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04 October 2013

Scandal of the alleged importation of second-hand Ghana National Fire Service Uniforms Saga Deepens.

Scandal of the alleged importation of second-hand uniforms for the Ghana National Fire Service (GNFS) got murkier yesterday when the 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 panellists on the programme in a bid to pour cold water over the fire generated by the reports claiming,
Among other things, that the board did not know the quality of the uniforms which he added were not destined for the 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 realised that they were mismatched and that some of them had condoms and name tags of the original users.
At that time, GNFS had paid GH¢1million to the suppliers of the secondhand 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 approval 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 as 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 of the country in recent times with fire fighters unable to contain the fires, making the whole retooling nonsense.
The Chairman announced that a panel had been established to probe the matter and “they have asked for an extension to the 10-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 specifications, 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 16,339 pieces of uniforms and not 16,339 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 November 25, 2010 addressed the plaintiff through 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 as 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 organisation 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 that “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 totalling 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 judgement 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 August 8, 2012.

Source: DailyGuideGhana

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