BELLY-EFF COMPANY LTD vs. GHANA EDUCATION TRUST FUND [2019]DLHC7534

Date	2019-07-19
Suit No.	SUIT NO. GJ172/2019
Citation No.	[2019]DLHC7534

JEROME NOBLE-NKRUMAH JUSTICE OF THE HIGH COURT

EBO LAING FOR THE PLAINTIFF

NAA-AMAKUMA BARNOR HOLDING BRIEF OF NANA AGYEI BAFFOUR

AWUAH FOR THE DEFENDANT

[2019]DLHC7534
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													<main id="main" class="content" style="min-height: 60rem" >BELLY-EFF
COMPANY LTD<o:p></o:p>vs.<o:p></o:p>GHANA EDUCATION TRUST FUND<o:p></o:p>[HIGH COURT (COMMERRCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>COUNSEL:
<o:p></o:p>EBO
LAING 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">

NAA-AMAKUMA
BARNOR HOLDING BRIEF OF NANA AGYEI BAFFOUR AWUAH 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;
padding:0cm 0cm 1.0pt 0cm">

JEROME
NOBLE-NKRUMAH 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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RULING<o:p></o:p>

</div>MOTION
ON NOTICE FOR SUMMARY JUDGEMENT<o:p></o:p>The Applicant having sued the
Respondent per amended writ on 24/4/19 for an order for the payment of interest
on the amount of GHC591, 611.99 from 9/11/16 and cost, it has filed the present
application for summary judgement. In an affidavit in support, Benjamin Owusu
deposes to the fact that the Applicant by an initial writ sued the Respondent
for the recovery of the amount of GHC591, 611.99 and interest on this amount.<o:p></o:p>This amount claimed according to the Applicant
was the amount owed it by the Respondent for the construction of a two storey Dormitory
block at Dzolo Senior High School in Dzolo Gbogame of the Volta Region. That
this was a contract between the Applicant and Volta Regional Coordinating
Council [VRCC] in consultation with the Respondent. The Applicant has also said
he was notified of the award of the contract by the Respondent’s Consultants.<o:p></o:p>It is deposed in the affidavit in
support that Applicant upon execution of the scope of works, the said
consultants inspected the works and issued payment certificate numbered 1 in
the sum of GHC591, 611.99 in the name of the Applicant.<o:p></o:p>It is further deposed that during the
pendency of the initial writ, the Respondent issued payment in respect of Certificate
numbered 1. This payment was the amount the Applicant claimed in that writ less
the interest component.<o:p></o:p>It is for this payment made by the Respondent
that the Applicant seeks an order of summary judgement, arguing that the Respondent
has no reasonable or substantial defense against the suit and that the payment
gesture by the Respondent qualifies this suit as one for which an order of summary
judgement is applicable. Referring to paragraph 43 of the Applicants exhibit 2 Applicant
says it is entitled to payment of interest on the certificate sum should there
be delay or lateness in payment as has occurred and that a resolution of this remainder
issue of interest and cost will effectively and expeditiously dispose of the
suit as there are no other substantial triable issues in this matter.<o:p></o:p>In opposing this application the Respondent
says the Applicants exhibit 2, the contract, was not entered into by the Applicant
and the VRCC in consultation with the Respondent. The Respondent deposes that
some state agencies award contracts purporting to have done so in consultation
with the Respondent with the hope of getting the Respondent to provide funding
for projects those government agencies undertake.<o:p></o:p>Going further the Respondent says by
the very text of the Applicant’s exhibit 2 and at all material times the
contract was between Applicant and the VRCC and that a binding contractual
relationship had been created thereby. That in the said exhibit 2 VRCC has been
described as the Employer. The Respondent’s argument here is that, not being a
party to the agreement, it cannot be held liable for payments under the
contract and that the exhibits of the Applicant do not in any way saddle the Respondent
with any liability at all.<o:p></o:p>It is the Respondents case that having
denied any relationship with the Applicant, raised triable issues, notable
among which are whether the Plaintiff has a cause of action against the Defendant,
whether the Plaintiff received payment under certificate numbered 1 lawfully
and whether or not irrespective of the express provisions of the contract
between the Plaintiff and the VRCC the Defendant can be held liable for the
VRCCs payment obligations under the said contract.&nbsp; &nbsp;<o:p></o:p>The Applicant has as its exhibit 1 a letter
from Procurement &amp; Project Management Consultancy Ltd. This entity informs
the Applicant of the selection of its bid for the Project. This letter is
copied to the Administrator of the Respondent and the Volta Regional Minister
then, amongst others. In the last but one paragraph the Applicant is informed
of the requirement for it to sign the contract agreement with the VRCC
after which it was expected to execute the works in accordance with conditions
of the
contract.<o:p></o:p>The Respondent has </main>