DANSIAM AND SONS LIMITED vs. BUDGET CASH AND CARRY LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2019
DANSIAM AND SONS LIMITED - (Plaintiff/Appellant)
BUDGET CASH AND CARRY LIMITED - (Defendant/Appellant)

DATE:  14TH FEBRUARY, 2019
CIVIL APPEAL NO::  H1/73/2018
JUDGES:  KORBIEH J.A. (PRESIDING), SOWAH J.A., WOOD J.A
LAWYERS:  GEORGE ESHUN WITH ELIZABETH A. YEBOAH AND NANA S. AKOSAH FOR DEFENDANT/APPELLANT
JUSTICE AYISI WITH PATIENCE ACKAH FOR PLAINTIFF/RESPONDENT
JUDGEMENT

SOWAH, J.A.:

Introduction

This appeal is from the judgment of the Commercial Division of the High Court, Accra dated 14th February 2017 in which the defendant's counterclaim was dismissed in its entirety whilst the plaintiff was adjudged to recover the following:

1.    Recovery of the sum of GH¢262,497.00

2.    Interest on the said sum of GH¢262,497.00 from April 2013 to date of final payment

3.    Costs inclusive of legal and administrative cost

4.    Recovery of the sum of GH¢990,200.00 being additional cost for excavating and carting away from the inside of the warehouse at construction site of the defendant unsuitable clayey soil measuring 1380m2 and to a depth of 1.10m and hard core filling up levels and compacted in 225mm layers.

5.    Interest on the sum of GH¢990,200 from April 2013 to date of final payment.

Dissatisfied with the trial court’s decision, the defendant/appellant filed a notice of appeal on 20th February 2017 and amended it on 25th January 2018 pursuant to leave.

The Grounds of appeal as filed are as follows:

(a)  The judgment is against the weight of evidence.

(b)  The learned trial Judge erred in the exercise of discretion in granting the amendment by ignoring relevant considerations including bad faith.

(c)   The learned trial Judge erred in misconstruing the issues set down for trial when he mis-stated the figures claimed and also the issues set down for trial.

The defendant/appellant is seeking the following reliefs from this court:

(a)  That the judgment of the High Court is reversed.

(b)  That all awards made in favour of the plaintiff should be reversed.

(c)   That the judgment be set aside and the plaintiff’s claim be dismissed.

(d)  That the defendant be granted judgment on the counterclaim proved

 

Background facts

The matters to be dealt with in this appeal make it necessary to give a background and chronology of the case in some detail for the sake of clarity. It is as follows:

The plaintiff/respondent (hereafter called the plaintiff) is a building construction company whilst the defendant/appellant (hereafter called the defendant) owns the warehouse which is the subject matter of the dispute. The plaintiff averred in her statement of claim that in 2012 she had been engaged by the defendant to undertake five separate jobs/works at defendant's warehouse at fixed sums, namely;

(a)  Construct a road for which she had been duly paid the agreed GH¢42,000

(b)  Inside filling and compactment for an agreed price of GH¢250,000 for which GH¢228,000 had been paid with a balance of GH¢22,000 outstanding

(c)   External works of Digging clay and filling it with laterite and compacting it for which the agreed price of GH¢79,000 had been paid

(d)  Constructing the warehouse by filling the steel skeleton with hollow blocks. The agreed price was GH¢400,000 but defendant had stopped her from completing the work at which time she had executed GH¢320,000 worth of the work thus owed GH¢120,000

(e)  Construction of a drain at an agreed cost of GH¢170,000 and at the time she was instructed to stop had executed 75% and so owed GH¢120,000.

The plaintiff’s writ of summons filed on 27th September 2013 sought the following reliefs:

1.    Recovery of the sum of GH¢462,000.00

2.    Interest on the said sum of GH¢462,000.00 from April 2013 to date of final payment.

3.    Costs inclusive of legal and administrative cost

In her statement of defence, the defendant admitted items (a) and (c) i.e. the contracts and full payments for the road and digging clay, filling and compacting. The matters in dispute therefore related to the three items (b), (d) and (e).

In respect of item (b) regarding inside filling and compaction, the defendant admitted the contract but denied any outstanding amount of GH¢22,000.00

The defendant totally denied any contract for the construction of a warehouse and drainage. i.e. items (d) and (e). Her case was that their agreement was for the plaintiff to produce blocks with quarry dust at an agreed price of GH¢400,000.00 However plaintiff had extended the contract works and so had been ordered to stop. A part-payment of GH¢200,000.00 was made and the further sum of GH¢200,000 paid thus there was no outstanding balance of GH¢120,000 as claimed by plaintiff.

