By a writ of summons issued in January 2012, the plaintiffs seek:

a. A declaration that plaintiffs are entitled to recover the sum of GH₵552,146.46 being fee claim for work done for the 2^nd defendant sector Ministry on renovation and redecoration of UNDP flats at Cantonments

b. Interest on GH₵552,146.46 at the prevailing bank lending rate from April, 2003 to date of final payment.

c. General damages for breach of contract.

d. Costs including lawyer’s fees.

e. Any just and equitable reliefs.

After the close of pleadings and the inability of the parties to settle at pre-trial, the matter was set down for hearing at which the parties gave evidence per their representatives and closed their cases.

From the statement of claim filed by the plaintiffs, the court finds that the 2^nd defendant, per a letter dated the 25^th March 2002, informed the 1^st plaintiff of the 2^nd defendant’s intention to rehabilitate the UNDP block of flats situate at Cantonments. The court finds that by the same letter, the 2^nd defendant invited the 1^st plaintiff to assess the works which needed to be carried out on the said UNDP flats. Indeed these works included mechanical, electrical, masonry, and painting among others. Again the court finds that by the same letter the 2^nd defendant invited the 1^st plaintiff to submit estimates in respect of the costs of the rehabilitation works. Exhibit A tendered by the plaintiff attests to this finding.

From the statement of claim the court finds that in response to the 2^nd defendant’s request contained in exhibit A herein the 1^st plaintiff, who is a Quantity Surveyor by profession, engaged the services of X-Cell Engineering, 2^nd plaintiff herein to assist the 1^st plaintiff carry out the work which it had been tasked to do; and, on the 23^rd August 2002 the plaintiffs submitted a report including the estimates to the 2^nd defendant. This is evidenced by exhibit B tendered by the plaintiffs. Again from the statement of claim the court finds that on the 4^th day of September, 2002 the plaintiffs submitted to the 2^nd defendant a Consultancy fee for the consideration of the 2^nd defendant as shown by exhibit C.

The above findings of fact are all contained in paragraphs 6 and 7 of the statement of claim which have been admitted by the defendants in paragraph 6 of their statement of defence. The court holds that the defendants are bound by their admissions and hence the plaintiff need not give evidence in proof of these admitted allegations. See Fori vs. Ayirebi [1966] GLR 627 at 647.

From exhibit C the court finds that the consultancy fee which the plaintiffs levied on the 2^nd defendant for the works which they discharged, by virtue of the 2^nd defendant’s request per exhibit A, was in the sum of ₵67,516,350. This amount had been misquoted by the plaintiffs in paragraph 8 of their statement of claim as GH₵6,751,635.

The court finds from the evidence given by the 1^st plaintiff that out of the bill, exhibit C, which was submitted to the 2^nd defendant, an amount of ₵10,000,000 was paid to the plaintiffs by the 2^nd defendant as shown by exhibit D. The witness for the defendant, one Yahaya Ahmed Yakubu, the Director of Housing at the 2^nd defendant, admitted during cross examination on the 4^th March 2015 that the ₵10,000,000 paid by the 2^nd defendant to the plaintiffs does not represent payment for the full bill submitted to the 2^nd defendant by the plaintiffs herein. It implies therefore that the defendants’ averment in paragraph 12 of their statement of defence that the defendants “do not owe the plaintiffs any money and that whatever work they did was fully paid for” cannot be correct.

In the opinion of the court if it is true that the defendants have fully paid for the work done by the plaintiffs then it is the duty of the defence to adduce credible evidence to prove that allegation in accordance with sections 14 and 17 of the Evidence Act 1975, NRCD 323. Thus in Ababio vs. Akwasi III [1994-1995] GBR 774 it was held that:

“A party whose pleading raised an issue essential to the success of the case assumed the burden of proving such issue. The burden only shifted to the [other party] when [such a party] had adduced evidence to establish the claim”

The court has also explained in the recent case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another [2012] 2 SCGLR 845 at 867 that

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”

From the evidence adduced the court holds that the defendants have failed to prove that they do not owe the plaintiffs for the works done by the plaintiffs on the instructions of the 2^nd defendant. The court is satisfied from the pleadings and the evidence on record that the defendants are indebted to the plaintiffs for the works which the plaintiffs executed for the defendants based on the request which the 2^nd defendant made to the 1^st plaintiff per exhibit A.

From the endorsement on the writ of summons, it is clear that the plaintiffs are not claiming, as part of their reliefs, the difference between the bill in exhibit C which is ₵67,516,350 and the amount actually paid to them by the defendants which is stated to be ₵10,000,000. By calculation the difference will be ₵57,516,350 which translates into GH₵5,752. However, notwithstanding the failure of the plaintiffs in couching a claim for the difference as stated herein, there are authorities to the effect that once there is evidence on record in support of the said claim, the court has power to give judgment in favour of the claim. See In re Gomoa Ajumako Paramount Stool; Acquah vs. Apaa [1998-1999] SCGLR 312;

Hanna Assi (No.2) vs. Gihoc Refrigeration & Household Production Ltd (No.2) [2007-2008] SCGLR

Consequently, judgment will be entered for the plaintiffs against the defendants in the sum of

₵57,516,350 which is the same as GH₵5,752. Plus interest at the current bank rate from 4^th September, 2002 to the date of final payment.

