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JUDGMENT
The Plaintiff sued the Defendant
for the following reliefs:
“ a. Damages for breach of
contract
b.
Payment of 5% of the total cost
of bills of quantity as at the
time of the abrogation of
contract between Plaintiff and
Defendant on the Kokrobite site.
c.
An order directed at Defendant
to pay all outstanding cost of
materials bought by Plaintiff.
d.
An appointment of Quantity
Surveyor to assess other related
jobs executed by Plaintiff and
for the Court to adjudge
Plaintiff as entitled 30%
thereof at Kaneshie.
e.
In the alternative an order
directed that Plaintiff be paid
on the basis of quantum merit of
other jobs executed.
f.
Immediate payment of the total
sum of ¢441,676,000.00 (Four
Hundred and Forty One Million
Six Hundred and Seventy Six
Thousand Cedis) being expenses
incurred for all on behalf of
Defendant.”
From the pleadings and evidence
of the Plaintiff, the Plaintiff,
a Businessman and Contractor
trading under the name and style
of Napari Construction Works was
introduced to the Defendant by a
friend sometime in July, 2006.
The Defendant subsequently
offered Plaintiff a construction
job at Kokrobite. Plaintiff
stated that he went with the
Defendant to Kokrobite and
Defendant showed him an
uncompleted building which was
to be turned into a hotel. He
agreed to do the construction
work required and sat down with
Defendant’s lawyer to set down
the conditions for the work.
The work at Krokobite was thus
governed by an agreement which
was signed at the Defendant’s
lawyer’s office (exhibit “A”).
The conditions for the work
included Plaintiff using his
surveyor and workers as well as
redesigning the house to suit
the purpose for which the
Defendant wanted to use the
property. The agreed total
contract sum was GH¢80,000.00
and Plaintiff was to be paid an
amount of GH5, 000 per month, in
addition to 5% of the contract
sum.
It is also Plaintiff’s case that
apart from the Kokrobite
project, Defendant offered him
another job at Orgle Road, North
Kaneshie, Accra where he was
asked to change the original
design of the building and put
up a storey building for use as
a hotel amongst other things;
this was not governed by any
formal contract. According to
Plaintiff, Defendant was not
prepared to sit down and draw up
an agreement in spite of all the
efforts he made. Defendant,
according to Plaintiff,
subsequently engaged a new
contractor to do the work,
without the knowledge of the
Plaintiff. It is Plaintiff’s
further case that the Defendant
owes him for items he purchased
on credit for use on the
project, and which Defendant has
not paid for. It is also
Plaintiff’s case that he had
spent all the money that
Defendant advanced to him on the
project.
Plaintiff called four (4)
witnesses who collaborated most
of his story. P.W.1, Clement
Amaglo the Quantity Surveyor who
did the valuation of the work
done at North Kaneshie tendered
in evidence his Valuation Report
(exhibit “F”). P.W.2, Haruna
Omar Farouk’s evidence was that
he was engaged by Plaintiff as a
security guard in Defendant’s
house at North Kaneshie for a
fee of GH¢200.00 per month. He
also led evidence on the work
that he saw Plaintiff do. He
said that apart from doing
security work he sometimes
carried out mechanical repairs
as well as acting as a driver,
but he was not paid for four (4)
months even though Plaintiff
occasionally gave him GH¢10.00
or GH¢20.00 for food.
P.W.3, Frederick Kwabena Nyarko,
testified that he was a plumber
and that Plaintiff gave him a
job as a plumber. He said that
after he had submitted estimates
to Plaintiff, Plaintiff called
him to accompany him to go and
purchase some of the items
contained in the estimates he
submitted. He also said that he
heard Plaintiff asking the shop
owner to sell the items to him
on credit since he did not have
money at the time. P.W.3
tendered in evidence some
receipts as exhibit “G”. He
testified that because Plaintiff
did not pay for the items he had
to return those that had not
been used to the owners. He
said he charged GH¢600.00 but
the Plaintiff paid him an
initial amount of GH¢200 and
paid a total amount of GH¢300 in
bits and pieces leaving an
outstanding balance of GH¢100.00
to be paid to him.
