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(SGD.)
CECILIA H SOWAH
J (MS)
J U D G M E N
T
The
Plaintiff’s claim is for a total
of Sixty Million Five hundred
thousand cedis (¢60,500,000.00)
made up of four (4) separate
demands viz
a)
Twenty-two million cedis (¢22 m)
financial assistance extended to
the defendant
b)
Two
million Five hundred thousand
cedis (¢2.5m) cost of a drill
machine bought for the
defendant.
c)
Six
million cedis (¢6m) being
balance owed on burglar proofs.
d)
Thirty
million cedis (¢30m) being
charges for sub frames fixed on
12 houses i.e. Kasaglobal job.
Plaintiff is
claiming interest on the said
amounts from July 2003.
Defendant
denies all the claims of
plaintiff and has counterclaimed
for the following:
1)
Two
hundred million cedis (¢200m) in
commissions which
Plaintiff
ought to have paid to him on
contracts secured for plaintiff.
2)
Twenty-Eight million cedis
(¢28m) being cost of two (2)
gates which plaintiff failed to
fix.
3)
Twelve
million cedis (¢12m) being cost
of a collapsible pasico grille
which plaintiff failed to fix at
defendant’s house.
4)
Eight
hundred US dollars (U$800)
refund in respect of a gate
which plaintiff failed to make.
5)
Interest on the said amounts
from 13th January
2006.
In his
defence to the Counterclaim,
plaintiff denies that there was
any agreement for the payment of
commissions to the defendant and
denies owing defendant any of
the amounts claimed.
The issues
settled at the pre-trial
settlement conference to be
tried are as follows:
1)
Whether or not plaintiff has an
oral agreement with the
Defendant that the Defendant
shall search for contracts or
secure contracts for Plaintiff
for a commission.
2)
Whether or not plaintiff
provided any consideration for
the said oral agreement.
3)
Whether or not Plaintiff owes
Defendant any commissions for
various jobs that he (Defendant)
has secured for Plaintiff and
how much.
4)
Whether or not Plaintiff offered
financial assistance of ¢22 m to
the Defendant to clear goods and
if so how much.
5)
Whether or not plaintiff owes
defendant U$800 or U$600
6)
Whether or not Defendant owes
Plaintiff a balance of ¢6m on a
burglar proof for an aluminium
glazing job which Defendants
gave to Plaintiff.
7)
Whether or not Plaintiff bought
a concrete drilling machine
worth ¢2.5m for the Defendant
and whether the machine was used
or accepted by Defendant.
8)
Whether or not Defendant owes
Plaintiff any sum at all for the
construction or building of
aluminium sub frames.
9)
Whether the Plaintiff was
contracted to fix one
collapsible pasico grill at
Defendant’s house.
10) Whether
or not the Plaintiff was
contracted to fix two gates
at Defendant’s work place or
site.
In support of
his claim, Plaintiff testified
and called two (2) witnesses
namely Isaac Aninakwa PW1
formerly in the employ of
Defendant and PW2 Nana Banyin,
plaintiffs senior apprentice.
The sum of
their evidence was that
Plaintiff who is a welder and
Defendant, who has a company
Gutty Universal Ltd that is
active in the building industry,
struck up a friendship.
Defendant would recommend
Plaintiff to clients and give
plaintiff sub-contracts and
according to the plaintiff,
because of this friendship he
would charge defendant less for
his sub-contracts than he
normally charged. He sometimes
did not charge if it was
defendants personal job. The
relationship went sour and the
parties are making the claims
and counterclaims in this suit.
The Defendant
in his testimony insisted that
there was an arrangement whereby
in exchange for giving Plaintiff
jobs, Plaintiff was to do
personal jobs for him at no
charge.
He admitted
collecting ¢20m but not ¢22m
from the plaintiff but said
plaintiff agreed that he
(defendant) should keep the ¢20m
for him.
With respect
to the drilling machine,
defendants’ testimony was that
the machine was probably new as
it was in a box but that it did
not work so he asked Plaintiff
to come for it. He admitted
under cross-examination that
plaintiff did not come for the
machine but he (Defendant)
cannot remember where the
machine is.
With respect
to his claims for ¢28m and ¢12m,
defendant said these were the
values of the items plaintiff
had failed to do as promised. He
admitted under cross-examination
that he did not give physical
cash to the plaintiff.
With respect
to his claim for U$800, the
defendant insisted under
cross-examination that he had
given plaintiff US$800 for a
gate and not U$600 as claimed by
plaintiff. He said plaintiff had
only done the frame of the gate
but had not completed the work.
