ELITE MINERALS GHANA LTD VRS MANTRAC GHANA LTD (H1/194/2020) [2021] GHACA 49 (25 November 2021)

IN THE COURT OF APPEAL ACCRA AD. 2021 CORAM: JUSTICE SENYO DZAMEFE J. A. (PRESIDING) JUSTICE P. BRIGHT MENSAH J. A. JUSTICE JENNIFER A. DODOO (MRS) J. A. CIVIL APPEAL No: H1/194/2020 25TH November, 2021 ELITE MINERALS GHANA LTD PLAINTIFF/APPELLANT/RESP VRS MANTRAC GHANA LTD DEFENDANT/RESP/CROSS APPEL DODOO, JA (MRS) JUDGMENT The Plaintiff/Appellant/Respondent (hereinafter referred to as the Appellant) commenced the instant suit against the Defendant/Respondent/Cross-Appellant (hereinafter referred to as the Respondent) claiming the following reliefs: a) A declaration that the Defendant has breached the Parties’ agreement by failing to fulfil its obligations under the contract by the delivery of CAT excavator machinery with serial numbers DJF00866, DJF00755, DJF00864, DJF00867, DJF01072, MNB01283, DJF00850 and DJF00853 with the final drives which had latent defects or not fit for the purpose for which they were intended. b) A declaration that the Defendant, by virtue of the breach of the Parties’ agreement, has occasioned on the Plaintiff a loss of revenue that would have accrued to the Plaintiff for the use of the CAT excavator machines in the sum of Two Million, Two Hundred and Seventy-Six Thousand and Eight Hundred and Twenty United States Dollars (US$2,276,820.00). c) A declaration that the Plaintiff is entitled to special damages in the sum of Eight Hundred and Forty-Nine Thousand, Three Hundred and Thirty Ghana Cedis and Fifty-Eight Pesewas (GH¢849,330.58) from the Defendant in respect of interest on the restructured loan facilities taken by the Plaintiff from Stanbic Bank Ghana Limited for the purpose of acquiring the CAT 329 DL hydraulic excavator machinery with serial numbers DJF00866, DJF00755, DJF00864, DJF00867, DJF01072, MNB01283, DJF00850 and DJF00853. d) An order directed at the Defendant to pay to the Plaintiff a sum of Two Million, Two Hundred and Seventy-Six Thousand and Eight Hundred and Twenty United States Dollars (US$2,276,820.00) being loss of revenue for the Eight Hundred and Thirty-Four (834) days that the machines were grounded. e) An order directed at the Defendant to pay the Plaintiff special damages in the sum of Eight Hundred and Forty-Nine Thousand, Three Hundred and Thirty Ghana Cedis ad Fifty-Eight Pesewas (GH¢849,330.58) in respect of interest accrued on the restructured loan facilities taken by the Plaintiff from Stanbic Bank Ghana Limited. f) Interest of relief (d) at the prevailing Commercial Bank rate. The Appellant’s case can be summarized as follows: Between the months of January 2014 and June 2015, it acquired from the Respondent, ten (10) 329 DL excavators with a loan facility sourced from Stanbic Bank Ghana Ltd. These machines were acquired to boost the Appellant’s mining operations at its Osino and Apenkrono sites. The machines were priced at Two Hundred and Eighty-Five Thousand United States Dollars (US$285,000.00) each. It was the Appellant’s case that there was an implied condition of the purchase agreement that the 329 DL excavators would be fit for the purpose for which they were acquired. However, it turned out that the machines were neither fit for purpose nor were they of merchantable quality. The Appellant in its plaint, gave the following particulars: a) The final drives on the 329 DL model were latently defective causing the machines to break down at an average of 4000-5000 hours instead of the industry standard operation time of 20000-25000 hours. b) The quality and durability of the seal on the final drive known as the Duo Cone Seal was defective and therefore failed to serve its purpose of preventing contaminants from entering the final drive. This caused the easy entry of sand into the final drive. The Appellant contended that these problems occurred when the machines were barely a year old. When these problems were reported to the Respondent, it accused the Appellant of subjecting the machines to extreme working conditions; an accusation the Appellant refuted stating that other CAT excavators were being used under the same conditions without any problems at all. Owing to the persistent failure of the final drives on the 329 DL model, senior engineers who were dispatched from Switzerland to the Appellant’s mining sites advised that certain measures be instituted to address the problems. In spite of these measures, the problems persisted resulting in a meeting at which the parties agreed that the Respondent would at its own cost, repair all the final drives at its own expense. It was the persistence of the problem that caused the institution of the instant suit. Naturally, the Respondent has denied the Appellant’s claims. Its version of events was that the faults complained of stemmed from the Appellant’s misuse and misapplication of the excavators, a failure to observe safe environmental practices and a failure to follow the prescribed maintenance regime. They particularized these as: a) Servicing the machines with wrong incompatible oils after Two Thousand (2000) hours, the life span of the machine at which the Plaintiff took over servicing of the machines. b) Causing mud packing to occur by operating equipment with the tracks submerged in muddy conditions. c) Using the boom/stick/bucket of the CAT 329 DL excavator machine to aid it in climbing steep slopes causing wear in the final drive among others. They denied liability and contended that the visit by its engineers to the Appellant’s site and the replacement of the final drives in the machines the Appellant had purchased was a goodwill gesture in line with its policies to assist its customers adapt to its unique situation. It was in furtherance of this that it provided the Appellant with two (2) excavators and one dozer interest free after the Appellant had paid only 20 % of the cost of same. It denied that it was responsible for the restructuring of the loan which the Appellant had taken from Stanbic Bank Ltd. The following issues were set down for trial: 1. Whether or not there were implied conditions of the agreement as follows: a) That the CAT 329 DL should be reasonably fit for the purpose for which the Plaintiff acquired them, namely for mining purposes at its site. b) That the 329 DL excavator machinery should be of merchantable quality. 2. Whether or not the Defendant breached the above implied conditions of the agreement? 3. Whether or not the eight CAT 329 DL excavator machinery which broke down on various days were due to the latent defective nature of the final drives of the machinery? 4. Whether or not the Defendant undertook to repair all the broken-down final drives at it expense in recognition of the latent defects in those final drives? 5. Whether or not the latent defect of those final drives of the eight machines rendered the machines immobile/ redundant and thus, could not be used to enhance the Plaintiff’s business and operations as anticipated. 6. Whether or not the Defendant had knowledge of the fact that the Plaintiff applied to Stanbic Bank Ghana Limited for an interest-bearing loan facility of Two Hundred and Eighty-Five Thousand United States Dollars (US$285,000.00) for each of the CAT 329 DL model excavators for the purpose of enhancing its mining operations and business? 7. Whether or not as a breakdown of the said CAT 329 model excavator machinery, which was due to the latent defective final drives, the Plaintiff was unable to pay its loans as scheduled and thus resorted to restructuring the loan thus attracting additional interest amounting to Eight Hundred and Forty-Nine Thousand, Three Hundred and Thirty Ghana Cedis ad Fifty-Eight Pesewas (GH¢849,330.58)? 8. Whether or not the oil used by the Plaintiff on the CAT 329 excavators was of inferior quality and thus caused the breakdown of the final drives of the said machines? 9. Whether or not the workmen, agents and servants of the Plaintiff were negligent in the use, care and application of the CAT 329 DL equipment? 10. Whether or not the Plaintiff’s inability or refusal to repay the said loan was reasonably foreseeable by the Defendant such as to fix the Defendant with liability? 