KANYOKE, J.A.:

In this judgment, the parties shall be referred to simply and respectively as the Plaintiff company and the Defendants. By its amended writ of summons, the plaintiff company claimed against the defendants the following reliefs:

“a. A declaration that the tender for the rehabilitation of Ghartey Hall Block ‘B’ of the University of Education, Winneba, was won by Dadyco Construction Works Limited pursuant to the bid evaluation.

b. A declaration that the award of the tender to and the execution of the work by any other entity except Dadyco Construction Works Limited is unlawful.

c. The award of one hundred and seventy thousand Ghana cedis (Gh¢170,000.00) in damages for the losses incurred in bid preparation, loss of income resulting from the loss of the tender by Dadyco Construction Works Limited and loss of other words leading to loss of income resulting from the publication of defamatory material to tarnish the intergrity and image of Dadyco Construction Works Limited by the University of Education, Winneba.

d. General damages.

e. Perpetual Injunction to restrain the University of Education from publishing any defamatory material against Dadyco Construction Works Limited.

f. A publication of a retraction of the defamatory material published in the Daily Graphic of the 26^th day of March 2010 and 1^st day of April 2010 editions in the same manner as the publication of the defamatory material.

g. Costs.”

The plaintiff company also filed a statement of claim reciting the basis and the facts of its case. This statement of claim was amended twice, the final one having been filed on the 2^nd of February 2012 (see pages 359-361 of the Record of Appeal – ROA). The defendants resisted the action and also filed a joint statement of defence, subsequently amended and filed on the 16^th day of May 2012, found at page 368 of the ROA. At the close of the pleadings, the following issues were set down for trial in an application for directions:

“a. Whether or not the tender and evaluation process conformed to the requirements under the Public

b. Procurement Act, 2003 (Act 663).

c. Whether or not the Entity Tender Evaluation recommended the plaintiff company for the award of the contract for the rehabilitation works at Ghartey Hall Block ‘B’ of the University of Education, Winneba.

d. Whether or not the plaintiff’s tender was ascertained to be the successful tender in accordance with the Public Procurement Act, 2003 (Act 663).

d. Whether or not upon ascertainment of the tender, the contractual rights of the plaintiff would have matured under the Public Procurement Act, 2003 (Act 663).

e. Whether or not the plaintiff is entitled to the reliefs endorsed in the writ of summons.

2. Any other issue arising on the pleadings” (the emphasis is mine).

At the conclusion of the trial, the learned trial judge delivered his judgment on the 8^th day of November 2013 (see pages 505-515 of the ROA). In the said judgment, the trial judge entered judgment in favour of the plaintiff company for reliefs (a), (b) and a part of claim (c) and dismissed the other part of claim (c and reliefs (e) and (f) as well as relief (d) for general damages for breach of contract.

The part of relief (c) that was dismissed is the part seeking damages for loss of income resulting from the publication of the alleged defamatory material against the plaintiff company. For the part of relief seeking “the award of one hundred and seventy thousand Ghana cedis (Gh¢170,000.00) in damages for the losses incurred in bid preparation, loss of income resulting from the loss of the tender by Dadyco Construction Works Limited and loss of other works…” the trial judge substituted proprio motu this relief for the relief of damages for loss of profit” as a result of the loss or cancellation of the contract and awarded to the plaintiff company on that substituted relief damages in the sum of 10% of the contract sum of Gh¢250,239.45 but ordered that 15% of the contract sum be calculated in favour of plaintiff. He also awarded cost of Gh¢10,000.00 to the plaintiff company against the defendants.

Apparently dissatisfied with the entire judgment and the consequential orders or awards, the defendants jointly per their solicitors filed a Notice of Appeal against same on the 14^th day of November 2013 on the following grounds:

“a. The judgment is totally against the weight of the evidence on the record.

b. Additional grounds will be filed upon receipt of a copy of the judgment and the record of proceedings.”

Pursuant to the grant of leave by this court on 2^nd April 2015, learned counsel for the defendants filed the following additional grounds of appeal:

“a. The judgment is totally against the weight of the evidence on record.

b. The learned trial judge did not give sufficient consideration to the case of the defendants. His decision to uphold the plaintiff’s relief (a) was wrongful and totally at variance with Exhibit 4 the minutes of the University’s Tender Committee meeting held on 29^th October, 2009.

c. In the face of the evidence on record which supported the allegation that the University Tender Committee Report of 29^th October 2009 had been fraudulently altered, the learned trial judge erred when he wrongfully concluded that once the plaintiff’s right to sign and execute the contract had crystallized the 1^st defendant the Tendering Entity had no authority to cancel same.

d. In the evaluation of the rejection powers of the Tendering Entities and the grant of concurrent approval by the Regional Tender Review Board, the learned trial judge not only misdirected himself but he also misconstrued the relevant provisions of the Public Procurement Act, 2003

(Act 663) thereby occasioning a grave miscarriage of justice to the 1^st defendant.

e. The learned trial judge erred in law by entering judgment in favour of the plaintiff against the 2^nd defendant who was not a necessary party to the suit and had also not been found liable to any of the plaintiff’s claims.”

Before I delve into a determination of the merits or demerits of the appeal on the above grounds of appeal, I consider it necessary and appropriate to give a brief background history of the facts leading to the initiation of the suit herein resulting in the appeal before us. They are as follows:

