Introduction:

[1] By a writ of summons issued on December 16, 2011 the Plaintiff claims against the Defendant the following reliefs:

i. A Declaration that Plaintiff is not in breach of the terms of the 2% Bid security issued by Zenith Bank on the 29^th September, 2011

ii. An order restraining the Defendant from calling on Zenith Bank to Honour the 2% Bid security dated 29^th September, 2011 issued in favour of the Plaintiff

iii. Cost

iv. Any other relief that this Honourable court may deem fit

[2] After the service of the writ and its accompanying statement of claim on the Defendant, Appearance was entered after which a statement of defence and Counterclaim were filed by the Defendant on January 31, 2012 to which the Plaintiff filed a reply and defence to the Counterclaim on April 2, 2012.

Plaintiff’s Claim

[3] The case of the Plaintiff is that on Wednesday September 28, 2011 the Defendant invited from the Plaintiff and other firms tenders for the supply of specific goods including a Silver Land Cruiser TX Prado, New Blue-Black Lexus Land Cruiser VX SFX, and Toyota Saloon Cars to be submitted. The Plaintiff pleaded that the date of submission was given as “10am September 2011”. According to the Plaintiff, as part of the conditions for the tender, each tenderer had the option to include a tender security of 2% of the tender price.

[4] According to the Plaintiff the Defendant notified it of its acceptance of Plaintiff’s tender by a letter dated October 3, 2011 after which it says there was no further information from the Defendant. The Plaintiff pleaded that as with normal practice it had expected to enter into a valid purchase contract with the Defendant after they had been awarded the contract to supply the vehicles.

[5] It is the Plaintiff’s further case that it received another letter from the Defendant dated 21^st October 2011 instructing Plaintiff to deliver one Yaris Saloon Car. The Plaintiff further averred that it responded to the Defendant’s letter on 4^th November 2011 to inform it that it could not deliver the said vehicle until full payment was received as stipulated in the Plaintiff’s bid document.

[6] According to the Plaintiff after receipt of its letter of November 4, 2011 informing it of the need to make full payment before delivery of the said Yaris, the Defendant called on Zenith Bank by a letter dated November 7, 2011 to pay the 2% Bid Security because Plaintiff declined to supply the vehicle. According to the Plaintiff “there has been no tender process as alleged by the Defendant in part or at all. Plaintiff further states that there was only an invitation for tender with no subsequent instructions to tenderers nor any executed purchase contract between the Plaintiff and Defendant and therefore the Defendant is not entitled to the 2% Bid Security”. Based on all of the above, the Plaintiff issued the writ of summons against the Defendant and claims per the reliefs endorsed on thereon.

The Defendant’s Pleadings/Defence

[7] The Defendant per the statement of defence filed pleaded that it advertised a tender and all tenderers were mandatorily required to include a tender security of 2% of the tender price. The Defendant averred that it is not true that after it notified the Plaintiff of its acceptance of the bid it did not provide further information. According to the Defendant its Group Chief Executive Officer was in constant contact with the attorneys and management of Plaintiff in respect of the subject matter including informing them of the need for them to provide performance security, which request they indicated must be in writing and was done by the Defendant.

[8] The Defendant further pleaded that the Defendant’s “acceptance letter together with the tender document, the advert or the request letter for signatories to the purchase contract which the Plaintiff refused to accept constitute a binding agreement between the parties”.

[9] It is the case of the Defendant that it called on Zenith Bank to pay the bid security for the Plaintiff’s failure to provide the performance security as stipulated in the tender security referenced ZBG/11/TOY/BB/204 which was inserted in the bid document by the Plaintiff and not the Plaintiff’s failure to supply the Toyota Yaris. The Defendant further pleaded that upon the “Plaintiff requesting for the Defendant to put into writing its request for Plaintiff to provide performance security which the Defendant did, the Plaintiff refused to take delivery of same and same was forwarded to Zenith Bank who were informed accordingly of Plaintiff’s refusal”.

[10] The Defendant further averred that there was a meeting with the lawyer and the Risk Manager for Zenith Bank and the Plaintiff and the subject of the failure of the provision of the performance security was discussed yet the Plaintiff still refused to provide same.

[11] It is the case of the Defendant that throughout its dealings with the Plaintiff the Plaintiff frustrated the Defendant “including its failure to accept the signatory letter which refusal or failure constitute withdrawal of the tender after acceptance by the Defendant which also satisfies condition for the payment of the bid security”.

