Posted on: www.dailyguideghana.com
By
William Yaw Owusu
Friday, October 4, 2013
The scandal of the alleged importation
of secondhand uniforms for the Ghana National Fire Service (GNFS) got murkier
yesterday when Chairman of the Fire Service Council, Alhaji Amadu Sorogho
stormed the studios of Oman FM to
vary the details already in the media.
Alhaji Sorogho who is the NDC MP for
Madina engaged the other panelists on the programme in a bid to pour cold water
over the fire generated by the reports claiming among other things that board
did not know the quality of the uniforms which he added were not destined for
personnel of the GNFS but rather “for fire volunteers and school fire cadet
corps”.
Interestingly, he had said that the
uniforms were distributed to officers only to retrieve them when they realized
that they were mismatched and that some of them had condoms and name tag of the
original users.
At that time GNFS had paid GHC1million
to the suppliers of the second hand uniforms which had some already torn.
The arrangement to import the items
passed through the approved processes such as the opening of tender and the
like until the final arrival of the goods.
When the goods arrived he said the board
delegated the task of inspecting the contents for the necessary okay to an
Acceptance Board. “The Acceptance Board was made up of personnel of GNFS
empanelled by the council to inspect and give approval for the acceptance of
the uniforms” Alhaji Sorogho said.
He had a nasty time fielding questions
from others on the programme for who his submissions were full of glib.
His feigning of ignorance about the
contents of the baggage for instance had his integrity questioned by others on the panel.
Kwabena Bomfeh, aka Kabila, told the
gatecrasher that he had worsened his case by his interventions having as he put
it “showed how useless the board was in the face of the nasty developments
regarding the uniforms. You should not have even showed up at all. The board
and legal department knew about the import and the effecting of the garnishee order.”
Alhaji Sorogho could not avoid showing
off what for him were some of his achievements as Chairman of the GNFS Board
having retooled the Service with new fire tenders.
However, in the face of the retooling of
the firemen, 2013 had recorded the most blazing fires in the history the
country in recent times with fire fighters unable to contain the fires, making
the whole retooling nonsense.
He appeared to be veering off the issues
at stake-importation of used clothing for the Service-much to his disadvantage
as he engaged others on the panel as they reached for the kill.
The Chairman announced that a panel had
been established to probe the matter and “they have asked for an extension to
the ten-day time limit we gave them.”
Continuing to give an insight into the
debacle he pointed out that it was detected that the uniforms besides not
bearing the camouflage colours of the Service did not meet the general
specification of the contract.
Disagreements
A disagreement ensued between the
supplier and the board over the specification he said. “Uniforms are supplied
in pairs and not in pieces as contained in the baggage under review. The woman
insisted on having followed what was contained in the terms of the contract.
Eventually the matter was taken to court through the Attorney General by our
counsel, Lawyer Obiri” pointing out that “the court ruled against us and we
found that absurd and therefore asked for a review of the case”.
“We could not have distributed the
uniforms to personnel when the matter was in court. It was only when we lost
the case that we opened the baggage and discovered the quality of the contents”
he said.
Madam Maud Nongo whose company, Jild
Ventures was awarded the contract was paid as per the order of the court
according to Alhaji Sorogho.
Facts
Of The Case
In 2010 the Fire Service invited public
tenders for the supply of various items including 16, 339 pairs of camouflage
uniforms. The invitation for public
tender was carried in the National Dailies in 2010.
Madam Nongo put in a tender and having
been declared successful, entered into a formal contract with the GNFS for the
supply of the camouflage uniforms.
Upon the delivery of the uniforms, the
service took issue with the plaintiff that the contract was for the supply of
16,339 pairs of uniforms. The plaintiff
however, intimated that the formal agreement entered into with the defendant
was for the supply of 16339 pieces of uniforms and not 16339 pairs as contended
by the defendant.
Issues
Set For Trial
After the service of the plaintiff’s
writ of summons and its accompanying statement of claim on the defendant, an
appearance was filed and later a Statement of Defence for and on behalf of the
GNFS.