Sometime in 2009, the University of Education, Winneba, Tender Committee put up advertisement in the Daily Newspapers inviting interested companies to tender for an award of a contract for the rehabilitation of one of the students hostels namely, Ghartey Hall, Block ‘B’. Ten companies including the plaintiff company submitted tenders for the award of the contract. The contract sum was pegged at Gh¢250, 239.45. Nine (9) of the companies which tendered including the plaintiff company and another company called Jack Dharu were shortlisted to go through the bidding process. In order to get value for money and in compliance with the relevant provisions of the Public Procurement Act, 2003 (Act 663), the University Tender Committee (UTC) set up a Tender Evaluation Panel/Committee comprising experts to assess and evaluate the various bids and make recommendations to the University Tender Committee for appropriate action. As a result of the evaluation of the bids by the Tender Evaluation Panel (TEP) the plaintiff company turned out to have offered the lowest bid followed by Jack Dharu in second place. At its meeting held on the 29^th October, 2009 for consideration of the recommendation of the Tender Evaluation Panel (TEP) who had recommended the plaintiff company for the award of the contract, the UTC rejected the plaintiff company’s tender for the reasons that in previous projects the plaintiffs company had executed for the University, the works were shoddily done. The UTC however approved and accepted the second lowest bidder – Jack Dharu as the successful tender. The minutes of the UTC’s meeting of 29^th October 2009 were recorded by the Deputy Registrar of the University who acted as the secretary of the UTC. These minutes were complied into a Report and having regard to the fact that the contract form of Gh¢250,239.45 was above the approval threshold of the UTC the Director of Works and the Director of Procurement of the University who were also members of the UTC were then mandated by the UTC to submit the Report to the Regional Tender Review Board (RTRB) for concurrent approval in accordance with section 17(c) of the Public Procurement Act, 2003 (Act 663). Unknown to the UTC as a Tender Entity of the University, the Director of Procurement – one Aborah-Boateng who had barely been appointed six months prior to the events leading to this action by the University, fraudulently forged and falsified the Report (minutes) of the UTC by deleting Jack Dharu as the successful and approved tenderer by the UTC and inserted in its place, Dadyco Construction Works Limited (i.e. the plaintiff company) as the successful tenderer and winner of the tenders.

During the trial, this forged, altered and falsified Report was tendered as Exhibit H whilst the original, authentic and genuine Report of the UTC was also tendered as Exhibit A. It was Exhibit H and not Exhibit A that the Director of Works and the Director of Procurement submitted to the Regional Tender Review Board (RTRB) for concurrent approval. At its meeting held on the 23^rd December, 2009, the RTRB gave its concurrent approval to Exhibit H and directed the UTC to award the contract to the plaintiff company. In the interim, when the UTC got wind of the fact that its Report – Exhibit A had been forged, altered and falsified, and that it was that forged Report (Exhibit and not Exhibit A that was submitted to the RTRB for its concurrent approval, it (i.e. the UTC) sent a letter of protest and objection to the RTRB indicating that the RTRB’s concurrent approval for the award of the contract to the plaintiff was in error because its Report - Exhibit A had been forged into Exhibit H and also pointed out that Jack Dharu was the actual successful tenderer.

In its protest letter to the RTRB, the UTC attached the original and genuine Report – Exhibit A. On 4^th February, 2010, the RTRB in a letter requested the UTC to furnish it with information on the projects executed by the plaintiff company and messrs Jack Dharu Construction Works Limited and reports of the performance of the said two companies.     The defendants by two replies to the RTRB dated 8^th February, 2010 and 7^th April, 2010 respectively gave details including photographs of the works poorly performed by the plaintiff company for the University as well as full information on works executed by Jack Dharu Construction Works Ltd. Despite this, the RTRB insisted that the contract should be awarded to the plaintiff company but the UTC refused or failed to comply with that directive and instead, directed the Works and Maintenance Unit of the University to carry out the rehabilitation works at Ghartey Hall Block B.

In the meantime, the University set up a Disciplinary Board to investigate the circumstances that resulted in the falsification or forgery of the UTC’s Report – Exhibit A and who was responsible for the falsification and or forgery. The disciplinary board carried out its work and came out with a Report implicating the Director of Procurement as the culprit and consequently recommended his dismissal. As a result, the appointment of Nana Aborah-Boateng (the Director of Procurement) was terminated per a letter dated 18^th February, 2010. The Director of Works was also suspended for three months. The University also caused a publication by way of Rejoinder in the print media responding to accusations made in the media against the University by some students of the University for not undertaking or delaying the rehabilitation of Ghartey Hall Block B. The plaintiff company did not take kindly to the Rejoinder by the University which it (i.e. Plaintiff Company) considered to be defamatory of it and tarnishing its image as a construction company. It was on the basis of these facts that prompted the plaintiff company’s action for the reliefs endorsed on the amended writ of summons.

In his written submissions filed on the 17^th day of February 2010 pursuant to leave granted by this court on 3^rd November, 2015, learned counsel for the defendants argued grounds (b), (c) and (d) of the appeal together and each of grounds (a) and (e) separately. Proceeding on grounds (b), (c) and (d), learned counsel for the defendants referred to sections 15, 17, 19, 20, 29, 59, 65, 78 and 92 of the Public Procurement Act, 2003 (Act 663) which he set out in his written submissions, and reviewed the functions and powers of a Tender Entity Committee, the Tender Evaluation Panel/Committee and the Regional Tender Review Board vis-à-vis these provisions of Act 663 mentioned supra and submitted that;

the Tender Evaluation Panel/Committee has power only to make recommendations to the Entity Tender Committee;

that the Entity Tender Committee has the power and the right to accept or reject the recommendation of the Tender Evaluation Panel/Committee;

that the Regional Tender Review Board only comes into play to give concurrent approval to a successful tenderer where the contract sum as in the instant case exceeds the approval threshold of the Tender or Institutional Tender Entity;

that the RTRB has no power to award any contract to a successful tenderer, and

that it is the Institutional Tender Committee which has the power to award the contract to a successful tenderer.

According to counsel for the defendants, the evidence on the record is overwhelming and undisputed that the University Tender Committee in the instant case which had the power under section 17 of Act 663 to declare a successful bidder and which also has the power to award a contract to a successful applicant had declared Jack Dharu as the successful tenderer thereby rejecting the recommendation of the Tender Evaluation Panel recommending the plaintiff company as the successful bidder. In the view of counsel for the defendants, the UTC had the power and the right to have so rejected the recommendation of the TEP that plaintiff company should be awarded the contract. The UTC therefore cannot be faulted in law in its rejection of the recommendation of the Tender Evaluation Panel/Committee. Learned counsel further contended that the evidence on record is also overwhelming that at no point in time was the plaintiff company ever declared or adjudged the successful tenderer by the University Tender Committee. It is also undisputed that on the evidence on the record, the plaintiff company was never awarded the rehabilitation of Ghartey Hall contract.

Counsel referred to Exhibit H – the minutes of the UTC meeting of 29^th October, 2009 in support of his submission.

