CECO ENGINEERS LIMITED VRS THE ATTORNEY GENERAL, OFFICE (C2/007/2024) [2024] GHAHC 356 (18 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON TUESDAY THE 18TH DAY OF JUNE, 2024 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURT JUDGE SUIT NO. C2/007/2024 CECO ENGINEERS LIMITED PLAINTIFF VRS. THE ATTORNEY GENERAL, OFFICE DEFENDANT OF THE ATTORNEY GENERAL JUDGMENT Parties absent Moses Kofi Obah for the Plaintiff present Elizabeth Anyeming for the Defendant present THE PLAINTIFF’S CLAIMS The Plaintiff commenced this suit against the Defendant praying for the following reliefs; (a) Recovery of the total amount of GH₵ 2,496,089.93 consisting of the following; 1. Recovery of the total amount of GH₵ 52,368.22 as WORK DONE on account of Interim Payment Certificate No. 1 dated 6th December, 2020, for the execution of a contract involving Grading of selected Roads in Gidim – Goaso which became payable on 6th December, 2020. 1 2. An amount of GH₵ 50,822.87 as WORK DONE on account of Interim Payment Certificate No. 1 dated 8th December, 2020 for the execution of a contract involving grading of selected roads – Asudai – Goaso, PH2 which became payable on 8th December, 2020. 3. An amount of GH₵ 169,236.33 as WORK DONE on account of Interim Payment Certificate No. 1 dated 5th January, 2021 for the execution of a contract involving construction of 0.60 U – Drains along selected roads in Nurses/Midwifery Training School Area Roads, LHS, Goaso which became payable on 5th January, 2021. 4. An amount of GH₵ 168,334.78 as WORK DONE on account of Interim Payment Certificate No. 1 dated 17th January, 2021 for the execution of a contract involving pothole patching on selected roads in Duayaw Nkwanta, PH2 which became payable on 17th January, 2021. 5. An amount of GH₵ 79,073.73 as WORK DONE on account of Payment Certificate No. 1 dated 12th January, 2021, for the execution of a contract involving pothole patching on selected roads in Bechem, PH2 which became payable on 12th January, 2021. 6. An amount of GH₵ 73,803.13 as WORK DONE on account of Interim Payment Certificate No. 1 dated 12th January, 2021, for the execution of a contract involving pothole patching on selected roads in Bechem, PH1 which became payable on 12th January, 2021. 7. An amount of GH₵ 115,624.50 as WORK DONE on account of Interim Payment Certificate No. 1 dated 12th January, 2020 for the execution of a contract involving pothole patching on selected roads on Duayaw Nkwanta, PH1 which became payable on 12th January, 2020. 2 8. An amount of GH₵ 179,972.90 as WORK DONE on account of Interim Payment Certificate No. 1 dated 29th December, 2020 for the execution of a contract involving construction of U-Drain along Hope Marie School Road (250M) – Lot 1 which became payable on 29th December, 2020. 9. An amount of GH₵ 182,317.93 as WORK DONE on account of Interim Payment Certificate No.1 dated 29th December, 2020 for the execution of a contract involving construction of U – Drain along Hope Marie School Road (250M) – Lot 2 which became payable on 29th December, 2020. 10. An amount of GH₵ 170,361.94 as WORK DONE on account of Interim Payment Certificate No. 1 dated 30th December, 2020 for the execution of 0.60 U – Drain along selected roads in Nurses / Midwifery Training School Area Roads, RHS, Goaso which became payable on 30th December, 2020. 11. An amount of GH₵ 9,048.47 as WORK DONE on account of Interim Payment Certificate No. dated 14th September, 2021 for the execution of a contract involving construction of 0.60 U – Drain along selected roads in Nurses/Midwifery Training School Area Roads, RHS, Goaso which became payable on 14th September, 2021. 12. An amount of GH₵ 9,480.47 as WORK DONE on account of Interim Payment Certificate No. dated 5th October 2021, for execution of a contract involving construction of U-Drain along Hope Marie School Road (250M) – Lot 2 which became payable on 5th October, 2021. 3 13. An amount of GH₵ 9,480.47 as WORK DONE on account of Interim Payment Certificate No. dated 5th October, 2021, for the execution of a contract involving construction of U-Drain along Hope Marie School Road (250 M) – Lot 1 which became payable on 5th October, 2021. 14. An amount of GH₵ 9,424.38 as WORK DONE on account of Interim Payment Certificate No. 2 dated 14th September, 2021 for the execution of a contract involving pothole patching on selected roads in Duayaw Nkwanta, PH1 which became payable on 14th September, 2021. 15. An amount of GH₵ 9,476.73 as WORK DONE on account of Interim Payment Certificate No. 2 dated 14th September, 2021 for the execution of a contract involving pothole patching on selected roads in Duayaw Nkwanta, PH2 which became payable on 14th September, 2021. 16. An amount of GH₵ 4, 258.38 as WORK DONE on account of Interim Payment Certificate No. dated 14th September 2021 for the execution of a contract involving pothole patching on selected roads in Bechem, PH1 which became payable on 14th September, 2021. 17. An amount of GH₵ 4, 231.78 as WORK DONE on account of Interim Payment Certificate No. dated 14th September, 2021 for the execution of a contract involving pothole patching on selected roads in Bechem, PH2 which became payable on 14th September, 2021. 18. An amount of GH₵ 8, 925.24 as WORK DONE on account of Interim Payment Certificate No. dated 14th September, 2021 for the execution of a contract involving 4 construction of 0.60 U – Drain along selected roads in Nurses/Midwifery Training School Area Roads, LHS, Goaso which became payable on 14th September, 2021. 19. An amount of GH₵ 709,562.56 as WORK DONE on account of Interim Payment Certificate No. 2 dated 1st January, 2022, for the execution of a contract involving pothole patching of the Dzolokpuita – Kpedze - Ashanti – Kpoeta Road (0 – 21 km) which became payable on 1st January, 2022. 