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JUDGMENT
The defendant is a statutory
organization established by the
Ghana National Fire Service Act
of 1997 Act 537. In the year
2010 the defendant invited
public tenders for the supply of
various items including sixteen
thousand three hundred and
thirty nine (16, 339) pairs of
camouflage uniforms. The
invitation for public tender was
carried in the National Dailies
in 2010 as indicated by exhibits
5 and 6 herein.
The plaintiff in this suit put
in a tender and having been
declared successful, entered
into a formal contract with the
defendant for the supply of the
camouflage uniforms. Upon the
delivery of the uniforms, the
defendant took issue with the
plaintiff that the contract was
for the supply of 16339 pairs of
uniforms. The plaintiff however
intimated that the formal
agreement entered into with the
defendant was for the supply of
16339 pieces of uniforms and not
16339 pairs as contended by the
defendant. When the defendant
exhibited an intention to pay
for the uniforms supplied in
pairs instead of in pieces, the
plaintiff instituted the present
action for:
‘i Recovery of the sum of GH¢749,791.62
(Seven Hundred and Forty-Nine
Thousand Seven Hundred and
Ninety-one Ghana Cedis and Sixty
Two Pesewas) being the price of
a consignment of 15.514 pieces
(7,757 full sets) .. Swiss made
Camouflage Uniforms sold and
delivered to the Defendant
pursuant to contract
No…………………………..
ii Interest thereon at the
prevailing Inter Bank lending
rate on the date of payment from
August 15, 2011 to the date of
final payment.
iii. Damages for breach of
contract.
iv. Costs’.
After the service of the
plaintiff’s writ of summons and
its accompanying statement of
claim on the defendant, an
Appearance was filed and later a
Statement of Defence for and on
behalf of the defendant. At the
application for directions stage
the following issues were
adopted for trial. That is:
a.
‘Whether or not the invitation
for tenders by the Defendant was
an invitation to treat for the
supply of 16,339 pairs of
camouflage uniforms by the
plaintiff to the Defendant.
b.
Whether or not the insertion of
the word ‘pieces’ in the
contract, dated, 1st
December, 2010 was inadvertent
and not pursuant to the
invitation for tenders by the
defendant.
c.
Whether or not the delivery of
8,373 and 7,757 pieces of
camouflage uniforms by the
plaintiff was in accordance with
the contract of 1st
December, 2010.
d.
Any other issues for trial’.
At the trial, the plaintiff gave
evidence and closed her case.
The defendant also gave evidence
per a witness and announced the
closure of its case.
From the pleadings and the
evidence on record the court
finds that the following facts
are not in dispute:
1)
That the Plaintiff is a sole
proprietor trading under the
name and style JILD VENTURES.
This finding is supported by
exhibit A which is a Certificate
of Registration of Business name
and also by the plaintiff’s
answers under cross examination.
2)
That in the year 2010 the
defendant put up an invitation
for qualified members of the
public to bid for the supply of
various items to the defendant
including 16339 pairs of
camouflage uniforms. Again this
finding is supported by a
publication in the Tuesday 25th
May, 2010 edition of the
‘Ghanaian Times’ Newspaper at
page 18; exhibits 5 and 7 herein
and Wednesday the 26th
May 2010 edition of the ‘Daily
Graphic’ Newspaper page 34
exhibits 6 and 8 herein.
The invitation for tenders was
also addressed to the plaintiff
herein by the defendant’s letter
of 14th May, 2010
exhibit ‘B’ herein.
It is also not in dispute that
the tender process was governed
by a tender document exhibit
‘C’. The tender was for the
supply of 16339 pieces of
camouflage material to be
delivered “two months from the
day of the signing of the
contract”. The unit price was
also quoted at page 49 of the
tender document exhibit ‘C’ as
GH¢48.33. By the same exhibit
‘C’ at page 49 thereof, the
plaintiff put in a tender to
supply 16,339 pieces of
camouflage uniforms from
Switzerland at a price of
GH¢48.33 a piece at a total cost
of GH¢789,663.87.
It is also not in dispute that
by exhibit ‘D’ the defendant, on
the 25th November,
2010 addressed to the plaintiff,
a letter titled “Notification of
Award: Supply of Camouflage
Uniforms’. Exhibit ‘D’ stated
in part that:
‘NOTIFICATION OF AWARD
SUPPLY OF CAMOUFLAGE UNIFORMS
This is to notify you that your
Tender dated June 28, 2010 for
Execution of the contract for
the SUPPLY OF CAMOUFLAGE
UNIFORMS, IFT No. NFS/010039
i.e.