In addition to the works done by the plaintiffs on the strength of exhibit A, the court finds that on the 27^th February 2003, the 2^nd defendant again authorized the 1^st plaintiff to “prepare tendering documents prior to tendering process towards rehabilitation of the UNDP flats with the view to rectifying electrical, mechanical, structural and architectural defects to upgrade the standard of the flats to attract higher rental value”. Further, the 2^nd defendant authorized the 1^st plaintiff to prepare and present to it, Bills of

Quantities for the consideration of the 2^nd defendant. These facts which are supported by exhibit E tendered by the plaintiffs are pleaded in paragraph 9 of the plaintiffs’ statement of claim. Not surprisingly, the defendants have admitted these facts in paragraph 8 of their statement of defence.

The court finds that in response to the 2^nd defendant’s letter of 27^th February 2003 the 1^st plaintiff wrote an acknowledgement dated 28^th February 2003, exhibit F herein and undertook to present to the 2^nd defendant detailed Bills of Quantities for its consideration.

Following these exchanges, the court finds that the plaintiffs prepared various drawings and Bills of Quantities as shown by exhibits G, G1 to G21 and submitted them to the 2^nd defendant. The court finds from the evidence on record that as a result of the works done by the plaintiffs, the 2^nd defendant initiated processes leading to the award of contract to Messrs China State Hualong Construction (Gh.) Ltd. to undertake the works. Exhibits H, J, K, L, M, T and U attest to this fact.

The court finds that following the works done by the plaintiffs a bill, exhibit V herein, was submitted by the plaintiffs to the 2^nd defendant for payment to the plaintiffs, consultancy fee of GH₵552,141.46.

The defendants say that they are not indebted to the plaintiffs for the reason that the plaintiffs have failed to produce evidence of a contractual relationship between the plaintiff and the 2^nd defendant. Indeed, in their evidence in chief and throughout the trial, the defendants’ defence is that there is no contract between them and the plaintiffs and that the plaintiffs have failed to furnish documentary evidence of any contract between the parties so the defendants are not indebted to the plaintiffs.

The defendants’ contention that the plaintiffs “have failed to produce any evidence of any alleged contractual relationship with the Ministry” comes to the court as a great surprise. This is so because, as pointed out above, the defendants have, in paragraph 8 of their statement of defence, admitted that the 2^nd defendant wrote exhibit E to the 1^st plaintiff in which the 2^nd defendant requested the 1^st plaintiff to prepare Tender Documents and Bills of Quantities in respect of the renovation of the UNDP flats at Cantonments prior to tendering. In the opinion of the court the language used in exhibit E makes that letter an offer to the 1^st plaintiff. The authors in Chitty on Contracts (28^th ed.) published by Sweet and Maxwell (1999) Vol. 1 page 90 para. 2-002 defines an offer

“as an expression of willingness to contract made with the intention (actual or apparent) that it is to become binding on the person making it as soon as it is accepted by the person to whom it is addressed’

According to the authors,

“Under the objective test of agreement, an apparent intention to be bound may suffice, i.e. the alleged offeror may be bound if his words or conduct are such as to induce a reasonable person to believe that he intends to be bound, even though in fact he has no such intention”

In her book The Law of Contract in Ghana (2011), published by Frontiers Printing and Publishing Company, Ghana the learned author, Dowuona-Hammond, states at para. 2 page 18 that

“an offer may be defined as a statement or conduct indicating a willingness to contract on terms stated or on terms which can reasonably be inferred from conduct, and made with the intention that it will become binding as soon as it is accepted”

In NTHC Ltd vs. Antwi [2009] SCGLR 117 at 125 the Supreme Court stated that:

“an offer is an indication in words or by conduct by an offeror that he or she is prepared to be bound by a contract in the terms expressed in the offer, if the offeree communicates to the offeror his or her acceptance of those terms”

The court is of the opinion that once it is shown that the 1^st plaintiff either accepted, in writing, the terms in exhibit E or acted upon the directives in exhibit E, a contract can legitimately be inferred. See Fofie vs. Zanyo [1992] 2 GLR 475.

Indeed, in the instant case, not only did the 1^st plaintiff accept the terms in exhibit E by writing exhibit F to the 2^nd defendant but the 1^st and the 2^nd plaintiffs went ahead to perform the obligations imposed on them by exhibit E by the preparation and submission to the 2^nd defendant exhibits G series. Thus, by writing and by conduct, the 1^st plaintiff accepted the terms of exhibit E. The court therefore holds that there exist a contract between, at least, the 1^st plaintiff and the 2^nd defendant.

