West Africa Quarry Limited Vs Godfred Summabe & 3 Ors

IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018

WEST AFRICA QUARRY LIMITED - (Plaintiff/Appellant)
vs.
GODFRED SUMMABE & 3 ORS. - (Defendants/Respondents)

DATE: 24TH MAY, 2018

SUIT NO: H1/6/2018

JUDGES: MARIAMA OWUSU J.A. (PRESIDING), DENNIS ADJEI J. A., GERTRUDE TORKORNOO J. A.

LAWYERS: KWAME ADEBOR WITH ABIGAIL TETTEH FOR PLAINTIFF/APPELLANT
KWESI BLAY FOR 1ST & 2ND DEFENDANTS/RESPONDENTS
DAVID BONDORIN FOR 4TH DEFENDANT/RESPONDENT
MR. SAMUEL Q. ANSAH FOR 3RD DEFENDANT/RESPONDENT

JUDGMENT

MARIAMA OWUSU, J. A:

On 31^st Day of July 2015, the High Court, Commercial Division, Accra, dismissed the Plaintiff’s case against the Defendants. In his judgment, the trial court held among other things as follows:

“I am of the opinion that, it was the plaintiff who rather breached the agreement/contract between them and Summabe and Affiliates or induced the breach. She ought not to benefit from her wrongful acts and so dismiss her case in its entirety against the Defendants.”

The Court then awarded general damages of US$ 7,500,000.00 or its cedi equivalent to the 2^nd Defendant in addition to the payment of GH¢1,829,000.00 as top up for underpayment of the reimbursed cost for the concession. For the 3^rd and 4^th Defendants, the Court awarded US$3,500,000.00 and US$2,500,000.00 or its cedi equivalent as general damages respectively for loss of earnings and reimbursement of investment.

Interest was to run on all amounts awarded in respect of the general damages from date of judgment to date of final payment at the prevailing bank rate. The Court also awarded cost of GH¢30,000.00; GH¢100,000.00; GH¢80,000.00 and GH¢50,000.00 to 1^st, 2^nd, 3^rd and 4^th Defendants respectively all against the Plaintiff.

Dissatisfied with the decision of the Court, the Plaintiff appealed to this Court on the following grounds:

i) The judgment is against the weight of evidence.

ii) The trial judge did not consider the legal implications of abrogating the agreement between the parties.

iii) The trial court erred in holding that the Plaintiff was liable for not assisting the Defendants

iv) The Court erred in striking off the 1^st Defendant as a party to the suit.

v) The trial judge did not consider the legal implications of clause 16 of the Agreement between the parties on the communication and service of notices and information between the parties.

vi) The finding of fact by the trial judge that there was no evidence that negotiations culminated in the payment of GHs 2.3 million is unsupported by the evidence on record.

vii) The holding by the trial judge that there is no sufficient evidence on record that the GHs 2.3 million received was in consideration of a takeover of the concession is unsupported in law and in fact.

viii) The trial judge failed to consider the legal import of the letter from Lawyer Kwasi Blay on behalf of the Respondents giving the Plaintiff an unlimited right of entry into the Concession.

ix) The award of GH¢1,829,650.00 in favor of the 2^nd defendant is unsupportable in law and fact.

x) The award of general damages of $7.5million; $3.5million; $2.5 million is arbitrary and unsupportable in law.

xi) The award of costs in favor of the defendants is excessive and unsupportable in law.

Other grounds of appeal to be filed upon receipt of a copy of the judgment.

The relief sought from the Court of Appeal is for the reversal of the decision of the trial judge.

At this stage, let me put it on record that, the Plaintiff did not file additional ground(s) of appeal.

Before dealing with the arguments advanced in support and against this appeal, I will give a brief background of this case.

The Plaintiff/appellant (hereinafter referred to as Plaintiff) by its Writ of Summons claims against the 1^st Defendant and Summabe & affiliates (hereinafter referred to as Defendants);

Injunction to restrain them from interfering with the Plaintiff’s quiet possession of the Concession and Quarry to mine limestone/dolomitic limestone.

General Damages for breach of contract; and

Interest on claim (B) supra.

Alternatively,

Refund the sum of GH¢2.3 million paid by the Plaintiff.

Recovery of possession of the Crusher;

A mandatory injunction order directed at the 1^st defendant to hand over the keys to the Crusher to the Plaintiff;

General Damages for wrongful detention of the Crusher.

General Damages for breach of the Agreement dated 20-5-2011.

Interest on claims (d) and (g) supra.

In the 17 paragraph Statement of Claim which accompanied the Writ of Summons, the Plaintiff averred that, the dispute arose from an Agreement made between the Plaintiff on one part and Summabe & Affiliates (Strong Firm Ltd and I A Paatsondas Ghana Ltd) on the other part.

By the terms of the Agreement, Summabe & Affiliates undertook to supply to the Plaintiff agreed quantities of limestone from the 2^nd defendant’s Limestone Mining Concession. Supply was to commence within ninety (90) days after the execution of the Agreement and payment of US$800,000 Advance Payment by the Plaintiff to enable Summabe & Affiliates purchased a Crusher. As security for the advance payment, the parties agreed that ownership of the Crusher would vest in the Plaintiff until the advance payment had been repaid by deductions from the payment for supplies by Summabe & Affiliates. The plaintiff made the advance payment of $800,000 as agreed.

Summabe & Affiliates could not deliver as agreed. On 21-3-2012, they further requested for GH¢32,440; GH¢700; GH¢25,0000; GH¢ 2,740 and GH¢4,000 to pay EPA processing Fee, EPA Permit, Minerals Commission Operating Fee and Minerals Commission Explosives Purchase Fee respectively, to which the Plaintiff obliged.

Thereafter, the defendants requested for a further assistance in the nature of ‘a Letter of Comfort’ in procuring a bank loan for a working Capital. This the Plaintiff refused but rather invoked Clause 5.2 of the Agreement, the Takeover Clause. On 10-4-2012, according to the Plaintiff, the parties met and it was agreed that the defendants would submit for negotiation a project cost statement, detailing their investments in the Concession. The negotiated amount would be the royalty to be paid to Summabe & Affiliates for the take over of the Concession. It is the case of the Plaintiff that, Defendants submitted the project cost statement in the sum of GHs 2.3 million.

On 27-4-2012, the Plaintiff paid the Project Cost and forwarded to the defendants for signature, copies of the Takeover Agreement. The Plaintiff concluded that, after cashing the cheque of GH¢2.3 million from the Plaintiff, the 1^st and 2^nd defendants complained that, the project cost was mistakenly denominated in Cedis instead of in dollars and demanded that, the Plaintiff pay up a short fall of GH¢1, 829,650 in a month. Meanwhile, counsel for 1^st and 2^nd defendants wrote to the Plaintiff granting the latter permission to enter and mine the Concession. The Plaintiff then engaged a company to commence preparatory works on the Concession to enable it operate the quarry but 1^st defendant and his agents prevented the preparatory work from going on, hence this action.

The defendants mounted separate Defences.

1^st and 2^nd defendants in their Statement of Defence denied Plaintiff’s claim and put the latter to strict proof of its averments. In particular, they averred that the Limestone Concession situate at Sedorm/Agyina in the Eastern Region of Ghana is owned by the 2^nd defendant solely. The 1^st and 2^nd defendants averred further that, the matters in dispute was transacted through the 1^st defendant, the Managing Director of 2^nd defendant Company and not on behalf of any group called Summabe & Affiliates as the latter is not a legal entity as it is not registered. Whilst admitting that the Plaintiff paid for the Crusher, the 1^st and 2^nd defendants continued that their efforts at honoring their obligation under the Agreement were thwarted by the Plaintiff as the latter exhibited bad faith after the execution of the Agreement. They continued that, the Plaintiff embarked on acts of frustration in order to take advantage of the Takeover Clause. It is the case of the 1^st and 2^nd defendants that, they only needed a letter of comfort from the Plaintiff to its bankers to be granted an overdraft facility but the Plaintiff exhibited bad faith and declined. The 2^nd defendant therefore lost the opportunity to be provided with the overdraft facility by its bankers and could not raise enough Working Capital to mine and deliver limestone to the Plaintiff. They concluded that, the Plaintiff was to be granted right of entry into the Concession pending the resolution of payment of the top up of the GH¢2.3million which was mistakenly denominated in cedis instead of dollars. Secondly the 2^nd defendant refused to sign the draft Take over Agreement because the issue of ex-gratia payment has not been concluded among others. The 1^st and 2^nd defendants concluded that, the Dispute Resolution Clause has not been properly invoked and therefore the Plaintiff’s action is premature. Consequently, the Plaintiff rather breached the Agreement by its failure to execute the Takeover Agreement and must suffer damages as the 1^st and 2^nd defendants continue to lose revenue as a result of the idling of the Crusher and Plaintiff’s inaction. They therefore Counter claimed for the following:

i. Recovery of the sum of GH¢1,829,650 being balance on the contract executed by 1^st and 2^nd defendants at the instance of the Plaintiff.

ii. Loss of use and revenue/profit of US$100,000.00 per month arising out of the unlawful detention of the Crusher.

iii. Declaration that 1^st and 2^nd defendants are the owners of the Mobile Crusher and its detention by the Plaintiff is unlawful.

iv. Loss of earnings of US$4,000 per month.

v. Loss of revenue that 1^st and 2^nd defendants would have otherwise earned had the 1^st and 2^nd defendants performed under the Supply Order from Diamond Cement.

vi. Damages for breach of contract

vii. Interest on (1), (2), (4) and (5) at the prevailing bank rate from May 2012 to the date of final payment

On its part, the 3^rd defendant in its Statement of Defence and counterclaim denied Plaintiff’s averments. The 3^rd defendant averred that, the Plaintiff elected to deal with 1^st and 2^nd defendants to the neglect of 3^rd defendant. It averred further that, the Plaintiff/1^st defendant cannot benefit under any indemnity when they contributed to the default. It continued that, the Plaintiff/1^st defendant by conduct undermined the Agreement. On the issue of the Crusher, the 3^rd defendant averred that it was not privy to how it was bought and that the Plaintiff/1^st defendant totally ignored the Affiliates to the contract executed on the 20-5-2011. Again the 3^rd and 4^th defendants were not privy to negotiations and when it complained in a letter about the Plaintiff and 1^st defendant counterclaimant’s unilateral involvement with the 2^nd defendant, the latter did not reply their said letter. The 3^rd defendant concluded that, it is not responsible for the consequences of the unjustified and unilateral dealings and corporate engagements between the Plaintiff and 1^st and 2^nd defendants.

