SOWAH vs. BANK FOR HOUSING AND CONSTRUCTION AND TETE [1987]DLHC1211

Date	1987-04-26
Suit No.
Citation No.	[1987]DLHC1211

AMUA-SEKYI J.

J. N. OKINE FOR THE PLAINTIFF.

S. N. D. ATIEGAR FOR THE FIRST DEFENDANT.

VON FLEISCHER FOR THE SECOND DEFENDANT.

[1987]DLHC1211
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													<main id="main" class="content" style="min-height: 60rem" >SOWAH <o:p></o:p>vs. <o:p></o:p>BANK FOR HOUSING AND CONSTRUCTION AND TETE<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>&nbsp;[1979] GLR 144<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:
26 APRIL 1978<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. N. OKINE FOR THE PLAINTIFF.<o:p></o:p>

S. N. D. ATIEGAR FOR THE FIRST DEFENDANT.<o:p></o:p>

VON FLEISCHER FOR THE SECOND DEFENDANT.<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">

AMUA-SEKYI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.<o:p></o:p>The
plaintiff, Conrad Odoi Sowah, is the proprietor of a firm of building
contractors and surveyors known as C. O. Sowah &amp; Co. On 8 November 1974,
the firm entered into a contract with Nai Tete, the second defendant, for the
construction of a single storey house on his land at Labadi, Accra, at a cost
of ¢12,400. The contract was tendered in evidence as exhibit B. Under it, the
construction of the building was divided into six stages. Upon completion of
the first stage Tete was to pay the plaintiff ¢1,800; upon completion of the
second stage, ¢2,800; upon completion of the third stage, ¢2,800; upon
completion of the fourth stage, ¢3,000; upon completion of the fifth stage,
¢1,000; and upon completion of the sixth and last stage, ¢1,000. By clause 1
(b) the issue of a certificate of habitation by the Accra City Council was to
be conclusive evidence that the building had been completed. The agreement was
signed by Tete on his own behalf, and by the plaintiff on behalf of his firm. Although
the Bank for Housing and Construction, the first defendant herein, is not a
party to the agreement it is mentioned therein as the agent of Tete and it is
provided that the various sums payable under the contract shall be paid by Tete
or the bank.<o:p></o:p><o:p>&nbsp;</o:p>It goes
without saying that the bank not being a party to exhibit B is not bound by it,
and no action could have been brought against it for non-payment of any sums
alleged to be due under the contract. I take it that both parties were aware of
this elementary fact but that references were made to the bank because of the
expectation the parties had that all or part of the sums due under the contract
would come from the bank. It is in this light that I view the subsequent
agreement entered into between the plaintiff’s firm and the defendants on 3 May
1975. That agreement was tendered in evidence as exhibit D. Under it, it was
recited that Tete had asked for a loan to finance the construction of a
building on his land at Labadi and that the bank had agreed to grant him the
loan subject to certain conditions. The agreement then goes on to state that
the contractor had agreed to erect at “his own proper costs and charges” the
building whose plans and specifications had been agreed upon. The contract sum
was ¢16,575, of which ¢1,800 was to be paid upon the signing of the contract,
and the balance in accordance with clause 13 (ii) which reads:<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">“After
the bank shall have certified that work to the value of the said sum of one
thousand eight hundred cedis (¢1,800) shall have been done by the contractor
the contractor may at the end of each calendar month until final completion of
the works submit to the client a claim for payment and upon the client
confirming to the bank that the claim is fair and reasonable and requesting the
bank to pay the same, the bank, after inspecting the works and satisfying
itself that the claim is fair and reasonable and that the work is in accordance
with the contract drawings and specifications, shall with the written consent
of the client, issue a certificate stating the amount due to the contractor
from the client and pay to the contractor the amount stated in such certificate
within fourteen days from the issue of that certificate.”<o:p></o:p><o:p>&nbsp;</o:p>Clause 10
of the agreement took account of the possibility of variations being agreed
upon, thereby increasing or reducing the contract sum. The said clause10
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
client with the written approval of the bank shall require any deviation from
the contract drawings and specifications or any additional or other work to be
done the contractor shall carry out the work according to such requirement and
do the additional or other work in a substantial and workmanlike manner within
the time prescribed by and to the satisfaction of the client and the bank who
shall estimate the value of the same or in the absence of such estimate at a
fair and reasonable value and the bank at the written request of the client,
shall on the final completion of the work pay to the contractor the amount of
such valuation. If the client shall not require part of the work contained in
the specification to be done the contractor will make such deduction from the
price mentioned in clause 13 hereof as the bank shall certify in writing to be
fair and reasonable.”<o:p></o:p>