DE SIMONE LTD vrs OLAM GHANA LTD

INTRODUCTION

[1]. This appeal arises from a construction contract between De Simone Ltd (“the Appellant”), a civil engineering and construction firm, and Olam Ghana Ltd (“the Respondent”), a company incorporated under the laws of Ghana. Under the terms of the agreement dated 15th December 2011, the Appellant undertook to design and construct a Wheat Mill factory for the Respondent at Kpone, Tema, for the fixed price of US $12,000,000.00. Disputes emerged when the Respondent failed to pay various progress claims and continued to direct additional works and variations to the scope of the project. In the High Court, the Appellant’s amended writ of summons and statement of claim filed on 7th February 2019 sought:

(a) An order for payment by the Respondent of US $8,202,687.71, representing the aggregate value of works performed, loss of profit, and cost overruns incurred by the Appellant; and

(b) Interest on that sum from 30 June 2012 until the date of final judgment.

[2]. The Respondent denied liability to pay the sums claimed and, by its further amended statement of defence and counterclaim filed on 22 May 2019, counterclaimed against the Appellant for:

(i) General damages for breach of contract;

(ii) The sum of US$12,512,000.00, calculated at US$16,000.00 per day of delay in handing over certain foundations, buildings, and utilities; and

(iii) Costs of the counterclaim.

APPELLANT’S PLEADED CASE

[3]. By their Further Amended Statement of Claim filed on 7th February 2019, the Appellant (formerly “the Plaintiff”) avers that on 8th December 2010, they entered into an agreement with the Respondent (formerly “the Defendant”) for the construction of a Wheat Mill factory at Kpone, Tema, for a total sum of US$12,000,000. Under the terms of the agreement, various sections of the factory were to be completed and handed over by agreed dates. The entire factory, however, was to be completed by the Appellant within 311 days—on or before 15th October 2011.

[4]. The Appellant contends that while they completed and handed over the Mill and Warehouse buildings in February 2012, the remainder of the factory was handed over on 31st May 2012. This was 229 days after the original agreed completion date of 15th October 2011, although the Respondent allegedly commissioned and started using the factory in February 2012. The Appellant maintains that the delay in completing the remainder of the factory was attributable exclusively to the Responden