KUSI-APPIAH, ( J.A.):

The central issue in this appeal is whether a promise to pay debt already incurred by another is enforceable in the absence of express consideration. There is also the question whether the defendant having failed to pay the lesser sum is entitled to benefit from the plaintiff’s agreement to accept the lesser sum. I will refer to the parties in the manner they appeared at the court below.

The facts grounding this appeal as can be ascertained from the pleadings and evidence of the plaintiff are that in 1997 the plaintiff paid an amount of four thousand five hundred dollars ($4,500) to defendant’s son, Ahmed Baba for a passport, visa and ticket to enable her nephew travel outside the country. When the defendant’s son could not honour his promise of organizing the trip, plaintiff caused his arrest at the airport when he was about to leave the country.

Upon his arrest, Ahmed Baba pleaded to be taken to his father at Tema where the defendant gave an undertaking to refund the money and his son released. Defendant’s undertaking was tendered as Exhibit ‘A’.

According to the plaintiff, when the defendant failed to pay (as promised), she reported the case to Forces Sergeant Major who invited him. There, she was persuaded to accept two thousand, one hundred and fifty dollars ($2,150.00) as full settlement of the debt on condition that the defendant pays within one month. The plaintiff’s undertaking was also tendered as Exhibit ‘B’. However, the defendant once again defaulted and as at the time of instituting this action, he had only paid six hundred dollars ($600.00).

On 20^th November, 2001, the plaintiff by her writ of summons therefore brought an action against the defendant for the following reliefs:

“a. Recovery of three thousand, nine hundred dollars ($3,900.00) being balance outstanding on a debt incurred by defendant’s son Ahmed Baba and which sum the defendant gave an undertaking to pay but has failed to pay same.

b. Interest on the said amount at the current bank rate with effect from 1^st April, 1999 till date of judgment.

c. General damages.”

The defendant resisted the plaintiff’s claim by his statement of defence filed on 19^th December, 2001.

The defendant in his evidence denied that the note he gave on 27^th March, 1999 was an undertaking to pay the money. He testified that he is a pensioner and it was understood that he would pay the money when the son sent the money. He stated that his son has made two installment payments totaling six hundred dollars ($600.00) in April and December 1999 through him, but has not made further payments because of job difficulties.

The defendant further stated that even though the plaintiff agreed to take US$2,150.00 as full settlement, no time limit was fixed for payment. He contended that the plaintiff having undertaken to accept US$2,150.00 as full payment, he cannot now demand the original sum of US$3,900.00. He argued that the outstanding balance should be US$2,150.00 less the US$600.00 refunded which comes to US$1,550.00 and which must be paid by his son, Ahmed Baba and not by the defendant.

The defendant insisted that he is not in breach of any agreement and therefore not liable to the plaintiff in the amount endorsed on the writ.

On 2^nd April, 2012, the High Court, Tema after hearing evidence from the parties who did not call any witness, gave judgment for the plaintiff, Felicia Akyaa, for;

“1. Recovery from the defendant $2,350.00 or its cedis equivalent at the forex rate of exchange.

2. Interest on $3,900.00 at the prevailing bank rate with effect from 17^th May, 1999 to 31^st

December, 2008 and interest on the outstanding balance of $2,350.00 from 1^st January, 2009 to date of final payment.

3. Cost of five hundred Ghana cedis (Gh¢500.00) in favour of plaintiff.”

It is against this decision that the instant appeal is mounted by the defendant on the following original and additional grounds:

“a. That the judgment is against the weight of evidence adduced at the trial.

b. That the learned Judge erred in holding that the lesser sum agreed upon was to be paid within one month.

c. That the learned High Court Judge erred in law by ordering that the interest rate on a dollar account should be based on the prevailing Ghana Commercial Bank rate of 30% p. a.

d. That the learned High Court Judge erred by concluding that the appellant was personally liable for a debt incurred by his son and thus was bound by an undertaking he was alleged to have made.

e. That the finding that the appellant could not take advantage of the lesser sum mutually agreed upon for the defendant has no basis.”