[12] According to the Defendant the Plaintiff’s failure to provide the performance security affected its scheduled take-off and as such its anticipated profits. It is also the case of the Defendant that the Plaintiff’s conduct also increased the cost of the vehicles to an estimated value of about Three Hundred Thousand Dollars. The Defendant therefore further contended that the Plaintiff rather breached the agreement and not entitled to its reliefs. The Defendant therefore counterclaimed for the following reliefs:

A Declaration that the Plaintiff is breach of the terms of the 2% Bid Security issued by Zenith Bank referenced ZBGL/11/TOY/204 dated 29^th September, 2011 for its failure to provide performance security as stipulated in Clause 2 (b)

A Declaration that the Plaintiff is in breach of the terms of the 2% Bid Security issued by Zenith Bank referenced ZBGL/11/TOY/204 dated 29^th September, 2011 for its failure or refusal to accept the signatory letter as stipulated in clause 2(a) sent to the Plaintiff by the Defendant after acceptance by the Defendant.

Damages for breach of contract

An order director at the Zenith Bank (Ghana) Ltd to pay the bid security of 2% of the tender sum amounting to Ninety-Six Thousand One Hundred and Eighty Four Ghana Cedis Seventy Four Ghana Pesewas (GH¢96,184.74) to the Defendant

Costs

Any other reliefs costs

The Plaintiff’s Reply

[13] In the Plaintiff’s reply to the Defendant’s averments in the Statement of Defence and Counterclaim, Plaintiff denied the Defendant’s claim. The Plaintiff insisted that the Defendant’s Group Executive Officer was not in constant touch with its attorneys and Management Company in respect of the subject matter. According to the Plaintiff it wrote a letter to the Defendant’s Group Chief Executive on 4^th November, 2011 to inform him that the Plaintiff Company “would not be able to meet his verbal request for performance bond”. The Plaintiff pleaded by way of a reply that after that letter no further correspondence was received for the Group Chief Executive or the Company.

[14[ The Plaintiff further pleaded by way of a reply and denied paragraph 10 of the Statement of Defence and averred that the Defendant’s letter to Zenith Bank dated 7^th November 2011 and by which the Defendant demanded the legal remedy of the security bid gave two main reasons for the demand. The first was that the Plaintiff had declined to supply the vehicles and the second reason was that the Plaintiff had refused to furnish the Defendant with a Mandatory Performance Bond. According to the Plaintiff the Defendant has always been inconsistent in its dealings and in particular its letters to the Plaintiff and the Zenith Bank.

[15] The Plaintiff also denied the allegation that the Defendant put its request for performance bond in writing. According to the Plaintiff it specifically informed Defendant in its letter of November 4, 2011 that the Plaintiff expected to receive full payment before the vehicles would be delivered to the Defendant as per the bid document submitted and accepted by the Defendant.

[16] The Plaintiff reiterated that no binding agreement was reached between the parties as the conditions stipulated in the advert dated September 28^th 2011 and the Plaintiff’s Bid document dated 30^th September 2011 were completely different and as such the process of advertising and subsequent Bid submission cannot be said to constitute a binding agreement. Also, in further response to paragraph 14 of the Statement of Defence that there was a binding agreement, the Plaintiff stated that no negotiations had ensued following the two incidents and further no final document which content were acceptable to both parties was signed and witnessed. The Plaintiff further pleaded by way of reply by denying the Defendant’s defence paragraphs 15, 16 and 17 and averred that it will put the defence into strict proof during the course of the trial.

[17] Pleadings closed and directions were given in the matter and the following issues were set down for trial:

a. Whether or not the tenderers including the Plaintiff were mandatorily required to include a tender security of 2% of the tender price.

b. Whether or not the Plaintiff is in breach of the terms of the 2% Bid Security.

c. Whether or not there was a corrective letter by the Defendant.

d. Whether or not the Plaintiff failed to provide a performance bond

e. Whether or not the Plaintiff is entitled to its claim.

f. Whether or not the Defendant is entitled to its Counterclaim

g. Any other issues(s) arising out of the Pleadings

The Plaintiff's Evidence

[18] The case of the Plaintiff from the Witness Statement filed and adopted as the evidence in chief is not different from the Pleadings filed. The Plaintiff gave evidence through the Executive Director of the Plaintiff’s Company Mr. Eric Dako. Mr. Dako testified that following the advertisement in the Daily Graphic inviting tenders for the supply of vehicles to the Defendant Company the Plaintiff responded through a letter to indicate its wish to Bid for the said tender. A copy of the letter dated 28^th September, 2011 was tendered and marked as Exhibit “B”. A copy of the Plaintiff’s Bid for the supply of the vehicles to the Defendant Company was also tendered and marked as Exhibit “C” series. According to the Plaintiff’s witness it stated categorically in its bid document that a full payment had to be made before delivery of the vehicles.