Consequently, whatever monies Plaintiff released to the 1^st and 2^nd defendants were not applied to the project by the latter.

It concluded that, according to the spirit and tenor of the Agreement, the Affiliates had equal liabilities and responsibilities which made it obligatory for the Plaintiff and 1^st defendant to involve them as a group in all corporate decision making relating to the Limestone Concession. In addition, the 3^rd defendant under the Agreement was to do the haulage of the limestone to the Plaintiff and had therefore incurred pre-contract expenses to secure trucks for the haulage and had suffered loss and damages. It therefore Counter claimed for the following:

A declaration that Plaintiff/1^{st and} 2^nd defendants in their unilateral handling of the Agreement dated 20-5-2011 to the total exclusion of the 3^{rd and 4 the} defendants is unreasonable, arbitrary, unjustifiable and in violation of the said Agreement.

Damages for breach of contract.

Recovery of the sum of GH¢1,944,468.00 being the total cost of investment in the limestone business under reference between November 2006 to February 2013.

An order to the 1^st and 2^nd defendants to account for all monies they received from the Plaintiff relating to the performance of the Agreement under reference.

Loss of profit from May 2011 to date = US$560,000.00

Prospective loss of earnings from February 2013 to May 2016 = US$2,240,000.00

Interest on (3) and (4) at the prevailing rate of interest from February 2013 to date of final payment

Costs, including solicitor’s fees.

4^th defendant in its Statement of Defence denied Plaintiff’s claim. It also denied the alleged matters in dispute. It averred that, the 1^st defendant tried to sideline it and it was only invited to a meeting after the 1^st defendant had resiled from the Agreement. It continued that, it got to know of the payment of the US$800,000.00 after it had been paid. Whilst admitting that the Affiliates encountered financial difficulties, the 4^th defendant averred further that it was not involved in any discussion between Plaintiff and 1^st defendant. Letters were exchanged between the Plaintiff and 1^st and 2^nd defendants without copying 3^rd and 4^th defendants or their counsel. 4^th defendant concluded that, it was only when Plaintiff had a problem with 1^st and 2^nd defendants regarding an alleged take over deal that 3^rd and 4^th defendants were invited to a meeting. Therefore, the Plaintiff was in breach of the agreement. In its view the breach started when the Plaintiff decided to deal with 1^st and 2^nd defendants only to the exclusion of the 3^rd and 4^th defendants. It concluded that, this attitude of the Plaintiff resulted in the non- performance of the contract and as a result it had loss revenue it would have otherwise realized had the contract been performed and therefore the Plaintiff has no cause of action against it.

After close of pleadings, the case went through a full trial with the parties testifying and calling witnesses. As stated earlier, at the end of the trial, the Plaintiff’s claim was dismissed hence this appeal.

In arguing the appeal, counsel for the Plaintiff argued all the eleven grounds of appeal together. He then submitted that, the trial judge findings and conclusions are clearly not supported by the evidence on record. He continued that, the trial judge came to the conclusion that the Plaintiff rather breached the Agreement. His reason being that, the Plaintiff made the bailouts, that is the purchase of the Mobile Crusher; the payments of the various Permits to EPA as well as the Explosives, and these were all done as a strategy to take over the Concession. According to the trial judge, this is wrong and the Plaintiff must not be allowed to benefit from its own wrong. In counsel for the Plaintiff’s view, these findings are not supported by the evidence on record for the following reasons:

The purchase of the Crusher was part of the Agreement, He referred us to Exhibit A and A1.

The defendants sought help from the Plaintiff to secure those EPA Permits. Counsel referred us to Exhibit E.

The defendants never demanded the return of the Licenses and Permits until the relationship between the parties became sour.

When the Plaintiff invoked the Take over Clause, that is Clause 5 of the Agreement, the parties proceeded to negotiate for a royalty to be paid for the take over which the former paid.

The defendants cashed the cheque and then claimed it erroneously negotiated the royalty in cedis instead of in dollars and demanded a top up or payment of the short fall.

On the ‘Letter of Comfort’, counsel for the Plaintiff submitted that, his clients were not obliged legally to provide the said letter to the defendant’s bank.

In respect of the Takeover, counsel for the Plaintiff argued that, the trial judge held that, the Plaintiff was not entitled to invoke the takeover clause. His reasons being that;

It was not right at that point since the Plaintiff had led the defendants in thinking that the contract was still subsisting and was willing to bail them out financially to enable them discharge their obligation under the contract.

As a precondition for the Takeover, the 3^rd and 4^th defendant were to be involved in any negotiations leading to the Take over and this had not been complied with.

Counsel for the Plaintiff submitted that, this finding is wrong. He referred to Clause 5:2. Secondly, counsel submitted, it was the duty of 1^st and 2^nd defendant to notify 3^rd and 4^th defendants. Thirdly, the defendants in demanding payment of the GH¢2.3million from the Plaintiff, admitted that, that money/payment was for the takeover of the Mining Operations by WAQL and lastly, by Exhibit K, the defendants granted “Unlimited Right of Entry” to the Plaintiff to the Limestone Concession pending the study of the Takeover Agreement and for their signature.

Based on the above submissions, counsel for the Plaintiff invited us to allow the appeal as the findings and the conclusion reached by the trial judge is clearly not supported by the evidence on record. On the contrary, the defendants breached the Agreement by their non-performance. Consequently, the award of general damages to the defendants is wrong and should be set aside.

In response to the above submissions, counsel for the 1^st and 2^nd defendants submitted that, the trial judge was right in finding the Plaintiff liable for its failure to assist his clients to access an overdraft facility from their bank. He argued that, if the Plaintiff knew that borrowing to finance the agreement by 1^st and 2^nd defendants constituted a material breach, why then did it play an active role in that endeavor. In that respect the trial judge’s analogy of leading someone to the cliff and pushing him over the cliff is 100% relevant to the conduct of the Plaintiff. On ground (iv), where the trial judge struck out the 1^st defendant as a party in the suit, counsel referred to Order 4 Rule 5 (2) (a) of CI 47 and cases like Salomon v. Salomon & Co and Morkor v. Kuma (1998-99) SCGLR 620, and submitted that, the trial judge was on point when he struck out the 1^st defendant as a party to the suit. The reason being that, a company is a legal entity separate from its Directors and Shareholders. It can sue and be sued.

On the payment of GH¢2.3million by Plaintiff to 1^st and 2^nd defendants, counsel argued that, that amount was not consideration for the takeover of the Concession as the evidence on record does not support that position. He argued that, 1^st and 2^nd defendants grudgingly acceded to the request of the Plaintiff to take over the quarry subject to the payment of all monies invested in the Concession by the 2^nd defendant. However, the takeover negotiations commenced but same did not materialize as the draft Agreement, Exhibit L was not executed.

Based on the forgoing, counsel for 1^st and 2^nd defendants invited us to dismiss the appeal as same is without merit.

On its part, the 3^rd defendant argued that, 2^nd, 3^rd and 4^th defendants are individual limited liability companies who by Affiliation and the Agreement, have interest in the Limestone Concession at Sedorm/Agyina in the Eastern Region. It continued that, by the tenor and spirit of the Agreement, it had equal liabilities and responsibilities which made it obligatory that the Plaintiff involved all the defendants as a group in all corporate decision making relating to the production and sale of limestone to the Plaintiff. It continued further that, in respect of the mining and supply of limestone to the Plaintiff under the Agreement, the 3^rd defendant was to perform the haulage of the limestone to the Plaintiff. However, Plaintiff and 1^st and 2^nd defendant to the Agreement chose not to involve it in any decision. In addition, the negotiations for the takeover of the Concession were made in the absence of 3^rd and 4^th defendants, whose presence was mandatory under Clause 5:3 of the Agreement, Exhibit A for an effective take over. Consequently, the finding by the trial judge that 3^rd defendant must be involved in any discussions leading to the takeover is right. Secondly, Exhibit K, the right of Entry letter was written by counsel for 1^st and 2^nd defendants, Lawyer Kwasi Blay who did not have the authority of 3^rd defendant to write that letter as such the latter is not bound by that.

Thirdly, the 3^rd defendant owns 23 % of the Concession and therefore same cannot be taken over when it is not involved in any negotiations for the take over.

Counsel for the 3^rd defendant concluded that, the award of general damages to 3^rd defendant is in the right direction as the latter bought vehicles meant for the haulage of the limestone to Plaintiff and would have made profit from the haulage for the five years, but for the abrogation of the contract by the Plaintiff. In that respect, the dismissal of its counterclaim by the trial judge as unmeritorious and diversionary in nature was wrong.