20. An amount of GH₵ 238,967.26 as WORK DONE on account of Interim Payment Certificate No. 2 dated 1st January, 2022, for the execution of a contract involving pothole patching of the Dzolokpuita – Kpedze – Ashanti - Kpoeta Road (0 -21km) Lot 2 which became payable on 1st January, 2022. 21. An amount of GH₵ 120,657.95 as INTEREST ON DELAYED PAYMENT on account of Interim Payment Certificate No. 2A dated 1st January, 2022, for the execution of a contract involving pothole patching of the Dzolokpuita – Kpedze – Ashanti – Kpoeta Road (0-21km) Lot 2 which became payable on 1st January, 2022. 22. An amount of GH₵ 120,657.95 as INTEREST ON DELAYED PAYMENT on account of Interim Payment Certificate No. 2A dated 24th June, 2022 for the execution of a contract involving pothole patching of the Dzolokpuita - Kpedze – Ashanti Kpoeta Road (0-21km) which became payable on 24th June, 2022. (b) Interest on the amounts stated in relief (a) from the dates above at the prevailing Commercial bank rate until the date of final payment. (c) Cost of 10% on the amounts contained in relief (a) 5 THE PLAINTIFF’S CASE The Plaintiff gave evidence through its Director Edward Mensah, a contractor in the Greater Accra region. Per its pleadings and evidence in chief, the Plaintiff is a limited Liability Company registered under the laws of the Republic of Ghana. The Defendant is a Constitutional body that represents the Government (GoG) in all actions against the Government of Ghana. Before commencing this suit, the Plaintiff complied with section 10 of the State Proceedings Act, 1998 (Act 555) and gave notice to the Defendant. The Plaintiff tendered exhibit “A” to support its case. The Plaintiff per its Director stated that he was awarded the following contracts by the GoG through the Department of Urban Roads; a. Grading of selected Roads in Gidim – Goaso b. Grading of selected Roads in Asudai – Gaoso, PH2 c. Construction of 0.60 U – Drain along selected roads in Nurses/Midwifery Training School Area Roads, LHS, Goaso d. Pothole patching on selected roads in Duayaw Nkwanta PH. 2 e. Pothole patching on selected roads in Bechem PH.2 f. Pothole patching on selected roads in Bechem PH. 1 g. Pothole patching on selected roads in Duayaw Nkwanta PH. 1 h. Construction of U – Drain along Hope Marie School Road (250M) – Lot 1 i. Construction of U – Drain along Hope Marie School Road (250M) – Lot 2 j. Construction of 0.60 U – Drain along selected roads in Nurses/Midwifery Training School Area Roads, RHS Goaso The Plaintiff was awarded a further contract involving pothole patching of the Dzolokpuita – Kpedze – Ashanti Kpoeta Road (0 – 21 km) Lot 2 by the Ghana Highway Authority. 6 The Plaintiff’s case is that upon award of the above contracts he (the Director) executed them and the Department of Urban Roads and Ghana Highway Authority raised in his favour, Payment Certificates (IPCs) for payment of a total amount of GH₵ 2, 496,089.93 for work done and interest on delayed payments. The Plaintiff submitted the amount to the Ghana Road Funds Secretariat for payment. The IPCs whose non – payment gave rise to this action are for work done and interest on delayed payments in respect of the contracts mentioned under paragraphs (3) and (4). Plaintiff’s claim is that although the certificates were raised by the Ghana Highway Authority together with payment vouchers for payment of the above amount which the Ghana Road Fund Secretariat received, it failed to pay him. The GoG is using the projects undertaken by the Plaintiff but refused to pay him upon several demands. He secured several loans from various financial institutions to execute the contract who are demanding their money. The Plaintiff tendered exhibits “A” to “D” to substantiate his claims. Exhibit “A” is the notice of intention to commence action, exhibit “B” Statement of Bills from Ghana Road Fund Secretariat and exhibit “C” is documentations on the various contracts. Exhibit “D” is a previous contract the Plaintiff executed for the Government of Ghana. The Plaintiff contends that he gave notice to the Defendant as required under section 10 (1) of the State Proceedings Act demanding for the various payments which the Defendant received on 7th July, 2023 but failed to pay which compelled him to file the instant suit. According to the Plaintiff, he has been a contractor for about 29 years. According to him when payment certificates are raised payment is supposed to be made within 90 days and that government made payments for some contracts he did, within 90 days after the payment certificates were raised. That government used to comply by paying regularly some time ago but about eight (8) years ago government defaulted in payment. He lamented that if payments delay he would not be able to fend for his family, workers and to honour his tax obligations to the state. Wherefore the Plaintiff claims the 7 following reliefs against the Defendant and noted that the cost he incurred in initiating this action is more than the 10% he is praying the Court for. The Plaintiff did not call any witness. DEFENDANT’S DEFENCE The Defendant led evidence through the Regional Director of Urban Roads Ahafo Region. He confirmed that he knows the Plaintiff company and further confirmed that the Plaintiff company was awarded contracts by the Department of Urban Roads in the Ahafo Region. He enumerated the said contracts as follows; 1. Grading of selected Roads in Gidim – Goaso 2. Grading of selected Roads in Asudai – Goaso, PH2 3. Construction of 0.60 U-Drain along selected roads in Nurses / Midwifery Training School Area Roads, LHS, Goaso 4. Pothole patching on selected roads in Duayaw Nkwanta PH2 5. Pothole Patching on selected Roads in Duayaw Nkwanta PH1 6. Pothole patching on selected Roads in Bechem, PH2 7. Pothole Patching on