ESSIAM VRS FEMME ARCH CONSULT & ANOTHER (H1/200/2018) [2021] GHACA 51 (28 October 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA- AD 2021 CORAM: SENYO DZAMEFE JA (PRESIDING) P BRIGHT MENSAH JA NOVISI ARYENE (MRS) JA Suit No. H1/200/2018 28th October, 2021 Civil Appeal SAMPSON ESSIAM VRS FEMME ARCH CONSULT & ANOR PLAINTIFF/RESPONDENT DEFENDANT/APPELLANT ========================================================== JUDGMENT ========================================================== NOVISI ARYENE JA Dissatisfied with the judgment of the High Court, (Commercial Division), Accra, delivered on 29th August 2014, the defendant filed the instant appeal on 26th of November 2014. His prayer is for an order setting aside the judgment and costs awarded, and for a further order for the parties to assess the work done by the plaintiff. In this appeal, the appellants shall be referred to as defendants, and the respondent as plaintiff. 1st defendant is a firm of architectural consultants and 2nd defendant is the Managing Director of 1st defendant. Sometime in September 2002, at the invitation of defendants, plaintiff, a Structural Engineer operating under the business name and style of Ela Engineering, joined a consortium of Architects, Quantity Surveyors, Structural Engineers, Mechanical Engineers and Electrical Engineers for the construction of the Maritime Clinic for the Ghana Ports and Harbours Authority at Tema and a multipurpose block for the School of Allied Health Sciences at Korle-Bu. The Korle-Bu project was later relocated to the Legon campus. Plaintiff averred that he was assigned the design and supervision of the civil/structural engineering services and was also given additional services beyond the scope of civil/structural engineering services for the Allied Health Sciences project. On the instructions of 2nd defendant he did the surveying and mapping of the site, he engaged the services of land surveyors who prepared the site plan and topography plan for the five storey multi-purpose building at Korle Bu and submitted same to 2nd defendant who prepared the architectural drawings. On receipt of the drawings from 2nd defendant, he prepared an electronic copy of the drawings and gave same to 1st defendant. Same was then submitted to the quantity surveyors to prepare the bill of quantities for the project. When the project was relocated to the University of Ghana Campus, on instructions of defendants, he prepared a plan for the seven storey multi-purpose building, and engaged the services of land surveyors to prepare site and topography plans. The plans were given to 2nd defendant for the designs. Plaintiff subsequently carried out structural analysis and design based on which Lemet Construction, the contractor, won the tender. With respect to the Maritime Clinic project, plaintiff averred that on defendants’ instructions, he prepared the road traffic data collection, designed the access road to the proposed clinic and also did the civil and structural designing for the project and gave the electronic soft copy to one of defendants’ officers. Plaintiff avers that according to the code of practice of professionals on distribution of fees as pleaded in paragraphs 17 to 19 of the amended statement of claim, defendants were entitled to 4% as fees, however they claimed 8.5%. And that this prompted him to question the basis for the distribution. The enquiry was however met with the termination of the contract on 16th May 2005, by defendants who contended that plaintiff delayed in submitting his work to the client. Plaintiff’s case is that the termination of his services was wrong in law. Per writ of summons filed on 03/11/2008 and subsequently amended, he is seeking the following reliefs: I. General damages for wrongful termination of services. II. The sum of Gh17,878.00 being plaintiff’s engineering fees for structural services for Maritime Clinic for GPHA which defendants as the lead consultants for the project have failed to pay despite repeated demands. III. Interest on the Gh17,878.00 at the current bank rate from 21st January 2005 to date of final payment. IV. Cash the sum of GHc84,872.00 being plaintiff’s engineering fees for structural services for the construction of 7 storey building for school of Allied Health Sciences with defendants as the lead consultant for the project have failed to pay. V. Interest on the Ghc84,872.00 at the current bank rate from 21st December 2004 to the date of final payment. VI. Costs Defendants denied the claim and averred per their amended statement of defence that it was defendants who sourced for the two jobs and invited plaintiff to join a consortium to execute the contract. And that as the lead consultant, defendants’ role included disciplining members of the consortium. Defendants also had power to dismiss/terminate for non-performance. It was averred that plaintiff was not up to the task and failed to execute the mandate professionally thereby putting the consortium at the peril of losing the contract. He also never completed any assignment on schedule and never gave the quantity surveyor the full set of drawings to work with. Defendant further averred that the termination letter was preceded by a letter from the lead consultant appealing to plaintiff to submit drawings he was working on, but he failed or refused to do so. And that none of the