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JUDGMENT:
The facts of the instant case
are that in 2007, the Controller
and Accountant General’s
Department, 1st
Defendant herein, was facing
problems with the Payroll
Database. There were arrears on
salaries because the system
could not process them quickly
enough and there was agitation
by workers, especially
teachers. A cabinet
sub-committee was put in place
to assist the 1st
Defendant look for a solution to
the problem. It was decided that
1st Defendant should
get a backup system for the
existing Integrated Personnel
and Payroll Database Backup
(IPPD2) System. 1st
Defendant sought the permission
of the Public Procurement
Authority to engage in
procurement of the IPPD3 by
means of restricted tendering. 1st
Defendant subsequently issued
out a request for proposals from
three (3) software development
companies, namely: Persol
Systems Ltd (Plaintiff herein),
Softtribe Ltd (2nd
Defendant herein), and Sisco
Ltd. The request for proposals
required the 3 companies to
submit proposals in two parts; a
technical proposal and a
financial proposal. The
Plaintiff is alleging that the
proper procedure for the
procurement of the IPPD3 by the
1st Defendant was not
followed and has therefore sued
the Defendants seeking the
following reliefs:
“ a. A declaration
that the purported technical
evaluation
process adopted by 1st
Defendant after the deadline for
the submission of bids and the
award of the contract thereof to
2nd Defendant to
design software for integrated
personnel and payroll database
backup (IPPD3) system and carry
out maintenance of same is void
ab initio.
b. An order to set aside
the award of the contract by 1st
Defendant to 2nd
Defendant to design software for
integrated personnel and payroll
database back up (IPPD3) system.
c. An order directing 1st
Defendant to adhere to the
transparent evaluation and
selection process specified in
the Tender Document dated
November, 2007 in the selection
and award of contract for the
design of software for
integrated personnel and payroll
database backup (IPPD3) system.
d. An order
disqualifying 2nd
Defendant from participating in
the bidding process for the
award of contract to design
software for integrated
personnel and payroll database
backup (IPPD3) system in so far
as 2nd Defendant
failed, refused and or neglected
to meet the deadline for the
submission of bids for the
contract.
e. An order directing 1st
Defendant to empanel a new
evaluation Panel including
reputable and independent
information Technology experts
knowledgeable in Payroll and
Personnel software development
to undertake the selection
exercise for the award of the
contract to design software for
integrated personnel and payroll
database backup(IPPD3) system”.
From the pleadings, Plaintiff’s
case is that it was one of the
software development companies
that were invited to bid by 1st
Defendant and that were issued
with a Standard Tender Document
dated November, 2007. This
Standard Tender Document set out
the tendering procedures, supply
requirements as well as special
and general conditions covering
the tendering process. It is
Plaintiff’s further case that on
28th January, 2008,
the evaluation Panel of the 1st
Defendant met with the 3 bidders
and resolved that 1st
Defendant shall provide its test
data to the 3 bidders for the
intended demonstration of the
workings of their respective
software to enable the selection
Panel ascertain the software
that can efficiently perform all
the required functions specified
in the Standard Tender
Document.
By a letter dated 17th
July, 2008, 1st
Defendant unilaterally and for
no just cause changed the
evaluation criteria to that of
merely seeking verbal approval
of a single client of each of
the bidders and to base the
technical scores qualifications
and award of the contract on
such an inefficient evaluation
process. That, the sudden and
arbitrary change of the time
tested, transparent and most
efficient method of selecting a
qualified bidder for the award
of the contract is wrongful and
inconsistent with section 51 (3)
of the Public Procurement Act
2003 (Act 663) in so far as the
modification or change was
effected after the deadline for
submission of tenders.
Furthermore per the
discriminatory, unfair and
non-transparent evaluation
criteria adopted, 1st
Defendant has awarded the
contract to 2nd
Defendant and paid the sum of GH¢4,300,000
to 2nd Defendant for
the design of the software and
maintenance of same for five
consecutive years from the date
of installation and use of the
software. Plaintiff contends
therefore that the process and
the award of the contract to 2nd
Defendant has been rendered void
ab initio and ought to be set
aside.