GROUND A – JUDGMENT AGAINST THE WEIGHT OF EVIDENCE

In arguing this ground of appeal, counsel for the defendant took this court through the evidence on record and sought to show that the arrest of defendant’s son was not only unlawful but also the undertaking by defendant to pay his son’s debt due the plaintiff, was made under duress and therefore of no legal effect, as the defendant was compelled to do so by a soldier who accompanied his arrested son to his house in Tema.

Counsel refers to Sections 12(1) and 14(1) of the Criminal Offences Procedure Act 1960 (Act 30) and submitted that where a private person arrests, he should take the arrested person to the nearest police station. He contended that since the arrest in this case was at the Airport, the plaintiff should have sent his son to the Airport Police Station and not the defendant’s house in Tema. Counsel further submitted that the defendant had not breached any agreement and was not liable to the plaintiff in the amount indorsed on the writ of summons.

The two main arguments advanced in support of Ground A, namely: unlawful arrest of defendant’s son and duress on the part of the defendant in executing Exhibit ‘A’ – (i.e. – undertaking to pay his son’s debt due the plaintiff) are not only new or fresh grounds of appeal but also raise questions of law.

Rule 8(7) of the Court of Appeal Rules, 1997 C. I. 19 as amended is very clear on the procedure to follow in arguing an appeal. It provides:

“The appellant shall not without the leave of the court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal but the court may allow the appellant to amend the grounds of appeal upon such terms as the court may think just.” (emphasis mine)

It should be obvious that without the leave of the court, a party shall not be entitled to argue new or fresh grounds of appeal in his written submission. In this case, learned counsel sought to argue new or fresh grounds of appeal in his written submission, i.e. unlawful arrest of defendant’s son and duress on the part of the defendant in executing Exhibit ‘A’, without first satisfying rule 8 of the Court of Appeal Rules, 1997 (C. I. 19). Worse still, in Brown vrs. Quarshigah (2003-2005) SCGLR 930 at p. 942, the Supreme Court held inter alia that: “a party who only gives notice that he intends to rely on the so-called omnibus ground (namely that the judgment was against the weight of evidence at the trial) should not be permitted to argue points of law.”

For these reasons, I would expunge the new or fresh grounds of appeal in defendant’s written submission based on the alleged unlawful arrest of defendant’s son and duress on the part of the defendant in making the undertaking (Exhibit ‘A’), which are points of law from the record of appeal and will not consider any arguments thereon.

Ground D:-    Is the Defendant personally liable for his son’s debt to Plaintiff

It is the contention of counsel for the defendant that the trial Judge erred in concluding that the defendant/appellant was personally liable for a debt incurred by his son on the basis of an undertaking he made.

Under this ground of appeal, the defendant attacks the decision of the trial Judge in relying on Exhibit ‘A’, the undertaking/document executed by the defendant to pay his son’s debt due the plaintiff. The defendant strongly submitted that he was compelled to make the document, Exhibit ‘A’, in favour of the plaintiff. He contended that even if it is held that he voluntarily made the document, the said document was made without consideration. The defendant lamented that the undertaking he executed i.e. Exhibit ‘A’ was a bare promise to pay his son’s debt without consideration, and is therefore nudum pactum.

Consequently, the plaintiff cannot under the said document recover the amount from him. The defendant concluded that since he issued Exhibit ‘A’ without any consideration, the present case could be distinguished from the case of Tsede & Others vrs. Nubuasa & Another relied on by the trial court where the defendant gave a guarantee note to pay a relations debt due the plaintiff therein.

