OLAMSA CONSTRUCTION AND TRADING LTD & ANOTHER VRS KARAGA DISTRICT ASSEMBLY & ANOTHER (NR/TL/HC/E2/28/21) [2023] GHAHC 644 (11 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE TAMALE, NORTHERN REGION Suit No: NR/TL/HC/E2/28/21 Delivered on 11th December, 2023 OLAMSA CONSTRUCTION AND TRADING LTD === PLAINTIFF VRS 1. KARAGA DISTRICT ASSEMBLY === DEFENDANTS 2. THE ATTORNEY GENERAL COUNSEL RASHID MUHAMMAD MUMUNI FOR THE PLAINTIFF KOFI SOMUAH AKUAMOAH FOR THE DEFENDANT CORAM JUSTICE ERIC ANSAH ANKOMAH JUDGMENT The plaintiff on 17th June, 2021 instituted this action against the defendants herein claiming the following reliefs: 1. Recovery of One Hundred and Forty Four Thousand, Five Hundred and Twenty Three Ghana Cedis Forty One Pesewas (GHs 144, 523.41) being the unpaid part of the contract sum for the Rehabilitation of Karaga-Kupali-Kpasablo Feeder road Phase 3 (1.6KM). 2. Interest on the said sum GHs 144, 523.41 from 22nd January, 2019 to date of final payment. 3. Damages for breach of contract. 4. Costs including solicitor’s fees. 5. Any other order(s) the honourable court may deem fit. The court at case management conference struck out the name of the Attorney General from the action as the office had no role to play in the entire case of the plaintiff. In fact the plaintiff did not make any allegation against the Attorney General and any of the institutions that it represent in its pleadings. The 1st defendant is a legal entity that can sue and be sued. The plaintiff claims are all centered on the 1st defendant. The 1st defendant being a legal body is capable of being sued alone for any breach of contract as alleged hence the decision to strike out the 2nd defendant’s name from the action. The plaintiff filed his witness statement on 24th November, 2022 and on the same day, the defendant also caused to be filed its witness statement. Case management conference was conducted on 15th December, 2022 and trial of the case commenced on 7th February, 2023. Summary of the evidence of plaintiff The plaintiff who testified through its Managing Director one Sheriff Ganiu Mansur evidence is that: The plaintiff was awarded a contract for the rehabilitation of Karaga-Kupali-Kpasablo Feeder road Phase 3 (1.6KM) by the defendant vide an award letter dated 29/11/2016 with the contract sum of GHs 136,298.20 or such other sum as may become payable under the provisions of the contract. The parties executed the contract on 2/12/2016. That the plaintiff accepted the terms of the contract to complete the rehabilitation works within six months from the date of execution. The contract was tendered in evidence and marked as exhibit A. The plaintiff claim is that, it executed all the works within the stipulated time and in accordance with specifications as per the contract agreement and the road has since been in use by the general public. That the plaintiff raised three payment certificates with the total sum being GHs 144, 524. 11 including variation for the defendant to pay. That on 20/07/2017, two request for payment, together with receipts and photographs of the execution of the project were submitted to the defendant but payment was never effected. The amounts were GHs 56,589.25 and GHs 20, 760.00 respectively. The letter containing the documents was marked as exhibit B. According to the plaintiff on 3/08/2017 it raised interim payment certificate with amount of GHs 45,003.70 and submitted it to the defendant but payment was not made. The document was admitted in evidence and marked as exhibit C. The plaintiff further claims that on 22/01/2018 an interim payment certificate with the amount of GHs 22,171.16 was raised for payment and it was submitted to the defendant for payment but same was not paid. The document was admitted in evidence and marked exhibit D. That because no payment was made by the defendant, the plaintiff has no receipt to exhibit as payment and that all attempts to get the money paid failed with the defendant giving excuses. The plaintiff added that on 5th October, 2020 it caused its lawyer to write to the defendant of the plaintiff intention to institute action in accordance with law. The letter was admitted in evidence and marked as exhibit E. The plaintiff evidence is that, he took loans from its financiers to execute the project and the failure to pay the money by the defendant has disabled the plaintiff from meeting its financial obligations with it financiers resulting in interest accruals on the facility hence this action. The plaintiff representative was cross-examined by counsel for the defendant extensively. The plaintiff closed its case after cross examination and abandoned the witness statement filed by one Abdul Gafer Abubakari-Sadik the Assistant General Manager as the only witness for the plaintiff. Summary of defendant’s case The defendant on 18/05/2023 testified through Noel Ahoto Adeti the head of Engineering Department of the defendant at the time he was working with the defendant. His evidence is that the defendant and