1st and 3rd
Defendants have denied
Plaintiff’s claim and have
stated that the meeting held on
28th January, 2008
was called by the 1st
Defendant to “introduce an
additional criterion in the form
of requiring the bidders to come
up with prototypes that was not
originally part of the Technical
Evaluation criteria as captured
in the Standard Tender
Document.” That, it adhered to
all the criteria in the
Technical Evaluation in the
Standard Tender Document and
provisions of the Public
Procurement Act, 2003 (Act 663).
Indeed; in the Standard Tender
Document under the heading
“Section III – Evaluation and
Qualification Criteria”, the 1st
Defendant expressly stipulated
in clear language to all bidders
that part of its evaluation
criteria shall include “SUCCESS
WITH SIMILAR PROJECTS AND
CUSTOMERS” as well as, “QUANTITY
OF RELEVANT PAST EXPERIENCE”.
It is their further contention
that the 1st
Defendant adhered to the
Technical Evaluation which
constituted a significant
percentage of the score by the 3
companies who participated in
the bidding included visiting
the 3 companies namely COCOBOD,
GTP and Produce Buying Company (PBC)
indicated by the bidders
themselves in accordance with
Section IIII of the Evaluation
and Qualification Criteria.
Furthermore, the omission by 1st
Defendant to announce scores of
the overall technical evaluation
did not constitute a breach of
the Public Pronouncement
Procurement Act, 2003 (Act 663).
The case of the 2nd
Defendant is that it was
incorporated and established in
Ghana in 1991 as the first ever
local company in the business of
software development, systems
integration and information
consultancy. That, it created
and developed the first local
software system for the
processing of payroll. 2nd
Defendant therefore contends
that it won the IPPD3 Payroll
Database Backup system purely by
dint of its hard work and years
of leading industry research
which saw to the production of
its superior software programme
for payroll administration. 2nd
Defendant states that the
demonstration of the software
programs of respective bidders
is an ordinary part of the
evaluation process and that the
1st Defendant never
changed any evaluation criteria;
the evaluation criteria was
never reduced to merely seeking
the verbal approval of a single
client of each of the bidders.
The 2nd Defendant
denies having enjoyed any favour
or advantage throughout the
process. It contends that it
has successfully completed the
implementation of the Backup
System two months ahead of
schedule and with resounding
success in the administration of
the Government payroll. The
Backup Payroll system therefore
has not and will not cause any
loss-financial or otherwise to
the state.
The Plaintiff also alleged per
its pleadings that the 2nd
Defendant submitted its bid
after the close of the deadline
for submission of bids. However
Plaintiff abandoned this claim
at the trial. In my opinion
therefore, the crux of
Plaintiff’s claim is that the
alleged arbitrary change of the
method of selecting a qualified
bidder for the award of contract
was wrongful and it breached
section 5 1 (3) of the Public
Procurement Act, 2003 (Act 663)
in so far as the change was
effected after the deadline for
submission of tenders. Another
breach allegedly committed by 1st
Defendant is that the 1st
Defendant did not announce the
tender price to those present at
the opening of tenders.
The position of the law and this
is common knowledge, is that for
every case there is a burden of
proof to be discharged and the
party who bears this burden will
be determined by the nature and
circumstances of the case. Our
Evidence Decree, 1975
(N.R.C.D 323) as
interpreted in Ababio v.
Akwasi III [1994-95] Ghana Bar
Report, Part II, 74 is
that a party whose pleadings
raise an issue essential to the
success of the case assumes the
burden of proving such issue.
However as stated by Justice
Mensa Boison JA in the case of
Acquaye v. Awotwi [1982-83]
2GLR 110, the testimony of a
plaintiff is presumptive
evidence which is rebuttable.