This brings me to the crucial question of whether or not a promise by the defendant to pay his son’s debt due the plaintiff is enforceable in the absence of express consideration. Faced with a similar question, Prempeh J. in the case of Tsede & Others vrs. Nubuasa & Another (1962) GLR 338-340, held that the note prepared by a relative in favour of the plaintiffs to pay the debt was enforceable even though on the face of the note there was no consideration for the promise to pay, because consideration need not always be express, it can be implied from the circumstances of a particular case. The court further held that an agreement to forbear from instituting legal proceedings to enforce a legal or an equitable right is a sufficient consideration for a promise to pay a debt already incurred.

In Tsede & Others vrs. Nubuasa & Another case (supra), the plaintiffs were the directors of the New Ayoma Co-operative Society, engaged one Clemence Nubuasa as a cocoa receiving clerk for the society. The said Clemence Nubuasa was the brother of the first defendant and a relative of the second defendant. In the course of his employment, Clemence Nubuasa incurred a deficit of £G 1,340,1s.5d in his account, and when he was requested to pay that amount, he took them to the defendants who offered to give a note guaranteeing the payment of the amount on behalf of their relative, Clemence Nubuasa within one week. They caused a note Exhibit ‘B’ to be prepared in favour of the plaintiffs to that effect. They were able to pay only £G50. The plaintiffs took action against them for the balance of £G1,290, 1s. 5d. It was contended on their behalf that there was no consideration for their promise to pay the debt and therefore the contract is not enforceable.

The learned trial Judge in this appeal meticulously considered the evidence of the parties and relying on Tsede’s case (supra), made very positive findings upholding the plaintiff’s claim. She said at page 4 of the judgment that:

“From the circumstances and the tenor of the note, I am satisfied and find as a fact that the defendant gave the undertaking after he had heard the complaint and gave the note in order that the son would be released. The last paragraph of the note implies a firm undertaking to refund the money… I find that by reason of Exhibit ‘A’, the plaintiff did forbear from taking her intended action against defendant’s son, and held that the note Exhibit ‘A’ is enforceable against the defendant.”

I could not agree more with that view. This is because, the present case is on all fours with the Tsede’s case (supra). In the first place the facts and issues in both cases are similar in nature. That the defendants in the said two cases gave a note in favour of the plaintiff guaranteeing the payment of the debt already incurred by others. That the defendants in both cases aforesaid contended that the note or undertaking they executed was a bare promise to pay the debt incurred by others without consideration and is therefore nudum pactum. The effect of their contention is that the plaintiffs cannot under the said document recover the amount from them.

Secondly, the basic issue in Tsede’s case (supra) and the instant case is whether a promise to pay debt already incurred by others is enforceable in the absence of express consideration.

From the foregoing reasons, I am not persuaded by the contention of the defendant that the present case is distinguishable from the Tsede’s case (supra).

The trial Judge in Tsede’s case (supra) entered judgment in favour of the plaintiffs against the defendants therein on grounds as stated earlier in this judgment.

Guided by the principle of law as enunciated in the case of Tsede & Others vrs. Nubuasa & Another (supra), I hold that the note prepared by defendant (Exhibit ‘A’) in favour of the plaintiff to pay his son’s debt is enforceable even though on the face of the note, there was no consideration for the promise to pay, because consideration need not always be express, it can be implied from the circumstances of a particular case. And by reason of the note, Exhibit ‘A’, the plaintiff did forebear from instituting legal action against defendant’s son, Ahmed Baba, to recover her just debt from defendant’s son.

For these reasons, I find that the plaintiff is entitled to enforce the note, Exhibit ‘A’, against the defendant herein. Ground D of the appeal fails.

I shall next take grounds ‘B’ and ‘E’ together as same were argued together by counsel for the defendant/appellant.

Grounds ‘B’ and ‘E’ also read:

“B. That the learned Judge erred in holding that the lesser sum agreed upon was to the paid within one month.

E. That the finding that the appellant could not take advantage of the lesser sum mutually agreed upon for the defendant has no basis.”

In these grounds, the defendant questions the legal basis for the award of US$2,350.00 as outstanding debt to the plaintiff by the trial Judge in the face of an agreement by the plaintiff to accept a lesser sum of US$2,150.00 as full settlement of the original debt of US$4,500.00 which had been duly paid.