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I/N |
DESCRIPTION
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QUANTITY |
TOTAL PRICE |
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1 |
CAMOUFLAGE |
16,339 PIECES |
GH¢
789,663.87 |
In the amount of seven hundred
and eighty nine thousand, six
hundred and sixty three Ghana
Cedis, eighty seven pesewas (GH¢789,663.87)
in accordance with the
instructions to Tenderers us
hereby accepted’.
Again exhibit ‘D’ requested the
plaintiff to furnish the
defendant with a Performance
Bond “within 14 days of the
receipt of Notification of Award
of the Contract”. As a result
the plaintiff furnished a
Performance Bond exhibit ‘E’
herein which she procured from
Phoenix Insurance. Exhibit ‘E’
was dated 29th
November, 2010.
I find that by exhibit ‘F’ dated
the 1st day of
December, 2010, the defendant
executed a formal contract with
the plaintiff for the “Supply of
16,339 pieces of camouflage
uniforms”.
There is evidence to the effect
that after the execution of the
contract, the plaintiff obtained
a loan from the Bank and
imported the camouflage
uniforms.
I find from exhibit ‘2’ that the
actual quantity of camouflage
uniforms supplied by the
plaintiff was 16,130 pieces
comprising 8373 trousers and
7757 jackets. This finding is
supported also by the
plaintiff’s answer in admission
during cross examination.
Nevertheless, an inspection team
formed by the defendant accepted
the goods supplied by the
plaintiff herein and wrote an
acceptance report dated 7th
July, 2011 received in evidence
as exhibit ‘H’.
I find that after the supply of
the uniforms, the defendant
paired them by way of one
trouser to one jacket as a
result of which 7757 pairs were
generated leaving 616 excess
trousers. These excess trousers
of 616 were rejected by the
defendant who then wrote exhibit
‘K’ a letter dated the 7th
day of July, 2011 in which the
defendant requested the
plaintiff to submit fresh
invoices for “7,757 full sets of
camouflage uniforms or 15,514
pieces at a rate of GH¢48,33 per
piece. Exhibit ‘K’ also
requested the plaintiff to ‘take
back the 616 pieces of trousers
still in the possession of the
defendant”.
I find from exhibits ‘J’, J1 and
J2 that the plaintiff prepared
fresh invoices as requested.
Exhibit J is dated 8th
August, 2011 and exhibits J1 and
J2 are both dated 8th
July, 2011. Before the
submission of exhibits J1 and J2
by the plaintiff, invoice for
the price of 16,130 pieces of
camouflage uniforms had been
forwarded to the defendant by
the plaintiff per exhibit ‘3’
dated 15th June, 2011
which the defendant rejected per
exhibit K supra and requested
plaintiff to furnish it with
fresh invoices covering 15, 514
pieces of uniforms as shown in
exhibits J1 and J2.
There is evidence on record that
despite directives from the
Sector Minister that the
defendant pays for 15, 514
pieces of uniforms as a result
of which exhibits J1 and J2 were
requested and furnished, the
defendant was still unwilling to
pay the plaintiff the cost as
directed. The plaintiff’s
lawyer therefore wrote to the
Minister a letter dated the 22nd
August, 2011 pointing out the
fact of non-compliance with the
Minister’s directives by the
defendant. This is captured in
exhibit ‘M’.
The court finds that the
defendant’s unwillingness to pay
for the goods supplied by the
plaintiff which it had accepted
arose from various
correspondences between it and
the Ministry for Interior.
I find from the evidence on
record that the Fire Service
Council played a major role in
the non-payment of the plaintiff
for the goods which she supplied
and were accepted by the
defendant. There is evidence
that the Fire Service Council
met on the 13th July,
2011. The defendant tendered
exhibit 11 which reads as
follows:
‘SUPPLY OF CAMOUFLAGE UNIFORM TO
THE GHANA NATIONAL FIRE SERVICE
1.
In May, 2010, the Ghana National
Fire Service invited tenders for
the supply of various items
including sixteen thousand,
three hundred and thirty-nine
(16,339) pairs of Camouflage
Uniform.
2.
Subsequently, JILD VENTURES won
the contract to supply the
uniform and delivered 8,373
trousers and 7,757 jackets.
3.
The Service advertised for pairs
and naturally uniforms are worn
in pairs. However, the supplier
along the line interpreted a
word in the Contract Document
(pieces) to arrogate to itself
the interpretation of ‘pieces’
to mean trousers as a piece and
jacket also as a piece.
4.
By JILD’s interpretation, she
would have supplied half of the
consignment as pairs to kit
Service personnel properly and
yet claim the Cost of double.
The controversy surrounding the
supply therefore led to the
matter being referred from the
Ministry of the Interior to the
Fire Service Council for
possible resolution.
5.