[19] Mr. Dako further testified that the Plaintiff received a letter dated 3^rd October, 2011 from the Defendant to the effect that the Defendants have accepted the Plaintiff’s offer. According to Mr. Dako the notification award was incomplete because it did not indicate the specific vehicles for the Plaintiff to supply, the contract sum, any payment schedule ahead of supply as required by the Plaintiff, etc. According to Mr. Dako further to the above letter, the Defendant through its Group Chief Executive sent another letter dated 5^th October, 2011 to the Plaintiff titled “SUBMISSION OF TENDER DOCUMENTS FOR SIGNATORIES TO ESTABLISH A COMPLIMENTARY CONTRACT”. Mr. Dako further testified that by that letter, the Defendant instructed the Plaintiff to submit the tender documents IFT NRW/NCT/08/2011 of September 28, 2011 to the Defendant for the parties to sign within two working days upon receipt. A copy of that letter was also tendered as Exhibit “D”.

[20] According to the Plaintiff’s witness on the 21^st October, 2011 the Defendant Company sent another letter to the Plaintiff Company through their group Chief Executive Officer titled “Delivery of One Yaris Salon Car”. According to Mr. Dako, in that letter the Defendant indicated that its management would like the Plaintiff Company to immediately deliver one (1) Toyota Yaris Saloon Car to the Defendant and also stated that payment of the Yaris Saloon car would be incorporated with payment for all cars allotted and supplied within Thirty (30) days. A copy of that letter was tendered and marked as Exhibit “E”.

[21] Mr. Dako further testified that he responded to the Defendant’s letter for the Yaris by a letter dated 4^th November, 2011 to inform the Defendant Company that as per the bid document submitted by the Plaintiff company full payment was required prior to the bulk delivery of the vehicles specified in the lot and therefore it was unable to meet the Defendant’s request for the supply of the Yaris Saloon vehicle. A copy of the Plaintiff’s letter dated 4^th November, 2011 was tendered and marked as Exhibit “F”.

[22] Further, Mr. Dako testified that he stated in the said letter that the Plaintiff was unable to meet a verbal request for a Performance Bond as same was no longer necessary because the requirement for full payment of all vehicles is required prior to the delivery of the vehicles. According to the Plaintiff’s witness upon receipt of the Plaintiff’s letter of the 4^th November, the Defendant wrote to Zenith Bank Ghana Limited to demand payment of the Ninety Six Thousand One Hundred and Eighty Four Ghana Cedis and Seventy Four Pesewas (Gh¢96,184.74) being the 2% Bid Security on the grounds that the Plaintiff had declined to supply the vehicles to the Defendant and therefore failed to act in accordance with the award of contract letter dated 3^rd October, 2011. A copy of the Defendant’s demand letter was tendered and marked as Exhibit “G”.

[23] Mr. Dako told the Court that Zenith Bank replied to the Defendant’s letter dated 4^th November

2011, with its letter dated 14^th November 2011 and duly informed the Defendant that as part of their due diligence they would require copies of the Defendant’s request for a performance bond from the Plaintiff as well as documents establishing a contract between the Defendant and the Plaintiff. Zenith Bank’s letter dated 14^th November, 2011 was tendered and Marked as Exhibit “H”.

[24] Mr. Dako further testified that Zenith bank by a letter dated 19^th December 2011 titled “Re-Demand for Legal Remedy of the Gh¢96,184.74” informed the Defendant Company that it was unable to meet its demand because it had received Court processes in respect of the case. A copy of that letter was also tendered and marked as Exhibit “J”. According to the Plaintiff, the Defendant’s conduct is strange because the Tender process was not completed as the Defendant failed to execute the requisite contract (Tender Document) as required. Mr. Dako further testified that even if there was in existence a contract all that the Plaintiff did was to demand full payment before delivery. The Plaintiff’s witness also said that the Defendant’s request for one Yaris Saloon vehicle ahead of the bulk supply was also without any basis. Based on all of the above, the Plaintiff implored the Court to grant its reliefs endorsed on the writ. In a nutshell, the Plaintiff called no other witness and closed its case.