For the 4^th defendant it was submitted on its behalf that, right after the execution of the Contract in contention, the Plaintiff and 1^st and 2^nd defendants sidelined it in any decision they took in respect of the said Contract. It was only when the Plaintiff had problem with the 1^st and 2^nd defendants regarding an alleged take over deal that it was invited to a meeting and even that, the details of the takeover agreement was not made known to it. Counsel for the 4^th defendant concluded that, the Plaintiff was rather in breach of the Agreement dated 20-5-2011 when it decided to deal with the 1^st and 2^nd defendants to the exclusion of 3^rd and 4^th defendants. The trial judge was therefore right in finding that the Plaintiff was in breach as the takeover was premature. This is because the defendants had not renounced their liability under the contract and the refusal of the Plaintiff to provide the Letter of Comfort showed that the latter was prepared to take over the Concession. He therefore invited us to dismiss the appeal as the damages awarded it was proper.

In this appeal, neither the 3^rd defendant nor any of the defendants filed a cross appeal. That being the case the submission by counsel for the 3^rd defendant that the dismissal of the 3^rd defendants’ counterclaim was wrong has no basis.

We now proceed to deal with the striking out of 1^st defendant as a party in the suit. Counsel for the

Plaintiff’s submissions that, the claim against 1^st defendant was in the nature of tort is not borne out by the Plaintiffs writ. That argument does not find favor with us and it is accordingly rejected. On the contrary, the trial judge and counsel for the 1^st and 2^nd defendants were right when they submitted that the decision accords with the law and we uphold same. It is trite that, a company is a legal entity and is distinct and separate from its Directors and Shareholders. It is capable of being sued and can sue. The cases of Salomon v. Salomon & Co (1897) AC and Morkor v. Kuma (1998-99) SCGLR, 620 support this position. See also Order 4 Rule (5) (2) (a) of the High Court (Civil Procedure Rules) 2004, CI 47, which provides that:

“At any stage of proceedings, the Court may on such terms as it thinks just either of its own motion or on application;

(a) Order any person who has been improperly or unnecessary made a party or who for any reason is no longer a party or a necessary party, to cease to be a party.”

We now come to the crux of the appeal. As stated supra, counsel for the Plaintiff argued all the eleven grounds of appeal together as all the grounds with exception of ground (iv which had been dealt with) borders on the improper evaluation of the evidence on record.

Counsel for the Plaintiff and defendants stated the law correctly as to what is required of us as an appellate court when an appellant complains on the ground that, the judgment is against the weight of evidence. We are enjoined to peruse the entire record of appeal to see whether the findings and conclusion reached by the trial judge is amply supported by the evidence on record. Additionally, the appellant is enjoined to pinpoint the lapses he is complaining off that is, the pieces of evidence wrongly applied against him or the pieces of evidence if applied in his favor would have changed the decision in its favor. See the following cases:

ABBEY & OTHERS V. ANTWI V [2010] SCGLR 17, 20 AKUFO-ADDO v CATHELINE [1992] 1 SCGLR 377

See also Rule 8 (1) of the Court of Appeal Rules as amended, CI 19 which provides that an appeal is by way of rehearing.

The trial judge came to the conclusion that, the Plaintiff rather breached the Agreement, Exhibit A. His reason being that the Plaintiff enticed the defendants with money when the latter breached the Agreement instead of abrogating the contract. He gave three reasons for coming to this conclusion.

The Plaintiff purchased a Mobile Crusher at the cost $800,000 (eight hundred thousand dollars) for the defendants for the performance of the contract.

Paying for the various Statutory Fees for Permits and Explosives to the Environmental Protection Agency (EPA).

But when it matters most for the Plaintiff to issue a ‘Letter of Comfort’ to the 2^nd defendant to enable the latter source an overdraft facility from its bank, the Plaintiff declined.

According to the trial judge, the Plaintiff did all these as a ploy to take over the Concession.

With all due respect to the trial judge, his evaluation of the evidence on record is wrong. To begin with, the provision of $800,000 by the Plaintiff to the defendants for the purchase of the Mobile Crusher is part of the contract. Exhibit A, A1 clause 1 and 2 is clear on this. Clause 2.6 of Exhibit A states that:

“WAQL hereby covenants to pay a deposit of $800,000.00 as Advance Payment to SUMMABE & AFFILIATES for the purchase of a crusher. WAQL shall pay directly to the supplier of the crusher on behalf of SUMMABE & AFFILIATES the amount not greater than $800,000. The Advance Payment shall be only one-off occurrence during the period of the Agreement”.

On the payment of the EPA Permits Fees as well as the purchase of Explosives, the defendants requested for same. Exhibit ‘E’ supports this fact and we would quote it for emphasis. Exhibit ‘E’ is a email from 1^st defendant to Thorvaldsen Raider.

It reads:

“Hi Raider.

Following site inspection visits by personnel of the Minerals Commission as well as EPA (Eastern Regional Directorate) we have been asked to pay required fees and levies for renewal of our permits.

However, due to cash constraints, we are unable to make the payments – we would therefore appreciate if Ghacem can assist us in that regard.

Pls find below a breakdown of the fees:

1. EPA processing fee -GH¢700

2. EPA permit renewal fee – GH¢25,000

3. Minerals Commission Operating Permit fee – GH¢1370 per year (total 2,740)

4. Minerals Commission Explosives purchase fee – GH¢2,000 per year (total 4,000)

TOTAL – GH¢32,440

We have received assurances that the permits will be issued on the same day of payment

We trust that we can count on your kind cooperation once again.

Regards

Godfred Summabe “

Having already committed this huge sum of money for the purchase of the Mobile Crusher, it made business sense for the Plaintiff to accede to the request for money to pay the Statutory fees in order to get its limestone. This is especially so considering the amount involved for the issuance or renewal of the Permits vis-a-vis the money advanced for the purchase of the Crusher.

On the Plaintiff’s failure to issue or write the letter of Comfort to 2^nd defendant’s bank. The Contract in contention is Exhibit A, A1. A perusal of both documents, nowhere is the provision of ‘Letter of Comfort’ to the defendants captured. What the defendants especially 2^nd defendant should bear in mind is that, such a letter creates a legal relation. In the event of failure to make good the amount involved, the 2nd defendant bank would sue the Plaintiff to recover the money notwithstanding the fact that that the money was loaned to the second defendant. See the case of ATTORNEY GENERAL (NO.2) v. NDK FINANCIAL SERVICES (NO.2) [2015-2016] SCGLR, 623, where their Lordships held that:

“By the provision in section 10 of the Contracts Act, 1960 (Act 25), the contract entered into between the Ministry of Energy and Ahaman Enterprises Ltd, for the haulage contracts and between the plaintiff and Ahaman Enterprises Ltd for the various loans advanced by the plaintiff to Ahaman Enterprises Ltd, had not been invalidated by the fact that the consideration in respect of those contracts had been supplied by a person other than the promisee. Consequently, the resolution of the solitary issue formulated by the Supreme Court as arising from the grounds of appeal and the statement of case of the parties, would be resolved in the affirmative and in favor of the plaintiff to the effect that, the letters of undertaking and guarantee written by the Ministry of Energy to the plaintiff company and Ahaman Enterprises Ltd, constituted sufficient legal basis for the Court of Appeal’s decision to the effect that the 2^nd defendant and Ahaman Enterprise Ltd, the first defendant, pay the plaintiff, all sums (together with interest, at the rate of 6.5 per cent per month) which had been paid to Ahaman Enterprises Ltd by the Ministry of Energy.”

In the words of Dotse JSC:

“Indeed, it would be a mockery and travesty of justice for a Ministerial Department of State, to be permitted to use such words as are contained in the various letters under reference, upon which a non-banking financial institution, like the Plaintiff acted and when it matters most, be construed as a “Letter of Comfort” and not legally binding. This is erroneous”.

That was a case the plaintiff NDK Financial Services was approached by Ahaman Enterprises Ltd for a credit facility to enable it execute a haulage contract awarded it by the Ministry of Energy. As a condition for the approval of the credit facility requested by Ahaman Enterprises Ltd, the plaintiff required it to secure a guarantee from Ministry of Energy indicating that payments due under the contract for the haulage would be made in the joint names of Ahaman Enterprises Ltd and the plaintiff NDK Financial Services Ltd. The former secured the said guarantee from Ministry of Energy.

Relying on the Ministry of Energy’s letter in support of the credit facility applied for by Ahaman Enterprises Ltd, the plaintiff approved the credit facility to Ahaman Enterprises Ltd. Later the plaintiff discovered that the Ministry of Energy had directed the Ministry of Finance to pay monies due Ahaman Enterprises Ltd under the haulage contract to Ahaman Enterprises alone in contravention of the guarantee to make joint payments to plaintiff and Ahaman Enterprises Ltd. The latter after receiving payments failed to pay the plaintiff company to redeem its indebtedness. When all attempts to get defendants pay their indebtedness to it failed, the Plaintiff sue Ahaman Enterprises Ltd and the Ministry of Energy for the amount owed. The trial High Court held that the plaintiff was not entitled to judgment against Ministry of Energy because the plaintiff company was not a beneficiary under the haulage contact and described the undertaking/guarantee by Ministry of Energy as a letter of comfort not intended to be binding. The Court of Appeal reversed the decision of the High Court and held that, that letter of guarantee was binding and cannot be construe as Letter of Comfort and not legally binding. The defendants appealed to the Supreme Court which affirmed the decision of the Court of Appeal.