the plaintiff executed a contract on 02/12/2016 for the rehabilitation of the Karaga-Kupali-Kpasablo Feeder road Phase 3. That the project was financed by the Ghana Social Opportunities Project (GSOP) an initiative headed by the World Bank and aimed at expanding employment and cash earning opportunities for the rural poor. That the contract sum less taxes and unskilled labour charges was GHs 136, 298.00 and the contract was to be completed in six calendar months. That the agreement was such that payment could be adjusted for deductions for advanced payments and retention. That payment certificates would be certified first by the Engineering Department of the defendant before it is forwarded to GSOP who would do their own certification of work done before it will forward the certificate to defendant for payment to be made to the contractor. That after the plaintiff took possession of the site in January, 2017, the plaintiff did not start the work until three months later. That despite the delay, the plaintiff requested for money in April 2017 and after due checks a payment certificate was prepared by the defendant engineer and sent to GSOP on 12/04/2017. After re-measurements the first payment certificate was varied from GHs 25,444.12 to GHs 24,543.90. The payment certificate dated 12/04/2017 was admitted in evidence and marked as exhibit 2. The reviewed payment certificate was admitted in evidence and marked exhibit 2A. That on 22/06/2017, the plaintiff was paid GHs 23,316.70 after tax deduction of GHs 1,270.00. The payment voucher dated 01/06/2017 was admitted and marked as exhibit 2B. A letter dated 20/07/2017 from the plaintiff to the defendant requesting for a total payment of GHs 77,349.25 made up of two separate request of GHs 56,589.25 and GHs 20,760.00 was admitted and marked as exhibit 3. The defendant added that the plaintiff admitted payment of GHs 24,543.90 in a payment voucher attached to exhibit 3 and referenced in paragraph 11 of the evidence-in-chief of the defendant. The defendant case is that the amount presented by the plaintiff was reviewed and paid but he does not recall exactly how much was paid to the plaintiff after review of the work by GSOP. That until a previous payment certificate is honoured, a new payment certificate cannot be paid. That on 27/09/2017 another payment certificate of GHs 22,386.70 and marked as exhibit 4 was prepared by the defendant on behalf of the plaintiff was submitted to GSOP and on 30/11/2017 an amount of GHs 21,267.38 was paid to the plaintiff after tax deduction of GHs 1,119.33. Exhibit 4A is a receipt and payment voucher dated 30/11/2017 in proof of payment. In both the interim payment certificate dated 27/09/2017 and certificate letter from GSOP approving payment of GHs 22, 386.70 to the plaintiff, previous certificate payments made by the defendant to the plaintiff was referenced and summed as GHs 99,122.42. That the sum of the initial certificate payment of GHs 24,543.90 made to the plaintiff by the defendant and the certificate payment made to the plaintiff after its request for GHs 77, 349.25 is the equivalent of GHs 99,122.42. The defendant testified that in total, the plaintiff received payment of GHs 121,509.12 out of the contract sum of GHs 136, 298. The defendant added that as at January, 2018 the plaintiff had not completed the project and in view of that all payment certificates presented by the defendant to GSOP were declined on basis that the deadline for completion was not met by the plaintiff. A letter dated 12/01/2018 from GSOP as proof of refusal to make money available for payment was tendered in evidence and marked exhibit 5. That if any lapse occurred in payment, the defendant blamed it on the plaintiff. The defendant added that the plaintiff started construction of culvert on the road but failed to cover it and the culvert sunk into the ground and was almost destroyed. This compelled the communities to construct a pathway with stones to enable them cross the culvert. Picture of the culvert with two males standing on it was marked as exhibit 6. The other picture of the fixed culvert was marked as exhibit 6A. That the plaintiff failed to comply with the conditions in the contract that required the use of 170 unskilled community based manual labourers for the project to create employment opportunities. That the plaintiff upon realizing the undue delay in the completion of the project resorted to the use of heavy machinery thereby denying members of the community means of livelihood. That the plaintiff did not complete the project and never furnished the defendant with completion certificate as proof of completion. That the road has been given to another contractor who is currently working on it. Thus the plaintiff cannot recover the entire contract sum. The witness was cross examined. Evidence of DW1 Honourable Ziblim Sulemana. The defendant called a witness to support its case and the evidence of DW1 is as follows: That he is the presiding member of the defendant