In accordance with the Commercial court rules in Order 58 of the High Court (Civil Procedure) Rules 2004, C.I.47, a pre-trial judge settled the issues for trial on 25th March 2014. They were:

1.    Whether or not the defendant engaged plaintiff to undertake inside filling and compactment of defendant’s warehouse which was under construction at Spintex at an agreed price of GH¢250,000.00 for which defendant has paid GH¢228,000.00 leaving a balance of GH¢22,000.00 which is outstanding.

2.    Whether the defendant engaged the plaintiff to construct a warehouse for it at an agreed price of GH¢400,000.00 out of which defendant made a part payment of GH¢200,000.00

3.    Whether the defendant instructed plaintiff to put a stop to the construction of the warehouse at a time that plaintiff had completed constructing the warehouse by using steel to construct the skeleton.

4.    Whether or not the plaintiff filled the open space with the hollow cement blocks as agreed and also plastered the inside of the warehouse and part of the outside.

5.    Whether or not the only work left to be done was plastering of part of the outside of the warehouse and painting of the warehouse.

6.    Whether or not the total work plaintiff had executed by way of constructing the warehouse at the time defendant instructed it to stop work amounted to GH¢320,000.00 out of which defendant had paid GH¢200,000.00 leaving a balance of GH¢120,000.00.

7.    Whether or not the defendant requested plaintiff to construct a drainage all around the warehouse at an agreed cost of GH¢170,000.00 and at the time defendant instructed plaintiff to stop work and leave the project site it had executed three quarters of the drainage amounting to GH¢120,000.00 which said amount remains unpaid.

8.    Whether or not the plaintiff is entitled to its claim.

Prior that on 22nd January 2014, an order had been made appointing the AESL as Quantity Surveyors to ‘value the warehouse and drainage …constructed by plaintiff on behalf of defendant…’

The Report was not ready until 25th August 2015 and appears to have been received at the Registry on 22nd February 2016. [See covering letter at page 75A of the record of appeal].

Meanwhile both parties filed their witness statements with the documents to be relied on at the trial and their pre-trial check lists indicating that all processes were complete.

The trial commenced in earnest on 27th January 2016. The plaintiffs'' Representative Daniel Nsia Martey testified and was cross-examined, likewise PW1 Nathaniel Odei Boye. The plaintiff closed its case on 29th January 2016 and the defence opened on the adjourned date of 11th February 2016 and was adjourned for continuation of the cross-examination of defendants' Representative Nana Kweku Egyir Aggrey.

Then the trial went off track. Before the adjourned date of 19th February, the defendant by order of the court based upon requests by the plaintiff during cross-examination, produced certain documents. The defendant also filed witness statements for two other witnesses and an amended witness statement for Nana Aggrey who was in the witness box.

Not to be outdone, the plaintiff on 3rd March 2016 also filed a motion to amend her writ of summons and statement of claim. In the proposed amendment, the plaintiff sought the following additional reliefs:

1.    Recovery of the sum of nine hundred and ninety thousand and two hundred Ghana cedis (GH¢990,200.00) being additional cost for excavating and carting away from the inside of the warehouse at construction site of the defendant unsuitable clayey soil measuring 13800m2 and to a depth of 1.10m and hard core filling up levels and compacted in 225mm layers.

2.    Interest on the sum of GH¢990,200 from April 2013 to date of final payment.

The defendant opposed the application but was unsuccessful.

The learned trial judge granted the application to amend writ of summons and statement of claim after brooding over what he described as a “hard decision”. The Ruling dated 22nd March 2016 is at pages 153-157 of the record.

Consequent upon this, the defendant filed a Reply to the amended statement of claim and for the first time filed a Counterclaim for the following reliefs:

1.    An order upon the plaintiff to pay to the defendant the sum of GH¢200,000.00 which the plaintiff agreed to manufacture 6-inch cement blocks cement blocks made with quarry dust which plaintiff refused or ignored to manufacture.

2.    Another order upon the plaintiff to pay the sum of GH¢600,000.00 which the defendant expended in demolishing unauthorized construction works conducted by the plaintiff.

3.    A further order upon the plaintiff to pay general damages for trespass

After the plaintiff's motion to strike out this counterclaim failed, the trial proceeded with further pre-trial check lists and witness statements, the recall of plaintiff's witnesses who had already testified and finally the completion of the defendant's case. The last witness was CW1 Abdul Wahab Issah, Director of Quantities of the AESL who testified on 21st July 2016 (see pages 386-396) and tendered the valuation report as exhibit CE1 [at pages 75A-75M of the record of appeal]. He had not been present at site when measurements were taken.

It is also worth observing here that the Order to AESL did not contain any instructions about Inside filling and compactment or Site preparation and filling which has become the core issue in this appeal.