The defendants have strenuously argued that there was no formal agreement between the parties and that the procedure set out in the Public Procurement Act 2003 (Act 663) was not observed. The court finds it difficult to appreciate what the defendants meant by formal agreement. The court is, however, of the opinion that exhibits E and F constitute a formal contract between the 1^st plaintiff and the 2^nd defendant. There is no law that a formal contract between parties must be contained in one document. Once the parties have exchanged documents detailing the terms of their agreement, the documents together constitute the contract between the parties.

Even if the contract was just a verbal one it could still be enforced. At common law contracts could be formal or informal and except a statute specifically says so, contracts entered into by verbal agreements are enforceable. For instance, there is a specific requirement under section 14 of the Contracts Act 1960, Act 25 that makes it mandatory that a contract of guarantee must be in writing and signed by the guarantor in order to be valid. Again, as an example, the Conveyancing Act 1975, NRCD 175 provides in section 2 as follows

“A contract for the transfer of an interest in land is not enforceable unless

(a) it is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorised to sign on behalf of that person, or

(b) it is relieved against the need for a writing by section 3.”

Even then, in Fofie vs. Zanyo (supra) it was pointed out at page 477 of the report that

“The court was entitled in certain cases to permit a contract to be proved by oral evidence, even though of a kind required to be proved in writing, when the party seeking to enforce the contract had done acts in performance of his obligations under it. The court would exercise its discretion where (a) the act of part performance was referable to only the contract alleged; (b) they were such as would render it a fraud in the defendant to take advantage of the contract not being in writing; (c) the contract by its own nature was enforceable by the court; and (d) there had to be proper parol evidence of the contract let in by the act of part performance.”

In the instant case however, the contract between the plaintiffs and the 2^nd defendant was not oral but in writing as shown by exhibits E and F. At any rate at the time the parties entered into the agreement, there was no specific law that such contracts ought to be in writing before they could be enforced or recognized at law. As was held in Kobaku Associates vs. Owusu [2003-2005] 1 GLR 611

“A contract between an architect and a client was not required to be in writing and therefore under section 11 of the Contracts Act, 1960 (Act 25) would not be void simply because it was not written. Moreover, on the authorities, where there was no express contract with architects (and engineers) the right to remuneration was implied by the request and acceptance of the plans produced, except where there was evidence that the plans were to be merely submitted for approval, in which case they were deemed to be probationary drawing constituting an offer from the architect. And as soon as the plans were accepted the right to remuneration would arise.”

As explained, it is only when one could find a statute requiring that a particular type of contract must be in writing that a written contract becomes mandatory for the enforcement of that particular type of contracts. Hence, in the absence of a statute making it mandatory for particular contracts to be in writing, agreements verbally reached by parties, all other requirements being present, are as enforceable as their written counterparts. Indeed, that is the essence of section 11 of the Contracts Act, 1960 Act 25 when it states that

“11. Contracts need not be in writing except in certain cases Subject to this Act, and to any other enactment, a contract whether made before or after the commencement of this Act, is not void or unenforceable by reason only that it is not in writing or that there is no memorandum or note of the contract in writing.”

As already indicated above, the plaintiffs had proved, by exhibits G series, among others, that they had discharged their obligations under the contract. Indeed, exhibits G series were prepared only in response to the request by the 2^nd defendant contained in exhibit E that the 1^st plaintiff prepares Tender Documents and Bills of Quantities in respect of the renovation of the UNDP flats at Cantonments prior to tendering.

One may legitimately ask whether it would not be fraudulent on the part of the defendants to refuse to pay the plaintiffs, after benefiting from the works executed by the plaintiffs, on the ground that there is no agreement just because the terms are not contained in a single document.

Section 26 of the Evidence Act 1975 NRCD 323 is apt on this issue. It states that

“Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between

(a) that party or the successors in interest of that party, and

(b) the relying person or successors in interest of that person.”

The defendants have admitted writing exhibit E to the 1^st plaintiff. In exhibit E the 2^nd defendant requested the 1^st plaintiff to prepare Tendering Documents “prior to tendering process towards rehabilitation of the UNDP flats…” and also “present detailed Bills of Quantities for consideration” The 1^st plaintiff, in response, wrote exhibit F and thereafter, together with 2^nd  plaintiff prepared and submitted to 2^nd defendant, exhibits G series in the discharge of their obligations under exhibit E. The relevant portion of exhibit G in particular states as follows:

“REHABILITATION OF UNDP FLATS

We refer to your letter dated 27^th February 2003 and wish to inform you that Tender documents for the above project are ready.

We forward herewith one (1) copy each of the Approximate Bills of Quantities for your study and further direction”

In the opinion of the court it would be fraudulent in the defendant to say that they would not pay the plaintiffs because there is absence of a single document containing the terms of the plaintiffs’ engagement. The defendants are surely estopped by their conduct.

The defendants have argued that the plaintiffs did not go through the laid down procedures in obtaining the contract and that the proper authority did not authorize the execution of the contract. The defendants have, in their addresses, made reference to the need for an advertisement in the newspapers inviting tenders, the need for the plaintiffs to submit their bids, the need for evaluation and other procedures which should have been gone through before the award of the contract. Unfortunately, the defendants failed to mention the law which requires all these procedures to be followed before such contracts are awarded.