selected Roads in Bechem PH1 8. Construction of 0.60 U – Drain along selected roads in Nurses/ Midwifery Training School Area Roads, RHS, Goaso The Defendant confirmed that the above contracts were executed and IPCs were raised after inspection was done but he could not tell the Defendant’s total indebtedness to the Plaintiff. The Defendant suggested that the parties should go into accounts to determine the actual amount the Defendant owes the Plaintiff. The Defendant further stated that regarding the contract that was executed in the Volta Region he could not speak to it because it was not executed in this region and he could not tell whether or not the Plaintiff 8 has been paid for some of the contracts. He noted that he has been working with the Department of Urban Roads for the past 18 years and he knows that payments raised in the IPCs are supposed to be paid within 90 days otherwise one would be entitled to interest upon expiration of the 90 days. He contends that if the intention was for government to pay immediately the IPC is raised there would not have been the need for the 90 days. The Defendant did not attach any exhibit to his witness statement and he did not call any witness. COUNSEL FOR PLAINTIFF’S ADDRESS ON BEHALF OF THE PLAINTIFF Counsel repeated the Plaintiffs claims and noted that after the Plaintiff executed the said contracts, IPCs and payment vouchers were raised to the Department of Urban Roads and the Ministry of Roads and Highways Authority for payment of a total sum of GH₵ 2,946,083.93 for work done and interest on delayed payment. The certificates were submitted to the Ghana Road Fund Secretariat for payment but payment has not been effected. The Plaintiff complied with section 10 of the State Proceedings Act by giving notice to the Defendant, exhibit “A”. The Plaintiff tendered exhibit “B” the tabulated Statement of Bills, exhibit “C” contains contract agreements, Statement of Bills, IPCs and payment vouchers on his claims before the Court. The Plaintiff tendered exhibit “D”, a contract agreement through the Defendant to support its case. Counsel noted that the Defendant admitted that the government awarded the said contracts to the Plaintiff but he could not contest the propriety of the Plaintiff’s claim. Counsel cited copious authorities on the burden of proof including sections 10(1), 12 (1) and (2) of the Evidence Act, 1975 (NRCD 323) and the case of Don Ackah vs. Pergah Transport [2011] 31 GMJ 174 Supreme Court, page 183. Counsel argued that it is not disputed that the government awarded the contracts claimed by the Plaintiff and the Defendant confirmed same and further confirmed that the Plaintiff executed the contracts 9 and IPCs were raised after the works were inspected. The Defendant did not lead any evidence that any payment was made to the Plaintiff and therefore the Plaintiff is entitled to recover the sum claimed against the state. The Plaintiff’s case is that amounts stated in the IPCs are to be paid any time from the date the IPCs are raised. Counsel referred to the Defendant’s claim that payment contained in the certificates are to be paid within 90 days. Counsel quoted point 43.1 of exhibit “D” which states that “Payment shall be adjusted for deductions for retention. The employer shall pay the contractor the amounts certified by the Project Manager within 90 days”. Based on exhibit “D” Counsel prayed the Court that the Defendant is bound to pay the Plaintiff the amounts raised in the IPCs on the dates raised. Counsel based his argument on point 43.1 of exhibit “D” and noted that government must pay the money raised in the IPCs on the date stated on the IPCs. Counsel contends that although the Defendant’s witness attested to the fact that the Plaintiff is entitled to interest he said interest is calculated upon expiration of the 90 days without any authority. Counsel submitted that the 90 days is a time frame for the government to ensure payment and not a grace period for the government to decide whether or not to pay. Counsel contends that in all such similar road construction contract cases, interest on delayed payment on IPCs were calculated on the date stated on the IPCs and quoted section 73 of the Contracts (Amendment Act, section 17(3) to support his claim. The Act state as follows; 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 due under the contract or transaction shall be calculated at simple interest. 10 Counsel prayed the Court that cost should be awarded at 10% considering all the factors enumerated under Order 74 of C.I 47 including legal fees, cost incurred in prosecuting the case among others since cost of 10% is on the low side. Counsel prayed the Court that the Plaintiff is entitled to its reliefs and to cost assessed at 10% of his claim. COUNSEL FOR DEFENDANT’S ADDRESS ON BEHALF OF THE DEFENDANT Counsel restated the Plaintiff’s reliefs against the Defendant and noted the fact that the Defendant did not deny that the Plaintiff was awarded the contracts. The Defendant therefore suggested that the parties should go into accounts to establish the actual amount the Defendant owes the Plaintiff because he could not tell the amount owed the Plaintiff. He is also not aware of any payments that might have been made to the Plaintiff since the Plaintiff filed the suit. It is Counsel’s submission that Interim Payment Certificates when raised are forwarded to the head office of the agencies who in turn forward same to either the Ministry of Finance or the Road Fund Secretariat for payment. The Defendant is therefore not in the position to know when the funding agencies would pay the money and he has no way of knowing whether some payments have been made to the Plaintiff while the suit is pending According to Counsel during cross – examination of the Plaintiff he confirmed that he is a seasoned contractor who is aware of Government’s delay in payment of government issued contracts. That is why usually the contracts make provision for payment of interest on delayed payments at the prevailing bank rate. Counsel submitted that the Defendant’s witness under cross – examination noted that interest is calculated on delayed payments upon expiration of 90 days from the date the IPCs are raised and not from the date the IPCs are raised. He however said that the 90 days is not backed by law but inferred and the Defendant being a professional in the field could not be faulted. Counsel argued that the 90 day period is a custom of trade well understood by all who engage in the trade. 