of One Hundred and Forty-Three Thousand Ghana Cedis (GHC 143,000) and takes effect from the date of judgment until date of final payment. Thus, the interest rate is not to take effect from April 2020 as sought by Plaintiff company. Conclusion In conclusion, having found in favour of the Plaintiff, I will hold that Plaintiff is entitled to all its reliefs. Agate Mabot Co. Ltd vs. W3msys Co. Ltd 8 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 i: This Court holds that the conduct of Defendant amounts to a breach of the contract between the parties for which reason Plaintiff is entitled to a refund of the Fifty-Three Thousand Ghana Cedis (GHC 53,000) paid by Plaintiff to Defendant for unperformed services. 2) On relief ii: The Court holds that Plaintiff is entitled to interest at the prevailing bank rate on the total judgment debt of One Hundred and Forty-Three Thousand Ghana Cedis (GHC 143,000) from date of judgment until date of final payment in accordance with the Court (Award of Interest and Post Judgement Interest) Rules, 2005 C.I 52. 3) On relief iii: Plaintiff is awarded general damages for breach of contract to the tune of Eighty Thousand Ghana Cedis (GHC 80,000). 4) On relief iv: The Court holds that Plaintiff is entitled to costs inclusive of the legal fees. Accordingly, Plaintiff is awarded costs of Ten Thousand Ghana Cedis (GHC 10,000). SGD. MAAME YAA A. KUSI-MENSAH (MS). MAGISTRATE Agate Mabot Co. Ltd vs. W3msys Co. Ltd 9