The well-known rule of evidence
is that although proof in a
civil case rested on the
plaintiff, that burden was
discharged once the plaintiff
had introduced sufficient
evidence of the probability of
his case. It would then rest on
the defendant to rebut the
plaintiff’s evidence. Thus in
Re Ashalley Botwe Lands:
Adjetey Agbosu & Ors v. Kotey &
Ors [2003-04] SCGLR 420, it
was held as follows:
“....the burden of producing
evidence in any given case was
not fixed, but shifted from
party to party at various stages
of the trial depending on the
issue (s) asserted and/or
denied.”
The general rule is also that
where a case is of a civil
nature, the standard of proof
shall be by the preponderance of
probabilities.
So, what evidence did the
Plaintiff adduce in support of
its claims? P.W.1 (Michael
Quarshie, Managing Director of
Plaintiff Company) tendered in
evidence as Exhibit “A”, the
Standard Tender Document which
set out rules governing the
bidding process, which was
circulated to the bidders. It
was P.W.1’s further evidence
that at the meeting held on 28th
January, 2008, the meeting
agreed on the modalities for the
bidders to demonstrate the
workings of their software.
He said that the meeting ended
on a clear understanding that 1st
Defendant would formally write
to the bidders for each of them
to indicate the kind of hardware
and software they would require
for their version of the IPPD3
to run on at the intended
demonstration.
It was P.W.1’s further testimony
that per the letter dated 17th
July, 2008 (Exhibit “D”) the
bidders were informed of the
cancelation of the intended
demonstration of their
respective software and that as
a substitute, 1st
Defendant had visited each
client of the bidders for the
technical evaluation. P.W.1’s
evidence was that at the
financial bid opening and
contrary to the law and
practice, Defendant failed to
announce the results of their
alleged technical evaluation
which they allegedly conducted
during client visitation.
P.W.1 further testified that the
sudden change of the requirement
for demonstration enshrined in
pages 40 and 131 of Exhibit “A”,
and the failure to announce the
results of the technical
evaluation prior to the opening
of the financial bids were
purposefully done by 1st
Defendant to favour 2nd
Defendant. P.W.1 testified
further that based on the
unfair, discriminatory and
non-transparent bidding process,
1st Defendant
purportedly awarded the contract
for the development of the IPPD3
system to 2nd
Defendant and went ahead to pay
2nd Defendant a total
sum of US$4,300,000.00,
representing fees for the
development and maintenance of
the software. P.W.1 stated the
losses or injury Plaintiff had
suffered and tendered in
evidence a list of same as
Exhibit “F”.
In support of its claim that 2nd
Defendant had been overpaid,
Plaintiff subpoenaed the Bank of
Ghana to come to testify. The
evidence of P.W.3 (Augustina
Mintah, a Manager of the Bank of
Ghana) was that transfers made
into the 2nd
Defendant’s account were
US$1,470,000 (on 1st
August, 2008) and GH¢2,689,000
(on 6th August,
2008). Exhibit “J” dated 11th
March 2009 is a “Request for
Final Payment to M/S Softtribe
Limited” of US$378,686.62 made
by the 1st Defendant
to the Hon. Minister, Ministry
of Finance & Economic Planning
as the balance on the contract
sum. I fail to appreciate how
this in any way suggests, much
more prove, that the 2nd
Defendant’s bid offer was the
highest amongst the bidders as
was suggested by Counsel for
Plaintiff during
cross-examination of Tetteh
Antonio, CEO of 2nd
Defendant Company. Neither does
it prove, as suggested by
Counsel, that the maintenance
fees were prepaid to 2nd
Defendant in breach of the
Financial Administration Act,
2003 (Act 654), and I will so
find.
Plaintiff is also contending
that the failure of the 2nd
Defendant to announce the
results of the Technical
Evaluation prior to the opening
of the financial bids was a
breach of the Public Procurement
law. Plaintiff however failed to
lead evidence as to the specific
provision in the law. As a
matter of fact, P.W.1’s evidence
was that the said failure is a
breach of the “norms and
practices in procurements of
this kind”. There is nonetheless
no evidence before the Court as
to what these “norms and
practices” are. The evidence of
Mr. Issah was that at the time
of the opening of the financial
bids the Technical Evaluation
had been concluded. The
Evaluation Report (Exhibit “5”)
however contained the Technical
Evaluation scores. I will
accept the evidence of Mr.