The Defendant's Evidence

[25] The Defendant gave evidence through Mr. Edmund Kusi-Ampong (the Group Chief Executive Officer) of the Defendant Company and called no other witness before closing its case even though it subpoenaed an officer from Zenith bank. The Defendant’s evidence was in pith and substance a rehash of the Statement of Defence filed. The Defendant’s evidence, like the Plaintiff’s is both oral and documentary.

[26] Mr. Kusi-Ampong testified that that the Defendant Company opened its published vehicles supply tender for the supply of 50 Corporate Vehicles Toyota 4WD 2.7 (1unit), Toyota 4WD 4.5 LTS Station Wagon (1unit) and Toyota saloon cars (48units) to be used for Executive and the SME development and investment securities trading of the company. A copy of the tender which was published the in Daily Graphic was tendered and same was marked Exhibit “1”.

[27] According to the Defendant further to the publication of the tender, the Plaintiff applied and submitted a bid. A copy of the Plaintiff’s letter of application and a copy of the bid in a form of a booklet were tendered and marked as Exhibit “2” and “2A”. Further, Mr. Kusi-Ampong Jnr. testified that in furtherance of the tender submission a meeting was held at the Defendant’s Dzorwulu office on September 29, 2011 between the Plaintiff represented by one Desire Atimpoe and Defendant was represented by the witness himself. According to the witness the Defendant satisfied itself at that meeting that the Plaintiff had met all relevant information and requirements of the Defendant including the payment terms, submission of performance bond and a bid security of 2 % of the contact sum, amounting to Gh¢96,184.74 of the awarded contract and same was in conformity with the Public Procurement Act (Act 563) and the procurement policy of the Defendant as spelt out in the tender publication in the Daily Graphic.

[30] According to the Defendant’s witness at the meeting held on September 29, 2011 the Plaintiff Company, Toyota Ghana Company Limited strongly indicated that it had the financial capability, experience in the supply of vehicles under tender to Government and Government agencies and also the private sector in Ghana. According to Mr. Kusi-Ampong the Plaintiff also said it had the requisite knowledge of the requirements of contracts awarded for the supply of vehicles to clients under the Public Procurement Act when it noticed the presence of Stallion Motors which had also expressed keen interest in the supply of saloon cars to the Defendant.

[31] It is Defendant’s further case that the above credentials proffered by the Plaintiff indicated its readiness to comply with the specific contract terms for the supply of the 50 vehicles convinced the Defendant to award the contract to the Plaintiff over its competitors “coupled with its cosmetic excellent client service where Plaintiff explained the technical specifications and capabilities of its brand over competitors”.

[32] It is the case of the Defendant that it made a well-informed decision to award the contract to the Plaintiff after it accepted its bid offer. A copy of the acceptance letter was tendered as Exhibit “3” and a copy of the Plaintiff’s tender security bid was also tendered and marked as Exhibit “4”. The Defendant’s evidence in regards to what happened after the Exhibit “3” is similar to the Plaintiff’s evidence even though the witness statement adopted as the evidence in chief contained a lot of verbatim quotes from the letters exchanged between the parties. It is the case of the Defendant that, in a nutshell, the Plaintiff breached the agreement by not supplying the vehicles in accordance with the tender and the bid accepted.

[33] It is also the case of the Defendant that meetings were held between the parties prior to the request for the Yaris Saloon vehicle. Mr. Kusi-Ampong testified that at a meeting held at the Ring Road West, Accra Office of the Plaintiff an oral demand was made for the Yaris but the Plaintiff asked that it be put in writing hence the letter dated 21 October, 2011. A copy was tendered and marked as Exhibit “5”. According to the Defendant it was within its right to demand the bid security because the Plaintiff breached the agreement. The Defendant’s witness further testified to the demand made on Zenith Bank for the payment of the bid security bond and the correspondence it had with both the bank and the Plaintiff herein. Mr. Kusi Ampong tendered as Exhibits “6”, “7 – 7D” and “8” to buttress the testimony. Based on all of the above, the Defendant prayed the Court to dismiss the Plaintiff’s claim and grant the Counterclaim. As well, Ms. Horlali Bodza-Lumor from Zenith bank was subpoenaed to testify and to tender documents which were marked as Exhibits “CE1 to CE4”. In a nutshell, this is the evidence before the court.