11 Counsel submitted that the 90 day grace period could be implied into the contract and she cited some English law cases to support her argument. With reference to Order 74 of C.I 47 and the case of Tema Oil Refinery vs. African Automobile Limited GHACA 1. Counsel prayed the Court to exercise its discretion regarding the award of cost in the light of article 296 of the 1992 Constitution. Counsel outlined the checklist for awarding cost in Order 74 of C.I 47 and prayed the Court to consider the fact that Counsel for Plaintiff has not filed any process regarding his fees for the Court’s consideration. Regarding the short length of the trial the Plaintiff would not have incurred expenses to the tune of 10% of the sum claimed. Counsel prayed the Court to calculate interest on delayed payments at 90 days from the date the IPC was raised and that the Plaintiff is not entitled to cost at 10%. BY COURT; Although the Court hesitated when it found that the Plaintiff’s claims included contracts performed in Accra and the Volta region and sought to decline jurisdiction on them, both Counsel prayed the Court to assume jurisdiction under Order 4 rule 2 (1) of the High Court (Civil Procedure) Rules, 2004 (C.I 47) because the action is mixed claims. The said law states that; Joinder of causes of action 2. (1) Subject to rule 4 of this Order, a plaintiff may in one action claim relief against the same defendant in respect of more than one cause of action (a) if the plaintiff claims, and the defendant is alleged to be liable in respect of all the causes of action; (b) if the plaintiff claims and the defendant is alleged to be liable in respect of all the causes of action 12 Before commencing this suit, the Plaintiff complied with section 10 of the State Proceedings Act, 1998 (Act 555) which states as follows; 10. Notice of civil action to Attorney-General (1) A person who intends to institute civil action against the Republic shall serve on the Attorney- General a written notice of that intention at least thirty days before the commencement of the action. (2) The notice under subsection (1) shall be served by the claimant or by the lawyer or agent of the claimant (a) on the Attorney-General or an officer of the Attorney-General’s Department, or (b) in a case where action is to be commenced in a Region, on an officer of the Attorney-General’s Department in that Region. (3) The notice shall indicate the cause of action, the name and address of the intended claimant and the relief sought. The Plaintiff attached exhibit “A” dated 6th July 2023 titled Notice of intention to commence legal action. The notice gave details of the contract, the claimant and the reliefs sought and it was served on an officer of the Defendant on 7th July, 2023 who signed for it. The suit was commenced in this Court on 6th November, 2023 which satisfied the thirty day requirement after serving the notice. After close of pleadings the following issues were set down for trial; 13 1. (a) Whether or not the Government of Ghana owes the Plaintiff the sum of GH₵ 2,496,089.93 in respect of the road contracts executed by the Plaintiff and hence is liable to pay same. 2. Whether or not the Plaintiff is entitled to interest on the amount stated under paragraphs (a) (1) – (22) of the reliefs endorsed on the writ of summons. 3. Any other issue(s) raised by the pleadings The Plaintiff opened its case through its Director who testified alone without calling any witness. He reiterated his claims enumerated above and stated that the government awarded him the above contract and he executed all by procuring loans and his creditors are demanding their money. Although he did not tender any loan agreements, the fact that he executed the various contracts are not disputed. According to him after the contracts were executed the Department of Urban Roads and the Ministry of Roads and Highways Authority raised payment vouchers and Interim Payment certificates for payments but same were not paid. Before filing this suit, he gave the Defendant notice but nothing was done about it. He tendered exhibit “B”, the tabulated Statement of Bills from the Ghana Road Fund Secretariat dated 7th May 2023 and embossed with the stamp of the Secretariat to authenticate it. Exhibit “B” summarizes all the contracts the Plaintiff performed as listed in his reliefs above. Exhibit “C” is a booklet containing contracts executed by the Plaintiff. The Defendant did not contest the case but rather affirmed the fact that the said contracts were awarded to the Plaintiff by the Department of Urban Roads. All documentations concerning the contract and exhibit “D” a contract that he previously performed for the government. He enumerated the contracts executed by the Plaintiff which corresponded with the Plaintiff’s claims except two contracts, one awarded in the Volta region and 14 another one in Accra which are outside his region. He suggested that the parties may go into account to establish the actual amount owed the Plaintiff because he was not in the position to know whether some payments have been made to the