Worlanyo Akoto, a refrigerator
and air condition mechanic,
testified as P.W.4. He said he
first met Plaintiff in 2006,
when Plaintiff gave him a job at
Kokrobite. He identified
exhibits “C3” and “C4” as the
receipts which he gave to
Plaintiff after the purchase of
materials. He subsequently
moved to North Kaneshie where he
carried out the same type of job
for Plaintiff. He stated that
he charged ¢17,500,000.00
(GH¢1,750.00) for all the work
carried out but had been given
part payment of only
¢7,500,000.00(GH¢750.00).
Daniel Kofi Akorley, P.W.5, an
electrician, testified that he
did some work for Plaintiff at
Kokrobite in 2006. He said that
they had to partition the rooms
and re-position electrical
points. His evidence was that
he told Plaintiff that he needed
underground cable from the main
pole to the meter. He
identified exhibit “C2” as a
receipt he gave to Plaintiff.
P.W.5 also stated that he did
another job for Plaintiff at
North Kaneshie which involved
chiseling and running cables.
He said he charged
¢23,400,000.00(GH¢2,340.00) but
received only
¢10,000,000.00(GH¢1,000.00) as
part payment, leaving an
outstanding balance of
¢13,000,000.00 (GH¢1,300.00).
The Defendant on the other hand
averred that he engaged
Plaintiff to undertake some
construction work at Kokrobite
which was previously being
executed by another contractor.
He stated further that five (5)
sets of structural designs and
drawings were handed over to
Plaintiff who advised that a new
structural design/drawing ought
to be produced to conform to the
modeling of the building to
include more rooms. As
requested by Plaintiff,
Defendant paid ¢3,000,000.00
(GH¢3,000.00) to Plaintiff who
acknowledged receipt of same.
Defendant averred further that
he informed Plaintiff that he
and his neighbor, Dr. Seth
Oninku, intended to extend
electricity to their respective
houses at Kokrobite and that
they would share the cost
equally. Plaintiff however
advised that Defendant should
get electricity connected
through underground cables
because that was cheaper. He
stated that on 26th
July 2006, Defendant’s
Accountant, Nash Sam, paid to
William Dodd, a representative
of his neighbour Dr. Oninku, the
sum of ¢15,320,000.00
(GH¢1,532.00) which represented
Defendant’s initial electricity
to the two neigbouring houses;
Plaintiff witnessed the
acknowledgement.
Due to the need to pay
additional amount to cover the
cost of extending electricity to
the two houses, Defendant on 28th
July 2006 gave to and authorized
Plaintiff to pay to William Dodd
aforesaid the sum of
¢3,400,000.00 (GH¢340.00).
Defendant averred further that
the entire extension of
electricity to the two
neigbouring houses was carried
out by the Electricity Company
of Ghana (ECG). Defendant also
averred that Plaintiff received
an amount of ¢190,000,000
(GH¢19,000) for the purchase of
the needed materials but failed
and/or was unable to render an
account of same.
With regard to the North
Kaneshie property, Defendant
averred that he engaged
Plaintiff to furnish a room for
Defendant to live in; to build a
supermarket; and renovate the
main house, but Plaintiff did
none. Defendant averred further
that he asked Plaintiff to
construct a store in place of
the demolished boys quarters so
that Defendant could put some
personal effects he had imported
into the country in there, but
Plaintiff failed to construct
same. Defendant’s further case
is that he saw a security man
named Farrouk at the site but
did not know the conditions
under which he was employed.
Defendant has counter-claimed
for the following:
(i)
An account of all sums received
and paid by Defendant, whether
by himself, Nash Sam or Yaw.
(ii)
An order for payment by the
Plaintiff to the Defendant of
all sums found unaccounted for
on taking such account.
(iii)
A return of the structural
designs and drawings of the
Kokrobite house which are in the
possession of Plaintiff.
(iv)
Damages for their detention.
(v)
Further or other relief,
including all further necessary
or appropriate accounts,
inquiries and directions.
(vi)
Costs.