The trial judge stated his intention not to negate the testimony of CW1 even though he had a difficulty substituting the values of works in the Report in place of plaintiff's own claims in the suit. The results were the awards which have occasioned this appeal.

 

Grounds of appeal

It is noted for the record that in arguing the appeal, the defendant did not follow the numbering of the grounds of appeal as filed in the Notice of Appeal. The numbering was shuffled with Ground 2 becoming ground 1 in the written submissions. Ground 3 became 2 and the omnibus ground 1 was renumbered and argued last as ground 3.

In order to avoid confusion, I will take the grounds of appeal in the order and as numbered in the written submissions.

Before doing so however, I am constrained to make a few preliminary observations. It is to be noted that all words in Bold in this judgment are mine. Preliminary Comments

I start by commenting on the rather poor job the plaintiffs' lawyer did in drafting his pleadings. It was the cause for justifiable comment by the learned trial judge in the judgment. Irrelevant matters in the pleadings and emphasis on them in the evidence made it difficult to extract the essential facts. A rather simple case was further complicated by the manner in which the plaintiff’s case was presented. Reading the judgment, it is evident that the trial judge had to do a lot of work to untangle plaintiff's claims and make sense of it as we have had to do in this appeal.

Second, I have found it necessary to peruse the statement of claim before its amendment and compare it to the amended statement of claim because it brings clarity to plaintiff claim. A careful reading of the statement of claim before its amendment to introduce the additional claim for GH¢990,200.00, shows that the claim for a total of GH¢462,000.00 comprised three separate works, namely:

i.              Inside filling and compaction of warehouse at an alleged agreed price of GH¢250,000.00 with GH¢22,000.00 outstanding to be paid [see paragraphs]

ii.             Construction of the warehouse with steel and hollow blocks at agreed cost of GH¢400,000.00 Defendant had made part-payment of GH¢200,000.00. However, plaintiff had done GH¢320,000.00 worth of work, thus defendant owed it GH¢120,000.00 [see paragraphs]

iii.            Drainage at agreed cost of GH¢170,000.00. Plaintiff said she had executed work amounting to GH¢120,000.00 and thus was owed GH¢120,000.00 [see paragraphs]

The eight issues settled for trial all related to these three works. It is to be noted that the original claims did not change but were repeated verbatim in the amended statement of claim. The fresh claim for GH¢990,200.00 was made additional to these claims, thus the difficulty of the trial judge in reconciling the fresh claim with the other claims.

My third comment relates to the patent error in the total sum of GH¢462,000.00 that the plaintiff sought to recover in her first relief. In both the original and amended statement of claims at paragraphs 16 and 16 respectively [see pages 3 and 162 of the record of appeal], it was pleaded as follows:

‘Plaintiff also instructed its lawyer to write to the defendant demanding the sum of GH¢462,000.00 being outstanding balance by way of constructional works undertaken by the plaintiff on behalf of the defendant but the defendant has treated the said letter with contempt.”

One would be justified in concluding that this was a separate claim from the three already identified claims especially as the aggregate of the three claims by simple arithmetic is GH¢262,000.00 and not GH¢462,000.00. I have concluded that it was not a separate claim but is an error in calculation of the aggregate of the three items because if there was a separate claim for GH¢462,000.00 in addition to the GH¢262,000.00, then the total [excluding the fresh claim for GH¢990,200.00] would have been GH¢724,000.00 on the writ of summons.

The trial judge commendably observed this serious error that the figure of GH¢462,000.00 did not add up but magnanimously conjectured that “this probably may have arisen due to the not too clear distinction of different stages of works done by the plaintiff…” He thus entered judgment for the plaintiff for GH¢262,497.00 in respect of the first relief.

The first ground of appeal argued by the appellant takes issue with the trial Judge’s exercise of discretion in granting the plaintiff/respondent leave to amend the statement of claim. It states that the trial Judge erred in the exercise of discretion in granting the amendment by ignoring relevant considerations including bad faith.

The basis of the appellant's allegation of bad faith is that the trial judge improperly exercised discretion because he ought to have realised that the plaintiff's application was an opportunistic amendment sought in bad faith after the AESL report.

In a ground such as this that alleges error of law, best practises require that particulars of the alleged error of law or relevant considerations the trial judge ignored be stated. As it stands, the only particular cited is that the bad faith of the defendant was ignored by the trial judge.

However, even a casual reading of the 5 page Ruling disproves this criticism. The trial judge was very critical of the stage at which the plaintiff had brought the application but comprehensively articulated why he would allow the amendment in spite of that.

