JESCAN CONSTRUCTION LTD. vs. HIPPO LIMITED AND OTHERS [2015]DLCA3141

Date	2015-05-07
Suit No.	CIVIL APPEAL NO. H1/144/2013
Citation No.	[2015]DLCA3141

OWUSU J. A (PRESIDING)

OFOE J.A.

TORKORNOO J. A.

ANDREW DANIELS FOR DEFENDANTS/RESPONDENT

MRS. P. AKYEA FOR 1ST DEFENDANT

[2015]DLCA3141
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JESCAN
CONSTRUCTION LTD.

&nbsp;[COURT OF APPEAL, ACCRA]

CIVIL
APPEAL NO. H1/144/2013&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: 7TH MAY, 2015

</div>

COUNSEL:&nbsp;&nbsp;

ANDREW
DANIELS FOR DEFENDANTS/RESPONDENT,

MRS.
P.&nbsp; AKYEA FOR 1ST DEFENDANT

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OWUSU
J. A (PRESIDING), OFOE J.A. , TORKORNOO J. A.

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&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;

JUDGEMENT

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TORKORNOO,
J. A:

This is an appeal against a ruling
dismissing an application for summary judgment against Merchant Bank (referred
to as the Bank hereinafter). The Plaintiff Respondent (referred to as Respondent hereinafter) in this appeal was employed
as a contractor to construct two warehouses and other facilities in two lots for
the 1st Defendant /Counterclaimant/Appellant (Appellant) valued at a total figure of GH¢4,000,000.00. The contract
period for the warehouses and other facilities was September 2011 to March 2012
and September 2011 to January 2012 respectively.

The contract required that the
contractor provide advance payment guarantees for mobilization payments given
to the contractor. The contractor was also to provide performance securities for
the due execution of the contracts.

Two advance payment guarantees were issued
by the Bank on 5th September 2011 in support of the Contractor.
These guarantees were in the sums of GH¢227,317.93 and GH¢468,682.07
respectively and were to expire on 4th July 2012 and 4th
September 2012 respectively. (See
pages 23 to 26 of the Record of Appeal. &nbsp;Two
performance guarantees were also issued on 5th September 2011 in the
sums of GH¢125,658.96 and GH¢274,341.00 respectively and were to expire by 4th
July 2012 and 4th September 2012 (pages 192 to 195 of the ROA).

On 2nd February 2012, the
project manager terminated the respondent’s contract for ‘non performance, mismanagement and an uncooperative attitude by the
contractor’. The project manager certified that the Respondent owed the Appellant
GHC 300,705.83 as the difference between work executed and the advance and
supplementary loans given to the contractor (page 34 of the ROA).

On March 14 2012 the appellant called
on the bank to pay the determined sum of GH¢300,705.83 &nbsp;being part of the sums secured on the advance
payment guarantee (page 88 of the ROA). The Rspondent’s reaction to the call on
the bank was to sue in the High Court for an injunction to restrain the Appellant
from calling on the guarantees.

After entering appearance, the Appellant
filed a Defence and Counterclaim. In the heading of the Statement of Defence
and Counterclaim, the Appellant set out two titles – the original title of the
suit commenced by the Respondent, and the title of a counterclaim action it
commenced with the Appellant as Plaintiff on one hand, and the Respondent, one
Kimathi Dake and the bank as Defendants on the other hand. The caption of the
process was ‘STATEMENT OF DEFENCE, COUNTERCLAIM AND JOINDER BY 1ST
DEFENDANT PURSUANT TO ORDERS 11 R r2 (1),
AND 12 r. 1 (1) and 12 rule 5 (1 &amp;2) of CI 47’.

Order
12 rule 1 Counterclaim against plaintiff

12.(1)
A&nbsp; Defendant who alleges that he has any
claim or is entitled to any relief or remedy against a plaintiff in an action
in respect of any matter, whenever and however arising, may, instead of
bringing a separate action,&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; make
a counterclaim in respect of that matter.

So clearly, the Appellant was acting
within the liberties given in Order 12 Rule (1) when it commenced a
counterclaim action against the Respondent and the bank who were parties to the
original action. The pleading ended with 19 c</main>