Issah, and also his evidence
that the omission was an
oversight, and not a breach of
any law, norm or practice; and I
will so find.
I shall now examine what, in my
opinion, is the main issue to be
determined; that, 1st
Defendant breached Act 663 to
favour 2nd Defendant.
And in doing so I shall look at
the provisions of Act 663 that
are said to have been breached.
Section 51 (3) states as
follows:
“The procurement entity may
modify the invitation documents
by issuing an addendum prior to
the deadline for submission of
tenders”.
Section 59 of Act 663 which is
on the evaluation of tenders
provides in sub-section 2 as
follows:
“A Criterion shall not be used
that has not been set out in the
invitation documents”.
And as stated above, it is the
case of the Plaintiff that the
evaluation process was wrongly
and unilaterally changed after
the deadline for submission of
tenders to favour the 2nd
Defendant. The tenders were to
reach 2nd Defendant
by 12noon on 7th
December 2007. It was the
evidence of P.W.1 that when
Plaintiff responded to the
invitation to tender, it
believed per the provisions in
pages 40 and 131 of Exhibit “A”
that there would be a
demonstration to the evaluation
panel. P.W.1 tried to
suggest that the only way to
appraise certain technical
evaluation criteria was through
“demonstrations” conducted by
the software owners themselves.
This is what P.W.1 said under
cross-examination:
Q: At the time before 21st
December 2007 you knew that
there was going to be a
demonstration required of you?
A: Yes, I believe so
because of page 40 the Technical
Evaluation Criteria it demands
that there be a demonstration.
Again I believe so because page
131 of the bid document states
clearly that the Controller and
Accountant General will form a
panel then will require that we
come in and demonstrate our
software to a panel of people
formed by the Controller and
Accountant General.
Q: Have a look at Exhibit
“A” and turn to page 40; can you
tell me where on page 40 it says
that there is to be a
“demonstration”? Do you see the
definition there or instruction
for a “demonstration”?
A: I do not see the word
“demonstration” as being asked
by Counsel for the 2nd
Defendant.
Q: In fact, there is no
instruction on page 40 that the
tender process must involve your
coming forward to demonstrate
personally your product, not so?
A: Indeed, yes. There is
nowhere that states that we
should come in and demonstrate
personally, but it is inferred
from the Technical (Evaluation
Criteria).
Q: You are inferring it?
A: I am not inferring; this
is English Language; you cannot
determine ease of installation;
you can only determine ease of
installation by seeing the
programme being installed; you
cannot determine ease of
installation and then score ease
of installation by going to use
a product that has already been
installed; you cannot evaluate
ease of configuration by going
to see a product that has
already been configured; you
cannot evaluate ease of
management by going to see a
product that has already been
managed. Indeed if the
evaluation panel went to any of
these clients at a specific time
of the month where the payroll
run had already been done then
essentially all they will be
looking at are screens in the
software.
Q: A client who has
installed the software is in a
good position to say how easy or
difficult the software is to
install not so?
A: If a client has
installed or did install the
software then they would be,
yes, but it is possible that the
client never installed the
software themselves.”
Arising out of this
cross-examination, clearly P.W.1
admitted that a client who had
installed software and who had
direct knowledge of its workings
was in a good position to
evaluate it.
The 2nd Defendant’s
C.E.O, Tetteh Antonio, gave
evidence to rebut the evidence
adduced on behalf of the
Plaintiff. His testimony was
that 2nd Defendant
submitted its “Aketua” Payroll
Management software, which it
had developed earlier, for the
competitive bidding in question.
That the 3rd
generation of the “Aketua” was
developed in 2003 when 2nd
Defendant became Microsoft
Development partners. It was the
evidence of Mr. Antonio that
Exhibit “A” did not stipulate
any particular method of
technically evaluating the
products under the bid. It was
his contention that the proposal
for a new method to technically
evaluate per Exhibit “D” did not
constitute a breach of Act 663.
