IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
KUMASI - A.D 2018
P.K. OWUSU TRADING AND CONSTRUCTION - (Plaintiff/Appellant) vs.
EJISU-JUABEN DISTRICT ASSEMBLY - (Defendant/Respondent)
DATE: 23 RD JULY, 2018
SUIT NO: H1/69/2017
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, WELBOURNE (MRS) JA
DENNIS KWAME KWAKYE FOR PLAINTIFF/APPELLANT
ASIEDU BASOAH FOR DEFENDANT/RESPONDENT
ADUAMA OSEI JA:
In this judgment, the Plaintiff/Appellant will be called “the Plaintiff” and the Defendant/Respondent will be called “the Defendant”.
By its writ of summons issued in the Commercial Division of the High Court, Kumasi, on the 19th of August, 2010, the Plaintiff claimed against the Defendant the sum of GH¢54,000.00 “being outstanding cost for the construction of market stalls/stores which the Defendant caused the Plaintiff to construct through pre-finance arrangement with the Plaintiff and which the Plaintiff has completed but the Defendant has failed to reimburse the Plaintiff despite repeated demands”. The Plaintiff also claimed interest on the sum claimed from November, 2008 till date of final payment.
In the statement of claim which accompanied the writ of summons, the Plaintiff alleged that pursuant to an agreement it made with the Defendant, it constructed 102 stalls and 25 stores for the Defendant on a pre-finance basis. The Plaintiff alleged that after it had completed the project, with the permission of the Defendant, it sold some of the stalls and stores to enable it “pay some debtors who were putting pressure” on it. The Plaintiff alleged that after selling the stalls and stores as agreed with the Defendant, the Defendant remained indebted to it in the sum of GH¢54,000.00 in respect of the project. The Plaintiff alleged further that even though the Defendant had put tenants in occupation of the stalls and stores and was benefiting from the project, the Defendant had failed to pay the said sum of GH¢54,000.00 in spite of repeated demands. The Plaintiff also alleged that the Defendant executed a document requiring it (the Defendant) to make payments for the project in the names of the Plaintiff and the National Investment Bank and that the conduct of the Defendant in failing to make payments had resulted in the Plaintiff’s bankers refusing to grant it facilities to enable it execute its new projects.
In answer to the allegations made by the Plaintiff, the Defendant contended in its statement of defence and counterclaim that there was no contractual agreement between it and the Plaintiff. The Defendant alleged that in response to an offer made to it on the 17th of October, 2017 by the Plaintiff for the construction of stalls in the central portion of the Ejisu market, the Defendant on the 26th of March, 2008, made a counter-proposal requiring the Plaintiff to construct for it 132 stalls at a contract sum of GH¢79,200.00. The Plaintiff however rejected the Defendant’s counter-proposal by its letter of 27th March, 2008, leaving the parties with no contractual agreement.
The Defendant contended that the construction of 102 stalls and 25 lockable stores by the Plaintiff was undertaken without its consent and was also contrary to the proposal it had made to the Plaintiff for the construction of 132 stalls, which proposal the Plaintiff had rejected. The Defendant contended further that if there was any contract between it and the Plaintiff, it could only be based on its proposal of 26th March, 2008, which required the Plaintiff to construct 132 stalls. The Defendant contended that by constructing 102 stalls and 25 lockable stores without its consent or authority, the Plaintiff had varied the terms and was in breach of such contract.
The Defendant alleged again that the Plaintiff failed to pave the open spaces between the sheds that contained the stalls, and also sold the stalls and lockable stores to prospective buyers without accounting to the Defendant. The Defendant alleged that it had incurred losses as a result of the conduct of the Plaintiff and was therefore entitled to compensation from the Plaintiff. The Defendant accordingly counterclaimed against the Plaintiff for:
“i a) An order that there is no existing contract between the Plaintiff and the Defendant or in the alternative
b) An order that the Plaintiff has breached any purported contract that existed between the Plaintiff and the Defendant and he is as a result entitled to damages or in the alternative,
“ii General damages against the Plaintiff for trespass.
“iii. An order compelling the Plaintiff to account for all monies it has received from the sale of the stalls and the lockable stores.
“iv. An order restraining the Plaintiff its agents, officers, assigns, workmen and all who claim through and or under the Plaintiff from selling and or dealing with the stalls and the lockable stores the property of the Defendant in a manner that is detrimental adverse and or inimical to the interest of the Defendant.
“v. Any order(s) as the Court may deem fit to make”.
The pre-trial settlement effort failed and in consequence, the pre-trial judge set down the following as the issues for trial:
“1. Whether or not the Plaintiff entered into a pre-finance contract arrangement with the Defendant for the construction of stalls/stores.
“2. Whether or not the Plaintiff performed the contract to specification within the terms of the agreement.
“3. Whether or not the Plaintiff was permitted by the Defendant to sell some of the completed stalls/stores to offset part of the construction cost.
“4. Whether or not the Plaintiff has rendered account for the sale of the stalls/stores to the Defendant.