Having noticed that the defendants were financially challenged, the Plaintiff rightly declined to issue the ‘Letter of Comfort’ to the 2^nd defendant. On the contrary, the Plaintiff acted prudently by refusing that request considering the defendants’ financial position. From the forgoing, the evaluation of the evidence by the trial judge on the Letter of Comfort is not supported by the evidence on record. This finding led to the erroneous conclusion by the trial judge that the Plaintiff was rather in breach of the Agreement. That being the case, this finding would be set aside and is hereby set aside. The defendants i.e. Summabe & Affiliates failure to supply Plaintiff the required quantity of limestone within the ninety (90) days after the execution of the Agreement constituted breach of the Agreement dated 20-5-2011 and captured in Exhibit A, A1.

This bring us to the takeover of the Concession. Here the question to be answered is, did the Plaintiff rightly invoked Clause 5:2 of Exhibit A, A1? We will answer this question in the affirmative. Clause 5:2 of Exhibit A states that:

“Subject to clause 2.3, SUMMABE & AFFILIATES hereby covenants that in the event of failure to supply within the aforementioned quality, quantity and grace period, it shall willingly and readily hand over the management of the quarry to WAQL and step aside for the latter to finance and operate the quarry.

Nonetheless SUMMABE & AFFILIATES shall remain the true owners of the concession and accordingly shall become entitled to ex-gratia which shall be payable by WAQL within periods that shall be mutually agreed between the parties.”

Throughout its defence, the 3^rd and 4^th defendants insisted they were not involved in the negotiations. From the record of appeal, the Takeover Agreement was not executed by the defendants. Their reason being that the payment of the GHs2.3 investment cost was mistakenly quoted in cedis instead of in dollars and that the Plaintiff must refund the difference. The Plaintiff disputes this. What is not in dispute is the fact that the Plaintiff paid GH¢2.3million to the defendants but was not granted entry into the concession. They must refund this money to the plaintiff together with interest from the day of judgment to date of payment.

This brings us to the general damages awarded the 2^nd to 4^th defendants by the trial judge. Having come to the conclusion that the defendants breached the Agreement, the award of general damages of $7.5 million to the 2^nd defendant is wrong and same is hereby set aside. Similarly, the Order that the 2^nd defendant should recover GH¢1,829,650.00 from the Plaintiff is also set aside as having no basis.

Now to the 3^rd and 4^th defendants’ counterclaim. Having found that the defendants rather breach the Agreement, the defendants’ counterclaims are hereby dismissed as they were not proved. From the record of appeal, the Plaintiff paid $800,000 to the defendants for the Crusher; Paid EPA and Minerals’ Commission Permits totaling GH¢32,440 and GH¢2.3million to the defendants. Having received these monies, it is only fair and proper to order defendants to refund these monies to the Plaintiff as being claimed in the latter’s alternative relief in its writ of summons.

Consequently, we make the following orders:

1. The defendants should refund to the Plaintiff the GH¢2.3 million the latter paid to them

2. The Plaintiff should recover possession of the Mobile Crusher from the defendants.

3. The defendants should also refund all the Statutory payments totaling GH¢32,440 the Plaintiff made to EPA and Minerals’ Commission on their behalf to the Plaintiff.

4. The award of general damages of $3.5 million and $2.5 million awarded to the 3^rd and 4^th defendants respectively are hereby set aside together with all the costs awarded the defendants.

5. The Plaintiff is awarded general damages in the sum of Gh¢500,000.00 for breach of contract.

The judgment of the High Court dated 31^st July, 2015, together with the consequential orders are hereby set aside

(sgd.)

MARIAMA OWUSU

[JUSTICE OF APPEAL]

ADJEI, J.A:

The Plaintiffs/Appellants who are referred to in this appeal as Plaintiffs sued the Defendants/Respondents who are also referred to in this appeal as Defendants in the Commercial Division of the High Court Accra for the following reliefs:

“a. Injunction to restrain the 1^st defendant and summabe & Associates from interfering with plaintiff’s quiet possession of the concession and Quarry to mine limestone/dolomitic limestone;

b. General damages for breach of contract; and

c. Interest on claim (b) supra.

Alternatively,

d. Refund the sum of GHS 2.3 million paid by the Plaintiff;

e. Recovery of possession of the Crusher;

f. A mandatory injunction order directed at the 1^stDefendant to hand over the keys to the Crusher to the Plaintiff;

g. General damages for wrongful detention of the Crusher.

h. General damages for breach of the Agreement dated 20^th May 2011.

i. Interest on claims (d) and (g) supra”.

Upon service of the Writ of Summons and the Statement of Claim on the Defendants, all the Defendants resisted the Plaintiff’s claim and each Defendant counterclaimed against the Plaintiff. The 1^st and 2^nd Defendants filed their statement of defence and counterclaimed against the plaintiffs for:

“i. Recovery of the sum of GH¢1,829,650 being the balance on the contract executed by the 1^st and 2^nd Defendants at the instance of the Plaintiff.

ii. Loss of use and revenue/profit of USD 100,000 per month arising out of the unlawful detention of the Crusher.

iii. Declaration that 1^st and 2^nd Defendants are the owners of the Mobile Crusher and its detention by the Plaintiff is unlawful.

iv. Loss of earnings at USD 400, 000 per month.

v. Loss of revenue that 1^st and 2^nd Defendants would have otherwise earned had the 1^st and 2^nd Defendants performed under the supple order from Diamond Cement.

vi. Damages for breach of contract.

vii. Interest on (i),(ii),(iv) and (v) supra at the prevailing bank rate from May, 2012 to the final payment”

The 3^rd Defendant filed its statement of defence and counterclaimed against the Plaintiffs, 1^st and 2^nd

Defendant’s for the following reliefs:

“i. A declaration that the conduct of the Plaintiff/1^st Defendant to the counterclaim, the 1^st Defendant/2^nd Defendant to the counterclaim and the 2^nd Defendant/3^rd Defendant to the counterclaim in their unilateral handling of the agreement dated 20^th May, 2011 to the total exclusion of 3^rd Defendant/ Counterclaimant and the 4^th Defendant is unreasonable, arbitrary, unjustifiable and in violation of the said agreement.

ii. Damages for breach of contract.

iii. Recovery of the sum of GH¢1,944,468.00 being the total cost of investment in the limestone business under reference between November 2006 to February 2013.

Iv. An order that the 1^st Defendant/2^nd Defendant to the counterclaim and the 2^nd Defendant/3^rd Defendant to the counterclaim should account for all the monies they received from the Plaintiff/1^st Defendant to the counterclaim relating to the performance of the agreement under reference.

v. Loss of profit from May 2011 to date - USD$560,000.00

vi. Prospective loss of earnings from February 2013 to May 2016 - USD$2,240,000.00

vii. Interest on (iii) and (iv) at the prevailing rate of interest from February 2013 to the date of final payment.

viii.Costs, including Solicitor’s fees”.

The 4^th Defendant in its amended statement of defence and counterclaim sought for the following reliefs against the Plaintiff:

“1. A declaration that the exclusion of the 3^rd and 4^th Defendants from participating in any discussion and release of money to the 1^st and 2^nd Defendants by the Plaintiffs is a breach of the contract between the parties.

2. Damages for breach of contract

3. Recovery of USD 4,039,479 being the total cost of investment in the business, accruing interest on loans and unpaid credit facilities, loss of earnings, ex-gratia awards etc.

4. Interest on the said from 1^st September 2013 to the date of final payment”.

The issues were set down for trial. The trial High Court Judge delivered the judgment of the trial High Court on 31^st July, 2015. The reliefs granted by the trial High Court Judge in his judgment are as follows:

“I enter judgment for the 2^nd, 3^rd and 4^th Defendants for general damages for breach of contract against the Plaintiff. For the 2^nd Defendant, I will take note of the amount already paid and collected as refund of investment, the loss of earnings for the five years that the contract was to run, the loss of the prospect of owning the crusher after full payment and loss of earnings after the expiration of the present contract through the use of the crusher and hereby award general damages of USD7,500,000.00 or its equivalent.

I further order the Plaintiffs to pay the amount of GH¢1,829,000.00 as top up or under payment of the reimbursed cost.

For the 3^rd Defendant, I award USD3, 500,000.00 or its equivalent for the loss of earnings and reimbursement of investment.

To the 4^th Defendant, I award damages of USD2, 500,000.00 or its cedi equivalent for loss of earnings and reimbursement of costs.

Interest shall run on all amounts awarded in respect of the general damages from date of judgment to date of final payment are the prevailing bank rate.

And on the recovery of the shortfall, from the date that it became due, that is, May 2012 till date of final payment.

I award cost of GH¢30,000.00 to the 1^st Defendant, GH¢100,000.00 to the 2^nd Defendant, GH¢80,000.00 to the 3^rd Defendant and GH¢50,000.00 to the 4^th Defendant, all against the Plaintiff.

(SGD.)

JUSTICE JUSTIN K. DORGU OF THE HIGH COURT”

The Plaintiffs dissatisfied with the judgment of the trial High Court filed a notice of appeal against same on 24^th August, 2015. The grounds of appeal filed by the Plaintiff are:

“i. The judgment is against the weight of evidence.

ii. The trial Judge did not consider the legal implication of abrogating the agreement between the parties.

iii. The trial Judge erred in holding that the Plaintiff was liable for not assisting the Defendant.

iv. The court erred in striking off the 1^st Defendant as a party to the suit.

v. The trial Judge did not consider the legal implications of clause 16 of the agreement between the parties on the communication and service of notices and information between the parties.

vi. The finding of fact by the trial Judge that there was no evidence that negotiations culminated in the payment of Gh¢2.3million is unsupportable by the evidence on record.

vii. The holding by the trial Judge that there is no sufficient evidence on record that the GH¢2.3 million received was in consideration of a take over of the concession is unsupportable in law and fact.

viii. The trial Judge failed to consider the legal import of the Letter from lawyer Kwasi Blay on behalf of the Respondents giving the Plaintiff an unlimited right of entry into the concession.

ix. The award of GH¢1,829,650 in favour of the 2^nd Defendant is unsupportable in law and fact.

x. The award of general damages of $7.5 million, $3.5 million and $2.5 million is arbitrary and unsupportable in law.

xi. The award of costs in favour of the Defendants is excessive and unsupportable in law”.