11. Whether or not the supply of courtesy equipment and the timely repair of the equipment mitigated the losses to the Plaintiff if any. 12. Whether or not the Plaintiff is entitled to its claim? The trial court distilled the issues into a fundamental one which was whether or not the persistent breakdown of the 329 DL model was due to a latent defect or to the misapplication and/or failure of the Appellant to observe proper maintenance culture? In so doing, the court averted its mind to the Sale of Goods Act, (1962), Act 137 and most particularly Section 13 (2) where it is provided for as follows: 13(2) Subject to the provisions of this Act and any other enactment there is no implied warranty or condition as to quality or fitness for any particular purpose of goods supplied under a contract of sale except as follows: a) There is an implied condition that goods are free from defects which are not declared or known to the buyer before or at the time the contract is made. b) Where the goods are of a description which are supplied by the seller in the ordinary course of his business and the buyer expressly makes known the purpose for which the goods are required there is an implied condition that the goods are fit for purpose. The court found as a fact that the Respondent was the sole authorized dealer in CAT equipment in Ghana and that it knew or was made aware of the purpose for which the said excavators were being acquired. The court therefore found that there was an implied term not only that the 329 DL models that the Appellants had purchased were free from latent defects but also that they were fit for the purpose for which they were acquired. The court referred to Christina Dowuona-Hammond’s article “PROTECTING THE PURCHASER OF GOODS UNDER GHANAIAN LAW” (1993- 95) REVIEW OF GHANA LAW, @ p. 133 as follows: “According to Section 13 liability for latent defects in goods sold, is only avoided where the goods are not of the kind sold in the ordinary course of the seller’s business and the seller was not aware or could not reasonably been aware of their existence. Where the seller of goods is a trader dealing in goods of that description, the liability is almost strict. In the case of latent defects which are not easily discoverable upon examination, the seller would in all cases be liable whether or not he was aware of their existence.” On the basis of this provision, the court found that the Respondent as sole supplier of CAT products in Ghana, could not escape liability for any latent defect in the 329 DL machines. The court also at p. 894 of the Record of Appeal (ROA) indicated that the Appellant’s case had been amply corroborated by the following facts: a) The fact that the Defendant undertook to change and did change all the Duo Cone Seals in all the final drives of the 329 DL model including those that had not developed any faults, at its own expense even after the warranty period. b) The fact that the Defendant provided the Plaintiff with a courtesy machine which on its own showing, was at great cost to it. c) The fact that other models of the CAT excavators functioned normally and effectively in the same environment and under the same conditions without any breakdown of their final drives. The court found further that the Appellant had acquired the machines for the purpose of alluvial mining which would necessitate them coming into contact with water, sand and gravel. The court opined that it was reasonable for any purchaser to expect that the Duo Cone Seal which was supposed to prevent the entry of sand and other contaminants into the final drives would be robust enough to prevent such entry. This however was not the case leading to the breakdown of the final drives which was the main propelling device of the said machines. The court therefore found that the Respondent was in breach of its implied obligations under the sale agreement entered with the Appellant by reason of: a) Its delivery to the Plaintiff of the 329 DL model excavators which were unfit for the purpose for which they were bought. b) Its failure to correct the latent defects which impaired the utility or effectiveness of the said excavators for the purposes of alluvial mining The court however found that the Appellant had not been able to establish in its evidence that it was entitled to the amount of Two Million, Two Hundred and Seventy-Six Thousand, Eight Hundred and Twenty United States Dollars ($2,276,820) which it claimed as representing the total loss of revenue for 834 working days that the said machines were down. The court therefore refused to award the Appellant any money under this claim. Furthermore, the trial court held that the Appellant had failed to lead satisfactory evidence in its claim for special damages. It quoted with approval Lord Macnaghten in STROMS BRUKS AKTIE BOLAG & ORS v. HUTCHINSON (1905) AC 515 @525 thus: “general damages …. are such as the law will presume to be the direct natural or probable consequence of the action complained of. “Special damages” on the other hand are such as the law will not infer from the nature of the act. They do not follow in the ordinary cause. They are exceptional in character and therefore must be claimed specially and proved strictly.” The court therefore stated: I must say that the Plaintiff presented a rather poor case in respect of its claim for special damages. Firstly, it is the case of Plaintiff that the Defendant’s breach made it impossible for them to meet its loan obligation on schedule. This, they say, led to a restructuring of the facility, which in turn resulted in the payment of additional interest totaling Eight Hundred and Forty-Nine Thousand, Three Hundred and Thirty Ghana Cedis and fifty- eight pesewas (GH¢849,330.00). The court also made a finding from the evidence that the Appellant had not been able to tell the court who had initiated the alleged restructuring of the loan sourced from Stanbic Bank; whether it was at the Appellant’s instance or at the Bank’s instance. The statements presented in evidence, were also found to be neither on the bank’s letter head nor signed by the bank’s representative. The court found the evidence not to be up to the legal standard required for proving special damages. The claim under this head, was accordingly dismissed. The court in conclusion stated: a) I declare that the Defendant is in breach of its implied obligations under the sale agreement entered into with Plaintiff by reason of its sale and delivery of CAT excavator machinery with serial numbers DJF00866, DJF00755, DJF00864, DJF00867, DJF01072, MNB01283, DJF00850 and DJF00853 to Plaintiff which machinery have been found to contain a latent defect in their final drives and/or not fit for the purpose for which they are required. b) I award Plaintiff General Damages of Five Hundred Thousand Ghana Cedis (GH¢500,000.00). c) Costs of Twenty-Five Thousand Ghana Cedis (GH¢25,000.00) awarded in favour of the Plaintiff. Aggrieved by this decision, the Appellant has filed a Notice of Appeal which contains the following grounds of Appeal: a. That the judgment is against the weight of the evidence. b. That the learned High Court judge erred when she proceeded to dismiss the claim of the Appellant for loss of revenue that would have accrued to the Appellant for the use of the CAT 329 DL Hydraulic Excavator machinery in the sum of Two Million, Two Hundred and Seventy-Six Thousand and Eight Hundred and Twenty United States Dollars (USD 2,276,820.00) contrary to the evidence on record. c. That the learned trial judge erred in law when it failed to consider other pieces of evidence available to her on record which supported Appellant’s claim for loss of revenue to the tune of Two Million, Two Hundred and Seventy-Six Thousand and Eight Hundred and Twenty United States Dollars (USD 2,276,820.00). d. That the learned trial judge erred in law when she failed to award any sum in compensation to the Appellant for loss of revenue after making a finding that 8 of the CAT 329 DL Hydraulic Excavator machinery supplied by the Respondent to the Appellant suffered from latent defects and were not fit for the purpose for which they were required. e. That the learned trial judge erred by failing to give due consideration to the documents and evidence of Appellant in support of its claim for special damages in respect of interests on the restructured loan facilities taken by the Appellant from Stanbic Bank Ghana Limited for purposes of acquiring the CAT 329 DL excavator machinery. f. That the learned trial judge yet again erred when she held the Appellant to a higher standard under the law contrary to the settled principle, being preponderance of probability by dismissing the claims by the Appellant for loss of revenue to the tune of Two Million, Two Hundred and Seventy-Six Thousand and Eight Hundred and Twenty United States Dollars (USD 2,276,820.00) and special damages of Eight Hundred and Forty-Nine Thousand, Three Hundred and Thirty Ghana Cedis when there is sufficient evidence on record to support these claims. g. That the learned trial judge erred in the exercise of her discretion in the award of costs. The reliefs sought in the Appeal were: a. A reversal of the part of the Judgment of the High Court, Commercial Division, Accra dated the 30th day of November 2018 which dismissed the Appellant’s claim for a declaration and an order for loss of revenue that would have accrued to the Appellant for the use of the CAT Excavator machinery in the sum of Two Million, Two Hundred and Seventy-Six Thousand and Eight Hundred and Twenty United States Dollars (USD 2,276,820.00). b. A reversal of the part of the Judgment of the High Court, Commercial Division, Accra dated the 30th day of November 2018 which dismissed the Appellant’s claim for a declaration and an order for special damages in respect of interests on the restructured loan facilities taken by the Appellant from Stanbic Bank Ghana Limited for purposes of acquiring the CAT 329 DL hydraulic excavator machinery. c. A reversal of the part of the judgment of the High Court, Commercial Division, Accra dated the 30th day of November 2018 which awarded costs of Twenty-Five Thousand Ghana Cedis (GH¢25,000.00). The Respondent also filed a Notice of Cross-Appeal against 1. The part of the Judgment dated 30th November, 2018 which declared the Respondent in breach of its implied obligations under the sale agreement entered into with the Appellant by reason of its sale and delivery of CAT excavator machinery with serial numbers DJF00866, DJF00755, DJF00864, DJF00867, DJF01072, MNB01283, DJF00850 and DJF00853 to Appellant which machinery have been found to contain a latent defect in their final drives and/or not fit for the purpose for which they are required. 