The question is that even if there was in existence any such law, is it only the plaintiffs who failed to comply with it? Are the defendants, particularly, is the 2^nd defendant not guilty of its breach just as the plaintiff? And if so, why should the 2^nddefendant be permitted to keep the benefit of its breach, by enjoying the services rendered by the plaintiffs whiles the plaintiffs suffer from an alleged breach by being denied payment for the works done by them at the promptings of the 2^nd defendant? Where is the equity and good conscience in such a step? In the opinion of the court it would be unfair, unjust, inequitable, and unconscionable to deprive the plaintiffs of their remuneration.

It seems to the court that the defendant had in mind the Public Procurement Act, 2003 Act 663, which sets out in part six, sections 66 to 77, the methods and procedures to be followed before the services of Consultants were engaged by agencies and departments of Government. It ought however to be pointed out that Act 663 received Presidential assent after the contract, subject of this suit, had been entered and for that matter this Act does not operate retrospectively to regulate the contract, subject matter of this suit.

Another issue which engaged the attention of the defendants at the trial was the amount being claimed by the plaintiffs. The defendants had, in effect, argued that the fee payable to the plaintiffs, being the consideration for the works done, was not known at the time the parties entered the agreement and so there was no contract upon which the plaintiffs could sue. The plaintiffs’ explanation, which the defendants did not challenge and which the court has also no reason to reject, is that the Ministry of Works and Housing has a scale of fees, expressed as a percentage of the value of the contract sum and that whenever a contract was awarded the Consultants are presumed to have accepted the scale of fees agreed and approved by the Ministry.

The amount endorsed on the writ and claimed by the plaintiffs is GH₵552,146.46. This claim is supported by exhibit V the bill of fees which the plaintiffs submitted to the 2^nd defendants for payment. It appears that when the defendants disputed the fees, the plaintiffs obtained an assessment of their fees from the Ghana Institution of Surveyors, exhibit X herein which fixed the plaintiffs’ fees at US$265,666.52. The defendants also obtained an assessment of the plaintiffs’ fees from the Architectural and Engineering Services Limited, exhibit 1 herein, which fixed the fees at US$181,778.94.

Apart from there being no reason for the court to accept any of the fees quoted in exhibits X and 1, over the fees being claimed by the plaintiffs, the court finds that a conservative conversion of the amounts quoted in these exhibits from the dollar into the Ghana Cedis would far exceed the amount being claimed by the plaintiffs. It therefore makes good sense to accept the amount endorsed on the writ.

There is yet one final issue which, although was not specifically raised by the defendants, the court wishes to discuss before concluding on this matter. At paragraph 1 of the statement of claim, the 1^st plaintiff describes itself as a “sole proprietorship”, yet the writ is issued in the name of the 1^st plaintiff which is only a business name which lacks capacity to sue as if it were a legal entity. The court is of the view that it has enough powers to effect an amendment of the capacity in which the 1^st plaintiff had sued in order that the real issue in controversy between the parties is determined and not defeated by a mere technicality. Indeed, Order 16 rule 7 of the High Court Civil Procedure Rules 2004, CI. 47, gives the court the power to amend suo motu. It provides that

“7. Amendment of other documents

(1) For the purpose of determining the real question in controversy between the parties or of correcting any defect or error in the proceedings, the Court may, at any stage of the proceedings either of its own motion or on the application of any party, order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner as it may direct.

(2) This rule shall not apply in relation to a judgment or order.”

This rule had long been affirmed by the Supreme Court in Ghana Ports and Harbours Authority vs. Issoufou [1993-1994] 1 GLR 24 where the court reiterated the law that

“The courts had a duty to ensure that justice was done in cases before them and should not let that duty be circumvented by mere technicalities. Since the power to make amendments to the capacity of a party rested in the inherent jurisdiction of the courts, the courts could, when the issue was raised either in the trial court any time after judgment was delivered or in the appellate court on the application of a party to the suit, orally or otherwise, grant such amendments as were necessary to meet the justice of the case.”

The evidence before the court shows that the 1^st plaintiff is owned and operated by Yaw Banning Darko who describes himself as the Chief Executive Officer of the 1^st plaintiff. Indeed all the correspondence from the 1^st plaintiff, which was tendered in evidence, was signed by Yaw Banning Darko.

On the strength of the authorities therefore the writ will be amended by amending the name of the 1^st plaintiff to read “Yaw Banning Darko operating under the name Dakab Consult.”

Finally, the court holds that the plaintiffs are entitled to their claims against the defendants. Judgment is therefore entered for the plaintiffs to recover from the defendants the sum of GH₵552,146.46 together with interest at the prevailing rate from 18^th May 2011, the date on which the 1^st plaintiff wrote his bill to the 2^nd defendant to the date of final payment. Judgment is also entered for the plaintiff to recover the unpaid balance of their bill in respect of the earlier works executed by them as already stated in this judgment. Costs of GH₵2,500 to the plaintiffs against the defendants.

