GHANA LAW FINDER

                         

Self help guide to the Law

  Easy to use   Case and Subject matter index  and more tonykaddy@yahoo.co.uk
                

HOME

COMMERCIAL  COURT CASES

 

IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) HELD IN ACCRA ON  3RD MARCH 2011 BEFORE HER LADYSHIP BARBARA ACKAH-YENSU (J)

 

                                       SUIT NO. OCC/37/08

 

                                                LIBE ENTERPRISES LIMITED                       ===   PLAINTIFF

 

                                                          VRS.

 

UDEC GHANA LIMITED                                  ===  DEFENDANT

 

 

=======================================================

 

 

JUDGMENT:

 

Libe Enterprises Limited, a Building Construction Firm has sued Udec Ghana Limited, a Civil Engineering and Building Construction Firm for the following reliefs:

 

“ a.    A declaration by this Honourable court that the Plaintiff is

entitled to the payment of the Retention Fee which has been unjustly held by the Defendant

 

b.    An order for the Honourable Court directed at the Defendant to pay the Plaintiff the Retention Fee of GH¢7,400.00 which is due to the Plaintiff.

 

  c.     Interest

 

  d.    Costs, including solicitor’s fees.

 

 

By the pleadings and evidence adduced the Defendant sub-contracted the Plaintiff to execute some projects in Parambo and Sawaba in the Yeji District of the Brong Ahafo Region.  In particular, the Defendant sub-contracted the Plaintiff to: 

 

a.   Construct a 3- classroom building, a urinal and a 6 seater KVIP block.

 

b.    Construct a 6- classroom building, a urinal and a 6- seater KVIP.

 

c.    Construct market stalls and a lorry park.

 

The contract price for the project was ¢2,247,861,168.16 (GH¢224,786.12).  It was agreed that payments to the Plaintiff would be covered by respective certificates.  At the completion of the said project by the Plaintiff, the Plaintiff claimed the following from the Defendant.

 

a.    That the Plaintiff Company undertook additional works for which the Defendant Company had not paid it.

 

b.   That the Defendant Company had refused or failed to pay the Plaintiff Company the Retention fee (5% of the contract sum) it ought to have been paid.

 

The Defendant denies that it ever instructed the Plaintiff to carry out any additional works.  The Defendant also denies that Plaintiff had done any of the works it is claiming it did.  Defendant’s case is that all works executed by the Plaintiff were duly and fully paid for by Defendant Company.  A Project Manager of Defendant Company, Remi Balogun (D.W.1) testified that the parties herein went into accounts and after a reconciliation of the accounts was done, final accounts (Exhibit “1A”) were presented to Defendant.  And from the said accounts, there is nothing outstanding with regard to the retention fee to be paid to Plaintiff.

 

In my opinion, the crux of the Plaintiff’s claim is that Defendant owes it for additional works done and also a retention amount of GH¢7,400.00.  The issues for determination therefore revolve around these two issues.      

 

It is trite learning that it is the party whose pleadings raise an issue essential to the success of the case who assumes the burden of proving such an issue.  The Plaintiff therefore assumed the burden of proving its claims.  And the nature of evidence that Plaintiff was required to adduce is as stated in the oft-cited case of Zabrama v. Segbedzi [1991] 2GLR 221 as follows:

 

“The correct proposition 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.  And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he assets can properly and safely be inferred.  The nature of each averment or assertion determines the degree and nature of that burden.”

 

So, what evidence did Plaintiff adduce?.  Togbe Dzabah VII (P.W.1) gave evidence on behalf of Plaintiff and in my opinion his evidence was simply muddled; to say the least.  For instance, the document that P.W.1 tendered in evidence, and relied on as the final certificate upon completion of work (Exhibit “B”), also referred to as “Certificate No.6) was said to be an Invoice and not a Certificate by D.W.1.  According to P.W.1 this document embodied all the payments which were supposed to be made by Defendant to Plaintiff.  This is a forty-three (43) page document and I am at a loss as to exactly what the document represents.  P.W.1’s further testimony was that Defendant made a final payment to Plaintiff but Plaintiff realized some of the work Plaintiff had done had been omitted from Exhibit “B”.  He tendered in evidence a letter which Plaintiff wrote to Defendant regarding the said omissions.  P.W.1 also tendered in evidence as Exhibits “E” and “F”, what he referred to as further “Certificates” for payments.  Exhibit “E” however is an Advance Payment Bond and Exhibit “F” comprise Certificates No.2 to No.5.

