(1) This appeal raises interesting issues about the law and interpretation of pre contractual agreements. It also raises the issue about the philosophy, assessment and award of damages for breach of pre contract negotiations particularly where a claimant alleges that it has suffered loss as a result of the exercise of an election by the other contracting party to withdraw and refuse to commit itself to a formal contract. Simply put therefore the crucial issue arising from this appeal is the determination of the degree of liability of a party who withdraws from an agreement to enter into a formal contract.

(2) In the High Court (Commercial Division) Accra, the Plaintiff/ Respondent hereinafter referred to as the “Respondent”) claimed from the Defendant/Appellant (hereinafter referred to as the “Appellant”), the following reliefs:-

i. A declaration that having regard to all the circumstances of this case,it will be inequitable for Defendant to resile from its agreement with Plaintiff to provide crane and forklift services to Defendant at Takoradi.

ii. An order directed at Defendant to refund to Plaintiff all expenses incurred by Plaintiff upon the legitimate expectation that Defendant would award to it the contract to provide crane and forklift services to Defendant at Takoradi.

iii. General Damages.

iv. Costs on a full indemnity basis.

(3) At the directions stage in the Trial Court, the court was invited by the parties to determine a total of twelve (12) issues having proposed six (6) issues each. At page 32 of the record, the pretrial judge adopted eight (8) of the issues set down by the parties but added two (2) omnibus issues of a general nature i.e. whether the (Plaintiff) Respondent herein is entitled to its claim and “any other issues arising from the pleadings”.

(4) At the end of the trial which involved a review of several documents, the Trial Court found for the Respondent and delivered itself in making an award as follows:-

“In the circumstances, I award to the Plaintiff compensatory damages assessed at Gh₡10 million and in addition the Plaintiff is to recover the cost of certification of cranes, operators and mobilization of cranes and operators which add up to U$D113,000.00. I award to the Plaintiff cost assessed at Gh₡80,000.00. Judgment is accordingly entered for the Plaintiff”.

(5) By notice of appeal against the whole judgment to this court, the Appellant set out a cocktail of grounds of appeal which for purposes of emphasis we shall reproduce in extenso as follows:-

a. The Learned Trial Judge erred in his construction of the grounds for termination by the Defendant and the obligations of the Plaintiff under the letter of intent.

(b) That the Learned Trial Judge erred in ordering the Defendant to refund the Plaintiff’s expenses when he had actually found that the Defendant had not breached the letter of intent.

(c) That the Learned Trial Judge erred in law when he held that it was unfair and inequitable for the Defendant to terminate the letter of intent for non-conformance.

(d) That the Learned Trial Judge erred in his findings in tort that the Defendant engaged in a pattern of conduct calculated to mislead the Plaintiff into believing that a deal had been made.

(e) That the Learned Trial Judge erred against the rule in DAM VS. ADDO in awarding damages founded in a tort that the Plaintiff did not claim.

(f) That the Learned Trial Judge’s award of Ten Million Cedis (Gh₡10,000,000) as compensatory damages is manifestly excessive and unsupported by law.

(g) That the Learned Trial Judge erred in awarding cost to the Plaintiff when all the issues set down were resolved in Defendant’s fovour.

(h) That the Learned Trial Judge award of Eight Thousand Cedis(Gh₡80,000) as costs is manifestly excessive and unsupported by law.

(i)The judgment is against the weight of evidence adduced at the trial.

(6) By way of relief the Appellant seeks “an order setting aside the judgment for the Plaintiff and entering judgment for the Defendant”.

(7) The Respondent herein also dissatisfied with a part of the judgment particularly the quantum of compensatory damages awarded by the Trial Court filed a notice of appeal purporting to have invoked jurisdiction pursuant to Rule 8(3) of the rules of this court C.I.19 (as amended). We would have thought being a Respondent in the appeal by virtue of the fact that, it is the Appellant which first invoked our jurisdiction by its notice of appeal the proper rule under which the Respondent ought to have prosecuted its cross appeal is under Rule 15 of C.I.19 (as amended) which requires the Respondent to simply give notice in accordance with Form 7 set out in Part One of the schedule to the rules that the judgment appealed from be varied. This certainly would have made for better comprehension of the endorsement and proper description of the parties in the appeal. In its written submission, the Respondent applied the language of the rules by seeking variation of the judgment on the following grounds.

“(i) Having regard to the evidence on record the sum of (Gh₡10,000,000.00) awarded to Plaintiff by Court below as compensatory damages is low.

The Respondent then sought a variation as follows:-

“(i) An order enhancing the quantum of damages awarded Plaintiff by the Court below and accordingly increasing the compensatory damages awarded Plaintiff/Appellant over and above the sum of (Gh₡10,000.000.00)”.

(8) We must place on record that though both parties in the appeal gave notices of intention to file additional grounds of appeal, at the time of hearing the appeal and adoption of written submissions, no additional grounds of appeal had been filed by either party.

(9) THE SCOPE OF JURISDICTION OF THIS COURT:

It is necessary in this judgment to briefly state the authority upon which this court determines appeals. The rules of this court state emphatically per Rule 8(1) that every appeal to this court is by way of a rehearing. In TUAKWA VS. BOSOM [2001-2002] SC GLR 61 Sophia Akuffo JSC (as she then was) defined the scope of the duty of the Appellate Court when she said: “An appeal is by way of rehearing, particularly where the Appellant alleges in his notice of appeal that the decision of the Trial Court is against the weight of evidence…………..”

(10) An examination of the grounds of appeal relied upon to contest the judgment appealed from and the voluminous written submissions filed by both parties in this appeal will confirm that this court has been invited to rehear the dispute between the parties albeit from the volumes of the record before us and the exhaustive submission filed. The Appellant herein has raised the general issue having set out a ground that the judgment is against the weight of the evidence.

(11) The statutory obligation of this court to re-hear matters brought to it on appeal is re-enforced by the established principle that where the Appellant contends that the judgment appealed from is against the weight of the evidence adduced at the trial then the Appellate Court must re-hear the matter. In the case of OWUSU-DOMENA VS. AMOAH [2015-2016]1 SC GLR 790 therefore, Benin JSC held at page 799 of the report that the sole ground of appeal that the judgment is against the weight of evidence throws up the case for a fresh consideration of all the facts and law by the Appellate Court. It is in the context of this principle among others that this court will determine this appeal.

(12) The Respondent to this appeal has contested the propriety of some of the grounds contained in the Appellant’s notice of appeal. The Respondent’s argument against some of the Appellant’s grounds of appeal is that, these grounds are defective for want of compliance with Rule 8(4) of the rules of this court.

(13) We shall deal briefly with the Respondent’s objection to the propriety of some of the grounds of appeal formulated by the Appellant. Upon casual observation, there has emerged some degree of impropriety in the Respondent’s approach in contesting some of the Appellant’s grounds of appeal. This arises from the fact that although the Respondent objects to the grounds of appeal, it refused to take out an objection at the hearing of the appeal the grounds upon which it challenges the propriety of those grounds it contends are noncompliant with the rules of this court. The rules provide expressly and mandatorily that where a Respondent has any objection to the hearing of the appeal, such a Respondent must state his case as an objection. This is clearly provided for in Rule 16(1) of the rules of this court in the following words:-

“(1) A Respondent who intends to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three (3)clear days notice before the hearing of the preliminary objection, setting out the grounds of objection, and shall file the notice specified in Form 8 in Part 1 of the Schedule together with five copies of the appeal with the Registrar within the same time’.

(14) The effect of this rule is that, where as in this case, the Respondent has taken the view that the appeal ought not be heard on the basis of the impugned grounds, the Respondent must if it decides to proceed, take out an objection in accordance with Rule 16(1). It will then be open to the directions of this court whether to deal with the objections to the propriety of some of the grounds separately and determine the objection or to deal with the objection compositely together with the other grounds of appeal and do a determination in the judgment. In its written submission, the Respondent argues forcefully that some of the grounds of appeal filed by the Appellant are irregular because they violate the prescription stated in Rule 8(4) of the rules of this court which provides that where “the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated”.

(15) It is obvious that the Respondent does not intend that this court determines the appeal on those grounds of appeal the Respondent has alleged are not compliant with mandatory rules of court. Rather than take out an objection as required by the rules, the Respondent elected to raise it in its written submission and then urges this court on the basis of the written submission to strike out the grounds of appeal complained of instead of a formal objection in terms aforesaid.

(16) The Respondent explains that the reason for electing this step is to avoid wastage of time. The Respondent’s reasoning is that if it opted to argue its objection in its written submission instead of filing the objection as required by the rules, it will require this court to hear the objection first, before proceeding to deal with the substantive appeal. The Respondent takes the view that its approach, serves the justice system better because having taken the objection in its written submission, in the event that this court overruled the objection, the court may proceed to hear the appeal taking into account the grounds objected to and determine the appeal compositely.

(17) We do not find this explanation by the Respondent acceptable. The result of the Respondent’s step is to without-recourse to the rules of court apply a procedure not consistent with the rules. The rules of the court do not provide for the situation of convenience resorted to by the Respondent. The Respondent’s approach may be convenient and reasonable to it, but it is at variance with the rules of the court. The effect of the Respondent’s approach is that, it has waived its right to object to those impugned grounds of appeal. This type of practice was queried by this court in the case of ALFRED AGBESI WOYOME VS. THE REPUBLIC unreported judgment dated 8/3/2018 in Appeal No.H1/42/2017.

(18) Having placed our rejection of the Respondent’s approach on record, we must add that this court has an obligation to suo motu take points of law regardless of whether the parties have raised them or not. As held by the English Court of Appeal in the case of PHILLIPS VS. COPPING [1935] IKB 15 at 21 per Scrutton L.J; “It is the duty of the Court when asked to give a judgment which is contrary to a statute to take the point although the litigants may not take it”. The Supreme Court adopted the same approach in the case of TINDANA (NO.2) VS. CHIEF OF DEFENCE STAFF & ANOR. [2011] 2 SC GLR 732.