According to counsel for the defendants, the trial judge gave little or no serious consideration to Exhibit A and also downplayed the role played by the Director of Procurement in falsifying or forging the minutes of the UTC meeting of 29^th October, 2009 and consequently failed to give adequate consideration to the case of the defendants thereby occasioning a grave miscarriage of justice to the defendants. Learned counsel for the defendants referred to section 92 of the Public Procurement Act, Act663 and submitted that the altering, falsifying and or forging of procurement documents with intent to influence the outcome of a tender process constitutes an offence and therefore the UTC had a responsibility to prevent anybody or entity to benefit from such an offence – this issue submitted counsel, failed to receive a consideration by the trial judge. Learned counsel for the defendants accordingly invited us to exercise our powers as a rehearing court on the authority of Tuakwa v. Bosom [2001-2002] SCGLR 61; Oppong Kofi v. Fofie [1964] GLR 174 and other numerous judicial decisions on the point to review the entire evidence on the record and take our own decision on the matter. Counsel for the defendants further submitted that the Regional Tender Review Board’s concurrent approval right does not confer any power or authorization on it to determine which applicant has won the tender because that is the right of the Entity Tender Committee. The Entity Tender Committee makes that decision and forwards its said decision to the RTRB for concurrent approval only where the contract sum exceeds the threshold of the said Entity Tender Committee. Where the contract sum does not exceed its threshold, there is no need for the Tender Entity to refer the successful applicant to the RTRB for concurrent approval.

On ground (e) of the appeal, the submission of counsel for the defendants is that the trial judge should have exercised his discretion under order 4 Rule 5(2) of the High Court (Civil Procedure) Rules, 2004 (C.I.47) to strike out the name of the 2^nd defendant as an unnecessary party to the suit since there is no specific averment in the pleadings of the plaintiff company against the 2^nd defendant in his capacity as the Registrar of the University which warranted his being sued as a defendant in the action. There is also in the whole of the evidence on the record no evidence implicating the 2^nd defendant to warrant making the Registrar of the University a defendant in the suit. Furthermore, submits counsel for the defendants, in his judgment the trial court did not find the Registrar (2^nd defendant) culpable or liable for any of the reliefs sought by the plaintiff. Learned counsel for the defendants therefore submits that the trial judge erred in entering judgment and costs in favour of the plaintiff against the 2^nd defendant and accordingly invited us to allow the appeal and set aside the judgment and the costs against the 2^nd defendant.

In sum total and for all the above reasons learned counsel for the defendants has invited us to allow the whole appeal and set aside the judgment and its consequential orders made therein. In his written response filed on the 5^th day of January 2010 learned counsel for the plaintiff responded to grounds (d), (b), (c), (a) and (e) in that order. On ground (d), counsel for the plaintiff conceded that the Tender Evaluation Panel/Committee has power only to make recommendations to the Tender Entity. He also conceded that it is the right of the Tender Entity to accept or reject the recommendation of the Tender Evaluation Panel/Committee. According to counsel for the plaintiff, since in the instant case, the contract sum exceeded the threshold of the UTC, the latter had no option but to refer its decision to the RTRB for the concurrent approval. He referred to section 17(2)(c) of Act 663. Furthermore, counsel for the plaintiff conceded again that since the UTC in the instant case refused or failed to comply with the directive of the RTRB to award the contract to the plaintiff company, the plaintiff company was as a matter of fact and law never awarded the contract to rehabilitate Ghartey Hall Block ‘B’ of the University. Learned counsel for the plaintiff then construed or interpreted the words “approval” or “concurrent approval” as used in sections17(2)(c) and 29(1) of the Public Procurement Act, 2003 (Act 663).

According to counsel, when these words are purposively interpreted, they mean acceptance. He then submitted that when a Tender Entity approves the recommendation of a Tender Evaluation Panel/Committee then the particular recommendation bid or tender is deemed to have been accepted by the Tender Committee within the meaning and scope of section 29(!) of Act 663. Similarly, when the Regional Tender Review Board grants concurrent approval for a bid based on the recommendation of a Tender Entity, the bid is deemed to have been accepted by both the Tender Entity and the Regional Tender Review Board within the meaning and scope of section 29(1) of Act 663. Based on his interpretation of the words “approval” or “concurrent approval” as stated supra, learned counsel for the plaintiff consequently submitted that since in the instant case the Regional Tender Review Board three times gave its concurrent approval for t he plaintiff’s bid as the winning bid as contained in Exhibit H (i.e. the altered, falsified and or forged minutes of the UTC meeting of 29^th October 2009) thereby overruling the objections and protestations of the UTC, then the UTC was deemed to have accepted the plaintiff’s bid within the meaning of section 29(1) of Act 663. It was therefore unlawful for the defendants to have refused or failed to award the contract to the plaintiff company. Learned counsel for the plaintiff agreed with the trial judge that by its acceptance of the plaintiff company’s bid the plaintiff company had acquired a crystalized right to be awarded the contract and therefore it was unlawful for the defendants to refuse or fail to award the contract to the plaintiff company. Counsel for the plaintiff submits that for these reasons, the trial judge was right to have awarded damages and costs to the plaintiff company as the refusal of the defendants to award the contract to the plaintiff had violated its vested right to be so awarded the contract.

On ground (b) of the appeal, counsel for the plaintiff disagreed with the counsel for the defendants that the trial judge failed to adequately consider the case of the defendants. Learned counsel for the plaintiff referred to the correspondences exchanged between the UTC and the RTRB concerning the alleged falsification, alteration or forgery of Exhibit A into Exhibit H that was submitted to the RTRB for concurrent approval and the objections and protestations contained in the letters the UTC sent to the RTRB and the responses of the RTRB and the fact that each of the UTC and the RTRB stuck to its guns and submitted that the evidence on the record is overwhelming that the defendants had exhausted their remedies with the RTRB and the option left to the UTC was to comply with the directive of the RTRB, and consequently its failure or refusal to comply with that directive was unlawful and injurious to the plaintiff company to warrant an award of damages in its favour.

