TRIPPLE A ENTERPRISE LTD

Our Ref: GFCL/T/20

12th June, 2020

TRIPPLE A ENTERPRISE LIMITED

P.O.BOX LT 655

ACCRA

Dear Sir,

RE: NOTICE OF TERMINATION.

We acknowledge receipt of your letter submitted to our office on 2nd June 2020 on the above subject matter.

We must say, first of all that, we are happy with your admission of Clause 5(v) (a) paragraph 2 of the Contract Agreement between your Company and Ghana First Company Limited which states that:

“The total sum shall be paid to the contractor 3 months after completion of works and       certificate of completion upon recommendation by project manager and approval by the Chief Executive Officer”.

We hereby take this opportunity to once again remind you that, Ghana First Company Limited is guided by the contractual agreement between your Company and our good selves and we dully respect our said contractual obligation to the letter.  Accordingly, we hereby state emphatically that there has never been any mutual variation of Clause 5 (v) (a) of the contract document between your Company and Ghana First Company Limited to the effect that payment should be made to your company upon your company’s achievement of sixty percent (60%) completion of the project. We would therefore be grateful, if you could furnish us with any such evidence of variation for our study and necessary attention.

 On the contrary, we would like to refer you to the contractual agreement existing between your company and Ghana First and request you to observe the following which has serious legal ramifications on your conduct your purported cancellation of the contract:
  1. Please be guided by the terms of the contract which clearly classifies the projects as Turn Key Projects and that you shall be paid only upon the full completion and hand over of the entire project to Ghana First Company Limited. You may make reference to Clause 5 iv of the contract document.
  2. Clause1 of the General Conditions of the Contract (at page 17) must not be misconstrued as an agreement for Ghana First Company Limited to do midterm payments to your company.
  3. Moreover the 60% relief in the contract (clause 39 of the general conditions of the contract) is on the quantum sum of the project. The payment of that amount which is the final sum to be paid for the project, may be made only after full completion of the project when all variations have been computed and may be exercised only by Ghana First Company Limited during the 3 months period of processing for payment and not that of the contractor.
  4. There is no part of the contract document which stipulates that Ghana First Company Limited is under any obligation to provide your Company with any funds at 60% completion of the project.
  5. Besides, there is no agreement between the project manager and approved by the Chief Executive Officer of Ghana First Company Limited that 60% completion means roofing and plastering the structures as claimed in paragraph 3 of your letter. We would much appreciate it if you could furnish us a copy of any such agreement if indeed the same exists.
  6. What is more, the issuance of the interim certificate came about when the contractors started agitating that they had attained 60% completion stage of the project and therefore started demanding payment at that stage which was clearly contrary to the terms and condition of the contract between Ghana First Company Limited and the contractors.
  7. It was therefore to verify those claims by the contractors that they had attained 60% completion of the project that the Chief Executive Officer of Ghana First Company Limited exercised his discretion for the preparation and issuance of the interim certificate to verify those claims by the contractors.
  8. This was also to enable both parties to ascertain the actual stage of the completion of the project.
  9. It was during the issuance of that mid-term certificate that the contractors pleaded with Ghana First Company Limited to come to their aid in completing their projects as they claimed to be in financial distress hence the decision by Ghana First Company Limited to provide those financial assistance.
  10. Ghana First Company Limited has however since revoked the mid-term certificate due to the fact that the contractors took undue advantage of it as if it formed part and parcel of the contractual agreement between Ghana First Company Limited and the contractors which was  not the case.
  11. Indeed after the said revocation you were duly been notified and you were asked by Ghana First Company Limited to proceed to site and complete the project in accordance with the terms and conditions of the contract. We have herewith attached to this letter a copy of the said letter of revocation for your perusal.
  12. If it has escaped your memory, may you once again be reminded that the agreement executed between you and Ghana First Company Limited required you to complete the projects within 90 days (3 months) commencing from the date of the execution of the contract which is clearly specified in (clause 5 ii) which you have breached.
  13. Additionally, you have abandoned the project for more than 28 continuous days without prior notice to Ghana First Company Limited and you have therefore fundamentally breached the contract as per Clause 5 (xi) and 52(2)(a) of the contractual document.
  14. Your schedule of work submitted to us do not warrant any break in construction.
  15. Ghana First Company Limited and for that matter its project Manager on the other hand has not notified your company of any schedule of other contractors or deployment of sub-contractors or issued any instructions to your company that will necessitate a break in construction or to delay the progress for you to take advantage of Clause 52(2)(b)
  16. Since there is no provision in the Contract Agreement between your Company and Ghana First Company Limited for any midterm payment, your reliance on Clause 52(2)(d) for termination of the contract on your part is not in the spirit of the contract
  17. You have egregiously breached the terms of the contract and yet rather seek to benefit from the said breaches as stated in clause 52(2) of the General Conditions of the Contract.
  18. We further advise you to be mindful of the following Clauses in the Agreement which states that:
5xi. That in the event of the Contractor abandoning the project for any period of 28 continuous days without prior notice to the Employer, the contract shall stand abrogated and the cost of the abandonment including any delay occasioned to the project thereby shall be surcharged the Contractor.

5xii. Further to clause 5 sub xi, on the occurrence of either the said abandonment and or delay arising from the Contractor leaving some skeletal workers not being its full capacity of workers required for the project within the said 28 days period, the contract shall not only stand abrogated but any investment made by the Contractor within this period shall be forfeited.
  1. We also bring to your attention of clause 44 of the agreement and remind you of the liquidated damages which have arisen by virtue of your breach of the contact and notify accordingly that Ghana First Company Ltd will soon serve you all those expenses.
  2. From the foregoing, Ghana First Company Limited had never breached any fundamental terms of the contract to entitle you to have canceled the contract.
  3. In that regard, your purported letter of termination of the contract is of no legal moments or significance.
  4. However, in view of your breach of all the fundamental terms of the contract, Ghana First Company Limited rather, hereby exercises its rights to terminate the contract with you and accordingly requires you to comply with clause 52.5 of the contract by immediately leaving the project site is a safe and secure environment.
  5. In view of the termination of the contract, Ghana first Company Limited hereby further notifies you that it will in due course, serve you with all surcharges, liquidated damages, penalties etc. which have arisen by virtue of your fundamental breach of the contract.
  6. Until such time that you hear from us, Ghana First Company Limited takes this opportunity to wish you all the best in your future endeavors.
Yours faithfully

 MR FRANK AKULEY

C.E.O

CC
  1.    L. Kpebu Esq
           Legal Practitioner

           GT Legal

           1st Floor, World Trade Centre, Accra

           (At the National Theatre Traffic Light on the Independence Avenue)

           Tel (233) 243 176 931
  1. Edward Joseph Mettle-Nunoo Esq
           Legal Practitioner

           Noon Associates, Evergreen House

           Tema

           Tel: 0244367303
  1. THE DCE
          AYENSUANO DISTRICT ASSEMBLY

          AYENSUANO