(19) While it will therefore be contrary to the statutory provisions regulating the determination of appeals before this court to give judgment upon grounds not permissible by the rules of this court, this court has a duty to examine the notice of appeal itself and decide whether or not it complies with the rules of the court. Granted therefore, that the Respondent did not even raise the question as to the propriety or otherwise of some grounds of appeal complained about, this court has an obligation to examine all the grounds in order to determine whether or not they are in compliance with the rules especially those couched in mandatory terms.

(20) In the context of the rules regulating appeals in the Supreme Court (which for all intents and purposes are in pari materia with the rules of this court) it is useful to refer to the observations made by Akamba JSC in the case of F.K.A COMPANY LIMITED VS. NII TEIKO OKINE (Substituted by NII TACKIE AMOAH VI & OTHERS, CIVIL APPEAL NO/J4/1/2016 dated 13/4/2016. In that case, the Learned Justice observed as follows:-

“It is important to stress that the adjudication process thrives upon law which defines its scope of operation. It is trite to state for instance that, nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the context of the adjudication process must be guided by the appropriate, relevant provision, be it substantive law or procedural law. As courts, if we fail to enforce compliance with the rules of court, we would by that lapse be enforcing the failure of the adjudication process which we have sworn by our judicial oaths to uphold”.

The Learned Justice went on to hold as follows:-

“The matter before us presently has been initiated through the appeal process and must therefore be conducted and guided by the Supreme Court Rules, (1996), C.I.16. We would reiterate compliance with the rules of this court by juxtaposing the seventeen grounds of appeal (supra) filed by the Defendants with the provisions of Rule 6(4) of the Supreme Court Rules (1996), C.I.16, to determine how far they are compliant and if not, what consequences arise”.

(21) To the extent that the decision just cited emphasizes compliance with the rules on appeal albeit in relation to the rules of the Supreme Court, we think the wisdom embodied in the parts of the decision just quoted are relevant in the instant appeal.

(22) Undoubtedly, Rule 8(4) of the rules of this court provides that:

“(4)Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated”. This is one of the rules which prescribes the manner in which an Appellant must formulate his grounds of appeal. The Appellant is not at liberty to state the grounds of their appeal in any manner. The grounds of appeal upon which a party challenges the judgment of the Court below must therefore not only be properly formulated but shall be set out in the manner prescribed by the rules of the court. The grounds of appeal assist the court to properly situate the point of law or fact upon which the judgment appealed against is assailed. The grounds of appeal also assist the court to appreciate the context in which the Appellant is urging this court to interfere with the judgment of the Court below. It is for this reason that the rules of the court require clarity where on Appellant alleges misdirection or error of law to set out particulars of the allegation.

(23) The significance of Rule 8(4) of the rules of this court has been emphasized in Civil Appeal No.H1/171/6 dated 23/2/17 in the case of LAWRENCIA ADAMS VS. COFFEY INTERNATIONAL. In that case, this court observed that for over two decades now it has decried the manner in which parties formulate their grounds of appeal. These grounds are usually formulated without regard to the rules of the court whatsoever. In the LAWRENCIA ADAMS case, this court referred to the case of ZABRAMA VS. SEGBEDZI [1991]2 GLR 221 where per Kpegah J.A (as he then was) it held at page 226 on defective grounds of appeal as follows:-

“I do not think it meets the requirements of these rules to simply allege “misdirection” on the part of the Trial Judge. The requirement is that the grounds stated in the notice of appeal must clearly and concisely indicate in what manner the Trial Judge misdirected himself either on the law or on the facts. To state in a notice of appeal that “the Trial Judge misdirected himself and gave an erroneous decision” without specifying how he misdirected himself is against the rules and renders such a ground of appeal inadmissible. The rationale is that a person who is brought to an Appellate forum to maintain or defend a verdict or decision which he has got in his favour, shall understand on what ground it is impugned”.

(24) As the court itself is bound by its ground rules to examine all the grounds of appeal and bound by its previous judgments and of the Supreme Court, we cannot gloss over them. It is in this context that we refer to the same grounds which the Respondent complained about. These are grounds 1 to 4 of the Appellants grounds of appeal. We notice that the Respondent included grounds 5 and 7 of the notice of appeal. Since this court has decided that it is taking the point by itself, the Respondent’s contentions on the matter are irrelevant.

(25) APPELLANT’S GROUNDS OF APPEAL:

GROUND 1:

The Appellant’s first ground of appeal simply states that “the Trial Judge erred in his construction of the grounds for termination by the Defendant and the obligations of the Plaintiff under the letter of intent”. What is the nature of the error? This is not stated by the Appellant. The Appellant did not provide the particulars of the error. Although the ground of appeal alleges that the error relates to the construction of the grounds of termination under the Letter of Intent, the Appellant has failed to specify what the nature of the error is. The rule clearly requires that if the error is one of law, the nature and full particulars of the error in law must be stated. The Appellant therefore ought to have particularized the nature of the error of law into which the Trial Judge had fallen in his construction of the grounds for termination under the Letter of Intent.

(26) GROUND 2:

In ground 2, the Appellant simply states that the “Learned Trial Judge erred in ordering the Defendant to refund the Plaintiff’s expenses when he had actually found that the Defendant had not breached the Letter of Intent”. What exactly is wrong in the Trial Court making a finding that the Appellant did not breach the Letter of Intent and proceeding to order that the Appellant should refund the Respondent’s expenses. Could there not be another basis for making such an order? The rule requires the Appellant to give the court an indication of the reason why the Court below is alleged to have committed an error. The Appellant has failed to state any particulars at all of the error alleged. The Appellant has failed to indicate whether the error is of fact or of law or that it constitutes a misdirection based on the undisputed facts.

(27) GROUND 3:

Under this ground, the Appellant contends that “the Learned Trial Judge erred in law when he held that it was unfair and inequitable for the Defendant to terminate the Letter of Intent for non-conformance”. In the first place there is a sharp contradiction between this ground and the, second ground which alleges that the Court below found that the Appellant did not breach the Letter of Intent. If the Court below actually found that the Appellant did not breach the Letter of Intent as earlier alleged by the Appellant, how did the same court be alleged to have “erred in law” because it held “that it was unfair and inequitable for the Defendant to terminate the Letter of Intent for non-conformance”. In any case, how did the Court below commit an error by holding that “it was unfair and inequitable for the Defendant to terminate the Letter of intent for non-conformance”? Although this ground alleges error of law, it did not state nor particularize what the nature of the error of law is.

(28) GROUND 4:

Ground 4 of the grounds of appeal is couched in similar manner as the preceding grounds already discussed. It contends that “the Learned Trial Judge erred in his finding in tort that the Defendant engaged in a pattern of conduct calculated to mislead the Plaintiff into believing that a deal had been made”. The compelling interrogatory is that why is this an error? And what type of error? Is it an error of law of fact?

(29) In the LAWRENCIA ADAMS case, this court had no hesitation whatsoever in striking out grounds 1-6 of the grounds of appeal. The court took the view in that case that, grounds 1-6 set out in the notice of appeal violated the procedural rules of this court. Further in the case of INTERNATIONAL ROM LTD. VS. VODAFONE GHANA LTD., Civil Appeal NO.J4/2/2016 dated 6/6/2016 the Supreme Court while striking out all the grounds of appeal settled by the Appellant on the grounds that they are narrative and argumentative in formulation, observed that “the magnanimity exhibited by this court (Supreme Court) over these obvious lapses and disrespect for the rules of engagement is being taken as a sign of either condoning or weakness hence the persistence of the impunity. It is time to apply the rules strictly”. The above decision consistent with the position of the Supreme Court in the case of DAHABIEH VS. S.A TURQUI BROTHERS & ORS. [2001-2002] SC GLR 498 as applied in the LAWRENCIA ADAMS case (supra) are all binding on this court by virtue of Articles 125(3) and 136(5) of 1992 Constitution with the effect that we shall apply them to determine the propriety of grounds 1 to 4 of the Appellant’s grounds of appeal which are patently non-compliant with the rules of this court. Being inadmissible and unarguable, they are hereby struck out.

(30) Having so ordered, the jurisdiction of this court as already observed is properly exercised by way of rehearing especially when an Appellant alleges that the judgment appealed from is against the weight of evidence. The authorities are settled on this point. It is a ground that imposes a duty on this court to re-examine the whole case, by a review of the entire record, and the application of the facts and evidence to the relevant law. The authorities on this duty abound.

(31) On the strength of those authorities although grounds 1-4 of the grounds of appeal set out by the Appellant have been struck out, the Appellant is nevertheless fortuitous because as a judicial duty, this court will have to determine all matters relating to the same grounds we have struck out in considering the omnibus ground upon which the Appellant has also anchored this appeal. This in no way diminishes from the reason for which the Appellant’s improper grounds have been struck out. Indeed in the INTERNATIONAL ROM LTD. VS. VODAFONE GHANA LTD. CASE (supra) the Supreme Court took the same view in order that the Appellant’s appeal would not have failed on grounds of technicality only.