At the application for directions stage
the court adopted issues including “Whether or not the invitation for tenders
by the Defendant was an invitation to treat for the supply of 16,339 pairs of
camouflage uniforms by the plaintiff to the Defendant’, and whether or not the
insertion of the word ‘pieces’ in the contract, dated, 1st December,
2010 was inadvertent and not pursuant to the invitation for tenders by the
defendant.”
The court also looked at “whether
or not the delivery of 8,373 and 7,757 pieces of camouflage uniforms by the
plaintiff was in accordance with the contract of 1st December, 2010.”
Issues
Not In Dispute
According to the court, exhibits
tendered showed that it was not in dispute the plaintiff put in a tender to
supply 16,339 pieces of camouflage uniforms from Switzerland at a price of
GH¢48.33 a piece at a total cost of GH¢789,663.87.
It is also not in dispute that
the GNFS, on the November 25, 2010 addressed to the plaintiff, a letter titled
“Notification of Award: Supply of Camouflage Uniforms’.
In the amount of GH¢789,663.87 in
accordance with the instructions to Tenderers us hereby accepted’.
Analysis
The court said that some of the exhibits
of the defendants had requested the plaintiff to furnish the GNFS with a
Performance Bond “within 14 days of the receipt of Notification of Award of the
Contract,” adding “as a result the plaintiff furnished a Performance Bond
exhibit ‘E’ herein which she procured from Phoenix Insurance. Exhibit ‘E’ was dated 29th
November, 2010.”
“I find that by exhibit ‘F’ dated the 1st
day of December, 2010, the defendant executed a formal contract with the
plaintiff for the “Supply of 16,339 pieces of camouflage uniforms,” adding
“there is evidence to the effect that after the execution of the contract, the
plaintiff obtained a loan from the Bank and imported the camouflage uniforms.”
“I find from exhibit ‘2’ that the actual
quantity of camouflage uniforms supplied by the plaintiff was 16,130 pieces
comprising 8373 trousers and 7757 jackets.
This finding is supported also by the plaintiff’s answer in admission during
cross examination. Nevertheless, an
inspection team formed by the defendant accepted the goods supplied by the
plaintiff herein and wrote an acceptance report dated 7th July, 2011
received in evidence.”
The court said it found that after the
supply of the uniforms, the defendant paired them by way of one trouser to one
jacket as a result of which 7757 pairs were generated leaving 616 excess
trousers, adding that “these excess trousers of 616 were rejected by the defendant who then wrote
exhibit ‘K’ a letter dated the 7th day of July, 2011 in which the
defendant requested the plaintiff to submit fresh invoices for “7,757 full sets
of camouflage uniforms or 15,514 pieces at a rate of GH¢48,33 per piece.
Exhibit ‘K’ also requested the plaintiff to ‘take back the 616 pieces of
trousers still in the possession of the defendant.”
The court said that there was
evidence on record that despite directives from the Sector Minister that the
GNFS pays for 15,514 pieces of uniforms as a result of which some exhibits were
requested and furnished, the defendant was still unwilling to pay the plaintiff
the cost as directed.
“The plaintiff’s lawyer therefore
wrote to the Minister a letter dated the 22nd August, 2011 pointing
out the fact of non-compliance with the Minister’s directives by the
defendant.”
“The court finds that the defendant’s
unwillingness to pay for the goods supplied by the plaintiff which it had
accepted arose from various correspondences between it and the Ministry for
Interior.”
Fire
Service Council
Justice Kwame Asiedu said that
the court found the evidence on record that the Fire Service Council played a
major role in the non-payment of the plaintiff for the goods which she supplied
and were accepted by the defendant saying “there is evidence that the Fire
Service Council met on the 13th July, 2011.”
“In the opinion of the court the Fire
Service Council fell into a grievous error when it stated, without recourse to
the contract document, that ‘naturally uniforms are worn in pairs’ adding “The
court can take judicial notice of the fact that whether apparel can pass for
‘uniform’ depends on the organization concerned.”
Pieces
vrs Pairs
The court found that evidence adduce at
the trial was that it was not entirely correct as stated by the Fire Service
Council that uniforms are worn in pairs adding “the defendant did not contract
with the plaintiff for the supply of what are ‘worn in pairs’. Rather the
contract evidenced by exhibit ‘F’ was for the supply of 16,339 pieces of
camouflage uniforms.”
