October 26, 2023
COURT OF APPEAL
GHANA
CORAM
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Ackaah-Boafo, JA
i. Overview :
[1] The overriding question in this appeal is whether the judge of the court below erred in holding that the Defendant/Appellant breached the contract it entered into with the Plaintiff/Respondent. There is also the supplemental question of whether the lower court ought to have declined jurisdiction in the matter because, according to the Appellant, Glanderson Builderspak (Plaintiff/Respondent) and Adler Steel Company
Limited (Defendant/Appellant) chose Ontario (Canada) law as governing law applicable to the contract between them and also chose arbitration as the mode of resolving any conflict between them.
[2] The Plaintiff's action was for damages (Specific, punitive and general) for breach of contract and loss of reputation. The court below granted all of the claims and also awarded costs against the Appellant. The impugned judgment is from the High Court (Commercial Division), Accra dated 11th November, 2020. The Appellant filed the Amended Notice of Appeal, the subject matter of this appeal, on 12th March, 2021. For ease of reference the Defendant/Appellant will be referred to in this appeal as Appellant and the Plaintiff/Respondent as Respondent.
ii. Background
[3] The Respondent commenced the action against the Appellant on the 4th of April, 2019 for damages for breach of contract and interest on the damages. The writ of summons and the statement of claim was later amended on May 22, 2019. The case of the Respondent was that, further to a email correspondence between it and the Appellant company based in Canada, it purchased 200 tons of colour-coated Aluzinc coils, which the Appellant ordered from China. According to the Respondent, upon receipt of the products it 'manufactured Standing Seam Roofing Panels and installed them for numerous customers in Ghana ' . The Respondent contended that, within six months after the installation, customers started to complain of the fading and rusting of the respective roof panels manufactured with the colour coated Aluzinc coils.
[4] The Respondent contended that it informed the Appellant of the customers' complaints and the Appellant proposed that the rust and the colour could be rectified for the customers by spraying of the roofs. According to the Respondent, the Appellant reneged on the promise to provide the requisite paint and therefore, it did the spraying of the roofs itself and incurred cost as a result. The Respondent also contended that other customers, who
AI Generated Summary
Adler Steel Company Limited appealed a High Court Commercial Division judgment that had awarded Glanderson Builderspak significant damages for alleged breach of a supply contract for 200 tons of colour‑coated Aluzinc coils sourced from China and used to fabricate standing seam roofing panels. Customers complained of fading and rust within six months, leading Glanderson to seek specific, general, punitive, reputational damages, interest, and costs. The Court of Appeal, per Justice Kweku T. Ackaah‑Boafo JA, with Justice Afia Serwah Asare‑Botwe JA concurring and Justice Alex B. Poku‑Acheampong JA agreeing, held the High Court’s decision was against the weight of evidence. The written contract’s terms and disclaimers controlled; Respondent failed to prove latent defects or breach; special damages were not strictly proved; and although the contract contained an Ontario arbitration clause, Adler waived arbitration by defending on the merits without a timely application. The Court set aside the High Court’s orders, dismissed all claims, and awarded costs to Adler.