(32I n proceeding as such however we have cautioned ourselves in the discharge of our obligations having regard to the judicially acknowledged view that the findings of fact made by a Trial Court are presumed correct until the Appellant is able to demonstrate that they are perverse or that the Trial Court had applied the wrong perception to the evidence or the wrong principles of law to the evidence. In the case of OXYAIR LTD. & DARKO VS. WOOD & ORS. [2005-2006] SC GLR 1057-1068 the Supreme Court per Date-Bah JSC stated that: “……………………furthermore, it is settled law that an Appellate Court will presume the findings of fact of a Trial Judge to be right, unless this presumption is displaced by the Appellant. The Privy Council so held in the Gold Coast case of KISSIEDU VS. DOMPREH [1937]2 WACA 281. Lord Russell there said (as stated at page 286 of the Report):

Their Lordships find it impossible to say that the Court of Appeal could, on the materials before them, properly be satisfied that this finding of fact by the Trial Judge must be erroneous. No doubt an appeal in a case tried by a judge alone, is not governed by the same rules which apply to an appeal after a trial and verdict by a jury. It is a rehearing. Nevertheless before an Appellate Court on properly reverse, a finding of fact by a Trial Judge, it must come to an affirmative conclusion that the finding is wrong. There is a presumption in favour of its correctness which must be displaced. As Lord Ether M.R said in COLONIAL SECURITIES TRUST CO. VS. MASSEY [1896]1 Q.B.38 “where a case tried by a judge without a jury comes to the Court of Appeal, the presumption is that the decision of the Court below on the facts was right, and that presumption must be displaced by the Appellant”. Their Lordships must, they think, apply the same test, and ask themselves whether in their opinion the presumption in favour of the findings of the Trial Judge had been displaced”.

It is with the same effect that Brobbey JSC held in the case of MARY YARBOLEY OKAI & ORS. VS. NICHOLAS TIMOTHY CLERK [2008] ML RG [162 SC that: “It is not the province of the Appellate Court to interfere with findings of facts where they are found to be logical and supported by the evidence on the record”.

(33) The position of the law therefore is that, where as in the instant case this court is required to determine an appeal based on the omnibus ground of appeal, the burden falls upon the Appellant to demonstrate to this court what pieces of evidence on record which if applied in his favour could have changed the decision in his favour or which pieces of evidence have been misapplied or wrongly applied against him. It is on the basis of the above stated principles that the appeal before us shall be determined. We note that the facts which precipitated the suit at the Court below are largely agreed upon between the parties. The main point of divergence in our view lies in the legal consequences that flow from the facts. We find it expedient therefore to briefly set out the background facts to this appeal.

(34) THE BACKGROUND FACTS:

As already stated, the facts as between the parties are not in substantially in dispute. The disagreement of the parties lies more in the legal consequences flowing from the undisputed facts. The facts can be gleaned from the pleadings of the parties and the evidence before the Trial Court. For a better appreciation of these background facts, we shall be detailed and analytical in order to place them in the proper context.

(35) The pleadings and the mass of documentary evidence adduced at the trial show that the Appellant invited bids from various persons requiring them to tender for the provision of crane and forklift services to the Appellant at Takoradi the Respondent was one of the entities which submitted a tender to provide the services required by the Appellant at Takoradi.

(36) The parties are also ad idem on the facts that following the submission of the tenders to provide the services required by the Appellant, it is agreed that at the time the Appellant closed the tender, there was no formal communication to any party that the Appellant had evaluated a specific tender and awarded the contract to any specific person or entity. It is however beyond dispute that after the tender period closed, the Appellant engaged the Respondent in what is called, “a series of clarifications” which from the record number at least fourteen (14).

(37) The Respondent and the Appellant however disagree on the significance of these clarifications. The question was whether these clarifications which ensued between the parties after the tender period had closed resulted in the logical conclusion that the Respondent had been awarded the contract or the clarifications were still part of the bidding process. What the parties however agree on is the fact that, the Appellant engaged the Respondent in these series of clarifications which commenced sometime in August 2011 and lasted until November 2011. Each of these clarification requests, was initiated by the Appellant and the Respondent was then required to answer them.

(38) The facts are agreed that the Respondent did answer each of the requests. The clarification requests made by the Appellant and the answers provided by the Respondent are well documented in a chain of emails between the parties. It is also agreed that the purpose of these clarification requests made by the Appellant was to assure the Appellant that the Respondent had the capacity to deliver the services requested of the Respondent by the Appellant.

(39) The clarification requests reveal that at a point, the Respondent and the Appellant had reached some understanding as to whether or not the Respondent had the capacity to deliver the services required by the Appellant at Takoradi. In clarification number 12 which is evidenced by Exhibits ‘F’ and ‘F1’ (pages 1375 and 1376 of Vol. 2 of the record), the Appellant wrote to the Respondent by way of Exhibit ‘F1’ and made the following enquiry:-

“My overall conclusion is that, if you were to be awarded a contract:

(1) You would immediately put in place arrangement to enable you to comply as soon as possible with all of the outstanding requirements; and

(2) You would provide all the equipment and operators in conformance with the requirements and standards ready for commencement of the services on 01/1/2012.

Please confirm if any conclusion in (1) and (2) is a correct representation of your position…………….”(s).

(40) The Respondent responded to Exhibit ‘F1’ by way of Exhibit ‘F’ as follows:-

“Without any qualifications or clarifications, we confirm your conclusion in (1) and (2) is a correct representation of our position”.

This suit being commercial in nature, the acceptable approach is to fully appreciate these engagements between the parties from the view of an objective reasonable by-stander observing the parties engaging within a commercial context. Before we proceed to provide an answer, it is important to explore how at common law the standard of the reasonable by stander has been assessed. Because of the paucity of local judicial authorities, a resort to decisions of the English Courts will provide a reasonable guide. The appropriate modern starting point is Lord Hoffmann’s statement in the case of INVESTORS COMPENSATION SCHEME VS. WEST BROMWICH BUILDING SOCIETY [1998] I WLR 896 where he said: “Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”. Then more than ten years later in ATTORNEY GENERAL OF BELIZE VS. BELIZE TELECOM LTD. [2009]I WLR [1998]; the same judge reiterated that the meaning of a contract is not necessarily the same as the intention of the parties, while Lord Diplock in PIONEER SHIPPING LTD. VS. BTP TIOXIDE LTD. [1982] AC 724 said “the object sought to be achieved in construing any contract is to ascertain what the legal intentions of the parties were as to the legal obligations each assumed by the contractual words in which they sought to express them”.

(41) We are aware that in the instant appeal, while no formal contract was executed between the parties, what the Trial Court and indeed this court has been invited to determine is whether or not on the basis of the documentary evidence exchanged between the parties a situation had emerged where the failure by the Appellant to formally execute a contract in favour of the Respondent could have given rise to a cause of action in equity for which the Respondent was entitled to compensation. In either situation therefore, it will involve the determination of the true intentions of the parties in the series of exchanges by way of clarifications and this has to be done by the application of sound judicial principles and precedents.

(42) Our understanding of the engagement between the Respondent and the Appellant is that the Appellant’s conclusion as evident from Exhibit ‘F1’ is that the Respondent had shown from the various clarification requests made of the Respondent that the Respondent was capable of delivering the services requested by the Appellant from the Respondent. It is for this reason that the Appellants Exhibit ‘F1’ says that the Appellant’s own conclusion is that if the Respondent were awarded the contract, it will immediately put in place the arrangements necessary to complete the outstanding requirements by January, 2012. Exhibit

‘F1’ was therefore clear that the Respondent was required to put in place all necessary arrangements by January 2012 after the Appellant had awarded the contract to the Respondent.

(43) The above narrative confirm that at least by clarification number 12, no contract was ever awarded to the Respondent by the Appellant. However, Exhibits ‘F’ and ‘F1’ confirm that the parties only started discussing a contract. The evidence confirms that after the conversation and the Appellant having received satisfactory answers from the Respondent that the Respondent was capable of delivering on the Appellant’s tender requirements, the Appellant conducted direct investigations by itself, to confirm the answers it received from the Respondent.

(44) Consequently, the Appellant wrote to the Respondent by way of Exhibit ‘H’ (page 1385 of Vol.2 of the record) and requested to visit Respondent’s yards and offices” and to be shown the Respondent’s “equipment”. Further to the request made in Exhibit ‘H’, the Appellant stated the purpose of its visit in Exhibit ‘J’ which is also set out at pages 1388-1389 of Vol.3 of the record. The purpose of the Appellant’s visit, as stated in Exhibit ‘J’ was to enable the Appellant “inspect” the Respondent’s “operations and equipment and related facilities and documentation”.

(45) The result of the Appellant’s visit to the Respondent’s offices was a meeting between the Respondent and the Appellant. It was at this meeting that the Respondent and the Appellant then discussed the award of the contract to the Respondent. The proceedings of the meeting was tendered in evidence as Exhibit ‘K’, (pages 1390-1394 of Vol.3 of the record). Exhibit ‘K’ states the purpose of the meeting which was to “seek further clarification and assurances” about the Respondent’s preparations for performance of the services if a contract is awarded. Clause 31.1 of Exhibit ‘K’ provides that if the contract is awarded to the Respondent and it did not comply with the requirements, then the extra two (2) months would be used for smooth transition of the services to the Respondent including final mobilization, familiarization and integration.

(46) At this stage of the negotiations, we need to repeat our earlier enquiry. How would an objective reasonable bystander have understood the engagements between the parties? We ask further, will it be a fair and just inference at this point to say that the parties were on the verge of agreement? As already noted, the documentary evidence on this, in our view points in one direction. Exhibit ‘K’ state clearly that among the reasons for having the meeting between the parties was to seek assurances about the Respondent’s preparations for performance of the services if a contract is awarded.

(47) The purpose of this meeting clearly suggests to an objective mind that upon those assurances being given to the Appellant’s satisfaction, the Appellant will have no hesitation whatsoever in awarding the contract to the Respondent. Indeed we also note that Exhibit ‘K’ states at Clause 31.1 that, the Appellant intended to award the contract with all of the requirements the Appellant expected and that the Appellant will allow an extra two (2) months to be used to regularize any issue of non-compliance. It is therefore clear from Exhibit ‘K’ that the parties intended that a contract be awarded at this stage and a period of two (2) be given to enable the Respondent finalize all preparations to execute the contract.

(48) The inferences we draw from the engagements between the parties arise from the documents tendered in evidence at the trial. Having then confirmed that after the award of the contract to the Respondent, a period of two months will be given to the Respondent to ensure full compliance with the requirements necessary to execute the contract, we then move to the next stage, which is the with respect to award of the contract. This follows naturally from the engagements of the parties. The question whether or not the contract was awarded or ought to have been awarded the next issue to address.

