THE REGIONAL DIRECTOR HEALTH SERVICES vs. NBINIWAYAR CONSTRUCTION LTD [2009]DLCA6602

Date	2009-03-23
Suit No.	CIVIL APPEAL SUIT NO. HI/388/05
Citation No.	[2009]DLCA6602

APALOO JA (PRESIDING)

MARIAMA OWUSU JA

ACQUAYE JA

MR. DICK ANYADI FOR DEFENDANT/APPELLANTS

MR. INUSAH FOR PLAINTIFF/RESPONDENT

[2009]DLCA6602
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													<main id="main" class="content" style="min-height: 60rem" >THE REGIONAL
DIRECTOR HEALTH SERVICES<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>NBINIWAYAR
CONSTRUCTION LTD<o:p></o:p>(PLAINTIFF/RESPONDENTS)<o:p></o:p><o:p>&nbsp;</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;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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APPEAL SUIT NO. HI/388/05&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: 26TH
MARCH, 2009<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MR. INUSAH FOR
PLAINTIFF/RESPONDENT <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
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MARIAMA OWUSU JA AND ACQUAYE JA<o:p></o:p>

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</div>APALOO
JA <o:p></o:p>This
is an appeal from the decision of the High Court Tamale dated 13/10/04. Arising
out of that judgment the Defendants/Appellants to be hereinafter referred to as
Appellants raised 3 grounds of appeal for consideration of this Court. They
are; <o:p></o:p>“1. The learned Trial Judge erred when
he held that two certificates in contention, both numbered 3A were prepared the
same day represent separate works executed by the Respondents and therefore the
Respondent is entitled to amounts contained in both certificates. <o:p></o:p>2. The learned trial Judge erred when
he held that the evidence and explanation adduced by defence witnesses raise
suspicion to an independent observer and must therefore inure to the benefit of
the Respondents.” <o:p></o:p>The
third ground is the omnibus one being that the judgment was against the weight
of the evidence. By the two grounds of appeal it is clear that the Appellants’
attack on the judgment is founded on both the finding of fact made by the trial
judge as well as the assessment and credibility placed on the testimony of the
Defendants’ witnesses. The grounds will be considered in detail after the
narration of the facts which precipitated this action in the Court below. <o:p></o:p>The
Plaintiff/Respondent to be referred as Respondent a building contractor based
in Tamale was contracted by the 1st Appellant to construct a 2-storey office
block for the Ministry of Health/Ghana Health Service Tamale. Payment for work
done were not regular as funds were to be provided periodically for work done
and material supplied by the Appellants for the execution of the project. From
the claim of the Respondent the controversy emerged when two certificates were
issued on the same day to the Respondent for work done. The certificates were
both numbered 3A and dated 20th December 2002. The two certificates had
different face value in the sum of ¢128,295,940.63 and ¢110,916,103.75
respectively. When the two certificates were presented for payment the one with
the face value of ¢110,916,103.75 was honoured. The other one was never
honoured despite several demands. <o:p></o:p>The
pleadings disclose that the Appellants refused to honour that certificate
because the 1st Appellant had issued certificate 3A with face value of
¢128,295,940.63 in favour of the Respondent and which certificate did not take
into account the fees of the consultants to the project which were assessed to
be ¢18,000,000.00 and that amount was deducted from the initial certificate 3A
valued at ¢128,295,940.63 and as a result the 1st Appellant issued another
certificate 3A valued ¢110,916,103.75 in replacement of the former and this was
the one honoured. The 1st Appellant explained in paragraphs 7,8,9, and 10 of
its amended statement of defence, the position of the Appellants who went
further to explain per paragraph 8 of the amended defence that an additional
certificate with the face value of ¢33,967,473.85 numbered 3b was also prepared
in favour of the Respondent. <o:p></o:p>After
a full trial the Lower Court gave judgment in favour of the Respondent in the
following words. <o:p></o:p>“These two certificates were
accompanied by a covering letter from the 1st Defendant and handed over to the
Managing Director of the Plaintiff for presentation to the Ministry of Health
for payment. The 1st Defendant also failed to give any explanation why the
authorizing authorities in the Northern Region who signed these certificates
for payment were not informed of any anomaly if any. <o:p></o:p>In fact the Plaintiff was not also
informed that he is not entitled to payment in respect of the two amounts
indicated above. In my view any explanation on the part of the Defendants as to
why the Plain</main>