Jago Apex Company Limited v The Attorney General (C2/028/2024) [2024] GHAHC 549 (4 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE COMMERCIAL COURT “B” (GENERAL JURISDICTION) SUNYANI BONO REGION BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN ON WEDNESDAYTHE 4TH DAYOF DECEMBER2024 SUITNO. C2/028/2024 JAGOAPEXCOMPANY LIMITED PLAINTIFF Vs. THEATTORNEY GENERAL DEFENDANT OFFICEOF THE ATTORNEYGENERAL’S DEPARTMENT,SUNYANI JUDGMENT OffehGyimah representsthe Plaintiff Defendant absent Jemimah Asum holding brief ofPrince Obidiaba for the Plaintiff Vivian Yayra NtiBoaduforthe Defendant present 1 The Plaintiff issued a writ of summons and statement of claim on 9th January, 2024 claiming thefollowing reliefs against the Defendant. 1. Recovery of a total amount of Three Million Five Hundred and Four Thousand, Nineteen Ghana Cedis, Forty-Two Pesewas (Ghs 3,504,019.42) consisting of the following certificates. 2. Interest at the prevailing commercial bank rate on reliefs (a) to (o) from the respective dates they each became due for payment until the final date of payment 3. 10% cost including legalfees. The Defendant entered conditional appearance on 16th January, 2024 and subsequently filed statement of defence on 30th January, 2024. The Defendant disputed the Plaintiff’s claim that the Government of Ghana (GoG) is indebted to the Plaintiff to the tune of Ghs 3,504,019.42. The Defendant further stated that interim payment certificates became due for payment not on the dates the Department of Urban Roads (DUR) or Feeder Roads (FR) and Ghana Highway Authority (GHA) raised them but on the dates, the Ghana Road Fund Secretariat (GRFS) received them for payment to be effected. The Defendant further stated that the Plaintiff havingworked outinterestondelayed paymentand having accepted same, the 2 Plaintiff could not seek further interest on interest on delayed payment. The Defendant contends that the Government of Ghana is not obliged to pay the amounts contained in the Interim Payment Certificates (IPCs) which have been specifically set out in the reliefs. The Defendant contends that the Plaintiff has not incurred cost of 10% of his claim in instituting this action. It is the Defendant’s defence that the Plaintiff is not entitled to its claim against the state. The record shows as claimed by the Plaintiff that the GoG paid Ghs 1,184,360.88 out of the Plaintiff’s claims. On30th April2024,the Courtset downthe following issuesfor trial. (a) Whether or not the contract mentioned in the statement of claim were awarded by the GoG through the Ghana Highways Authority, Department of Feeder Roads and the Department of UrbanRoads all under the Ministry of Roadsand Highways. (b) Whether or not the Plaintiff is entitled to be paid the amount endorsed on the writ ofsummons. (c) Whether or not the Plaintiff is entitled to be paid interest from the date on the payment certificates. (d) Whether or not the Plaintiff is entitled to be paid interest on payment certificate oninterest ondelayed payment. 3 (2)Any otherissue raised bythe pleadings. The matter was adjourned for Case Management Conference (CMC). Before the Court could conduct CMC, the parties announced to the Court that the Defendant had made some payments to the Plaintiff. Counsel for Plaintiff therefore prayed the Court for leave for the Plaintiff to amend its writ of summons to reflect the amount that was paid by the Defendant and the outstanding amount. The Court accordingly granted the Plaintiff leave as prayed. The Plaintiff accordingly filed the amended writ of summons on 19th June, 2024 and claimed the following reliefs against the Defendant; 1. Recovery of a total amount of Two Million, Two Hundred and Thirteen Thousand and Sixty Two Ghana Cedis Seventy Eight Pesewas (Ghs 2,213,062.78) as contained in thestatement ofclaim. 2. Interest at the prevailing Commercial Bank rate on reliefs (a) to (o) from the respective dates they each became due for payment until the final date of payment. 3. 