“5. Whether or not the Plaintiff has unilaterally without the consent of the Defendant varied the terms of the agreement thereby breaching the contract.
“6. Whether or not the Plaintiff is entitled to his claims endorsed on the writ of summons.
“7. Whether or not the Defendant is entitled to its counterclaim”.
In its judgment dated the 25th of January, 2016, the trial Court found that there was an existing contract between the Plaintiff and the Defendant and entered judgment for the Plaintiff against the Defendant for:
(a) the sum of sixteen thousand Ghana Cedis (GH¢16,000.00) being the cost of four (4) lockable shops at four thousand Ghana Cedis (GH¢4,000.00) per shop, and
(b) the sum of thirty-one thousand five hundred Ghana Cedis (GH¢31,500.00) being the cost of forty-five (45) stalls at the inflation price of seven hundred Ghana Cedis (GH¢700.00) a stall.
The trial Court refused to grant the Plaintiff relief (c) indorsed on its writ of summons, which was for an order to value the project. The trial Court dismissed the said relief and also refused to award interest to the Plaintiff. The Defendant’s counterclaim was also dismissed.
The Plaintiff was however aggrieved by the trial Court’s refusal to grant it the full reliefs indorsed on its writ of summons and has appealed to this Court seeking an order setting aside the judgment of the trial Court and granting the reliefs of the Plaintiff in full. The Defendant was also aggrieved by the judgment of the trial Court and he has filed a cross-appeal to the Plaintiff’s appeal.
By its cross-appeal, the Defendant is praying this Court to set aside the judgment of the trial Court and all consequential orders made thereunder and enter judgment in its favour.
The judgment appealed against is at page 398 to page 446 of the appeal record, and the notice of appeal filed by the Plaintiff is at pages 447 and 448 of the same record. The grounds of objection indorsed on the notice of appeal are that:
“a) The learned trial judge erred when she refused or failed to grant the reliefs or the claim sought by the Plaintiff in full in the face of abundant evidence in support of same.
“b) The Honourable Trial Court erred when it failed to order a valuation of the subject property as at the time the disputed property was completed as well as its present value.
“c) The learned trial judge erred by not ordering the Defendant/Respondent to pay interest in respect of the amount claimed by the Plaintiff/Appellant from November, 2008 to date of final payment.
“d) The Honourable Court erred when it held that the Plaintiff/Appellant was not entitled to interest in the face of the findings of fact regarding the conduct of the Defendant/Respondent when it failed to mitigate the losses in respect f the 4 stores and 45 stalls.
“e) The Honourable trial judge erred by awarding a paltry amount of Two Thousand Ghana Cedis (GH¢2,000.00) as costs without considering the necessary facts in respect of this case and award of cost.
“f) The judgment is against the weight of evidence on record.
“g) Additional grounds to be filed upon receipt of the record of appeal”.
The Defendant’s notice of cross-appeal is found at pages 449 and 450 of the appeal record and the substantive ground indorsed on it is that the judgment was against the weight of evidence. Subsequent to the filing of the cross-appeal, the defendant on the 19th of August, 2016, filed a process headed, “Additional Grounds of Cross Appeal” and indicated that at the hearing of the appeal, it would seek leave to argue 8 additional grounds in support of the cross-appeal.
It is noted however, that Counsel for the Plaintiff has filed a process headed, a “Reply to the Defendant/Respondent’s Written Submissions Dated 07/08/17”, in which he questions the regularity of the notice of cross- appeal. The basis of Counsel’s objection to the notice of cross- appeal is rule 15(1) of CI. 19, and I find it helpful at this point to reproduce the whole of rule 15:
“15 (1) It is not necessary for the respondent to give notice by way of cross-appeal, but if a respondent intends on the hearing of the appeal to contend that the decision of the court below should be varied, the respondent shall give, within one month after service of the notice of appeal, written notice in the Form 7 set out in Part One of the Schedule of that intention to every party who may be affected by the contention.
”(2) The respondent shall clearly state in the written notice the grounds on which the respondent intends to rely and within the same period shall file with the Registrar of the court below five copies of the notice, one of which shall be included in the record.
“(3) Omission to give the written notice shall not affect the powers of the Court, but the Court may consider it a ground for adjournment of the appeal on the terms that, as regards costs or otherwise, the Court considers just”.
In the view of Counsel for the Plaintiff, by rule 15(1), a notice of cross-appeal is no longer a process by which an appeal may be initiated. Counsel considers that after his notice of appeal had been served on the Defendant, what the Defendant should have done was to serve a notice of its intention to seek a variation of the judgment of the Court below. Counsel has contended that the Defendant’s filing of a notice of cross-appeal in spite of rule 15(1) of CI. 19 is a fundamental irregularity which may not be waived under rule 63 of CI. 19. He has submitted that, in the circumstance, the notice of cross-appeal filed by the defendant ought to be set aside.
