Reference to a statute in an appellate court, which statute was not urged on trial court, does not amount to departure.
Supreme Court, 28th January, 2015 (Civil Appeal: NO. J4/40/2013)
Coram: WOOD (MRS), CJ. (PRESIDING); ANSAH, JSC.; DOTSE, JSC.; BAFFOE- BONNIE, JSC.; AKAMBA, JSC.
The Defendant was found by the High Court, Accra (Commercial Division) to have breached a contract it had entered into with the Plaintiff. The subject matter of the contract was alumina, which was to be shipped from Brazil to the port of Tema. The Plaintiff sought against the Defendant General Damages, Special Damages, among others. The High Court refused to award Special Damages on the ground that sufficient evidence had not been adduced by the Plaintiff to warrant such an award. The High Court however, awarded nominal damages of GH¢25,000.00.
Dissatisfied with the decision of the High Court, the Plaintiff appealed to the Court of Appeal, Accra, which affirmed the decision of the High Court. On a further appeal to the Supreme Court, the Plaintiff abandoned all of its grounds of appeal save the one in respect of General Damages.
In arguing for an enhancement of the quantum of the General Damages affirmed by the Court of Appeal, the Plaintiff anchored its arguments on the Sale of Goods Act, 1962 (Act 137), especially, section 48 thereof. The Defendant, however, argued that the Plaintiff’s case in the Supreme Court amounted to a departure from its pleadings and arguments in the lower courts because the Sale of Goods Act was never considered by the Plaintiff in the lower court.
In dismissing the Plaintiff’s appeal and affirming the decision of the Court of Appeal, the Supreme Court rejected the ‘departure argument’ of the Defendant afore-mentioned as follows:
“The reference and reliance on the Sale of Goods Act, is a question of law. The Law is presumed to be in the bosom of the Judge, and it does not really matter whether the parties specifically made reference to the sale of Goods Act or not. The Court is presumed to apply any applicable law to a given set of facts.
For example, the transaction in the instant case between the parties even though not specifically mentioned, is one under section 1(1) of the Sale of Goods Act, which states that ‘Contract for the sale of goods is a contract by which the seller agrees to transfer the property in the goods to the buyer for a consideration called the price, consisting wholly or partly of money.’
Applying the above definition to the contract that was deemed to have been entered into between the parties herein in or about 20th August, 2008 is one covered by the definition in section 1 (1) of the Sale of Goods Act.
Thus, once the facts of the case support the legal position stated in the Sale of Goods Act, it is incumbent and imperative for the courts to apply such a law. As a matter of fact, being an issue, regulated by substantive law, means that it cannot be ignored once the facts relate to the given situation.”
Relying on the rule in Hadley v. Baxendale, the Supreme Court further held that the computation of damages under Section 48 of the Sale of Goods Act can either be general or special depending on the circumstances of each case.