The brief facts of the case were that the Plaintiffs entered into an agreement with Summabe and Affiliates for the supply of limestone to the Plaintiffs. The parties in their agreement defines their affiliates to mean any company, partnership or other entity which directly or indirectly controls, is controlled by or is under common control of either of the parties. The Contract was signed by the Managing Director of the Plaintiffs for and on behalf of the Plaintiffs.

The 1^st Defendant also signed as Managing Director for and on behalf of Summabe and Affiliates. The contract was signed on 20^th May, 2011. On 19^th July, 2011, the parties prepared an addendum to the contract between the parties signed on 20^th May, 2011. The addendum was signed by the same officers on behalf of the respective companies they represented on 19^th July, 2011. In the addendum, the Plaintiffs covenanted with the Summabe and Affiliates to pay a deposit of $800,000 US Dollars as advance payment to Summabe and Affiliates for the purchase of a crusher to be used exclusively for the execution of the contract to mine quarry for the supply of limestone to the Plaintiffs absolutely. Under the addendum, the Plaintiffs were to pay the sum of 800,000 US dollars to the supplier of the Crusher. Summabe and Affiliates were to transfer ownership of the crusher to the Plaintiffs within five days after Summabe and Affiliates had taken delivery of same from the purchaser. An amount of 800,000 US dollars was provided by the Plaintiffs for the purchase of the Crusher. The Crusher was shipped to the port; Summabe took delivery of same and subsequently transferred it to the Plaintiffs. The Defendants were, however, in possession of the Crusher.

At a later stage there were other statutory payments which summabe was to pay but could not raise it and fell on the Plaintiff to pay. The Plaintiffs paid the statutory payments even though it was not part of the contract it executed with Summabe. The Defendants later on required a working capital to mine the quarry and contacted the Plaintiffs to give them a letter of comfort. The Plaintiffs stated that it was not part of the contract to give letter of comfort to Summabe and Affiliates. The Plaintiffs invoked the “Terms of Breach and Penalty Clause” of the contract after Summabe had failed to supply limestone to the Plaintiffs as agreed between them in the agreement. The Plaintiffs had a meeting with Summabe and paid 2.3 million cedis to Summabe and Affiliates to take over the management of the quarry. The amount of 2.3 million cedis paid by the Plaintiffs to take over the management of the quarry is one of the main issue which culminated in the suit before this Court. According to Summabe and Affiliates, the money to be paid by the Plaintiffs to take over the management of the quarry was in dollars but the Plaintiff took it to be cedis.

I now address the first ground of appeal that is the judgment is against the weight of evidence. The law is settled that an Appellant, who in his notice of appeal files a ground that the judgment is against the weight of evidence, invites the appellate Court to rehear the appeal. An appeal is by way of rehearing and this Court is to correct all the errors made by the trial High Court Judge in evaluating the evidence and further evaluate the evidence the trial High Court Judge should have evaluated but failed to do and correct all the errors.

In the case of Djin v Baako [2007-2008]1 SCGLR 686 Supreme Court held that whenever an appellant appeals on the omnibus ground of appeal, the appellant invites the appellate Court to re-hear the appeal, correct all the errors and enter judgment in favour of the appellant. There are two modes by which an appellate court deciding an appeal under the omnibus ground of appeal corrects errors committed by the Court below in the evaluation of the evidence before it. The first duty on the appellate Court is to re-examine the evidence evaluated by the lower court and correct all the errors found in it. The second mode is for the appellate to examine evidence on record which the lower failed to evaluate. The appellate Court after having corrected the errors found shall then apply the applicable laws with particular reference to the laws an onus of proof, standard of proof and burden of proof and arrive at a conclusion supported by facts and law.

In the case of Tuakwa v Bosom [2001-2002] SCGLR 61, the Supreme Court held that an appellate court in the exercise of its corrective powers shall use the omnibus ground of appeal to rehear the whole appeal and correct all the errors found and come to a conclusion supported by law and fact.

The trial High Court Judge was influenced by a lot of extraneous matters in his decision. The first one is the decision of the trial High Court Judge on the letter of comfort which the Defendant required the Plaintiff to provide but failed. The trial High Court Judge criticized the Plaintiffs for failing to provide the letter of comfort to enable the Defendants to secure a loan facility to undertake the quarry. The trial Judge held thus:

“Then when the 3^rd Defendant secured the offer for the overdraft facility to enable them to recapitalize, the Plaintiffs refused to offer the letter of comfort which would have acted as security towards the approval of the funds for the 2^nd Defendants”.

The Plaintiffs and the Defendants entered into an agreement for the supply of limestone on 20^th May, 2011. The agreement is exhibit ‘A’. The parties further executed an addendum to the agreement on 19^th July, 2011. The addendum to the agreement is exhibit ‘A1’. The two agreements regulate the transaction between the parties herein. I have critically examined both exhibits ‘A’ and “A1” and it is not stated anywhere that where the Defendants secure a loan facility, the Plaintiffs shall provide a letter of comfort. The legal position of a letter of comfort has been discussed in Chitty on Contracts, volume I published by Sweet & Maxwell at paragraph 2-115 as a letter which an action may be founded on it where the borrower fails to pay for the amount for which letter of comfort was issued. The trial High Court Judge expected the Plaintiffs to have provided a letter of comfort which is not borne out by exhibits ‘A’ and ‘A1” and assume the burden to pay same where the Defendants default in the payment of the loan facility. The trial High Court Judge purported to re-write a new contract for the parties and commit the Plaintiff to provide a letter of comfort which was not part of the agreement. The above finding by the trial High Court Judge sought to overburden the Plaintiffs with possible liability. The wrong appreciation of the legal effect of a letter of comfort by the trial High Court influenced its decision to come to the conclusion that the Plaintiffs rather breached the agreement for failing to provide the letter of comfort. The finding on the letter of comfort is not supported by the evidence on record and same is hereby set aside.

The trial High Court Judge was further influenced by the fact that the Plaintiffs paid for the purchase of the explosives and renewal of all permits and kept the originals which were necessary for the purchase of explosives without which the Defendants could not blasts the rocks for the production of the limestone.

The evidence on record shows that the Plaintiffs after paying for permits kept the original copies and made copies for the Defendants. There is no scintilla evidence on record to show that the Defendants presented photocopies of the permits to purchase explosives and were denied on the grounds that they did not have the original copies. The trial Judge erred when he over relied on this piece of evidence and came to the conclusion that the Plaintiffs by their conduct made it impossible for the Defendants to mine the quarry to give them the opportunity invoke the “Breach and penalty clause” in exhibit ‘A’. According to the trial High Court the Plaintiffs made all efforts to frustrate the Defendants from mining the quarry. The findings of fact made the trial Judge on the fact that the Plaintiffs kept the original receipts of the permits paid by the Plaintiffs on behalf of the Defendants in bad faith is not supported by the evidence on record and same is hereby set aside.

The trial High Court Judge’s decision was influenced by the invocation of the “Breach and Penalty Clause” in the agreement by the Plaintiffs and came to the conclusion that the 3^rd and 4^th Defendants were not involved in the decision. From the evidence on record, both exhibits ‘A’ and ‘A1’ were executed on behalf of the 2^nd, 3^rd and 4^th Defendants by the 1^st Defendant. The same 1st Defendant represented the Defendants on the takeover negotiations. It was wrong for the trial Judge to have come to the conclusion that the negotiations for the take over was between the Plaintiffs and 1^st and 2^nd Defendants only.

On the same wrong assumption of facts, the trial High Court Judge found that the 2.3 million cedis paid by the Plaintiffs to the 2^nd Defendant did not benefit the 3^rd and 4^th Defendants. He was not also satisfied that the amount was paid in consideration of the takeover.

The Defendants’ own letter to the plaintiffs to reimburse them of the cost and take over the operations of the quarry written on 25^th April, 2012 and tendered as part of exhibit ‘S’ provides thus:

“We refer to the meeting held at your premise to negotiate the Payment of our investment in the project. We are pleased to submit per the attached, invoice for the agreed amount of Two million, Three Hundred Ghana Cedis (GH¢2,300,000.00) for your urgent and necessary action...”.

The 1^st Defendant signed the letter for and on behalf of Summabe & Affiliates. I am satisfied that the trial High Court Judge erred by holding that the 3^rd and 4^th Defendant did not benefit from the payment of GH¢2,300,00.00 although there is evidence that their representative, the 1^st Defendant, who has been representing all of them in the transaction wrote and signed the letter, exhibit ‘S’ for and on behalf of the 2^nd, 3^rd and 4^th Defendants. The Defendants are rather estopped by their own aforementioned letter. Section 25 of the Evidence Act, N.R.C.D 325 provides thus:

“1.Except as otherwise provided by law, including a rule of equity the facts recited in a written document are conclusively presumed to be true as between the parties to the document, or their successors in interest”.

I am satisfied that the trial High Court Judge erred by not holding that the Defendants were estopped by their conduct. I find from the evidence on record and hold that the GH¢2,300,000.00 was paid to all the Defendants and they cannot use their own internal arrangement which the Plaintiffs might not know to over reach a payment made by the Plaintiffs to them at their request.