The defendant contended that even though the plaintiff agreed to take US$2,150.00 as full settlement per Exhibit ‘D’, no time limit was fixed for payment. He conceded that payment was delayed but that did not change the substance of the plaintiff’s own undertaking to accept a lesser sum.

The defendant insisted that before the writ was issued he paid US$600.00 and during trial he paid the balance of US$1,550.00 to settle his indebtedness to the plaintiff. He argued that the defendant having paid the agreed amount of US$2,150.00, the plaintiff could not have sued on the original sum.

The plaintiff contended otherwise. She argued that even though Exhibit ‘B’ was given in April 1999 as at December 1999, the defendant had paid only US$600.00 out of the sum the plaintiff agreed to accept. She submitted that the action itself was taken in November, 2001, that is, over two years after the last payment. In the view of the plaintiff, this is a clear indication that the defendant had reneged on the agreement. And having so reneged, the defendant cannot rely or benefit from the plaintiff’s agreement to accept the lesser sum as he is caught by the maximum, he who comes to equity must do equity.

The defendant’s submission raises two key points, namely:-

(1) whether or not time for payment of the lesser sum of US$2,150.00 was of essence

(2) whether the defendant having failed to pay the lesser sum (before the writ was issued) is entitled to benefit from the plaintiff’s agreement to accept the lesser sum.

Let me at this stage refer to two relevant authorities on this question of time both decided by the Supreme Court. First is the case of Atta and Another vrs. Adu (1987-88) 1 GLR 233. In that case the defendant agreed to sell her house to the plaintiff because she needed the money to assist her son who was in financial difficulties. The plaintiff defaulted in paying the price as agreed upon, so he sold the house to another person. In the meantime the plaintiff had, without the knowledge of the defendant, paid the money into the defendant’s bank account outside the agreed period for the payment. So when the defendant told the plaintiff she had resold the house, the plaintiff brought an action for, inter alia, specific performance of the contract of sale. The defence was that since she had been compelled by her financial circumstances to sell the house, the failure by the plaintiffs to pay within the stipulated period did not entitle them to equitable remedy of specific performance. Holding that time was not of the essence of the contract, the trial court gave judgment in favour of the plaintiffs. The Supreme Court held that time was of the essence of a contract:

“(a) where time was an essential element as distinctly spelt out in the agreement or

(b) where the circumstances clearly indicated that time was of material consequence, or

(c) where the nature of the land, in that case a grocery shop, made time an inseparable element, and thereby upheld the defence.

The other case is Fofie vrs. Zanyo (1992) 2 GLR 475. In that case the court found that no time was stipulated in the contract of sale, yet the court was able to conclude that time was necessarily an element to be considered. Holding 3 states that although no time was stipulated by the defendant in the offer letter to the plaintiff for the completion of the contract, time would be held to have been of the essence because;

“a. The offer letter was emphatic on the defendant desire to hear from the plaintiff soon,

b. Financial difficulties necessitated the defendant’s decision to sell the house instead of keeping the lease, and

c. The high rate of inflation in the country was depreciating the value of the cedis while the value of the property kept appreciating.”

Besides, it was not only unreasonable to expect the purchase price of a house to be paid by installments over a ten-year period but it would also be absurd to expect the defendant to wait for ten years to receive the purchase money which was almost equal to the amount he would have received under the lease for the same period.

Applying these principles to the appeal, one notes that although no time was stipulated for the defendant to pay the money, time would be held to have been of the essence, immediately Exhibit ‘B’ was executed. Exhibit ‘B’ was an undertaking agreed upon by the plaintiff to accept a lesser sum of US$2,150.00 (which is less than half of the original amount) as full settlement of the original sum of US$4,500.00 due her from the defendant.