The Council met on 13th
July, 2011 and deliberated on
the issue of the supply of
Camouflage Uniform by JILD
Ventures to the Ghana National
Fire Service. Only 7,757 pairs
of the supplies could be used as
uniforms; whiles the remaining
616 were only trousers. The
consensus was that the Service
should pay for seven thousand,
seven hundred and fifty-seven
(7,757) pairs of uniform at the
advertised price of GH
¢48.33 per pair (Totaling GH
¢374,895.51).
6.
The outstanding balance of 8,582
pairs of uniform could be
delivered by the supplier later
for payment. Should this
arrangement not be acceptable to
the supplier then the entire
consignment delivered by the
supplier should be rejected’.
In the opinion of the court the
Fire Service Council fell into a
grievous error when it stated,
without recourse to the contract
document, that “naturally
uniforms are worn in pairs”.
The court can take judicial
notice of the fact that whether
apparel can pass for ‘uniform’
depends on the organization
concerned. For instance, when
school children talk about
uniforms, that expression is a
reference to the accepted dress
code of the particular school.
It may include a shirt, trouser,
shoe/boot of a particular colour
or description and many other
types of apparels.
Even in the Fire Service,
uniform is not necessarily a
reference to a particular shirt
and trouser but it includes the
cup and the boots as well as the
socks and the belt and many
others apparels on the dress
worn sometimes with reference to
the rank of the officer in
question. The defendant’s
witness made admissions to this
effect in his answer to the
following questions:
‘Q: So after you wrote
exhibit 10 what happened?
A: The supplier submitted
the required invoice to us, in
the cause of that the letter
from the Ministry of Interior
was presented at Fire Service
Council meeting on the 13th
July 2010 and the Council
decided that payment should be
made for 7,757 and that when we
talk of uniform it comprises the
set, up and down and not the
individual jacket as one piece
and the trouser as one piece.
JUDGE: Does the uniform
include your cup?
WITNESS: No My Lord.
JUDGE: Is it not part of your
uniform?
WITNESS: It is part of our
uniform. We even add the boots
and all that’.
From the answers given I find
that it is not entirely correct
as stated by the Fire Service
Council that “Uniforms are worn
in pairs”.
The defendant did not contract
with the plaintiff for the
supply of what are “worn in
pairs”. Rather the contract
evidenced by exhibit ‘F’ was for
the supply of 16, 339 pieces of
camouflage uniforms. Indeed
paragraphs 1 and 2 of exhibit
‘F’ states that:
‘In this Agreement words and
expressions shall have the same
meaning as respectively assigned
to them in the Condition of
Contract referred to.
1.
The following documents shall be
deemed to form and be read and
constructed as part of this
Agreement, viz:
a.
The Tender Form and the Price
Schedule submitted by the
Tenderer;
b.
The Schedule of Requirements;
c.
The General Conditions of
Contract; and
d.
The Purchaser’s Notification of
Award’
Clearly therefore, the
invitation for tender published
in the various newspapers is not
part of the contract documents
and hence it was wrongful for
the Fire Service Council to rely
on the invitation to treat as
constituting a contract and then
say that uniforms are naturally
worn in pairs. Worse still in
the 21st century,
where the law is held supreme,
it sounds oppressive and
totalitarian for the Fire
Service Council to conclude as
it did that:
“Should this arrangement not be
acceptable to the supplier then
the entire consignment delivered
by the supplier should be
rejected”.
The general conditions of
contract referred to in
paragraph 1 quoted above is
captured at pages 26 to 38 of
exhibit ‘C’ the tender document.
Paragraph 2 of the General
Conditions states that
“Application 2.1 these General
Conditions shall apply to the
extent that they are not
superseded by provisions in
other parts of the contracts”.
Indeed no where in the
General Conditions of Contract
is the word ‘pieces’ defined.
Resort in my view, must
therefore be made to other
sources for the meaning of the
word ‘pieces’ since the same is
also not defined in the Contract
Document either.
The BBC English Dictionary
Published by Harper Collins
London 1992, page 867 states
that ‘A piece of
something is a portion, part or
section of it’. At the same
page it is stated that “a
piece of something is also
an individual item of it”.
The same word is also defined in
the Oxford Advanced Learner’s
Dictionary by A.S. Hornby, 6th
Ed. Oxford University Press,
Special Price Edition (2001).
At page 877 “piece” is defined
as “an amount of something
that has been cut or separated
from the rest of it; a standard
amount of something”. It is
again stated to be “one of
the bits or parts that something
breaks into “or” a single item
of a particular type especially
one that forms part of a set.”.