documents listed under paragraph 14 of the amended statement of claim were submitted in respect of the Korle-Bu project. Neither did plaintiff complete the work assigned to him in respect of the Maritime Clinic project. Defendants averred that plaintiff was not entitled to his claim and that the consortium assessed the work done by plaintiff and offered him Ghc6,665.00 in addition to previous payments he had received, but he refused to accept it. With respect to the code of practice of professionals for payment of fees, the consortium agreed on their own terms of sharing the fees which was binding on plaintiff. At the end of an unsuccessful pre-trial conference, fifteen issues were set down by the judge for trial. The trial judge declared the dismissal as unlawful and ruled that plaintiff was entitled to damages. He found that it was not defendants who employed plaintiff and that in respect of the Allied Health Sciences project, plaintiff was employed by the Registrar of the College and in respect of the Maritime Clinic, by the Ghana Ports and Harbours Authority. And that payment of plaintiff was only channeled through 1st defendant. The learned trial judge held that the agreements in respect of the two projects, exhibits 7 and 7A are binding on both plaintiff and defendants and that the latter was bound to adhere to the procedure laid down for dismissal for non-performing parties. See page 394 of the ROA. An interesting point of divergence between the parties was the ratio or percentage agreed on by the consortium for sharing fees. The court ruled that by failing to produce the minutes of the meeting where the consortium agreed on the ratio of distribution, defendants failed to proof that plaintiff was entitled to 2.75%. The learned trial judge preferred the testimony of plaintiff and ruled that he was entitled to 3.15%. On whether or not plaintiff discharged his duties as expected of him, the court found that plaintiff delayed in executing his core duties and the contractor had cause to complain about his inability to continue working with plaintiff. However there was ample evidence on record to show that “to a large extent” plaintiff discharged his obligations under the contract by preparing and submitting the required drawings to the consortium, albeit with “some delays”. With respect to the quantum of fees due plaintiff, the trial judge, applying the rate of 3.15%, held that plaintiff was entitled to consultancy fees of Ghc12,179 in respect of the Maritime Clinic. For the Allied Health Sciences project, he was entitled to pre-contract fee of GHc50,518 and post contract fee of Ghc1,956. The court awarded general damages in the sum of Ghc10,000.00 and costs was assessed at Gh3,000.00. See page 408 of the ROA. Dissatisfied with the decision of the trial court, defendant is before us for relief under the following grounds of appeal: a. The judgment is against the weight of evidence. b. The learned trial judge erred when he held that the dismissal of the plaintiff by the defendant was unlawful. c. The learned trial judge was wrong in holding that the rate at which the consortium agreed to pay the plaintiff was 3.15% and not 2.75%. d. The learned trial judge erred in holding that the plaintiff discharged his obligations under the contract. e. The learned trial judge erred in holding that Ekow Badu Angue corroborated the plaintiff’s case. f. The learned trial judge erred when he ordered interest to be paid on the sum of Ghc12,179 at the current bank rate from 21st of January 2005. g. The learned trial judge erred when he ordered that interest on the sum of Ghc50,518 should be paid at the current bank rate from 21st of December 2014 to the date of final payment. h. Further grounds of appeal will be filed upon receipt of a copy of the record of proceedings. No further grounds of appeal was filed. Contrary to the clear provisions of Rule 8(4) of the Court of Appeal Rules 1997, CI 19, that “where grounds of appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated” the grounds of appeal hereinbefore listed, fell short of providing particulars of the alleged errors. Suffice it to say that above provision is mandatory. See Zabrama v Segbedzi [1991]. We however observe that submissions under the offending grounds are premised on the omnibus ground that the judgment was against the weight of evidence. We shall therefore proceed to address the grounds of appeal within that context. The position of the law is that where an appeal is against findings and conclusions based on evidence as in the instant case, it is the duty of the appellate court to peruse the whole record and review the evidence to determine if the findings and conclusions in the judgment appealed against are justified, having regard to the evidence and the applicable law. See Nkrumah v Ataa [1972] 2 GLR 13, Tuakwa v Bosom [2001-2002] SCGLR 61 and also Owusu-Domena v Amoah [2015-2016] 1 SCGLR 790. It is also trite that where an appellant contends that the judgment is against the weight of evidence, the appellant bears the burden of demonstrating to the appellate court the kind/type or pieces of evidence on record which were neglected or wrongly evaluated by the court below. The position of the law is that these pieces of evidence should be such that if they had been properly applied, the case would have tilted in favour of the