By a writ of summons issued in January 2012, the plaintiffs seek:

a. A declaration that plaintiffs are entitled to recover the sum of GH₵552,146.46 being fee claim for work done for the 2^nd defendant sector Ministry on renovation and redecoration of UNDP flats at Cantonments

b. Interest on GH₵552,146.46 at the prevailing bank lending rate from April, 2003 to date of final payment.

c. General damages for breach of contract.

d. Costs including lawyer’s fees.

e. Any just and equitable reliefs.

After the close of pleadings and the inability of the parties to settle at pre-trial, the matter was set down for hearing at which the parties gave evidence per their representatives and closed their cases.

From the statement of claim filed by the plaintiffs, the court finds that the 2^nd defendant, per a letter dated the 25^th March 2002, informed the 1^st plaintiff of the 2^nd defendant’s intention to rehabilitate the UNDP block of flats situate at Cantonments. The court finds that by the same letter, the 2^nd defendant invited the 1^st plaintiff to assess the works which needed to be carried out on the said UNDP flats. Indeed these works included mechanical, electrical, masonry, and painting among others. Again the court finds that by the same letter the 2^nd defendant invited the 1^st plaintiff to submit estimates in respect of the costs of the rehabilitation works. Exhibit A tendered by the plaintiff attests to this finding.

From the statement of claim the court finds that in response to the 2^nd defendant’s request contained in exhibit A herein the 1^st plaintiff, who is a Quantity Surveyor by profession, engaged the services of X-Cell Engineering, 2^nd plaintiff herein to assist the 1^st plaintiff carry out the work which it had been tasked to do; and, on the 23^rd August 2002 the plaintiffs submitted a report including the estimates to the 2^nd defendant. This is evidenced by exhibit B tendered by the plaintiffs. Again from the statement of claim the court finds that on the 4^th day of September, 2002 the plaintiffs submitted to the 2^nd defendant a Consultancy fee for the consideration of the 2^nd defendant as shown by exhibit C.

The above findings of fact are all contained in paragraphs 6 and 7 of the statement of claim which have been admitted by the defendants in paragraph 6 of their statement of defence. The court holds that the defendants are bound by their admissions and hence the plaintiff need not give evidence in proof of these admitted allegations. See Fori vs. Ayirebi [1966] GLR 627 at 647.

From exhibit C the court finds that the consultancy fee which the plaintiffs levied on the 2^nd defendant for the works which they discharged, by virtue of the 2^nd defendant’s request per exhibit A, was in the sum of ₵67,516,350. This amount had been misquoted by the plaintiffs in paragraph 8 of their statement of claim as GH₵6,751,635.

The court finds from the evidence given by the 1^st plaintiff that out of the bill, exhibit C, which was submitted to the 2^nd defendant, an amount of ₵10,000,000 was paid to the plaintiffs by the 2^nd defendant as shown by exhibit D. The witness for the defendant, one Yahaya Ahmed Yakubu, the Director of Housing at the 2^nd defendant, admitted during cross examination on the 4^th March 2015 that the ₵10,000,000 paid by the 2^nd defendant to the plaintiffs does not represent payment for the full bill submitted to the 2^nd defendant by the plaintiffs herein. It implies therefore that the defendants’ averment in paragraph 12 of their statement of defence that the defendants “do not owe the plaintiffs any money and that whatever work they did was fully paid for” cannot be correct.

In the opinion of the court if it is true that the defendants have fully paid for the work done by the plaintiffs then it is the duty of the defence to adduce credible evidence to prove that allegation in accordance with sections 14 and 17 of the Evidence Act 1975, NRCD 323. Thus in Ababio vs. Akwasi III [1994-1995] GBR 774 it was held that:

“A party whose pleading raised an issue essential to the success of the case assumed the burden of proving such issue. The burden only shifted to the [other party] when [such a party] had adduced evidence to establish the claim”

The court has also explained in the recent case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another [2012] 2 SCGLR 845 at 867 that

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”

From the evidence adduced the court holds that the defendants have failed to prove that they do not owe the plaintiffs for the works done by the plaintiffs on the instructions of the 2^nd defendant. The court is satisfied from the pleadings and the evidence on record that the defendants are indebted to the plaintiffs for the works which the plaintiffs executed for the defendants based on the request which the 2^nd defendant made to the 1^st plaintiff per exhibit A.

From the endorsement on the writ of summons, it is clear that the plaintiffs are not claiming, as part of their reliefs, the difference between the bill in exhibit C which is ₵67,516,350 and the amount actually paid to them by the defendants which is stated to be ₵10,000,000. By calculation the difference will be ₵57,516,350 which translates into GH₵5,752. However, notwithstanding the failure of the plaintiffs in couching a claim for the difference as stated herein, there are authorities to the effect that once there is evidence on record in support of the said claim, the court has power to give judgment in favour of the claim. See In re Gomoa Ajumako Paramount Stool; Acquah vs. Apaa [1998-1999] SCGLR 312;

Hanna Assi (No.2) vs. Gihoc Refrigeration & Household Production Ltd (No.2) [2007-2008] SCGLR

Consequently, judgment will be entered for the plaintiffs against the defendants in the sum of

₵57,516,350 which is the same as GH₵5,752. Plus interest at the current bank rate from 4^th September, 2002 to the date of final payment.