Plaintiff even while the suit was pending. He however disagreed with the Plaintiff and his Counsel that payments are to be made immediately IPCs are raised. His view is that when IPCs are raised payments are to be made within 90 days and upon expiration of the 90 days interest begins to run. The Court matched each contract item with the Statement of Bills exhibit “B” and the documentations accompanying the contracts, exhibit “C” to confirm their authenticity. The Plaintiff broke down the total amount claimed being GH₵ 2, 496,089.93 into various contracts executed for the Defendant into 22 paragraphs as follows; 1. The Plaintiff’s relief (1) is for an amount of GH₵ 52,368.22 as WORK DONE on account of IPC No. 1 dated 6th December, 2020. The Statement of Bills, exhibit “B”, a two – paged document from the Ghana Road Fund dated 7th May, 2023 and embossed with the stamp of Ghana Road Fund Secretariat on page 2 confirms the details of the contract as item (1). The Statement of Bills shows 8th December, 2020 but the contract title, the amount involved and all other items are correct. The details of the transaction is at pages 1 to 5 of exhibit “C”. The contract is at pages 4 and 5 of exhibit “C”. The contract was executed on 30th September, 2020 and it was signed by the Plaintiff and the Regional Director of the Department of Urban Roads for pothole patching which was captured in exhibit “B” as Grading of selected Roads in Gidim Goaso. The date is 8th December 2020 instead of 6th December, 2020 indicated in the Plaintiff’s relief (1). In the Court’s view, 8th December should prevail instead of 6th December claimed by the Plaintiff. 15 2. The Plaintiff’s relief (2) is for an amount of GH₵ 50, 822.87 as WORK DONE on account of IPC No. 1 dated 8th December, 2020 for grading of selected roads in Asudai Goaso PH2. The contract details are on pages 6 to 8 of exhibit “C”. The documents including payment voucher dated 23rd December, 2020 confirmed GH₵ 50,822.87 claimed by the Plaintiff and the same amount is stated in exhibit “B” which confirms the contract details as item (2). The IPC is on page 7 of exhibit “C” dated 8th December, 2020 and the Plaintiff’s relief (2) indicates 8th December, 2020. The letter of acceptance is dated 10th July 2020 from the Ministry of Roads and Highways Department of Urban Roads Ahafo Region Goaso awarding the contract for the above roads in Asudai to the Plaintiff for a completion period of three months at page 8 of exhibit “C”. 3. The Plaintiff’s relief (3) is for an amount of GH₵ 169,236.33 as WORK DONE on account of Interim Payment Certificate No. 1 dated 5th January, 2021 for the execution of a contract involving construction of 0.60 U – Drain along selected roads in Nursery/Midwifery Training School Area Roads, LHS, Goaso which became payable on 5th January 2021. The details are confirmed in exhibit “B” as item (3) in the sum of GH₵ 169, 236.33. The contract details are on pages 9 to 14 of exhibit “C”. The execution of the contract dated 11th November 2020 is confirmed on page 13 of exhibit “C” signed by the Plaintiff per its Managing Director and the Department of Urban Roads Ahafo Region per its Regional Director. 4. The Plaintiff’s relief (4) is for an amount of GH₵ 168,334.78 as WORK DONE on account of Interim Payment Certificate No. 1 dated 17th January, 2021 for the execution of a contract involving pothole patching on selected roads in Duayaw Nkwanta, PH2 which became payable on 17th January, 2021. The details are confirmed as item 4 in exhibit “B”. The details of the contract are on pages 15 to 22 16 of exhibit “C”. The Letter of Acceptance on page 16 is dated 16th September, 2020 from the Department of Urban Roads Ahafo Region Goaso signed by its Regional Director and the Plaintiff per its Managing Director for pothole patching on selected roads in Duayaw Nkwanta PH2. The contract dated 30th September, 2020 is on pages 20 to 21 between the Plaintiff per its Managing Director and the Regional Director of Department of Urban Roads Ahafo Region for pothole patching (pothole patching on selected roads in Duayaw Nkwanta PH2 at page 16) and was to be completed in three months. Payment voucher dated 15th February, 2021 confirms the amount of GH₵ 168, 334.77. 5. The Plaintiff’s relief (5) is for an amount of GH₵ 79, 073.73 as WORK DONE on account of IPC No. 1 dated 12th January, 2021 for the execution of a contract involving pothole patching on selected roads in Bechem, PH2 which became payable on 12th January, 2021. Exhibit “B” confirms the details of the contract as item (5). The contract documentation are on pages 23 – 28 including the payment voucher dated 5th February, 2021 and 12th January, 2021 is confirmed on the IPC. The payment voucher confirmed GH₵ 79, 073.72. The contract dated 30th September is at pages 23, 26 and 27 from the Ministry of Roads and Highways Department of Urban Roads Ahafo Regional office signed by the Plaintiff per its Managing Director and the Regional Director of Ahafo Region of the Department for pothole patching on selected roads in Bechem PH2. The Letter of acceptance dated 29th June, 2020 is on page 28 from the Ministry to the Plaintiff per its Managing Director confirming the contract. 6. The Plaintiff’s relief (6) is for an amount of GH₵ 73,803.13 as WORK DONE on account of IPC No. 1 dated 12th January, 2021, for the execution of a contract involving pothole patching on selected roads in Bechem, PH1 which became 17 payable on 12th January 2021. This is confirmed as item (6) in exhibit “B”. The documentations regarding the contract are on pages 29 – 34 of exhibit “C” including the payment voucher at Page 30 which confirms GH₵ 73, 803.12. The IPC at page 31 confirms the date as 12th January, 2021, the contract dated 30th September, 2020 is at pages 29, 32 – 33 and confirms the work done as pothole patching on selected roads in Bechem Ahafo Region Goaso. The Acceptance Letter dated 29th June, 2020 at page 34 of exhibit “C” further confirms the contract. 