appellant. Djin vs Musah Baako (2007-2008) SCGLR 686 at 687, holding 1, refers. It bears mention that the Agreements for the two projects are similar in text and are in evidence as exhibits 7 and 7A. Declaring the dismissal of plaintiff as wrongful, the learned trial judge ruled that under the agreements, the consultants could only change key personnel with the prior approval of the client. At page 393 of the ROA, the learned trial judge interpreted clause 4.2 of the Agreement, as follows “By paragraph 4.2(a), changes are not to be made in the approved consultants except the client otherwise agrees. Paragraph 4.2(b) a consultant may be removed for non-performance upon the written request of the client. Clearly, there is not a single paragraph in exhibits 7 and 7A that empowers the defendants to dismiss any consultant for any reason whatsoever. By paragraph 4.1 the key personnel and consultants were all approved by the client and hence they cannot be removed except with the approval of the client. It goes without saying that the removal of the plaintiff by the defendant was not only unauthorized but totally wrongful and contrary to the terms and provisions of the contract document.” It is this interpretation of clause 4 which triggered ground (b) of the appeal. It has been submitted that the court’s conclusion that plaintiff was employed by the client and that it was only the latter who could dismiss him, is erroneous and was based on a wrong interpretation of the Agreement. And that had the trial court given a proper interpretation to Clause 4 of the agreement, it would not have come to the conclusion that the dismissal was wrongful. Citing Boateng v Volta Aluminiun Co ltd [1984-86] 1 GLR 733, Labour Commission v Crocodile Matchet [2012] 41 MLRG, 1 and also Tuffour v Attorney General [1980] GLR 637, counsel urged us to give Clause 4 a meaning within the context of the Agreements. In determining whether or not the termination was lawful, we must first consider who employed plaintiff. Was it the client as held by the trial court, or the 1st defendant? A close examination of the agreements would show that parties to the Agreements were 1st defendant and Ghana Ports and Harbours Authority, Tema and 1st defendant and the School of Allied Health Sciences, Korle-Bu. The relationship between them is sufficiently described in the Preamble of the Agreements as one of Client/Consultants. For a proper appreciation of the issue this court is called upon to address, the relevant portions of the Preamble are reproduced below: a) “The client has requested the consultants to provide certain consulting services as defined in the General Conditions of Contract attached to this Contract (hereinafter called the “Services”. b) The consultants, having represented to the client that they have the required professional skills and personnel and technical resources, have agreed to provide the services on the terms and conditions set forth in this contract. c) The client has made available funds towards the cost of the services and intends to apply a portion of these funds to eligible payments made under this contract.” A careful reading of the Preamble of the Agreement and Clause 4, headed “Consultants’ Personnel”, would show that the said personnel were provided by the Consultants and approved by the Client before the agreement was executed. The agreement also shows that consultants’ personnel were to be paid by the client albeit through the consultants, 1st defendant. In determining the employment relationship between the client and the key personnel, we refer to Chitty on Contract volume 2 for guidance. On whether a person was employed under a contract for service or a contract of service, the learned authors stated that payment of wages or salary is pointer to the relationship of employment. They posited that normally, a regular, fixed sum is payable to an employee under a contract of service according to time worked. If payment is by the job in relation to a complete task; where the employee was not an integral part of the business; was required to provide personal service; was free to work for other employers, as in the instant case, this points to an independent contractor. Normally an independent contractor provides the equipment for the work so where one party to the contract supplies the tools and equipment used by the employee, there is a presumption that there exists a contract of service/employment. It is not in dispute that the parties in the instant case were members of a consortium which was formed to execute the contracts for the client. A consortium is defined in Black’s Law Dictionary as “A group of companies that join or associate in an enterprise.” My research shows that it is an association of two or more individuals, companies, organizations or government or any combination of these entities, collaborating to achieve a common objective. Every entity under the consortium retains its independent identity. In the instant case, the consortium, represented by the lead consultant, the 1st defendant, was formed to execute the projects described in the agreements. Applying the employment relationship as earlier discussed to the relationship between the consortium and the client, a necessary inference is that the Consultants and the approved key personnel are independent contractors engaged by