In this case, the defendant failed to pay the lesser sum of US$2,150.00 within a reasonable time of one month as agreed upon. It was not until eight (8) months after the execution of Exhibit ‘B’ that the defendant paid US$600.00 in two installments to the plaintiff. He did not pay heed to the plaintiff’s demand on him to pay. The defendant did not just bother to pay up, not even after the plaintiff had sued him in court and a writ had been served on him and has not done so to date of trial court’s judgment in April 2012, some 3 years after payment had been due.

Surely, three years after time for payment had elapsed, the value of the money was completely lost thereby defeating the very reason why the plaintiff decided to take a lesser sum of US$2,150.00 as full settlement of the original amount of US$4,500.00 and it was thus inequitable to insist that the defendant should continue to withhold payment whilst at the same time pay a lesser amount.

Clearly, this conduct is not attractive to a court of equity. The defendant’s hands are dirty and he has also not performed his side of the bargain, despite benefitting financially from the liberal and reasonable agreement of the plaintiff to accept a lesser sum in lieu of the original debt.

Should a court of equity allow a defendant who has failed to pay the lesser sum to benefit from the plaintiff’s agreement to accept the lesser sum? I think not. In such circumstances, Francois, (JSC) of blessed memory would have said “a court of equity abhors such unjust enrichment. See page 241 of the Atta & Anor. Vrs. Adu case (supra).

At the same page, this relevant dictum of Alderson B in Hipwell vrs. Knight (1835) 1 Y & Ex 401 at appears:

“If therefore the thing sold be of greater or less value according to the effluxion of time, it is manifest that time is of essence of the contract and a stipulation as to time must then be literally complied with in Equity as well as the law.”

In my view therefore, the plaintiff was justified in demanding the original amount since it is trite law that a person cannot benefit from his own default or wrong doing. It follows that the defendant cannot benefit from his own default. In effect, the trial Judge was justified in her findings in Grounds ‘B’ and ‘E’.

Grounds ‘B’ and ‘E’ of the appeal also fail.

Ground C – Rate of Interest Awarded

The last ground of appeal, Ground ‘C’ relates to the rate of interest awarded in favour of the plaintiff/respondent. Under this ground, the defendant/appellant is not contesting the payment of interest. Rather, his complaint is essentially about the interest rate of 30% per annum based on the cedi rate instead of the 6% dollar rate of interest in our banks. The defendant contends that since the transaction was in US Dollars, the rate of interest chargeable should be in Dollar rate and not the Cedi rate as found by the trial court.

By way of reply, the plaintiff submitted that since it was a transaction in Ghana, it is the commercial cedi rate of interest prevailing that should be used.

The bone of contention here is whether the rate of interest chargeable on the amount should be in US Dollars or Cedis. In NTHC Ltd. Vrs. Antwi (2009) SCGLR 117, the Supreme Court held inter alia that; “the plaintiff should pay interest to the defendant company on the cedi equivalent of the price of US$70,307 from 1^st August, 2005 till today (4^th February, 2009) at the bank rate prevailing today.”

On review application by the respondent, ANTWI, the Supreme Court on 8^th July, 2009 unanimously granted the application for review (published as an Editorial Note to the case of NTHC Ltd. Vrs. Antwi (2009) SCGLR 117 at 121). The review order was to the effect that “interest on the purchase price of the property, the subject matter of the suit, be paid by the respondent, up to date of payment at the applicable Bank of Ghana dollar rate as at the date of such payment.”

In effect, the Supreme Court in granting the review application, vacated its previous order given on 4^th February, 2009 to the effect that interest be paid up to date of judgment.

Guided by the above authority, I order interest on US$3,900 be paid by defendant up to date of payment at the applicable Bank of Ghana dollar rate as at the date of such payment with effect from 17^th May, 1999 to 31^st December, 2008 and interest on the outstanding balance of US$2,350.00 from 1^st January, 2009 to date of final payment.

Subject to the above variations, the appeal is dismissed and the judgment of the High Court, Tema is affirmed.