2. The part of the Judgment dated 30th November, 2018 which dismissed the Respondent’s claim that Appellant’s wrong application and use of non- recommended oil for maintenance caused the final drives to fail. The grounds of cross-appeal or variation of judgment as referred to in CI 19 are listed as: a. That part of the Judgment is against the weight of the evidence. b. That the learned trial judge erred when she found the Respondent in breach of the implied obligation under the sale agreement entered into with the Appellant and therefore proceeded to award general damages against the Respondent. c. That the learned trial judge erred when she proceeded to dismiss the claim of the Respondent that the breakdown of the final drive was as a result of the abuse and wrong application of the CAT 329 DL Hydraulic Excavator by the Appellant. d. That the learned trial judge erred in the exercise of her discretion to award costs against the Respondent. The reliefs sought in the Cross-Appeal were: a. A declaration that the Respondent was not in breach of its implied obligations under the sale agreement entered into with the Appellant by reason of its sale and delivery of CAT excavator machinery with serial numbers DJF00866, DJF00755, DJF00864, DJF00867, DJF01072, MNB01283, DJF00850 and DJF00853 to Appellant which machinery have been found to contain a latent defect in their final drives and/or not fit for the purpose for which they are required. b. A reversal of the part of the Judgment dated 30th November, 2018 being the award of general damages of Five Hundred Thousand Ghana Cedis (GH¢500,000.00) against the Respondent. c. A reversal of the part of Judgment dated 30th November, 2018 being the award of costs of Twenty-Five Thousand Cedis (GH¢25,000.00) against the Respondent. Appellant’s Submissions Grounds (b) (c) and (d) were argued together. These are: b. That the learned High Court judge erred when she proceeded to dismiss the claim of the Appellant for loss of revenue that would have accrued to the Appellant for the use of the CAT 329 DL Hydraulic Excavator machinery in the sum of Two Million, Two Hundred and Seventy-Six Thousand and Eight Hundred and Twenty United States Dollars (USD 2,276,820.00) contrary to the evidence on record. c. That the learned trial judge erred in law when it failed to consider other pieces of evidence available to her on record which supported Appellant’s claim for loss of revenue to the tune of Two Million, Two Hundred and Seventy-Six Thousand and Eight Hundred and Twenty United States Dollars (USD 2,276,820.00). d. That the learned trial judge erred in law when she failed to award any sum in compensation to the Appellant for loss of revenue after making a finding that 8 of the CAT 329 DL Hydraulic Excavator machinery supplied by the Respondent to the Appellant suffered from latent defects and were not fit for the purpose for which they were required. It was the Appellant’s submissions that their claim for loss of revenue was a consequence of the supply of defective machines in breach of the parties’ agreement. It was argued on their behalf that they were able to lead evidence in proof of the fact that the equipment supplied to them was not fit for the purpose for which they were required; having suffered several breakdowns during the course of usage. It was their submission that once the trial court had made a finding that the machines had broken down in the course of usage, the trial judge should not have proceeded to dismiss the Appellant’s entire claim for loss of revenue. The Appellant argued that it was unable to meet its daily production revenue of $2,700.00 due to the defective machines and referred to its Exhibit L12. On the other hand, the Appellant argued, even if the trial judge rejected the exhibits, the evidence itself without more, corroborated the Appellant’s claim referring to the cases of West African Enterprises Ltd v. Western Hardwood Enterprises Ltd (1995- 96) 1 GLR 155 and Osei (substituted by Gillard) v. Korang (2013-14) 1 SCGLR 221 and Great Commission Church International v. Acolatse & Anor (2014) 75 GMJ 39. e. That the learned trial judge erred by failing to give due consideration to the documents and evidence of Appellant in support of its claim for special damages in respect of interests on the restructured loan facilities taken by the Appellant from Stanbic Bank Ghana Limited for purposes of acquiring the CAT 329 DL excavator machinery. The Appellant said it had pleaded in its Statement of Claim at paragraph 25 that due to the breakdown of the machines due to latent defects, it was unable to pay its loan obligation as scheduled. The loan therefore needed to be restructured and this attracted an additional interest in the sums of GH¢56,269.73, GH¢85,248.19, GH¢231,270.68, GH¢232,018.71, GH¢104,141.10, GH¢7.768.28, GH¢63,184.38 and GH¢69,429.51 amounting to a total of GH¢849,330.58. They argued that the trial judge had come to the conclusion at p. 900 of the ROA stating: The pertinent question is whether the Defendant could have reasonably foreseen that any impairment in the functionality of the machines would result in losses to the Plaintiff. It is my considered opinion that whether or not the Plaintiff suffered losses, the Defendant ought to have known that every loan facility comes with terms which invariably includes the payment of interest. Therefore, the Appellant argued, it was contradictory in terms for the same judge to hold that the Appellant had failed to lead evidence to explain why Exhibit L did not reflect the outstanding balance or indicate the rescheduling. They argued that the trial court did not properly consider the Exhibit L series in arriving at its conclusion. That the court was wrong in rejecting the documents on the basis that they were not on a bank’s letter head. They argued also that the documents were computer generated and that the Respondents did not object to the tendering of same. They relied on Justice Brobbey’s book, Essentials of the Ghana Law of Evidence when in discussing Section 137, the learned jurist posited thus: Authentication by admission: section 137 Where the witness or party does not oppose the admissibility of the object, it may be presumed that he has admitted it. An admission presupposes that the genuiness of the object is not disputed. Admission therefore facilitates the authentication of an object. They contended that to raise the issue of authenticity where there had been no objection to same denied the Appellant to address the court on the issue and occasioned a miscarriage of justice to them. They therefore invited the Appellate Court to adopt the position of the Supreme Court in Kusi and Kusi v. Bonsu (2010) SCGLR 60 where Wood CJ reasoned that where there was no dispute regarding the authenticity of documents sought to be tendered at a trial then no issues are joined and there was no obligation for the tenderer of those documents to provide evidence of their authenticity. f. That the learned trial judge yet again erred when she held the Appellant to a higher standard under the law contrary to the settled principle, being preponderance of probability by dismissing the claims by the Appellant for loss of revenue to the tune of Two Million, Two Hundred and Seventy-Six Thousand and Eight Hundred and Twenty United States Dollars (USD 2,276,820.00) and special damages of Eight Hundred and Forty-Nine Thousand, Three Hundred and Thirty Ghana Cedis when there is sufficient evidence on record to support these claims. g. That the learned trial judge erred in the exercise of her discretion in the award of costs. It was submitted that the burden of proof on the Appellant was nothing more than proof on the balance of probabilities. In Sagoe and Others v. Social Security and National Insurance Trust (SSNIT) (2012) 2 GLR 1093, this was defined as “weightier or superior evidence”. It was their submission that given the repertoire of evidence they presented at the trial, the court ought to have found in their favour. In their view, their claim for special damages was amply proven in respect of the Exhibit L, M and N series. They therefore contended that there were several pieces of evidence that the trial court did not take into account when arriving at its decision and thus had occasioned them grave injustice. They referred to Order 74 on the awards of costs and submitted that having regards to the amount involved as endorsed on the writ of summons, coupled with reasonable expenses and court fees, the amount awarded as costs was woefully inadequate to compensate the Appellant for its trouble. They referred to Bank of Ghana v. Nyarko (1973) 2 GLR 265 at holding (2) where it was held: Although the award of costs is discretionary it must not only reflect the result of the suit but must also bear a reasonable relation to the amount of work that the preparation and conduct of the suit must have involved. It was their submission that the costs of GH¢50,000.00 should be enhanced to reflect the circumstances of the case. Respondent’s Submissions