SOWAH v. BANK FOR HOUSING AND CONSTRUCTION AND TETE

JUDGMENT OF AMUA-SEKYI J.

The plaintiff, Conrad Odoi Sowah, is the proprietor of a firm of building contractors and surveyors known as C. O. Sowah & Co. On 8 November 1974, the firm entered into a contract with Nai Tete, the second defendant, for the construction of a single storey house on his land at Labadi, Accra, at a cost of ¢12,400. The contract was tendered in evidence as exhibit B. Under it, the construction of the building was divided into six stages. Upon completion of the first stage Tete was to pay [p.146] the plaintiff ¢1,800; upon completion of the second stage, ¢2,800; upon completion of the third stage, ¢2,800; upon completion of the fourth stage, ¢3,000; upon completion of the fifth stage, ¢1,000; and upon completion of the sixth and last stage, ¢1,000. By clause 1 (b) the issue of a certificate of habitation by the Accra City Council was to be conclusive evidence that the building had been completed. The agreement was signed by Tete on his own behalf, and by the plaintiff on behalf of his firm. Although the Bank for Housing and Construction, the first defendant herein, is not a party to the agreement it is mentioned therein as the agent of Tete and it is provided that the various sums payable under the contract shall be paid by Tete or the bank.

It goes without saying that the bank not being a party to exhibit B is not bound by it, and no action could have been brought against it for non-payment of any sums alleged to be due under the contract. I take it that both parties were aware of this elementary fact but that references were made to the bank because of the expectation the parties had that all or part of the sums due under the contract would come from the bank. It is in this light that I view the subsequent agreement entered into between the plaintiff's firm and the defendants on 3 May 1975. That agreement was tendered in evidence as exhibit D. Under it, it was recited that Tete had asked for a loan to finance the construction of a building on his land at Labadi and that the bank had agreed to grant him the loan subject to certain conditions. The agreement then goes on to state that the contractor had agreed to erect at "his own proper costs and charges" the building whose plans and specifications had been agreed upon. The contract sum was ¢16,575, of which ¢1,800 was to be paid upon the signing of the contract, and the balance in accordance with clause 13 (ii) which reads:

"After the bank shall have certified that work to the v