(49) The parties were in agreement that the Respondent will be given a period of two months to complete all outstanding arrangements to execute the contract after the award of the contract. What followed was a letter written by the Appellant to the Respondent per Exhibit ‘L’ in which the Appellant informed the Respondent that the Respondent had secured the tender process up to the stage when the Appellant’s internal management had decided in principal “to award the full contract in due course” to the Respondent.

(50) Exhibit ‘L’ confirms what was already agreed upon by the parties in Exhibit ‘K’ as already observed is that the Appellant had in principle agreed to award the contract to the Respondent and allow the Respondent two months to complete all the arrangements necessary and required to execute the contract. Exhibit ‘L’ however explains why the contract was not immediately awarded to the Respondent as contemplated by the parties.

(51) In Exhibit ‘L’, the Appellant itself says that the only requirement that needed to be satisfied before the award of the contract to the Respondent was the approval by the Appellant’s partners. Exhibit ‘L’ therefore says clearly that the award of the contract to the Respondent was subject to “receiving agreement by” the Appellant’s partners and then final approval by” the Appellant’s authorized signatory. The upshot of the engagements between the parties therefore can be reduced to the following propositions:-

(i)The Appellant’s internal management had expressed its satisfaction with the Plaintiff’s readiness to execute the services required by the Defendant.

(ii)The results of (i) above is that the Appellant’s internal managementhad therefore decided to forward their recommendation the Defendant’s partners.

(iii)The Appellant expected a reply to their recommendation by Monday 28^th November.

(52) The fact that the Appellant’s internal management had decided to recommend to its partners that the Respondent be awarded the contract is recorded and that the Appellant’s partner’s reply was expected by Monday 28^th of November is reiterated in Exhibit ‘N2’. It is in this context that Exhibit ‘L’ was written. Pending the Appellant’s approval, the parties concluded what may generally be called a pre-contract by way of Exhibit ‘L3’. Exhibit ‘L3’, required the Respondent to start preparations towards the execution of the contract. It is therefore stated in Exhibit ‘L3’ that; “pending notification of approval or otherwise”, the Respondent was required to “proceed with the Limited workscope in accordance with the documentation set out in Exhibit ‘L3”

(53) It needs to emphasized some important aspects of Exhibit ‘L3’. Exhibit ‘L3’ anticipated the possibility that a contract will not be concluded between the parties. This was naturally to be expected having regard to the review of the parties’ engagement so far. This is because, Exhibits ‘K’ and ‘N2’ make the approval of the Appellant’s partners a condition precedent to the award of the contract to the Respondent. Exhibit ‘L3’ therefore provided that in the event that Exhibit ‘L3’ was terminated, the Appellant will be liable in relation to works executed under paragraph 4.2(a) and (c) of Exhibit ‘L3’.

(54) Following Exhibit ‘L3’ the Respondent executed various works. This is not in dispute. As it turned out, the contract was not awarded to the Respondent. By letter dated January 31 2012, the Appellant wrote to the Respondent and informed the Respondent that it had decided to terminate Exhibit ‘L3’ on the ground that Respondents tender was “disqualified”. The reason as contended by the Appellant was that the Respondent had failed to comply with the Appellant’s technical standards.

(55) The refusal to award the contract to the Respondent is what precipitated the suit from which an appeal lies before us. The Respondent’s contention in this suit mainly is that the Appellant had clearly represented to the Respondent that the Appellant will award the contract to it and on the basis of those representations went through various expenses in preparation to execute the contract. The Respondent contended that the Appellant’s recourse to technical breaches as the ground for refusing to award the contract to it was clearly an afterthought as the parties had reached agreement at a point that the Respondent was competent enough to deliver on the contract. In any case, the Respondent also pointed out that granted even that the Respondent had not complied with some of the technical requirements of the contract, the evidence, which we must emphasize is documented is that, the parties had agreed that the Appellant will first award the contract to the Respondent and the Respondent given at least two months to comply with all the requirements.

(56) On the other hand, the Appellant disputed the Respondent’s claim insisting in one breadth that being a tender, there was no obligation to award the contract to the Respondent. The Appellant also stated that although the Appellant had informed the Respondent that it was only waiting for its partner’s approval to award the contract to the Respondent, Exhibit ‘L3’ allowed the Appellant to terminate the process on any other ground. These are the main points of dispute between the parties. We further note that these points of dispute are not inconsistent with the evidence on record. The only disagreement lies in the respective positions of the parties on the legal consequences flowing from the engagements between the parties. At this stage, we shall examine the findings of the Trial Court.

(57) JUDGMENT OF THE TRIAL COURT:

We have to place on record that the findings by the Trial Court are confirmed by the record. The Trial Court firstly dealt with the process of engagements between the parties. The Trial Court found out that the Respondent had indeed tendered among other companies to provide certain services for the Appellant at Takoradi. The process that followed this tender was a series of clarifications requested by the Appellant from the Respondent.

(58) The Trial Court also found that the series of clarifications concluded at a point and the parties agreed that the Appellant will award the contract to it subject only to the approval by the Appellant’s partners. This is clearly supported by the evidence already reviewed. The reason is that the parties had clearly concluded a pre-contract.

(59) We hold the view that there can be no tender process that is deemed to continue perpetually. From the facts and evidence adduced at the trial, the tender process must be deemed to have ended by the time the parties signed the pre-contract. The terms of this pre-contract clearly required the Respondent to proceed with the execution of some of its obligations required to the performed upon award of the contract. It is for this reason that we take the view that by the time the parties started engaging on the possibility of awarding the contract to the Respondent, it cannot be successfully argued that the tender process was still ongoing. The signing of the pre-contract therefore fell outside of the tender process. This is because, we do not find the signing of a contract anywhere in the detailed tender requirements which the Appellant itself put in evidence. In any case, any proposition to that effect will be offensive to commercial sense.

(60) We therefore endorse the view by the Trial Court that by the time the pre-contract was signed there was a clear intention to award the contract to the Respondent. Further, we agree with the Trial Court that although there was a clear intention to award the contract to the Respondent, the same pre-contract allowed the Appellant to terminate the process. We note that this anticipated situation is also beyond any dispute whatsoever.

(61) In the judgment of the Trial Court, the Trial Court held that from the evidence before it, the Appellant was not entitled to refuse to award the contract to the Respondent relying on technical breaches. In so finding, the Trial Court seems to have agreed with the Respondent that the Appellant had clearly represented to the Respondent that the Appellant’s only constraint in the award of the contract to Respondent was Appellant’s own partner’s approval. It is difficult to fault this finding. The reason is that it is clearly informed by the documents on record which we have already referred to.

(62) Furthermore, we note from the documents on record that by clarification number 12, there were clear and unequivocal engagements between the parties with regard to the award of a contract. The Appellant enquired from the Respondent whether the Respondent will be ready to execute the contract if the contract were awarded to the Respondent. The Respondent answered this question affirmatively.

(63) The engagements between the parties which we have already reviewed also confirms that the parties agreed that the Respondent was not required to comply with all the requirements before the award of the contract. It is for this reason that the parties agreed that the Respondent will be given at least two months to complete all final arrangements to deliver on the contract.

(64) Indeed the evidence is clear that the contract was to be awarded to the Respondent first, before the Respondent will then be required to mobilize and ensure full compliance with all the technical requirements of the contract. Our view therefore is that, if the Appellant had, as agreed, awarded the contract to the Respondent and the Respondent had failed within the two months period to comply with the technical details of the contract, the termination of the contract would have been justified on ground of failure to comply with the technical requirements of the contract.

(65) The Trial Court found that the Appellant engaged in a pattern of conduct calculated to mislead the Respondent into believing that the parties were ad idem on the award of the contract to the Respondent. The Trial Court took the view that the evidence confirmed that the Appellant led the Respondent to believe that the contract would be awarded to it subject only to the approval of the Appellant’s partners. The evidence points to the fact that this conclusion reached by the Court below is also justified. The documents referred to earlier confirms that the Appellant represented to the Respondent that the Appellant was almost certain to obtain the approval of its partners especially after the Appellant’s internal management had found the Respondent competent to execute the contract.

(66) It is on the basis of the findings we have just given our attention to that the Trial Court held that it would be unfair and inequitable for the Appellant to terminate and disqualify the Respondent for con-conformances when the Respondent had substantially performed the requirements stated in the pre-contract. The Appellant contends however that since the pre-contract allows the Appellant to refuse to award the contract to the Respondent on any other grounds, it did not matter that the Appellant relied on technical breaches instead of the refusal of its partner’s, approval as the ground for refusing to award the contract to the Respondent. We shall deal with this point later as it forms one of the strong points that the Appellant relies upon in this appeal having contended that the Trial Court had erred in making an award to the Respondent in tort when the Respondent’s cause of action is founded on contract.

(67) We shall now examine the grounds argued by the Appellant in this appeal. We have earlier struck out grounds 1-4 of the Appellant’s grounds of appeal. We have also pointed out that some of the arguments made in the grounds of appeal struck may yet receive consideration in the exercise by this court of its jurisdiction of a rehearing.

(68) In examining the grounds of appeal relied upon by the Appellant in this appeal, we observe that there are a number of arguments made in the Appellant’s written submissions against the judgment of the Trial Court which are substantially legal. We propose to deal mainly with the omnibus ground of appeal and in the course of doing so, also examine all the legal points that the Appellant has urged on this court. Being points of law, it is legitimate to address them at this stage also.

(69) We have already referred to the case of OXYAIR LTD. DARKO VS. WOOD & OTHERS (supra). That case among others establishes the principle of the presumption of rightness of findings of fact of a Trial Judge unless of course this presumption is displaced by the Appellant. The Appellant therefore carries the burden to displace this presumption.