Assembly and that between 2015 to 2019 he acted in the role of Assembly Member for the Karaga District and he is conversant with the issues concerning the rehabilitation of the Karaga-Kupali-Kpasablo feeder road phase 3 and its current state. That the plaintiff was awarded the contract in 2016 to rehabilitate the aforementioned road. That the rehabilitation project was being financed by the GSOP which is a world bank project. That he knows that in 2016 the plaintiff started the rehabilitation of the road but he did not complete it before leaving the site. That the contract was re-awarded to the plaintiff and the plaintiff came to construct a culvert but again he did not fill it up or complete it. That when it rained, the rain water destroyed the culvert and it was riddled with cracks all over and it sunk into the ground. That due to the sunken state of the culvert, it became very dangerous to walk on. The community members staying around the site were forced to construct a pathway around the culvert with stones so they could easily move across. That the culvert remained in that state until 2022 when a new contractor was appointed by government of Ghana and it is under construction. The pictures taken by the witness of the state of the culverts when the plaintiff allegedly abandoned it was admitted in evidence and marked as exhibit 7 and 7A. Pictures of the reconstructed culvert by the new contractor in 2022 were admitted in evidence and marked as exhibit 8, 8A and 8B. The witness was cross-examined by counsel for the plaintiff and thereafter the defendant closed its case. The issues that were set down for trial by the court differently constituted are as follows: 1. Whether or not the contract sum was GHs 136,298.20 as claimed by defendant or GHs 144,523.41. 2. Whether or not 1st defendant owes the plaintiff GHs 144,523.41. 3. Whether or not the plaintiff used machinery to carry out the contract contrary to the terms of the contract. 4. Whether or not the plaintiff completed the project. 5. Whether or not the plaintiff is entitled to his claims as endorsed on the writ of summons. 6. Any other issue(s) arising from the pleadings. Before I delve into the issues for the determination of this case, let me put on record that the court is not bound to consider all issues if one or two of the issues can settle the entire matter. See the following cases; 1. Vincentia Mensah v Numo Adjei Kwanko II [2018] 117 GMJ 76 2. Fatal v Wolley [2013-2014] 2 SCGLR 1070 Burden of proof In a civil suit like this one, the burden of proof when it is on the plaintiff is to provide sufficient evidence to avoid a ruling against him. Under Section 11 (1) of the evidence Act 1975 (NRCD 323) it is provided as follows: “For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue”. This position of the law was amply explained in the case of: In Re Ashaley Botwe Lands: Adjetey Agbosu & Others [2003-2004] SCGLR 400, 425-426 Per Brobbey JSC as he then was as follows: “The effect of Section 11 (1) and 14 and Sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of fact or of an issue, and that determination depends on evaluation of fact and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour then he has a duty to help his own cause by adducing before the court such facts or evidence that will induce the determination to be made in his favour the logical sequel to this is that if he leads no such facts or evidence the court will be left with no choice but evaluate the entire case on the basis of the evidence before the court, which may turn out to be the only evidence of the plaintiff. If the court choses to believe the only evidence on record the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant. In the light of the statutory provisions. Literally relying on the common law principle that the defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve the best interest of the litigant even if he is a defendant”. In the case before me it is the plaintiff who has instituted this action for the reliefs endorsed on the writ of summons. The defendant did not counterclaim and as such it is the plaintiff who bears the burden to produce sufficient evidence on his claims. In ACKAH v PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728@736 the Supreme Court stated as follows: “It is basic principle of law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quantity of credibility short of which his claim may fail.” Uncontroverted facts I must place on record that certain facts in the case were not in controversy at all and the parties were ad idem on them. Setting them up will help in resolving the matters in dispute in one way or the other and I proceed to list them. In the first place, the plaintiff was awarded a contract by the defendant to rehabilitate the Karaga-Kupali-Kpasablo Feeder road Phase 3 (1.6KM) on 2nd December, 2016. Ref: Exhibit A and exhibit 1 (the contract document). That the contract was reduced into writing and both parties signed the contract which was