Within the context of exhibit
“F” the contract executed
between the plaintiff and the
defendant herein, the word
‘piece’ as used in
the phrase “supply of
16,339 pieces of camouflage
uniforms” in my view
therefore, cannot be interpreted
to read ‘pairs’. That will
surely amount to re-writing the
contract for the parties. In my
opinion given the context in
which ‘piece’ has been used in
the contract between the
parties, the most appropriate
meaning is that which connotes
singleness or a unit of. Hence,
the phrase “16, 339 pieces of
camouflage uniforms” will imply
“16,339 units of camouflage
uniforms or units of camouflage
uniforms which adds up to 16,
339.
The defendant contracted with
the plaintiff to supply parts of
or sections of or individual
items or units of uniforms that
sums up in total to 16, 339. In
the view of the court it will be
unconscionable for the defendant
to contract with the plaintiff
to supply 16, 339 pieces of
uniforms at GH¢48. 33 per piece
and then when it comes to paying
for the commodity for the
defendant to turn round to say a
‘piece’ means ‘pairs’ to enable
the defendant take two pieces
for the price of one piece
contrary to the agreement as
shown in the contract exhibit
‘F’.
The law is clearly stated in
INUSAH VS. DHL WORLDWIDE EXPRESS
[1992] 1 GLR 267 that:
“the general rule was that when
a document containing
contractual terms was signed,
then in the absence of fraud or
misrepresentation, a party of
full age and understanding was
bound to the contract to which
he appended his signature. In
such a case it would be
immaterial whether he read the
document or not”.
In KUSI & KUSI VS. BONSU
[2010] SCGLR 61, the court
held that “under section 25
of the Evidence Act, 1975 (NRCD)
323), the facts recited in a
document were conclusively
presumed to be true between the
parties and all persons claiming
through then”.
In SMITH VS. HUGHES (1871)
L.R. 6 QB 597, Blackburn J.
stated the law as follows:
“If whatever a man’s real
intention may be, he so conducts
himself that a reasonable man
would believe that he was
assenting to the terms proposed
by the other party, and the
other party upon that belief
enters into a contract with him,
the man thus conducting himself
would be equally bound as if he
had intended to agree to the
other party’s terms”.
In the instant case, the
defendant’s tender documents
exhibit ‘C’ herein shows that
the defendant had invited
members of the public to bid for
the supply of 16, 339 pieces of
camouflage uniforms. This is
clearly stated at page 44 of
exhibit ‘C’. The plaintiff put
in a tender for the supply of
16, 339 pieces of camouflage
uniforms. See page 49 of
exhibit ‘C’. Subsequently, the
defendant, on 25th
November, 2010 wrote a
‘notification of award – supply
of camouflage uniforms” to the
plaintiff evidenced by exhibit
‘D’. Here again, the defendant
indicated to the plaintiff that
she was to supply 16, 339 pieces
of camouflage uniforms. Then on
the 1st December,
2010 the defendant executed a
formal contract with the
plaintiff for the “supply of 16,
339 pieces of camouflage
uniforms”.
In my opinion the defendant has
exhibited all the outward signs
of agreement that the plaintiff
was to supply 16, 339 pieces of
camouflage uniforms. I hold
that the defendant is bound by
the contract to which it had
manifestly and voluntarily
expressed its assent even if its
actual intentions were
different. If the defendant had
in fact made a mistake by its
inability to express its
intentions clearly on the
contract document by stating
“16, 339 pieces” instead of “16,
339 pairs” the plaintiff should
not be the one to suffer for
it. The defendant must bear the
brunt and the consequences of
its own mistake. I hold
therefore that the defendant –
Ghana National Fire Service is
bound to pay for all the goods
supplied by the plaintiff which
it had by exhibit ‘H’ accepted.
However, it appears that the
plaintiff had by exhibit ‘J’
agreed to take back six hundred
and sixteen (616) pieces of the
trousers supplied. The
defendant is therefore liable to
the plaintiff for the cost of
the remainder of the goods
totaling 15,514 pieces at GH¢48.33
which sums up to GH¢749,791.62.
The court will therefore enter
judgment for the plaintiff
against the defendant to recover
cash the sum of GH¢749,791.62.
The plaintiff is also entitled
to recover interest on the above
sum of money in view of the
delay in the payment by the
defendant. The court will
therefore permit the plaintiff
to recover interest at the
prevailing bank rate form 15th
August, 2011 to the date of
final payment.
The plaintiff will be awarded
nominal damages as the breach of
the contract relates to the
delay in the payment for the
goods supplied. The plaintiff
will recover in respect of
damages for breach of contract
the sum of GH¢5000.00 from the
defendant.
Costs of GH¢5000.00 is awarded
the plaintiff against the
defendant.
S. K. A. ASIEDU, J.
JUSTICE OF THE HIGH COURT.
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