BUAFUL vs. CONSTRUCTION PIONEERS [1983]DLHC2112

Date	1983-03-13
Suit No.
Citation No.	[1983]DLHC2112

WUAKU

E. F. SHORT FOR THE PLAINTIFF.

KOCUVIE-TAY FOR THE DEFENDANTS.

[1983]DLHC2112
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													<main id="main" class="content" style="min-height: 60rem" >BUAFUL <o:p></o:p>vs. <o:p></o:p>CONSTRUCTION PIONEERS <o:p></o:p>[HIGH COURT CAPE COAST]<o:p></o:p>[1982-83] GLR 1058<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:
13 MARCH 1983<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">

E. F. SHORT FOR THE PLAINTIFF. <o:p></o:p>

KOCUVIE-TAY FOR THE 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">

WUAKU<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF WUAKU<o:p></o:p>The
original parties to the suit herein were Nana Kofi Amanyi III and Carl Ploetner
Engineering Construction (Ghana) Ltd. The original plaintiff died before the
hearing of the case could be started and was substituted for by Opanyin Kweku
Buaful. It appears that the original defendants too for one reason or the other
have ceased to operate in Ghana and have been replaced by Construction
Pioneers.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s claim is based on an agreement dated 21 February 1977 whereby the
defendants had agreed to pay ¢2,000 for the removal of 6,000 cubic yards of gravel
from the plaintiff’s land. The plaintiff’s case is that the defendants had paid
the ¢2,000 for the 6,000 cubic yards of gravel or soil taken but had not paid
for the gravel or soil taken in excess of the 6,000 cubic yards agreed upon.
The plaintiff says that in all, the defendants took 117,000 cubic yards of
gravel and the defendants are therefore liable to pay to him for 111,000 cubic
yards of gravel at the rate of ¢2,000 per each 6,000 cubic yards.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants admit the existence of the agreement but plead that what they took
from the plaintiff’s land was mineral which is vested in the government and
that they paid the ¢2,000 under a mistake of law or fact. They have thus sought
the Attorney-General to be joined as a third party to represent the Lands
Department which they say had advised them not to pay any money to the
plaintiff.<o:p></o:p>

The third
party notice was duly served on the Attorney-General who without entering
appearance, delivered a defence. The Attorney-General, apart from delivering
the defence aforesaid, never took any other part in the proceedings although
served with hearing notices and a written order of the court to appear to
defend the action.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants took part in the proceedings up to the close of their defence, since
then, they stopped attending court and thus did not address the court. In my
view, there was no need to serve the defendants with hearing notices before
attending court once they were in court when the case was adjourned. And as in
this case, where the defendants have a counterclaim to prosecute, if they mean
to defend and or prosecute their counterclaim, they should have taken it upon
themselves to find out the next hearing date if they are not already aware of
it.<o:p></o:p><o:p>&nbsp;</o:p>However,
on 18 November 1982 upon the order of the court, the registrar of this court
wrote to the defendants and the third party to attend court on 8 December 1982,
but they failed to do so, the case was adjourned from that date to two other
subsequent dates, but still they failed to attend court. Therefore on the last
adjourned date which was 14 January 1983, the court asked counsel for the
plaintiff to address the court notwithstanding the absence of the defendants
and the third party.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants are a firm of civil engineers of international fame and repute. I am
surprised that they should as hereinafter mentioned seek to abrogate an
agreement properly entered into by them on the ground that what they themselves
had described as gravel, or base soil or earth is afterall mineral and
therefore are not bound by the agreement. Even when Ghana was called Gold Coast
our roads and streets were not paved with the well-known minerals as we know
them such as gold, bauxite or diamonds, etc. Today, in our history, I think, to
put it very mildly</main>