On ground (d) of the appeal, learned counsel for the plaintiff referred to the phrase “one step only” in section 98 of Act 663 and submitted that that phrase means, a Tender Entity can seek a review of a decision of a RTRB from one only RTRB and cannot seek a review from any other superior RTRB. The Tender Entity which is aggrieved by the concurrent approval of the RTRB can seek redress only in a competent court of justice. Learned counsel for the plaintiff then curiously, surprisingly and contradictorily contended that the UTC ought not to have gone to the trial court and this appellate court to invite these courts to consider Exhibit A because that invitation tantamounts to asking those courts to sit on appeal on the decision of the RTRB – which decision was final. He referred to the case of Bisi v. Kwayie [1987-88] 2 GLR 306, SC to support his contention. On grounds (c) and (a) of the appeal, counsel for the plaintiff reiterated and relied on his submissions on grounds (b) and (d) and invited us to uphold the award of damages and costs in favour of the plaintiff company by the trial court.

Finally on grounds (e) of the appeal, counsel for the plaintiff seems to agree with counsel for the defendants that the joinder of the 2^nd defendant to this suit was unnecessary but surprisingly turned round to submit that “nowhere in the judgment did the trial judge specifically enter judgment against the 2^nd defendant.”

In my judgment, I wish to commence my determination of the merits or demerits of the appeal before us with a consideration firstly of ground (e) of the appeal. I agree with learned counsel for the defendants that the trial judge should have exercised his discretion and power under order 4 Rule 5(2) of the High Court (Civil Procedure) Rules, 2004 (C.I.47) and struck out the Registrar of the University as a defendant in the suit. The reason is obvious. There is completely nothing in the amended statement of claim by the plaintiff company (see page 364 of the ROA) implicating the Registrar of the University in the whole bidding process from beginning to the end. The evidence on the record even shows that it was the Deputy Registrar of the University, one Mr. Rexford Abedu Boafo who acted as the secretary of the University Tender Committee (UTC) and recorded the minutes of the UTC meeting on 29^th October 2009 (see his evidence at page 461 of the ROA) and yet he was not joined to the suit as a defendant. There is completely nothing on the Record of Appeal showing any role played by the 2^nd defendant in the whole tendering process. Despite this, the learned trial judge did not only fail or refuse to exercise his discretion under order 4 Rule 5(2) of C.I.47 to strike out 2^nd defendant as an unnecessary and improper party to the suit but he also went ahead to enter judgment in favour of the plaintiff against the 2^nd defendant too when he wrote at page 11 of the judgment (page 515 of the ROA) as follows:

“I, however enter judgment for the plaintiff against the defendants for reliefs ‘a’ and ‘b’ as endorsed on the amended writ of summons… I award costs of Gh¢10,000.00 for the plaintiff against the defendants having regard to the period of the trial as well as the industry that went into the preparation of the trial of processes filed and voluminous exhibits.”

Why enter judgment against the 2^nd defendant in favour of the plaintiff when the plaintiff itself did not aver any wrong doing against the 2^nd defendant in its pleadings? Why award costs against the 2^nd defendant in favour of the plaintiff when no evidence was adduced to establish any wrong doing or any cause of action against the 2^nd defendant?

In my view, the trial judge erred in law when he entered judgment and awarded costs against the 2^nd defendant who was wrongly joined to the suit. I accordingly allow the appeal and set aside the judgment and the award of costs against the 2^nd defendant.

I next proceed to consider what I regard to be the kernel of this suit. At pages 8 and 9 of the judgment (pages 512-513 of the ROA), the learned trial judge made and reached the following findings and conclusions.

“…The Tendering Entities such as the 1^st defendant herein can and in some instances has power to reject bids. But that power is to be exercised before the final stage of the award. The defendants in this case erroneously thought that they could reject the bid of the plaintiff after the concurrent approval by the Regional Tender Review Board. They actually misunderstood their rejection powers under section 29 of the Act which stipulates…

In the instant case the Regional Tender Review Board based on recommendations from the 1^st defendant (which the 1^st defendant later described as erroneous) gave concurrent approval for the award of the contract to the plaintiff… This the 1^st defendant refused to do, citing fraud and misrepresentation of the situation by its then procurement officer, one Mr. Aborah-Boateng who was acting as an agent of the 1^st defendant University at the time he submitted the so called erroneous report indicating that the plaintiff had been recommended for the award of the contract. The evidence on record is that Mr. Aborah-Boateng was dismissed for that step. How does this affect the innocent plaintiff who has bid and been declared winner of the contract. In my view, since the Regional Tender Review Board was satisfied that the plaintiff tender conformed with their procedures and had been declared successful and had in turn been recommended for concurrent approval and the approval had indeed been given, the 1^st defendant had no power under the Act to cancel or reject the award as it did. This finding is buttressed by the caution given to the defendants in the letter written by the Regional Tender Review Board in which it maintained its concurrence for the award of the contract to the plaintiff and cautioned the defendants that their plan to re-award the contract to the second highest bidder was in contravention of the Public Procurement Act…” (The emphasis is mine).

Grounds (a), (b), (C) and (d) of the appeal are all complaining that;

the judgment of the trial court is against the weight of the evidence on record;

the trial judge did not give adequate or sufficient consideration to the case of the defendants especially having regard to the documentary evidence contained in Exhibit A – i.e. the Minutes

(Report) of the meeting of the University Tender Committee of 29^th October, 2009 during which a successful and winning bidder was declared, and

the learned trial judge also fell into error in his interpretation of the relevant provisions of the Public Procurement Act, 2003 (Act 663) thereby resulting in a grave miscarriage of justice to the defendants.

Even though counsel for the defendants argued only grounds (b), (c) and (d) of the appeal together and grounds (a) and (e) separately, I will add ground (a) to grounds (b), (c) and (d) and determine them together. This is because, in my opinion grounds (a), (b), (c) and (d) relate substantially to the passages or excepts of the trial courts judgment I have quoted supra particularly in relation to the portions of these passages or excepts I have highlighted or emphasized. It is also pertinent to note as rightly pointed out by counsel for the defendants, that the issues for trial and in this court narrow down to the interpretation of the relevant provisions of the Public Procurement Act, 2003 (Act 663). These Provisions of Act 663 which I consider relevant and worth considering in order to resolve these issues, are sections 17, 19, 20, 29, 59 and 92 of Act 663.

“Section 17 - Tender Committee

(1) Each procurement entity shall establish a Tender Committee in the manner set out in schedule 1.

(2) In the performance of its functions a Tender Committee shall (a) ensure that at every stage of the procurement activity, procedures in this Act have been followed, (c) refer to the appropriate Tender Review Committee for approval any procurement above its approval threshold, taking into consideration the fact that approval above the Entity Committee is one step only approval.