the Client to perform specific tasks described in the Agreements. Since under clause 4, the approval of the client was required for the engagement, removal and replacement of the consultants’ personnel on the project and since the consortium was working for the client who was also responsible for paying their fees, (albeit through 1st defendant), the trial court’s finding that the plaintiff was an employee of the Client is supported by the law and the evidence and shall not be disturbed. In addressing the issue whether or not the termination was lawful, we are guided by the terms of the agreement. See Poku v GCB [1989-90] GLR 37, where it was held that where the terms of the contract have been reduced into writing, the court would interpret them to give effect to the intentions of the parties. Clause 4 which is headed “Consultants’ Personnel” is reproduced below. “4.1 The titles, agreed job descriptions, minimum qualifications, and estimated periods of engagement in the carrying out of the services of the consultant’s key personnel are described in Appendix C. The Key Personnel and sub-consultants listed by title as well as by name in Appendix C are hereby approved by the client. 4.2 (a) Except as the client may otherwise agree, no changes shall be made in the Key Personnel. If, for any reason beyond the reasonable control of the consultants, it becomes necessary to replace any of the Key Personnel, the consultants shall provide as a replacement a person of equivalent or better qualifications. (b) If the client finds that any of the personnel have (i) committed serious misconduct or have been charged with having committed a criminal action, or (ii) have reasonable cause to be dissatisfied with the performance of any of the personnel, then the consultant shall, at the client’s written request specifying the grounds thereof, provide as a replacement a person with qualifications and experience acceptable to the client. (c) The Consultant shall have no claim for additional costs arising out of or incidental to any removal and/or replacement of personnel.” Reading the Agreement as a whole, our understanding is that 1st defendant provided the requisite qualified personnel needed for the execution of the projects, and same were approved by the client. Clause 4 (2) (a) makes it clear that no changes were to be made to key personnel such as plaintiff whose name was listed and approved by the client as per appendix C, except with the approval of the client. The clause then continues to describe conditions under which the consultant could replace/terminate a key personnel. Since the agreement makes provision for the consultant to remove/replace a key personnel, but with the approval of the client, we disagree with the trial court’s ruling that defendants had no right whatsoever under the Agreement to terminate the services of its key personnel. It is our view that the parties intended per Clause 4, that none of them had the right to unilaterally remove a key personnel. And that key personnel approved by the client in clause 4(1) would be removed under specified conditions. Accordingly, Clause 4.2(a) makes it clear that the Consultants’ right to remove/replace a key personnel was subject to the approval of the client. Similarly, the client could replace a key personnel by writing to the consultants to do so. It is also significant to note that the parties agreed that no changes shall be made to the key personnel by the consultant except with the approval of the client. The reason is not farfetched. Clause 4.1 provided that key personnel shall be approved by the client. In our view, the Consultants who have an obligation under Clause 2 of the Agreement to carry out the services in accordance with the provisions of the contract, have the right to remove a non-performing key personnel under “reasons beyond its control”. (To hold otherwise would not only be absurd but would not give meaning to the intent of the parties). But they must do so with the client’s approval. A cardinal presumption in the interpretation of documents is that parties are presumed to have intended what they have in fact said or written. BCM vrs Ashanti Goldfields [2005-2006] SCGLR holding 4 refers. Therefore where as in the instant case, contrary to the clear terms of clause 4.2(a), defendants failed to seek the approval of the client before removing plaintiff, we affirm the trial court’s conclusion that the termination was wrongful. Although 2nd Defendant told the court in cross examination at page 270 and 271 that the client was duly informed about the non-performance of plaintiff, there is not an iota of evidence on record in support of the claim, let alone evidence of the client’s approval of the decision to terminate. The testimony of 2nd defendant at page 327 of the ROA that she shielded plaintiff because she did not want to expose his non-performance to the client, a mere afterthought which does not impress this court. GROUND (c) THAT THE TRIAL JUDGE WAS WRONG IN HOLDING THAT THE RATE AT WHICH THE CONSORTIUM AGREED TO PAY THE PLAINTIFF WAS 3.15% AND NOT 2.75%. Submitting that the judgment was against the weight of evidence, counsel contended that the trial court got the percentage agreed on by the parties for the distribution of fees, wrong. And that the evidence on record does not support the conclusion that the