tendered in evidence by the plaintiff as exhibit A and the defendant as exhibit 1. That it was the plaintiff witness who signed the contract for the plaintiff and the District Chief Executive signed on behalf of the defendant. Ref: Exhibit A and exhibit 1. That the contract was to be executed within six (6) calendar months after the parties signed. Ref: Paragraph 2 of exhibit A (the terms of the contract). That the contract was a World Bank Project that GSOP was to ensure its implementation and financing after inspection of work done. Having dealt with the uncontroverted facts, I will now proceed to deal with the issue set down for trial. Determination of the issues 1. Whether or not the contract sum was GHs 236,298.20 as claimed by defendant or GHs 144,523.41. The plaintiff evidence is that the initial contract sum was GHs 136, 298.20 but the contract sum changed to GHs 144.523.41 because the defendant caused the plaintiff to carry out additional works on the project which was to be carried out with machinery and not manual labour. (Ref. Para 10 of the reply and paragraph 6 of the evidence in chief). See also cross examination of the defendant witness. The entire case before me is based on a contract executed by the parties on 2nd December, 2016 and which said contract the parties are ad idem on its contents. The parties executed the contract and by law they are bound by the provisions of the contract. Section 25(1) of the Evidence Act 1974 (NRCD 323) states that: “Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the instrument, or their successors in interest.” What this means is that, the parties to this case are bound by the terms and conditions of the contract (exhibit A or exhibit1) they entered into and duly signed. The contract sum was well defined in exhibit A and I hereby reproduce that portion of the agreement; “The contract sum as defined by exhibit A at page 136 titled; ‘General Conditions of contract’, paragraph 1.1 (a) states as follows; The Accepted Contract Amount means the amount accepted in the Letter of Acceptance for the execution and completion of the Works and the remedying of any defects.” The acceptance letter the plaintiff presented pursuant to execution of exhibit A is dated 2nd December, 2016 and it states as follows; We are grateful for the award of contract: Construction of Karaga-Kupali-Kpasablo (1.6km) PH3 B. We promise to abide by all rules and regulations of the project. Thank you very much. Yours faithfully Abdul-Ganiyu M. Sheriff This acceptance letter was signed by the plaintiff chief executive officer and it was duly stamped with the plaintiff official stamp. At page 2 of exhibit A is the contract agreement and paragraph 4 states the value of the contract sum and the covenant by the defendant to pay the plaintiff the contract sum upon completion. For emphasis I hereby reproduce paragraph 4 of exhibit A. “The Employer hereby covenant to pay the Contractor in consideration of the execution and completion of the Works and the remedying of defects therein, the Contract Cost of GHs 136, 298.20. [Total cost less unskilled Labour charges-refer PCC 35.1] or such other sum as may become payable under the provisions of the Contract at the times and in the manner prescribed by the Contract” (emphasis mine). From the terms and conditions of the contract, there is certainty of the contract sum which was quoted as GHs 136,298.20 and fully endorsed by the parties. The addition of phrase ‘or such other sum as may become payable under the provisions of the contract at times and in the manner prescribed by the contract’ was also catered for in exhibit A as to how to invoke this provision for variation of the contract sum. See pages 133 to 160 of exhibit A on General and Particular Conditions of Contract. The plaintiff did not invoke any of the provisions there and I do not see the evidence of the plaintiff as meeting the requirements of exhibit A on the variation of the contract sum. The plaintiff in his evidence-in-chief stated orally that the plaintiff was given additional works by the defendant and that is how come the plaintiff is demanding for GHs 144, 523.41 instead of the agreed contract sum of GHs 136, 298.20. This piece of evidence is oral and there is no document to back it. In the case of Yaw Oppong v Charles Anarfi [2011] DLCA 6786 the Court of Appeal speaking through Kanyoke J. A stated that: “It is a sound principle of law supported by a wealth of established judicial authorities that where persons of full age and sound mind have reduced their intentions into writing and signed by them, they are bound by such writing and further that where the terms or words of such writing are clear and unequivocal, no oral or extrinsic evidence is permissible and admissible to add to or subtract, vary or contradict that writing or as an aid to the construction or interpretation of that document except in extreme circumstance of genuine doubt.” From this position of the law, the plaintiff at this stage will not be permitted