(70) We have also just reviewed the findings of the Trial Court and have taken the view that the findings are very well supported by the evidence on record. Although witnesses were called in this case, the evidence they adduced were substantially documentary. The finding by the Trial Court that the Appellant engaged in a pattern of deception is well supported by the evidence on record. While we shall not describe the Appellant’s conduct in exactly the same terms as the Trial Court did, the same being rather harsh in our view, it still does not derogate from the evidence relied upon to reach the said conclusion.

(71) The representations made to the Respondent by the Appellant are well supported by the evidence on record. In its written submissions, the Respondent submitted on same relying on several pieces of correspondences between the parties. We shall refer to these documents also. In Exhibits ‘F’ and ‘F1’, the Appellant requested that the Respondent confirm whether it could execute the contract if the contract were awarded to it. The Respondent responded that: “Without any qualifications or clarifications, we confirm your conclusion in (1) and (2) is a correct representation of our position”.

(72) In Exhibit ‘F2’ the Respondent says clearly that without a contract, the Respondent will not execute any works. This is stated in the opening paragraph of Exhibit ‘F2’. To confirm the veracity or otherwise of the Respondent’s confirmation that it could execute the contract, the Appellant then requested to visit the Respondent’s office premises. After the Appellant’s visit a meeting was held to discuss the result of the visit. The Appellant’s visit and the minutes of the meeting held after the visit are recorded in Exhibit ‘H’, ‘J’ and ‘K’. We need not emphasize that these are documentary and represent the best evidence.

(73) The minutes of the meeting which can be found in Exhibit ‘K’ state without equivocation that the Appellant’s management had decided in principle “to award the full contract in due course” to the Respondent but subject to “receiving agreement by” the Appellant’s partners and then final approval by the Appellant’s authorized signatory. The Appellant confirmed its internal management’s satisfaction with the Respondent’s fulfillment of the tender requirements up to the time when the Appellant visited the Respondent’s offices. This is also stated in Exhibit ‘L’. The Appellant then requested the Respondent to start preparations towards the execution of the contract.

(74) We find it amply supported by the evidence that the Appellant procured the Respondent’s consent to start work towards the award of the contract by concluding the pre-contract with the Respondent. All these are to our minds clear indications given to the Respondent by the Appellant that the Appellant had decided to award the contract to the Respondent subject only to the approval the Appellant was waiting for. The representations were clear and unequivocal. They are also supported by the evidence on record. The Respondent was entitled to rely on them and did actually rely on them. We therefore endorse the findings of the Trial Court, that the Appellant clearly made representations to the Respondent that the contract will be awarded to it and the Respondent relied on these representations and adjusted its position in accordance with those representations.

(75) As already indicated, we shall proceed to deal with a legal point raised in ground 1 of the appeal though the ground itself had been struck out. This is the ground which states that the Trial Court erred in the construction of the termination clause. Paragraph 6 of the pre-contract says that the Appellant may terminate the pre-contract on two grounds, which are; either

(i)“approval to award the contract is not obtained or (ii) for any other reason”.

(76) It is the Appellant’s argument that because the clause allows the Appellant to terminate the pre-contract “for any other reason” the Appellant was entitled to rely on non-compliance with the technical requirements of the contract by the Respondent. This argument would have been valid if account is not taken of the background to the pre-contract. This pre-contract did not exclude all of the background events. We have already noted that in the engagements leading to the conclusion of the pre-contract, the documentary evidence confirmed that the Appellant had expressed its satisfaction with the Respondent’s compliance or otherwise with the technical requirements of the contract.

(77) We have also observed that the Appellant had agreed that in the eventual award of the contract, the Respondent will be given time to complete all outstanding obligations relating to the contract if any remained outstanding as at the time of the award of the contract. Our view therefore is that the phrase “for any other reason” appearing in the pre-contract cannot relate to any matter relating to technical breaches which the parties had agreed had been complied with or that even if they were not complied with the Respondent will be given time to comply with them. We therefore refuse to uphold the Appellant’s argument that the phrase “for any other reason” should be interpreted to include even matters that the parties themselves had conceded they were already satisfied with.

(78) In the case of CARGILL INTERNATIONAL S.A VS. BANGLADESH SUGAR & FOOD INDUSTRIES CORPORATION [1998] 2 ALL ER. 406, Lord Justice Potter of the English Court of Appeal held as stated at page 413 of the report that:

“Modern principles of construction require the court to have regard to the commercial background, the context of the contract and the circumstances of the parties and to consider whether against that background, and in that context, to give the words a particular restricted meaning would lead to an apparently unreasonable and unfair result”. In this situation we find it reasonable and fair to take the view that it cannot have been the intention of the parties after such exhaustive engagements which resulted in a firm conclusion reached between the parties that the Respondent was capable of delivering under the contract and that even if there were any matters outstanding which the Respondent was required to comply with, the award of a contract was to follow before and for that matter precede the completion of any outstanding matters, only for one party to turn round and adopt a position that the completion of those matters was necessary for the award of the contract. That in our view is not a reasonable approach to give to the phrase “for any other reason” appearing in paragraph 6 of the pre-contract.

(79) In the 4^th Edition Reissue, Vol.13 of Halsbury’s Laws of England, the learned editors write under the Heading 4. Interpretation of Deeds and Non-Testamentary Instruments,

(1) General Rules of Interpretation at paragraph 163 as follows:-

“163. The Principles of Construction. In 1998 a fundamental change overtook the beach of law concerned with the principles by which contractual documents are construed. The result has been, assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life”. The learned editors then went to summarize the principles of construction. In our view it is the first principle we find relevant for purposes of this case. They state that:

“(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”.

(80) This revolutionary change in the approach to the construction of deeds, the learned writers state, occurred in the case of INVESTORS COMPENSATION SCHEME LTD. VS. WEST BROMWICH BUILDING SOCIETY, INVESTORS COMPENSATION SCHEME LTD. VS. HOPKIN & SONS (A FIRM), ALFORD VS. WEST BROMWICH BUILDING SOCIETY, ARMITAGE VS. WEST BROMWICH BUILDING SOCIETY [1998]1 A11 ER 114 cited by the Respondent. In that case, Lord Hoffmann is further reported at page 115 of the report as saying that: “If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense”.

(81) In this regard, we agree with the Trial Court that the phrase “for any other reason” must be given a restricted meaning. It cannot mean everything including matters which by the parties’ own showing were not taken as accomplished and should not militate against the award of the contract to the Respondent. Indeed in Exhibit ‘W’ which was also tendered in evidence as Exhibit ‘6’ it is stated therein that the parties had agreed on two main things which is summarized by the Respondent in its written submission as follows:-

“(i) The agreement by the parties as confirmed by Exhibit ‘F’ series and ‘K’, that full preparations for commencement of execution of the contract was to be completed only upon award of the contract.

(ii) Plaintiff had, pursuant to Defendant’s demands, substantially complied with all of Defendant’s requests to start preparations for commencement of its obligations under the contract”.

(82) The emerging interrogatory is that if the award of the contract was clearly to await the execution of a formal contract, how then could the same parties turn around and say that the Respondent should be refused the award of the contract because the Respondent had not completed the performance of the obligations contemplated by the contract? From the evidence adduced at the trial it is obvious that the letter terminating the pre-contract relied on grounds not contemplated by the pre-contract. This letter which is dated January, 31 2012 was tendered in evidence and marked ‘WWW’.

(83) In Exhibit ‘WWW’, the Appellant alleges that the Respondent’s tender had not complied with the Appellant’s technical standards. We have already pointed out that after clarification number 12, the parties had crossed the tender stage so reference to the tender at this stage cannot be correct and in good faith. Secondly, the evidence on record confirms that it cannot be true to say that the Respondent had failed to comply with the Appellant’s technical standards. The reason has already been stated severally. The Appellant had itself in several documents tendered in evidence expressed its satisfaction with the Respondent’s preparations and confirmed that if there was anything left undone, the Plaintiff will be awarded the contract and given the opportunity to complete the outstanding requirements and commence execution of the contract.

(84) As rightly submitted by the Respondent, Clause 6 of the pre-contract which provides for the grounds for termination does not justify the interpretation placed on the phrase “or any other reason” by the Appellant. It must be restricted to circumstances such as failure to obtain partner’s approval, non-compliance by the Respondent with the terms of the pre-contract itself, or even the Respondent‘s conduct leading to the signing of the contract. So far, we do not find any justification for interfering with the findings and conclusions reached by the Trial Court. There are other points which the Appellant has urged on this court in his written submissions. As indicated, they are mainly points of law, so we have an obligation to consider them.

(85) The Appellant has submitted that all the issues set down by the Trial Court were resolved by that court in the Appellant’s favour. The Appellant submitted further that even though none of the issues were resolved in the Respondent’s favour, the Trial Court gave judgment in favour of the Respondent for reliefs other than those endorsed on the Respondents writ of summons. The Respondent has promptly reacted to these arguments as factually inaccurate.

(86) With regard to the claim that all the issues set down by the Trial Court were resolved in the Appellant’s favour, we find the Appellant’s position plainly argumentative and academically provocative. The Respondent has drawn our attention to the fact that it amended its writ of summons and pleadings. Having amended its pleadings and writ of summons, the issues for trial naturally could not remain the same issues which were settled by pre-trial judge. Indeed crucial issues for determination can even arise in the course of trial and if legal in nature the Trial Court is obliged to resolve them.

