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 |