7. The Plaintiff’s relief (7) is for an amount of GH₵ 115,624.50 as WORK DONE on account of IPC No. 1 dated 12th January, 2020 for the execution of a contract involving pothole patching on selected roads on Duayaw Nkwanta, PH1 which became payable on 12th January, 2020. Exhibit “B” confirms the transaction as item (7). The documentations of the contract are found on pages 35 to 40 of exhibit “C” including the contract at pages 35, 38 and 39 dated 30th September, 2020 for pothole patching on selected roads in Duayaw Nkwanta PHI and signed by the Plaintiff per its Managing Director and the Regional Director of Department of Urban Roads Ahafo Region. Acceptance Letter at page 40 dated 16th September, 2020 both confirm the contract. Payment voucher at page 36 dated 5th February, 2021 confirms GH₵ 115, 624.50 and the IPC is dated 12th January, 2020 at page 37 of Exhibit “C”. 8. The Plaintiff’s relief (8) is for an amount of GH₵ 179,972.90 as WORK DONE on account of IPC No. 1 dated 29th December, 2020 for the execution of a contract involving construction of U-Drain along Hope Marie School Road (250M) – Lot 1 which became payable on 29th December, 2020. This is confirmed by exhibit “B” item (8). Documentation of the contract are on pages 41 to 45 of exhibit “C”. Letter of Acceptance dated 30th July, 2019 is at pages 44 and 45 from the Department of 18 Urban Roads Greater Accra Region signed by the Regional Director which confirms the contract. The IPC and payment voucher are on pages 41 to 43. The payment voucher confirms the amount GH₵ 179, 972.90 and the IPC confirms the date as 29th December, 2020. 9. The Plaintiff’s relief (9) is for an amount of GH₵ 182, 317.93 as WORK DONE on account of IPC No.1 dated 29th December, 2020 for the execution of a contract involving construction of U – Drain along Hope Marie School Road (250M) – Lot 2 which became payable on 29th December 2020. The details are confirmed in exhibit “B” as item (9). The documentation of the contract are on pages 46 – 52 of exhibit “C”. Inspection report dated October 2021 on pages 49 – 52 confirm completion of the project according to specification. The inspection was done after the defects liability period by the Acting Regional Director Accra. IPC and payment voucher are on pages 46 – 48. The payment voucher confirms the amount as GH₵ 182, 317.93. The IPC with the heading Department of Urban Roads Accra confirms the date as 29th December, 2020. 10. The Plaintiff’s relief (10) is for an amount of GH₵ 170,361.94 as WORK DONE on account of IPC No. 1 dated 30th December, 2020 for the execution of 0.60 U – Drain along selected roads in Nurses / Midwifery Training School Area Roads, which became payable on 30th December, 2020. Exhibit “B” confirms the details as item (10) and the sum payable as GH₵ 170,361.94. The contract documentations are on pages 53 to 60 of exhibit “C”. The Contract dated 11th November, 2020 confirms the above work to be done. Payment voucher is at page 55, the amount is lower GH₵ 169, 236.33 but exhibit “B” confirms GH₵ 170, 361. 94. In the Court’s view GH₵ 170,361.94 should prevail. 19 11. The Plaintiff’s relief (11) is for an amount of GH₵ 9, 048.47 as WORK DONE on account of IPC No. dated 14th September, 2021 for the execution of a contract involving construction of 0.60 U – Drain along selected roads in Nurses/Midwifery Training School Area Roads, RHS, Goaso which became payable on 14th September, 2021. The details of the transaction are confirmed as item (11) in exhibit “B”. Documentation on the transaction are on pages 60 – 63 of exhibit “C”. Acceptance letter is at page 60. Payment voucher and interim payment certificate are at pages 61 – 63. Acceptance Letter at page 60 is dated 16th September, 2020. The payment voucher confirms the amount of GH₵ 9, 048.47. The IPC confirms 14th September, 2021. 12. The Plaintiff’s relief (12) is for an amount of GH₵ 9,480.47 as WORK DONE on account of IPC No. dated 5th October 2021, for execution of a contract involving construction of U-Drain along Hope Marie School Road (250M) – Lot 2 which became payable on 5th October, 2021 confirmed as item (12) in exhibit “B” and further confirmed at pages 64 to 68 of exhibit “C”. The payment voucher at page 64 confirms the amount GH₵ 9,480.47. 13. The Plaintiff’s relief (13) is for an amount of GH₵ 9,480.47 as WORK DONE on account of IPC No. dated 5th October, 2021, for the execution of a contract involving construction of U-Drain along Hope Marie School Road (250 M) – Lot 1 which became payable on 5th October 2021. Exhibit “B” confirms it as item (13), the date as 5th October, 2021 and the amount payable as GH₵ 9, 480.47. Details of the contract is captured at pages 69 to 74 of exhibit “C”. Letter of acceptance dated 30th July, 2019 is at pages 73 and 74. Two copies of payment vouchers confirms GH₵ 9, 472.26 dated 3rd March 2021, Covering letter for 20 payment certificate dated 14th August, 2021. IPC dated 29th December 2020. In the Court’s view since exhibit “B” confirms the details of Plaintiff’s reliefs, that should prevail. 14. The Plaintiff’s relief (14) is for an amount of GH₵ 9,424.38 as WORK DONE on account of IPC No. 2 dated 14th September, 2021 for the execution of a contract involving pothole patching on selected roads in Duayaw Nkwanta, PH1 which became payable on 14th September 2021. The details are confirmed in exhibit “B” as item (14) with the date as 14th September, 2021 and the amount payable as GH₵ 9, 426. 