(87) However the Appellant countered the Respondent’s argument by arguing that the Respondent ought to have applied for further directions to enable the Trial Court consider the new issues arising from the pleadings. This argument appears sound but does the failure to apply for further directions mean that the Trial Judge is bound to give judgment on the basis of issues which have become moot by reason of amendments undertaken by the parties in the course of the trial and before the trial begun? We do not think so. In the case of WILLIAM AHSITEY ARMAH VS. HYDROFOAM ESTATES unreported judgment of the Supreme Court in Civil Appeal No.J4/33/2013 dated 28^th May, 2014, Benin JSC held as follows:-

“At the summons for directions the Trial Judge is required to identify the core issue/s for trial. He does this with the aid of the lawyers but he/she takes sole responsibility for whatever decision he/she takes. The judge is required to examine the pleadings carefully and to determine what issue/s will completely determine the case before him/her. In the course of doing this it is legitimate to set down one issue only for trial if that issue is identified as the real issue or often called the ultimate issue. And if in the course of determining the ultimate issue or where there are two or more issues initially set down for hearing, other ancillary or collateral matters arise, the party is entitled to apply and the Trial Judge is empowered to amend the issue/s by adding to it/them and in general to vary the original order/s at any time before judgment. That flexibility is permitted by virtue of Order 32 Rule 9(2) of C.I.47 in view of the fact that summons for directions is largely a case management tool and as such it should hardly, if ever, be used to upset a court’s decision on the merits, unless it has resulted in a miscarriage of justice. Thus even after the decision by the Trial Judge in respect of the summons for directions, the parties are at liberty to apply for further directions, as long as such decision or order is not a final judgment. This is just to indicate that an Appellate Court should be rather slow to set aside a decision given by a Trial Court where the key complaint is in respect of its conduct of the summons for directions, short of a miscarriage of justice”.

(88) The decision we have referred to confirms the Appellant’s position on the law. However the decision makes it clear that the failure to apply for further directions should not be a ground for upsetting the decision of the Trial Court unless the party raising it has complained and established that the failure to apply for further directions resulted in a miscarriage of justice. In the instant case, beyond the complaint that no further directions were applied for, no point of relevance has been canvassed by the Appellant suggesting that the failure to apply for further directions occasioned a miscarriage of justice to it or that it has been otherwise disadvantaged or prejudiced in some way.

(89) Procedurally, even before the coming into force of the High Court (Civil Procedure) Rules [C.I.47], the position of the courts has been that a total failure to apply for directions will not vitiate any judgment delivered by the court on the basis of issues that the Trial Court deemed fit. It was therefore held by the Supreme Court in the case of BOAKYE VS. TUTUYEHENE [2007-2008]2 SC GLR 970 per Dr. Twum JSC held at pages 978-979 that:-“The Court of Appeal erred grievously when it held that on the authority of the Amoako case (supra), there is no real legal basis for the court to suo motu, settle the issues for the parties; so the complaint was whether the issues were not settled but that the judge did the settlement himself. I wonder whether their Lordships in the Court of Appeal read the Amoako case in full and whether they read also Order 30 in full. The truth of the matter is that there is no provision whatsoever in Order 30 which talks of, let alone, require the parties to settle any issues. I take judicial notice of the fact that it is done routinely, perfunctorily, by counsel for the parties. But when it is the foundation of a judgment of our Court of Appeal, which nullifies another wise valid judgment, then in popular parlance, I would require “strict proof”. A careful reading of Order 30 of the Old High Court (Civil Procedure) Rules, 1954 (LN 140A), shows that the object of the summons for directions was a general stocktaking of the case with the object of arriving at the essentials of the dispute and arranging proof of the necessary facts in the shortest and cheapest manner. It is therefore the court or the judge who is expected to use the powers conferred by Order 30, robustly to limit the issues to be tried. Hence the court or judge may if necessary, give such directions as to the pleadings and particulars, discovery, inspection of property, admission of facts or documents or otherwise as to proceedings to be taken in the action. It is only when these matters are conscientiously addressed, that the issues really in controversy between the parties, may be defined. It is clear to me that the single paper called the “summons for directions” under our practice, is nothing more than a legal pantomime which cannot make a judgment or the entire proceedings null and void”.

(90) Further, in the case of KARIYAWVOULAS AND ANOTHER VS. OSEI [1982-1983]1 GLR 659 HC Twumasi J held at pages 667-668 of the report that it is not only matters expressly set out in the summons for directions that ought to be determined by a court but all issues arising across the entire spectrum of the pleadings. The only limitation on the court determining all issues arising from the pleadings is want of evidence on those issues. Reference is also made to the case of OMANE VS. POKU [1973]2 GLR 66 CA where Apaloo J.A (as he then was) held at page 71 of the report as follows:-

“The real question in this case is whether failure to settle issues formally in a summons for directions before their determination is such a fundamental defect as would vitiate the entire proceedings. I think not. Where, as in this case, the issues are clear both on the pleadings and in evidence, the failure to set them out in a summons for directions in accordance with Order 30, rr. Land 2 of (LN 140A), is a mere irregularity which is curable under Order 70. I think therefore that this ground of appeal fails”.

(91) The issue therefore as to whether or not an application for further directions was made is not of any relevance in this appeal. The crucial issue is whether the issues determined by the Trial Court arose from the pleadings as amended. The Respondent has argued that after the amendment, the sole and only issue that the Trial Court was required to determine revolved around the principle of promissory estoppel. We find this clearly pleaded by the Respondent at paragraphs 6-15 of the Respondent’s amended Statement of Claim at the Court below. The issues relied upon by the Appellant submitting that the Trial Court determined the issues for trial in its favour therefore had been overtaken by the amendment. The case of KAI VS. AMARKYE [1982-1983] GLR 817 CA establishes the principle that after pleadings are amended, the state of the pleadings before the amendment is not relevant to the proceedings anymore. They are kept on the Court’s docket for record purposes only.

(92) We shall now proceed to examine the Appellant’s argument that the Trial Court granted to the Respondent unclaimed reliefs. This argument is made at paragraph 1.2, page 2 of the Appellant’s written submission. In this regard, we took a look at the Respondent’s amended statement of claim which can be found at pages 962-971 of the record. The Respondent claimed in its amended writ of summons, the following reliefs which it repeated at paragraph 31 of its statement of claim:-

(i)A declaration that having regard to all the circumstances of this case, it will be inequitable for Defendant to resile from its agreement with Plaintiff to provide crane and forklift services to Defendant at Tkoradi.

(ii)An order directed at Defendant to refund to Plaintiff all expenses incurred by Plaintiff upon the legitimate expectation that Defendant would award to it the contract to provide crane and forklift services to Defendant at Takoradi.

(iii)General damages.

(iv)Costs on a full indemnity basis.

(93) Our reading and understanding of these reliefs leave us in no doubt whatsoever that the allegation against the Trial Court that it entered judgment for the Respondent for reliefs that was not sought for is clearly unfounded. The judgment of the Trial Court clearly reflects the Respondent’s reliefs. As can be easily gleaned from the Respondents first relief, the claim is founded on the doctrine of promissory estoppel. The Trial Court therefore held at page 1325 of Vol.2 of the record as follows:-

“In my view a promise which a promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promise and which does induce such action or forbearance is binding if injustice is to be avoided” (page 1325 of Volume 2 of record).

(94) The argument by the Appellant that the Trial Court entered judgment in favour of the Respondent on reliefs not claimed by the Respondent has no merits for which reason we shall refrain from any further discussion of same. There are however two other points of law which are related to this allegation. These points as argued by the Appellant are that; the judgment of the Trial Court sounded in tort rather than in contract and also that the judgment breached the rule in DAM VS. ADDO. [1962]2 GLR 200.

(95) A reading of the record does not bear out these arguments at all. We are minded to agree with the Respondent that a lot of the arguments made by the Appellant against the judgment appealed from are subjective and unfair. In arguing that the Trial Court breached the rule in DAM VS. ADDO, the Appellant does not demonstrate how this rule was breached from the record. The crux of the rule in DAM VS. ADDO is that a court must not substitute for a party a case contrary to, and inconsistent with, that which the party himself had put forward by his pleadings and evidence.

(96) The rule in DAM VS. ADDO was explained in the case of BISI VS. TABIRI Alias ASARE [1984-1985] 2 GLR 282 CA. In that case, this court had noted that the general principles guiding the application of that principle deducible from the cases were that:

(a)The new case was not pleaded either expressly or by necessary implication.

(b)The new case was raised after obvious difficulties with, or failure of the old case, the party clearly turning a complete somersault.

(c)Sufficient notice of the new case was not given: it was not contested.It was raised either at the address stage or on appeal or by the court itself.

(d)The new case was irrelevant to the resolution of the issues on hand; and

(e)The new case was not just a matter of interpreting and giving effect to a document relevant to the issue, and properly tendered in evidence.

(97) The judgment we have reviewed and which is the subject matter of this appeal is founded on the pleadings. The Respondent stuck to its case throughout the trial that the Appellant had made representations to it which it relied upon to its detriment. No new case was introduced anywhere in the course of the proceedings. We do not find the DAM VS. ADDO argument deserving of any further consideration in this judgment.

(98) The observations made about the Appellant’s attack on the judgment of the Trial Court on the ground that the judgment offended the rule in DAM VS. ADDO are the same with regard to the argument that the judgment of the Trial Court was based on a finding in tort.

There is clearly no basis for this argument and we will not go to any greater length to dispose of it. In the first place, the Appellant canvasses no arguments which remotely convince us on this point especially when we read the judgment of the Trial Court where it held as follows:-

“A promise which a promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promise and which does induce such action or forbearance is binding if injustice can be avoided. And compensatory damages should be awarded as in other contract actions”.

(99) In our view while it is conceivable that the Respondent could have taken advantage of the decision of the Supreme Court in the case of SG SSB LIMITED VS. HAJAARA FARMS LTD. [2012] SC GLR 1 to endorse its writ or statement of claim based on concurrent causes of action in contract and tort for its claim for compensatory damages, nothing in the peculiar circumstances of this case can properly fault the award made by the Trial Court based on the pleadings and evidence before it as the award made by the Trial Judge was certainly not founded in tort but on promissory estoppel which is a specie of contract law.