To my mind, to contend that a notice of cross-appeal is no longer a process by which an appeal may be initiated and go further to submit that the filing of that process by the Defendant constitutes a fundamental irregularity which cannot be waived under rule 63 of CI. 19, and which must necessarily be set aside, is to suggest that the cross-appeal procedure has been abolished by rule 15(1) of CI. 19. I do not think, however, that this is the position.
Black’s Law Dictionary 8th Edition, defines “appeal” as a “proceeding undertaken to have a decision reconsidered by a higher authority, especially the submission of a lower court’s or agency’s decision to a higher court for review and possible reversal”. It also defines “cross-appeal” as an “appeal by the appellee, usually heard at the same time as the appellant’s appeal”.
About the “appeal” and “cross-appeal” procedures, the Legal Information Institute of the Cornell School of Law observes:
“A cross-appeal is a request filed by an appellee requesting that a higher court review a decision made by a lower court. The difference between an appeal and a cross-appeal is essentially arbitrary and dependent only on who filed the request for a higher court's review first. The first party to file is called the petitioner or appellant, and its request for review is an appeal. If an opposing party (called the respondent or appellee) also wishes to request review of a lower court's decision, that request is called a cross-appeal.
“It may be helpful to think of these terms' equivalents in civil trials. In a civil trial action, the plaintiff files a claim against the defendant. If the defendant has claims against the plaintiff, it may file a counterclaim. Again, the terminology is arbitrary and dependent only on which party filed its complaint or request first”.
It is clear from Black’s and Cornell (above) that appeals and cross-appeals are essentially the same procedures, the only difference between them being in respect of which of them was the first to be filed.
William Blackstone is noted to have observed in the eighteenth century in his Commentaries on the Laws of England that appeals existed as a form of error correction in the common law during the reign of Edward III, who was King of England and Lord of Ireland from January, 1327. This points to several centuries of the subsistence in the common law jurisdiction of the appeal procedure, which is no different from the cross-appeal except that, as just noted, it is initiated by the appellee or respondent.
Now, as we are well aware, there is a presumption against changes in the common law, and it will take an express provision in a statute to change an established common law principle. In my view, an intention to abolish a long established common law practice such as the cross-appeal will not be expressed in the language we find in rule 15(1) of CI. 19. To say that a process is not necessary is merely to say that it is dispensable. And to say that a process is dispensable, is not to say that it is ineffectual if resorted to. All it says is that it may be dispensed with.
Also if we acknowledge that appeals and cross-appeals are essentially the same, then it goes without saying that under its article 33, the 1992 Constitution protects the right of an aggrieved respondent in an appeal to seek redress by way of cross-appeal. Such a right cannot be taken away by a mere constitutional instrument.
Having made the point that by its terms, rule 15(1) of CI. 19 is incapable of abolishing the cross-appeal procedure, I will proceed to demonstrate that, reading rule 15 as a whole, the sub-rule cannot even be said to have been intended to abolish the cross-appeal procedure, and further, that having regard to the reliefs it was seeking, the Defendant’s resort to the cross-appeal process was not unwarranted.
It is noted that having stated that it is not necessary to give notice by way of cross-appeal, rule 15(1) goes on to provide that a respondent who intends to contend on the hearing of the appeal that the decision of the Court below should be varied, should give notice in the Form 7 set out in Part One of the Schedule. It is noted that the sub-rule is specific as to when a respondent may file a notice as in Form 7 – this is when the respondent intends
“on the hearing of the appeal to contend that the decision of the court below should be varied”. But what about a respondent who is seeking a relief or reliefs beyond mere variation? To my mind, what rule 15(1) means, upon its proper construction, is that where the reliefs the respondent is seeking are for a variation of the decision of the trial Court, then it shall not be necessary for him to give notice by way of cross-appeal. This preserves his right to cross-appeal where he seeks reliefs beyond mere variation.
Among the entries under “vary” in Chambers’s Twentieth Century Dictionary (Revised Edition), are “make different”, “to diversify”, “modify”, “to alter or embellish”, and “to change to something else”. The Merriam-Webster Dictionary also lists the following among the definitions of “vary” - “to be different” or “to become different”, “to make (something) different”, “to make changes to (something) so that it is not always the same”, and “to make a partial change in”.
It is clear, reading the various definitions of “vary” listed above, that when we seek a variation of something, we are not necessarily seeking to have it changed to an opposite state or condition. We may be intending only to have it modified, or altered, or make partial changes to it, as opposed to seeking its reversal. When rule 15(1) requires of a respondent that he files a notice as in form 7 when he seeks a variation of the decision of the Court below on the hearing of the appeal, therefore, that requirement cannot be read as precluding a respondent who intends to seek a reversal of the decision from filing a notice of cross-appeal.
I find an illustrative case in the Nigerian case of Chief F.R.A. Williams Vs. Daily Times of Nigeria Limited (S.C. 21/1987)  NGSC 55 (9 January 1990). Order 8, rule 3(1) of the Nigerian Supreme Court Rules, 1985 provides that a respondent
“who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in part, must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event, as the case may be”.
