DANIELLI CONSTRUCTION LTD v. MABEY _ JOHNSON LTD
December 20, 2006
SUPREME COURT
GHANA
CORAM
- ATUGUBA, J.S.C. (PRESIDING)
- MRS. WOOD, J.S.C.
- BROBBEY, J.S.C.
- ANSAH, J.S.C.
- ANINAKWAH, J.S.C
Areas of Law
- Contract Law
- Civil Procedure
- Evidence Law
December 20, 2006
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court judgment concerns a commercial equipment swap between Danielli and M & J. Under the arrangement, Danielli provided an Audi and a DE 30C diesel piling hammer, while M & J was to provide a Toyota Hilux and a mobile crushing plant for Daniellis construction operations, including the Fumbisi Valley Project. After the High Court characterized the agreement as a hire and awarded daily damages, the Court of Appeal reconceived it as a swap but held M & J in breach for non-delivery and granted the cedi equivalent of US$890,411. On further appeal, Justice Ansah, writing for a unanimous Supreme Court, treated the appeal as a re-hearing, affirmed the swap characterization, and explained that delivery can be actual or constructive. Citing exhibits and testimony showing a practice of collecting equipment from each others sites and that the crushing plant was ready for collection, the Court held M & J had delivered constructively by making the piling hammer available. It reversed the Court of Appeal and allowed the appeal.
JUDGMENT
ANSAH, J.S.C.: The plaintiff sued the defendant for the following remedies:
“(1) The return of its piling hammer and accompanying accessories;
(2) Payment of accrued charges for hiring the said hammer;
(3) Damages for breach of contract;
(4) Damages for wrongful detention of the hammer;
(5) Damages for failing to pay for using the hammer;
(6) Damages for wrongfully to return the hammer (sic);
(7) Massive profit and interest”;
The gist of the case for the plaintiff was that it agreed to give its piling hammer and an Audi saloon car in exchange of the defendant’s Toyota Hilux pick-up and crushing machine. Whereas it honoured its obligation and delivered the equipment to the defendant, the latter failed to deliver the crushing machine to the plaintiff. The plaintiff thereafter wrote to levy charges for the use of the piling hammer.
On the other hand, the defendant denied there was any agreement to hire the equipment and asserted it was only an agreement to swap them for each other. The defendant therefore denied liability and rejected invoices the plaintiff submitted for payment, for the reason that it made the piling hammer available for collection by the plaintiff, but it (plaintiff) refused or failed to go for it.
The trial judge found in his judgment there was a contract of hiring equipment by the parties which, the defendant breached and proceeded to award damages for the plaintiff. He also ordered the defendant to deliver the piling hammer to the plaintiff at its premises or pay for the cost of the plaintiff retrieving it itself, awarded $300.00 (or its equivalent) per day chargeable from 18th December 1993 to date of judgment as damages, which sum was to attract interest.
Dissatisfied with this judgment, the defendant appealed against it to the Court of Appeal on as many as nine grounds. The Court allowed the appeal in part and awarded damages for the cedi equivalent of $890,411 for the plaintiff.
Once again, the defendant felt aggrieved by the judgment of the Court of Appeal and appealed to this court on the grounds that:
“(1) The conclusion that the appellant breached the swap agreement is wrong and not supported by the evidence as the court failed to consider evidence on record of the delivery of the piling hammer to the respondent.
(2) Damages awarded against the Appellant are speculative and excessive and cannot be supported by the evidence on record in that:
(a) The court misdirected itself when it based its award of dama