The Respondent argued that the main issues to be determined were whether or not the failure of the final drives was caused by latent defects or whether their constant breakdown was a result of Appellant’s misapplication of the 329 DL machines. It was their contention that it was expected that the trial court would evaluate the allegation of latent defect by the Appellant as well as the Respondent’s allegation of misuse and misapplication of the 329 DL excavator machine. The trial judge, they argued, failed to consider their case as the Appellant had not been able to prove their claim that: “the CAT 329 hydraulic excavator was not manufactured and tested for a precise fit, consistent quality and heat treated for durability and long life in their application guaranteeing an average life span of 20,000-25,000 hours.” It was their contention that this was an emphatic statement which needed to be proven with the necessary documentary and expert evidence but this was not done. It was their contention also that at the time the final drives broke down, the Appellant had taken over the preventive maintenance of the machines contrary to their claim in paragraph 21 (d) of the Statement of Claim that: “greater part of the time of failure/breakdown of these final drives occurred when preventive maintenances on the machine were exclusively carried out by the Defendant.” It was their case that this was lost on the trial judge which led her to hold that the Respondent breached the implied responsibility of ensuring that the machines had no latent defect. Accordingly, the court disabled itself from establishing that the safety and longevity of a machine was dependent on the quality and application and care. They therefore took issue with the court’s finding that: It appears to be the contention of Counsel for the Defendant in his written address that, having functioned satisfactorily beyond the warranty period, this court ought to find that the said machines were fit for purpose. I however beg to differ. This is because, even though no proper evidence was led by the Plaintiff to substantiate its claims that an excavator is expected to last between 20,000 and 25,000 hours of usage, I think it should be reasonable for one to expect a machine of that nature to endure for a considerable period of time. It was their contention that the court should have found that the machine could not be expected to endure for a considerable period of time when it was wrongly operated and blatantly abused. They referred to Griffiths v. Peter Conway Ltd (1939) I All ER 685 CA where a plaintiff purchased a specially made Harris tweed coat from the defendants who were retail traders. After a period of wearing the coat, she developed dermatitis. Her claim for damages based on the goods not being fit for purpose was dismissed because it was found as a fact that her skin was abnormally sensitive and there was nothing in the cloth which would have affected the skin of a normal person. The court held that the Sale of Goods Act 1893, section 14 did not apply in the present case as when was being dealt with here was something abnormal which no seller would assume to exist. It was their argument that there was no way the Respondent could assume that the Appellant after spending so much to acquire the machines would abuse, misapply and not care for the machines. Consequently, no obligation could be imposed on the Respondent. They contended further that on the Credit Application form the Appellant filled out, they described their main activity as Mining and Mining Support Service without any details. However, under cross examination, Appellant’s representative had specifically described their mining as alluvial mining which posed different challenges from laterite and hard rock mining. They referred to the case of Slater and Others v. Finning Ltd (1996) 3 All ER 398 HL where it was held that: Although s 14 (3) of the 1979 Act imposed a rule of caveat venditor on the seller of goods, if the buyer failed to make known that the goods were to be used for other than their normal purpose, the extent to which the seller’s obligation under the implied condition as to fitness for purpose was to ensure that the goods were fit for the purpose for which they would ordinarily be used. Accordingly, where a buyer purchased goods from a seller who dealt in goods of that description there was no breach of the implied condition there was no breach of the implied condition of fitness where the failure of the goods to meet the intended purpose arose from an abnormal feature or idiosyncrasy, not made known to the seller, in the buyer, irrespective of whether or not the buyer was himself aware of the abnormal feature or idiosyncrasy. The respondents in the instant case were entitled to assume that the camshafts would be used in a normal engine in an ordinary vessel. It was therefore, Respondent’s argument that had the Appellant indicated on its Credit Application Form that it was engaged in alluvial mining rather than just mining simpliciter, the Respondent would have proffered the appropriate safety recommendations for the efficient operation of the 329 DL excavator machine. The Respondent also referred the court to the case of Djin v. Musah (2007-2008) 1 SCGLR 686 @ 691 in arguing that when an appellant complained that a judgment was against the weight of evidence, he implied that there were certain pieces of evidence on the record which if applied in his favour, could have changed the decision in his favour or that certain pieces of evidence have been wrongly applied against him. They listed certain abuses which the trial judge failed to consider: Non-use of recommended Oil: it was their contention that the recommended oil was only used when they were responsible for maintenance of the machines. This was however not the case when the Appellant took over maintenance of said machines. Abuse of Machine: it was contended that the cross-examination of PW2 revealed that the Appellant was in the habit of tracking the excavator daily for 2.3 kilometers and back making a total of 4.6 kilometers daily as well as the numerous abuses and misapplication of the machines. Their use of the machine had the tendency to create a gap between the carriers and gears thereby causing sand to get into the machines. They said their exhibit 9 series which showed that workmen were forced to resort to the use of sachet water to clean portions of the track just to access a nut were clear evidence of the abuse of the machine. They also argued that the use of the machine by using the bucket to track it uphill, tracking it over long distances to refuel, not washing the mud on the tracks and not using the manufacturer’s recommended oil were acts which should have prevented the trial judge from holding that the Respondent was in breach of section 55 of the Sale of Goods Act. It was also its contention that the Appellant had failed to prove its loss of revenue during the period the final drive failures. They also submitted that since there was no proof led for the claim of special damages, the Appellant’s claim on that head should also fail. They referred the court to Chahin & Sons v. Epope Printing Press (1963) 1 GLR 163 where the court had held that where special damages are claimed, it is not enough for the plaintiff to write down the particulars, they have to prove them. On the issue of costs, the Respondent was of the view that the award of costs against them was against public policy as the Appellant was the cause of its own predicament. It would therefore be just that the parties be made to bear their own costs referring to Acquah v. Oman Ghana Trust Holding Ltd (1984-86) GLR 157 where the court held as follows: On principle of public policy nobody should be allowed to take advantage of his own wrong. If in truth, O made the alterations or improvements which they alleged, they were in breach of their covenant in the lease which obliged them to have obtained the prior consent in writing of A. And since in counterclaiming for the sum of ¢352,000.00 they were using their own breach of covenant as the foundation of their right to damages against A, that claim should have been dismissed. Since the Appellant had caused the final drives to fail due to their misuse and abuse of the machines, they were not entitled to costs. Also, the Appellant’s conduct as an investor as prescribed in the Minerals and Mining (Health, Safety and Technical) Regulations, 2012, LI 2182 fell below the standard of integrity expected of a prudent investor. Their case accordingly had to fail. In its Reply, the Appellant contended that the Respondent in its cross-appeal had failed to prove that the judgment against them was against the weight of evidence. They argued further that the Respondent’s resort to the Minerals and Mining Regulations was attempting to set a new case through the cross-appeal as these were neither issues set down for trial nor did they emanate from the pleadings, trial or judgment. The question this court must ask itself is: When can findings be interfered with by an appellate court? The circumstances are as follows: 1. When the trial court’s findings are not supported by the evidence or where the reasons in support of the findings are unsatisfactory 2. Where there has been an improper application of the principle of evidence; or where the trial court has failed to draw an irresistible conclusion from the evidence. 