BUILSA NORTH DISTRICT ASSEMBLY vs. ARCHITECTURAL & ENGINEERING SERVICE LTD [2017]DLHC8170

Date	2017-10-26
Suit No.	SUIT NO C2/02/2016
Citation No.	[2017]DLHC8170

JUSTICE JACOB BAWIINE BOON JUSTICE OF THE HIGH COURT

ANTHONY NAMOO FOR THE PLAINTIFF.

MAJOR (RTD) T.A.DARTEY FOR THE DEFENDANT

[2017]DLHC8170
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													<main id="main" class="content" style="min-height: 60rem" >BUILSA NORTH
DISTRICT ASSEMBLY<o:p></o:p>vs.<o:p></o:p>ARCHITECTURAL
&amp; ENGINEERING SERVICE LTD<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT,
BOLGATANGA]<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 C2/02/2016&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: 26TH OCTOBER, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ANTHONY
NAMOO FOR THE PLAINTIFF. <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">

MAJOR
(RTD) T.A.DARTEY FOR THE DEFENDANT<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;
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JUSTICE
JACOB BAWIINE BOON JUSTICE OF THE HIGH COURT<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;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>The
Builsa North District Assembly, the plaintiff herein, with its capital at
Sandema in the Upper East Region, contracted Messrs Bisco Tesco Enterprise of
Bolgatanga to put up a three (3) story office complex at Sandema to provide
office accommodation for its officers. The contract was awarded on 27th
May, 2010, in the sum of Nine hundred and Forty seven thousand, Four Hundred and
Twenty Eight Ghana Cedis, Sixty three pesewas (GH¢947,428.63),
to be completed within a period of twelve months from the date the site is
handed over to the contractor. The defendant, Architectural and Engineering
Services Ltd, was appointed the consultant to the contract, tasked to supervise
the execution of the project, in which capacity it was to ensure that the works
were carried out according to specifications and prepare certificates for work
done to be paid by the plaintiff. This charge was to be performed by the Upper
East Regional branch of the company.<o:p></o:p>In
this suit, the plaintiff/assembly asserted that the defendant acted
fraudulently when in the course of its duty it raised two certificates for
payment in favour of the contractor, one of which was not related to work done
on the project by the contractor. The first of the certificates which
represented actual work executed on the project was dated 8th June,
2011 for an amount of eighty five thousand, one hundred and eighty one Ghana
Cedis, ninety-four pesewas (GH¢85,181.94). It was
tendered in evidence by the plaintiff and marked as exhibit “B”, and would be
so referred to hereafter in this judgment. The second certificate which is the
one of problematic concern, is marked exhibit “C”, and was issued on 24th
October, 2011 for three hundred and thirty four thousand, seven hundred and eighteen
Ghana cedis, twenty pesewas (GH¢334,718.20). Significantly,
officers of the defendant, particularly, the then &nbsp;Regional Consultant, one Joseph Kwadwo Boamah,
now heading the Ashanti Regional &nbsp;Office of
the defendant, and his Quantity Surveyor, Harrison Kwabena Addo,&nbsp; currently at the Eastern Regional Office,
have, without shame, told the court exhibit “C” was not related to actual work
done by the contractor, but was prepared on the oral instructions of the
District Co-ordinating Director of the assembly, to be deposited with the assembly
so that money could be doled out to the contractor as and when funds came into
the coffers of the assembly. It is the case of the plaintiff that it had paid
an amount of one hundred and eighty five thousand Ghana Cedis to the contractor
based on the certificates prepared by the defendant, whilst on the basis of
actual work done, the contactor was entitled to be paid the value of exhibit
“B”, which I indicated earlier had a face value of GH¢85,181.94
only. According to the averments in paragraph 9 of the statement of claim, through
the recklessness or fraudulent conduct of defendant, the plaintiff/assembly
lost a total amount of one hundred and eleven thousand, one hundred and seventy
nine Ghana Cedis and forty-three pesewas (GH¢111,179.43)
being the difference in payment of the GH¢185,000.00
and the value in exhibit “B” as well as unjustified consultancy fees of GH¢11,361.37
paid the contractor and the defendant. My understanding is that the fee of GH¢11,361.37
allegedly claimed and paid to the defendant was groundless so far as it was
calculated based on exhibit “C” which itself is questionable. What I also gather
from the case of plaintiff is that out of the total face of values of the certificates
raised in favour of the contractor amounting to GH¢419,900.</main>