“Even in the Fire Service,
uniform is not necessarily a reference to a particular shirt and trouser but it includes the cup and
the boots as well as the socks and the belt and many others apparels on the
dress worn sometimes with reference to the rank of the officer in question.”
Justice Asiedu held that per the
evidence adduced, the invitation for tender published in the various newspapers
was not part of the contract documents adding “hence it was wrongful for the
Fire Service Council to rely on the invitation to treat as constituting a
contract and then say that uniforms are naturally worn in pairs.”
“Worse still in the 21st
century, where the law is held supreme, it sounds oppressive and totalitarian
for the Fire Service Council to conclude as it did that: ‘Should this arrangement not be
acceptable to the supplier then the entire consignment delivered by the
supplier should be rejected’.”
“Within the context of exhibit “F” the
contract executed between the plaintiff and the defendant herein, the word
‘piece’ as used in the phrase ‘supply of 16,339 pieces of camouflage uniforms’
in my view therefore, cannot be interpreted to read ‘pairs’.”
“That will surely amount to re-writing
the contract for the parties. In my
opinion given the context in which ‘piece’ has been used in the contract
between the parties, the most appropriate meaning is that which connotes
singleness or a unit of. Hence, the phrase “16, 339 pieces of camouflage
uniforms” will imply “16,339 units of camouflage uniforms or units of
camouflage uniforms which adds up to 16, 339,” the judge held.
The court held that the GNFS contracted
with the plaintiff to supply parts of or sections of or individual items or
units of uniforms that sums up in total to 16, 339 adding “in the view of the
court it will be unconscionable for the defendant to contract with the
plaintiff to supply 16, 339 pieces of uniforms at GH¢48. 33 per piece and then
when it comes to paying for the commodity for the defendant to turn round to
say a ‘piece’ means ‘pairs’ to enable the defendant take two pieces for the
price of one piece contrary to the agreement as shown in the contract exhibit
‘F’.”
“The plaintiff put in a tender for the
supply of 16, 339 pieces of camouflage uniforms. Subsequently, the defendant, on 25th
November, 2010 wrote a ‘notification of award – supply of camouflage uniforms’
to the plaintiff evidenced by exhibit ‘D’.
Here again, the defendant indicated to the plaintiff that she was to
supply 16, 339 pieces of camouflage uniforms. Then on the 1st
December, 2010 the defendant executed a formal contract with the plaintiff for
the “supply of 16, 339 pieces of camouflage uniforms”.
In my opinion the GNFS has exhibited all
the outward signs of agreement that the plaintiff was to supply 16, 339 pieces
of camouflage uniforms. I hold that the
defendant is bound by the contract to which it had manifestly and voluntarily
expressed its assent even if its actual intentions were different.”
The judge said that if the GNFS had in
fact made a mistake by its inability to express its intentions clearly on the
contract document by stating ‘16,339 pieces’ instead of ‘16,339 pairs’ the
plaintiff should not be the one to suffer for it holding that “the defendant
must bear the brunt and the consequences of its own mistake. I hold therefore that the defendant – Ghana
National Fire Service is bound to pay for all the goods supplied by the
plaintiff which it had by exhibit ‘H’ accepted.”
The court also acknowledged that the
plaintiff agreed to take back six hundred and sixteen (616) pieces of the
trousers supplied and ruled that “the defendant is therefore liable to the
plaintiff for the cost of the remainder of the goods totaling 15,514 pieces at
GH¢48.33 which sums up to GH¢749,791.62.”
In the end the court had entered an
amount of GH¢749,791.62 as judgment for the plaintiff against the defendant and
also held that the plaintiff was also entitled to recover interest in view of
the delay in the payment by the defendant.
Costs of GH¢5000.00 was also awarded
against the defendant.
The GNFS was represented in court by
Emmanuel Jiaggey (Do3) with Cecil Adadevor supported by Tricia Quartey as
counsel for the GNFS while Ken Anku holding the brief of Acquah Sampson
represented the plaintiff on judgement day which was delivered on August 8,
2012
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