It is trite that a ground of appeal that discretion has been exercised wrongly is not an appeal from the discretion of the court to the discretion of the appellate court. The appellant must demonstrate some exceptional circumstance; for example, that the trial judge exercised the discretion on wrong or inadequate materials or that the court acted under a misapprehension of facts in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account. See: Blunt v Blunt [1943] AC 517 at 518; 2 All ER 76.

In Agyei & ors vs Similao [2012] 1 SCGLR 127, the Supreme Court had this to say about appeals in respect of interlocutory applications: [per Ansah JSC]

This being an interlocutory application, its grant or refusal, is entirely within the discretion of the court, and in the absence of a strong showing that the judge overlooked or allowed his discretion to be interfered with by irrelevant considerations whilst ignoring substantial ones, an appellate court will be loath to interfere with the exercise of the discretion.”

In the earlier case of Crentsil v Crentsil [1962] 2 GLR 171 at 175, the Supreme Court made a similar point, stating:

‘as to appeals from the exercise of the courts discretion, it is a rule of law deep rooted and well established that the Court of Appeal will not interfere with the exercise of the courts discretion save in exceptional circumstances.’

Order 16 rule 5 of the High Court Civil Procedure Rules 2004, C.I. 47 gives the court discretion at any stage of the proceedings to grant leave to amend the writ and a party’s pleadings. In his Ruling, the trial judge set out all the facts and explained why he came to his decision.

The defendant has not succeeded in showing that the trial judge overlooked any relevant considerations or committed any errors that warrant interfering with the exercise of his discretion.

Moreover, an application for amendment is an interlocutory application. If the defendant was dissatisfied with the Ruling, he could have appealed it within the 21 days permitted by the Rules. She did not do so but amended her own defence and in addition filed a counterclaim. Evidence centered on the amendments was received into evidence, and opportunity given to both sides to present their defence. So long as the evidence led was admissible to prove the facts alleged, and its admission at the trial was without objection, then its probative value could be assessed along with the other evidence before the court. It seems to me to be rather too late to raise this argument not because the appellant is not permitted to do so [See Rule 30 of C.I. 19 and Ankumah vs. City Investment Co Ltd [2007-2009] SCGLR 1064], but because the appellant is not challenging the admissibility or otherwise of the evidence. On the contrary, substantial submissions have been made in respect of the evidence thus adduced which will have to be addressed in this judgment.

We find no ground to interfere with the exercise of judicial discretion and accordingly dismiss this ground of appeal.

The second ground of appeal that was argued states that “the learned trial Judge erred in misconstruing the issues set down for trial when he mis-stated the figures claimed and also the issues set down for trial”.

I must confess that I am not sure that I understand this ground as couched. Be that as it may, what is clear from the submissions of defendants' counsel is that he bases his criticisms and submissions on the fact that the awards made by the trial judge appear to show that the learned judge misconstrued the issues he was called upon to determine. Defendants' counsel argues that the judge misconstrued the triable issues settled by the pre-trial judge.

So far as the issues were settled at the early stages in accordance with the rules of court, before plaintiff amended her writ and statement of claim and before the defendant filed a counterclaim, it was rational and indeed the duty of the trial judge to define any new issues raised by the amended pleadings and the evidence and determine them in order that the real issues between the parties may be completely determined. In that regard, it is not fair criticism that a trial judge considered issues raised by amendments.

Having said that, it has to be granted that had the trial judge more carefully looked at the terms of reference for the AESL and the issues that plaintiff's amendment raised; as to whether there was any ‘additional work’ done in excavating clayey soil etc. with extra cost, he may have avoided the errors in his conclusions which the defendants' counsel has demonstrated in his written submissions.

After perusing the 8 page submission dedicated to this ground of appeal, I am of the view that the matters raised by the defendant in this ground of appeal as relating to the findings made on the specific figures claimed by the plaintiff are better dealt with under the omnibus ground of appeal. I see little point in dissecting where the trial judge had misconstrued the issues since an appeal being by way of re-hearing, this court is obligated in any case, to evaluate the entire record of appeal.

The third ground of appeal argued is that the judgment is against the weight of evidence. This ground calls for an evaluation of the entire record of appeal so as to satisfy ourselves that the conclusions of the trial judge are reasonably or amply supported by the evidence. Cases which discuss the role of the appellate court whenever the omnibus ground of appeal is raised include Tuakwa v. Bosom [2001-2002] SCGLR 61, Djin vs Musah Baako [2007-2008] 1 SCGLR 686 and Oppong Kofi & ors vs. Attobrukusu III [2007-2008] 1 SCGLR 176. The defendant who as appellant has appealed on this ground carries the burden to demonstrate that indeed the Judgment is unreasonable having regard to the evidence on record. See the case of Ampomah vs Volta River Authority [1989-90] 2 GLR 28.