The trial High Court Judge also found that the amount of GH¢2,300,000.00 did not represents the full cost incurred by the Defendants on the concession. The Defendants made a demand for the amount on exhibit ‘S’ and when it was paid to them they cashed the cheque. It was after that that they wrote to inform the Plaintiffs that the money was in dollars and not in cedis as quoted on exhibit ‘S’. The trial High Judge erred when he held that the GH¢2,300,000.00 was a part payment for the takeover agreement. The Plaintiffs paid the amount based on the demand notice served on them by the Defendants. The Plaintiffs paid the amount quoted on the notice while according to the Defendants, it was a mistake as they knew the agreement centered on the use of dollar and not cedis. The Defendants position was denied by the Plaintiff. The trial Judge should have found that it was a mistake as each of the parties had a different opinion as to the agreed amount to be paid. The Plaintiffs knew that they were paying for the amount in cedis and it accords with the letter sent to them by the Defendants. The Defendants were of the opinion that the amount was quoted in dollars as that has been their practice. This may not come within the common law principle of mutual mistake. The principle of mutual mistake at common law relates to only fundamental mistake by the parties. In the case of Kennedy v Panaman Royal Mail C. [1867) LR 2QB 580, it was held that at common law only fundamental mistake is essential for a contract to be set aside on grounds of mutual mistake.

However, in the case in point, the Defendants made the offer in dollars while the Plaintiffs thought it was in cedis and accordingly paid. The Plaintiffs in their paragraphs 12 and 13 of the statement of claim averred that the Plaintiffs paid an amount of GH¢2,300,000.00 as the agreed sum for the takeover of the quarry. The Defendants on the other hand, according to the 1^st and 2^nd Defendants in paragraph 18 of their statement of defence averred that they transacted for 2.3 million dollars and not 2.3 million cedis. Paragraph 19 of the 1^st and 2^nd Defendants statement of defence is material at this stage. It provides thus:

“In reaction to paragraph 14 of the statement of claim, 1^st and 2^nd defendants say that the letter under reference was to grant the Plaintiff right of entry into the concession pending the resolution of outstanding issues, that is, whether the Plaintiff was to pay GH¢2.3 million or USD 2.3 million. By a letter of May 3,2012, 1^st and 2^nd Defendants had indicated to the Plaintiff the shortfall in the payment made with a proviso that the development should not in any way stall negotiations or arrangement for the intended take over for the mining operations”,

Ab initio, the 1^st and 2^nd Defendants admitted in their pleading that they had agreed with the Plaintiffs to resolve the amount to be paid for the take over as each of them understood it differently. I find that the Defendants offered 2.3 million dollars for the takeover agreement while the Plaintiffs accepted 2.3million cedis which in contract amounts to a counter offer. The parties agreed to resolve the purchase price as they know that it was not a mutual mistake but rather they were not ad idem as to the price and was therefore no binding contract in respect of the takeover agreement between the parties. There was no fundamental mistake as the Plaintiffs understood the true character of the offer they intended to accept. The issue before this court to resolve is on the formation of the agreement.

Cheshire, Fifoot & Furmston’s in their book Law of contract (14^th edition) published by Butterworths Lexis Nexis at page 270 describe the type of mistake which is on all the fours to the mistake in this appeal thus:

“A mistake is wholly immaterial at common law unless it results in a complete difference in substance between what the mistaken party bargained for and what in fact he will obtain if the contract is fulfilled; as for example where the buyer intends to buy real pearls and the seller intends to sell limitation pearls. Translated into the familiar rubric of offer and acceptance, this means that the only type of mistake which is ever capable of excluding offer and acceptance is one that prevents the mistaken party from appreciating the fundamental character of the offer or the acceptance. The formation of agreement depends upon the correspondence of offer and acceptance, and if the offer is made in one sense but accepted in another, as in the example of the real and imitation pearls, there is at least ground for arguing that there is no consent and therefore no genuine agreement. The mistaken party can at any rate say-for what it is worth- that he personally did not intend to make the contract which he appears to have made”.

I hold that there was no offer and acceptance and was therefore no contract between the Plaintiff and the Defendants. The trial Judge’s decision on breach of contract and the subsequent award of damages are not supported by the evidence on record. There was no legal basis for the trial High Court to award damages against the Plaintiffs for breach of contract where there was no valid contract on the takeover agreement. I hold that grounds (i), (ii), (iii), (vi) and (vii) of the appeal succeeds.

Regarding the issue of takeover by the Plaintiffs, the 1^st and 2^nd Defendants who negotiated for the other Defendants with the Plaintiffs in their paragraph 19 of the statement of claim admitted having authorized the Plaintiffs to enter into the concession. There was no dispute about it for the trial High Court Judge to have discussed and come to the conclusion that the takeover was not made in accordance with exhibit ‘A’. The 1^st and 2^nd Defendants in paragraph 19 of their statement of defence unambiguously admitted to have granted the Plaintiff the right of entry into the concession and the Plaintiffs’ subsequent entry into the concession cannot be said to be wrongful for damages to be awarded against them. The general principle of law is that a Court does not resolve a matter which the parties have not joined issues on it. The trial High Court Judge erred by making a finding of fact that the Plaintiffs’ entry into the concession was contrary to their agreement. I further hold that grounds (ix), (x) and (xi) of the appeal succeed as the findings by the trial High Court with respect to award of damages are at variance with the evidence on record. I however, dismiss ground (IV) of the appeal by the simple reason that the Managing Director of a Company is independent of the company which is a legal personam with capacity to sue and be sued. An officer of a company may be sued with the company where there is a clear case of fraud levelled against the officer in his/her personal capacity. The legal position of a company as distinct from its officers or shareholders was discussed in the case of Solomon and Another vs. Solomon [1897]AC 22. The Plaintiffs did not make a special case of fraud against the 1^st Defendant but was sued by the fact that he led all the discussions on behalf of the Defendants. The Plaintiffs appeal fails in respect of ground (IV) of the appeal. Apart from grounds (IV) of the appeal, all the grounds of appeal succeed and the judgment of the trial High Court delivered on 31^st July, 2015 is hereby set aside.

From the evidence, the Crusher was transferred to the Plaintiffs and the only available order that could be made on it is for the Plaintiffs to recover possession of same. I will grant reliefs (d) (e) and (f) of the Plaintiffs claim and dismiss the other reliefs.

The Plaintiffs are therefore entitled to

d. Refund of the sum of GH¢2.3million cedis

e. Recovery of possession of the Crusher

f. A mandatory injunction directing the Defendants to hand over the keys to the Crusher to the Plaintiff.

I hereby dismiss all the counterclaims filed by the 2^nd, 3^rd and 4^th Defendants respectively as unproven.

(Sgd.)

JUSTICE DENNIS ADJEI

[JUSTICE OF APPEAL]

Opinion

TORKORNOO, J. A:

The Plaintiff/Appellant (referred to as Appellant in this opinion) is a subsidiary of a well-known cement production company called Ghacem Ltd. The 1^st Defendant/Respondent is the managing director of the 2^nd Defendant/Respondent Company. The 2^nd Defendant/Respondent, 3^rdDefendant/Respondent and 4^th Defendant/Respondent are companies that owned the license to a limestone mining quarry in a place called Sedom/Agyina in the Eastern Region in a joint venture. The members of the joint venture signed the Agreement that led to this dispute with Appellant on 20^thMay 2011 in the name of the 2^nd Defendant/Respondent with ‘Affiliates’. The group name by which the Agreement referred to all the four companies was Summabe & Affiliates.

I have had the opportunity of reading the judgments of my senior sister and brother which succinctly set out the background facts of this case, the various defences put up by the Respondents, and the claims and counterclaims of the parties. They have also set out the highlights of the judgment, and submissions of the parties on appeal and I do not need to belabor them herein.

My opinion seeks to highlight several points of law that I see that the parties and trial judge took unwarranted liberties with. In this era of national development where the courts have to support the creation of a wholesome investment climate, it is important to comment on any seeming mis-appreciation of unethical conduct in commercial ventures as seemed to have been the case in the judgment under consideration.

Before I get to the substantive issues, let me comment on many of the grounds of appeal that were inappropriately couched. The Appellant filed eleven grounds of appeal. They are:

Grounds of appeal

The judgment is against the weight of evidence.

The trial judge did not consider the legal implications of abrogating the agreement between the parties.

The trial judge erred in holding that the Plaintiff was liable for not assisting the Defendants.

The court erred in striking off the 1^st Defendant as a party to the suit.

The trial judge did not consider the legal implications of clause 16 of the agreement between the parties on the communication and service of notices and information between the parties.

The finding of fact by the trial judge that there was no evidence that negotiations culminated in the payment of GH¢2.3 million is unsupportable by the evidence on record.

The holding by the trial judge that there is no sufficient evidence on record that the GH¢2.3 million received was in consideration of a take over of the concession is unsupportable in law and fact.

The trial judge failed to consider the legal import of the letter from lawyer Kwasi Blay on behalf of the Respondents giving the Plaintiff an unlimited right of entry into the concession.

The award of GH¢1,829,650 in favour of the 2^nd Defendant is unsupportable in law and fact.

The award of general damages of $7.5 million, $3.5 million and $2.5 million is arbitrary and unsupportable in law.

The award of costs in favour of the Defendants is excessive and unsupportable in law

Grounds of appeal must provide direction on what the exact complaints of the Appellant are. They cannot be vague and leave the court to presume the nature of the case the Appellant seeks to make before the court. The need for clarity in the case a party is making is provided for in the rules of the various courts. In the High Court (Civil Procedure) Rules, 2004 CI 47 provides this direction in Order 11 and says particularly in Order 11 Rule 12 (3):

(3) The court may order a party to file particulars of any claim, defence other matter stated in the party’s pleading, or in any affidavit, or a statement of the nature of the case on which the party relies, and the order may be made on such terms as the court considers fit

Similarly, at the Court of Appeal, grounds of appeal must state whether the part of the judgment complained of is not supported by the evidence, or it constituted an error of law. If the allegation is that a part of the judgment constituted an error of law, the Appellant must provide the particulars of the error.