The Defendant adduced evidence
through his Attorney, Daniel
Holomah (D.W.1). His evidence
was that he got to know
Plaintiff when he was working on
the North Kaneshie Project. He
was however aware that Plaintiff
worked on a site purchased by
Defendant at Kokrobite. D.W.1’s
further evidence was that
Plaintiff was to receive
GH¢5,000 every month and
received a total amount of
GH¢20,000.00 covering a period
of four (4) months. He tendered
in evidence receipts to cover
the amount of GH¢20,000.00
(exhibits “2” series).
It was D.W.1’s further evidence
that Defendant could not provide
structural designs to Plaintiff
because they were with the
previous contractor. Defendant
therefore gave GH¢3,000.00 to
Plaintiff, which payment,
Plaintiff acknowledged (exhibit
“4”). With regard to the
connection of electricity, it
was D.W.1’s evidence that
Plaintiff was given money to
extend electricity to the site
but officers from ECG came to
remove the underground cable
because it was allegedly
illegally connected. D.W.1
tendered in evidence a receipt
for GH¢1,532 (exhibit “5”) given
to Plaintiff for the electricity
connection. Furthermore, an
amount of GH¢340 was paid to
Plaintiff to be refunded to
Defendant’s next door neighbour,
Dr. Oniku, D.W.1 tendered in
evidence a receipt from
Plaintiff acknowledging the said
payment – exhibit “6”.
According to D.W.1, it was
Plaintiff who advised Defendant
to buy the North Kaneshie
property. He stated that unlike
the Kokrobite project, there was
no written agreement for the
North Kaneshie project. The
oral agreement nonetheless was
that Plaintiff was to turn some
of the rooms into self-contained
rooms; he was to replace the
boys’ quarters with a storey
building as storage facility; a
supermarket and a restaurant.
Plaintiff however only “broke
down the boys’ quarters, did the
concrete and mounted pillars”.
Plaintiff was to receive
GH¢5,000 every month through
Defendant’s Accountant, Nash
Sam, and received a total of
GH¢30,000 for the North Kaneshie
project. Plaintiff however
submitted receipts for only
GH¢150,000 (exhibits “3”, “3A’
and “3B”). And when Defendant
returned from the U.K.,
Plaintiff could not account for
the GH¢30,000.00 paid to him.
D.W.1 stated that the items that
were allegedly purchased on
credit by Plaintiff were not
brought to Defendant’s
attention. He also stated that
when the Defendant was coming to
Ghana, he wanted two (2) rooms
to be made ready for him and his
nephew, so he gave the
equivalent of GH¢5,000.00 in
pounds sterling to be used to
buy items like bed sheets and to
furnish the rooms. Plaintiff
however submitted receipts for
the purchase of one king size
bed bought for GH¢180, and
domestic carpets bought for
GH¢355 (exhibits “7” and “8”).
D.W.1 also testified that
Defendant lodged in a hotel when
he came from the UK because the
rooms he was expecting to be
ready for his use were not. He
stated further that it was when
Defendant visited the site that
he saw a gentleman living in a
room on the 2nd floor
and he was introduced as keeping
watch over the materials
Plaintiff had bought.
Defendant’s 2nd
witness was Nash Sam (D.W.2).
He stated that he was employed
as an Accounts Officer at the
Defendant’s company Lion Star
Limited. He corroborated most
of D.W.1’s evidence. He said he
paid to Plaintiff an amount of
GH¢5,000 a month between August
and December, 2006. He also
said that Plaintiff did not do
the work at Kokrobite as agreed
to in Exhibit “A”; he did not
complete the work. While the
work at Kokrobite was ongoing,
Plaintiff advised Defendant to
buy the North Kaneshie property
and without any authority from
Defendant, Plaintiff stopped
working on the Kokrobite project
and started working on the North
Kaneshie project.
Defendant also subpoenaed Kwaku
Owusu Sekyere (D.W.3), a
Quantity Surveyor, to come and
give evidence. Mr. Owusu
Sekyere was appointed as a
Referee at the Pre-Trial stage
to value the works done by
Plaintiff. He however was not
able to present a report on the
due date and the Pre-Trial was
closed.