to add on to what is stated in exhibit A. Since it is the plaintiff who is asserting that the contract sum was GHs 144,523.41 instead of what is contained in the written contract agreement, the plaintiff bears the burden of proof to lead cogent evidence to that effect to avoid a ruling against him. See the case of; Mrs Agnes Ahadzi and Pioneer Mall Ltd V Boye Sowah, Nii Nortey Adjeifio and Nuumo Adjei Kwanko II civil Appeal No. J4/33/2018 [2019] DLSC 6208 The plaintiff evidence on this new contract sum is terse and feeble save that counsel for the plaintiff in cross examination tried to push the alleged additional works done by the plaintiff but I must say that I am not impressed by the entire evidence of the plaintiff on this matter and I do not see it as satisfying the provisions of exhibit A. The plaintiff admitted in cross examination that the actual value of the work done has to be determined by the Project Manager and not the plaintiff. Hear plaintiff representative in cross examination on 16/02/2023 Q: Have a look at page 136 of exhibit A and read paragraph K to the court A: Read. Q: Also read sub clause 39.1-39. 3 of page 148 of exhibit A. A: Read. Q: You know from what you have read that the actual value of the work done has to be determined by the Project Manager and not the plaintiff. A: Yes. (emphasis supplied) Q: I put it to you that the amount you are claiming in court is based on your own assessment. A: Yes but of it is my own assessment for the extra works that were added. The plaintiff having admitted that the amount he is claiming is based on his own assessment of work done contrary to the agreed terms of the contract, the plaintiff personal assessment cannot be the basis of the contract for enforcement. A reference to paragraphs 39.1 to 39.6 of exhibit A will put clarity to this fact and I hereby reproduce it; “39. 1 The Contractor shall submit to the Project Manager monthly statements of the estimated value of the work executed less the cumulative amount certified previously. 39.2 The Project Manager shall check the Contractor’s monthly statement and certify the amount to be paid to the Contractor. 39.3 The value of work executed shall be determined by the Project Manager. 39.4 The value of work executed shall comprise: a) In case of an admeasurement contract, the value of the quantities of work in the Bill of Quantities that have been completed; or b) In the case of lump sum contract, the value of work executed shall comprise the value of completed activities in the Activity Schedule. 39.5 The value of work shall include the valuation of Variations and Compensation Events. 39.6 The Project Manager may exclude any item certified in a previous certificate or reduce the proportion of any item previously certified in any certificate in the light of later information.” The combined effect of paragraphs 39.3, 39.5 and 39.6 of exhibit A conferred authority on the Project Manager (Defendant) to determine the value of work done by the plaintiff, the payment thereof and to determine compensation event if any. Section 41 of the contract also deals with compensation events but same was not invoked by the plaintiff and I do not intend to go into that. Nowhere in the contract agreement was the authority to determine the value of work done and variation of the contract sum conferred on the plaintiff. The plaintiff is bound by the terms of the contract and nothing more. Thus the plaintiff unilateral assessment of the cost of the project is not sanctioned by the contract and I hereby reject the plaintiff invitation to this court to state that the contract sum is GHs 144, 523.41 instead of GHs 136,298.20. The law is settled that parties to a contract will not be permitted to avoid the contract unless there exist valid lawful reasons so to do. It is not the duty of the court to make contract for the parties. Where the terms of the contract have been reduced into writing, the court will interpret it to give effect to the intentions of the parties. See; Poku v Ghana Commercial Bank [1989-90] 2 GLR 37 CA I must add that it is the duty of the court to ensure that the doctrine of sanctity of contract is maintained and given effect to what the contracting parties have themselves greed on. See; Atia v Boakyem [2006] 9 MLRG 1 SC The plaintiff having signed exhibit A and did not complain of duress, undue influence, fraud or any other vitiating factors in his reliefs, the plaintiff is estopped from denying the contents of exhibit A. I agree with learned counsel for the defendant on his submission on this issue and declare that the contract sum under the project is GHs 136, 298.20 and not GHs 144, 523.41. I hereby hold that the plaintiff has not been able to prove that the contract sum as agreed on is GHs 144,523.41 on preponderance of probabilities. I will now proceed to deal with the issue two. Whether or not 1st defendant owes the plaintiff GHs 144,523.41. Having made a determination that the contract sum is not GHs 144, 523.41 but rather 136, 