consortium agreed on 3.15% as against the 2.75 asserted by defendant. It was submitted further that the burden of producing evidence was on plaintiff who asserted fees of 3.15%. Referring to the Evidence Act 1975, NRCD 323 Counsel submitted that the trial court wrongly shifted the burden of establishing the ratio of fees, on the defendant. Counsel further argued that plaintiff was bound by his pleadings and that the trial court erred when it ignored plaintiff’s own pleaded 4.5% and substituted same with 3.15%. We have read the amended statement of claim which is at page 34 to 42 of the ROA, and observe that at paragraph 19, plaintiff averred among other things that “The structural engineer should have been given 4.5% of cost of works less preliminary designing but Femme proposed the figure mentioned supra which plaintiff objected to.” At paragraph 20 at page 41 of the ROA, it was pleaded, “Plaintiff avers that the consortium finally agreed on 8% for the architect, 3.25 for quantity surveyors, 3.1% for structural engineers and 3.50% for service engineers but the final distribution was different and so plaintiff questioned the rationale from defendants only to receive a letter from defendants’ lawyers Prudential Law service terminating plaintiff’s services.” (Emphasis mine). In our considered opinion, there is no departure from the pleadings. We also rule that an allegation that the trial court made a new case for the plaintiff when it ignored the averred 4.5% and rather found for plaintiff on the 3.15%, is far from the truth. Having asserted in paragraph 20 of the amended statement of claim that the consortium finally agreed on 3.15%, it is this latter percentage that plaintiff is required to proof and we so hold. The principle distilled from Takoradi flour Mills v Samir Faris [2005-2006] SCGLR 882 and several other cases on the burden of proof is that, the plaintiff in a civil case is required to produce sufficient evidence to make out his claim on a preponderance of probabilities as defined in section 12(2) of the Evidence Decree, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence be it that of the plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions, and is deserving of a favourable verdict. In Poku v Poku [2007-2008] 2 SCGLR 996, at 1022, Wood CJ stated the burden of proof thus, “Generally the burden of proof is therefore on the party asserting the facts, with the evidential burden shifting as the justice of the case demands. The standard or degree of proof must also necessarily be proof on the preponderance of probabilities within the meaning of section 12 of the Evidence Act 1975 (NRCD 323).” On establishing a prima facie case, the onus shifts to the defendant to lead that kind of evidence that would tilt the balance of the probabilities in its favour. See Jass co ltd & Anor v Appau & Anor [2009] SCGLR 265. In addressing the invitation to this court to set aside the findings of the trial court on the agreed percentage, we are guided by the well- established principle that findings of fact made by trial courts should not easily be interfered with by an appellate court unless the said finding has no support of the evidence on record. In Amoah v Lokko & Alfred Quartey [2011] 1 SCGLR 505, the Supreme Court in holding (2) elaborated on the principles under which the court may interfere with findings of the trial court: (a) Where the court had taken into account matters which were irrelevant in law; (b) the court excluded matters which were critically necessary for consideration; (c) the court had come to a conclusion which no court properly instructing itself would have reached; and (d) the court’s findings were not proper inferences drawn from the facts. See also Koglex ltd (No 2) v Field [2000] SCGLR 175 and Agyenim-Boateng v Ofori & Yeboah [2010] SCGLR 861 and Fofie v Zanyo [1992] 2 GLR 475. Against this backdrop, we commence our interrogation of the issue of agreed fees. A written Consortium Agreement between members of the consortium which would ordinarily have put the matter to rest, is non-existent as the agreement was oral. Even though the parties were unanimous that the consortium held a meeting to discuss the distribution of fees, there is no evidence before the court that minutes were taken at the said meeting. To avoid a ruling against him on the issue, plaintiff who asserted that the consortium agreed on fees of 3.15%, bore the burden of producing evidence. See section 11(1) of the Evidence Act 1975, (Act 323). Plaintiff testified and tendered into evidence handwritten estimates dated 28th July 2009, prepared by 2nd defendant in respect of monies received for both projects. In the exhibits which are in evidence as F and G, (same as exhibit 1), plaintiff’s name is written by 2nd defendant against a ratio of 3.15%. Defendants denied the claim and asserted that the agreed rate was 2.75% and that the rate of 3.15% on the exhibit was an offer made to plaintiff in an attempt at settlement after plaintiff had instituted the instant action. In view of the conflicting claims, and in the absence of a written consortium agreement, in making a finding of fact, the court has to analyze and evaluate the evidence adduced at the trial and determine whose testimony is reasonably probable. Defendants’ explanation that the 3.15% asserted by plaintiff was an offer made to plaintiff