Section 19 – Tender Evaluation Panel

(1) Each procurement Entity shall appoint a Tender Evaluation Panel with the required expertise to evaluate tenders and assist the Tender Committee in its work.

(2) In the performance of its functions a Tender Evaluation Panel shall proceed according to the predetermined and published evaluation criteria.

Section 20 – Tender Review Boards

(3) A Tender Review Board shall perform the following functions:

(a) In relation to the particular procurement under consideration, review the activities at each step of the procurement cycle leading to the selection of the lowest evaluated bidder best offer, by the procurement entity in order to ensure compliance with the provisions of this Act and its operating instructions and guidelines.

(b) Subject to subsection (2)(a) give concurrent approval or otherwise to enable the procurement entity continue with the procurement process…

Section 29 – Rejection of Tenders, Proposals and Quotations

(1) A procurement entity may reject tenders, proposals and quotations at anytime prior to acceptance if the grounds for rejection are specified in the tender documents or in the request for proposals or quotations.

(2) The grounds for rejection shall be communicated to the tenderer but justification for the rejection is not required and the procurement entity shall not incur liability towards the tenderer.

(5) The rejection of the tender proposal, offer or quotation with reasons shall be recorded in the procurement proceedings and promptly communicated to the supplier or contractor.

Section 59 – Evaluation of Tenders

(1) The procurement entity shall evaluate and compare the tenders that have been accepted in order to ascertain the successful tender in accordance with the procedures and criteria set out in the invitation documents…

Section 92 – Offences Relating to Procurement

(2) The following shall also constitute offences under this Act.

(b) directly or indirectly influencing in any manner or attempting to Influence in any manner the procurement process to obtain an unfair advantage in the award of a procurement contract.

(c) Altering any procurement document with intent to influence the outcome of a tender proceeding and this includes but is not limited to

(i) forged arithmetical correction

(ii)insertion of documents” (The emphasis is mine).

From the above sections of the Public Procurement Act, 2003 (Act 663), the following facts stand out:

(1) It is the Entity Tender Committee that has the right and power to declare a bid successful, approve same and award a contract to the successful applicant or tenderer and not the Tender Evaluation Panel or the Regional Tender Review Board. Where the contract sum does not exceed the Entity Tender Committee approval threshold, the Entity Tender Committee need not refer its decision to the Regional Tender Review Board for concurrent approval; it only does so where the contract sum exceeds the approval threshold of the Entity Tender Committee – See Section 17 of Act 663.

(2) The Entity Tender Committee has the right and the power to reject or accept the recommendation of the Tender Evaluation Panel whose function is only to assist the Entity Tender Committee in its work. See Section 19 of Act 663 supra.

(3) The Regional Tender Review Board has no business or power to either declare a successful bidder or tenderer or give the final award of the contract. The function of the Regional Tender Review Board is only to give its concurrent approval where the contract sum exceeds the approval threshold of the Entity Tender Committee.

(4) Under section 20(2)(b) of Act 663 where the Regional Tender Review Board has given its concurrent approval it has to communicate that concurrent approval to the Entity Tender Committee to enable the Entity Tender Committee to “continue with the procurement process”.

(5) The Regional Tender Review Board therefore cannot and should not communicate directly its concurrent approval to the successful bidder or applicant under section 29(1) of Act 663.

Let me re-quote section 29(1)(a) to better understand what I shall say shortly:

“29(1)A procurement entity may reject tenders, proposals, and quotations at any time prior to acceptance if the grounds for the rejection are specified in the tender documents or in the request for proposals or quotations” (my emphasis).

Learned counsel for the plaintiff has interpreted section 29(1) of Act 663 with particular reference to the phrase “prior to acceptance” to mean prior to acceptance or concurrent approval by the Regional Tender Review Board. I totally disagree with this interpretation or construction of that phrase. This is because tender proposals and quotations are not submitted to the Regional Tender Review Board for consideration for acceptance or approval. It is the Entity Tender Committee to which these tender proposals and quotations are submitted for consideration for acceptance or approval and declaration of the successful bidder or tenderer. Thus section 29(1) of Act 663 simply means that the Entity Tender Committee in its consideration of the various tender proposals and quotations submitted by various tenderers has the power or right to reject these tender proposals and quotations prior to accepting anyone of them. Once the Entity Tender Committee has accepted and approved any of these tender proposals and quotations and has declared any of the tenderers the winner, it cannot subsequently reject these tender proposals and quotations of the successful tenderer.

In the instant case, the evidence on the record is clear and overwhelming that the plaintiff company’s tender proposals and quotations were never accepted or approved by the University Tender Committee and was never declared the winner. On the evidence on record, the UTC outrightly rejected the tender of the plaintiff company even though it was the lowest bidder. The plaintiff company was not therefore the successful bidder and was never declared as such by the UTC. The evidence on the record is also overwhelming that the plaintiff company was never granted the contract to rehabilitate Ghartey Hall Block ‘B’ by the University Tender Committee. The plaintiff company did not therefore acquire any right with the 1^st defendant or the UTC to sign and execute a contract to rehabilitate Ghartey Hall Block ‘B’ of the University of Education, Winneba, which could crystallize into an acquired right.

I agree with learned counsel for the defendants that the trial court did not give sufficient or adequate consideration to the case of the defendants with particular reference to Exhibit A vis-à-vis Exhibit H. On the overwhelming evidence on the record Exhibit A in its original authentic and true form was not the document or Report of the UTC that was submitted to the Regional Tender Review Board for consideration and concurrent approval. The undisputed evidence on record is that Exhibit A was altered, falsified and fraudulently forged by the Director of Procurement – Mr. Aborah-Boateng who deleted the name of Jack Dharu Construction Ltd. as the successful winner of the bid for the rehabilitation of Ghartey Hall Block ‘B’ and instead inserted the name of the plaintiff company in Jack Dharus’ place as the successful applicant. That falsified, forged and or altered Report – Exhibit H was what was submitted to the Regional Tender Review Board for concurrent approval. In effect, the original, authentic and genuine Report – Exhibit A was never submitted to the Regional Tender Review Board by the Director of Works and Mr. Aborah-Boateng. The fact that the plaintiff company was never declared by the UTC as the successful tenderer is clear and obvious on the face of Exhibit A.