To this end, Rule 8 of the Court of Appeal Rules 1997 CI 19 provides in Rules 8 (4), (5), (6) and (9) of the CI 19 as follows:

8(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated (emphasis mine)

8(5) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the Appellant intends to rely at the hearing of the appeal without an argument or narrative and shall be numbered consecutively (emphasis mine)

8(6) A ground which is vague or general in terms or which does not disclose a reasonable ground of appeal is not permitted except the general ground that the judgment is against the weight of the evidence

8(9) Despite sub-rules (4) to (8), the Court in deciding the appeal shall not be confined to the grounds set out by the Appellant but the court shall not rest its decision on a ground not set out by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground

Grounds (b), (e), (h), in the Notice of Appeal do not allege any misdirection or errors in law. They provide particulars of complaints about parts of the judgment regarding law, but do not indicate whether these complaints arose out of what the Appellant considers to be errors. The mere statement that a court did not consider the legal implications of an aspect of the case cannot lead an appellate court to assume a complaint grounded on an error of law. Grounds (b), (e), (h) were not crafted in the proper manner required of grounds of appeal.

Grounds (g) (h), (i), are also statements and arguments and so offend against Rule 8 (5). Grounds (a), (c), (d), (f) (j) and (k) are appreciated. Grounds (j) and (k) are acceptable only on account of the indication that the orders complained of were arbitrary and excessive, thereby providing particulars of the error complained about. This would conform generally with Rule 8 (4) of C I 19. It is important that lawyers stay the course on the proper mode of drafting directed by the rules of court because there are sound policy reasons behind these rules.

The direction of Article 125 (1) of the 1992 Constitution that justice ‘…shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to the Constitution’ implies inter alia, a role for the judiciary that does not support any of the parties with their work during justice delivery. Thus if a party on appeal fails to present a complaint regarding error in a judgment, that failure elides the basis for their action and mars the landscape of objective delivery of justice.

In the particular circumstances of this appeal, all the submissions of counsel for Appellant were merged. This means that all the parties and this court have had the opportunity to consider all the submission on the acceptable grounds of appeal along with the other grounds of appeal that I found inappropriate. With the responses of Respondent counsels and replies filed to their responses, all parties have had the opportunity to speak to every matter that this court will consider. Rule 8 (9) is therefore honored. Now to the substantive issues.

Striking out of the name of 1^st Respondent.

Ground (d) of the appeal complains that the court erred in striking off the 1^st Defendant as a party to the suit. My sister in her lead opinion has dismissed this ground of appeal and I agree with that conclusion when it comes to the Appellant, who is the only party with an appeal before us. I have two comments about this decision of the trial judge to strike out the name of the 1^st Respondent.

My first comment is that I agree with the position of Appellant’s counsel that its’ claims against the 1^st Respondent are in the nature of tort, though the action in the main is founded on a contractual relationship between the Appellant and the remaining three Respondents.

Every appeal is by way of a rehearing as directed in Rule 8 (1) of CI 19. Paragraph 15 of the Appellant’s statement of claim protested the personal acts of the 1^st Respondent and required the court to determine whether the 1^st Respondent had any personal liability within the context of the transaction between the corporate parties. It read:

15. For unexplained reason, the 1^st Defendant caused a crowd of supporters to prevent the Plaintiff from taking over the quarry. 1^st Defendant took possession of the keys to the crusher and has since denied the Plaintiff access thereto.

The Appellant then went on to indorse its writ with two sets of claims. In the first set, it specifically asked for an injunction against the 1^st Respondent in these words

Injunction to restrain the 1^st Defendant and Summabe & Associates from interfering with the Plaintiff’s quiet possession of the concession and quarry to mine limestone/dolomitic limestone. (emphasis mine)

In the alternative set of claims, there was also a claim against the person of 1^st Respondent in claim (f).

f. A mandatory injunction order directed at the 1^st Defendant to hand over the keys to the crusher to the Plaintiff

Then as pleadings closed and the court set down the issues for trial, Issues 6, 11, 12 and 13 read:

6. Whether or not the 1^st Defendant’s conduct in preventing the Plaintiff from taking possession of the limestone concession at Sedorm is lawful.

11. Whether or not the 2^nd Defendant/3^rd Defendant to the counterclaim is only a face under the manipulation of the 1^st Defendant

12. Whether or not the 1^st Defendant has dishonestly misappropriated monies to be applied in the execution of the contract, all in the name of the 2^nd Defendant/3^rd Defendant to the counterclaim

13. Whether or not this is a fit and proper case to pierce the corporate veil and make the acts of the 2^nd Defendant/3^rd Defendant to the counterclaim synonymous with the 1^st Defendant

These averments, claims and issues spoke to the direct acts of the 1^st Respondent as an individual. I have no doubt that Issue 6 and the pleading and claims it took life from were premised in the law of tort, since the facts dealt with the 1^st Defendant’s alleged personal act of preventing a party from entering into a premise. Issues 11, 12 and 13 however were grounded in company law, and I will deal with them later.

As cited by Appellant counsel, the Supreme Court has in SGSSB v Hajara Farms 2012 1 reiterated within our jurisprudence that ‘in principle, there could be concurrent liability in contract. The facts of each case would determine whether the extent of any concurrent imposition of a liability in contract and tort was justifiable’. (Holding 1).

It was therefore absolutely proper for the Appellants to submit a case against the 1^st Respondent in tort while pursuing the other Respondents in contract since the two claims arose from the same transaction.

As to the sustainability of the Appellant’s action against the person of the 1^st Respondent, I agree that the evidence clarified that at all times, the 1^st Respondent acted as the directing mind of the 2^nd Respondent in the transaction in dispute. This was therefore not a proper case to pursue liability in tort for preventing the possession of the crusher against the person of 1^st Respondent.

It must also be remembered that all the parties acknowledged that the crusher was purchased for the 2^nd Respondent and remained in the custody of the 2^nd Respondent. Thus, any judgment regarding handing over the crusher ought to be directed at the 2^nd Respondent, and any liability for refusing to hand over the crusher cannot be enforced against anyone except the 2^nd Respondent. This makes the claims against the 1^st Respondent inappropriate. This is why I agree to a dismissal of ground (d) of the appeal.

Now to my second comment. As my senior sister has pointed out, since none of the Respondents has a cross appeal before us, there is no basis for considering the dismissal of the counterclaims presented by the 3^rd Respondent – which is the counterclaim that prayed the court to personally order the 1^st Respondent to account for all the monies received from the Appellant.

I speak of the counterclaim of the 3^rd Respondent for

An order that the 1^st Defendant/2^nd Defendant to the counterclaim and the 2^nd Defendant/3^rd Defendant to the counterclaim should account for all the monies they received from the Plaintiff/1^st Defendant to the counterclaim relating to the performance of the agreement under reference.

It is this counterclaim that properly grounded Issues 11, 12 and 13 which dealt with the company law doctrine of piercing a corporate veil in order to determine whether a director should be held liable for any claims against a company through their fraud. And with the failure of the 3^rd Respondent to appeal, that consideration loses any credence in this appeal. I will close this review by saying that the parties before the court and especially Appellant counsel seemed to have traversed issues in contract, tort and company law without clarifying the nature of the cases made in distinct manner.

COUNTER CLAIMS OF THE 1^ST AND 2^ND RESPONDENTS

My sister has dealt extensively with aspects of how all the reasons given by the trial judge in order to arrive at a finding that it is the Appellant who breached the agreement are wrong and seriously against the weight of evidence. It is these findings that allowed him to make orders in favour of the 2^nd Respondent and to dismiss the Appellant’s case.

I must respectfully say that the reasons given for these findings were not just wrong, but the court took liberties with the record of facts in order to arrive at these very unfortunate decisions

AFFIRMATION

The first difficult finding was that the Appellant had affirmed the contract after the initial breach of same by 2^nd Respondent, and so was not entitled to invoke the takeover provisions. The court noted that the 2^nd Respondent was supposed to have supplied 80,000 metric tons of lime stone to the Appellant in the first year. The deliveries ought to have started 90 days after signing the agreement and this was by 20^th August 2011. Since they were not able to do this, the Respondents first breached their covenants/warranties as to their human, financial and technical competencies at this 90-day junction.

He went on to say that it is trite learning that if a party is in clear breach of a contractual term, the innocent party is at liberty to abrogate the contract and sue for damages or waive their rights to enable the contract continue in existence. He cited the case of SSB v CBAM Services Ltd 2007-2008 SCGLR 894 where the Supreme Court per Ansah JSC said that where the innocent party shows by word or deed that he refuses to accept the breach as a discharge of the contract, the status quo ante is preserved intact and the law regards the innocent party to have repudiated his obligations of exercising the right to abrogate the contract.

To the trial judge, the Appellant induced the Respondents into believing that they had affirmed the continuation of the contractual arrangement after the Respondent’s initial breach of their contractual obligations to supply lime stone.

While agreeing with the statement of the law, regarding affirmation as distilled from SSB v CBAM Services Ltd 2007-2008 SCGLR 894, it is my opinion that this principle of law was inapplicable to the facts of this case. Because the clear terms of the Agreement was that the first 80,000 metric tons of limestone were to be supplied by the end of the first year, one cannot find that the Appellant had affirmed the breach of the obligation to supply all 80,000 metric tons, before the end of the first year of the agreement’s life. The question of waiving the right to terminate the agreement did not at all arise from the 90-day period because there was still a significant amount of time left for the Respondents to fulfill their 80,000 metric ton supply obligation by the end of the first year.