D.W.3’s evidence was that at a
meeting held between him and the
parties herein, he drew up a
schedule of the works done by
Plaintiff which the parties were
in agreement, and the works
being disputed. These documents
were tendered in evidence as
exhibits “9” and “10”
respectively. These documents
were given to the parties for
their perusal and signature but
only Defendant signed it;
Plaintiff refused to sign it.
D.W.3’s further evidence was
that his next line of action if
the document had been signed
would have been to go to the
site, take physical measurements
and to come up with “quantities
representing the items of work”.
D.W.3 said that he, together
with the parties, nonetheless
decided to go ahead with the
measurements pending the
Plaintiff signing the documents.
Despite the fact that both
parties had agreed on the date
to meet at the site, Plaintiff
did not turn up. D.W.3 stated
that as a result of this he had
not quantified the work done up
till now.
A cardinal rule in civil cases
is that he who asserts must
prove; this is trite learning.
By virtue of the Evidence
Decree, 1975 (NRCD 323) parties
assume the burden to discharge
the burden of persuasion (or
legal burden) as well as the
evidential burden to discharge
the burden of proof on them.
Thus certain issues must be
proved by a party if he is to
succeed in an action. The legal
burden of proof will generally
be on the party asserting the
affirmative of such an issue. A
party bearing the legal burden
on a particular issue will also
bear the evidential burden on
that issue.
The general principle as stated
by Aikins JSC in Ababio v.
Akwasi III [1994-1995] Ghana Bar
Report Part 2, 774 is that
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 sufficient
evidence to tip the scale in his
favour when on a particular
issue the Plaintiff leads some
evidence to prove his case. If
the Defendant succeeds in doing
this, he wins, if not he loses
on that particular issue.
In this instant case Plaintiff
is alleging that Defendant is in
breach of the two (2) contracts
between the parties herein, and
that Defendant owes him monies
for the work he has done.
Plaintiff claims he expended an
amount of GH¢22,050.40 on the
Kokrobite project whereas
Defendant only paid him
GH¢19,000. He is also claiming
that he is entitled to be paid
5% of the total cost of the
project. With regard to the
North Kaneshie project, it is
Plaintiff’s claim that the work
done was valued at GH¢41,704.10,
but Defendant only paid him
GH¢30,000. Defendant on the
other hand is alleging that
Plaintiff did not do the works
as agreed. These are the main
issues on which the parties have
burdens to discharge.
From the evidence, the
undisputed facts are that the
parties signed an agreement
(exhibit “A”) with regard to the
Kokrobite project. The North
Kaneshie project was however not
covered by any written
agreement. Both parties agree
that Plaintiff did not complete
either job. Plaintiff however
alleges that Defendant abrogated
the contract covering the
Kokrobite project whereas
Defendant alleges that it was
Plaintiff who did. With regard
to the North Kaneshie project
Plaintiff alleges that it was
Defendant who abrogated the
contract, which allegation
Defendant denies.
I will start with the Kokrobite
project. Plaintiff’s evidence as
to why he stopped the work was
as follows:
“My Lord, we agreed that I was
going to put up this building
within a period of 2 years. But
in total the Defendant gave me
one Hundred and Ninety Million
Cedis; that was for 4 months.
My Lord after giving me
¢190,000,000 for 4 months, he
stopped paying me and he did not
tell me anything”.
Defendant has however refuted
this. The effect of the
evidence of both D.W.1 and D.W.2
was that after advising
Defendant to purchase the North
Kaneshie property, Plaintiff
himself stopped working on the
Kokrobite property and started
working on the North Kaneshie
property. D.W.1 tendered in
evidence exhibits “2”, “2A”,
“2C”, “2E” and “2F”, as receipts
issued by Plaintiff in
acknowledgement of payments made
on behalf of Defendant to
Plaintiff. The receipts total
GH¢20,000. Plaintiff however
explained that one of the
payments made to him was for
GH¢4,000 instead of GH¢5,000. He
said that exhibit “C16”, a
receipt for GH¢1,000, was paid
for interior doors which were
obtained by the previous
contractor. The Defendant
however asked Plaintiff to issue
a receipt for this amount which
he obliged. This piece of
evidence was not rebutted by
Defendant. I will therefore find
that Plaintiff was paid a total
of GH¢19,000 for the Kokrobite
project.