3. Where the findings are based on the wrong proposition of law 4. Where the findings are inconsistent with crucial documentary evidence on record. See Gregory v. Tandoh & Hanson {2010} SCGLR 971 and Koglex (no. 2) v. Field (2000) SCGLR 175. As stated elsewhere in the judgment, the trial court distilled the issues into a fundamental one which was whether or not the persistent breakdown of the 329 DL model was due to a latent defect or to the misapplication and/or failure of the Appellant to observe proper maintenance culture? The Appellant by its writ had asked among other reliefs for a declaration that the Respondent had breached the parties’ agreement by failing to fulfil its obligations under the contract by delivery of CAT Excavator Machines with serial numbers DJF00866, DJF00755, DJF00864, DJF00867, DJF01072, MNB01283, DJF00850 and DJF00853. (See pp 1-3 of the Record of Appeal {ROA}). The particulars were given in paragraph 7 of its Statement of Claim as follows: (a) The final drives on the CAT 329 DL hydraulic excavator machinery were latently defective, the machines ceased to operate because the final drive broke down at an average of 4000-5000 hours instead of the industry standard operation time of between 20,000-25,000 hours. (b) The quality and durability of the seal on the final drive called the Duo Cone Seal, which is supposed to prevent the entry of contaminants, was defective and thus, this caused the entry of sand into the final drive to occur too easily. In paragraph 8 of its Statement of Defence (found at p 13 of the ROA), the Respondent stated: Moreover, the Defendant avers that the Duo Cone seal of the CAT 329 DL is of acceptable quality except that the Plaintiff negligently and constantly operated the machine with the tracks submerged in mud, grit and water including: a. Servicing machines with the wrong and incompatible oils after 2000 hours life span when the Plaintiff took over the servicing of the machines, thus causing the load ring and metal sealing ring to degrade since improper oils are incompatible with the e astomers to cause long term depreciation. b. Prolonged use of the machine tracks submerged in mixed mud and water causing metal seal failure due to galling from inadequate viscosity and lubrication flow. c. Causing mud packing to occur by operating equipment with the tracks in a submerged muddy condition where the seals were continuously exposed to dirt and mud, such that the cavity between the seal housing seal ring and load ring got packed with debris and eventually pushing the load ring out of position, d. Using the boom/stick/bucket of the CAT 329 DL excavator machine to aid it in climbing steep slopes and caused internal pressure spikes, misalignment and tolerance build up and wear in the final drive as well as causing centrifuge lubricant away from the seal face. e. Refusing to follow recommended safety measures. An appeal as indicated by Rule 8(1) of the Court of Appeal Rules CI 19, is by way of rehearing. What this provision seeks to say is that the appellate court will deal with the matter as if it was hearing the matter at first instance. See the cases of Mamudu Wangara v. Gyato Wangara (1982-83) GLR 639 @ 655 CA; Ansu-Agyei v. Fimah (1993-94) 1 GLR 299 at 305-306 SC and Praka v. Ketewa (1964) GLR 423 @ 426, SC. In rehearing the matter, the appellate court is required to examine the whole record of appeal, taking into account all the evidence, oral and documentary, to satisfy itself that the judgment is amply supported by the evidence on record, upon the preponderance of the probabilities. See Koglex Ltd (No. 2) v. Field (2000) SCGLR 175 @ 184; Tuakwa v. Bosom (2001-2002) SCGLR 61 @ 65 and Ackah v. Pergah Transport Ltd (2010) SCGLR 729. In this regard, the appellate court is enjoined to put itself in place of the trial court and evaluate the evidence. In so doing, it could make inferences from the facts on record and either affirm the judgment or interfere with the judgment where it deems fit. There is no dispute that there was an agreement between the parties for the sale and supply of CAT Excavator Machines with serial numbers DJF00866, DJF00755, DJF00864, DJF00867, DJF01072, MNB01283, DJF00850 and DJF00853. From the evidence given by the Appellant’s Operations Manager (see page 142 of the ROA), there were problems with the final drives of the CAT excavator machines. This evidence is supported by the exhibit C series found at pp. 158-177 of the ROA. PW1 who described himself as the Head Mechanic/Engineer of the Appellant Company also told the court that he though the machines were regularly maintained according to the requirements of the vendor the final drives were regularly faulty. The evidence was further corroborated by PW2’s and PW3’s evidence-in-chief found at pp. 106-108 and 669 respectively of the ROA. PW2 being the Managing Director of Earth Movers Company Ltd and PW3 being the Managing Director of Bentess Enterprise testified that their outfits had been trading with the Respondent for a number of years. Their companies had purchased CAT 320 DL, CAT 323 DL and CAT 329 DL models from the Respondent. In similar fashion to the Appellant, the CAT 329 DL models purchased had had problems with their final drives. It was their evidence that they had never had problems with the other models purchased. In cross-examination the following was elicited from PW2 at p 738 of the ROA: Q: You have come to this court in support of the Plaintiff but fail to fight your own cause when you allege problems that have been happening to your final drive. A: Maybe I did not have the might to drag them to court. Q: And you have said that the machine which sunk was not repaired to your satisfaction, is that correct? A: Yes, my lord, our mechanics pointed out many issues to resolve after they have declared the machine fully repaired. Q: So, I put it to you that you are here as a busybody trying to seek revenge on the Defendant Company not repairing your machine to your satisfaction. A: This is totally untrue. What we printed out they tried resolving. When it went to the site and it still has problems, we called them, they came and fixed it and we still deal with them, we still relate to them and we still buy from them. So, I have no revenge anywhere. There is evidence on record that the Respondent was aware that the Appellant was involved in alluvia mining. In cross-examination the following question was put to him at p. 766 of the ROA: Q: You can confirm to this court that the nature of Plaintiff’s business for which this acquisition was made was for alluvia mining? A: I confirm. Q: Can you tell the court at what point in time did the Defendant become aware of the Plaintiff’s business? A: It was around the time as the first equipment was sold. Furthermore, the Exhibit H, J and K series (found at pp. 462-491) are correspondence between the parties evidencing that there were problems with the hard drives. The witness also in cross examination at p 777 of the ROA admitted that experts from Caterpillar International were at the Appellant’s mining site to investigate the final drive failure and that problems occurred with the final drives prior to the experts’ arrival and also occurred after the experts’ visit. It is also in evidence that the Respondent provided the Appellant with a courtesy machine following the breakdown of the machines which had been supplied. The evidence substantiates the trial judge’s findings that apart from the corroborative evidence of PW1, PW2 and PW3 other independent evidence corroborated the Appellant’s case. These were: a. The Respondent did change all the Duo Cone seals in all the final drives of the 329 DL model including those that had not developed faults, at its own expense even after the warranty period. b. The Respondent provided the Appellant with a free courtesy machine which it claimed cost about $75,000.00. c. The fact that other models of CAT excavators functioned normally and effectively in the same environment and under the same conditions without any breakdown in their final drives. d. The fact that the Respondent had discontinued the manufacture of the CAT 329 DL model. Though the Respondent contended that no other customers had complained about the defects in the CAT 329 DL model, they did not call any of these customers as witnesses. 