C.F.C. CONSTRUCTION COMPANY LTD. vs. GHANA NATIONAL CONSTRUCTION CORPORATION AND ANOTHER [1964]DLHC1887

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C.F.C. CONSTRUCTION COMPANY LTD. vs. GHANA NATIONAL CONSTRUCTION CORPORATION AND ANOTHER [1964]DLHC1887

Date	1964-11-26
Suit No.
DL Citation No.	[1964]DLHC1887

• APALOO J.S.C.

[1964]DLHC1887
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 <main id="main" class="content" style="min-height: 60rem" >C.F.C. CONSTRUCTION COMPANY LTD. <o:p></o:p>vs. <o:p></o:p>GHANA NATIONAL CONSTRUCTION CORPORATION AND ANOTHER <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1964] GLR 627<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
23 NOVEMBER 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. B. QUASHIE-IDUN FOR THE PLAINTIFFS.<o:p></o:p>

T. A. TAGOE FOR THE DEFENDANTS.<o:p></o:p>

H. P. SWANIKER FOR THE CO-DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APALOO J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>In this
action, the plaintiff company are claiming from the defendant corporation the
sum of £G10,227 which the plaintiffs say is due to Ghana Presec Limited from
the defendants and which sum the plaintiffs claim has been validly assigned to
them by Presec Limited.<o:p></o:p><o:p>&nbsp;</o:p>Before
dealing with the extensive and somewhat difficult points of law canvassed in
this case, it is, I think necessary, to relate the facts which are
substantially not in dispute. A company known as the Ghana Presec Limited was
on 12 May 1960 awarded a contract by the Division of Public Construction to
execute and complete the construction of 85 houses and ancillary works for the
government at Osu. The contract documents were tendered in evidence and as is
often the case with government contracts, are very voluminous indeed. The
contract sum according to the contract documents is £G202,809 16s. 9d. Although
there is no direct evidence of it, an affidavit sworn to by a Mr. Eric John Elliot
of the Division of Public Construction, in opposition to an application by the
plaintiffs for the attachment of debts due to Presec Limited from the Division
of Public Construction, shows that the contract sum was increased to £G277,187
as a result of subsequent variations in the original contract.<o:p></o:p><o:p>&nbsp;</o:p>Although
it was a lump sum contract, provision was made for interim payments. No money
was to become payable to the contractor except on the engineer’s certificate in
writing and the certificates were, according to the appendix, to be issued at
intervals of thirty days. The engineer was to certify from time to time the
amount due to the contractor and the latter shall be entitled to payment
therefore within a period of thirty days. Provision was, however, made for
retention moneys. The amount to be certified by the engineer on his monthly
certificates as due to the contractor, was to be at the rate of 90 per cent. of
the value of all works properly executed and materials and goods delivered upon
the site. According to the conditions of the contract, the retention money
became payable to the contractor upon the expiry of the defects liability
period which in this case was a period of six months from the practical
completion of the works, or upon completion of making good defects which shall
appear within the defects liability period whichever is the later.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence shows that the defects liability period expired on 23 March 1962. That
would seem to indicate that the works were practically completed the previous
September. It appears from a letter which the assistant manager of Ghana Presec
Limited wrote to the plaintiffs and dated 21 May 1962 that even by that date
the defects on some part of the works had not been made good. The assistant
manager said in that letter that they were in the process of putting the
defects right and promised that they would be done to the satisfaction of the
Division of Public Construction at an early date. The defects were eventually
put right by the Ghana Housing Corporation on a date which I have not been
told. Mr. Abban, the defendants’ senior quantity surveyor gave evidence that
all of the 85 bungalows, which form the subject of the contract, have since
been occupied. The defects must have been made good at a date prior to 4
October 1962, because on that date, a substantial part of the retention money
was paid to the liquidator of Ghana Presec Limited by the defendant
corporation. As the defects liability period expired and as the defects have
all been made good, the defendants’ engineer was obliged by the conditions of
the contract to issue a final certificate which shall, subject to certain
exceptions which are immaterial to this case, be conclusive evidence as to the
sufficiency of the works and materials. On the issue of such certificate, the
contractor shall be entitled to be paid the retention money or such part of it
as is still unpaid. Mr. Abban testified that to date, no such final certificate
has been issued. That fact gives me no trouble and in the events which have happened,
seems to me to be of no moment.<o:p></o:p><o:p>&nbsp;</o:p>The
conditions of the contrac</main>