WEBB BUILDERS LIMITED vs. TOLON – KUMBUNGU DISTRICT ASSEMBLY AND ATTORNEY-GENERAL’S DEPARTMENT, TAMALE [2016]DLCA4857

WEBB BUILDERS LIMITED vs. TOLON – KUMBUNGU DISTRICT ASSEMBLY AND ATTORNEY-GENER... [2016]DLCA4857

Date	2016-02-29
Suit No.	SUIT NO: H1/09/2015
Citation No.	[2016]DLCA4857

ADJEI JA – PRESIDING

LOVELACE-JOHNSON JA

ACKAH-YENSU JA

ISSA MOHAMMED ESQ. FOR THE 1ST DEFENDANT/ APPELLANT

MRS. ANITA ASHONG KATAI ESQ. FOR THE PLAINTIFF / RESPONDENT

[2016]DLCA4857
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													<main id="main" class="content" style="min-height: 60rem" >WEBB BUILDERS LIMITED<o:p></o:p>(PLAINTIFF
/ RESPONDENT)<o:p></o:p>vs.<o:p></o:p>TOLON – KUMBUNGU DISTRICT ASSEMBLY AND ATTORNEY-GENERAL’S
DEPARTMENT, TAMALE<o:p></o:p>(DEFENDANTS
/ APPELLANTS)<o:p></o:p>[COURT
OF APPEAL, TAMALE]<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">

SUIT NO: H1/09/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
29TH FEBRUARY, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ISSA MOHAMMED ESQ. FOR THE 1ST
DEFENDANT/ 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">

</div>CORAM:<o:p></o:p>ADJEI JA – PRESIDING, LOVELACE-JOHNSON JA,
ACKAH-YENSU JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNoSpacing" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ADJEI, J.A:<o:p></o:p>The 1st Defendant/Appellant dissatisfied
with the ruling delivered by the High Court Tamale which refused to set aside
the judgment on admission obtained against it by the plaintiff on 11th
November, 2011 appealed to this Court to reverse the decision of the High Court.
For the purposes of this appeal, the parties would maintain their designations
used at the trial Court. The Plaintiff/Respondent would be referred to as the
Plaintiff and the 1st Defendant/Appellant as 1st Defendant.<o:p></o:p>The Plaintiff instituted the action which
culmunated in this appeal at the High Court Tamale claiming against the Defendants,
inter alia the sum of GH₵40,334.00 and the interest thereon being an amount
certified for payment by payment certificate No.1 dated 28th June,
2008 for works executed on reshaping of Cheshegu-Nyankpala and another 22.85 Km
Feeder Road which were executed by the Plaintiff. Apart from the interest
payable at the current bank rate from 28th June, 2008 to the date of
Judgment claimed by Plaintiff, it further claimed for damages for breach of
contract. The Plaintiff in its Statement of Claim averred that all demands made
by it on the 1st Defendant to pay for the work done by the Plaintiff
were refused. The Plaintiff then on 29th August, 2011 through its
lawyer served a demand notice on the 1st Defendant. The Plaintiff
therefore instituted the action against the Defendants after the 1st
Defendant had evinced its intention clear not pay its indebtedness to the
Plaintiff. The Plaintiff in paragraph 3 of its statement of claim averred that
it sued the Attorney-General as a 2nd Defendant by virtue of the
fact that she is the Chief Legal Advisor of the Republic of Ghana and by article
88 of the Constitution of Ghana, 1992, all Civil proceedings against the state
are to be instituted against the Attorney-General as Defendant and its legal
effect would be discussed in the course of this appeal.<o:p></o:p>The Statement of defence filed on behalf of the
Defendants by the Attorney-General’s representation in Tamale admitted the Plaintiff’s
claim but added that the payment of the debt was dependent on receipt of its
share of the Common Fund from the Common Fund Administrator.<o:p></o:p>As a result of the admissions made by the 1st
Defendant in its statement of defence, the Plaintiff filed an application for
judgment on admission under Order 23 rule 6 of the High Court (Civil Procedure)
Rules C.I. 47. <o:p></o:p>On 11th November, 2011, the High Court entered
final judgment for the Plaintiff against the defendant to recover the amount
endorsed on the Plaintiff’s Writ of Summons and the interest thereon from 25th
June, 2008 to the date of final payment.<o:p></o:p>On 9th December, 2011, the 1st
Defendant filed an application to set aside the final judgment entered on behalf
of the Plaintiff as a result of the admission made by the 1st Defendant
in its statement of defence. The motion also sought to set aside the Entry of
Judgment filed by the Plaintiff pursuant to the judgment entered in its favour.
The trial High court Judge set aside the Entry of Judgment which contained
compound interest contrary to what was contained in his judgment. He, however,
dismissed the prayer to set aside the judgment on the premise that the action
was incompetent because the Plaintiff failed to comply with Section 127 of the
Local Government Act, 1993 (Act 462) which enjoins any person seeking to
commence an action against a District Assembly to serve notice of its intention
to commence the action on the Assembly.<o:p></o:p>The 1st Defendant dissatisfied with the
ruling delivered by the trial High Court on 17th January, 2012 appealed
to this Court on 18th January, 2012. The Notice of Appeal filed on
18th January, 2012 has three (3) grounds of appeal. They are as
follows:<o:p></o:p>“1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the learned Judge
erred when he held that the Appellant waived its right to insist on the
Statutory Notice as provided by Section 127(1) of the Local Government Act 1993
(Act 462) by the filing of Non-Conditional Appearance.<o:p></o:p>.2.&nbsp;&nbsp;&nbsp;&</main>