It is also obvious and clear on the face of Exhibit H, that is the forged, falsified and altered Report submitted to the RTRB that the name Jack Dharu Ltd. had been deleted and in its place is inserted the plaintiff’s company. Therefore, the finding made by the trial judge that: “Plaintiff tender…had been declared successful” is not supported by the evidence on record, to wit Exhibit A. Under section 29(1) of Act 663, the UTC had the right and power to reject the plaintiff company’s tender even though it was the lowest bidder. The UTC was also not bound to accept the recommendation of the Tender Evaluation Panel, whose function is only to assist the UTC in the procurement process. I hold therefore that the UTC committed no wrong in law in rejecting the plaintiff company’s bid.

The view expressed by the trial judge in his judgment quoted supra that since the RTRB had given its concurrent approval to Exhibit H, the UTC had no power under the Act to cancel or reject the award of the contract as it did because the letters written by the RTRB in which it maintained its concurrent approval and had also cautioned the UTC that its plan to re-award the contract to the second bidder was in contravention of the Public Procurement Act, 2003 (Act 663) is questionable and wrong for the following reasons:

In the first place there are factual errors in that opinion expressed by the trial judge. These factual errors are the following:

The plaintiff company on the documentary evidence (Exhibit A) and oral testimony on the ROA establishes overwhelmingly that the plaintiff company was never declared the successful bidder and winner of the contract to rehabilitate Ghartey Hall Block ‘B’ of the University.

On the evidence on record, the plaintiff company and in fact no company was awarded the contract to rehabilitate Ghartey Hall Block B. It is in evidence that the rehabilitation works on that Hall were undertaken by the Works and Maintenance Department or Unit of the University from the University’s own resources. The issue or question of re-awarding the contract for the rehabilitation of Ghartey Hall by the UTC to another company is therefore a non-issue.

The caution letters communicated to the UTC by the RTRB did not by themselves constitute and could not have constituted a declaration of the plaintiff company as the successful bidder because the RTRB has no power or right under the Public Procurement Act, 2003 (Act 663) to declare any bidder as the successful bidder. That power is conferred under section 59 of the Public Procurement Act, Act 663 on the Entity Tender Committee. The powers and functions of the Regional Tender Review Board are limited to a consideration and concurrent approval of bids or a bid that has been declared successful by the UTC and that has been submitted to it (i.e. RTRB) by the UTC for said concurrent approval because the contract sum is above the approval threshold of the UTC.

The Report concurrently approved by the RTRB in the instant case was not Exhibit A but the forged, falsified and altered Report – Exhibit H. There is no evidence on record that the UTC itself had approved that Report (i.e. Exhibit H) that was submitted to the RTRB and so the concurrent approval of a Report in the form of Exhibit H by the RTRB did not arise. The overwhelming evidence on record which I find and accept is that the RTRB in the instant case never gave any concurrent approval to Exhibit A.

Let me now at this stage consider the legal effect of Exhibit H an issue the trial judge never considered in his judgment. It cannot be disputed that Exhibit H was forged or altered or falsified by the Director of Procurement – Mr. Aborah-Boateng and that the authentic and genuine Exhibit A was never submitted to the RTRB by Mr. Aborah-Boateng and the Director of Works who were mandated by the UTC to submit same to the RTRB for consideration and concurrent approval before implementation by the UTC.

What is the legal effect of Exhibit H which on the evidence on record is a forgery and the consequent effect of the so called concurrent approval given to it by the Regional Tender Review Board? Apart from the proven forgery of Exhibit A and its transformation into Exhibit H being a criminal offence under section 158 of our criminal and other offences Act, 1960 (Act 29), Exhibit H is also an illegal document since its making by Mr. Aborah-Boateng constituted an offence under section 92(3)(b) and of the Public Procurement Act, 2003 (Act 663). In law, a forged document like Exhibit H in the instant case is a nullity. I am buttressed in my view by the case of Slingsby v. District Bank Ltd. [1931] 1 ch.496 where Wright J, discussing the authority of an agent doing acts for and on behalf of his principal stated as follows: “an act of forgery is a nullity and outside any actual or ostensible authority’ of an agent. Thus in law, a principal or master will only normally be held liable for a crime committed by his agent or servant or employee if he is found to have been a participes criminis or that the crime was committed by the agent or servant or employee upon the principal’s or master’s or employer’s instructions or authorization or that he connived the commission of the crime or that he was standing by and did nothing whilst the crime was being committed by the agent or servant or employee. The common law position on this principle or rule of law was stated in the old English case of R. v. Huggins [1730] 2 Ld. Raym 1574 as follows:

“It is a point not to be disputed that…in criminal cases the principal is not answerable for the acts of his deputy…they must each answer for their own acts and stand or fall by their own behaviours…”

However, I concede that the situation may be different such as with regard to criminal acts committed by the directors or other principal officers of limited liability companies or where statute expressly makes the principal liable for the criminal acts of his or its agents. In the instant case, I will like to consider whether on the facts of this case, Mr. Aborah-Boateng the Director of Procurement who forged or altered Exhibit A and transformed it into Exhibit H which he submitted to the Regional

Tender Review Board acted as an agent of the 1^st defendant or of the University Tender Committee for that matter. In the view of the trial judge Mr. Aborah-Boateng was an agent of the 1^st defendant.

With all due respect to the trial judge, I totally disagree with him on that finding and view.   The evidence on the record is that, the 1^st defendant is not a limited liability company but an educational institute. There is also sufficient evidence on the record which is undisputed that Mr. Aborah-Boateng was employed by the 1^st defendant as the Director of Procurement barely six months before the events leading to the institution of the action in the instant case. Mr. Aborah-Boateng by virtue of his position as the Director of Procurement was made a member of the University Tender Committee.

Mr. Aborah-Boateng was therefore an employee or servant of the 1^st defendant and not its agent. Even though at times the duties and functions of an agent and a servant/employee overlap in certain situations for example in cases which deal with liability for injuries resulting from the careless use of vehicles; in such cases the law seems to make no distinction between agents and servants. See the case of Ormrod v. Crossville Motor Services Ltd. [1953] 2 ALL E.R. 753 at p. 755 per Denning L.J; nevertheless there are two basic distinctions between the agent and the servant or employee.