In addition to the works done by the plaintiffs on the strength of exhibit A, the court finds that on the 27^th February 2003, the 2^nd defendant again authorized the 1^st plaintiff to “prepare tendering documents prior to tendering process towards rehabilitation of the UNDP flats with the view to rectifying electrical, mechanical, structural and architectural defects to upgrade the standard of the flats to attract higher rental value”. Further, the 2^nd defendant authorized the 1^st plaintiff to prepare and present to it, Bills of

Quantities for the consideration of the 2^nd defendant. These facts which are supported by exhibit E tendered by the plaintiffs are pleaded in paragraph 9 of the plaintiffs’ statement of claim. Not surprisingly, the defendants have admitted these facts in paragraph 8 of their statement of defence.

The court finds that in response to the 2^nd defendant’s letter of 27^th February 2003 the 1^st plaintiff wrote an acknowledgement dated 28^th February 2003, exhibit F herein and undertook to present to the 2^nd defendant detailed Bills of Quantities for its consideration.

Following these exchanges, the court finds that the plaintiffs prepared various drawings and Bills of Quantities as shown by exhibits G, G1 to G21 and submitted them to the 2^nd defendant. The court finds from the evidence on record that as a result of the works done by the plaintiffs, the 2^nd defendant initiated processes leading to the award of contract to Messrs China State Hualong Construction (Gh.) Ltd. to undertake the works. Exhibits H, J, K, L, M, T and U attest to this fact.

The court finds that following the works done by the plaintiffs a bill, exhibit V herein, was submitted by the plaintiffs to the 2^nd defendant for payment to the plaintiffs, consultancy fee of GH₵552,141.46.

The defendants say that they are not indebted to the plaintiffs for the reason that the plaintiffs have failed to produce evidence of a contractual relationship between the plaintiff and the 2^nd defendant. Indeed, in their evidence in chief and throughout the trial, the defendants’ defence is that there is no contract between them and the plaintiffs and that the plaintiffs have failed to furnish documentary evidence of any contract between the parties so the defendants are not indebted to the plaintiffs.

The defendants’ contention that the plaintiffs “have failed to produce any evidence of any alleged contractual relationship with the Ministry” comes to the court as a great surprise. This is so because, as pointed out above, the defendants have, in paragraph 8 of their statement of defence, admitted that the 2^nd defendant wrote exhibit E to the 1^st plaintiff in which the 2^nd defendant requested the 1^st plaintiff to prepare Tender Documents and Bills of Quantities in respect of the renovation of the UNDP flats at Cantonments prior to tendering. In the opinion of the court the language used in exhibit E makes that letter an offer to the 1^st plaintiff. The authors in Chitty on Contracts (28^th ed.) published by Sweet and Maxwell (1999) Vol. 1 page 90 para. 2-002 defines an offer

“as an expression of willingness to contract made with the intention (actual or apparent) that it is to become binding on the person making it as soon as it is accepted by the person to whom it is addressed’

According to the authors,

“Under the objective test of agreement, an apparent intention to be bound may suffice, i.e. the alleged offeror may be bound if his words or conduct are such as to induce a reasonable person to believe that he intends to be bound, even though in fact he has no such intention”

In her book The Law of Contract in Ghana (2011), published by Frontiers Printing and Publishing Company, Ghana the learned author, Dowuona-Hammond, states at para. 2 page 18 that

“an offer may be defined as a statement or conduct indicating a willingness to contract on terms stated or on terms which can reasonably be inferred from conduct, and made with the intention that it will become binding as soon as it is accepted”

In NTHC Ltd vs. Antwi [2009] SCGLR 117 at 125 the Supreme Court stated that:

“an offer is an indication in words or by conduct by an offeror that he or she is prepared to be bound by a contract in the terms expressed in the offer, if the offeree communicates to the offeror his or her acceptance of those terms”

The court is of the opinion that once it is shown that the 1^st plaintiff either accepted, in writing, the terms in exhibit E or acted upon the directives in exhibit E, a contract can legitimately be inferred. See Fofie vs. Zanyo [1992] 2 GLR 475.

Indeed, in the instant case, not only did the 1^st plaintiff accept the terms in exhibit E by writing exhibit F to the 2^nd defendant but the 1^st and the 2^nd plaintiffs went ahead to perform the obligations imposed on them by exhibit E by the preparation and submission to the 2^nd defendant exhibits G series. Thus, by writing and by conduct, the 1^st plaintiff accepted the terms of exhibit E. The court therefore holds that there exist a contract between, at least, the 1^st plaintiff and the 2^nd defendant.