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. See Ackah v. Pergah Transport Ltd (2010) SCGLR 728. Section 7(1) of the Evidence Act, 1975 NRCD 323 has it thus: Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in a material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence. Moreover, there are interesting nuggets in Exhibit B dated Friday, January 30, 2015 found at p. 157 of the ROA. It is reproduced below for its full force and effect: Good evening Emad, Thanks for the response and also the reminder on your correct email address. I am particularly grateful for the assurance of getting the machine fully operational by the end of next week. However, this would mean that the machine would be grounded for a total of 37 days. To put the gravity of the situation in perspective, the machine being non-operational for these number of days will make us relinquish the opportunity of producing 1600 grams of gold. This translates into a net position of about GH¢150,000.00 i.e. less overhead and operational costs. In our last meeting with you, we mentioned categorically that our business has managed the unavailability of this machine thus far; the reason why we never requested for a courtesy machine all this while. But we also stated that we can only forbear its unavailability for a month and any day beyond that will render the situation injurious to our business. The delay in fixing the machine has primarily been from your end and I therefore appeal you reconsider our request for a courtesy machine. I fully understand that there is no provision for a courtesy machine in Caterpillar or Mantrac’s policy. But becoming conversant with the loss figures I enumerated earlier and the amount of damage it can possibly cause to a growing business like ours, I believe you will agree with us on the need for an immediate remedy of a courtesy machine. Mantrac has been a worthy partner of Elite Minerals and we are grateful for that. And we also recognize that such exceptional decisions to support us shall further deepen our relationship and provide for a win-win situation. Many thanks in advance for reconsidering our request for an immediate remedy of a courtesy machine. Exhibit J3 at p. 470 of the ROA states: I find it imperative to bring your attention to the damage of the final drive of yet another 329 excavator at our Osino site. This happened on 1st April, 2015. and the courtesy machine was delivered on 14th April, 2015…. We are still reeling from the losses we incurred in the first incidence of final drive damage, making it almost impossible for us to condone another long delay in fixing this recent damage. In this regard, we might have to request for a courtesy machine, or alternatively, you will have to provide a complete final drive from a machine in the general workshop as we wait for the back order … or better still provide us with one from any of the 329s on display. More importantly, we are now particularly concerned about the life span of these machines, as the breakdown of such a major component as a final drive has occurred in two machines within a spate of 2 months; for machines that are barely a year old. As you are no doubt aware, these machines need to be working effectively for a minimum of 3 years to enable us discharge our financial obligations to Stanbic and thus these damages are becoming the source of so much anguish and discomfort for us. It is apparent that the Respondent in its own policies were not in the habit of providing courtesy machines for its customers. They made an exception in this case most probably because it felt responsible for the Appellant’s predicament in the face of the failure of the equipment supplied. The trial court also found that the Appellant acquired the excavators for the purpose of alluvia mining. It was its finding that the excavators delivered to the Appellant were unfit for the purpose for which they had been purchased as there was a failure in the final drives which rendered the machines unfit for use. We therefore endorse the trial judge’s findings that the Respondent was in breach of its implied obligations under the sale agreement entered into with the Appellant. Accordingly, the declaration that the Respondent seeks in its cross-appeal that it was not in breach of its in breach of its implied obligations under the sale agreement entered into with the Appellant by reason of its sale and delivery of CAT excavator machinery with serial numbers DJF00866, DJF00755, DJF00864, DJF00867, DJF01072, MNB01283, DJF00850 and DJF00853 is dismissed. Now has the Appellant been able to establish that it is entitled to the sum of Two Million, Two Hundred and Seventy-Six Thousand, Eight Hundred and Twenty United States Dollars from the Respondent? It testified through its representative that this amount represented the total loss of revenue it incurred for the 834 days that the said machines were not operational. At p. 692 of the ROA the following ensued in cross-examination of said representative: Q: You have exhibited to this court in this case, Exhibit M series. And these are in support of your claim of income, not so? A: Yes, my lady. Q: Can you show this court how the income of two thousand seven hundred and thirty dollars was arrived at? A: Reference Exhibit L12 shows us the total production realized between January 2015 and December 2015 which stood at One hundred and seventy-six thousand and seven hundred and fifty-two point one zero grams. On the next column is the number of shifts that produces the total weight mentioned earlier. And the total number of shifts is one thousand five hundred and six. The third column shows the average weight produced per shift which stands at one hundred and ten point seven grams. The fourth column using the model of three excavators per shift gives us thirty-six point nine-one grams as the production per excavator. We have two shifts in one day. Day and night so the thirty-six point nine-one grams per excavator multiplied by two will give the production per excavator per day. The price per gram is thirty-six point nine-eight US dollars. If you multiply the daily production per excavator by the price per gram you arrive at two thousand seven hundred and thirty. Q: So, you would agree that your income figure of two thousand seven hundred and thirty dollars per day is based on only one-year production figures. A: My lady, I agree. Q: You also agree that the prices of gold fluctuates from year to year. A: I disagree. It does not fluctuate from year to year, it fluctuates daily. Q: I put it to you that the day to day fluctuations in a particular year make up the sum total of fluctuation in that year. A: I do not understand the question. Q: I am saying that the daily fluctuations you made mention of within the year gives a sum total of the fluctuations of that year. A: I disagree. The fluctuations could be positive or negative. And in the circumstances the best way is to find a middle point or average price for the year. Q: Your income figure you showed to the court did not indicate any such middle point. A: I disagree. Q: You also agree with me that production is also affected by climatic conditions. A: I disagree. Q: I put it to you that in all mining sites rainfall affects mining activities in the pit. A: My lady, I disagree. I will speak to the situation at my mining site and say that we have put measures in place to produce even when it is raining. Also, from the evidence, the Respondent provided the Appellant with one courtesy machine. This is found at pp. 693-694 of the ROA: Q: You would agree with me that the Defendant went the extra mile to assist you resolve the issues with the excavators’ breakdown. A: The issue of the extra mile is very subjective. Q: You would agree with me that the Defendant in offering you a courtesy machine was an exercise of going the extra mile. A: I disagree. At the time that one courtesy machine was offered we had six of our machines down as a result of the problems we had with the final drive. The evidence indicates that the first machine broke down on 29th December, 2014. (See Exhibit C7 @ p. 172 of the ROA). As at the time Exhibit B was written on 30th January, 2015 (See p. 157 of the ROA) and the assurances given that it would be fixed the following week, the machine would have been down for 37 days. By the Appellant’s evidence, the machine was eventually fixed by 19th February, 2015 after having been grounded for 51 days. The 2nd machine was down on 1st April, 2015 (see pp. 162 and 470 of the ROA). Having found that the Respondent bore responsibility for the latent defects in the machines, the Appellant was entitled to loss of earnings that would have accrued to it had the machines been fit for purpose in the first instance. The price per gram of gold was given at $36.98. Exhibit L12 found at p. 527 of the ROA shows the Expected Production for the year as 166688.52 kg. The actual production was 166,752.10 leaving a shortfall of 63.58 g. The reality of the situation is that there could be either a shortfall or an excess in the expected output. The Appellant’s claims are based on the 834 days that the machines were grounded. The daily output was pegged at $2,370 per day. That would be the gross figure. To arrive at a just assessment of what the Appellant is entitled to have in their hands, the cost of the courtesy machine would have to be factored into the equation. The money the Appellant would be entitled to would have to be less the cost of the courtesy machine. It would also have to be less the tax component, wages and salaries and other sundry expenses. We would therefore deduct a quarter of the amount claimed to take care of these expenses and allocate the remaining three-quarters to the Appellant. A quarter of the amount of Two Million, Two Hundred and Seventy-Six Thousand and Eight Hundred and Twenty United States Dollars (US$2,276,820.00) works out to $569,205. When this deducted from the sum of US$2,276,820.00, the total of One Million, Seven Hundred and Seven, Six Hundred and Fifteen United States Dollars ($1,707,615.00) would be realized. This brings us to whether the Appellant is entitled to special damages which they have claimed due to the restructuring of the facility