10% cost including legalfees. The parties were ordered to file their witness statements, which the Plaintiff compiled and filed same on16th July, 2024.Beforethe Defendant could file its 4 witness statements, the Plaintiff filed motion on notice on 9th August, 2024 for an order to go into accounts under Order 29 rule 2 of the High Court (Civil Procedure) Rules, 2004 (C.I 47). The Defendant was not opposed to the application. The Court heard the application and upon considering the applicable rule that is Order 29 rule 2 of C.I 47 found it prudent to grant the application and on the 6th day of September 2024 the Court ordered the Ghana Audit Service, Sunyani Bono Region through its Regional Head to go into the accounts of the parties to establish how much the GoG is indebted to the Plaintiff. The Court ordered the parties to provide the Auditor withall thenecessary documentations throughthe Court’s registry. The Auditor was also to consider other documents in its work including documents from the Ghana Road Fund Secretariat to assist in its work. The Auditor, upon receipt of documents filed by the parties at the Court’s registry is to file its reportat the Court’s registry on orbefore4th October, 2024. On 1st October, 2024, the Auditor filed his report at the Court’s registry. The parties were served with copies of the report. The Auditor appeared in Court on 31st October, 2024 to tender the report. The report was accordingly tendered by the Auditor, Court witness 1 (CW1) and the report was tendered as Court Exhibit “1” (CE1). The Plaintiff cross-examined the Auditor about whether or not the amount the Auditor established as outstanding debt the Defendant owes the Plaintiff includes interest. The Auditor answered in the negative. The Defendant did not crossexamine the Auditor and statedthat allthat the Defendant disputed is how 5 much the GoG owes the Plaintiff and that once the said amount was established, by theGhana Audit Service it hasno questionsfor the Auditor. The Court found that the Auditor in performing the task the Court assigned to him, contacted the Regional Director of Ghana Highways, Sunyani, Regional Director of Department of Urban Roads, Sunyani, Regional Manager of the Dept. of Feeder Roads, Sunyani and the parties. The Court further found that the Auditor obtained relevant documents and comments from the above persons for ease of reference. The report established that in all, the contractor Jago Apex Company Limited was awarded fifteen (15) contracts by the GoG between July 2018 to September 2022. Ten (10) of the contracts were under the supervision of the Ghana Highway Authority in Sunyani while four of the contracts were supervised by the Department of Feeder Roads and the Department of Urban Roads respectively. The report also revealed that the Plaintiff performed one of the contracts in the Northern Region of Ghana. The report established that fifteen (15) Interim Payment Certificates (IPC) were raised with a total amount of Ghs 3,504,019.42 between July 2018 and March 2023 in favor of the Plaintiff for work done. The report further found that a total amount of Ghs 1,495,918.42 was paid by the GoG instead of Ghs 1,184,360.88 stated by the Plaintiff in its amended writ of summons. The report further established that the outstanding amount the GoG owed the Plaintiff is Ghs 2,008,100.68 per appendix “A” attached to the report instead of Ghs 2,213,042.78 claimed by the Plaintiff in its amended statement ofclaim. The reportspelt out details ofthe15contracts. 6 The Auditor noted that the outstanding amount does not include interest. The report further established that one of the contracts numbered (4) was awarded and performed in the Northern Region at Wanie in Vanie and Other Feeder Roads in the sum of Ghs 240,543.76 out of which the GoG paid Ghs 190,000.00 with an outstanding amount ofGhs 50,543.76.The Courtdecided to exclude contract number (4) as indicated above from its judgement on grounds of lack of jurisdiction. The partiesagreed with theCourt. BYCOURT; After a careful perusal of the Plaintiff’s claim per its amended writ of summons and statement of clam vis-à-vis the Auditor’s report, the Court established that the Plaintiff performed 15 contracts for the GoG between July 2018 and September 2022 with 14 of the contracts performed in the Bono and Ahafo Regions and one in the Northern Region. The Report further established the claim by the Plaintiff that the total sum the GoG owes the Plaintiff is Ghs 3,504,019.42 for which IPCs were raised between July 2018 and March 2023 in favor of the Plaintiff. The Plaintiff claimed that the GoG paid a total amount of Ghs 1,892,259.42 but the report established GHC 1,495,918.47 and the Court would accept the amount established by the Auditor as verified per appendix “A” of the report. The report shows that the outstanding amount theGoG owesthe Plaintiff is Ghs 2,008,100.68instead ofGhs213,062.78 7 claimed by the Plaintiff. The Court will accept Ghs 2,008,100.68 as established by the Auditorand verified per exhibit “A”. ISSUE(a) Considering the Plaintiff’s amended statement of claim and the Auditor’s report exhibit “CE1”, the Court established issue (a) on Whether or not the contracts mentioned in the statement of claim were awarded by the GoG through the Ghana Highways Authority, Department of Feeder Roads and the Department of Urban Roads all under the Ministry