The defendants have strenuously argued that there was no formal agreement between the parties and that the procedure set out in the Public Procurement Act 2003 (Act 663) was not observed. The court finds it difficult to appreciate what the defendants meant by formal agreement. The court is, however, of the opinion that exhibits E and F constitute a formal contract between the 1^st plaintiff and the 2^nd defendant. There is no law that a formal contract between parties must be contained in one document. Once the parties have exchanged documents detailing the terms of their agreement, the documents together constitute the contract between the parties.

Even if the contract was just a verbal one it could still be enforced. At common law contracts could be formal or informal and except a statute specifically says so, contracts entered into by verbal agreements are enforceable. For instance, there is a specific requirement under section 14 of the Contracts Act 1960, Act 25 that makes it mandatory that a contract of guarantee must be in writing and signed by the guarantor in order to be valid. Again, as an example, the Conveyancing Act 1975, NRCD 175 provides in section 2 as follows

“A contract for the transfer of an interest in land is not enforceable unless

(a) it is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorised to sign on behalf of that person, or

(b) it is relieved against the need for a writing by section 3.”

Even then, in Fofie vs. Zanyo (supra) it was pointed out at page 477 of the report that

“The court was entitled in certain cases to permit a contract to be proved by oral evidence, even though of a kind required to be proved in writing, when the party seeking to enforce the contract had done acts in performance of his obligations under it. The court would exercise its discretion where (a) the act of part performance was referable to only the contract alleged; (b) they were such as would render it a fraud in the defendant to take advantage of the contract not being in writing; (c) the contract by its own nature was enforceable by the court; and (d) there had to be proper parol evidence of the contract let in by the act of part performance.”

In the instant case however, the contract between the plaintiffs and the 2^nd defendant was not oral but in writing as shown by exhibits E and F. At any rate at the time the parties entered into the agreement, there was no specific law that such contracts ought to be in writing before they could be enforced or recognized at law. As was held in Kobaku Associates vs. Owusu [2003-2005] 1 GLR 611

“A contract between an architect and a client was not required to be in writing and therefore under section 11 of the Contracts Act, 1960 (Act 25) would not be void simply because it was not written. Moreover, on the authorities, where there was no express contract with architects (and engineers) the right to remuneration was implied by the request and acceptance of the plans produced, except where there was evidence that the plans were to be merely submitted for approval, in which case they were deemed to be probationary drawing constituting an offer from the architect. And as soon as the plans were accepted the right to remuneration would arise.”

As explained, it is only when one could find a statute requiring that a particular type of contract must be in writing that a written contract becomes mandatory for the enforcement of that particular type of contracts. Hence, in the absence of a statute making it mandatory for particular contracts to be in writing, agreements verbally reached by parties, all other requirements being present, are as enforceable as their written counterparts. Indeed, that is the essence of section 11 of the Contracts Act, 1960 Act 25 when it states that

“11. Contracts need not be in writing except in certain cases Subject to this Act, and to any other enactment, a contract whether made before or after the commencement of this Act, is not void or unenforceable by reason only that it is not in writing or that there is no memorandum or note of the contract in writing.”

As already indicated above, the plaintiffs had proved, by exhibits G series, among others, that they had discharged their obligations under the contract. Indeed, exhibits G series were prepared only in response to the request by the 2^nd defendant contained in exhibit E that the 1^st plaintiff prepares Tender Documents and Bills of Quantities in respect of the renovation of the UNDP flats at Cantonments prior to tendering.

One may legitimately ask whether it would not be fraudulent on the part of the defendants to refuse to pay the plaintiffs, after benefiting from the works executed by the plaintiffs, on the ground that there is no agreement just because the terms are not contained in a single document.

Section 26 of the Evidence Act 1975 NRCD 323 is apt on this issue. It states that

“Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between

(a) that party or the successors in interest of that party, and

(b) the relying person or successors in interest of that person.”

The defendants have admitted writing exhibit E to the 1^st plaintiff. In exhibit E the 2^nd defendant requested the 1^st plaintiff to prepare Tendering Documents “prior to tendering process towards rehabilitation of the UNDP flats…” and also “present detailed Bills of Quantities for consideration” The 1^st plaintiff, in response, wrote exhibit F and thereafter, together with 2^nd  plaintiff prepared and submitted to 2^nd defendant, exhibits G series in the discharge of their obligations under exhibit E. The relevant portion of exhibit G in particular states as follows:

“REHABILITATION OF UNDP FLATS

We refer to your letter dated 27^th February 2003 and wish to inform you that Tender documents for the above project are ready.

We forward herewith one (1) copy each of the Approximate Bills of Quantities for your study and further direction”

In the opinion of the court it would be fraudulent in the defendant to say that they would not pay the plaintiffs because there is absence of a single document containing the terms of the plaintiffs’ engagement. The defendants are surely estopped by their conduct.

The defendants have argued that the plaintiffs did not go through the laid down procedures in obtaining the contract and that the proper authority did not authorize the execution of the contract. The defendants have, in their addresses, made reference to the need for an advertisement in the newspapers inviting tenders, the need for the plaintiffs to submit their bids, the need for evaluation and other procedures which should have been gone through before the award of the contract. Unfortunately, the defendants failed to mention the law which requires all these procedures to be followed before such contracts are awarded.

