KLIMATECHNIK ENGINEERING LTD vs. SKANSKA JENSEN INTERNATIONAL [2003]DLSC2389

Date	2003-07-23
Suit No.	CIVIL APPEAL NO. 9/2000
Citation No.	[2003]DLSC2389

MRS. BAMFORD-ADDO J.S.C. (PRESIDING)

AFREH J.S.C

BADDOO J.S.C

DR. TWUM J.S.C

PROF. KLUDZE J.S.C.

MR. AMARKAI AMARTEIFIO FOR APPELLANT

MR. D. K. ANYADI FOR RESPONDENT

[2003]DLSC2389
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													<main id="main" class="content" style="min-height: 60rem" >KLIMATECHNIK ENGINEERING LTD<o:p></o:p>vs.<o:p></o:p>SKANSKA JENSEN INTERNATIONAL<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. 9/2000<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:
23RD JULY, 2003.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
AMARKAI AMARTEIFIO FOR APPELLANT<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">

MR.
D. K. ANYADI FOR RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp; <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">

MRS.
BAMFORD-ADDO, J.S.C. (PRESIDING), AFREH, J.S.C., BADDOO, J.S.C., DR. TWUM,
J.S.C., PROF., KLUDZE, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>DR.
SETH TWUM, JSC: <o:p></o:p>On
17th February 1999 The Plaintiff/Respondent (hereafter called "the
Respondents") issued a Writ of summons accompanied by a statement of claim
in the High Court Accra, against the Defendants/Appellants. In the course of
the trial, the Respondents wholly discontinued their action against the 2nd
Defendant, namely GLAHCO HOTELS &amp; TOURISM DEVELOPMENT CO. LTD. and its name
was struck out from the suit, leaving SKANSKA JENSEN INTERNATIONAL (hereinafter
"the Appellants")<o:p></o:p>The
Writ of Summons was indorsed with the following reliefs:—<o:p></o:p>(1) Payment of the sum of USD
224,533.29 or its cedi equivalent at the current Forex Bureau rate of exchange
at the date of payment being the Plaintiff's bill for the supply of equipment
and materials and engineering services for HVAC works executed by the Plaintiff
at the New Executive Guest Rooms Wing of Golden Tulip Hotel at the request of
the 1st Defendant as the main Contractors for itself and on behalf of the 2nd
Defendant as the contract owners from December, 1996 to March 1997 and which
bill the defendants have failed or refused to pay despite persistent demands up
to this day.<o:p></o:p>(ii) Interest on the said
USD 224,533.29 from 15th April, 1997 up to the date of final payment at the
current bank rate.<o:p></o:p>(iii) Damages for breach
of contract.<o:p></o:p>(iv) Any other relief
found due.<o:p></o:p>Statement of Claim <o:p></o:p>This contained 22 paragraphs. For the
purpose of this appeal we set out below the most important paragraphs.<o:p></o:p>4. In the latter part of 1996, the 1st
Defendant, as the main contractor, for itself and on behalf of the 2nd
Defendant, as the contract owner, invited the Plaintiff to undertake the HVAC
works (ie. to supply engineering and installation of air-conditioning system)
for the 2nd Defendant's New Executive Guest Room Wing of the Golden Tulip
Hotel.<o:p></o:p>5. Pursuant thereto the Plaintiff per
its Managing Director, Mr. George Zoudros, on the one hand, and the 1st
Defendant's Manager, Mr. Chris D. Kragh, on the other hand executed documents
on 23rd December 1996, containing the main terms of the agreement reached
between the parties.<o:p></o:p>6. On the same date (23rd December
1996) the parties discussed and initialled in draft form a detailed
sub-contract document which the parties mutually intended to govern the
execution of the HVAC sub-contract. It was further mutually agreed that the
formal sub-contract agreement based on the draft would be drawn up by the 1st
Defendant for execution by the parties.<o:p></o:p>7. Due to differences subsequently
arising between the parties, the formal agreement was never finalised and
executed and therefore never became effective between the parties.<o:p></o:p>10. Despite the non-preparation and
non-execution of the formal contract agreement, the Plaintiff nevertheless
proceeded to utilize its own resources in executing the HVAC works which it had
in fact already commenced under pressure from the 1st Defendant from 1st
December 1996, to the best of its abilities. By a letter dated 3rd April 1997
the 1st Defendant without any lawful excuse or justification whatsoever
terminated the Plaintiffs HVAC subcontract upon the sole ground that the
Plaintiff had failed to furnish the 1st Defendant with a Performance Guarantee.<o:p></o:p>16. The Plaintiff says that having
performed over 90% of the HVAC contract works as at the date of the said
unlawful termination, it is entitled to its full value of the agreed contract
price thus so far performed ie. USD 224,533.29 for the Supply of Equipment and
Materials and Engineering and other works executed, and the Plaintiff duly
billed the Defendant.<o:p></o:p>17. Further or in the alternative, the
Plaintiff says that at the stage of the unlawful termination, it became
entitled forthwith to the payment of the value of services thus far rendered on
the quantum. Despite this the Defendant has wrongfully failed or refused to pay
the Plaintiff's initial bill for the Supply of Equipment and Materials and
Engineering services thus far rendered to Defendant in the sum of USD
224,533.29.<o:p></o:p>Statement
of Defence<o:p></o:p>Similarly,
we reproduce important paragraphs only.<o:p></o:p>