The defendants' counsel proceeded to discharge this burden in detail and with commendable industry. I propose to look at this ground of appeal under three sub-headings each devoted to the three separate jobs/works that were indicated in the pleadings and settled as triable issues, namely: (i)Inside filling and compactment, (ii) Construction of warehouse and (iii) Construction of drainage

It is a salutary principle of evidential law that the burden of persuasion is an obligation to establish a requisite degree of belief concerning a fact in the mind of the court and requires proof by a preponderance of the probabilities. [See sections 10 and 12 of the Evidence Act 1975, NRCD 323]. The general rule in civil cases is that the party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. [Bank of West Africa Ltd. vs. Ackun [1963] 1 GLR 1176 S.C, In re Will of Bremansu; Akonu-Baffoe & ors vs. Buaku & Vandyke [2012] 2 SCGLR 1313] Thus the plaintiff had a duty imposed by section 11(4) of Evidence Act ‘to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence’.

The trial judge identified the broad issues for trial as first, whether there was any agreement or contract at all between the parties for plaintiff to carry out various works, and secondly the issue as to price for those works.

With regard to the issue as to whether there had been agreement between the parties for the plaintiff to execute the three jobs, the trial judge after considering the factors apparent in the relationship between the parties, including earlier services performed by the plaintiff for the defendant, and the credibility of the witnesses came to the conclusion that the defendant had engaged the plaintiff to undertake certain works at her warehouse, albeit their agreement was not in writing.

We are satisfied, having reviewed the evidence, that this finding of fact is amply supported by the evidence on record. As stated in the judgment, “Evidence of categories, quantum and quality of works by plaintiff (not price) was….corroborated….” We come to the same conclusion that there were oral agreements to perform distinct works for the defendant; namely filling and compaction, construction of the warehouse and construction of drainage.

The difficulty of the trial judge lay in making a determination of the prices for each of the three works.

The core issue in this appeal therefore relates to the price/cost for those works undertaken by the plaintiff.

 

(i)            Inside filling and compaction

After a wearisome scrutiny and careful reading of the pleadings and evidence on the record in order to get a clear understanding of the components of plaintiff's claims, especially with regard to the additional claim for GH¢990,200.00, it is clear that the additional claim for GH¢990,200.00 was in respect of inside filling and compaction and NOT in respect of the construction of the warehouse. Confusion was created because the plaintiff described the new claim as forming part of the construction of the warehouse at paragraph 8 of the amended statement of claim.

However, the detailed averments in the paragraphs 8a – 8f makes clear that the total of GH¢1,240,200.00 related to “excavation and fill-in works within the warehouse and hard-core fill-in. Plaintiff arrived at the figure of GH¢990,200.00 by deducting the previously agreed price of GH¢250,000.00 for the filling and compaction from GH¢1,240,200.00 thus making it clear that the additional claim of GH¢990,200.00 related to the inside filling and compaction and not to the construction of the warehouse (for which the claim was an agreed price of GH¢400,000.00 with GH¢120,000.00 outstanding to be paid). More important, this deduction also showed that the new claim was not in respect of any new or sixth agreement, but to the already pleaded GH¢250,000.00 agreement.

The defendant's counsel contends that the issue of filling and compaction for which the plaintiff had claimed an outstanding balance of GH¢22,000.00 was not one of the areas of dispute since the defendant had admitted the agreement but only contested an outstanding amount thus merely requiring proof of monies paid.

Counsel further contends that the two areas where the parties had their dispute was the cost of construction of the warehouse and drainage where the defendant had denied contracts on them. Hence, the terms of reference for AESL related only to these two areas and not to any “additional works” or variation in contract.

These submissions are borne out by the record. It is recalled that for external works of digging out of clay and filling it with laterite and compacting it, the plaintiff had admitted to being paid the agreed price of GH¢79,000.00 at paragraph 6 of the amended statement of claim. The claim in respect of inside filling and compaction was for a balance of GH¢22,000.00 as plaintiff acknowledged that GH¢228,000.00 out of the agreed price of GH¢250,000.00 had been paid. The defendant only denied any outstanding amount, thus what was required was evidence of payment and not valuation.