of Roads and Highways, the report established that the fifteen(15) contractsmentioned inthe Plaintiff’s statementofclaim were awarded by the GoG through the GHA, the DFR and the DUR all under the Ministry of Roads and Highways. ISSUE(b) The Court further established that although per the Plaintiff’s amended writ of summons, it claimed anamount ofGhs 2,213,062.78the Auditors established that the Defendant owes the Plaintiff Ghs 2,008,100.68. In the Court’s view, per issue (b) regarding whether or not the Plaintiff is entitled to be paid the amount of Ghs 2,213,062.78indorsed onthe amended writ ofsummons, theCourtholdsthe view 8 that the Plaintiff is entitled to Ghs 2,008,100.68 as established by the Auditor per exhibit “CE1”instead ofGhs 2,213,062.78asclaimed by the Plaintiff. However, contract no. 4 performed in the Northern Region per exhibit “CE1” shows that the contract sum is Ghs 240,543.76. The report further shows that the GoG paid Ghs 190,000.00 out of the amount. The outstanding amount is Ghs 50,543.76. The Courthereby excludes this contractongrounds oflack ofjurisdiction. Therefore, the outstanding total amount of 2,008,100.68 less Ghs 50,543.76 is Ghs 1,957,556.92, which is the outstanding amount the GoG is to pay the Plaintiff for 14 contracts performed by the Plaintiff in the Bono and Ahafo Regions. In resolving issue(b), theCourt holdstheview that thePlaintiffis entitled to Ghs1,957,556.92. ISSUE(c) Resolving issue (c), as to whether the Plaintiff is entitled to be paid interest from the date on the payment certificates, the Court holds the view of the Defendant that the IPCs became due for payment not on the dates the DUR, DFR and GHA raised them but on the dates the Ghana Road Fund Secretariat received the IPCs and approved payment. For example for the first contract performed at Aprakukrom in Mepum, the IPC became due for payment on 7th April, 2022 instead of 10th November, 2021 and the same should apply forallthe remaining contracts. 9 ISSUE(d) On issue (d), whether or not the Plaintiff is entitled to be paid interest on payment certificate on interest on delayed payments, the Court holds the view that granting this relief will amount to granting double interest and therefore the Plaintiff’s relief forinterestondelayed paymentsis herebyrefused. ISSUE(2) As indicated earlier, on relief (a) interest is to be calculated from 7th April, 2022, being the date the Road Fund Secretariat approved of the payment up to 4th April, 2024.The due dates forpayment for the remaining reliefs arethe datethe Road Fund Secretariat approvedofthe paymentsper the twelfthcolumnofappendix “A”. It is important to note that the interest to be calculated on reliefs (a), (b), (c), (d), (e), (f) (omitted), (g), (h), (i), (j), (k), (l), (m), (n) and (o) indicated in the amended writ of summons are to be calculated at simple interest at the prevailing bank rate per the Contract (Amendment) Act except the relief for payment of interest on delayed payment. The Contract (Amendment) Act, 2023(Act 1114)section 17(2) and(3) provides that; “(2) The following persons are authorized to enter into a contract or transaction on behalf of the Republic. 10 (a) a Minister responsible for a subject or department on a matter falling within the portfolio of the Minister, (b)a person authorized bythe Minister,or (c)any other person authorized bylaw (3)Where a person specified under subsection (2) enters into a contract or transaction on behalf of the Republic, the payment of interest on any sum of money due under the contract shall be calculated at simpleinterest.” The Plaintiff prayed for cost including legal fees calculated at 10% of the amount claimed. I have considered the fact that this suit was commenced on9th January, 2024 and same is completed within the same year. I have considered processes filed by the Plaintiff and considered that no cost was awarded in favor of the Plaintiff during the proceedings. I have taken into consideration the reasonable transport expenses incurred by the Plaintiff in prosecuting this case. The number of adjournments and the fact that the Plaintiff engaged Counsel to prosecute the case on his behalf. I have also considered that the Defendant also incurred reasonable expenses in prosecuting this case. In the light of the above and in accordance with Order 74 of the High Court (Civil Procedure) Rules, 2004 (C.I 47), I find it just and reasonable to grant the Plaintiff cost calculated at 10%of theoutstanding amount ofGhs1,957,556.92. 11 The Plaintiff is hereby ordered to calculate interest on the above reliefs in consultationwiththe Registrarofthis Court. (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 4TH DECEMBER,2024 12