in an attempt to secure amicable settlement, did not find favor with the trial court who rejected same and upheld the plaintiff’s claim of 3.15%. See page 396 to 397 of the ROA. It has been argued on behalf of defendant that the testimony of 2nd defendant was corroborated by DW 1 Ekow Budu Angua, a Quantity Surveyor and member of the consortium, who testified on behalf of defendants. The witness told the court that the agreed rate was 2.75%. In cross examination at page 353 of the ROA, the witness said defendants gave members of the consortium papers on which were written the agreed ratio for the distribution of fees. He however failed to produce the said paper in rebuttal of plaintiff’s claim. We have given careful thought to submissions by learned counsel for defendant, the evidence adduced at the trial and the trial court’s analysis of the law on the issue and rule that reasons assigned by the trial judge for preferring plaintiff’s version of the story to that of the defendant, are sound in law. The trial judge gave the following reasons for rejecting the testimony of defendant and accepting that of plaintiff “…. The court does however not believe the reason assigned by the 2nd defendant for agreeing to pay the 3.15% to the plaintiff in that if it is true that 2.75 was what was agreed upon at the meeting to be paid the plaintiff then the 2nd defendant would not have the power to unilaterally agree to pay a higher percentage to the plaintiff without the agreement of the whole consortium. On the contrary, the court is of the view that the defendants agreed to pay the plaintiff the 3.15 because that percentage was exactly what all the members of the consortium agreed to pay the plaintiff and indeed that was why the defendants finally succumbed to the plaintiff’s insistence on being paid what was agreed at the meeting. Again if it is true that the meeting actually agreed to pay plaintiff 2.75% instead of 3.15 claimed by plaintiff, why did the defendant fail to tender the minutes of that meeting to remove any doubt about what was agreed upon by the consortium at the meeting in view of the undisputed fact that a meeting was held at the offices of the defendants and the minutes were taken by them.” It is in evidence that the ratio for distributing fees was not unilaterally determined by 1st defendant but by the consortium after it had taken on board plaintiff’s concerns as discussed earlier in this judgment. For this reason, in the absence of evidence that in settling the dispute, the consortium decided to enhance the rate for plaintiff from 2.75% to 3.15%, we are inclined to affirm the conclusions of the trial court for its stated reasons. For this reason also, we rule that the testimony of DW 1, (a member of the consortium) which fell short of a confirmation that the consortium took a decision to enhance plaintiff’s fees from the 2.75% to 3.15%, does not carry enough weight to merit corroboration of defendants’ testimony on the issue. Although exhibits F and G were prepared after the termination, we rule that the rate of 3.15% used by 2nd defendant in the exhibit to compute plaintiff’s share of the fees, establish a prima facie case of the agreed rate. We are fortified in our conclusions by the case of Lamptey alias Nkpa v Fanyie & Others [1989-90] 1 GLR page 289, where the Supreme Court held that the general principle was that it was the duty of the plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden would shift to the defendant to lead sufficient evidence to tip the scale in his favour. We rule that the onus shifted on defendant who claimed that the enhanced ratio on exhibit F was an offer made to plaintiff towards settlement, to produce sufficient evidence in rebuttal. Defendant discharges this burden by producing evidence of the agreed 2.75% as well as the enhanced 3.15%. We have thoroughly read the record and rule that defendant failed to tilt the balance in their favour. The well- known dictum of Ollenu J (as he then was) in the oft cited case of Mojalagbe v Larbi & Others [1959] GLR 190-195 is apposite here. The learned jurist delivered himself thus “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way...........and his averment is denied, he does not prove it by merely going into the witness box and repeating the averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true.” In the circumstances, we uphold the findings of the trial court which was based on documentary evidence. See Duah v Yorkwah [1993-94] 1 GLR 217 where this court held that “whenever there was a written document and oral evidence in respect of a transaction, the court would consider both the oral and the documentary evidence and often lean favourably towards documentary evidence especially where the documentary evidence was found to be authentic and the oral evidence conflicting.” In the absence of a written agreement between members of the consortium, it is our view that information on the agreed ratio for distribution of fees among members of the consortium, is within the knowledge of 1st defendant who was lead consultant. Their failure to produce evidence in rebuttal of plaintiff’s claim, can only lead to one conclusion; that the agreed rate was 3.15% which 2nd defendant wrote on exhibits F and G in her own handwriting, and we so hold. GROUND (d) THAT THE TRIAL JUDGE ERRED IN HOLDING THAT