AHEY LTD. vs. ARTHUR [1987]DLCA692

Date	1987-01-22
Suit No.
Citation No.	[1987]DLCA692

OSEI-HWERE JA

WUAKU JA

AMUA-SEKYI J.A

KEDDEY FOR THE APPELLANT

EBOW QUASHIE FOR THE RESPONDENT.

[1987]DLCA692
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													<main id="main" class="content" style="min-height: 60rem" >AHEY LTD. <o:p></o:p>vs. <o:p></o:p>ARTHUR <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 19<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
22 JANUARY 1987<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">

KEDDEY FOR THE APPELLANT <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">

OSEI-HWERE, WUAKU AND AMUA-SEKYI JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.A.<o:p></o:p>Amua-Sekyi
J.A. (delivering the first judgment at the invitation of Osei-Hwere J.A.). In
April 1977 the plaintiff, Sarah Arthur, and the defendants entered into a
building contract whereby the defendants agreed to construct for the plaintiff
a two-storey block of three flats at Windy Ridge, Takoradi at a cost of
¢189,000. Construction was to be completed within ten months from the date of
commencement of operations which was to be taken as the date on which the
building permit was obtained. On the pleadings the parties are agreed that
building operations were begun on 18 October 1977 and that the date for
completion was 17 August 1978. By February 1980 the building had not been
completed although the plaintiff had paid to the defendants the full value of
the contract. On 6 February the parties met and agreed upon a variation of the
contract by conversion of the roofing from aluminium to reinforced concrete. It
was agreed that a further sum of ¢50,000 be paid by the plaintiff to the
defendants to cover increased costs of labour and materials and that the
completion date was now to be June 1980. The plaintiff paid ¢26,000 out of this
sum. When, once again, the defendants defaulted on their obligations the
plaintiff issued a writ in the High Court.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants denied liability and blamed scarcity of building materials for their
failure to complete the building. They referred to clause 10 (g) and (k) of the
contract which provides:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“If ...
the works are delayed by reason of . . . (g) delay in supplies of specified
materials . . . (k) any other delay caused by circumstances beyond the control
of the contractor, then the Employer shall grant a fair and reasonable
extension of time for the completion of the works having regard to the amount
of delay already so caused.”<o:p></o:p><o:p>&nbsp;</o:p>They
tendered in evidence two letters, one dated 23 June 1980 in which they
complained of lack of iron rods, granite chippings and naco louvre frames and
glasses and asked for a three-month extension of time, and the other dated 28
July 1980 in which they complained of lack of cement and paints and asked for a
six-month extension. The plaintiff disputed the contention of the defendants
that she agreed to either of these requests. It is however clear that even if
she did, the date for completion had long expired when the matter came to
trial. No further extension appears to have been sought or granted.<o:p></o:p><o:p>&nbsp;</o:p>In the
High Court the plaintiff was awarded damages under two heads, namely:<o:p></o:p>(a)
¢521,681 being the estimated cost of completing the building less the unpaid
balance of ¢26,000;<o:p></o:p>(b)
¢50,400 being loss of rents at the rate of ¢1,200 per month from September 1978
to the date of judgment.<o:p></o:p><o:p>&nbsp;</o:p>It is in
respect of this judgment that the defendants have appealed to this court.<o:p></o:p>For the
defendants, it has been urged that the proper thing for the plaintiff to have
done on the determination of the contract was to complete the building and then
sue for the actual cost of completion and, secondly, that the loss of rents, if
any, ought to have been calculated from July 1980 and, in any case, that the
plaintiff was not entitled to such rents up to the date of judgment. In this
case, the plaintiff came to court without, it seems, making any attempt to
complete the building herself. The record does not show that any questions were
put to her in the court below to find out why, but in this court her counsel
said she ha</main>