LIZORI LIMITED vs. MRS. EVELYN BOYE AND SCHOOL OF DOMESTIC SCIENCE & CATERING [2013]DLSC2753

Date	2013-07-26
Suit No.	CIVIL APPEAL NO. J4/8/2012
Citation No.	[2013]DLSC2753

DR. DATE BAH JSC (PRESIDING)

ANIN-YEBOAH JSC

P. BAFFOE-BONNIE JSC

A. A. BENIN JSC

J. B. AKAMBA JSC

E. KOBINA FOSU ESQ. FOR THE PLAINTIFF /RESPONDENT/APPELLANT.

G. GARDINER FOR THE DEFENDANTS/APPELLANTS /RESPONDENTS.

[2013]DLSC2753
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													<main id="main" class="content" style="min-height: 60rem" >LIZORI
LIMITED<o:p></o:p>vs.<o:p></o:p>MRS. EVELYN
BOYE AND SCHOOL OF DOMESTIC SCIENCE &amp; CATERING<o:p></o:p>&nbsp;[SUPREME COURT, 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 NO. J4/8/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
26TH JULY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>E.
KOBINA FOSU ESQ.&nbsp; FOR THE PLAINTIFF
/RESPONDENT/APPELLANT.<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">

DR.
DATE BAH JSC (PRESIDING), ANIN-YEBOAH JSC, P. BAFFOE-BONNIE JSC, A. A. BENIN
JSC, J. B. AKAMBA JSC<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:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:150%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT <o:p></o:p>

</div><o:p>&nbsp;</o:p>BENIN, JSC:-<o:p></o:p>&nbsp;The Defendants/Appellants/Respondents,
hereinafter called the Defendants and the Plaintiff/Respondent/Appellant,
hereinafter called the Plaintiff entered into a contract whereby the Plaintiff
was to construct a two storey building plus an extra floor at Kotobaabi for use
by the Defendants as a domestic science and catering school block. The
Plaintiff’s case was that the total cost of the project was estimated at over
one billion old cedis. The plaintiff was to pre-finance the project and submit
bills to the Defendants for payments as and when necessary. Plaintiff further
averred that they completed two floors and started work on the extra floor. At
this stage the Defendants unilaterally abrogated the agreement and re-awarded
the job to another person. The Plaintiff pleaded further that it submitted
bills for work so far done but the Defendants failed or refused to pay despite
repeated demands. That was why it commenced this action at the High Court,
Accra, claiming the reliefs endorsed on the writ, as amended, namely:<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:150%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;">1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
An amount of ¢298,268,634.00 being value of work done
for Defendant by Plaintiff.<o:p></o:p>b) Alternatively, any amount found due to Plaintiff
after assessment by court.<o:p></o:p>2. &nbsp;&nbsp;&nbsp;Interest on
(a)<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:150%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;">3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
General damages for breach
of contract. <o:p></o:p>The
Defendants averred that the agreement was between the Plaintiff and the second
defendant and was made around August 2002. That the second defendant supplied
quantities of materials notably iron rods and blocks to the Plaintiff for the
construction. However, the Plaintiff did a shoddy job. According to the
Defendants it was the Plaintiff who abandoned the work after December 2003.
They went on to describe what works the Plaintiff did at the site which was not
substantial compared to what it was contracted to do. The defendants averred
that the second defendant paid the Plaintiff for work done. They therefore
rejected the Plaintiff’s claims.<o:p></o:p>The
trial court heard oral testimony; but, before then, it appointed the
Architectural and Engineering Services Limited (AESL) as experts to ascertain
the amount of work done on the entire building and to value same and ascertain
any outstanding payments. Both parties were ordered to co-operate with the
experts. The experts’ report was put in evidence as Exhibit CE1, with four
Appendices. At the end, the trial High court entered judgment for the Plaintiff
and made certain awards including special and general damages and interest in
its favour. The trial court rejected some receipts that were introduced by the
defendants for reasons that they were not stamped and also on ground that it
could attach no weight to them for reasons explained by the court. This was the
trial court’s conclusion: “.......the
plaintiff is entitled to the sum of ¢300,691,431.03 as damages. I
shall......enter judgment for the plaintiff for the sum of ¢288,639,911.00 as
the outstanding payment for work done on defendants’ building which is due and
owing. I shall also grant the plaintiff ¢300,691,431.00 for breach of contract
and cost......Interest on the said sum from the date of the breach occurred being
March 2004 up to date of payment.”<o:p></o:p>The
Defendants appealed to the Court of Appeal against the High Court’s judgment.
In a judgment delivered on 27th January 2011, the Court of Appeal
overturned par</main>