(100) Indeed, there is no language in the law of tort, which we recall from our humble legal learning of the subject which deploys the word “promisor”. It is more generally associated with the law of contract. The fact that the Respondent’s cause of action is mounted on the principle of promissory estoppel which sounds in contract, as pointed out by the Respondent in its written submissions, is borne out of the Respondent’s pleadings as per paragraphs 7, 21, 29 of the amended statement of claim.

(101) The Appellant has argued that the Respondent had exceeded the scope of the amendment granted by the Trial Court. Apart from the fact that the Respondent has sufficiently rebutted this contention in their written submission, it is irrelevant at this stage of the dispute as it is procedurally and legally untenable. Order 81(2) of the rules of the High Court enjoined the Appellant to have raised the objection timeously but not to contest the suit on the alleged illegal amendment only to cry foul after the judgment had gone against it. If the Appellant had won at the Trial Court, it would have celebrated its victory anyway.

(102) We shall now deal with the question of damages which the Appellant has also raised in its grounds of appeal. It is this ground of appeal which drifts the Appellant’s case in to one that appears to be just throwing any and everything it could marshal to upset the judgment appealed from. If it is the Appellant’s view that no liability rose from the refusal to award the contract to the Respondent then the question as to the quantum of damages ought not arise at all. The Appellant’s argument on the quantum of damages begs the question and impliedly amounts to a concession of liability anyway. We notice however that with regard to liability, the Appellant contests the quantum of damages in various respects.

(103) First, it is the Appellant’s argument that the judgment of the Trial Court relied on matters which were not proved at the trial. In this regard, we find the Appellant’s argument on this point very unhelpful especially after our review of the record. The Respondent pleaded and proved the expenses it incurred following the representations made to it by the Appellant. This was proved by exhaustive documentary evidence. The Respondent has in its submissions referred to the specific documents which prove the expenses and this can be confirmed from the record. All of the expenses, without doubt arose from the representations made to the Respondent by the Appellant. The record confirms without a shadow of doubt that all of the expenses incurred by the Respondent were incurred after the pre-contract was concluded between the parties.

(104) We notice that part of the Appellant’s argument against the award of the damages by the Trial Court is that the pre-contract limited the Appellant’s liability for terminating the pre-contract and refusal to award the contract to the Respondent to the costs for verification of the equipment procured by the Respondent for the execution of the contract. It is the Appellant’s contention that the consequences of termination having been provided for in the pre-contract, any award outside the terms of the pre-contract is improper.

(105) We have devoted time earlier in this judgment on the proper approach to interpreting commercial contracts. We do not wish to repeat those principles further. In its amended writ of summons and statement of claim, the Respondent claims general damages on the basis of a declaration it sought that having regard to all the circumstances of this case, it will be inequitable for the Appellant to resile from its agreement with the Respondent to provide crane and forklift services to Appellant at Takoradi. The Respondent then claimed additional compensation in addition a refund of all expenses it had incurred upon the legitimate expectation that the Appellant would award to it the contract to provide crane and forklift services at Takoradi.

(106) We do not agree with the Appellant that the limitation of liability clause in the pre-contract, precludes any other claim such as the award of general damages based on promissory estoppel. The claim for general damages was clearly based on the doctrine of promissory estoppel. This was pleaded and established. There is nowhere in the pre-contract where it is said that the Respondent waives all and any other rights and claims in respect of which Respondent may have a cause of action against the Appellant as a result of the Appellant’s refusal to award the contract to the Respondent. The Appellant’s argument completely falls short of the philosophy of damages which are awarded to a party injured by the actions of another either in contract or in tort.

(107) In the case of MULLER VS. HOME FINANCE CO. LTD. [2012] 2 SC GLR 1234 the Supreme Court held that at page 1240 per Jones Dotse JSC that the purpose of damages is to put the party who has suffered as a result of the breach in nearly the same position that he would have been had the other party not broken the contract. The award of general damages is therefore completely different from a claim that a specific loss be also compensated. The Respondent’s claim for refund of the “cost of certification of the cranes, operators and mobilization of cranes and operator……….” may be classified in the realm of special damages which the law treats separately. Indeed from the evidence on record, we find the Appellant’s treatment of the Respondent not only unfair and unjust but deliberately calculated to damn the consequences of any civil liability that could arise. In the English case of CASSELL VS. BROOME [1972] AC 1027 at 1094 Lord Morris described the Appellant’s conduct in the following words: “The situation contemplated is where someone falls up to the possibility of having to pay damages for doing something which may be held to have been wrong but where nevertheless he deliberately carried out his plan because he thinks it will work out satisfactorily for him. He is prepared to hurt somebody because he thinks he may well gain by doing so even allowing for the risk that he may have to pay damages”. This conduct drifts into the theory of efficient breach as the Supreme Court stated in the MULLER Case (supra).

(108) The Appellant’s arguments on the pre-contract and its limiting effect in so far as its liability for terminating the pre-contract and refusing to award the contract to the Respondent is concerned deserves further examination especially in view of the Respondent’s contention that the judgment of the Trial Court be varied. While it is true that the pre-contract limited the costs incurred by the Respondent for certification of the Respondent’s equipment, the question that emerges from the positions taken by the Respondent on the one hand and the Appellant on the other is this; what are those costs arising from, necessitated, caused, occasioned or incurred by the Respondent as a result of ensuring the certification of its equipment as requested by the Appellant? The Respondent insists that the costs for certification of the equipment must include all costs associated with making the equipment available for certification, the Appellant insists that the costs must be limited only to the costs of certification.

(109) There is sufficient documentary evidence from the email correspondence and testimonies by both parties that before the Respondent made the equipment available, it informed the Appellant that some of the equipment they required for verification were executing contracts outside Ghana. At this point we are left with no choice but to question what the proper approach to understanding what the parties intended when they agreed that the Appellant’s liability for terminating the pre-contract should be limited to only the costs for certification of the vehicles. Should these costs include all and any costs associated with the certification or only the actual costs of certification.

(110) We have already noted that in a commercial contract of the kind before us, the approach of the courts is to embark on the construction of the parties’ agreement in a commercial manner that will make commercial sense. We have cited authorities to support this approach as has been the view advocated for the past two decades. Even in the context of an agricultural enterprise and customary law, the courts have advocated a progressive way of examining the relationship created by parties and insisted that a constructive approach be taken to defining that relationship. See the case of ATTAH & ORS.VS. ESSON [1976] I GLR 128-135 CA.

(111) Our jurisprudence therefore must also lean towards a commercial approach to the construction of contracts. In the written submissions the Respondent referred to the case of

MANNAI INVESTIMENT CO. LTD. VS. EAGLE STAR LIFE ASSURANCE CO. LTD. [1997]3 AII ER 352 at 372 where the court explained the rational behind this approach thus:

“In determining the meaning of the language of a commercial contract the law generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties. Words are therefore interpreted in the way in which a reasonable commercial person would construe them. And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language”.

(112) Relying on this authority and others, the Respondent submitted in reaction to the Appellant’s argument that the exemption clause in the pre-contract limits the Appellant’s liability to the costs of certification by asking the following questions:

“(i)Is the transportation of the vehicles to the place of certification which Defendant specified, not a cost associated with the certification

(ii)Is not a cost associated with certification if one has to first procure the equipment required to be certified?

(iii)Is it not a cost associated with the certification if one has to cancel a contract to make available the equipment desired for certification?”

(113) The Respondent made the arguments we have just referred to in order to justify its claim for general damages on the ground that having regard to all the circumstances of this case, it will be inequitable for the Appellant to resile from its agreement with Respondent to provide crane and forklift services to Appellant at Takoradi on the one hand and its claim for the refund of its expenses on the other hand. The Respondent’s argument is that, these costs must not and cannot be limited to the expenses paid to have the equipment certified. The Respondent contends that the costs for verification of the equipment must necessarily include the financial loss suffered by Respondent as a result of having to terminate its contracts to make the equipment available for certification upon the assurance that the contract will be awarded to the Respondent.

(114) In direct rebuttal, the Appellant argued that the Respondent failed to show that it had cancelled contracts to enable the Respondent certify the equipment it intended to execute the contract with, if the contract was eventually awarded. The evidence that the Respondent actually cancelled contracts to enable it meet the Appellant’s requirement that its vehicles be certified is well supported is the evidence. The Appellant did not refute nor contradict this evidence. The Respondent provided documentary proof of the contracts by way of Exhibit ‘JJ’ and ‘HH’. The Appellant did nothing to discredit these documents.

(115) The Respondent proferred uncontroverted evidence that its equipment were gathered from various locations to satisfy the Appellant’s request that the Respondent’s vehicles be certified only in the manner dictated by the Appellant. All of these took place after the tender process. The Respondent’s evidence was supported by documentary proof. All that the Appellant has done in this appeal is to raise arguments without any evidence in rebuttal.

(116) The Trial Court however only granted the Respondent’s claim for general damages. With regard to the Respondent’s claim for a refund of all expenses, the Trial Court allowed the Respondent to recover only the costs of certification thereby accepting the Appellant’s meaning assigned to the limitation clause in the pre-contract. The Trial Court did not grant the Respondent’s claim arising from having to terminate its contracts abroad to make the equipment with which it carried out the contracts abroad available for verification as requested by the Appellant. The Respondent also did not get any award for its claim that it had bought machinery and equipment some of which were special only for purposes of satisfying the Appellant’s request.

(117) It is important to observe here that with regard to the procurement of the additional equipment to execute the contract which the Appellant eventually refused to award, the Appellant called several witnesses with a view to proving that the Respondent suffered no damage as a result of procuring the equipment because the Respondent is using them to execute other works. This effort backfired. None of the witnesses called by the Respondent testified that any of the Respondent’s equipment, which were specifically pleaded and evidence adduced to prove them, was hired by any of the witnesses to render any services. Then there was the building at Takoradi which the Trial Court found was constructed because the Appellant required it. The Trial Court actually found that although the Respondent had land at Takoradi, there was no evidence that the Respondent intended to develop the land but for the request made by the Appellant.