The order appointing the AESL is at page 8 of the Record and states: “BY COURT:

The court hereby appoints a Quantity Surveyor from Architectural and Engineering Services Company Limited (AESL) to value the Warehouse and Drainage at Spintex Abattoir Motorway on Defendant's land constructed by plaintiff on behalf of defendant …”

The AESL report however states the scope of work they executed as:

a.    Site preparation and Filling Works

b.    Super structural works to Warehouse in Concrete works and Block work

c.     External works (Construction of Concrete U-drain)

Defendant's counsel thus makes good argument when he contends that the valuation for “site preparation and filling works” was not authorised by the court. The plaintiff however opportunistically amended her claim from GH¢250,000.00 to GH¢1,240,200.00 after the Report had been received which was after the plaintiff had closed her case without a mention of any additional cost. We do not think it is coincidence that the figure of GH¢1,240,200.00 claimed by the plaintiff is the exact amount quoted in the Report exhibit CE 1 at page 75a for excavations and filling works and hard-core filling. Indeed the plaintiff’s representative conceded in cross-examination that he had applied for the amendment on the basis of the Valuation Report.

An amendment in order to bring the pleadings in line with the evidence of the plaintiff is permissible in appropriate circumstances. In the present case however, the fresh claim was not in order to bring plaintiff's pleadings in line with the evidence of her witnesses but was contrived, in our view, solely on reliance on the findings in the Report.

To reconcile the two claims, the plaintiff asserted that subsequent to the initial inside filling and compaction for which GH¢250,000.00 had been agreed, it became apparent during the mounting of the steel structures that the foundation had uneven gradient thus necessitating excavation and carting of earth inside the warehouse. Plaintiff said the defendant asked her to do whatever was necessary. The resultant total cost was GH¢1,240,200.00 from which the plaintiff subtracts the initial GH¢250,000.00 to arrive at GH¢990,200.00. The plaintiff said this was not pleaded because of inadvertence in properly instructing counsel.

As the learned trial judge reiterated when he granted leave to amend, he found it incredible that the plaintiff who initiated the action could fail to advert his mind to parts of the trail of facts or events that formed part or arose from the same transaction.

Considering that in every one of the five different works/agreement that were pleaded, including even the ones for which the plaintiff conceded she had been fully paid, the plaintiff averred that the costs had been agreed, the assertion that the defendant had told the plaintiff to do what was necessary only in respect of the huge amount of GH¢990,200.00 together with the circumstances under which the amendment had been sought ought to have made the trial court extra careful in sifting the evidence to determine how the additional claim merged with the other claims.

The judgment is replete with comments which indicate that the trial judge was not impressed with plaintiff's evidence. For example, the learned judge lamented that;

“plaintiff's case was not put out in a concise clearly cut chronological manner. It was quite painstaking exercise for me to grasp the intricacies and distinctions of the works done by the plaintiff for defendant.”

Further on when examining the evidence in respect of plaintiff's claim for GH¢250,000.00 and

GH¢990,200.00 both for infilling and compaction, he said:

I have had initial difficulty reconciling the above piece of plaintiff's evidence as regards the works and the price quotation with plaintiff's earlier evidence apparently on the same work in the latter part of paragraph 7, and also paragraph 8 of his initial witness statement…”

Still not satisfied with the explanation offered by the plaintiff, he went on to say:

“There seems to me some inherent duplicity of claim here with respect to this cost of GH200,000.00 The only explanation apparent on record seems to me to be that having amended its writ of summons and statement of claim, which introduced facts underlying the claim of GH990,200.00 as integral part of its reliefs as endorsed on its amended writ of summons, the latter evidence in plaintiff's further witness statement is deemed to have rendered ineffectual the claim of GH200,000.00 and the evidence on the same subject contained in plaintiff's earlier witness statement. Having left unexplained, I find the claim of GH200,000 having been subsumed under the total alleged cost or claim of GH990,200 in the further amended witness statement.”

The law is that in case of doubt, the party who asserts must lose. See Abakam Effiana Family vs. Mbibado Effiana Family [1959] GLR 362, C.A. It is also settled that where evidence is unsatisfactory, the judgment should be in the defendants' favour on the ground that it is the plaintiff who seeks relief but has failed to prove what he claims Duagbor and Others vs. Akyea-Djamson [1984-86]1 GLR 697 C.A.

The plaintiffs' claim for GH¢990,200.00 ought therefore to have been dismissed as it was inconsistent with other evidence. It was not satisfactorily established that there had been any variation to the GH¢250,000.00 agreement which could be described as “additional works”. Moreso when the judge was so unconvinced of the sufficiency of proof that he had to juggle inconsistencies in plaintiffs' evidence to come to a conclusion on what was clearly a duplicitous claim.

Had the settled issues and AESL’s terms of reference been properly scrutinized, it would have been seen that AESL was appointed to assist the court in the two areas in dispute between the parties, namely whether there had been a contract to construct a warehouse and drainage and values for work done in these two areas. The scope of work AESL was required to do did not include an assessment of ‘Site preparation and filling works’. We therefore agree with the defendant that the amendment was an opportunistic effort to take advantage of the AESL report. The court ought to have looked at the claim cautiously as by it the plaintiff was alleging that she had in 2011 expended the exact 2015 AESL valuation figure although that report did not exist at the time the plaintiff commenced her action.