Counsel for the defendant in that case did not file a notice of appeal or a notice of cross-appeal, but only relied on a respondent’s notice filed pursuant to rule 3(1) quoted above. The plaintiff reacted to the defendant’s notice by raising as an issue: “In what circumstances, if any, can a defendant who succeeded in persuading the Court of Appeal to reduce the amount of damages awarded by the High Court in favour of the plaintiff, be permitted to argue before the Supreme Court for an order for further reduction if he files no notice of appeal but relies only on a Respondent’s Notice filed pursuant to Order 8, rule 3(1) of the Supreme Court Rules, 1985?”
The plaintiff’s contention was that a party is entitled to appeal if he considers that the award of damages is too high or too low. He considered it inconceivable that where a plaintiff has appealed against an award by the High Court on the ground that the damages awarded are too low, all that a defendant who intends to argue in the appeal that the award is too high need do is to file a respondent’s notice. In his view, if the respondent wishes to contend that the decision of the court is erroneous in law, he can only do so by a substantive appeal, not by filing a respondent’s notice.
The Nigerian Supreme Court upheld the position of the plaintiff and held that where there is a complaint against the decision in whole or in part, the aggrieved respondent had to file a substantive cross-appeal, not a respondent’s notice as provided by Order 8, rule 3(1). The sub-rule was properly interpreted as confined only to the situation where the respondent intends to retain the decision but wishes it varied or confirmed on other grounds. The opening sentence of the sub-rule that it shall not be necessary for the respondent to give notice of appeal was considered by the Court as only emphasising the need to dispense with notice of cross-appeal where variation or confirmation is all that is sought.
Rule 15(1) of our CI. 19 shares with the Nigerian rule, the provision regarding dispensability, and I regard the Nigerian decision as confirming my own view that with rule 15(1) of CI. 19, a notice of cross-appeal has not ceased to be a process by which an appeal may be initiated. .
Now, as it turns out, the Defendant in the present case is not seeking a mere variation of the judgment of the trial Court. It states in its notice of cross-appeal that its appeal is against “the whole of the judgment and all consequential orders” of the trial Court, and it also states that the relief it is seeking is for the said judgment and its consequential orders to be set aside. Considering the purpose of its appeal and the relief it is seeking in the appeal, the procedure provided by rule 15(1) of CI. 19, in my view, does not avail it, and it has done the right thing by filing a notice of cross-appeal. That notice is valid and will not be set aside.
But this does not end the matter about the notice of cross-appeal. We have noted above that subsequent to the filing of the notice of cross-appeal, the defendant filed a process headed, “Additional Grounds of Cross Appeal” and indicated an intention to seek leave to argue 8 additional grounds on the hearing of the appeal. There is no indication that this Court has granted leave to the Defendant to argue the additional grounds, yet arguments have been advanced under the said grounds in the written submission filed by its Counsel.
Now, rule 8(8) of CI. 19, provides that “(t)he appellant shall not, without the leave of the Court, urge or be heard in support of a ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal on the terms that the Court thinks just”.
Noting that appeals and cross-appeals are essentially the same procedures, we will acknowledge that a cross-appellant is in the same position as an appellant, and that a notice of cross-appeal would have the same legal significance as a notice of appeal. A ground of objection not mentioned in a notice of cross-appeal is therefore the same as a ground of objection not mentioned in a notice of appeal. If therefore an appellant, without leave of the Court, shall not urge on the Court a ground of objection not mentioned in the notice of appeal, a cross-appellant is equally precluded in respect of a ground of objection not mentioned in his notice of cross- appeal.
This Court recalls the case of Kumasi Metropolitan Assembly Vs. Peter Osei Assibey and Another, Civil Appeal No. H1/66/2012, in which the 1st defendant/appellant having set out three grounds of objection in his notice of appeal, subsequently filed a notice setting out three other grounds as additional grounds. In his written submission, his Counsel only drew this Court’s attention to the said grounds and made a request to the Court as follows:
“My Lords, may I respectfully with leave of this Court argue these additional grounds particularly as the Plaintiff/Respondent and the 2nd Defendant/Appellant had both been served with same.”
Having made that request, Counsel went ahead to urge those grounds on this Court in substitution for the grounds contained in his notice of appeal.
But in its unreported judgment in that case dated the 27th of February, 2018, this Court minced no words in pointing out to Counsel that he was proceeding as if he was entitled to leave as a matter of course, which he was not. As we emphasised in our said judgment, the leave which an appellant must obtain to be entitled to urge on the Court a ground of objection which is not mentioned in the notice of appeal “is not one that may be taken for granted”. We addressed the appellant in that case in the following words:
“The appellant ought to apply for leave to amend his grounds of appeal to include the intended additional grounds, and the Court may refuse the application or grant same upon terms. In proceeding the way he did in the present case, Counsel was discounting this Court’s power to refuse his application for leave or to impose terms even if leave was granted”.
The above-quoted words go to the Defendant herein as well. The Defendant ought to have applied for leave to amend its notice of cross-appeal to include the 8 grounds it intended to argue in addition. From the wording of rule 8(8), it does not matter that the additional grounds were filed before the appeal record was received. Our view therefore is that the 8 additional grounds filed on behalf of the Defendant herein are not properly before the Court.