The undisputed evidence placed
before the Court is that the
bidders were invited to a
meeting per Exhibit “C”, on 28th
January 2008, after the closing
date for the tenders. The
further evidence before the
Court is that at the meeting,
the bidders agreed to 1st
Defendant’s proposal that
instead of a demonstration, the
bidders should produce
prototypes. Subsequently,
specifically on 17th
July, 2008, 1st
Defendant wrote to the bidders
(Exhibit “D”) informing them
that it had decided not to use
prototypes any longer, and that
the Team had instead visited a
number of the clients listed by
the bidders in their submissions
as part of the technical
evaluation.
The letter of invitation,
Exhibit “C” reads as follows:
“RE: EVALUATION OF TECHNICAL
PROPOSALS IPPD3 SYSTEM
Following your submission of
proposals in respect of the
above stated project, a
committee was empanelled to
evaluate the technical
proposals.
In order to achieve the best
possible appreciation of your
intended product, the committee
requests that you are given
opportunity to demonstrate
workings of the software you
propose.
In this connection, you are
hereby invited to a meeting to
discuss the pertinent aspects of
this development at the
Controller and
Accountant-General’s Department
conference room on Monday, 28th
January, 2008 at 10.00 am.”
Plaintiff is relying on this
letter to prove its assertion
that the Request for Proposal
indicated that there was going
to be a demonstration. This
letter however, in my opinion,
does not support that position.
The evidence placed before the
Court is that Exhibit “C” was
written after the Technical bids
were opened. The fact that
modifications or changes can
only be done before the deadline
for submission is not in doubt.
The question to ask therefore
is; was there a “modification”
or “change” to the invitation
document contrary to section 51
(3) of Act 663? I shall answer
this question later.
But, what exactly does the
invitation document say? On page
40 of the tender document,
Exhibit “A”, the Technical
Evaluation Criteria is provided
as follows:
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TECHINCAL EVALUATION
CRITERIA |
POINTS |
|
Technical Features of
the Product |
20 |
|
Technical Features of
the Products
Quality of the overall
information system
solution
Quality and capabilities
of key products
Performance and
capabilities beyond by
minimum requirements |
|
|
Technical Criteria for
Related Service |
10 |
|
Quality of the proposed
Project Plan
Quality of Installation
and Acceptance test
support services
proposed
Quality of warranty and
maintenance period
services proposals |
|
|
Tenderer and Key Product
Qualifications
|
10 |
|
Risk profile as a
long-term business
partner
Success with similar
projects and customers
Quality of relevant past
experience |
|
|
Hands-on Application
software Evaluation
Criteria |
30 |
|
Substantiate or qualify
tender claims for
specific Software,
including conformance to
Technical
Specifications, and
adjust scoring for
relevant Product
Technical features (ToR)
based on actual findings
Ease of Installation,
configuration and
Management
Quality of
Documentation, Online
Help and Tutorials
Ease of Use and
Consistency of User
Interface
Quality of Remote
Technical Support
|
|
|
Quality of Key Staff |
30 |
|
Number of Key Staff,
they experience in IT
projects, Human Resource
Management, Public
Sector management |
|
|
|
100 |
Nowhere in this chart is it
stated that there would be a
demonstration. Indeed the
evidence of Mr. Isaah, which
evidence I accept, was that the
use of demonstration as a method
for the Technical Evaluation was
thought of after the technical
proposal had been opened. He
said further that the
development of the prototype was
an enhanced form of evaluation.
Page 131 of Exhibit “A” also
reads as follows:
“As part of the evaluation
process, each of the consultants
or the consulting firms are
expected to make a presentation
on the proposal to the Panel of
evaluators to be appointed by
the Controller and
Accountant-General on a date to
be fixed by CAGD after the
closing of the tender on 7th
December 2007.”
Again, there is no mention of a
demonstration of the workings of
the software of the bidders
before a panel of evaluators.