It came out under
cross-examination that the
defendant had gone for the gate,
had it finished and had had it
fixed.
The testimony
of Augustine K. De Souza, the
only witness for the defendant
regarding the essential issues
in contention was that the
plaintiff had in a conversation
told him that he had worked for
the defendant at Kasaglobal free
of charge but defendant was
ungrateful. That he (plaintiff)
had also loaned the defendant
¢20m but defendant was refusing
to pay. Witness said he was
therefore surprised when the
defendant later told him
plaintiff was charging him ¢30m
for the Kasaglobal job, and
claiming that the loan had been
¢22m
At the end of
evidence both counsel submitted
written addresses.
I shall first
deal with plaintiff’s claims,
i.e. issues 4,6,7 and 8
Did plaintiff
give the defendant financial
assistance of ¢22m?
Defendant
admitted in his evidence in
chief that he is holding ¢20m
for the plaintiff. His
explanation was that it was for
plaintiffs’ sake as he is a
spendthrift. He did not testify
that he was withholding it as
part of his commission, and I
reject counsel’s conclusion
unsupported by defendants’
testimony, that there is
justification for withholding
the money. PW1 in his evidence
said he was told by the
defendant that he owed plaintiff
¢20m. As plaintiff offered no
corroborative evidence that the
amount was ¢22m, I find on
defendants admission that the
financial assistance was ¢20m
Again with
respect to the concrete drill
machine valued at ¢2.5m, the
defendant did not challenge the
value placed on the machine, nor
that he received it, nor that it
was probably brand new. He also
admitted that the plaintiff did
not come for the machine but
could not say where the machine
is. In the face of such
evidence, I accept plaintiffs’
version and find this claim
proved.
Plaintiff is
claiming a balance of ¢6m for
burglar proofing which he did
for the defendant. Although by
the evidence this was not
defendants personal job, the
owner was paying plaintiff
through the defendant.
Defendants’ cheque to the
plaintiff for the ¢6m bounced.
Now, the defence of defendant to
this claim is that plaintiff is
not entitled, as he did not
complete the job. However a
claimant in some circumstances
may be entitled to claim for as
much as he has done or
performed. In this case, there
appears to have been an
understanding that the defendant
would pay the balance of fee
charged to enable plaintiff
conclude the job. The dud cheque
is the evidence of this
understanding. It is my view
therefore that his failure to
complete the job was not
entirely plaintiffs fault and so
the principle of quantum meruit
will be applicable to give
plaintiff his fee for the
quantum of work done. I note
that the defendant in his
evidence in chief opined that
the value of work left undone
“should be around ¢3m”.
Finally with
respect to the claim for ¢30m
for the Kasaglobal job, I find
on the evidence that this was
not defendants personal job, and
I do not think the defendant
wants it to be believed that the
plaintiff had agreed to work
without charge even in cases
where defendant had taken a job
on contract and sub-contracted
portions to plaintiff.
The defendant
and another company Bermat were
awarded the contract and both
sub-contracted the welding jobs
involved to the plaintiff. The
plaintiff charged Bermat ¢2.5m
per house which was paid. He is
making a similar claim from the
defendant.
Although this
claim appears reasonable,
however, plaintiff in his
evidence testified that because
he and defendants were friends
he charged him less than normal.
Furthermore the evidence shows
that the plaintiff did not treat
the defendant as he did the
other contractor. Only one of
his apprentices was detailed to
do defendants job as against
himself and three apprentices
for the other contractor. As the
evidence does not show that
there was a prior agreement as
to charges, plaintiff in the
circumstance will only be
entitled to what is reasonable
and fair.
I shall next
deal with the defendants
counterclaim. The major issues
arising from the counterclaim
are set out as issues 1, 2 and
3. In sum, the fundamental issue
is whether or not there is an
enforceable oral agreement
between the parties for the
payment of commissions to the
defendant.
The burden of
persuasion was on the defendant
who was alleging this oral
agreement. The evidence he
offered in proof was very
scanty. When asked by his lawyer
–
“Q. Was
there any arrangement between
the two of you?”
His answer
was
“A. Yes
there was arrangement that I
will give him job he also will
do something for me that is if I
have some work to do he will
come and help me”
Based on this
loose agreement, the defendant
is claiming ¢200m as he put it,
“because there is a list of jobs
that he (plaintiff) promised to
do but failed to do them.”