These distinctions or differences are as follows:

Whilst an agent is not under the control of his principal, the servant or employee is under the control of his master or employer;

Whilst the agent has the power to effect legal relations between his principal and third parties, a master or employer is only liable for the torts or contracts his servant or employee commits in the course of his employment or within the scope of his employment.

Consequently, a master or employer will only be held liable in tort or contract for any wrong his servant or employee commits as long as it can be shown or proven to be connected with the performance of or apparent duties within the course or scope of the servant’s or employee’s employment. This is because a servant or employee is employed to perform certain specific tasks not normally involving his master or employer in legal relationship with third parties incidentally to the performance of which he may commit crimes. In effect, a servant or employee who went on a frolic of his own and does a willful act involving fraud or other crimes or actions outside the course of or scope of his employment would not make his master or employer liable for the consequences. See Fridman, The Law of Agency (2^nd ed.) at pages 230-239 and the case of Cornfoot v. Fowke (1846) 6 M & W 358.

Let me now relate these principles of law concerning the distinction or differences between the position of an agent and that of a servant or employee to the facts in the instant case. As stated supra, Mr. Aborah-Boateng was employed by the 1^st defendant as the Director of Procurement of the University of Education, Winneba. He was therefore an employee of the 1^st defendant. By his position, Mr. Aborah-Boateng was employed to perform specific tasks of procurement duties for and on behalf of the 1^st defendant.          In other words, he was given the specific tasks of undertaking procurement activities only for his employer – the 1^st defendant. As a Director of Procurement, Mr. Aborah-Boateng knew or ought to have known or is deemed to know and be well conversant with the provisions of the Public Procurement Act, 2003 (Act 663). He knew or is deemed to know or ought to have known what Act 663 required of him to perform his duties as Director of Procurement and what he was forbidden or prohibited from doing as the Director of Procurement. Section 92(3)(b) and (c) of the Public Procurement Act, 2003 (Act 663) provides:

“92(3) The following shall also constitute offences under this Act:

(b) directly or indirectly influencing in any manner or attempting to influence in any manner the procurement process to obtain an unfair advantage in the award of a procurement contract.

(c) altering any procurement document with intent to influence the outcome of a tender proceeding…” (my emphasis)

It is my inference from the evidence on the record that Mr. Aborah-Boateng in his position as Director of Procurement and a member of the UTC knew or ought to have known or was aware of section 92(3) and (c) of the Public Procurement Act, 2003 (Act 663). It is my further inference that Mr. Aborah-Boateng knew or ought to have known or was aware that forging official documents like Exhibit A or forgery is not only a criminal offence under the laws of Ghana but also an offence under section 92(3) and (c) of the Procurement Act, 2003 (Act 663).

Furthermore, Mr. Aborah-Boateng knew or ought to have known that forgery or altering procurement documents was not or could not have been part and parcel of his duties and functions as a Director of Procurement or that such forgery could not be lawfully done or expected to be done within the course or scope of his employment as a Director of Procurement of the University of Education, Winneba. Besides, there is completely no evidence on the record that Mr. Aborah-Boateng altered Exhibit A and transformed it into Exhibit H which he submitted to the RTRB with or under the authority, actual or ostensible or instruction of or with the connivance of the 1^st defendant or the UTC for that matter. In fact, there is no evidence that the 1^st defendant or the UTC for that matter even knew or ought to have known of the forgery committed by Mr. Aborah-Boateng prior to the receipt of the letter from the RTRB directing the UTC to award the contract to the plaintiff company. In my view it cannot also be reasonable to infer that one of the duties or tasks the 1^st defendant employed Mr. Aborah-Boateng to do was to alter or forge procurement documents nor could that have been within the contemplation of the 1^st defendant.  There is no evidence on record to warrant such an inference.  It will therefore be inappropriate and far-fetched to hold the 1^st defendant vicariously liable for this criminal and illegal conduct of Aborah-Boateng. I find and hold that Mr. Aborah-Boateng was on a frolic of his own when he dishonestly and intentionally altered Exhibit A and transformed same into Exhibit H which he deceitfully submitted to the RTRB for concurrent approval with a clear intention to obtain an unfair and an unwarranted advantage for the plaintiff company and inferably for his own hidden agenda.

Now having found and concluded that Exhibit H is a void and illegal document in the sense that apart from being criminal under s.158 of Act 29 of 1960, it also sins against section 92(3)(c) of Act 663, can the plaintiff company benefit from it or rely on it to claim any right? I do not think so. It could be that the plaintiff company did not know about the conduct of Mr. Aborah-Boateng in relation to the forgery of Exhibit A into Exhibit H. It could be that the plaintiff company was not a party to or did not influence the altering of Exhibit A into Exhibit H by Mr. Aborah-Boateng. Nevertheless, will the law allow or permit the plaintiff company in the circumstances as contained in the evidence on record to rely on the void and illegal Exhibit H and the equally void so-called concurrent approval of Exhibit H by the RTRB to get an advantage or benefit from these void and illegal acts and should a court of law aimed at doing justice though the heavens fall aid or lend its aid to the plaintiff company to benefit from such an unjust, unfair, and illegal document. I do not think so and I am buttressed in my opinion by the principle or rule of law that says that it is against public policy for the court to aid or lend its aid to a litigant who or which founds his or its cause of action on an immoral or criminal or illegal act? This principle of law i.e. public policy was stated as far back as 1775 by Lord Mansfield in the case of Holman v. Johnson [1775] 1 C.P.341 as follows:

“The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiffs stating or otherwise, the cause of action appears to arise ex turpi causa or the transgression of a positive law of this country, there the court says he has no right to be assisted.”

Also in the case of Uphill v. Wright [1911] K.B.506 the agent of a landlord let a flat to an immoral woman (i.e. a prostitute) and kept mistress of a certain man who was to provide funds to her for the payment of the rent to enable him to visit her as and when he wanted to fornicate with her. In an action by the landlord for the recovery of the rent, the court applied the principle or rule of law or the maxim ex turpi causa non oritur actio and dismissed the action for the reason that the evidence established that the action for the recovery of the rent was founded on an immoral or illegal transaction and that the objective was also illegal in the sense that fornication was illegal and unenforceable by the laws of England.