Plaintiff is nonetheless
claiming that he spent more than
GH¢19,000; he is claiming that
he spent GH¢22,000 plus; these
are covered by receipts which he
tendered in evidence as exhibit
“C” series. He conceded under
cross-examination that Defendant
paid to him an amount of
GH¢3,000 for the structural
designs, but stated that it was
only part-payment; he said he
spent an additional GH¢1,000. He
also said he paid for
electricity to be connected to
the site, and paid GH¢2,500 for
a building permit. According to
him these additional items/works
were however not captured in
exhibit “A”, but the Defendant
authorized him to do the said
works.
The evidence of D.W.1 and D.W.2
was that Plaintiff was given
money for the preparation of the
structural designs. Exhibit “4”
is the receipt for the said
amount of ¢3,000,000.00
(GH¢3,000). It was their
further evidence that Plaintiff
was also given money for
electricity to be extended to
the site but subsequently
officers from the ECG came to
remove the wires from the
underground cable claiming that
it was illegally connected.
Exhibit “5” is a receipt for an
amount of ¢1,532,000.00
(GH¢1,532.00) allegedly paid to
Plaintiff for extending
electricity to the said two (2)
houses. A further amount of
¢3,400,000.00 (GH¢340.00) was
paid to Plaintiff to be refunded
to Defendant’s neighbour as part
of his contribution (exhibit
“6”). All these pieces of
evidence were not refuted by
Plaintiff.
D.W.1’s evidence was that the
mode of payment as agreed
between the parties herein was
that Plaintiff was to receive
GH¢5,000.00 per month for the
work, and he received this
amount monthly for four (4)
months. He also testified that
it was agreed that anytime
Plaintiff needed money over and
above the amount of GH¢5,000 he
was being paid per month, more
money would be made available to
him. Indeed, clause 4 of the
agreement, exhibit “A” states
that monies would be advanced to
Plaintiff by Defendant at the
request of Plaintiff. D.W.1’s
further evidence was that even
though all the monies being
claimed by Plaintiff were
allegedly expended during the
period he was still working on
the Kokrobite project, he never
brought this to the Defendant’s
attention. Plaintiff himself had
testified that one Yaw was
introduced to him in August of
2006 as the person responsible
for financing the project during
Defendant’s absence from Ghana.
So, what prevented Plaintiff
from requesting for additional
money if he indeed had expended
more than he had been given?
In the circumstances I will find
that Plaintiff has not
established that he spent over
and above the GH¢19,000.00 paid
to him. I will also find that
he did not make any request for
additional monies to be paid to
him.
The agreement signed by the
parties, exhibit “A”, indicated
in clause “4” that
“The Employer shall at the
request of the Contractor on
monthly basis advance to him for
the purpose of enabling him to
carry out the works described
above Fifty Million Cedis
(¢50,000,000.00) per month but
not exceeding the whole together
with the amount for the time
being due to the Employer in
respect of building materials
the sum of Eight Hundred Million
Cedis (¢800,000,000.00)”
Plaintiff’s evidence was that
the above stated amount was to
cover the cost of building
materials and hired labour. And
that Defendant was also required
to pay him a further 5% of the
contract sum for his
workmanship. Clause “5” of
exhibit “A” reads as follows:
“In consideration of the works
to be carried out the Contractor
shall be paid an amount not
exceeding 5% of the total cost
of the works”
Defendant’s case as supported by
the evidence of D.W.1 and D.W.2
is that the 5% payment being
claimed by Plaintiff formed part
of the monies paid to
Plaintiff. So, what is the
interpretation to be given to
the said clause “5”?
In the case of BCCI v. Ali
[2002] 1 AC 251, Lord
Bingham of Cornhill summarized
the principles of interpretation
as follows:
“To ascertain the intention of
the parties the Court reads the
terms of the contract as a
whole, giving the words used
their natural and ordinary
meaning in the context of the
agreement, the parties
relationship and all the
relevant facts surrounding the
transaction so far as known to
the parties. To ascertain the
partners’ intentions the court
does not of course inquire into
the parties’ subjective states
of mind but makes an objective
judgment based on the materials
already identified.”
