C.C.W.L. vs. ACCRA METROPOLITAN ASSEMBLY [2005]DLCA6673

Date	2005-12-09
Suit No.	CIVIL APPEAL H1/80/05
Citation No.	[2005]DLCA6673

AKOTO-BAMFO J.A (PRESIDING)

ASARE-KORANG J.A

ASAMOAH J.

TONY LITHUR FOR PLAINTIFF/RESPONDENT

STANLEY AMARTEIFIO FOR DEFENDANT/APPELLANT

[2005]DLCA6673
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													<main id="main" class="content" style="min-height: 60rem" >C.C.W.L.<o:p></o:p>vs.<o:p></o:p>ACCRA METROPOLITAN
ASSEMBLY<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 H1/80/05&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: 9TH DECEMBER 2005<o:p></o:p>

STANLEY
AMARTEIFIO FOR DEFENDANT/APPELLANT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENTS<o:p></o:p>

</div>AKOTO-BAMFO J.A.<o:p></o:p>CCWL
the Plaintiff in the court below is a limited liability Co. registered under
the laws of Ghana.&nbsp; It carried on the
business of waste collection disposal and management among other things,
whereas the Accra Metropolitan Assembly the deftsic therein is a statutory body
which has the responsibility of dealing with sanitation in the Accra
Metropolitan area among others. <o:p></o:p>By
an agreement dated the 4th of Dec. 1997 between the plaintiff and defendant the
latter contracted with the former to provide services for the collection and
haulage of refuse in designated zonal areas within the city of Accra.&nbsp; The initial contract period was 7yrssic
renewable for a further period of 7yrs.sic Under the agreement exh.H the A.M.A.
was to provide equipment which the CCWL was to utilize in performing its
obligations under the contract.&nbsp; CCWL was
required to pay lease fees to AMA for the use of the equipments.&nbsp; It was provided that the CCWL would after 5
years in respect of the haulage equipment and 7 years in respect of the landfill
equipment own the equipments.&nbsp; Payment
for the services was fixed at $30.28 per metric ton of refuse dumped but the
CCWL later unilaterally revised the contract sum downwards to $25.08.&nbsp; Additionally the defendant was to provide
administrative &amp; waste management premises for the use of the&nbsp; plaintiff at a rent to be determined by the
defendant after the latter had had the property valued.&nbsp; It was not until the 13th of July 1999 after
the arrival of the equipments that the CCWL commenced work. <o:p></o:p>It
continued to perform under the contract until the 29th of June, 2001 when the
AMA by a letter unilaterally terminated the contract. <o:p></o:p>The
CCWL THEREFORE commenced an action for these reliefs: <o:p></o:p>(a)
An order compelling the defendant to pay to the&nbsp;
plaintiff the sum of the equivalent in cedis of $10,207,718,51 at the
prevailing forex bureau rate on the date of actual payment being cost of
services provided by the plaintiff.&nbsp; For
the defendant pursuant to the service agreement executed by the parties on 4th
Dec. 1997 less any amount adjudged upon independent valuation to be owing to
the defendant for use by the plaintiff of the defendant’s waste management
depot. <o:p></o:p>(b)
Interest on the sum mentioned in paragraph (a) above from June 28, 2001 until
date of judgment; <o:p></o:p>(c)
Damages for breach of contract; <o:p></o:p>(d)
Loss of profit <o:p></o:p>(e)
Further or other reliefs <o:p></o:p>(f)
Costs <o:p></o:p>The
deft resisted the plaintiff claim and averred inter alia that the agreement was
executed under duress &amp; in breach of sec. 67 (1) of its standing Orders as
well as secs. 39, 87 &amp; 88 of the Local Government Act and therefore was
null and void.&nbsp; Additionally it contended
that the memorandum of Understanding and the Service agreement as wellsic
decision of A.M.A. to hold shares were neither debated nor approved by the
General Assembly as required under the Local Government law and therefore the
agreement was tainted by illegality.&nbsp;
Furthermore AMA contended that since the contract was awarded without
the approval of the Tender Board of the Ministry of Finance and Parliament the
contract was contrary to public policy particularly since AMA was required to
provide a Sovereign Guarantee by the Government <o:p></o:p>At
the conclusion of the hearing, the learned Judge stated thus; "the
contract between the plaintiff and the defendant I find offensive and against
public policy.&nbsp; On the grounds of public
policy, this is a contract that should be frowned upon and categorized as
illegal.&nbsp; But from the Common Law
authorities, it is not all illegal contracts that are 'unenforceable"'.&nbsp; Consequently, while dismissing the
plaintiff's case he concluded as follows "the plaintiff will be entitled
against the defendant the sum of 715,628 * 18sic dollars payable in cedis at
their current rate.&nbsp; From this amount
will be deducted the figure of 133,400,000 cedis owed to the defendant for the
use of the waste management premises". <o:p></o:p>Being
aggrieved by the decision of the learned Judge, the defendant filed a Notice of
Appeal consisting of six grounds.&nbsp; These
were subsequently amended to read: <o:p></o:p>(a)
The judgment is against the weight of evidence. <o:p></o:p>(b)
The judgment was unsatisfactory in that the learned Judge failed to make
definite findings of fact on the following issues: <o:p></o:p>(i)
User fee for use of defendant/appellants collection and haulage equipment/vehicles
and land fill equipment by plaintiff. <o:p></o:p>