298.20 the second issue for determination will have to be reformulated to read whether or not the 1st defendant owes the plaintiff GHs 136, 298.20. The plaintiff pleadings on this issue is that, it executed the contract within the stipulated time period stated in the contract agreement but the plaintiff evidence contradicts the plaintiff own pleadings. In paragraph 5 and 6 of the plaintiff statement of claim, the plaintiff states as follows: 5. Plaintiff accepted the bid for the execution and completion of the contract within six calendar months in a letter dated 2nd December, 2016. A Contract Agreement was subsequently executed on 2nd December, 2016. Plaintiff subsequently took possession of the site and commenced the work. 6. Plaintiff executed the contract within the stipulated time and in accordance with the specifications as per the contract agreement averred to in paragraph 5 herein. Three payment certificates were raised with the total sum of GHs 144,523.41. The plaintiff in its reply to the defendant statement of defence maintained in paragraph 12 that the plaintiff completed the project within the time given it by the 1st defendant. When counsel for the defendant challenged the averments in paragraphs 5 and 6 of the statement of claim through cross-examination, the plaintiff answers changed and sharply contradicted the averments in paragraphs 5 and 6 of the statement of claim. I hereby reproduce the cross examination on 15/02/2023: Q: is it your evidence that you executed all the work as stipulated in the contract. A: No. (Emphasis supplied) Q: I put it to you that in your witness statement you purport to say that you have completed all of the work within the stipulated time in accordance with the contract agreement as stated in paragraph 5 of your witness statement. A: We did not finish with all the works in the contract but an extension of time was granted us because of additional works that were added and also the delay in payment of work done. The answers given by the plaintiff in the cross-examination further contradicts paragraph 5 of the plaintiff witness statement which states that; ‘All work was executed within the stipulated time and in accordance with the specifications as per the contract agreement. The road has been in use by the general public since its completion.’ The plaintiff having admitted that it did not complete the contract in accordance with the terms of the contract, on what basis was the plaintiff making a claim for full payment of the contract sum. I will revert to this question at the later part of judgment and provide answer to same. It must be noted that, a party’s evidence against his own interest must be held against him. See Avuugi v Abugri [1987-88] 2 GLR 515 Yakubu v Yakubu [2013] 55 GMJ 97 CA Tonado Enterprise and Ors v Chou Sen Lin [2007-2008] SCGLR 135 The defendant tendered pictures of portion of the road where culverts was supposed to be constructed to pave way for water to pass. The evidence of DW1 corroborate the evidence of the defendant representative to the effect that the plaintiff did a shoddy work on the culverts which later sunk and was not motorable. Exhibits 6, 7 and 7A are pictures of the said culvert that was constructed by the plaintiff. It is clear from the pictures that the culvert was shabbily done and was not completed for use. The pictures do not require any technical knowledge to see the defects. These pictures corroborate the defendant’s evidence that the project was not completed and the work done by the plaintiff was unsatisfactory. The position of the law is that where the evidence of one party on an issue is corroborated by the evidence of the opponent or the opponent witness, while that of the opponent on the same issue stands uncorroborated, a court ought not to accept the uncorroborated version in preference to the corroborated one unless some compelling reasons which must appear on the face of the record. See the following cases; Yaw v Domfeh [1965] GLR 232, SC Augustine Yaw Manu v Elizabeth Ama Nsiah [2006] 3 MLR SC In Met Capital Group Limited v Guaranty Trust Bank Ghana Ltd and Anor [2021] DLSC 10688 the Supreme Court speaking through Owusu (MS), JSC cited with approval Asante v Bogyabi [1966] GLR 232 where the law was stated as follows: “Where the evidence of one party on an issue in a suit is corroborated by witnesses of his of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reasons (which must appear on the face of the judgment) the court finds the corroborated version incredible or impossible”. The plaintiff claim is that it was granted extension of time by the defendant to complete the project but claim was denied by the defendant in cross examination. A denied averment must be proved positively by providing cogent evidence and not by repeating the averment on oath. See the case of; Majolabge v Larbi and Ors [1959] GLR 190 Again, the contract agreement made specific provisions on extension of time. Paragraph 1.1 (w) at page 137 of exhibit A states that; “The intended completion date is the date on which it is intended that the contractor shall complete the works. The intended completion date is specified in the particular conditions of contract. The intended completion date may be revised only by the Project Manager by issuing an extension of time or an acceleration order.” From the pieces of evidence before me, I hereby hold that the plaintiff did not complete the contract contrary to the plaintiff assertion in its pleadings and evidence-in-chief. Now specifically on the issues of payments of the contract sum, the plaintiff pleadings and witness statements suggest that the plaintiff was not paid any money of the contract sum. See paragraphs 10 and 11 of the evidence-in-chief. 