38. The contract details are on pages 75 – 78 of exhibit “C” including covering letter for IPC dated 22nd November, 2021, payment voucher dated 9th February, 2022 confirming GH₵ 9, 426.37, final certificate (release of retention) dated 14th September 2021. In the Court’s view since exhibit “B” and the payment voucher in exhibit “C” confirm GH₵ 9, 426. 37, that amount should prevail instead of GH₵ 9, 424.38 claimed by the Plaintiff. 15. The Plaintiff’s relief (15) is for an amount of GH₵ 9,476.73 as WORK DONE on account of Interim IPC No. 2 dated 14th September, 2021 for the execution of a contract involving pothole patching on selected roads in Duayaw Nkwanta, PH2 which became payable on 14th September, 2021. This transaction is confirmed in exhibit “B” as item (15) in the sum of GH₵ 9,476.73. Documentation on the contract are on pages 79 – 81 of exhibit “C”. Covering letter dated 22nd November, 2021, payment voucher dated 9th February, 2022 in the sum of (GH₵ 9,476.72). The Court will accept GH₵ 9, 476.73 as confirmed in exhibit “B”. 16. The Plaintiff’s relief (16) is for an amount of GH₵ 4, 258.38 as WORK DONE on account of IPC No. dated 14th September 2021 for the execution of a contract 21 involving pothole patching on selected roads in Bechem, PH1 which became payable on 14th September, 2021.The transaction is confirmed as item (16). The documentation on the contract are on pages 82 – 85 of exhibit “C”; Covering letter dated 22nd November 2021, payment voucher dated 9th February 2022 confirms GH₵ 4, 258.37, final payment certificate dated 14th September 2021, cancelled and letter of acceptance cancelled and dated 29th June 2020 confirm the execution of the contract. 17. The Plaintiff’s relief (17) is for an amount of GH₵ 4,231.78 as WORK DONE on account of Interim Payment Certificate No. dated 14th September, 2021 for the execution of a contract involving pothole patching on selected roads in Bechem, PH2 which became payable on 14th September, 2021. Exhibit “B” confirms the transaction as item (17). Documentation on the contract are on pages 86 – 89. Covering letter dated 22nd November, 2021, Payment voucher dated 9th February 2022 confirms GH₵ 4, 231 . 77, Final Certificate (Release of retention) cancelled and dated 14th September, 2021, Letter of Acceptance dated 29th June, 2020 and canceled all confirm the contract. 18. The Plaintiff’s claim for relief (18) is for an amount of amount of GH₵ 8, 925.24 as WORK DONE on account of Interim Payment Certificate No. dated 14th September, 2021 for the execution of a contract involving construction of 0.60 U – Drain along selected roads in Nurses/Midwifery Training School Area Roads, LHS, Goaso which became payable on 14th September, 2021. Details are sufficiently confirmed in exhibit “B” regarding the IPC date and the amount claimed by the Plaintiff. . On exhibit “C” pages 90 – 93 do not relate to the Plaintiff’s relief (18). The documentation relates to Bechem PH1 instead. 22 19. The Plaintiff’s relief (19) is for an amount of GH₵ 709,562.56 as WORK DONE on account of IPC No. 2 dated 1st January, 2022, for the execution of a contract involving pothole patching of the Dzolokpuita – Kpedze - Ashanti – Kpoeta Road (0 – 21 km) which became payable on 1st January, 2022. The details are captured on exhibit “B” as item (19) confirming the amount as GH₵ 709, 562.56 and the date as (00 Jun 2022). Exhibit “C” on Pages 98 – 102, the contract is dated May 2020. The payment voucher is dated 28th June 2022 in the sum of GH₵ 709, 562.56, the IPC No. 2 is dated June 2022 and the contract is dated 14th May, 2020 for pothole patching and sectional repair works on Dzolo Kpuita – Kpedze Ashanti Kpoeta Road (KM 0 – 20 Lot 2) signed by the Plaintiff per its Managing Director and the Regional Director of Highway Volta Region confirming the contract. Since exhibit “B” and the payment voucher agree on the figure GH₵ 709,562.56 and exhibit “B” and the payment voucher agree on June 2022, the Court will accept 28th June, 2022 as indicated in the payment voucher as the date the amount became payable. 20. The Plaintiff’s claim is for an amount of GH₵ 238,967.26 as WORK DONE on account of Interim Payment Certificate No. 2 dated 1st January, 2022 for the execution of a contract involving pothole patching of the Dzolokpuita – Kpedze – Ashanti - Kpoeta Road (0 -21km) Lot 2 which became payable on 1st January, 2022. Exhibit “B” confirms the transaction as item (19) but states the date as (00 Jun 2022) and confirmed the amount as GH₵ 238, 967.26. The documentation on the contract are on pages 105 – 108. At page 105, the contract dated June 2022 from the Ghana Highway Authority Volta Region is for Routine maintenance (Paved Roads): Pothole Patching and Sectional Repair Works on Dzolokpuita – Kpedze – Ashanti Kpoeta (KM 0 – 21) dated 28th July, 2022 signed by the Plaintiff per its Managing Director and the Regional Director of Highway Volta Region. The Letter of acceptance is dated 9th April, 2020, the IPC is dated June 2022 and the amount on 23 the payment voucher is GH₵ 238, 937. 26. In the Court’s view the date June 2022 should prevail instead of 1st January 2022 claimed by the Plaintiff because the IPC indicates June, 2022. 21. Plaintiff’s relief (21) is for an amount of GH₵ 120,657.95 as INTEREST ON DELAYED PAYMENT on account of IPC No. 2A dated 1st January, 2022, for the execution of a contract involving pothole patching of the Dzolokpuita – Kpedze Ashanti Kpoeta Road (0-21km) Lot 2 which became payable on 1st January 2022. Exhibit “B” confirms the transaction as item (22), states the date as (00 Jun 2022) and the amount claimed as GH₵ 120, 657 . 