Similarly, in the case of Pearce v. Brocks [1866] L.R. 1Exchequer, 218 an immoral woman, (i.e. a prostitute) hired a brougham from the plaintiff for the purposes of her prostitution activities. As a condition for the supply of the brougham, the woman was to pay a deposit of £50 and fifteen guinnes so that she could pay the hiring fee by installments. In the event of a default in payment of any installment, she was to forfeit the deposits. Another term of the agreement was that the defendant was to be held liable for any damage to the brougham. The defendant defaulted in the payment of the second installment and also failed to pay the fifteen guinnes deposit. In an action for a recovery of the fifteen guinnes by the plaintiff, the maxim ex turpi causa non oritur actio was applied by the court to deny the plaintiff recovery of the fifteen guinnes; the court held that the action having been founded on immorality or illegality as the agreement was for an illegal objective the landlord could not recover.

Again, as Lord Denning said in the case of MacFoy v. United Africa Co. Ltd. [1962] A.C. 152 at p. 160, P.C. “You cannot put something on nothing and expect it to stay there, it will collapse.” What will collapse in the instant case? I venture to say all actions or proceedings founded on the void and illegal Exhibit H will also collapse. It follows that the concurrent approval of the RTRB that was founded on Exhibit H is equally null and void and of no legal effect. The so-called concurrent approval of the RTRB, founded on Exhibit H is consequently unenforceable in law. As I will soon demonstrate, it is clear on the evidence on the ROA that the plaintiff company’s action in the instant case is founded on the so-called concurrent approval by the RTRB of Exhibit H which is a forgery and therefore null and void in law. The plaintiff company’s action in the instant case has therefore no legs to stand and must therefore collapse since something cannot be put on nothing and be expected to stand. See MacFoy v. United Africa Co. Ltd. (supra) at p.160 P.C.

As stated supra in the instant case, it is clear that the plaintiff company has founded its action not on the basis that it has a contract with the 1^st defendant through the UTC but because the RTRB had given concurrent approval to the forged Exhibit H and that it was wrong for the UTC to refuse or fail to award it the contract to rehabilitate Ghartey Hall. Thus in paragraphs 5, 6, 7 and 12 of its amended statement of claim (see page 362-363 of the ROA) the plaintiff company averred as follows:

“5. The plaintiff tendered for the award of contract for rehabilitation work at Ghartey Hall Block ‘B’ South Campus, Winneba and was accordingly recommended for the award of the contract under the tender process and evaluation, in accordance with the provision of Act 663 – Public Procurement Act, 2003.

6. The plaintiff says per a cover letter dated 23^rd of December 2009, the Regional Tender Board gave its concurrent approval for the award of the said contract to Messrs Dadyco Construction Works Limited.

7. The plaintiff says that in a bid to frustrate the plaintiff company from being awarded the contract, the defendants filed a protest letter to the Regional Tender Review Board and proposed that the contract be rather awarded to Messrs Jack Dharu.

12. The plaintiff says that the defendants have and or refused to award the contract by executing the said contract agreement with the plaintiff.”

I therefore find and hold that the plaintiff company had founded its cause of action on the concurrent approval of Exhibit H by the Regional Tender Review Board and the failure of the defendants to award the contract to the plaintiff company as directed by the RTRB. But Exhibit H as I have held and its concurrent approval by the RTRB are nullities and illegal. I accordingly also apply the principle or rule of law which says that it is against public policy for a court of law to lend its aid to a litigant like the plaintiff company in the instant case who founds his or its cause of action on an immoral or illegal act.

On the pleadings of the plaintiff company quoted herein supra, I am satisfied that the plaintiff company’s cause of action arose from the void concurrent approval of the forged or altered Exhibit H which I have found to be not only a nullity but also a clear transgression of a positive law of this country, to wit, the Public Procurement Act, 2003 (Act 663) section 92(3)(b) and (c) thereof. The court below should therefore have emphatically told the plaintiff company that it had no right to be assisted. It is my considered opinion that the trial court erred in law in not telling the plaintiff company that it had no right to be assisted and thrown it out. It is also my considered opinion that the trial court erred in law in not considering the fact that the plaintiff company had no right to be assisted because its action on the overwhelming evidence on the record arose ex turpi causa actio or the transgression of the Public Procurement Act of 2003, Act 663. On the basis of public policy therefore, I conclude that the plaintiff company’s action cannot be enforced by this court. In other words, no specific performance can be lawfully declared in favour of the plaintiff company neither can any of the reliefs sought be lawfully enforced and or affirmed by this court.

Finally, even though I have found and concluded that the plaintiff company cannot and should not be allowed to be assisted by the court in its prayer for the reliefs sought and unfortunately and regrettably granted by the trial court, I wish to make a comment as a matter of interest on the award of the damages of 10% of the contract sum of Gh¢250,239.45 and the rather bazaar order made by the trial court in the same judgment that 15% of the contract sum of Gh¢250,239.45 be calculated and paid to the plaintiff company by the defendants (see page 515 of the ROA). It is my considered opinion that the award of a percentage of the contract sum in favour of the plaintiff company by the trial judge has no legal basis and must be set aside. The reason is simple and it is that the plaintiff company never asked for that relief in the endorsement to the writ of summons, neither did the plaintiff company plead it. The trial judge was therefore not entitled to proprio motu substitute a relief for the plaintiff company that had not been asked for by the plaintiff company itself. See Dam v. Addo [1962] 2 G.L.R. 200, S.C.

In the case of Nyamah v. Amponsah [2009] S.C.G.L.R. 361 it was held that:

“1. a judge who makes an order for a relief that was not sought for by a party to the action can be held to have exercised a jurisdictional irregularity.”

In the instant case, the trial judge exercised a jurisdictional irregularity when he substituted and granted the relief for damages in percentage terms in favour of the plaintiff which the plaintiff company did not seek for. What the plaintiff company sought for was an award of Gh¢170,000.00 as damages. In effect the award of the conflicting damages in percentage terms by the trial judge in favour of the plaintiff company is consequently null and void and must be and is hereby set aside.

In conclusion for the reasons given herein in this judgment, I allow the appeal and it is accordingly allowed. The judgment of the court below together with its consequential orders are hereby set aside.