C.C.W. LIMITED vs. ACCRA METROPOLITAN ASSEMBLY [2008]DLSC2436

Date	2008-02-13
Suit No.	CIVIL APPEAL NO. J4/5/2007
Citation No.	[2008]DLSC2436

MISS. AKUFFO J.S.C.(PRESIDING)

DR. DATE BAH J.S.C.

ANSAH J.S.C.

ANINAKWAH J.S.C.

ASIAMAH J.S.C.

MR. STANLEY AMARTEIFIO FOR APPELLANTS.

MR. TONY LITHUR FOR RESPONDENTS.

[2008]DLSC2436
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													<main id="main" class="content" style="min-height: 60rem" >C.C.W. LIMITED<o:p></o:p>vs.<o:p></o:p>ACCRA METROPOLITAN ASSEMBLY<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/5/2007<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: 13TH FEBRUARY, 2008.<o:p></o:p>

</div>COUNSEL<o:p></o:p>&nbsp;MR. STANLEY AMARTEIFIO FOR APPELLANTS.<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.
TONY LITHUR FOR RESPONDENTS.<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 1.0pt 0in">

MISS.
AKUFFO J.S.C.(PRESIDING), DR. DATE BAH J.S.C., ANSAH J.S.C., ANINAKWAH &nbsp;J.S.C., ASIAMAH &nbsp;J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>&nbsp;DR. DATE-BAH, J.S.C.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>The
facts<o:p></o:p>The
Plaintiff is a limited liability company incorporated under the laws of
Ghana.&nbsp; It carries on the business of
waste collection, disposal and management and also provides landfill
services.&nbsp; The Defendant is a statutory
body whose existence as a District Assembly was continued by the Local
Government Act 1993 (Act 462).&nbsp; By an
agreement of 4th December 1997, the Defendant engaged the Plaintiff to render
waste disposal services, including landfill services, within the city of
Accra.&nbsp; The agreement was to last 7 years
from the date of its execution.&nbsp; The
agreement further provided that both Parties had the option of renewing it for
a further 7 years.&nbsp; The Plaintiff averred
that it commenced work under the agreement on 13 July 1999 and continued to
perform its obligations under it until 29th June 2001, when the Defendant
terminated the agreement by a letter of that date.&nbsp; The Plaintiff contends that this termination
constituted a breach of contract and has therefore brought this action, by a
Writ dated 25th June 2002, claiming the following reliefs:<o:p></o:p>&nbsp;<o:p></o:p>“(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order compelling the Defendant to pay
to the Plaintiff the sum of the equivalent in cedis of&nbsp; US $ 10,207,718.51 at the prevailing forex
bureau rate on the date of actual payment being the cost of services provided
by the Plaintiff for the Defendant pursuant to the Service Agreement executed by
the parties on 4th December 1997 less any amount adjudged upon independent
valuation to be owing to the Defendant for the 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 the 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 relief;<o:p></o:p>(f)&nbsp;&nbsp;
Costs.”<o:p></o:p>&nbsp;The Defendant, in response, challenged the
enforceability of the agreement, pleading in its Amended Statement of Defence
that the agreement was executed under duress and in breach of section 67(1) of
the Defendant’s Standing Orders and sections 39, 87 and 88 of the Local
Government Act, 1993.&nbsp; The Defendant
further contended that the Memorandum of Understanding which gave rise to the
agreement and the decision of the Defendant to hold shares in the Plaintiff
Company was never debated and approved by the General Assembly of the
Defendant, as required by law.&nbsp; The
Defendant maintained that it was not obliged to continue operating under an
illegal contract which contained unconscionable terms and conditions.&nbsp; Furthermore, the Defendant contended that the
agreement sued on could only become effective after the execution of the
Financing Agreement between the Ministry of Finance and the Defendant, as
stated in paragraph 3 of the Recitals of the Agreement and defined in clause
1.16 of the agreement, with prior Parliaamentary approval and in accordance
with the Loans Act 1970 (Act 335).&nbsp; The
Defendant also pleaded in its Amended Statement of Defence that prior
Parliamentary approval was required for the grant of a sovereign guarantee with
respect to all financial obligations of the Defendant, but this had not been
obtained.<o:p></o:p>&nbsp;The statutory provisions referred to above and
other related relevant statutory provisions are set out below.<o:p></o:p>&nbsp;Section 39 of the Local Government Act:<o:p></o:p>&nbsp;<o:p></o:p>“(1) A District Assembly shall have a
district tender board which shall advise the Assembly on the award of contracts
in the district that<o:p></o:p>&nbsp;(a) are to be financed exclusively from the
resources of the Assembly; or<o:p></o:p>(b) have been approved by
the Government and are not in excess of the limits determined by the Minister
responsible for Finance.<o:p></o:p>(2) A district tender board shall
comprise of the persons determined by the Minister by legislative instrument.<o:p></o:p>(3) A person appointed as a member of
a district tender board shall within three months after the appointment,
declare the assets of that person to the Auditor-General.<o:p></o:p></spa</main>