PLAINTIFF DISCHARGED HIS OBLIGATIONS UNDER THE CONTRACT The onus is on defendants who are alleging that the court’s ruling is not supported by the record, to point to this court evidence on record which if the trial court had adverted its mind to, would have resulted in a favourable ruling. Submitting that the judgment was against the weight of evidence adduced at the trial, learned counsel referred us to several portions of the ROA and submitted that the finding that the plaintiff discharged his obligations are not supported by the evidence. It was argued that in view of evidence on delays and tardiness of plaintiff as well as his failure to submit drawings in the required format, the trial court erred in holding that the plaintiff “more or less” discharged his duties “albeit with some delays”. Counsel submitted further that the testimony of 2nd defendant which was corroborated by DW 1, established that plaintiff did not complete the work assigned to him. He argued that there is evidence on record that DW 1, whose work was dependent on drawings submitted by plaintiff, did not receive the full set of completed drawings from plaintiff. And with regards to the School of Allied Health Sciences, DW 1 did not have even a single copy of the drawings because plaintiff presented him with sketches which he later took away. He also urged us to take note of plaintiff’s failure to produce any evidence of the set of drawings to the trial court in rebuttal of defendants’ claim that the drawings were sketchy and unprofessional. That the evidence established that in completing the Maritime Clinic project, DW 1 had to rely on drawings prepared by the new Structural Engineer. Counsel also referred us to Defendants’ testimony that drawings which plaintiff presented to the quantity surveyor were different from those he presented to the contractor. And that as site engineer, plaintiff was not on site and did not attend site meetings. Counsel submitted further that the trial court’s ruling that plaintiff was entitled to all monies he would have earned had he completed the contract, is against the weight of evidence because plaintiff was replaced by another structural engineer who completed the projects. Responding to these submissions, counsel for plaintiff referred to the ROA and submitted that the evidence supports the conclusions of the trial court that plaintiff performed all his assigned duties with respect to the two projects. It is our duty as an appellate court, to ascertain whether the court’s findings that plaintiff performed his duties is supported by the evidence and the law. It is interesting to note that 2nd defendant who testified in her evidence in chief at pages 234 and 235 of the ROA that as at the time of the termination, defendant did not have the complete set of structural drawings which they could hand over to the clients, later admitted in further cross examination at page 273 that plaintiff and the other consultants completed their assigned obligations, leading to the client making the next tranche of payments. It bears mention that the complaints enumerated in the letter from Ghana Ports and Harbours Authority dated 5th November 2004, (in evidence as exhibit E) were not limited to lapses in plaintiff’s work only, but also to lapses in architectural and engineering services involving other members of the consortium. 2nd defendant admitted at page 272 of the ROA that members of the consortium including plaintiff, addressed these lapses and were paid by the client. These admission prompted the trial court to rule, (and rightly so) at page 401 of the ROA that the admission by 2nd defendant in cross examination that plaintiff presented the drawings (albeit unprinted) and defendants had to print them on behalf of plaintiff, corroborates plaintiff’s testimony that he completed the drawings which were used by the quantity surveyor for preparing the bill of quantities. The ruling finds support in the case of Asante v Bogyabi [1966] GLR 232 at 240, cited by the learned trial judge in support of his position. In that case, it was held as follows “Where admissions relevant to matters in issue between parties to a case are made by one side, supporting the other, as appears to be so in the instant case, on appeal, then it seems to me right to say that that side in whose favour the admissions are made, is entitled to succeed and not the other, unless there is good reason apparent on the record for holding the contrary view.” With respect to the alleged delays, it is significant to note that in cross examination, when 2nd defendant was shown minutes of site meetings on the Legon project (in evidence as exhibit 6 series), she admitted that cash flow and not the plaintiff was cited as the cause of the delay. See page 328 of the ROA. Furthermore, when the attention of 2nd defendant was drawn to the non-disclosure in the said site meetings of the alleged non-performance and delays, she told the court that she shielded plaintiff because she did not want to expose him to the client. The following evidence was elicited from 2nd defendant in cross examination on the issue: Q I am putting it to you that this story about shielding the plaintiff is only an afterthought A It is not my lord. It was deliberate as you can see and I gave him time and time opportunity and many advises to complete the drawings so that