The Court’s Opinion, Analysis and Conclusion - DETERMINATION OF ISSUES BY THE COURT

[34] The general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.

“Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non – existence of which is essential to the claim or defence he is asserting”

[35] This general position on the burden of proof and of persuasion has had judicial approval by the Supreme Court in the case of ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 where Aikins JSC expounded the position as follows:

“The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue”.

[36] The Supreme Court has further pronounced on the above principle of law in the case of RE:

ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS v. KOTEY & OTHERS [2003-2004] SCGLR 420. The Court held per Wood JSC (as she then was) at page 444 that:

“It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323) the burden of producing evidence in any given case is not fixed, but shifts from a party to party at various stages of the trial, depending on the issues asserted and or denied.”

[37] In my examination of the evidence adduced by the Plaintiff and Defendant in the instant suit therefore, both the Plaintiff and Defendant have an obligation to adduce sufficient evidence in support of their respective claims and same would be measured, weighed in the same degree and extent which any litigant in a civil trial is obligated to adduce in order that upon a proper balance the logical inferences and findings would be arrived at relevant to support the conclusions. For, as stated supra the general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.

[38] I note that in the context of the instant suit both the Plaintiff and the Defendant (Counterclaimant) carry the burden of proof and of persuasion which is to be determined on the preponderance of probabilities as defined by Section 12(2) of the Evidence Act 1975 (NRCD 325).

[39] I wish to state from the outset with the greatest respect to the parties and counsel the circumstances of the case and how it has been handled is reminiscent of what occasioned His Lordship Dotse, JSC lament in the case of in the case of The REPUBLIC v EDWARD ACQUAYE, EX PARTE CHARLES ESSEL, in Civil Appeal No J4/11/2008 of 10^th December 2008 when he postulated that: “This case is a classic example of how a small issue can be glossed over by an over-zealous litigant and thereby introduce diversionary and irrelevant matters into the main body of the case.” To my mind, this is a simple case of alleged breach of contract, however both Counsel engaged in long cross-examination and copious documents were tendered in evidence. With the greatest respect I think irrelevant issues were dwelt on.

[40] Admittedly, while the issues set out by this Court differently constituted cannot be said to be irrelevant, in my respectful opinion based on the divergent positions taken by the parties in regards to whether the submission of the bid and the Defendant’s letter of acceptance dated October 3, 2011 meant there was a contract, one important issue is germane and it is:

“Whether or not there was a contract between the parties”?

To my mind that issue is very central to the determination of the controversy between the parties herein. The rest may be at the periphery and the court is not obliged to make determination on them although evidence might have been led on them. Indeed it is the policy of the law that only those issues which are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them. See DOMFE v ADU (1984- 86) 1 GLR 653.

[41] First and foremost, it is not disputed by the parties that the Defendant published a tender and the Plaintiff submitted a bid and by a letter dated October 3, 2011 the Defendant accepted the bid. It is the case of the Plaintiff that there was only an invitation for tender with no subsequent instructions to tenderers nor any executed purchase contract between the Plaintiff and Defendant and therefore the Defendant is not entitled to the 2% Bid Security. The Defendant on the other hand says its “acceptance letter together with the tender document, the advert or the request letter for signatories to the purchase contract which the Plaintiff refused to accept constitute a binding agreement between the parties”.

[42] In subjecting the two positions of the parties to scrutiny, I wish to state that the determination of the dispute between the parties is primarily based on the exhibits tendered at trial and not the commentaries and/or opinions expressed by the witnesses. Since this case touches and concerns the construction of documents, I start my analysis by looking at the documents tendered at trial. I have looked at Exhibit “A”, which is the tender and the foundation of the parties’ relationship. It states as follows: “Invitation to Tenders (NCT) National Competitive Tendering (NRW/NCT/09/2011) as published in the Daily Graphic on Wednesday, September 28, 2011. What follows is a list of the various descriptions of the items.

There is an additional Information column which also provides as follows:

“3 (1) Tenders shall be valid for a period of 150 days after the deadline for the submission of Tenders. A tender security of 2% of the tender price may be enclosed in tender applications. Tenders shall be opened in the presence of the Tender’s representatives who choose to attend. Late tenders shall be rejected.