Now, under rule 63 of the Rules of this Court, even though failure to comply with the Rules or a rule of practice or procedure may constitute a bar to the further prosecution of proceedings, the Court has power to waive such non-compliance to allow further prosecution to go on. This power will however not be exercised unless appropriate circumstances therefor exist. Indeed, in the unreported case of Kumasi Metropolitan Assembly Vs, Peter Osei Assibey and Another mentioned above, this Court applied rule 63 and waived the 1st defendant’s non-compliance. But the Court was able to waive non-compliance in that case because it considered it appropriate, in the circumstances of that case, to do so.
In that case, Counsel for the 1st defendant had filed the additional grounds on 13th June, 2011, and had filed his written submission in which the said grounds had been argued on 22nd February, 2012. Also, the plaintiff in that case had filed his written submission in response to the 1st Defendant’s submission on 26th April, 2012 and had adverted to the additional grounds without objecting to the arguments advanced under those grounds. Aspects of the arguments advanced under those grounds had indeed been responded to by Counsel for the Plaintiff. It was clear in that case that the plaintiff had had sufficient opportunity to contest the additional grounds filed on behalf of the 1st defendant and this Court considered that the arguments advanced under those grounds could be considered without occasioning an injustice to the plaintiff therein. The 1st defendant’s additional grounds were therefore considered in the judgment.
In the present case, however, the Plaintiff has not reacted to the arguments advanced, without leave, by the Defendant, and the Plaintiff’s side of the said arguments not being before this Court, we see a real possibility of occasioning an injustice to the Plaintiff if rule 63 of CI. 19 is applied. Even though this Court would normally prefer to hear or determine a matter before it on the merits, it will not do so at the expense of causing an injustice to the other party in the case. The Court will therefore not exercise its discretion under rule 63, and the arguments urged in support of the irregularly filed additional grounds will not be considered in this judgment. For the Defendant, therefore, the sole ground on which it is questioning the judgment of the trial Court is that it is against the weight of the evidence.
In his written submission in support of the appeal, Counsel for the Plaintiff argued grounds (a) and (f) together, and also argued grounds (c) and (d) together. Ground (b) which contends that “the trial Court erred when he failed to order a valuation of the subject property as at the time the disputed property was completed as well as the present value”, was abandoned.
Arguing the combined grounds (a) and (f), Counsel contended that the contest between the parties in the Court below revolved around the validity and enforceability of the contract the parties entered into. He was of the view that the case involved determining whether there was a valid contract between the parties, and if there was, which of the parties owed the other under the contract. He noted that while the Plaintiff asserted that there was a valid contract between the parties and that the sum of GH¢54,000.00 was due to it under the contract, the Defendant contended that there was no valid contract between them and that even if there was, the Plaintiff benefited from it over and above what it should have been entitled to and was obliged to refund the excess to the Defendant.
Counsel for the Plaintiff referred to portions of the evidence on record and contended that reading the evidence on record in its entirety, the preponderance of the probability favoured the position of the Plaintiff, rather than the Defendant’s. Counsel observed that if the position of the Plaintiff was upheld, it would be clear that the Defendant was indebted to the Plaintiff in the sum of GH¢54,000.00 under the contract, and that the trial Court was in error in awarding the PlaintiffGH¢47,500.00 instead of the GH¢54,000.00 it claimed. He submitted that the Plaintiff is in the circumstance entitled to a variation of the judgment sum from GH¢47,500.00 to GH¢54,000.00 as indorsed on its amended writ of summons.
Counsel contended that the Plaintiff had succeeded in establishing the basis and justification for its claim for GH¢54,000.00 and that, having done so, the onus shifted on to the Defendant to adduce sufficient evidence in rebuttal of the Plaintiff’s position. Counsel submitted that the Defendant had however failed to do so. In the view of Counsel for the Plaintiff, therefore, on a balance of the probabilities, the Plaintiff ought to have been adjudged to be entitled to GH¢54,000.00, and not GH¢47,500.00 as held by the trial Court.
Counsel observed that the sum of GH¢47,500.00 awarded by the trial Court was a product of a failed negotiated settlement the evidence on which had been wrongly admitted by the trial Court. It was therefore wrongful for the trial Court to rely on it. Also, since GH¢47,500.00 was not the sum claimed by the Plaintiff by its amended writ of summons, in awarding that sum to the Plaintiff instead of the GH¢54,000.00 it had claimed, the trial Court had of its own motion substituted a case contrary to what the Plaintiff had put forward.
Under the combined grounds (c) and (d), Counsel submitted that the Plaintiff was entitled to be awarded interest. Counsel contended that in denying interest to the Plaintiff, the trial Court expressed the view that awarding interest to the Plaintiff would amount to enriching the Plaintiff unjustifiably. Counsel contended however that the evidence on record did not support the trial Court’s view that the Plaintiff had fraudulently or unjustifiably enriched itself in the transaction. Counsel noted that in its judgment, the trial Court had adverted to the time-honoured principle applied by the courts in awarding interest. This was where the omission or commission by the defendant had led to the plaintiff being deprived of money due him, such money, if it had been paid when it was due, could yield some income by way of profit if he either worked with it or even left it in a savings account.
