BUSHIE ENTERPRISE vs. THE PROJECT MANAGER, NORELEC GHANA & NORLEC GHANA [2004]DLCA6669

Date	2004-03-26
Suit No.	CIVIL APPEAL NO. H1/44/2004
Citation No.	[2004]DLCA6669

ARYEETEY J.A. (PRESIDING)

AKOTO-BAMFOR J.A.

ASARE-KORANG J.A.

MISS BRENDA SEMEVOR FOR

EKOW AWOONOR FOR APPELLANT

MR. IBRAHIM MAHAMA FOR RESPONDENT

[2004]DLCA6669
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													<main id="main" class="content" style="min-height: 60rem" >BUSHIE ENTERPRISE<o:p></o:p>vs.<o:p></o:p>THE PROJECT MANAGER,
NORELEC GHANA &amp; NORLEC GHANA<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

CIVIL APPEAL NO. H1/44/2004&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 26TH MARCH 2004<o:p></o:p>

MR.
IBRAHIM MAHAMA FOR RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENTS<o:p></o:p>

</div>ARYEETEY, J.A. <o:p></o:p>A
background to this appeal is as follows: The plaintiff/respondent, as
Sub-Contractor, entered into an agreement, exhibit A, with the second
defendant/appellant-company, as Contractor, on 15th June 1998 for the
excavation of foundations and erection of 221 steel towers for electricity
transmission of 34.5 KV line between Kumbungu and Daboya in the Northern
Region. The contract price payable to the respondent is stated in the
agreement. It is the case of the respondent that the appellants unilaterally reduced
the number of towers to be erected to 42 without any justification, which was
in violation of clause 1.7 of exhibit A. The respondent contends further that
while he was making excavations in respect of Towers Numbers 1-42 the
appellants stopped him without giving him the notice required under Clause 1.7
of exhibit A. According to the respondent the termination of the contract by
the appellants was also contrary to Clauses 2.1, 3.1. and 3.2. of exhibit in
that when the appellants terminated the contract they failed to pay moneys due
to him as well as the cost of materials. <o:p></o:p>Since
the respondent referred to Clause 3.1 and Clause 3.2 as having been violated by
the respondents I would reproduce them in full for a better appreciation of the
nature of his claim. They area as follows: <o:p></o:p>“3.1 Contractor may, at its option,
terminate Sub-Contract at any time in whole or in part by written notice hereof
to Sub-Contractor whether or not Sub-Contractor is in default and whether or
not Main Contract is subject to termination. Upon receipt of any such notice,
Sub-Contractor shall, unless the notice directs otherwise, immediately
discontinue works on the date and to the extent specified in the notice, place
not further orders or Sub-Contracts for materials, equipment, services or
facilities except as may be necessary for completion of such portion of the works
as is not discontinued, promptly make every reasonable effort to proceed with
cancellation upon terms satisfactory to Contractor of all orders. Sub-Contracts
and rental agreements to the extent they relate to the performance of works
discontinued and shall thereafter do only such work as may be necessary to
preserve to protect works already in progress and to protect materials, plant
and equipment at the project site or in transit thereto. <o:p></o:p>3.2 Upon such termination,
Sub-Contractor shall be entitled to be paid the value, calculated on the basis
of the payment provisions of the Sub-Contract, of all the works properly
carried out on the site by Sub-Contractor together with reasonable costs
occasioned by and directly resulting from such termination and not previously
paid for, less such sums as Sub-Contractor has already received on account of
the work performed. If, at the time of such termination, Sub-contractor has
properly prepared or fabricated off the site any goods for subsequent
incorporation at the site and if Sub-Contractor delivers such goods to the site
or to such other place as Contractor shall reasonably direct, the
Sub-Contractor shall be paid for such goods or materials. <o:p></o:p>Also,
according to the respondent even though he was permitted to work on 42 towers
which would cost ¢69,416,803.00 he ended up with only 40 and was therefore paid
¢13,360,762.28 less than the contract price. The other assignments carried out
by him for which he was not paid by the appellants were excavation works for
the foundations and construction of Tower Numbers DE4, DE42, SS104, SS107,
SS110, and SS111 at a total cost of ¢10,530,000 as well as survey work in
respect of Towers 43 to 164. Therefore in the court below the
plaintiff/respondent's claim against the first defendant and
second/defendants/appellants jointly and severally was for the following
reliefs: <o:p></o:p>(a)
Special and General damages for breach of contract entered into between the
plaintiff and 2nd defendant on or about 15th day of June 1998 for the erection
of Steel Tower of 34.5 KV Lines between Kumbungu and Daboya in the Northern
Region of Ghana. <o:p></o:p>(b)
Balance of payment for work done but which the defendants have not yet paid to
the plaintiff. <o:p></o:p>(c)
Cost of Survey from Tower 43 to Tower 164. <o:p></o:p>(d)
¢400,000.00 being the cost of 4 trips of River Sand.<o:p></o:p>All
along the appellant's stand has been that the reduction in the number of the
steel towers to be worked upon by the plaintiff was not a unilateral action by
them but was in exercise of their right under exhibit A, which allowed them to
incerase or decrease the number of steel pillars to be constructed. According
to them the plaintiff indeed agreed to the decrease in the number of steel
towers to be erected to avoid the payment of penalties to be incurred if the
project is not executed on schedule. That was after they had written to the
plaintiff complaining about the unsatisfactory manner in which he carried out
the work and instructing him to complete the foundations of Towers Nos. 2 to 41
before 15th July 1998. Even then the plaintiff was unable to complete the work
on schedule in spite of several letters written to him cautioning him about the
delay. The defendants further contend that they did not terminate the agreement
wrongfully and that on the plaintiff's own admission in an agreement on his
letterhead dated 12th October 1998, signed by both parties, the agreement was
lawfully terminated and both partied were discharged from all further obligations.
<o:p></o:p>