Counsel for
the defendant submits that oral
contracts are enforceable if
backed by part performance or
consideration. However there is
a first hurdle of proof of the
oral contract by evidence of
sufficient weight to satisfy the
Court of the existence of a
contract.
Court of law
The essential
characteristics of a contract
are required to be present even
for oral contracts. Parties are
judged by what they have said,
written or done, not by what is
in their minds - an objective
standard is applied.
In this
instant case, I am not satisfied
on the evidence adduced that the
essential element of an
intention to create legal
relations was proved.
The evidence
is that the parties were
friends. The friendship began
when according to the defendant
he saw plaintiffs’ handiwork and
was impressed by it and
undertook to recommend him and
give him jobs. This in my view
falls within the class of social
arrangements that in law are
usually presumed not intended to
be binding.
The defendant
failed to prove a necessary part
of a valid contract. He could
not state the exact terms of the
contract when he was asked in
cross- examination. His answer
was -
“That I
secure a job for him then he
would also do my personal jobs
for me without charge”
The testimony
of defendants witness was not
helpful, as he did not testify
about any first-hand knowledge
of the matters in issue. Also,
quite apart from the fact that
he had stayed in the courtroom
when the defendant was on the
stand, he did not impress me as
a truthful witness.
The number of
jobs given to the plaintiff was
not established at the trial, or
what qualified, as defendant’s
‘personal job’ for which there
was to be no charge according to
the defendant. Nor indeed was
any attempt made by the
defendant to show the basis on
which the assessment of the
commission could be determined.
Applying the
objective test, the inference I
draw from the conduct of the
parties is that this was an
informal arrangement between
friends not intended to be
legally binding. There was no
firm proposal; only indications
of good intentions, and the
Court will not enforce vague
agreements. I believe that the
defendant is only making this
claim as an afterthought because
the relationship went sour.
These
conclusion further buttresses my
previous finding that plaintiff
is entitled to be paid for the
Kasaglobal job
Next, I shall
tackle defendants claims set out
in issues 9 and 10.
The case of
the defendant has been that
plaintiff was to do personal
jobs for him free of charge. He
clearly admitted under
cross-examination that he did
not pay physical cash of ¢28m or
¢12m for the two jobs. He merely
bought the materials for
plaintiff to build the gates and
the collapsible grille. As I
have sought to show, this
informal arrangement between the
parties is not legally
enforceable. I therefore find
that plaintiff was not
contracted to fix the gates and
the grille. He did not charge
defendant for the jobs. No
consideration moved from the
defendant and he is not entitled
to damages in contract if
plaintiff failed to complete the
job.
Finally I
shall consider the issue of the
U$800. Plaintiff insists that
defendant only gave him U$600
and that he used all of it to
buy materials for the gate. That
he made the gate and it was only
left with finishing touches. He
said defendant has had the gate
fixed anyway.
Apart from
his word against the word of the
plaintiff, defendant offered no
proof that he had indeed given
U$800 to the plaintiff. Asked
whether the value of work done
was not U$600, the defendant
could not positively deny it.
This evidence when considered
alongside defendants’
categorical testimony that he
had given plaintiff the U$800
for the gate AND for a frame of
a block cutting machine, leads
me to believe plaintiffs
evidence that he had been given
U$600 for the gate, and that he
had done work up to that value
on the gate. The block-cutting
machine and how much had been
given for that had not been put
in issue in the pleadings.
In conclusion
I find that on the totality of
the evidence the plaintiff has
proved his case whilst the
defendant on the other hand
failed to prove the reliefs
sought in his counterclaim. I
hereby accordingly dismiss the
entire counterclaim.
I hereby make
a total award of ¢36,500,000.00
to the plaintiff made up as
follows:
¢20m
financial assistance given to
the defendant
¢2.5m cost of the drilling
machine
¢4m
in respect of burglar proofs
¢10m for the
Kasaglobal sub frames, which is
one third of the price plaintiff
charged the other contractor and
fair in the circumstance.
Plaintiff is
asking for interest on the said
amount from July 2003. However
as the only averment in the
pleadings regarding when the
defendant became obligated
states “sometime in 2003”, I
shall award interest on the sum
awarded at the prevailing
commercial bank rate commencing
January 2004 up to the date of
final payment.
I award cost
of Six million cedis (¢6 m) to
plaintiff.
(SGD) MRS CECILIA
H. SOWAH, J.
JUSTICE OF THE COMMERCIAL COURT
COUNSEL
ROBERT ALLOTEY FOR PLAINTIFF
EPHRAIM VORDOAGU
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