 

P.W.1 tendered in evidence letters written by Plaintiff Company and Plaintiff’s Solicitor demanding from Defendant, payment of an amount of ¢94,998,159.00 (GH¢9,499.8) as the outstanding retention money owed to Plaintiff.   The said letters were marked as Exhibit “G” and “H”.

 

As stated, in both Exhibits “G” and “H” the Plaintiff made a demand for an amount of ¢94,998,159.00 by way of retention fee.  No where in these letters is the amount of ¢7.4 million being claimed by the Plaintiff mentioned.  This is what the Plaintiff said under cross-examination.

 

Q:      Did you meet to reconcile these matters?

 

A:      Yes, during the reconciliation in fact the figures were different and what they are quoting in fact it was three different certificates I did not agree on it.

 

Q:      Do you agree that the retention payment comes at the end of the final accounts?

 

A:      Yes my Lord.

 

Q:      How much were you paid if you were paid at all, retention fee?

 

A:      The retention fee part was paid to us 22,241,036.00

 

Q:      Having been paid this how much is left to be paid you?

 

A:      ¢74 million.

 

Q:      Out of the 22 million that you should have been paid what was the last amount that you were given for which 74 is remaining?

 

A:      Apart from the 22 million nothing was paid to us again.

 

Q:      If you add the 22 million to the 74 million from your own side how much did you arrive at?

 

A:      It is supposed to be 108,483,801.74

 

Q:      So for the retention fee you were just given this 22 for once?

 

A:      Yes.

 

Q:      Look at this letter, kindly read it to the hearing of the Court.

 

A:      Read out

 

Q:      So that is the one and only retention fee that you were paid?

 

A:      Yes my Lord

 

Q:      You said the retention fee itself is 108,483,801.74?

 

A:      Yes my Lord

 

Q:      When you subtract the 22 from that figure you get the 74?

 

A:      No my lord you may not get the 74 simply because during the course there was an omission there but it is suppose to be more than but since he has written to them that figure i also accepted it like that.

 

Q:      I am putting it to you that that is not the figure that you should arrive at all.

 

A:      I still stand by my words that the money which we wrote to them during the course of my lawyer that he has to reply and ask of the balance he has made a mistake over there but what he has written which is 74 million he told me I should agree on it whereby I also agreed on it.  That is why you realize that when you subtract the 22 from 108 it is not tallying.

 

In his evidence, D.W.1 said that Defendant sent to Plaintiff the final accounts and Plaintiff also presented its final accounts and the two accounts were reconciled and payment of about ¢114,998,159 was made to Plaintiff as retention fee.  As far as Defendant was concerned therefore, there was nothing outstanding as retention fee.  He said further that the amount of ¢216,976,020.00 being mentioned by the Plaintiff was closer to the contract sum.

 

It was also Plaintiff’s evidence under cross-examination that the contract sum on which 5% was calculated as retention fee, changed because during the course of the contract, Defendant asked Plaintiff to do additional work.  As stated above, Defendant denied this, so the onus was on Plaintiff to prove this.  For a start, Plaintiff did not produce any express instruction to the Plaintiff to do any additional works as required under clause 13 of the contract that the sub-contractor was not to undertake any variation of the project without the express instruction of the contractor in writing.  Under cross-examination, Plaintiff also said as follows:

 

Q:      But you were asking for payment for additional works.  I put it to you that however small any additional works may be that comes up you must have been instructed to carry them out?

 

A:      the additional work they have paid for it but what i am claiming that he was talking about was the clearance which they have omitted from the final certificate.

 

Q:      But you have just said that the clearance you were helped in doing that, they use the bulldozers to clear it you just said so.

 

A:      When you look at the final certificate that they have given us all the clearance up to the ground work done was not paid for in the final certificate.

 

Q:      Who cleared the site?

 

A:      We have did it

 

Q:      And you were not paid for it?

 

A:      No my lord

 

Q:      If you were not paid for it then it means you were not asked to do that?

 

A:      We were asked to do that

 

Q:      What is your evidence?

 

A:      the evidence is the contract document

 

Q:      Have a look at it is that not the document?