In the law of evidence, an expert witness is a witness who is allowed to give opinion evidence as opposed to evidence of his perception. It is trite learning that a trial court is not bound to accept expert evidence. The court of appeal in Sasu v. White Cross Insurance Co. Ltd. [1960] GLR 4 held that “expert evidence is to be received with reserve, and does not absolve a judge from forming his own opinion on the evidence as a whole.”

The trial judge was therefore on the right track when he made this statement at the conclusion of the judgment indicating that the opinion of the court witness CW1 was not decisive. He said:

“I do not intend to negate the testimony of CW1. Indeed it confirms some of the critical issues of controversy, particularly as regards whether indeed plaintiff did undertake some works at the premises of defendant for defendant, but I have quite difficulty substituting the values of works in place of plaintiff's own claims in this suit.”

Having said this, and in spite of his dissatisfaction with the case of the plaintiff, it is surprising that the trial judge failed to give critical consideration to the issues relevant to the claim for additional cost.

We are of opinion that the learned trial judge erred in accepting the opinion in the report and entering

judgment for the plaintiff company in respect of the 4th relief against his own unease with the evidence adduced by plaintiff in support of it. A critical review of documentation on record and the cross examination of CW1 would also have revealed that AESL had exceeded its terms of reference in reporting on an area which had not been identified as a contentious issue by the court.

The important question however is, having amended her claim, was plaintiff able to adduce convincing evidence to establish the claim for GH¢1,240,200.00 less GH¢250,000.00? As stated earlier, once admissible evidence has been led in respect of a claim, the court's duty is to assess the evidence for its probative value and determine whether on the totality of the evidence the standard of proof required from the plaintiff had been reached.

The award of GH¢990,200.00 was not grounded on the trial court’s assessment of the credibility or observation of the demeanour of the witnesses, therefore this court is in the same position as the trial court to evaluate the evidence, make inferences from the facts and evidence and come to its own conclusion. Duah vs. Yorkwa [1993-94] 1 GLR 217 C.A.

The price/cost admitted by both parties to have been agreed for infilling and compaction was GH¢250,000.00 From the evidence and chronology of events this filling with laterite and compaction of the warehouse floor was done so that the steel frames could be fitted properly. In fact the AESL Report said this was done preparatory to construction. The judgment also noted that these were done at the foundation stage. The evidence shows that the steel frames had been fitted by SIVALCO and from the plaintiffs' own evidence; she was using hollow blocks to fill the steel structure and complete the construction of the warehouse (cladding) and had even started plastering portions of it before she was ordered to stop. That is a clear indication that at the stage of stoppage, the site had been prepared and the steel structure for which the floor had to be excavated and compacted so the structure could be properly fixed must necessarily have been completed.

The point sought to be made is that plaintiffs' claim is not convincing because the preparatory work for which she is claiming GH¢1,240,200.00 had obviously been completed at an earlier stage, yet her letter to the defendants' making a demand for outstanding debts prior to institution of the action had been silent on this colossal amount. Furthermore plaintiff had ‘inadvertently’ failed to make this claim until after the AESL had assessed the total value of warehouse. It is clear to us that this claim was an afterthought.

It bears repeating that the plaintiff had sued for specific fixed contract amounts on the basis of oral agreements and not for values as assessed in 2015 by AESL. The valuation report was merely to assist the court in coming to a decision on quantum meruit basis for work done by plaintiff before she was ordered to stop. Therefore, as was rightly held by the trial court, the Report could not be a substitute for the claims specifically made by the plaintiff.

It is obvious from the record that the claim for GH¢990,200.00 was reliant solely on the valuation report and with little to corroborate the claim such that a reasonable mind could conclude that it was more probable than not that the plaintiff, without agreement with the defendant, had expended GH¢990,200.00 over and above the GH¢250,000.00 agreed contract sum on filling and compaction, not forgetting also that plaintiff had averred that she had also been paid an agreed GH¢79,000.00 for external works of digging clay and filling it with laterite and compacting it.

On the basis of the reasons given above, we find that claim not proved to the required standard and accordingly allow the appeal in respect of plaintiff's reliefs 4 and 5, that is, the award of GH¢990,200.00 with interest thereon.

