GROUP CHAGNON INT. (PLAINTIFF/RESPONDENT) vs. ACCRA METROPOLITAN ASSEMBLY & ANOTHER (DEFENDANTS/APPELANTS) [2012]DLCA7897

GROUP CHAGNON INT. (PLAINTIFF/RESPONDENT) vs. ACCRA METROPOLITAN ASSEMBLY & ANOT... [2012]DLCA7897

Date	2012-12-13
Suit No.	SUIT NO. H1/111/07
Citation No.	[2012]DLCA7897

APPAU J.A. (PRESIDING)

AYEBI J.A.

ADJEI J.A.

MR. STANLEY AMARTEIFIO FOR 1ST DEFENDANT/APPELLANT

MR. PHILIP JIMANOR FOR PLAINTIFF/RESPONDENT

[2012]DLCA7897
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													<main id="main" class="content" style="min-height: 60rem" >GROUP CHAGNON INT.<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>ACCRA METROPOLITAN ASSEMBLY &amp; ANOTHER<o:p></o:p>(DEFENDANTS/APPELANTS)<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:0cm 0cm 1.0pt 0cm">

SUIT
NO. H1/111/07&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 13TH DECEMBER,
2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. STANLEY AMARTEIFIO FOR 1ST
DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

MR. PHILIP JIMANOR FOR
PLAINTIFF/RESPONDENT<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:0cm 0cm 1.0pt 0cm">

APPAU J.A. (PRESIDING),
AYEBI J.A., ADJEI J.A.<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;
padding:0cm 0cm 0cm 0cm">

JUDGMENT<o:p></o:p>

</div>DENNIS ADJEI,J.A.:<o:p></o:p>On 27th July,
2005 the High Court Accra (Fast Track Division) gave judgment in favour&nbsp; of the Plaintiff/Respondent (hereafter called
the plaintiff) against the Defendants/Appellants (hereafter called the
defendants) jointly and&nbsp; severally for
all the reliefs endorsed on the plaintiff’s writ of summons.<o:p></o:p><o:p>&nbsp;</o:p>The defendants being
dissatisfied with the judgment of the trial High Court filed separate notice of
appeals against same to this court to reverse the judgment. On 17th
July, 2012 the 2nd defendant’s appeal was struck out for non
compliance under rule 20(2) of the Court of Appeal Rules C.I. 19. The only
appeal to be determined by this court is the appeal filed by the 1st defendant
on 2nd August, 2005.<o:p></o:p><o:p>&nbsp;</o:p>The brief facts of the case
were that on 4th December, 1997, the plaintiff entered into a sale
agreement with the Defendant which was described by them as ‘procurement
contract’ for the plaintiff to supply waste management equipment costing
$8,382,928.00 to the 1st defendant. The government of Ghana agreed
to pay for the entire purchase price of the equipment and the payment was to be
made from the existing credit facility it had with the Export Development
Corporation (EDC) of Canada. Export Development corporative was to pay eighty
–five percent (85%) of the purchase price from the Credit facility of
$20,000,000.00 granted to the government of the Republic of Ghana and the
remaining fifteen percent (15%) was to be paid from the local source. The payment
of the 85% by EDC was contingent upon the payment of the local component of 15%.
Even though the local component was not paid, the 1st defendant
negotiated with the plaintiff to inform EDC that it had been paid and in pursuance
to the information by the plaintiff that it had acknowledged receipt of the 15%
EDC paid the 85 percent amounting to $7,125,494.00 to the plaintiff. The
plaintiff has up to date not been paid the 15% and it is the subject matter of the
suit which has culminated in this appeal. The defendants are alleging fraud on
the part of the plaintiff because it knew that the local component of 15% had
not been paid but it told EDC that it had been paid and as a result of that fraudulent
representation, EDC paid its component of 85 percent to the plaintiff. It was
also the case for the defendants that the transaction between them and the
plaintiff should have been given parliamentary approval under Article 181 of
the Constitution of the Republic of Ghana 1992 and failure to obtain the
approval of parliament renders the transaction unconstitutional and therefore
unenforceable. Furthermore, the plaintiff could not enforce the contract
against the 1st defendant because it was executed contrary to the
Local Government Act, Act 462.<o:p></o:p><o:p>&nbsp;</o:p>The seven (7) grounds of
appeal filed by the 1st defendant are as follows:<o:p></o:p>“1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial Judge failed to consider
or give any adequate consideration to the defence put forward by the 1st
defendants that the payment for the equipment supplied by the plaintiffs was the
sole responsibility of the 2nd defendants and thereby erred in law
in holding the 1st and 2nd defendants jointly and
severally liable to the plaintiffs on their claim, notwithstanding the
admission by the 2nd defendants that she was indeed solely
responsible for the payment of equipment.<o:p></o:p><o:p>&nbsp;</o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That having regard to the fact the
plaintiffs and the 1st defendant had expressly agree in the
procurement agreement that the said agreement shall only be effective and
enforceable if the 1st and 2nd defendants enter into a Financing
Agreement, the learned trial judge erred in law by holding that the procurement
agreement was effective and enforceable when no such financing agreement had been
entered into by the 1st and 2nd defendant.<o:p></o:p><o:p>&nbsp;</o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That having regard to the fact the
evidence before the court showed that after parl</main>