Counsel submitted that in the present case, the Defendant unjustifiably denied the Plaintiff the fruits of its labour, having made the Plaintiff pre-finance the project. Counsel considered that in the circumstance, even though award of interest is discretionary, such discretion ought to be exercised in a fair manner, and this would entitle the Plaintiff to an award of interest. Counsel for the Plaintiff urged this Court to reverse the decision of the trial Court in respect of relief (b), which it denied, and award interest on the sum of GH¢54,000.00 in terms of the provisions of the Court (Award of Interest and post-judgment Interest) Rules, 2000, CI. 52.
Regarding the Defendant’s cross-appeal, Counsel for the Plaintiff submitted that by contending under its sole ground of appeal that the judgment is against the weight of evidence, the Defendant assumed the duty and burden of showing that the judgment of the trial Court was in fact against the weight of evidence. Counsel observed that the Defendant was inviting this Court to review the case and set aside the judgment of the trial Court and all consequential orders and grant judgment in its favour.
While noting that no written submission had been filed by the Defendant in respect of the cross-appeal at the time the Plaintiff’s submission was filed, Counsel for the Plaintiff contended that in the light of the points canvassed on behalf of the Plaintiff in the Plaintiff’s appeal, this Court ought not entertain the reliefs sought by the Defendant in the cross-appeal.
Responding to the Plaintiff’s grounds (a) and (f), Counsel for the Defendant observed that, from the evidence, the Plaintiff had clearly made an offer to construct 132 stalls, including drains around the buildings, at a cost of GH¢600.00 per stall. The proposed estimated cost of the works was therefore GH¢¢79,200.00. Counsel observed further that the Defendant had however made a counter-offer by including pavement between the sheds that were to be constructed. Counsel observed again that by the Defendant’s counter-offer, upon completion of the work, payment was to be made from monies made from allocations to prospective traders. Counsel contended that in effect, the Plaintiff was to pre-finance the project but was to be reimbursed by the Defendant from the proceeds of the allocations. This counter-offer, Counsel contended, was accepted by the Plaintiff.
Contrary to its acceptance of the counter-offer, however, the Plaintiff constructed 102 stalls and 25 stores without drains, and without pavement. The Plaintiff also allocated or sold the stores at a price of GH¢700.00, and the stores at a price of GH¢4,000.00. In the view of Counsel, the trial Court was in the circumstance right in finding that the Plaintiff had unilaterally allocated the stalls, increased the price from the agreed GH¢600.00 to GH¢700.00, and pegged the price of each store at GH¢4,000.00.
Counsel contended that the Plaintiff’s claims in respect of the stalls were rebutted by the Defendant and the trial Court did not err when it refused to grant relief (a) indorsed on its amended writ of summons. Counsel contended that the Plaintiff failed to lead any evidence to prove the debt of GH¢54,000.00.
Counsel however observed that there were so many inconsistencies in the Plaintiff’s claim that the trial court’s order requiring the Defendant to pay for 4 stores and 45 stalls cannot be considered justifiable.
Responding to grounds (c) and (d) of the Plaintiff’s appeal, which contended that the trial Court ought to have awarded interest to the Plaintiff, Counsel submitted that the grant or refusal of a claim for interest was a matter for the discretion of the Court. In the view of Counsel, the trial Court exercised its discretion on the basis of the material before it. Counsel contended that unless the trial Court was found to have exercised this discretion irregularly, this Court would not interfere with the exercise of that discretion. In the view of Counsel, the trial Court’s holding that awarding interest to the Plaintiff would enrich it unjustifiably was a fair determination, and this Court would not disturb the trial Court’s order.
Counsel for the Plaintiff considered that there was overwhelming evidence suggesting that the Plaintiff was only seeking to enrich itself after collecting sums of money for all the 102 stalls and 25 stores. In the view of Counsel, there was no payment due to the Plaintiff from the Defendant on which interest could be paid and the Plaintiff could therefore not justifiably ask to be paid interest.
Concluding his response to the submissions on behalf of the Plaintiff, Counsel for the Defendant submitted that the trial Court did not err when it refused to order payment of GH¢54,000.00 plus interest to the Plaintiff, and also did not err when it refused to order interest on the sum of GH¢47,500.00 erroneously awarded to the Plaintiff.