Further information may be obtained through the address below:

THE CHIEF EXECUTIVE OFFICE

NEW-RIVERS CAPITAL GROUP

APEX BUILDING, OPPOSITE FIESTA ROYALE HOTEL

DZORWULU JUNCTION ACCRA, GHANA

TEL: 054 1564317

3. (ii) Tendering will be conducted through the National Competitive Tendering Procedure specified in the Public Procurement Act, 2003 (ACT 663) and the guidelines of the Public Procurement Board of the Republic of Ghana. The document will be obtained personally and with application letter.

(iii) A complete set of tender document may be purchased from the above address upon payment of a non-refundable fee of Fifty Ghana Cedis (Gh¢50.00).

(iv) Tenders must be labeled with the contract identification number of NRW/NCT/08/2011 AND delivered to the above address on or before 10:00 a.m. September 28, 2011.

(v) Tenderers may bid for anyone, any combination or all lots. To be considered responsive Tenderers shall quote for all items in the required quantities for the lot that they shall bid. Tenders which do not offer all items under the selected lot shall be rejected as incomplete. Tenders will be evaluated and contract awarded on per lot basis or combination of lots whichever meet the needs of the purchaser”.

The above is the published tender except the catalogue of the vehicles.

[43] Also, Exhibit “3” dated 3^rd October, 2011 is the acceptance letter signed by Edmund Kusi-Ampong. It states as follows:

“RE: AWARD OF CONTRACT TO SUPPLY TOYOTA 4WD 2,7L STATION WAGON (1 UNIT), TOYOTA 4WD 4.5L STATION WAGON (1 UNIT) AND TOYOTA SALOON CARS (48 UNITS)

In response to your tender application to supply Toyota 4WD 2,7L Station Wagon (1 Unit, Toyota 4WD 4.5L Station Wagon (I Unit) and Toyota Saloon Cars (48 Units) as advertised in the Daily Graphic of September 28, 2011 of IFT No. NRW/08/2011.

You are by this letter awarded the contract to supply Two Toyota 4WDs and Toyota Saloon Cars (48 Units) and required to furnish the New-Rivers Capital Group with a Performance Bond of 2% of the contract price under general terms stipulated in the tender document of payment within 30 days of supply.

Sincerely,

Edmund Kusi-Ampong

(Group Chief Executive)”

[44] It is the case of the Defendant that the above and together with its letter dated October 5, 2011 constitute the contract together with the bid document submitted.

The October 5, 2011 letter also is as follows:

“SUBMISSION OF TENDER DOCUMENTS FOR SIGNATORIES TO ESTABLISH COMPLEMENTARY CONTRACT

You are by this letter instructed to submit the tender document of IFT: NRW/NCT/08/2011 of September 28, 2011 to be signed by New-Rivers Capital Group (herein after called the Purchaser) and Toyota Gh. Ltd. (herein after called the Seller) respectively within two working days after the receipt of this letter.

This is required to establish a complementary contractual relationship and in line with standard procurement practice for the mutual interests of both companies Your absolute compliance is necessary.

Sincerely

Edmund Kusi-Ampong

(Group Chief Executive)”.

[45] It is instructive to note that the published tender was anchored in the Procurement Act 2003 (ACT 663) and Defendant admitted under the cross-examination that Act 663 is the governing law of the parties’ relation. Interestingly, even though the law requires that a written procurement contract is to be signed the Defendant admits none was signed in this case but says the request for a performance bond based on corporate policy suffices in this case.

[46] To begin with, it is a settled rule of interpretation that in construing a document to ascertain the intention of the parties that document ought to be read as a whole. The starting point must be the words and phrases the parties have chosen. It is also commonly thought that the purpose of interpreting a contract is to discover the actual intentions of the contracting parties.

[47] In PIONEER SHPPING LTD v B.T.P. TIOXIDE LTD (1982) AC 724, Lord Diplock posited: “The object sought to be achieved in construing any contract is to ascertain what the mutual intentions of the parties were as to the legal obligations each assumed by the contractual words in which they sought to express them.” In I.R.C. v RAPHAEL (1935) AC 96 Lord Wright spoke to similar effect. He said:

“The words actually used must no doubt be construed with reference to the facts known to the parties and in contemplation of which the parties must be deemed to have used them; such facts may be proved by extrinsic evidence or appear in recitals; again the meaning of the words used must be ascertained by considering the whole context of the document and so as to harmonize as far as possible all the parts; particularly words may appear to have been used in a technical or trade sense, or in a special meaning adopted by the parties as shown by the whole document.”

