July 21, 1983
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court appeal arises from a construction dispute among C. O. Sowah & Co. (the contractor), Mr. Nai Tete (the owner), and the Bank for Housing and Construction (the financier). Sowah contracted under a 1974 deed to build for ¢12,400, with staged payments and a conclusive certificate-of-fitness clause. In May 1975, after roofing, a tripartite agreement set a ¢16,575 contract sum, introduced price fluctuation and arbitration clauses, and formalized the bank’s role. In February 1975, Nai Tete ordered extras by collateral oral agreement totaling ¢4,200, and the bank later directed screeding and related works. Sowah obtained a municipal habitation certificate in September 1975, but the owner refused to accept keys or pay balances; the bank neither approved nor disallowed price-increase claims and ignored arbitration steps. The High Court and Court of Appeal denied Sowah’s claims. The Supreme Court majority (Taylor J.S.C.; Apaloo C.J.; Francois J.A.; Edward Wiredu J.A.) held the 1975 agreement did not supersede the 1974 deed, recognized enforceable parol extras, implied price-adjustment due to inflation, found the bank breached its clause 14 discretion, and awarded the claimed sums, damages, and costs, dismissing Nai Tete’s counterclaim. Adade J.S.C. dissented.
JUDGMENT OF APALOO C.J.
I agree with the judgment to be read by my brother Taylor J.S.C. that the appeal should be allowed and have nothing to add.
JUDGMENT OF TAYLOR J.S.C
By his writ, the plaintiff-appellant instituted an action on 30 April 1976 at the High Court against the first and second defendants-respondents jointly and severally for:
[p.1329]
"(a) ¢11,717 being the cost of work he claimed to have completed under a building contract dated 8 November 1974 and 3 May 1975 as varied by the second defendant, the owner of the building.
(b) ¢12,173 being extra work constructed outside the contracts at the request of the first defendant.
(ii) Wages for day and night watchman at ¢150 per month from 1 October 1975 to 30 June 1977 and ¢250 per month from 1 July 1977 to date of judgment.
(c) Damages for breach of contract."
The second defendant set up in defence a counterclaim of ¢2,366 and at the High Court, the plaintiff's claims against the defendants were dismissed and judgment was given against him in favour of the second defendant for his counterclaim of ¢2,366: see Sowah v. Bank for Housing and Tete [1979] G.L.R. 144. The plaintiff's appeal to the Court of Appeal was equally dismissed although an adjustment was made in regard to the counterclaim which was then reduced to ¢151 and judgment was entered in favour of the second defendant for this sum.
In order to appreciate the plaintiff's claims and decide the matters in controversy between all the parties to this appeal, it is necessary to examine the nature of the relevant contractual obligations which all the parties undertook towards each other, the manner in which each party fulfilled or failed to fulfil his part of the bargain and the legal consequences which must of necessity follow from the course of conduct pursued by each party.
The plaintiff, Mr. Sowah, hereinafter referred to in this judgment as the contract or, entered into a contract under seal on 8 November 1974 with the second defendant, Mr. Nai Tete, as owner to put up a building for him at a cost of ¢12,400. The terms of the contract, very germane in this appeal, are clauses 1(a), 1(b) and the default provisions in clauses 3 and 4. Under 1(a) the owner, Nai Tete, granted the contractor the right to enter his land "for the purpose of constructing thereon the aforesaid building together with the drainage and including fence according to the specification approved in the plan attached hereto." Under clause 1(b):
" . . . the c