10. I say that because no payment was made for any of the payment certificates, we do not have any evidence to show that it was indeed made. 11. 1st defendant failed/refused to make payment for the completed project and upon several demands by the plaintiff, 1st defendant kept making up excuses. These assertions also turned out to be untrue as the plaintiff answers in cross examination sharply contradicted its own evidence in chief and pleadings. In cross examination, the plaintiff through its Managing Director admitted receiving some payments on the project. Here the plaintiff in cross examination on 8th March. 2023. Q: You claim to have been paid fully for the culvert you constructed. Tell the court whether the payment on the culvert was separate from the amount due you on the contract. A: The culvert is inclusive. Q: I put it to you that prior to the issuance of what you claim to be your 1st payment request to the defendant in July 2017 you requested for an amount of GHs 25,444.12 in April 2017 is that not the case. A: Not correct. The 1st certificate was paid before 2017. What you are referring to is payment of certificate No. 2. Q: Have a look at the document dated 11/04/2017 and titled Rehabilitation of Karaga- Kpasablo Feeder Road Phase 3… this document is in reference to an interim payment certificate in the sum of GHs 25,444.12. A: Yes it was paid but it is the 2nd interim payment certificates. There seem to be problems with the numbering of the certificates from the defendant. Q: Look at the document dated 30th May 2017 titled RE: SPOT IMPROVEMENT OF KARAGA-KUPALI-KPALSABLO FEEDER ROAD (1.6KM) phase III. This is a letter from GSOP reviewing the payment of the GHs 25,444.12 to GHs 24,544.12 pesewas. A: Yes and I had problem on the review figure because the defendant was to defend the certificate they prepared but the defendant did not do it. Q: Identify the document P. V. No. 01/06/2017 and confirm that it is a payment voucher from the defendant indicating payment of GHs 23,316.70 to the plaintiff. A: Yes. Q: This amount constitutes the reviewed amount of GHs 24,544.12 excluding Tax. A: Yes but I was under paid because the defendant failed to defend the certificate I caused them to prepare. The admissions made by the plaintiff contradict the evidence of the plaintiff to the effect that he was not paid for the work done and all payment certificates it caused to be prepared were not honoured. These contradictions are not mere slips but go into the root of the matter. This has rendered the plaintiff case on the non-payment of work done manifestly unreliable. Was the plaintiff testing the pause of the defendant being a government institution with lapses of keeping records or what was the plaintiff motivation to make a demand for monies it had already received part? This beats my imagination. The plaintiff admissions did not end on the monies received supra. The plaintiff further admitted receiving payments for some works which done the plaintiff had denied in its evidence-in-chief. Q: Have a look at this document which is a receipt from the plaintiff dated 30th November 2017. This is a receipt from you evidencing payment of GHs 21,627.38 from the defendant which is the value of GHs 22, 386.71 after tax. A: Yes but that was also under payment. Q: I put it to you that on 27th September 2017, the amount specified in paragraph 8 of your statement was reviewed by GSOP from GHs 45,003.70 to GHs 22,386.70. A: No I was under paid. Q: I put it to you that after the review by GSOP you were subsequent paid the reviewed amount of GHs 22,286.70 with Tax. A: Yes. From these admissions made by the plaintiff, it is clear that the defendant made payments to the plaintiff whenever work done by the plaintiff was assessed and thereafter monetary value placed on it per the terms of the contract. The plaintiff admitted in cross examination that it was the defendant and GSOP that were supposed to review the work and after measurements taken, the value of work done is paid. The defendant evidence through its representative supported all the payments made to the plaintiff with documents which matched the payments made to the plaintiff of which the plaintiff admitted. In exhibit 4A the plaintiff on 30th November 2017 acknowledged receipt