J. ADDISON & CO. LTD {PLAINTIFF} vs. THE MINISTER, MINISTRY OF EDUCATION {DEFENDANTS} THE ATTORNEY-GENERAL & MINISTER OF JUSTICE [2016]DLHC6277

J. ADDISON & CO. LTD {PLAINTIFF} vs. THE MINISTER, MINISTRY OF EDUCATION {DEFEND... [2016]DLHC6277

Date	2016-07-20
Suit No.	Suit No. RPC/81/14
Citation No.	[2016]DLHC6277

JENNIFER DODOO (MRS)

G. S. K. BABANAWO FOR PLAINTIFF

AKAWARI ATINDEM FOR DEFENDANTS

[2016]DLHC6277
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >J. ADDISON &amp; CO. LTD<o:p></o:p>{PLAINTIFF}<o:p></o:p>vs.<o:p></o:p>THE MINISTER, MINISTRY OF EDUCATION {DEFENDANTS}
THE ATTORNEY-GENERAL &amp; MINISTER OF
JUSTICE<o:p></o:p>[HIGH
COURT (COMMERCIAL DIVISION), 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">

Suit No. RPC/81/14&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
20TH JULY 2016<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>G. S. K. BABANAWO FOR PLAINTIFF <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">

AKAWARI ATINDEM FOR DEFENDANTS<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>JENNIFER DODOO (MRS) JUSTICE OF THE
HIGH COURT<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="text-align:center;line-height:150%;
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><o:p>&nbsp;</o:p>The Plaintiff issued a writ against
the Defendants claiming the following reliefs:<o:p></o:p><ol style="margin-top:0in" start="1" type="a">
 <li class="MsoNormal" style="text-align:justify;line-height:150%;mso-list:l2 level1 lfo1">The sum of GH¢18,458.29 being
 the final payment after the completion of the project.<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:150%;mso-list:l2 level1 lfo1">An amount of GH¢63,605.17 being
 the interest on the delay payments owing and due to the Plaintiff<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:150%;mso-list:l2 level1 lfo1">Interest on the said amount of
 GH¢63,605.17 from 20th November 2013 to the date of final
 payment.<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:150%;mso-list:l2 level1 lfo1">General Damages for the delay
 in the payment of the Contract sum and the interest leading to the
 Plaintiff being indebted to Sahel-Sahara Bank and Unibank which financed
 the construction of the project.<o:p></o:p></li>
</ol>The Plaintiff, a limited liability
company stated in its claim that it was awarded a contract to put up a 2 storey
dormitory block for 220 students at Benkum Senior High School in the Akwapim
North District.&nbsp; The project was to be
completed within 12 months.&nbsp; According to
the Plaintiff, the project was duly completed and handed over to the 1st
Defendant.&nbsp; It contended that the 1st
Defendant had breached the terms of payment encapsulated in Paragraph 43.1 of
the Contract Document.&nbsp; The Plaintiff
particularized these terms as follows:<o:p></o:p><o:p>&nbsp;</o:p>43.1&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Payments shall be adjusted for
deductions for advance payments and retention.&nbsp;
The Employer shall pay the Contractor the amounts certified by the
Project Manager within 28 days of each certificate.&nbsp; If the Employer makes a late payment, the
Contractor shall be paid interest on the late payment in the next payment.&nbsp; Interest shall be calculated from the date by
which the payment should have been made up to the date when the late payment is
made at the prevailing rate of interest for Commercial borrowing for each of
the currencies in which payments are made.<o:p></o:p><o:p>&nbsp;</o:p>The Plaintiff averred that the 1st
Certificate was issued on 8th July 2011 and payment was effected on
24th August 2011, 18 days after the 28 days grace period for which
payment should have been made had elapsed.&nbsp;
The Plaintiff averred further that the 2nd Certificate was
not applicable as it was payment for advance mobilization.&nbsp; Then the 3rd Certificate was
issued on 15th December 2011 and payment was effected on 16th
March 2012 which constituted a delay of 62 days after the expiration of the 28
day grace period.&nbsp; The 4th
Certificate was issued on 12th June 2012 and payment effected on 10th
September 2012 amounting to a 61 day delay.&nbsp;
The 5th Certificate was issued on 16th November 2012
and payment made on 18th October 2013, a 307 day delay after the
grace period of 28 days.&nbsp; The 6th
Certificate was issued on 28th March 2013 and payment made on 20th
November 2013, a 219 day delay after the expiration of the 28 day grace period.<o:p></o:p><o:p>&nbsp;</o:p>The Plaintiff’s complaint was that
although the agreement was that interest on the late payment ought to be
calculated from the date by which the payment should have been made up to the
date when the late payment was made at the prevailing rate of interest for commercial
borrowing for each of the currencies in which payments are made the 1st
Defendant failed to follow the laid down formula.&nbsp; Instead, what the 1st Defendant
did was to pay the amount on the certificate without calculating and adding the
interest on the previous late payments.&nbsp;
The total amount of interest on delay payment was given as
GH¢63,605.17.&nbsp; The Plaintiff also stated
that the final payment of GH¢18,458.29 on completion of the project still
remained outstanding.<o:p></o:p><o:p>&nbsp;</o:p>The Defendants in their amended defence
contended that the 1st Defendant only paid certificates certified by
the Project Manager pursuant to paragraph 43 of the agreement.&nbsp; They contended further that the Plaintiff was
required to raise the issue of interest on the delayed payment with the Project
Manager to be added to subsequent payments in accordance with paragraph 43 of
the Contract.&nbsp; If the Project Manager
failed or refused to add claims made by the Plaintiff, paragraph 25 of the
Agreement gave the Plaintiff the opportunity of challenging this refusal.&nbsp; The Plaintiff however failed to take
advantage of this clause.<o:p></o:p><o:p>&nbsp;</o:p>The Defendants argued that the
Plaintiff was estopped from claiming interest after it had taken the sum due it
and for allowing time to elapse in order to reap more.&nbsp; They stated also that the Plaintiff had
waived it</main>