 

(ii)   Construction of warehouse

The plaintiffs' claim in respect of the construction of the warehouse with hollow blocks was an agreed price of GH¢400,000.00 with GH¢200,000.00 paid. Plaintiff however claimed that as at time she was ordered to stop, she had done GH¢320,000.00 worth of work and so claimed GH¢120,000.00

The court however awarded the plaintiff GH¢200,000.00 under this head. A total sum of GH¢262,497.00 was awarded for the claims comprised in the first relief on the writ of summons. GH¢62,497.00 was clearly stated to be for the drainage. The claim for filling and compaction had been merged with the fresh claim to arrive at GH¢990,200.00 and dealt with separately. We surmise therefore that the remaining GH¢200,000.00 of the GH¢262,497.00 was for the warehouse construction.

This was a claim in quantum meruit, like the claim in respect of work done on the drainage. The submission of defendant’s counsel that the principle of quantum meruit is not applicable because the plaintiff had gone beyond their contract to construct the warehouse, and also that the defendant had not been enriched unjustly as she had had to pull down what the plaintiff had constructed with hollow blocks is flawed. The reason is that the court had found as fact that the parties had an agreement, and found that the plaintiff had partly performed her side of the agreement. Furthermore, the defendant had not proved her counterclaim that she pulled down the work done by the plaintiff. On the facts as established therefore, the plaintiff was entitled to claim for work done.

It was for this reason that the court appointed AESL to do a valuation. The value put on this aspect of the work was stated to be GH¢273,131.54. This figure is inclusive of GH¢127,947.54 for concrete work, GH¢110,376.00 for block work and GH¢34,808.00 for finishing. See page 325 of the Record.

The defendant’s counsel submits that the computation of the trial judge was in error. It is contended that as the plaintiff did not claim to have done concrete works or finishing but only did the block work and that even not to completion, the amount of GH¢110,376.00 as the 2015 value of the block work was what the plaintiff would be entitled to at best. However, as the plaintiff had admitted receiving GH¢200,000.00 out of the agreed GH¢400,000.00 for that work, it meant the plaintiff had been overpaid by GH¢89,624.00 which ought to have been awarded to the defendant on her counterclaim.

I am not persuaded to accept this argument of the defendant for the simple reason that a mixture of technical and common terms have been used to describe the works done by the plaintiff. In my view, the proper place to have established whether what were described as concrete works, block works and finishing in the Report were part of ‘warehouse construction’ as plaintiffs' works was described; was during cross examination of the witnesses. 

The distinction the defendant seeks to make is not clear on the record. Accordingly, the total figure of GH¢273,131.54.00 as the value of work done on the warehouse will be accepted. However, having admitted that she had already been paid GH¢200,000.00 for that work, the plaintiff is only entitled to recover the balance of GH¢73,131.54 for work done.

 

iii.   Drainage

In respect of drainage, the Plaintiff alleged GH¢170,000.00 as agreed price/cost but said she had done GH¢120,000.00 worth i.e. 75% of the work and so claimed GH¢120,000.00. The Report CE1 however estimated the value of that work as GH¢62,497.00 which the trial court accepted.

Like the construction of the warehouse, the defendant had denied this contract with the plaintiff. However, having found as fact that there was a contract, the plaintiff was entitled to recover reasonable payment for the value of work done on quantum meruit basis. [See S.A. Turqui & Bros vs. Lamptey (1961) 1GLR 190]

We reject the argument of the defendant that because the plaintiff claimed to have done 75% of the drainage, therefore she was entitled to 75% of the GH¢62,497.00 assessed. This argument is flawed as the defendant did not allege or prove that a different contractor had added to the work done by the plaintiff.

We think the award of GH¢62,497.00.00 for part construction of the Drainage to be fair and uphold it.

 

Conclusion

We agree with the learned trial judge that the defendant made little effort to prove the counterclaim and rightly dismissed same.

As to the claims of the plaintiff, in summary, we confirm the award of GH¢62,497.00 in respect of the construction of the concrete U-drain. The award of GH¢200,000.00 for warehouse construction/cladding with hollow blocks is reversed and substituted thereof with GH¢73,131.54.00. The award of GH¢990,200.00 as additional cost for excavating and carting away and hard-core filling is set aside as unproven on the evidence. It will be substituted with an award of GH¢22,000.00 to the plaintiff as the amount found outstanding on the agreed price of GH¢250,000.00 for excavation, filling and compactment. We do so because the defendant on admitting that contract BUT asserting that she had fully paid the plaintiff, bore the burden to prove the payments but could not clearly show by the cheques and evidence presented that she had paid the full GH¢250,000.00.

The total recoverable by the plaintiff from the defendant is thus adjudged to be GH¢157,628.54.

Interest is payable on the said sum of GH¢157,628.54 from April 2013 up to date of final payment.

The appeal succeeds in part.