(118) In adopting the commercial approach to the interpretation of the contractual relationship between the parties, we think the Respondent ordinarily deserved compensation for the costs incidental to the certification of its equipment other than the simple costs associated with the certification proper. The evidence on record confirms that the certification was requested by the Appellant. The evidence, as we have already pointed out, also confirms that the Appellant was informed that some of the equipment which the Appellant insisted must be certified by its named experts in Ghana was executing contracts abroad. The Appellant therefore knew or ought to know that there would be costs involved in bringing the equipment to Ghana for certification. We do not think it is a fair and proper understanding of the pre-contract that the limitation clause excludes all other costs associated with the transportation of the Respondent’s equipment from other countries to Ghana for certification. But the Trial Judge considered all these matters in making the award for compensatory damages.

(119) We shall now deal with the Respondent’s contention that the judgment of the Trial Court be varied. The Respondent’s case is that it amended its writ of summons and statement of claim and claimed general damages for the unfair and inequitable manner in which the Appellant treated the Respondent. The Respondent contends that the general damages claimed arose from the loss incurred by the Respondent as a result of the Respondent’s reliance on the Appellant’s promises and argue that such damages are legitimate on the reliance doctrine basis for the award of damages to injured parties. This type of situation, the Respondent argues arises where a Claimant has in reliance on the promise of a Defendant changed his position. Damages are in this situation, awarded to a Claimant for the purposes of undoing the harm which his reliance on the Defendant’s promise has caused him. The object is to put him the Claimant in as good a position as he was in before the promise was made.

(120) The Respondent justifies this theory for the award of damages and has relied on the extensive work of legal text writers. It appears there is judicial support for this approach in our jurisdiction. As pointed out in the MULLER case, the object of the award of such damages is to put the injured party in the position in which they would have been had the event which caused the injury to a Claimant not occurred. Such a claim would then require the court in this situation to find out what the Respondent in this suit would have been entitled to, if the Appellant had not terminated the pre-contract and had proceeded to award the contract to the Respondent.

(121) There is another head of claim made by the Respondent. This is in the nature of special damages. The Respondent dedicated a substantial part of its submissions to discussing the evidence which proved the expenses it incurred for the purposes of complying with the Appellant’s requests. These pieces of evidence are documentary and were not objected to when they were tendered in evidence. Indeed, in this appeal the Appellant has not contested even one of them. The Respondent submitted and referred to the documents on record to support its submission that the expenses it incurred ranged from purchasing additional equipment specifically requested by the Appellant to the cancellation of contracts which the Respondent was executing in other countries to enable the Respondent bring in the equipment used for the execution of those contracts for certification by the nominated agent.

(122) The Respondent’s case here is that the court has a duty to ensure that it recovers all of these expenses from the Appellant. This is the basis for the Respondent’s second relief in the Trial Court which claimed an order from the court directed at the Appellant to refund to the Respondent all expenses incurred by the Respondent upon the legitimate expectation that the Appellant would award to it the contract to provide crane and forklift services t Appellant at Takoradi.

 (123) With regard to the certification of the equipment the Respondent referred to the evidence of the Appellant’s own David Odoni which evidence confirmed clearly that the parties contemplated and knew that the equipment had to be procured before they could be certified as required by paragraph 4.2(a) and (c) of the pre-contract. (See pages 30 and 31 of the record). With regard to the Respondent’s contention that the judgment of the Trial Court be varied to enhance the quantum of damages, we concede that if the damages claimed are based on the loss which the Respondent suffered by the refusal of the Appellant to award the contract to the Respondent as they ought to be, then the Trial Court ought to have had regard to the general value of the contract lost to the Respondent as a result of the Appellant’s actions as a basis for the award.

(124) We have made reference to the case of MULLER VS. HOME FINANCE COMPANY LIMITED [2012]2 SC GLR 1234 cited by the Respondent in their written submissions. In that case the Supreme Court referred to its earlier decision in the case of ROYAL DUTCH AIRLINES VS. FARMEX LTD. [1989-1990] 2 GLR 23 where the court stated that:-

“On the measure of damages for breach of contract, the principle adopted by the courts in many cases is that of restitution in intergrum .i.e. if the Plaintiff has suffered damage that is not too remote, he must as far as money can do it, be restored the position he would have been in had that particular damage not occurred………….. this means the Plaintiff has to be put into the position he would have achieved if the contract were performed, and he is allowed to recover damages on the basis of earning him to the position before the contract was made. The amount of money adjudged to be due to him must be assessed as at the time the contract was broken”.

(125) We are aware that in the MULLER case the Supreme Court particularly made the following observation:

“If the law courts are not careful in providing adequate remedies whenever a breach of contract like the instant case occurs, then there is likely to be the risk that parties may play into the theory of “efficient breach”. For instance, if the Defendant bank, was for example dissatisfied with the price that it received from the Plaintiff for the house, it could simply breach the contract because this would be more cost effective than honouring it………… there is the need for the courts, especially a final and Appellate one at that to send clear message that contracts shall be honoured more in their observance than in their breach”,(es). To bolster the point made in the part of the judgment quoted the Supreme Court referred to cases in other jurisdictions. The court noted that in Canada,

“……………even though the remedy of “restitutio in intergrum” is provided in tort law, its corresponding remedy in the law of contract is “expectation damages” which is a very powerful remedy. By the application of this principle, not only will an individual be restored to the original position whenever there has been a breach of contract, but the individual who suffered the loss is also entitled to the profit of which they have been deprived arising as a result of the breach of the contract. In essence, expectation damages goes beyond simply restoring an individual to their original position, but it also provides them with their lost expected profits.

(126) The evidence on record confirms that, had the Appellant awarded the contract to the Respondent would have been entitled to the sum of Twenty Four Million US Dollars ($24,000,000.00) over three (3) years or Thirty Two Million US Dollars ($32,000,000.00) over five (5) years. Inspite of this, the Trial Court awarded the sum of Ten Million Ghana Cedis (Gh₡10,000,000.00). The Respondent contends that the sum of (Gh₡10,000,000.00) is about the sum of Two Million Five Hundred Thousand United States Dollars ($2,500,000) and seeks an upward variation of the quantum.

(127) In the MULLER case referred to the case of LIVINGSTONE VS. RAW YARDS COAL CO. [1880]S APP 25,39 where Lord Blackburn explained the principle of “restitutio in intergrum” as the compensation, which is that sum of money which will put the party who has been unjured in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation. The court also considered notable Ghanaian authorities relevant to the issue of damages such as CFAO VS. THOME [1966] GLR 107 SC & BORKLOE VS. NOGBORDZI [1982-1983] GLR 1003 and found that the central theme running through them is that, in cases where there has been total failure, the measure of damages is the current market value principle and if that was not easily ascertainable, then the cost of replacement principle would be used.

(128) While we appreciate the force of argument by the Respondent on its claim for variation of the awards made by the Trial Judge we are unable to do so, for the reason that there is a limit to judicial discretion in the award of damages particularly where the Appellate Court is urged upon to enhance the award made by the Trial Court. This is even more so when the variation sought is to be founded on the court’s own assessment which the Trial Court is best suited by its composition and proceedings to do even though in some exceptional cases this court is empowered to vary an award either by reduction or enhancement.

(129) In arriving at an award therefore, the courts are enjoined to take into consideration the Claimant’s duty to mitigate. This duty is a restriction on compensatory damages and it requires that a Claimant will not to sit back and do nothing about his loss only to claim loss of expectation for so long as it could have taken the Claimant to execute the contract which was unjustifiably breached or not awarded. It is a policy which aims at encouraging the Claimant once a wrong has occurred to be to a reasonable extent self-reliant or efficient than pinning all losses on a Defendant.

(130) In the instant case, we think the Trial Judge correctly perceived the potentially precarious position the conduct of the Appellant had put the Respondent’s business in before making the awards the quantum of which the Respondent now seeks variation. For the Respondent to have cancelled its contracts worth about Five Million United States Dollars U$5,000,000.00 and to pave way for the negotiations towards the execution of the contract with the Appellant was entirely a business decision taken by the Respondent and cannot constitute in our view the basis for a claim. Indeed any other contrary proposition to that effect will be too remote as it cannot be the case that the Appellant would have reasonably foreseen that loss to the Respondent. The situation would have been different if notice of those pending contracts with third parties were brought to the attention of the Appellant during the negotiations and it nevertheless induced the Respondent to cancel them in preference of the contract the parties were negotiating.

(131) In our review of the evidence on record, and the findings and award made by the Trial Judge, we are not inclined to order a variation of the judgment in the terms the Respondent has urged us to do. We are in support of the awards made as the Trial Judge in our view had taken into consideration all the matters on which the Respondent seeks variation. As Lord Diplock said in the case of WRIGHT VS. BRITISH RAILWAYS BOARD [1983]2 AC 773 at 777 “Non-pecuniary loss is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial ………….”. Consequently, the Respondent’s case for variation on the basis of anticipatory and not actual pecuniary loss finds no favour with us and we accordingly dismiss same.

(132) With respect to the substantive appeal, after our reevaluation of the entire record, and having applied the acceptable attitude and practice to the Trial Court as the forum which has the principal duty to make findings of fact from the evidence adduced, we find that the trial court’s findings and conclusions are justifiable when re-examined against the very premise and controversy which formed the basis of those findings, conclusions and awards. Not having found anything from those findings, conclusions and awards made by the Trial Court which justify appellate interference, the Appellant’s appeal wholly fails and it is accordingly dismissed. The judgment of the Trial Court is hereby affirmed.

(Sgd).

I.O. TANKO AMADU

(Justice of Appeal)

(Sgd).

I agree                                                             F.G. KORBIEH

(Justice of Appeal)

(Sgd).

I also agree                                                   AGNES M.A. DORDZIE (MRS).

(Justice of Appeal)