TABCON LIMITED v. THE ATTORNEY-GENERAL & THE MINISTRY OF TRANSPORT

MARFUL-SAU JA; This appeal is taken from the judgment of the High Court (Fast Track Division) Accra dated the 23-1-09. The Plaintiff/Respondent on 7- 11-08 issued a writ claiming against the Defendants/Appellants the following reliefs:

“a. Recovery of the agreed fixed fee of US$2,000,000.00

b. Recovery of the amount of US$3,298,200.00 being remuneration for services.

c. Recovery of reimbursable expenses of US$1,588,060.00

d. Costs of the action including Counsel’s fees.

e. Interest on the various amounts under reliefs (a) (b) and (c) at the Commercial Banks lending rate from August 2003 till date of payment”.

On the 14-11-08 the defendants entered appearance to the writ through their Solicitor the Attorney General. However on the 21-11-08 the Defendants/Appellants filed another appearance this time a conditional one through the same Attorney General.

On the 1-12-08 the Plaintiff/Respondent filed an application for summary judgment under Order 14 Rule 1&2 and Order 19 Rule 1 of CI 47. The application was fixed for hearing on the 11-12-08. Annexed to the application for the summary Judgment were documents including an Agreement between the Government of Ghana and the Plaintiff/Respondent for the implementation of a 250 KM Dual Carriage Highway from Accra to Kumasi.

Before the Application for summary judgment could be taken as scheduled the Appellants filed on the 9-12-2008 a motion on notice to amend the Entry of Appearance and fixed same for hearing on the 18-12-08. However on the 6-1-09 the Appellants filed an affidavit in opposition to the motion for summary judgment.

On the 8-1-09 the court dismissed Appellants motion to amend the notice of Appearance (see pages 149 – 153 of record of appeal). Then on the 12-1-09 the Appellants filed another motion on Notice for Stay of Proceedings under Order 19 R 1 of C 147. Indeed from page 153 of the record, it seems the appellants indicated to the court their intention to file the motion for stay of Proceedings, after the dismissal of the motion to amend the Entry of Appearance. The court below then ordered the Appellants to file the said motion to be taken together with the motion for summary judgment. On the 15-1-09 the motion for stay of proceedings was argued by both Counsel for the Appellants and Respondent and the case was adjourned to the 23-1-09 for ruling. The court below dismissed the motion for stay of proceedings paving the way for both counsel to argue the motion for summary judgment. Summary j