In my opinion, clause 5 refers
to the payment of 5% of the
total contract sum; that is had
he completed the work. This is
because clause “4” specifically
refers to the cost in respect of
building materials and no one
can expect that Plaintiff would
work for free simply because he
received monies for materials. I
will therefore find that
Plaintiff is entitled to be paid
5% of the total sum paid to him
i.e. GH¢19,000.00.
Plaintiff gave his reason for
not completing the job as
follows:
Q: On the Kokrobite project
were you able to complete it?
A: No my lord
Q: What happened?
A: My lord I worked for
Defendant on the Kokrobite
project between 3 to 4 months.
In the 4th month
Defendant did not pay any money
to me he didn’t tell me
anything, but I went on to do
the work.
Q: What happened before you
could not complete the Job?
A: My lord according to the
Defendant because of the serene
atmosphere between him and I in
the course of doing the work, at
a point in time he wanted to
purchase a house and he wanted
me to supervise the purchase or
see to how he was going to
purchase the house and then if
there was something to be done
on that new house he was going
to entrust it on my hand.
Q: I am saying that you had
a contract for 2 years on the
Kokrobite project, you did the
project at a certain point then
the man was not paying you and
you had to stop the construction
and I am saying what happened
before you cannot complete the
job?
A: My lord because the
Defendant did not go according
to the agreement that is in
respect of monies he was to pay
me at the end of every month in
order for me to be able to do
the work. He did not go
according to the agreement for
that matter he put me in tight
corner financially. My lord
because he did not comply with
the agreement I had even borrow
money somewhere to buy some
materials to do the work up to a
point.
Q: What point did you get
to in contract terms if you can
give us the percentage of the
work, whether 10%, 20%, 30%?
A: My lord I did the work
between 30% to 35%.
Q: As at the moment, are
you still working at the site?
A: The Defendant did not
comply with the agreement and he
did not tell me anything and the
work had to come to a stand
still over a year now.
I must state that I do not find
Plaintiff’s explanation
convincing enough. D.W.1’s
evidence, which I believe, is
that Plaintiff virtually walked
out of the Kokrobite contract.
This, together with my finding
that Plaintiff ought to have
requested for additional funds
but did not, have made me come
to the conclusion that it was
Plaintiff who abrogated the said
contract. With regard to the
Kokrobite project therefore, I
am of the view that it is
Plaintiff who is in breach of
the contract and therefore
cannot be entitled to any award
of damages, and I will so find.
I shall now move to the North
Kaneshie project. Again, it is
Plaintiff’s case that Defendant
is in breach of the contract
between them and that he spent
in excess of the amount of
GH¢30,000.00 which he received
from the Defendant and is
therefore claiming 30% of
whatever amount is assessed by a
Quantity Surveyor to be the cost
of the work. In the
alternative, Plaintiff is asking
to be paid on the basis of
quantum meruit.
It is an undisputed fact that
the North Kaneshie project was
not covered by any written
agreement/contract. According
to Plaintiff, Defendant did not
go according to the promise he
made; Defendant refused to
formalize the agreement between
them. Plaintiff’s evidence was
that the property was originally
used as a factory for the
processing of wood. He
therefore had to clear all the
debris. He also broke down the
boys’ quarters and put up a
storey building to be used as a
guest house. Subsequently
Defendant requested that the
downstairs be converted into a
restaurant, and a supermarket.
It was Plaintiff’s further
evidence that he had the
building plan prepared which he
tendered in evidence as exhibits
“D”, “D1” and “D2”. Plaintiff
stated that Defendant
subsequently changed the
original plan and so Plaintiff
had to pull down some of the
structures he had built.
Plaintiff also had to prepare a
room for Defendant to stay in
and therefore fitted the room
with a carpet, fan, bed,
mattress; bed spread etc. He
stated that he gave the receipt
to the Defendant and tendered in
evidence a list of works he did
as exhibits “E” and “E1”.