of payment of GHs 21, 627.38. This exhibit 4A is receipt the plaintiff issued and it states that it is part payment for works done on Karaga Kpasablo feeder road phase 3. This document again supports the defendants claim that the plaintiff received some payments on the project contrary to its evidence that no payment was made on the entire project. The documentation that support the payment makes reference to Interim Payment Certificate No. 5 of the GSOP project. This indicates that as at the time the plaintiff received this payment, the plaintiff had already received payments of at least four (4) Interim Payment Certificates. This finding of fact is supported by the plaintiff admissions in cross examination that, for every request it made for interim payment certificate reference was made to previous payments made to the plaintiff. Q: I put it to you that in every payment request you submit to the defendant and on every interim payment certificate that the defendant sent to GSOP reference was made to previous payments made to you. A: Yes. The plaintiff further made admissions of receiving payment at paragraph 8 of page 4 of its own exhibit B, amounting to GHs 24,543.90 made by GSOP through the defendant. This document was exhibited by the plaintiff and it therefore binds it. I therefore agree with counsel for defendant submission that the plaintiff received payment the total sum of GHs 121,509.13 out of the contract sum GHs 136,298. The only payment that the defendant raised Interim Payment Certificate on and it did not go through is the one submitted in 2018 at the time the project time of completion had long elapsed and the GSOP had closed that project and stopped funding. (See exhibit 5 the letter from GSOP indicating its inability to pay). The face value of the outstanding amount per the Interim Payment Certificate is GHs 22,171.16 and dated 22nd January, 2018. (Exhibit D). At the time this certificate was sent to GSOP the project had come to an end though the defendant had not completed the work. From the admissions made by the plaintiff that it did not complete the work in accordance with the terms of the contract will it be fair, just and equitable for the court to grant this amount to the plaintiff when no assessment of work had been carried out? Is the defendant estopped from denying the recovery of this amount since it was the defendant that prepared that interim payment certificate? Section 25 (1) of the Evidence Act 1975 (NRCD 323) states that except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the instrument or their successors in interest. However subsection 2 of section 25 states that this section does not apply to the recital of consideration. Ordinarily, the defendant would have been estopped from denying the contents of the last interim payment certificate if the preparation of the interim payment certificate was the final document for payment. In this particular contract, the terms are such that after preparation of interim payment certificate, the defendant and GSOP will go to the project sites and take measurements and assess the work done and place monetary value on it. It is this value that becomes the actual value of work done that binds the parties. See the plaintiff admissions to this fact in cross examination supra. In the instant case no assessment was done on the work and a final value put on the work done because GSOP had closed and stopped financing the project because of delay on the part of the plaintiff and conflict. The project was such that if there were challenges that could delay in the implementation of the project, the plaintiff could trigger the clause in the contract for extension of time. In the case before me there is no credible evidence that the plaintiff invoked that provision. I am on the view that the plaintiff admission of not finishing the project will not entitle it to the claim for full payment of the contract sum. Any attempt to do that will amount to an unjust enrichment. A party who has breached a term of a contract cannot be entitled to full payment of the contract sum. I hereby hold that the plaintiff breached terms of the contract by not completing the Karaga-Kpasablo Road Phase 3 B in accordance within the scheduled date of the contract. I have refrained from making a pronouncement on the use of machinery for the project since for me it is not a matter that goes to the root of the case. I further hold that the plaintiff has failed woefully in producing sufficient and credible evidence on the balance of probabilities for the reliefs endorsed on its writ of summons. The plaintiff entire action fails. At this stage I must commend Kofi Somuah Akuamoah- counsel for the defendant for the spirited defence he mounted on behalf of the Karaga District Assembly in this action and the industry he put in his address. His conduct is worth emulating. I make no order as to cost in view of the relationship between the parties. SGN JUSTICE ERIC ANSAH ANKOMAH JUSTICE OF THE HIGH COURT TAMALE 27