 

A:      Yes my lord

 

Q:      Look at where you have removal of trees and so forth.

 

A:      You will realize that the removal of trees this is Parambo RC the removal of trees you realize that they have not paid for V2 1.5.30 that is RC when you come to Sabuba LA also the trees and the ... were not paid for.  When you come to market section C clearing of site also was not paid for excavation top soil also was not paid for excavation in order than top soil was also not paid for, disposal of excavator material of site also was not paid.

 

Q:      I am putting it to you that they could not have paid for it because they provided the bulldozers that cleared the place and they themselves indeed cleared the place so they could not have paid you.

 

A:      they have to pay simply because where they showed us first was changed and they only removed the trees and then the rest of the ground work we did it ourselves so they have to pay for it.

 

Q:      Is the clearing of site not the very first activity for any construction to begin?

 

A:      Yes my lord

 

Q:      Then how can you say that they agreed to pay you for clearing the site and then after they themselves have cleared it you want to be paid for it.

 

A:      they only removed the trees and then the rest of the clearing we did it ourselves.

 

Q:      I put it to you that you have not given us the clear indication that you did the minor work of levelling the place for example to give the impression that you cleared the place of trees and rocks and all that.

 

A:      When you look at the bill of quantities you realize that removing of tree is there with the amount, clearing of site is there with the amount and then gravel work is also there with different amount.

 

Q:      who changed the site?

 

A:      It was the chief and the people of the town

 

Q:      Was it chief who gave you the contract?

 

A:      No my lord that is why they are the main contractors and we drew their attention to that.

 

Q:      Who are the main contractors?

 

A:      UDEC Ghana Limited

 

Q:      You did what; you drew their attention to what?

 

A:      To the main contractor that the site had been changed.

 

Q:      what was their reply?

 

A:      they realized that the money quoted for the clearing of the site cannot meet what is there that is why they agreed to help with the bulldozer.

 

Q:      I put it to you that to were not asked to leave the original place at all and if the chief and the assembly man made you go to the new place it is the problem of your company.        

 

A:      It is not true.    

 

As was submitted by Counsel for Defendant in his written address, neither the chief nor the town folk, nor the Assembly men represent the Defendant; they were not the shareholder nor the managers of the Defendant Company.  Therefore the Plaintiff should not have taken orders from them without reference to the Defendant.  In Coker v. Young (1860) 2 F & F 97, it was held that “the builder having completed the work and claimed payment under the contract, could not claim for work as excess of the “quantities” on which it was based:  nor for any condition or alterations beyond the amount allowed by the surveyor and that the tender required a stamp, as a minute or memorandum of agreement.”

 

The position of the law as already stated above is that the Defendant having denied that the Plaintiff was instructed to do any additional works or alterations; it was for the Plaintiff to show and prove that it was so authorized by the Defendant.  It was also the case of the Plaintiff that Exhibit “H” was written after a compromise was reached after several meetings between the parties to address the issue of additional works and is therefore not proof that the Defendant agreed to pay for additional works done but reneged on same.

 

I will find that the additional works that Plaintiff claims it did were done unilaterally and without being authorised by the Defendant.

 

In the case of Adwubeng v. Domfeh (1996-97) SCGLR, 660, Acquah JSC of blessed memory (as he then was) reiterated the position of the law with regard to the standard of proof in civil matters; that there is one standard of proof.  He stated that sections 11 (4) and 12 of the Evidence Decree, 1975 (NRCD) have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities- no exceptions were made.  In my opinion, the evidence adduced by Plaintiff to establish his case on the balance of probabilities, is zero.  The balance tilts more to the side of the Defendant.  On the balance of probabilities therefore, I will hold that the Plaintiff has failed to prove its case.

 

In conclusion therefore, I will hold that the Plaintiff has not established its case that it is entitled to the payment of retention fee to the tune of GH¢7,400.or any amount.  Plaintiff’s claims are accordingly dismissed.

 

Costs assessed at GH¢2,000 against Plaintiff.     

 

 

                                     

                                                                             (SGD)

BARBARA ACKAH-YENSU(J)

JUSTICE OF THE HIGH COURT

 

COUNSEL

 

JOSEPH ACHEAMPONG            -        PLAINTIFF

KINGSLEY KWASITSU                -        DEFENDANT

 

Legal Library Services        Copyright - 2003 All Rights Reserved.