we perform credibly not even logo we need to have those drawings so that we perform credibly. Q Please look at exhibit 6 series clause 301 funding of the project, please read that portion to the court. A The contractor said the project was very challenging finance wise, some of the columns were 1 meter square and as such require the tremendous amount of materials to caste concrete, there is no on campus like that and he stressed that funding was his major problem and more allocations must be made to complete the project on time. This is a report to the meeting by the contractor Yes The contractor is not shielding the plaintiff is he? No my lord he is not but note that I wrote the minutes and I crafted it in such a way to get the main point across without drawing attention to lapses in my camp. Q A Q A Apart from this testimony being an afterthought, it is our view that it puts the credibility of the witness in issue. The trial court can hardly be faulted for rejecting her testimony. With respect to the School of Allied Health Sciences, it is in evidence that at the time of termination, plaintiff had finished work on the first wing up to the first floor and that plaintiff was entitled to post-contract fees. We have also given careful thought to the phrase “by and large” used by the learned trial judge in his judgment at page 397 of the ROA and submission by counsel for defendant that the phrase amounts to an acknowledgment by the trial court that plaintiff’s work was not 100% complete. Reading the judgment as a whole it is clear that the trial court used this phrase having taken cognizance of the delays in executing the assigned duties. Evaluating the evidence as a whole, however, the learned trial judge found that defendants used plaintiff’s drawings in preparing tender documents leading to the award of the contracts and was therefore entitled to fees. In affirming the findings of the court, we take note of the admission by 2nd defendant in cross examination that all the partners to the consortium completed their pre-contract jobs and were paid. The finding is supported by the evidence on record and this court has no intention of disturbing same. We therefore affirm the trial court’s ruling that plaintiff is entitled to be paid for the pre-contract jobs for both projects. We also affirm the trial court’s reversal of protocol deductions from the consultancy fees in respect of the two project, on grounds that they are in fact bribes. It is not in dispute that a new structural engineer was engaged to complete the two projects. We therefore uphold submissions by learned counsel for defendant that the trial court’s ruling that plaintiff was not entitled to share the fees with the new structural engineer, is inequitable. Our conclusion is supported by exhibit F dated 28th July 2009; more than four years after the termination. At the top of the exhibit, it is indicated that three tranches were paid by the client. The dates of payment of the first two tranches are given as 05/09/03 and 24/12/04; before the termination. It is not exactly clear from the exhibit, when the third tranche was paid. It is however not in dispute that plaintiff was replaced with another engineer who continued the work after the termination in May 2005. We rule that the said new engineer is entitled to 50% share of the third tranche paid. GROUNDS (f) THAT THE TRIAL JUDGE ERRED WHEN HE ORDERED INTEREST TO BE PAID ON THE SUM OF Ghc12,172 AT THE CURRENT BANK RATE FROM 21ST OF JANUARY 2005 The award of interest by the court was assailed on grounds that although not all the fees were paid in 2004, and 2005, the learned ordered that plaintiff should recover interest at the current bank rate. It is a common law principle that where the defendant keeps money due the plaintiff thereby depriving the latter the use of same, plaintiff was entitled to compensation by way of interest. See Harbutt Plasticine ltd v Wayne Tank & Pump Co. Ltd [1970] 1 All ER 225 at 236. The principle is codified in the Courts (Award of Interest and Post Judgment Interest) rules 2005 (CI 52) which governs award of interests by the court. Rule 1 thereof provides: “Rule I-Order for payment of interest 1. If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated, (a) at the bank rate prevailing at the time the order is made, and (b) at simple interest... But where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner.” Nothing much was submitted under this ground of the appeal worth the consideration of this court. The trial court having held that plaintiff was entitled to fees earned but not paid, submission by counsel on this ground is untenable. Counsel abandoned ground (g) of the appeal as no submissions were made on this ground of the appeal for our consideration. The brief submissions made on the award of damages are dismissed seeing that damages is not one of the grounds of appeal filed. We find no merit in the appeal and same is accordingly dismissed. Safe for an order that the new structural engineer is entitled to 50% share the last tranche of payments made as per exhibit F and G, The judgment of the trial court is hereby affirmed. sgd NOVISI ARYENE (MRS) (JUSTICE OF APPEAL) sgd SENYO DZAMEFE (JUSTICE OF APPEAL) sgd P. BRIGHT MENSAH (JUSTICE OFAPPEAL) I AGREE I ALSO AGREE COUNSEL J. A. LARKAI FOR APPELLANT PHILLIPA DENNIES FOR RESPONDENT 24