Now, as we realise, the written submission of the Defendant which Counsel for the Plaintiff stated had not been filed at the time he was filing his submission, was eventually filed on 7th August, 2017. In his arguments in the said submission, Counsel for the Defendant appears to have merged the sole ground of appeal with the irregularly filed additional grounds, rendering it difficult for the arguments in support of the general ground to be severed from the incompetently argued grounds. But since the Plaintiff has also alleged that the judgment is against the weight of evidence, there is no denying that both parties are inviting this Court to review the entire record and decide for itself whether the decision of the trial Court has reasonable support from the record. This is what, according to the authorities, an appellate court is called upon to do when the general ground is put forward in an appeal. (See Agyeiwaa Vs. P&T Corporation [2007-2008] 2 SCGLR 985 (989), Quarcoopome Vs. Sanyo Electric Trading Co. Ltd.  SCGLR 213(229), and Oppong Vs. Anarfi  2 SCGLR 556 (565)).
This Court will therefore review the record to determine the reasonableness of the trial Court’s decisions in the matter as demanded by the appeals of both the Plaintiff and the Defendant, and also consider the other issues raised by the Plaintiff. As I review the record, I do caution myself against trying to substitute this Court’s preferred views on the germane issues for the findings made by the trial Court on them. The caution given by the Supreme Court per Aikins JSC in Bonney Vs. Bonney [1992-93] GBR 779 (787), is recalled here. In that case, His Lordship advised that the appellate court “should not under any circumstances interfere with the findings of fact by a trial judge, except where they are clearly shown to be wrong, or that he did not take all the circumstances and evidence into account, or has misapplied certain of the evidence, or has drawn wrong inferences without any evidence to support them or that he has not taken proper advantage of his having seen or heard the witnesses”.
This underlines the principle that findings of fact made by the trial court are prima facie correct and that it lies on the party urging the contrary position to rebut that presumption by reference to the record.
The germane issues in this matter, as correctly identified by the trial Court, are whether or not there existed an agreement between the Plaintiff and the Defendant for the construction by the Plaintiff of stalls and stores on a pre-finance basis, if there was, whether or not the Plaintiff executed the agreement to specification, whether or not the Plaintiff was permitted by the Defendant to sell some of the stalls and stores to off-set part of the construction cost, and whether or not the Plaintiff unilaterally varied the terms of the agreement, thereby breaching same.
On the issue whether or not there existed a construction contract between the parties, the trial Court held that such a contract existed, and referred to Exhibits A and C as the bases of that finding. I have read the two exhibits and I find that they establish the existence of a contract between the Plaintiff and the Defendant for the construction for the Ejisu-Juaben District Assembly by the Plaintiff in the central portion of the Ejisu Market of 132 stalls. The open spaces between the sheds that would contain the stalls were to be paved, and each stall was to cost GH¢600.00. The total cost of the project was to be GH¢79,200.00, and it was to be pre-financed by the Plaintiff. Payments made by prospective traders for the stalls were to be applied to reimbursing the Plaintiff, and the project was to remain the property of the Assembly after full payment had been made to the Plaintiff.
On the issue whether or not the Plaintiff executed the agreement according to specification, the trial Court’s holding was that going strictly by Exhibits A and C, the Plaintiff had not. The trial Court found that the Plaintiff went beyond the terms agreed by Exhibits A and C and constructed 102 stalls and 25 lockable stores. The trial Court noted however that even though the construction of stores was not part of the agreement constituted by Exhibits A and C, the evidence shows that there were directives from the District Chief Executive of the Assembly to the Plaintiff which, in the view of the trial Court, gave the Plaintiff a discretion to construct stores. The trial Court saw in the evidence before it, a course of dealing between the parties which permitted verbally agreed variations to the original specifications. The trial Court noted that the Plaintiff constructed the stores in the full view of the Defendant’s engineers. In effect, the trial Court considered that the construction of the 102 stores and 25 stores by the Plaintiff was done with the approval of the Defendant.
It seems to me that in his evidence-in-chief as well as during his cross-examination, the Defendant’s first witness, Solomon Asante, confirms the existence of a verbal course of dealing between the parties. This is also evident in Exhibit G, a letter from the Plaintiff to the Defendant headed ‘Construction of Stalls at Ejisu Market’, from which I read the following paragraph: “Please, due to the verbal agreement at one of our meetings with the Executive at the Ejisu Juaben Municipal Assembly, we have given out Forty Eight (48) Stalls and Seventeen (17) Stores at a cost of Sixty Eight Thousand, Eight Hundred Ghana Cedis (GH¢68,800.00) to cover part of the construction cost as agreed upon between us and the traders”. From my own reading of the record, I have no cause to impugn the findings made, and the conclusions reached by the trial Court on this issue.
On the issue whether or not the Plaintiff was permitted by the Defendant to sell some of the stalls and stores to off-set part of the construction cost, the trial Court held that even though there is no evidence of such permission, there is evidence of circumstances which preclude the Defendant from denying that it consented to the allocations made by the Plaintiff. The trial Court gave examples of acts and conduct on the part of the Plaintiff that constituted those circumstances, and I think I can also count among them the paragraph quoted above from Exhibit G.
But in this appeal, the main concern of the Plaintiff is in respect of the trial Court’s refusal to enter judgment for it for the sum of GH¢54,000.00 indorsed on its amended writ of summons, and also the refusal of the said Court to award it interest. On the part of the Defendant, there is a total dissatisfaction with the judgment and a desire to have it set aside, together with all consequential orders made in it. Does the record justify the trial Court’s refusal to grant the Plaintiff’s claim for GH¢54,000.0 plus interest? And does it justify the dismissal of the Defendant’s counterclaim?