The evidence of D.W.1 was that
the bidders submitted bids on
working systems, and therefore
the 2nd Defendant was
entitled to adopt any method
they deemed appropriate for the
technical evaluation. In the
case of the 2nd
Defendant the evaluating team
got the chance to see “Aketua”
in its working environment. The
unchallenged evidence of Mr.
Issah is that the position of
the evaluation committee was
that from experience, IT
companies were good with live
demonstrations but were not able
to deliver the real service
required, and hence the decision
that they should develop
prototypes. However this was
causing too much delay and
therefore the Committee decided
that it would have a better
demonstration of the working of
the software products if they
went directly to previous
clients.
I will state here that the
evidence of P.W.2, John Benson,
does not assist the Court to
make the determination being
sought by the Plaintiff; he only
stated the obvious. Plaintiff
therefore was not able to
establish to the satisfaction of
the Court that for the kind of
contract as the instant one, the
normal practice in the industry
is to have a live demonstration
for the technical evaluation.
In my opinion there is nowhere
in the Tender Bid document where
it is stated that there ought to
be a live demonstration. It
appears to me that it is rather
the Plaintiff’s preferred mode
of technically evaluating the
bidders. It is my further
opinion that if the letter dated
17th July 2008
(Exhibit “D”) is being regarded
as a modification or change to
the Tender Bid document, then
the earlier meeting of 28th
January 2008 must also be
regarded as such since the
meeting took place after the
deadline of 7th
December, 2007. Yet at the said
meeting, Plaintiff did not
object to the method for making
the technical evaluation and
agreed to the bidders developing
prototypes to be evaluated
instead of a demonstration. So,
what happened to their
understanding of the provision
that there ought to be a live
demonstration then?
I have chosen my words
carefully; I have used the
phrase “method for making the
technical evaluation” above. I
have done so because it is my
opinion that the provision on
page 40 of the Tender document
provides the criteria for
assessing or scoring the
technical capabilities of the
bidders and not the details as
to the method by which the
evaluation was to be done. In
other words, no new factors for
consideration were added and
neither were any taken away;
there was no change as to the
apportionment of points or
marks, or any shift in the
factors to be taken into
consideration. The meeting of
28th January
therefore could not be said to
be a modification or change to
the said evaluating criteria.
Thus 1st Defendant
did not have to and indeed did
not issue any addendum to the
Tender documents. Indeed the 28th
January meeting was held after
the deadline for submission of
tenders. In any case, from my
reading of Act 663, I do not see
anything that prevents 1st
Defendant from applying any
additional criteria in
evaluating the bids.
It may however be said that with
regard to the methodology, the 1st
Defendant had deemed it
necessary to call a meeting to
give the bidders the opportunity
to discuss the method to be
adopted for the technical
evaluation. And at the meeting
the bidders had agreed to the
development of prototypes. If
the 1st Defendant had
subsequently decided that in
order to cut down on delay and
cost, they would rather visit
companies stated by the bidders
as their clients who use their
software, then maybe they should
have informed the bidders before
doing so; irrespective of the
fact that the criteria stated on
page 40 of Exhibit “A” already
included getting information
about clients who were using the
software. It is nonetheless my
opinion that the Plaintiff has
not proved that 1st
Defendant breached section 51
(3) of Act 663, and I will so
find.
In my opinion, it is important
to note that it is not the
Technical Evaluation per se that
formed the decision to declare 2nd
Defendant bid as successful. It
is stated on page 8 of the
Evaluation Report (Exhibit “5”)
that: “The Evaluation team
decided, based on the technical
scores that all three
consultants are technically
responsive”. It is stated
further on page 31 that all the
3 companies qualified for
Financial Evaluation. The
undisputed evidence before the
Court was that the financial
bids were opened in the presence
of all three bidders. I will
accept the evidence of Mr. Isaah
that it is normal practice for
the technical bid to be opened
before the financial bid.
Section 42 of Exhibit “A” states
clearly that: “The Purchaser
shall award the Contract to the
Tenderer whose offer has been
determined to be the lowest
evaluated tender and is
substantially responsive to the
Tender Documents, provided
further that the Tenderer is
determined to be qualified to
perform the Contract
satisfactorily.”
