JULIANA OSEI BONSU vs. KUMASI METROPOLITAN ASSEMBLY [2022]DLCA15141

Date	2022-11-28
Suit No.	CIVIL APPEAL NO.: H1/08/2018
Citation No.	[2022]DLCA15141

ANGELINA M. DOMAKYAAREH (MRS.) J A (PRESIDING)

ALEX B. POKU-ACHEAMPONG J A

SAMUEL K. A. ASIEDU J A

For the Plaintiff/Respondent – ROBERT KINGSLEY YEBOAH (NOT IN COURT SICK)

PATRICK ADU POKU for the Defendant/Appellant.

[2022]DLCA15141
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													<main id="main" class="content" style="min-height: 60rem" >JULIANA OSEI BONSU<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>KUMASI METROPOLITAN ASSEMBLY<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL,
KUMASI]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

CIVIL APPEAL NO.: H1/08/2018&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: 28TH NOVEMBER, 2022<o:p></o:p>

</div>COUNSEL<o:p></o:p>For the Plaintiff/Respondent – ROBERT
KINGSLEY YEBOAH (NOT IN COURT, SICK)<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

PATRICK ADU POKU for
the Defendant/Appellant.<o:p></o:p>

</div>CORAM<o:p></o:p>ANGELINA M. DOMAKYAAREH (MRS.) J A (PRESIDING), ALEX B. POKU-ACHEAMPONG J A, SAMUEL
K. A. ASIEDU J A<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0in;">

<p class="MsoNormal" align="center" style="text-align:center;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>DOMAKYAAREH
(MRS.), JA: <o:p></o:p>[1] This
appeal is against the judgment of the High Court (Commercial Division), Prempeh
Assembly Hall, Kumasi dated 19th June, 2015.<o:p></o:p>For ease of reference, the Plaintiff/Respondent will be
referred to as the Respondent whilst the Defendant/Appellant will be called the
Appellant.<o:p></o:p>BRIEF
FACTS:<o:p></o:p>THE
RESPONDENT’S CASE:<o:p></o:p>[2] The
Respondent is a Business Woman doing business under the name and style of OSBON ENTERPRISE. Per her Statement of
Claim filed on 22/3/13 she averred that in or around January 2007 after going
through a bidding process organized by the Appellant, the Appellant awarded her
“a franchise for the provision of solid waste collection services in the
Asawase Sub-Metropolitan Area” within the Kumasi Metropolis. The Respondent
averred that before the formal award of the Contract, there was a negotiation
meeting between the parties where it was agreed that the Appellant would pay
the Respondent GH¢33,051.31 per
month, made up of a Provisional&nbsp; Expected
Monthly Revenue from the franchise service totaling GH¢16,265.00 and a Provisional Monthly Deficit Amount (subsidy)
totaling GH¢16,786.37.<o:p></o:p>[3] The
Respondent further averred that she was formally awarded the Contract on 24th
December, 2007 for five years and she commenced work on 1st January,
2008 by renting trucks and doing the house-to-house collection of solid waste
in the area assigned to her. It is the case of the Respondent that soon after
she commenced the work, the Appellant invited her and wanted to know the
challenges she was facing in her work. The Respondent said upon informing the
Appellant about the challenges she was facing with trucks, the appellant agreed
that she should repair two of the Appellant’s tractors and two skip loaders
which had broken down at her own cost which she did to assist her in the execution
of the work.<o:p></o:p>[4] The
Respondent also averred that she worked for the first five months without
encountering any operational difficulties but in or around June 2008, her toll
collectors who went round to collect tolls from people in her operational area
were chased away by the Appellant’s agents. The Respondent stated that she
lodged complaints with the Appellant who promised to meet her to resolve the
issue but no meeting was ever called to resolve the matter. The Respondent
stated that in or around August 2008, she handed over the Appellant’s vehicles
to it and resorted to renting vehicles for the work. According to the
Respondent, notwithstanding the difficulties and the risks under which she and
her staff were working, she continued to provide the invaluable service to the
Appellant without being paid any remuneration by the Appellant until October
2008, when without any prior notice to her, the Appellant unilaterally wrote to
her to terminate the Contract.<o:p></o:p>[5] In
itemizing the expenses that she incurred in the execution of the works, she
stated that she spent a lot of money to secure a Bank Guarantee and a Bond from
her Bankers and Insurers; she hired six Drivers, one Operations Manager, one
Supervisor and eight Labourers whom she paid to perform the works. The
Respondent averred that it was actually the Appellant that employed all these workmen
but she had to pay their remuneration. The Respondent also stated that she
purchased fuel and lubricants on credit at the prevailing market price for the
vehicles and machinery that she used to execute the work and lamented that the
Appellant did not pay her for all the period that she worked for it. The
Respondent concluded her case by stating that she made several demands on the
Appellant to pay for her legitimate claim including letters by her Solicitors
to no avail hence she issued the Writ of Summons from the Registry of the trial
court against the Appellant and claimed the under listed reliefs.<o:p></o:p>[6] RELIEFS
CLAIMED BY THE RESPONDENT AT THE TRIAL COURT:<o:p></o:p>a)