95. The details of the contract are on pages 113 and 114 of exhibit “C”. In exhibit “C” the payment voucher at page 113 dated 16th May, 2023 states the amount payable as GH₵ 90, 038.74. The IPC at page 114 is dated 28th April, 2023 which is different from the claims of the Plaintiff as confirmed in exhibit “B”. The IPC and the payment voucher confirm the work as Lot 2: Pothole Patching and Sectional Repair Works on Dzolokpuita – Kpedze Ashanti Kpoeta Road (KM 0 – 21). In the light of the inconsistencies the Court will accept the date as 28th April, 2023 and the amount as GH₵ 90, 038 .75 as agreed by the Plaintiff (Managing Director of Plaintiff) and his Counsel. 22. The Plaintiff’s relief (22) is for an amount of GH₵ 120,657.95 as INTEREST ON DELAYED PAYMENT on account of IPC No. 2A dated 14th June, 2022 for the execution of a contract involving pothole patching of the Dzolokpuita Kpedze – Ashanti Kpoeta Road (0-21km) which became payable on 14th June, 2022. Exhibit “B” confirms the transaction as item (22), confirmed the date as 14th June, 2022 and the amount claimed by the Plaintiff. Details of the transaction are on pages 106 and 107 of exhibit “C”. At page 106, the payment voucher is in the sum of GH₵ 120, 657.95. The IPC is dated June 2022. The IPC and payment voucher confirm the 24 works as Lot 2: Pothole Patching and Sectional Repair Works on Dzolokpuita – Kpedze – Ashanti Kpoeta Road (KM 0 – 21) by the Ghana Highway Authority Volta Region. There is no evidence before the Court that the above amounts have been paid to the Plaintiff. (b) Interest on the amounts stated in relief (a) from the dates above at the prevailing bank rate until the date of final payment. (c) Cost of 10% on the amounts contained in relief (a) It is important to note that the Defendant (Regional Director of Urban Roads, Ahafo Region) in principle did not deny the Plaintiff’s claims against it. The evidence led by the Defendant rather confirmed that the Plaintiff was awarded the contracts as he claimed and he executed the said contracts. Interim Payment Certificates were raised but the Defendant could not confirm whether the Plaintiff has been paid. He also did not mention the contracts awarded to the Plaintiff in Accra and Dzolokpuita in the Volta region. That notwithstanding the Plaintiff led evidence to confirm that he was awarded those two contracts as well and he executed the contract and Interim Payment Certificates were raised but payment is still outstanding. From the Plaintiff’s claims listed above and the evidence led by the Plaintiff, the Court has gone through the documents to establish the various contracts all of which IPCs and payment vouchers were raised but have not been paid. The Court is further fortified by sections 10 (1) and 11(4) of the Evidence Act, 1975 (NRCD 323) that the Plaintiff has discharged his burden of proof per his evidence supported by exhibits “A” to “D”. 10. Burden of persuasion defined 25 (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. 11. Burden of producing evidence defined (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. Having heard the arguement of the Plaintiff supported by his Counsel that interest begins to run on the date IPCs are raised and the Defendant’s argument supported by his Counsel that interest begins to run upon expiration of 90 days after the IPC’s are raised, the Court finds the Defendant’s claim reasonable and probable and will therefore adopt that in awarding interest to the Plaintiff. In awarding cost the Court is guided by Order 74 of the High Court Civil (Procedure Rules), 2004 (C. I 47) and article 296 of the 1992 Constitution which obliges the Court to be fair and candid, not arbitrary or capricious as follows; Where in this Constitution or in any other law discretionary power is vested in any person or authority - (a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; 26 I also considered the fact that this case was supposed to be filed at the Commercial Court but it was filed under General Jurisdiction thereby denying the Court some revenue. In the light of the foregoing, the Court is of the view that the Plaintiff is entitled to his reliefs against the Defendant for; (a) Recovery of the total amount of GH₵ 2,496,089.93 (subject to changes made in some of the paragraphs by the Court). (b) Interest on the amounts stated in relief (a) upon expiration of ninety (90) days from the dates Interim Payment Certificates were raised at (simple interest) at the prevailing Commercial Bank rate until the date of final payment. (c) Cost is awarded at 8% on the amounts contained in relief (a). (SGD) JUSTICE JOYCE BOAHEN HIGH COURT JUDGE 18TH JUNE 2024 27 IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON TUESDAY THE 18TH DAY OF JUNE, 2024 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURT JUDGE SUIT NO. C2/007/2024 CECO ENGINEERS LIMITED PLAINTIFF VRS. THE ATTORNEY GENERAL, OFFICE DEFENDANT OF THE ATTORNEY GENERAL SUMMARY OF JUDGMENT 1. Area of law / Principle and Doctrine of Law dealt with • Contract (Government Contract) • Simple interest • Whether interest is calculated after ninety (90) days from the date Interim Payment Certificates (IPCs) are raised or on the date the Interim Payment Certificates are raised 28 • Burden of proof • Cost / Discretionary power 2. Constitutional Provision, Section of Statute or Regulation dealt with • Contracts (Amendment) Act, 2023 (Act 1114) • Orders 4 rule 2, and 74 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) • Sections 10 (1) and 11 (4) of the Evidence Act, 1975 (NRCD 323) • Article 296 of the 1992 Constitution 3. Holding of the Court 1. The Plaintiff established his burden of proof to recover the sum of GH₵ 2, 496, 368.22 subject to changes made in some of the paragraphs by the Court. 2. Interest is calculated upon expiration of ninety (90) days from the date the Interim Payment Certificates were raised at (Simple interest) at the prevailing Commercial Bank rate until the date of final payment. 3. Cost is awarded at 8% on the amounts contained in relief (a). JUSTICE JOYCE BOAHEN HIGH COURT JUDGE 29 18TH JUNE 2024 30