Plaintiff also stated that
Defendant paid him a total
amount of ¢300,000,000.00
(GH¢30,000). It is Plaintiff’s
case that in the course of the
work, Defendant engaged another
contractor to continue with the
work, the reason being that he
did not have patience for
Plaintiff and could no longer
work with him. This has not been
refuted by the Defendant.
According to D.W.1 however,
Plaintiff cannot claim that he
spent monies in excess of the
GH¢30,000 paid to him because
Plaintiff was told that he would
be provided with money anytime
he needed it and therefore
Plaintiff did not have that
authority to buy items on
credit, and Plaintiff did not
bring this to the attention of
Defendant. The further
evidence of D.W.1 was that it
was agreed between the parties
that Plaintiff would be paid
GH¢5,000.00 every month by
Defendants’ Accountant, D.W.2.
Plaintiff was paid a total of
GH¢30,000. D.W.1 tendered in
evidence receipts received from
Plaintiff in acknowledgment of
monies received by him totaling
GH¢15,000.00 (Exhibit “3”, “3A”,
and “3B”)
It is trite learning that an
agreement need not be written.
It cannot be disputed that there
was an oral agreement between
the parties herein for Plaintiff
to do some work on the North
Kaneshie property. From the
totality of the evidence
adduced, it is my opinion that
it was the Defendant who
abrogated the said contract. In
my opinion however, Plaintiff
has not established that he
spent in excess of the GH¢30,000
paid to him. The Quantity
Surveyor’s report, exhibit “F”,
indicates that Plaintiff spent a
total of ¢417,041,100
(GH¢41,704) thus leaving a
balance of ¢117,041,100
(GH¢11,704) to be paid by
Defendant to Plaintiff. In my
view however, the Quantity
Surveyor relied on figures given
to him by Plaintiff but which
figures have been successfully
disputed by Defendant at the
trial. I will consequently not
attach any weight to the said
report. I will therefore find
that Plaintiff has not
established that he is entitled
to be paid the said amount of
GH¢11,704 for materials and
hired labour.
Plaintiff is seeking, in the
alternative, payment on the
basis of quantum meruit.
Quantum Meruit, as is
well known, means “how much is
worth”; it is an equitable
remedy. It is a remedy
available for quasi contract.
When there are no express
contractual terms on
remuneration for goods supplied
or services rendered, the court
will assess an amount which is
fair and reasonable on the basis
of quantum meruit.
As Abban J (as he then was) said
in Hammond v. Ainooson [1974]
1 GLR 176 at P.183:
“In any case, even if I had
found that there had been no
concluded and enforceable
agreement between the parties as
to the amount of allowance the
Plaintiff was to receive for her
services during the time the
boat was under repairs, or for
the other consideration supplied
by her, I would still have held
that the plaintiff could recover
on quantum meruit basis for the
value of the benefit she
conferred on the Defendant and
the Defendant accepted. The
principle is that where a person
rendered services in pursuance
of a transaction, supposed by
him to be a contract, but which
in truth, is without legal
validity, he can recover for the
value of his services in quantum
meruit.
This implied obligation to pay
reasonable remuneration is an
obligation imposed by law and
not in inference of fact arising
from the performance and
acceptance of the services.”
In his dissenting judgment in
the case of Addison v A/S
Norway Cement Export Limited
[1973] 2 GLR 151 at 163,
Anin J.S. said:
“Before I am done, I would wish
to observe, purely in an obiter
manner, that on the facts of
this case and in view of the
findings made, that the
Plaintiff did perform services
for the Defendants and at their
request, and that the parties
intended that these services
should be paid for, an
alternative claim for quantum
meruit would not be out of
order. Once such a claim is
instituted, appropriate evidence
may then be led on what is the
customary or reasonable
commission in the circumstances
of the case. In this
connection, some help may be
derived from the reported case
of Mabsout v. Fara Brothers
(Ghana) Ltd and from the
decision, and in particular the
dictum of Greer LJ in
Craven-Ellis v. Canons, Ltd,
where he stated: ‘the
obligation to pay reasonable
remuneration for the work done
when there is no binding
contract between the parties is
imposed by a rule of law, and
not by an inference of fact
arising from the acceptance of
service or goods.”