taken to finance the acquisition of the 329 DL excavators? What was the liability of the Respondent if any, in respect of the rescheduling of the Stanbic Loan? The Appellant has sued for special damages totalling GH¢849,330.00. It has particularized these special damages as: a. Machine with serial no. DJF0086 GH¢56,269.73 b. Machine with serial no. DJF0075 GH¢85,248.19 c. Machine with serial no. DJF00864 GH¢231,270.68 d. Machine with serial no. DJF00867 GH¢232,018.71 e. Machine with serial no. DJF01072 GH¢104,141.10 f. Machine with serial no. MNB01283 GH¢7,768.28 g. Machine with serial no. DJF00850 GH¢63,184.38 h. Machine with serial no. DJF00853 GH¢69,429.51 That the Appellant had to reschedule its loan with its financiers is not in doubt. In cross-examination found at pp 721A-N, the following was elicited from the Appellant: Q: Mr. Gavie you have indicated to this court that because of the problems you had with the equipment you had to reschedule your loan payment not so? A: Yes. Q: Can you please look at Exhibit L series, you will agree that the Exhibit L series are made up of two set of the same information about a deal, not so? A: Yes. Q: So, can you tell this court when deal No. 3 was rescheduled. A: The rescheduling was done in January, 2016. Q: And you will agree with me that the booking date for the loan deal No. 3 is 24th January, 2014 A: Yes. Q: And so, you continued to pay diligently until January, 2016 not so. A: Not entirely true. We tried as much as possibly to pay diligently until the effects of the damaged machines started having effects on our finances and operation. So, from time to time we ask for deferments but we diligently apply ourselves to pay our obligations despite the difficulties. Exhibit A dated 12th April, 2016 provides the details of the equipment financed by Stanbic and purchased by the Appellant from the Respondent. (see p. 152 of the ROA). These equipment tally with the particulars given in the claim for special damages. The exhibit C and D series found at pages 158-202 gives the details of the broken-down machines and the remedial actions taken. That the machines were indeed financed by Stanbic Bank Ltd and had broken down between January- December 2015 is not in doubt. It is also apparent from the evidence that the Appellant had to seek a rescheduling of its debt with the Stanbic Bank. At page 721 of the ROA is a letter dated 10th August, 2015 captioned REQUEST OF DEFERRAL OF REPAYMENT ON VAF. The contents are: This letter is to regrettably inform you that we are unable to remit payment on our loan account this month. I refer to our VAF facility with a monthly repayment in the amount of GH¢253,084.95 (Two hundred and fifty-three thousand, and eighty-four cedis) and next due by the 15th August, 2015. Lamentably, we have recently experienced a spate of breakdowns of our Caterpillar 329 DL excavators which has culminated in a drastic reduction of our production levels. Presently, 5 (five) of our excavators has been grounded resulting in production at 40% capacity. However, Mantrac Ghana Ltd, responsible for maintenance of our equipment, has dispatched Engineers to site for defect inspection and orders have been placed for parts required to repair the machines. Our expectation is that full capacity operation will resume by the second week of September, 2015 with expectation based on assurances from Mantrac Ghana Ltd. In view of the above, we would greatly appreciate if you could defer our repayment on the facility for this month so we can maintain sufficient working capital to meet our operational requirements and more especially enable us purchase the parts required to get the machines back on track. By extension, the repayment due originally for next month shall be made in the subsequent month. The machines broke down due to latent defects in them. This meant, the Appellant could not meet its repayments as originally anticipated. The multiplier effect of this would have resulted in interest payments for their inability to meet their scheduled payments. The inability to pay as scheduled resulted from the latent defects, which if not present would have kept the Appellant on schedule. This is a consequence of the Respondent’s breach of its obligations under the contract. The Appellant should not be made to bear the brunt of the Respondent’s said breach. Since the extra interest payments was as a result of their actions or inactions, they should in interest of fairness be responsible for reimbursing the Appellant for this extra interest payments. Section 13 of the Sale of Goods Act, 1962 Act 137 which deals with the Quality and Fitness of Goods states: (1) Subject to the provisions of this Act and any other enactment there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale except as follows— (b) Where the goods are of a description which are supplied by the seller in the course of his business and the buyer expressly or by implication makes known the purpose for which the goods are required there is an implied condition that the goods are reasonably fit for that purpose. The correct proposition of the law is that a person who makes an averment or assertion, which is denied by his opponent has the burden to establish that his averment or assertion is true. This burden is not discharged unless the person leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. See Zabrama v. Segbedzi (1991) 2 GLR 221 CA and Continental Plastics Ltd v. IMC Industries (2009) SCGLR 298 @ 306-307. The Appellant therefore, in addition to pleading and particularizing its claim for special damages had to prove same. Special Damages are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character and therefore, they must be claimed specially and proved strictly. See Andreas Bschor GMBH & Co v. B. W. C. Ltd (2008) 4 GMJ 203. At p. 27 of the judgment, (see p. 900) the trial court held as follows: … I am in no doubt that the Plaintiff would have suffered some loss as a result of the constant breakdowns of the said excavators regardless of whether it made profits in 2015 or not. It is my considered opinion that whether or not the Plaintiff suffered losses, the Defendant knew or ought to know that every loan facility come with terms that invariably includes the payment of interest. It therefore cannot deny knowledge that the Plaintiff was to pay interest on the said loan even if it had no knowledge of the interest rate applicable on the said facility. The court however rejected the Appellant’s evidence on special damages as being unsatisfactory. It is in our opinion that the latent defects led to the breakdown of the machines. It followed therefore, that the Appellant was not able in view of the breakdowns in the machinery to generate enough income by working with the machines, to pay off the facility as scheduled. It had to pay interest on the delayed payments through no fault of its own. It produced its statements to indicate these payments and it is only fair that the Respondent be made to make good on these payments that the Appellant would not have had to pay had the excavators been fit for purpose in the first place. The Appellant has particularized sums amounting to GH¢849,330.00. Did the Appellant make the above expenditure as it claims? Was there corroborative evidence of the amount of GH¢849,330.00? Since these claims fall under the heading of Special Damages, they are losses as the law will presume to be the consequence of the Respondent’s acts, but depend at least, on the special circumstances of the case. They must therefore be explicitly claimed on the pleadings. See Tema Oil Refinery v. African Automobile Ltd (2011) 2 SCGLR 907 and Attorney General v. Faroe Atlantic Co Ltd (2005/2006) SCGLR 271. The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact (See Section 17(2) of the Evidence Act). This burden continues to shift depending on the nature of evidence adduced by the parties and their witnesses. The Exhibit L series tendered and accepted into evidence without objection, show the following payments made as follows: Deal No. 0007 Balance Outstanding as at 15/12/17 GH¢20,300.00 (see p. 501 of the ROA) Deal No. 0008 Balance Outstanding as at 15/08/18 GH¢17,020.43 (see p. 503 of the ROA) Deal No. 006 Balance Outstanding as at 15/08/18 GH¢17,582.00 (see p. 505 of the ROA) Deal No. 004 Balance Outstanding as at 23/08/17 GH¢404,358.04 (p. 506 of the ROA) Deal No. 003 Balance Outstanding as at 23/01/17 GH¢14,100.00 (see p. 508 of the ROA) Deal No. 005 Balance Outstanding as at 05/06/17 GH¢17,582.00 (see p. 512 of the ROA) Deal No. 009 Balance Outstanding as at 20/12/17 GH¢19,999.00 (see p. 520 of the ROA) Deal No. 0010 Balance Outstanding as at 3/12/17 GH¢19,999.00 (see p. 522 of the ROA) TOTAL GH¢530,940.47 The trial court commented on these exhibits as not being on the bank’s letter head and did not consider them in the judgment. Since these were documents tendered without objection, they will be evaluated in this judgment. See Justice Brobbey’s book, Essentials of the Ghana Law of Evidence when in discussing Section 137, the learned jurist posited thus: Authentication by admission: section 137 Where the witness or party does not oppose the admissibility of the object, it may be presumed that he has admitted it. An admission presupposes that the genuiness of the object is not