There is no evidence before the
court to show that the 2nd
Defendant did not offer the
lowest financial bid. Plaintiff
appears to be in some doubt as
to the existence of the
technical scores contained in
the Evaluation Report (Exhibit
“5”) before the opening of the
financial bids. In my opinion,
if the technical evaluation did
not exist, all the
representative of the Plaintiff
had to do was to have asked for
it before the opening of the
financial bids. This would have
proved its existence or
non-existence.
The recommendation made in the
Evaluation Report (Exhibit “5”)
was as follows:
“After the assessment of the
three companies both technically
and financially, the Committee
recommended THE SOFTTRIBE LTD,
the lowest evaluated bid as
capable of effectively tackling
the issue at hand”.
The Plaintiff has not complained
anywhere in its pleadings, nor
has it led any evidence to prove
that the financial evaluation
was flawed in any way. It was
abundantly clear from the
evidence of P.W.1 that he is
convinced in his mind that 2nd
Defendant has somehow been
favoured but Plaintiff was not
able to adduce the required
evidence to translate his
suspicions into proof.
To further support Plaintiff’s
conviction that if the technical
evaluation had been objectively
done, Plaintiff would have won
the bid because its software is
superior, P.W.1 stated under
cross-examination that some
staff at the 2nd
Defendant Department had
informed him that the payroll
system of the 2nd
Defendant was not working well.
However, this assertion remains
a mere speculation; there is no
evidence placed before the Court
to prove this.
Mr. Antonio tendered in evidence
newspaper publications
containing statements made by
Government about the clearing
and cleaning up of salary
arrears. Exhibit “8” was an
article in which the Ghana
Association of Teachers was
urging Government to clean up
the payroll. His evidence was
that this publication dated
October 1, 2008, was in respect
of IPPD2 and not IPPD3. His
further evidence was that after
2nd Defendant was
informed that it had won the
bid, they were paid a
mobilization fee. He said that:
“The Government had not been
able to pay arrears for Civil
Servants as of 30th
October, 2008. Three months into
the project 2nd
Defendant had reached the
position where the government
would issue the statement
informing all and sundry that
they were ready to pay arrears
now.” He said the said
publication was before the
“Arrears Generation
Authorization for Release Order”
(Exhibit “7”) was sent to the 2nd
Defendant.
Mr Antonio also tendered in
evidence publications in the
Daily Graphic of 5th
December 2008 and 16th
December 2008 (Exhibits 9 &9A)
informing the public that all
the arrears had been cleared and
the Government was going ahead
to pay. It was his further
evidence that 2nd
Defendant had received the
Government User Acceptance of
the system (Exhibit “11”). The
further undisputed evidence
placed before the Court is that
2nd Defendant had
been fully paid for the work
done on attaining sign off. 2nd
Defendant is now in the “service
phase” of the project. I will
accept all these pieces of
evidence.
The position of the law with
regard to the burden of proof
and its discharge has been
discussed above. But to recap, I
will echo the following
quotation: “Our duty is to
believe that for which we have
sufficient evidence, and to
suspend our judgment when we
have not” (John Lubbock
(1803 – 65)). Charles
Dickens also made this very apt
statement in “Great
Expectations” (1860 – 1): “Take
nothing on its looks; take
everything on evidence. There’s
no better rule.” I will
therefore find that Plaintiff
has not discharged the burden of
proof placed on it, and has not
established that the tender
process was arbitrarily changed
or modified to favour the 2nd
Defendant, and I will so hold.
In conclusion, I will hold that
all the reliefs being claimed by
the Plaintiff are dismissed. I
shall award costs of GH2, 500
each in favour the 1st
and 3rd Defendants
(jointly), and the 2nd
Defendant.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
OPOKU AMPOSAH
- PLAINTIFF
CECIL ADADEVOH
- 1ST & 3RD
DEFENDANTS
CHARLES ZWENNIES -
2ND DEFENDANT |