The question is that even if there was in existence any such law, is it only the plaintiffs who failed to comply with it? Are the defendants, particularly, is the 2^nd defendant not guilty of its breach just as the plaintiff? And if so, why should the 2^nddefendant be permitted to keep the benefit of its breach, by enjoying the services rendered by the plaintiffs whiles the plaintiffs suffer from an alleged breach by being denied payment for the works done by them at the promptings of the 2^nd defendant? Where is the equity and good conscience in such a step? In the opinion of the court it would be unfair, unjust, inequitable, and unconscionable to deprive the plaintiffs of their remuneration.

It seems to the court that the defendant had in mind the Public Procurement Act, 2003 Act 663, which sets out in part six, sections 66 to 77, the methods and procedures to be followed before the services of Consultants were engaged by agencies and departments of Government. It ought however to be pointed out that Act 663 received Presidential assent after the contract, subject of this suit, had been entered and for that matter this Act does not operate retrospectively to regulate the contract, subject matter of this suit.

Another issue which engaged the attention of the defendants at the trial was the amount being claimed by the plaintiffs. The defendants had, in effect, argued that the fee payable to the plaintiffs, being the consideration for the works done, was not known at the time the parties entered the agreement and so there was no contract upon which the plaintiffs could sue. The plaintiffs’ explanation, which the defendants did not challenge and which the court has also no reason to reject, is that the Ministry of Works and Housing has a scale of fees, expressed as a percentage of the value of the contract sum and that whenever a contract was awarded the Consultants are presumed to have accepted the scale of fees agreed and approved by the Ministry.

The amount endorsed on the writ and claimed by the plaintiffs is GH₵552,146.46. This claim is supported by exhibit V the bill of fees which the plaintiffs submitted to the 2^nd defendants for payment. It appears that when the defendants disputed the fees, the plaintiffs obtained an assessment of their fees from the Ghana Institution of Surveyors, exhibit X herein which fixed the plaintiffs’ fees at US$265,666.52. The defendants also obtained an assessment of the plaintiffs’ fees from the Architectural and Engineering Services Limited, exhibit 1 herein, which fixed the fees at US$181,778.94.

Apart from there being no reason for the court to accept any of the fees quoted in exhibits X and 1, over the fees being claimed by the plaintiffs, the court finds that a conservative conversion of the amounts quoted in these exhibits from the dollar into the Ghana Cedis would far exceed the amount being claimed by the plaintiffs. It therefore makes good sense to accept the amount endorsed on the writ.

There is yet one final issue which, although was not specifically raised by the defendants, the court wishes to discuss before concluding on this matter. At paragraph 1 of the statement of claim, the 1^st plaintiff describes itself as a “sole proprietorship”, yet the writ is issued in the name of the 1^st plaintiff which is only a business name which lacks capacity to sue as if it were a legal entity. The court is of the view that it has enough powers to effect an amendment of the capacity in which the 1^st plaintiff had sued in order that the real issue in controversy between the parties is determined and not defeated by a mere technicality. Indeed, Order 16 rule 7 of the High Court Civil Procedure Rules 2004, CI. 47, gives the court the power to amend suo motu. It provides that

“7. Amendment of other documents

(1) For the purpose of determining the real question in controversy between the parties or of correcting any defect or error in the proceedings, the Court may, at any stage of the proceedings either of its own motion or on the application of any party, order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner as it may direct.

(2) This rule shall not apply in relation to a judgment or order.”

This rule had long been affirmed by the Supreme Court in Ghana Ports and Harbours Authority vs. Issoufou [1993-1994] 1 GLR 24 where the court reiterated the law that

“The courts had a duty to ensure that justice was done in cases before them and should not let that duty be circumvented by mere technicalities. Since the power to make amendments to the capacity of a party rested in the inherent jurisdiction of the courts, the courts could, when the issue was raised either in the trial court any time after judgment was delivered or in the appellate court on the application of a party to the suit, orally or otherwise, grant such amendments as were necessary to meet the justice of the case.”

The evidence before the court shows that the 1^st plaintiff is owned and operated by Yaw Banning Darko who describes himself as the Chief Executive Officer of the 1^st plaintiff. Indeed all the correspondence from the 1^st plaintiff, which was tendered in evidence, was signed by Yaw Banning Darko.

On the strength of the authorities therefore the writ will be amended by amending the name of the 1^st plaintiff to read “Yaw Banning Darko operating under the name Dakab Consult.”

Finally, the court holds that the plaintiffs are entitled to their claims against the defendants. Judgment is therefore entered for the plaintiffs to recover from the defendants the sum of GH₵552,146.46 together with interest at the prevailing rate from 18^th May 2011, the date on which the 1^st plaintiff wrote his bill to the 2^nd defendant to the date of final payment. Judgment is also entered for the plaintiff to recover the unpaid balance of their bill in respect of the earlier works executed by them as already stated in this judgment. Costs of GH₵2,500 to the plaintiffs against the defendants.