DUYAS COMPANY LTD. vs. P & W GHANEM LTD. [2010]DLHC8481

Date	2010-10-26
Suit No.	SUIT No. E2/89/2004
Citation No.	[2010]DLHC8481

HIS LORDSHIP JUSTICE JACOB B. BOON

E. N. POKU FOR THE PLAINTIFF

DARKWA DWAMENA WITH KWAME WIREDU FOR THE DEFENDANT

[2010]DLHC8481
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													<main id="main" class="content" style="min-height: 60rem" >DUYAS COMPANY LTD.<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>P &amp; W GHANEM LTD.<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
No. E2/89/2004&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 26TH OCTOBER, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E.
N. POKU FOR THE PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DARKWA
DWAMENA WITH KWAME WIREDU FOR THE DEFENDANT.<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;
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HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>The plaintiff is a general construction company based in
Kumasi, whilst the defendant is engaged in civil engineering and general
construction with branches in many parts of the country including Kumasi. In
August, 2002 the Government of Ghana through the Ministry of Roads and
Transport and the Ghana Highway Authority, awarded a contract under its
periodic road maintenance programme to the defendant for regravelling of the
50.4 kilometre Ejura-Nkoranza road. By an award letter dated 4th
April, 2003, the defendant engaged the plaintiff as a sub-contractor to construct
drainage structures at its project site. The award letter, tendered in evidence
as exhibit ‘A’ reads in part as follows: “We are glad to inform you that you have
been awarded a sub-contract for the construction of drainage structures on our
Ejura-Nkoranza Project. We are offering you all the moment work to the tune of
approximately Five Hundred Million Cedis (¢ 500,000,000.00) and you could do
more when it is successfully completed”. The Senior Engineer and
Project Co-ordinator of the defendant who testified at the trial said the
phrase “we are offering you all the moment” should have read “we
are offering you at the moment” that is, the word “all” should have been “at”.
Be it as it may, it is not disputed that the plaintiff constructed three
culverts for which the defendant issued a cheque dated 21/10/03 for ¢57, 805,
421 as net payment after tax. That cheque is evidence as exhibit ‘E’, and will
be so called hereafter. &nbsp;The plaintiff
initially refused to accept the cheque on the ground that the value of work
executed by it far exceeded the value of the cheque. The cheque was lodged with
the court and was subsequently released to the plaintiff. Nonetheless, it
issued the instant writ claiming as per the indorsement the sums allegedly due
him for the work done, interest on the amount from the due date to date of
payment, and damages for breach of contract. The cheque was issued vide two
payment certificates raised in favour of plaintiff. The first, in evidence as
exhibit ‘2’, was dated 21/10/03 for a value of ¢17,895,219.25 for one culvert,
and the second, exhibit ‘3’ of the same date had a gross value of
¢47,747,089.38 for two culverts. The net value of the exhibits was paid to the
plaintiff through exhibit ‘E’.<o:p></o:p><o:p>&nbsp;</o:p>In an accompanying statement of claim, the plaintiff
asserted that the contract was for the construction of four culverts, numbers
75 to 78, as appear in the schedule of culverts for the main project, and he
was to be paid as and when each culvert was completed. It is asserted that
three of the culverts were completed at an estimated value of ¢400,000,000.00.<o:p></o:p><o:p>&nbsp;</o:p>It was further asserted that the fourth culvert could not
be constructed because the defendant stopped the plaintiff as the rains had
started, a reason the plaintiff described in its pleadings as flimsy, and as it
was not recalled after the rains to continue the work, and as the same culvert was
re-awarded to a different contractor, the plaintiff regarded that as tantamount
to a breach of contract, hence the relief for damages for breach of contract.<o:p></o:p><o:p>&nbsp;</o:p>There are other averments by the plaintiff to the effect
that a pick-up truck belonging to it valued at ¢95, 000,000.00 got smashed in
the course of execution of the contract; the pleadings also intimated that with
the assistance of the defendant, plaintiff took a loan of ¢ 60 million at an
interest of 40% per anum from Union Savings and Loans Ltd., and that loan,
among others, not disclosed in the pleadings, are outstanding because of the
alleged refusal or failure of defendant to pay the plaintiff for work executed on
the project.<o:p></o:p><o:p>&nbsp;</o:p><</main>