P.K. OWUSU TRADING AND CONSTRUCTION vs. EJISU-JUABEN DISTRICT ASSEMBLY [2018]DLCA4942

Date	2018-07-23
Suit No.	SUIT NO. H1/69/2017
Citation No.	[2018]DLCA4942

ADUAMA OSEI JA (PRESIDING)

DZAMEFE JA

WELBOURNE (MRS) JA

DENNIS KWAME KWAKYE FOR PLAINTIFF/APPELLANT.

ASIEDU BASOAH FOR DEFENDANT/RESPONDENT

[2018]DLCA4942
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													<main id="main" class="content" style="min-height: 60rem" >P.K. OWUSU TRADING AND CONSTRUCTION<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>EJISU-JUABEN DISTRICT ASSEMBLY<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT OF APPEAL (CIVIL
DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO. H1/69/2017&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;23RD JULY, 2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DENNIS
KWAME KWAKYE FOR PLAINTIFF/APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoListParagraphCxSpLast" style="margin:0in;margin-bottom:.0001pt;
mso-add-space:auto;text-align:justify;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ASIEDU
BASOAH FOR DEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>ADUAMA
OSEI JA (PRESIDING), DZAMEFE JA, WELBOURNE (MRS) JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:10.0pt;
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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>ADUAMA OSEI JA:<o:p></o:p><o:p>&nbsp;</o:p>In
this judgment, the Plaintiff/Appellant will be called “the Plaintiff” and the Defendant/Respondent will be called “the Defendant”.<o:p></o:p><o:p>&nbsp;</o:p>By
its writ of summons issued in the Commercial Division of the High Court,
Kumasi, on the 19th of August, 2010, the Plaintiff claimed against
the Defendant the sum of GH¢54,000.00 “being outstanding cost for the construction
of market stalls/stores which the Defendant caused the Plaintiff to construct through
pre-finance arrangement with the Plaintiff and which the Plaintiff has
completed but the Defendant has failed to reimburse the Plaintiff despite
repeated demands”. The Plaintiff
also claimed interest on the sum claimed from November, 2008 till date of final
payment.<o:p></o:p><o:p>&nbsp;</o:p>In
the statement of claim which accompanied the writ of summons, the Plaintiff
alleged that pursuant to an agreement it made with the Defendant, it
constructed 102 stalls and 25 stores for the Defendant on a pre-finance basis.
The Plaintiff alleged that after it had completed the project, with the
permission of the Defendant, it sold some of the stalls and stores to enable it
“pay some debtors who were putting
pressure” on it. The Plaintiff alleged that after selling the stalls and
stores as agreed with the Defendant, the Defendant remained indebted to it in
the sum of GH¢54,000.00 in respect of the project. The Plaintiff alleged
further that even though the Defendant had put tenants in occupation of the
stalls and stores and was benefiting from the project, the Defendant had failed
to pay the said sum of GH¢54,000.00 in spite of repeated demands. The Plaintiff
also alleged that the Defendant executed a document requiring it (the
Defendant) to make payments for the project in the names of the Plaintiff and
the National Investment Bank and that the conduct of the Defendant in failing
to make payments had resulted in the Plaintiff’s bankers refusing to grant it
facilities to enable it execute its new projects.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>In
answer to the allegations made by the Plaintiff, the Defendant contended in its
statement of defence and counterclaim that there was no contractual agreement
between it and the Plaintiff. The Defendant alleged that in response to an
offer made to it on the 17th of October, 2017 by the Plaintiff for
the construction of stalls in the central portion of the Ejisu market, the Defendant
on the 26th of March, 2008, made a counter-proposal requiring the
Plaintiff to construct for it 132 stalls at a contract sum of GH¢79,200.00. The
Plaintiff however rejected the Defendant’s counter-proposal by its letter of 27th
March, 2008, leaving the parties with no contractual agreement.<o:p></o:p><o:p>&nbsp;</o:p>The
Defendant contended that the construction of 102 stalls and 25 lockable stores
by the Plaintiff was undertaken without its consent and was also contrary to
the proposal it had made to the Plaintiff for the construction of 132 stalls,
which proposal the Plaintiff had rejected. The Defendant contended further that
if there was any contract between it and the Plaintiff, it could only be based
on its proposal of 26th March, 2008, which required the Plaintiff to
construct 132 stalls. The Defendant contended that by constructing 102 stalls
and 25 lockable stores without its consent or authority, the Plaintiff had
varied the terms and was in breach of such contract. <o:p></o:p><o:p>&nbsp;</o:p>The
Defendant alleged again that the Plaintiff failed to pave the open spaces
between the sheds that contained the stalls, and also sold the stalls and
lockable stores to prospective buyers without accounting to the Defendant. The
Defendant alleged that it had incurred losses as a result of the conduct of the
Plaintiff and was therefore entitled to compensation from the Plaintiff. The
Defendant accordingly counterclaimed against the Plaintiff for:<o:p></o:p><o:p>&nbsp;</o:p>