disputed. Admission therefore facilitates the authentication of an object. In considering the Exhibit L series, the figures on them do not add up to the amount of GH¢849,330.00 as endorsed on the writ. It was for the Appellant to state its case and show with extreme particularity that they were entitled to the said amounts. In the case of Fosua & Adu-Poku v. Dufie (deceased) and Adu-Poku Mensah (2009) SCGLR 316, the court held that Section 11(4) of the Evidence Act, 1975 NRCD 323 put the obligation in civil proceedings of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. It was up to the Appellant to go further than to just list the expenditure it was thought it was entitled to without providing the accompanying documents and expect the court award them what they had asked for just on their say so only. See Chahin & Sons v. Epope Printing Press [1963] 1 G. L. R. 163. The Respondent has prayed for a reversal of the amount of GH¢500,000.00 in general damages awarded against it. What was required to put the Appellant in the position it would have been in would be sufficient money to compensate it for what it had lost. See the case of KLM v. Farmex (1989/90) 2 GLR 623 at 625. The classical case in this regard is Hadley v. Baxendale (1854) 9 Ex. 341. The facts of this case were that Hadley, a miller engaged Baxendale, a carrier to take a broken shaft to the manufactures to make him a new one. The Defendant delayed in delivering the shaft. The Plaintiff therefore sued the Defendant for loss of profit whilst the mill lay idle. The court dismissed the claim on the ground that there could have been a spare shaft. The fact that there was no spare shaft was neither in the contemplation nor in the actual knowledge of the Defendant nor would a reasonable man, under the circumstances, have known that there was no spare shaft. As the court stated: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as should be fairly and reasonably be considered as either arising naturally, i.e. according to the usual course of things, from such breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as a probable result of the breach of it. What would be the natural and probable consequence of this breach of contract to provide excavators fit for the purpose of alluvial mining? In Delmas Agency Ghana Ltd v. Food Distributors International Ltd (2007/2008) SCGLR 748, the court held that “general damages are such as the law would presume to be the natural and probable consequence of the Defendant’s act. It arises by inference of law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. On the measure of damages for breach of contract, the principle adopted by the courts was restitutio in integrum, i.e. if the plaintiff has suffered damage not too remote, he must, as far as money could do it, be restored to the position he would have been in had that particular damage not occurred. What was required to put the Plaintiff in the position it would have been in would be sufficient money to compensate it for what it had lost. In the case of Yungdon Industries Ltd v. Roro Service (2005/2006) SCGLR 816 the court held that general damages were such as the law would presume to be the natural or probable consequence of the Defendant’s act. It would arise by inference of law and therefore be unnecessary to be proved by evidence and might be averred generally. See also Nartey-Tokoli v. Volta Aluminium Company Ltd (1989.90) 2 GLR 341. In this case, the court has awarded GH¢500,000.00. In our considered opinion the loss such loss the Appellant incurred flowed naturally from the Respondent’s failure to provide robust equipment for the purpose of alluvial mining and the ensuing losses they should have contemplated that the Appellant would likely to suffer losses by their failure so to do. The Appellant has complained that the costs do not reflect the circumstances of the case. Costs are at the discretion of the court. It is provided for in Order 74 of the High Court Civil Procedure Rules, 2004 CI 47 thus: (3) Without prejudice to the powers and discretion of the Court, an award of cost shall ordinarily be designed to (a) compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made and (b) provide reasonable remuneration for the lawyer of that party in respect of work done by the lawyer. (4) In assessing the amount of costs to be awarded to any party, the Court may have regard to (a) the amount of expenses, including travel expenses, reasonably incurred by that party or that party's lawyer or both in relation to the proceedings; (b) the amount of court fees paid by that party or that party's lawyer in relation to the proceedings; (c) the length and complexity of the proceedings; (d) the conduct of the parties and their lawyers during the proceedings: and (e) any previous order as to costs made in the proceedings. (5) When the Court adjudges or orders any costs to be paid, the amount of the costs shall, if practicable, be summarily determined by the Court at the time of making the judgment or order, and shall be stated in the order. In Gatco v. Pharmadex (Ghana) Ltd (1999-2000) 2 GLR 262, the court referred to the guiding principles on the award of costs listed in the case of Erskine v. Erskine (1984-86) 1 GLR 249 @ 254: (1) The fact that a party has unduly delayed the trial by causing unnecessary adjournments: Guardian Assurance Co. Ltd v. Khayat Trading Store (1972) 2 GLR 48 CA (2) Costs should normally bear a relationship to the trial and its incidents and not to the measure of damages awarded. Since costs are in the discretion of the court and the law requires that such discretion should be exercised reasonably, it is wrong for a court to award costs on the basis of a so-called ten per cent of the damages awarded; Guardian Assurance Co. Ltd v. Khayat Trading Store (supra); (3) The fact that the point which forms the main basis of the judgment or decision was raised not by counsel but by the court: Asamoah v. Koufu (1958) 3 WALR 315; (4) Costs must neither be excessive nor ridiculously low but must be reasonable having regard to the circumstances of the case, e.g. the fact that the issues were simple and the trial took no considerable time and energy in its preparation and disposal; Bank of Ghana v. Nyarko (1973) 2 GLR 265, CA and Sasraku v. David (1959) GLR 7, CA (5) A party can, in the discretion of the court exercised judicially, that is to say by giving sufficient and good reasons, be deprived of his costs in exceptional cases, otherwise a successful party is always entitled to costs: London Welsh Estates Ltd v. Philip (1931) 100 LJKB 449 for instance if the court is satisfied that the conduct of the party has involved the defeated party unnecessarily in the expense of litigation; (6) Insolvency or impecuniosity of a defeated plaintiff is not a sufficient ground upon which a court can deprive a successful defendant of his costs, nor is the insolvency or impecuniosity of a defeated defendant a good ground for depriving a successful plaintiff of his costs: Amalgamated Press Ltd v. Independent Press Ltd (1960) GLR 113; and (7) Where each party is only partially successful, e.g. where a plaintiff is successful on his claim and the defendant is also successful on his counterclaim, costs are apportioned proportionately in terms of the issues and incidents in each action or where appropriate each party bears his own costs: Gariba v. Ibrahimah (1951) 13 WACA 171 What were the circumstances of the case which would have necessitated the award of costs higher than what the trial judge handed down? The Appellant did not say. The Respondent on the other hand wishes each party to bear its own costs. It is of the view that the Appellant was the author of its own misfortune. The trial court did not find so and neither do we. The Appellant has not proven that the trial court exercised its discretion wrongly when it awarded GH¢25,000.00 in costs. We would not interfere with the costs awarded. CONCLUSION We affirm the trial court’s judgment as follows: a) That the Respondent is in breach of its implied obligations under the sale agreement entered into with Appellant by reason of its sale and delivery of CAT excavator machinery with serial numbers DJF00866, DJF00755, DJF00864, DJF00867, DJF01072, MNB01283, DJF00850 and DJF00853 to Appellant which machinery have been found to contain a latent defect in their final drives and/or not fit for the purpose for which they are required. b) General Damages of Five Hundred Thousand Ghana Cedis (GH¢500,000.00) is awarded against the Respondent and in favour of the Appellant. c) Costs of Twenty-Five Thousand Ghana Cedis (GH¢25,000.00) is awarded against the Respondent and in favour of the Appellant. In addition, we make the following orders: 1. The Appellant is entitled to an amount of One Million, Seven Hundred and Seven, Six Hundred and Fifteen United States Dollars ($1,707,615.00) constituting loss of earnings. 2. The Appellant is further entitled to an amount of GH¢530,940.47 in special damages. 3. The Appellant’s Appeal is upheld in part, the Respondent’s Cross-Appeal is dismissed as lacking in merit. SGD JENNIFER A. DODOO (MRS) (JUSTICE OF APPEAL) SGD SENYO DZAMEFE (JUSTICE OF APPEAL) SGD P. BRIGHT MENSAH (JUSTICE OF APPEAL) I agree I also agree Counsel Rosenberg Owusu Adoku for Respondent Akwasi Gyima-Bota for Defendant 47