In his filed submission, Counsel for the Plaintiff stated that the Plaintiff arrived at the figure of GH¢54,000.00 by setting off the total amount realised from the allocations of the stalls and shops, which he gave as GH¢97,000.00, against the cost of the project, which he gave as GH¢164,200.00, and by further subtracting a sum of GH¢12,600.00, which he explained as representing discounts and post-completion sundry expenses. My attempt to work with Counsel’s figures however gave me GH¢54,600.00, not GH¢54,000.00. Indeed, reading the record gives me cause to think that the Plaintiff was uncertain as to the amount of the Defendant’s indebtedness to it.
At page 102 of the record, for example, the Plaintiff’s representative, Owusu Banahene Peter, gave the cost of constructing the stalls and stores as GH¢164,400.00, not GH¢164,200.00 as Counsel stated in his written submission. Also, during his cross-examination, Owusu Banahene at one point gave the sum of GH¢97,200.00 as the amount realised by the Plaintiff from the stalls and stores allocations, and this figure was almost immediately thereafter, changed to GH¢97,800.00. When he was asked whether the Plaintiff ever demanded the sum of GH¢63,250.00 as the amount due it from the Defendant, his response was that it did. When he was asked to explain the difference, his explanation was that because the Plaintiff was in dire need of money, it rented out some of the stores at a cheaper price and made a loss of about GH¢12,600.00 which it did not pass on to the Defendant. Again, when in the cross-examination, Owusu Banahene was confronted with Exhibit J in which the Plaintiff had stated the amount due it from the Defendant as GH¢63,700.00, the explanation he offered was that it might be a typographical error on the part of the Plaintiff’s lawyer.
In the face of the uncertainty demonstrated by the Plaintiff regarding the Defendant’s indebtedness to it, what the trial Court did was to find out where the payments for the allocated stalls and stores went to, and to consider, in the circumstance, where payments for the unallocated stalls and stores should go. The trial Court’s findings were that all payments for the allocated shops had been made to the Plaintiff, and that out of the 102 stalls constructed, 45 were vacant while out of the 25 stores constructed, 4 were vacant. Given that the Plaintiff had received payments for all the allocated stalls and stores, it followed that the only jobs for which the Plaintiff was yet to be paid were those for the construction of the yet to be allocated stalls and stores. And it was this position that the trial Court took. The trial Court’s decision was that the Plaintiff shall recover the cost of 4 lockable stores and the cost of 45 stalls. This decision, in my view, reasonably flows from the evidence before the trial Court and I uphold same.
Now, whatever amount the Plaintiff was entitled to as due it from the Defendant, should the trial Court have ordered payment of interest on it?
In Halsbury’s Laws of England, Fourth Edition, 2005 Reissue, ‘interest’ is defined as “the return or compensation for the use or retention of money belonging to or owed to another” Black’s Law Dictionary, Eighth Edition, also defines ‘interest´ as “(t)he compensation fixed by agreement or allowed by law for the use or detention of money, or for the loss of money by one who is entitled to its use, especially, the amount owed to a lender in return for the use of borrowed money”.
In the present case, the Plaintiff’s claim before the trial Court was that even though the Defendant had put tenants in occupation of the stalls and stores and was benefiting from the project, it had ignored repeated demands to pay for the project’s execution. The Plaintiff seemed therefore to be seeking compensation for the Defendant’s use or detention of money due it. It did not allege the existence of any agreement that entitled it to such compensation, and I have not found any in the record. Presumably, therefore, it was seeking payment of interest as compensation “allowed by law for the use or detention of money or for the loss of money by one who is entitled to its use”.
The point however is that in the absence of agreement or a statutory provision compelling such payment, whether or not to award interest lies in the discretion of the court, and the court is obliged to exercise this discretion fairly, taking into consideration the circumstances of the particular case. In the present case, in declining to award interest, the trial Court noted that the Plaintiff had contributed significantly to the muddled situation concerning execution of the project and payments in respect thereof. In the view of the trial Court, the circumstances were such that it would be enriching the Plaintiff unjustifiably if it made an award of interest in its favour. My own reading of the record does not incline me to interfere with the trial Court’s decision on interest and the same is hereby affirmed.
In conclusion, I do not find any merit in the Plaintiff’s appeal and the same is dismissed. The relief the Defendant sought in its cross-appeal was the setting aside of the judgment of the trial Court on the ground that it was against the weight of evidence. It is however clear from the above discussion that I consider the judgment and the decisions made in it to be supportable from the record. Accordingly, the Defendant’s cross-appeal is also dismissed as having no merit.
K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I AGREE SENYO DZAMEFE
[JUSTICE OF APPEAL]
I ALSO AGREE MARGARET WELBOURNE (MRS.)
[JUSTICE OF APPEAL]