[47] On a true and proper interpretation of Exhibit A, being the published tender, Exhibit “C” and Exhibit “3”, together with Exhibit “D”, the acceptance letter dated 5^th October, 2011 and having read all as a whole, I hold that they do not constitute a written contract as envisaged by the Procurement Act. Section 65 (7) of the Procurement Act requires a written procurement contract to be signed 30 working days of receipt of the notice of acceptance. It provides as follows:

“65 (7) If the supplier or contractor whose tender had been accepted fails to sign a written procurement contract within 30 working days of receipt of the notice of acceptance or fails to provide the required security for the performance of the contract, the procurement entity shall select a successful tender in accordance with section 59(3) from among the remaining tenders that are in force, subject to the right of the procurement entity to reject the remaining tenders”.

In this case the evidence is that no written procurement contract was signed after the acceptance. In any case, the law does not provide that if a performance bond is not provided the bid security is to be demanded as was done in this case.

[48] Furthermore, it needs emphasizing that even though the Defendant said that the acceptance letter constitutes a contract, nevertheless it submitted Exhibit 9 titled “Purchase Contract/Tender Documents” for the Plaintiff to sign but it refused. If indeed there was a contract in place why was the need for the signing of Exhibit 9? In coming to this conclusion that there was no contract between the parties and having looked at the documents tendered I wish to state that I place much reliance on the dictum of Date-Bah JSC in VOLTA ALUMINIUM CO LTD v TETTEH AKUFFO & OTHERS (2003-2004) SCGLR 1158. In the result I resolve main issue set out above in favour of the Plaintiff.

[49] Having so held that the acceptance of the bid offer did not constitute contract based on the law, the supplemental question is was the Plaintiff in breach of the 2% Security Bid? It is the case of the Defendant as per Exhibit 6, the demand for the remedy of the 2% bid security bid, that the Plaintiff had declined to supply the vehicles contrary to the “terms of the contract from the award of contract letter” and also failed to provide a mandatory performance bond. It is difficult to rationalize the basis for the demand made because, again what contract terms was the Plaintiff deemed to have breached? To my mind, if the Plaintiff was deemed to have breached the request to provide the Performance bond, the Defendant’s recourse was not to demand the security bid but to take legal action in accordance with the Procurement Act.

[50] It is material to point out that the Defendant and its Counsel have made the bid security the centerpiece of the litigation and Counsel in his written legal submission quoted extensively Exhibit “3”, being the security bid issued by Zenith Bank on behalf of the Plaintiff. Again, the question is was the bid security a mandatory requirement for the tender? The Court’s simple answer is contrary to the submission of the Defendant’s Counsel it was not. The bid stated that “A tender security of 2% of the tender price may be enclosed in tender applications” (emphasis mine). It is trite that the use of the word “may” is not mandatory but construed to be permissive. The Black’s Law Dictionary, 9^th edition defines “may” as “to be permitted to, a possibility or loosely is required to”. Section 42 of the Interpretation Act, Act 792 provides that “in an enactment “may” shall be construed as permissive and empowering and the expression “shall” as imperative and mandatory”. The Interpretation Act draws a distinction between the use of the two words. With the greatest respect to Counsel for the Defendant his submission that the use of the may for the security bid was mandatory is not supported by law.

[51] Based on the facts, the exhibits and the law I am of the respectful view that the Plaintiff did not breach the bid security when it demanded payment for the vehicles before delivery. I am of the view that the position was reasonable in view of the fact that there was no written signed contract after the bid was accepted. I therefore again resolve this other Issue in favour of the Plaintiff. All the other issues are peripheral and I am of the view based on the above analysis that the Plaintiff is entitled to its claim and therefore the other issues are irrelevant.

[52] On the whole, from the available evidence, the Plaintiff’s case is made out on the balance of the probabilities. I find based on the evidence and reiterate that the Plaintiff did not breach the 2% bid security submitted with its tender. Further, there is no evidence that there was an agreement between the parties. I therefore accept the Plaintiff’s evidence and grant the reliefs 1 and 2 endorsed on the Writ of Summons. The Defendants’ counterclaim is dismissed as unmeritorious.

Costs assessed at Gh₵ xxxxx