The evidence adduced by the
Plaintiff and Defendant’s
witnesses is that the monies
received by Plaintiff in respect
of the North Kaneshie property
were for materials. I will find
that in the circumstances of the
instant case it will be
equitable or in conformity with
natural justice for the
Plaintiff to be paid some amount
as workmanship on a quantum
meruit basis since there is
no figure to be relied on in
arriving at how much Plaintiff
should be paid.
Plaintiff however did not lead
any evidence as to what is
customary or reasonable amount
in the circumstances of this
case. Plaintiff also did not
cooperate with the Court
appointed referee to do a
valuation of the work done. The
evidence placed before the court
is that another contractor has
taken over the job and therefore
I cannot even order that a
valuation of the work done by
the Plaintiff be done. I will
therefore award what I think is
reasonable, i.e. GH¢5,000 for
the work done on the North
Kaneshie property.
Is Plaintiff entitled to an
award of damages for Defendant’s
breach of the contract for the
North Kaneshie project? In the
case of Adae v. Eyiah [1972]
2GLR, 358 Abban J (as he
then was) held that in building
contracts, the contractor is
entitled to an uninterrupted
possession of the site for the
purpose of carrying out the
works in the contract. Thus the
driving away of the workmen of
the Defendant therein from the
building site amounted to
repudiation and the Defendant in
those circumstances was entitled
to treat the contract as
discharged by the said breach.
His Lordship held further that
the failure to complete the
building was not due to the
default of the Defendant. It
was rather the Plaintiff who
made it impossible for the
Defendant to complete the work;
and the Defendant was therefore
excused from the consequences of
not completing the building.
I agree with his Lordship and
have already made a finding that
the failure of Plaintiff herein
to complete the North Kaneshie
project was not due to the
default of Plaintiff; he was
prevented from doing so.
Defendant was therefore, in my
opinion, in breach.
In the case of Delmas Agency
Ghana Limited v. Food
Distributors International
Limited [2007-2008] SCGLR, 748,
it was held that general damages
is such as the law will presume
to be the natural or probable
consequence of the Defendant’s
act. It arises by inference of
the law and therefore need not
be proved by evidence. The law
implies general damage in every
infringement of an absolute
right. The catch however is
that only nominal damages are
awarded. Where the Plaintiff
has suffered a properly
quantifiable loss, he must plead
specifically his loss and prove
it strictly. If he does not, he
is not entitled to anything
unless general damages are also
appropriate. I will award
Plaintiff general damages of GH¢3,000.00
In conclusion, I will hold that
Plaintiff is not entitled to the
reliefs being sought except an
order for Plaintiff to be paid
GH¢3,000 on the basis of
quantum meruit; and GH¢5,000
as general damages for the North
Kaneshie project.
As stated earlier, Defendant has
counter-claimed. In my opinion,
however Defendant has not
established his counter-claim
for an account and payment by
Plaintiff because Defendant has
not proved that Plaintiff is
under any obligation to account
for monies paid to Plaintiff
under the agreements between the
parties. There should be a
reason for asking Plaintiff to
account for monies paid to him;
for instance if Defendant claims
that Plaintiff received more
than was agreed under the said
agreements. Defendant has not
made any such claim. In the
circumstances I will find that
Defendant is not entitled to
these reliefs and accordingly
dismiss the said counter-claim.
I will however order the return
to the Defendant of the
structural designs and drawings
of the Kokrobite house which are
in the possession of Plaintiff.
Since Defendant has established
that he paid for the
designs/drawings, I will
nonetheless hold that Defendant
is not entitled to damages for
the detention of the said
drawings.
I will not make any award as to
costs. Since I have found that
both parties have breached one
contract or the other, and both
parties have succeeded in some
of their respective claims, I
think it is just fair that both
parties should bear their own
costs.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
ADJEI LARTEY
- PLAINTIFF
J.H. SENOO
- DEFENDANT
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