Continuing with the faulty course of fault finding with the Appellant, the trial judge said that the Appellant had ‘rather offered to bail out’ the Respondents in their difficulties with performing their side of the transaction. They did this by funding the payment of permits and licenses. The court also said that the Appellant ‘offered to purchase the mobile crusher by advancing an amount of $800,000.

Respectfully, these two statements are factually incorrect. Nowhere in the record is it reflected that it is the Appellant who offered to bail out the Respondents. It is the 2^nd Respondent, acting through the 1^st Respondent who wrote to Appellant asking for help with the permit and fees. The evidence is available in Exhibit E.

When it comes to the crusher, the purchase of the crusher was actually a term of the Agreement that the parties they were implementing. It was not an offer activated after the failure of the Respondents to honor their part of the transaction. There was no offer following the execution of the agreement regarding the crusher, but an implementation of what had been agreed as the first acts of the agreement. These alleged factual premises for the finding of affirmation or waiver of the right to terminate the agreement are against the weight of evidence and must be set aside.

Flowing from this erroneous findings in support of affirmation, the court then went on to say that by reason of the waiver of rights, the Appellants were estopped from refusing to support the Respondents through the issue of a comfort letter needed by the Respondents to raise funding for the projects.

FRUSTRATION

Indeed, the 1^st and 2^nd Respondent’s complaints regarding the refusal of the Appellant to give them the comfort letter urged the operation of the doctrine of frustration. Now it is trite learning that for frustration of a contract to be sustained, there must have been an unforeseeable, unexpected and un-contemplated event which makes it impossible or illegal to perform the contract or makes the contract radically different from the original contract originally entered into. The supervening event must be beyond the control and contemplation of the parties. This is the architecture of the doctrine, as settled in the age-old cases of Taylor v Caldwell 1863 2 All ER 309 and Davis Contractors Ltd v Fareham UDC 1956 2 All ER 145, HC.

This was not the case with the 2^nd Respondent in this case. The need for operating capital for the 2^nd

Respondent could not be an un-contemplated situation which can trigger the doctrine of frustration.

So, there was a disconnect between the law and the allegations around the comfort letter as presented by the 1^st and 2^nd Respondents in their pleadings. And the duty of the court was to identify this dis-connect and dismiss the allegation.

ESTOPPEL

The court however side stepped the wrong invocation of the doctrine of frustration and curiously introduced the doctrine of estoppel as a reason to agree with the 2^nd Respondent on their position that it was wrong for the Appellant to refuse to give the 2^nd Respondent a comfort letter to raise funds for the discharge of their part of the contract.

He went on to cite Section 26 of the Evidence Act NRCD 323 and the case of Atta & Another v Adu 1987-88 1 GLR to support his reasoning. Section 26 reads

26. Estoppel by own statement or conduct

“Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party…”

According to the court, by offering earlier support to the Respondents, the Appellant had made presentations and exhibited conduct that indicated that they were prepared to support the Respondents to execute their side of the contract. Of course, this invocation of the doctrine of estoppel is totally misplaced. The doctrine of promissory estoppel was given life in Central London Property Trust Ltd v High Trees House Ltd 1947 KB 130 by Denning J as he then was. It requires that a promisor who is being held by the doctrine, ought to have made a promise that the promisee relied on to his detriment.

In the present case, the contract did not include any bail out provisions that constituted presentation by the Appellant that it would support the Respondents financially to discharge their duty to supply the limestone. Neither had the Appellant made any presentations in any forum or in any form to the

Respondent that they would financially assist the 2^nd Respondent in the discharge of its obligations under the contract, except for the purchase of the crusher. Thus, the Appellant had given no unequivocal presentations of intention to financially support the Respondents. The assistance with payments for licenses and permits had flowed from the specific request to advance specific sums of money to the Respondents to obtain the permits and could not act as representations to take on the role of financial backer to the 2^nd Respondent. It would seem that the trial judge decided to impute an inference from the Appellant’s accession to the request to pay for the licenses and graduated this inference into the realm of the equitable doctrine.

As pointed out by Pwamang JSC in Clipper Leasing Corporation v The Attorney-General, Ghana Airways in Liquidation, Civil Appeal J4/40/2015 (judgment of the Supreme Court dated 9^th March 2016), for a representation to act as a ground for the application of the rule of promissory estoppel, the promise must be clear, unequivocal, unambiguous and unconditional. The promisor must have intended the promisee to act upon the promise and the promisee must show that he acted on it and altered his position. Because it is an equitable relief, all the circumstances of the case will be taken into account in granting relief. The finding of estoppel is reversed.

BREACH OF CONTRACT BY APPELLANT

After raising this case of estoppel, which I hold as wrong, the trial judge went further to state two holdings. The first was that the refusal of the Appellant to support the Respondents to access the loan facility was that wrongful act which occasioned the 2^nd Respondent’s inability to supply the required quantities of the limestone to Appellant. This is how the court arrived at a finding of breach of contract against the Appellant.

I have already held that all the threads leading to the finding of estoppel are wrong and I also hold that the finding of breach of contract against the Appellant is also wrong. To the extent that the Appellant carried no legal obligation and had made no presentation of intention of being the financial support of the Respondents, the finding of breach of contract through refusal to issue the comfort letter was totally unsupported by the evidence or any aspect of law – whether in contract or equity.

LETTER OF COMFORT

As pointed out in my sister’s lead judgment, the issue of a comfort letter carries it with it legal obligations and duties to the recipient of the letter as settled in Attorney General (No 2) v NDK Financial Services (No 2) 2015-2016 SCGLR 623. The Appellant could not be adjudged as carrying a legal duty to take on that role simply because it had helped pay for permits and licenses which were unrelated to a bank overdraft.

TAKE OVER CLAUSE

The next holding of the trial judge was that after encouraging the Respondents into ‘thinking that the contract was still subsisting and were willing to bail them out for the discharge of their obligations’, it was not right for the Appellant to invoke the takeover clause. He therefore held that the Appellants were not entitled to the invocation of the takeover clause.

My review of the takeover clause 5 is that the Respondents covenanted to willingly and readily hand over the management of the quarry to the Appellants if they failed to supply the named quantities in the contract. Thus, by March 2012, when it had become clear that the 2^nd Respondent did not have the financial capacity to sustain its part of the agreement, they willing and readily took steps to implement this clause with the Appellant. They did so in three unequivocal acts. They sent a statement of their investment and expenses on the quarry, cashed the cheque sent to them in payment of the sum they sent as their investment, and their lawyer wrote to the Appellant inviting it to take over the concession. See Exhibits G, J and K.

These three acts completed the take over. Thus, there was no question of whether it was right for the Appellant to invoke the takeover clause or whether the Respondents resisted the take over process. It was a process that was mutually participated in by both parties. What generated the dispute between the parties was the 2nd Respondent’s later submission of another claim after it had cashed the first cheque, thereby attempting to reopen only the issue of the already settled consideration, after completion of the take over.

It is my respectful opinion that there was no mistake in the processes that can be identified as unilateral or mutual and which could affect the creation of obligation in both parties to honor that concluded take over process. There was the intention to create legal relations from the provisions of the contract and submission of the investment costs, the presentation of consideration, and the acceptance and honoring of consideration. It was a binding process. And indeed, it was a completed process.

Thus, by turning round to prevent the implementation of that process, that is the time that the 2^ndRespondent entered into a huge breach of the contract that was being implemented in these processes.

I hold that the prevention of the Appellant from mining the quarry pursuant to the takeover process constituted breach of contract by the 2^nd Respondent for which the Appellant is entitled to damages. The court also ought to have recognized that even if the 2^nd Respondent had shown entitlement to the 3^rd May claim for the extra sum of GH¢1,829,650, (which I do not agree with), that entitlement could not act to derail the takeover process. It would only be an additional responsibility concerning the consideration paid.

The principle of substantial completion requires that when a party to a contract has fulfilled a significant part of its obligations, the other party be found to be under an obligation to allow specific performance of the obligation. Thus, even if the Respondent had proved entitlement to the GH¢1,829,650 (which I do not agree with and will explain soon), there was no mistake as to the subject matter of the contract of take over itself, and it was the duty of the court to enforce what the parties had evinced the intention to achieve. This is the doctrine of sanctity of contracts.

The court erred greatly when it put no weight on that substantial performance of the Appellant’s obligations and conducted no proper examination of the issue of whether the 2^nd Respondent was entitled to the second claim for GH¢1,829,650.

PAYMENT OF GH¢1,829,650

Was there sufficient evidence to uphold the Respondent’s claim for the extra GH¢1,829,650? I do not see so at all and this is my reason for saying this. If the records supporting exhibit G are studied, they are carefully set out in line items regarding specific works. Most of these works are the clearing of bushes, mobilizing equipment to clear bushes, borrow, pile, haul and fill roads. These are all local activities that are executed with cedi costs. There are no line items for importation of equipment or expenses in dollars. They consist of 7 pages of carefully set out figures that are carefully totaled. They are supported by several more pages of photographs showing activities in bushes. What then would be the basis for converting the final figure from these line items from cedis to dollars? My humble evaluation is that there was no proof of the basis for the second demand of a balance based on a dollar version of the investments, and the Appellant was right in ignoring it. The court ought not to have even considered that claim of GH¢1,829,650, much more award same.

What is significant about the court’s award of damages against the Appellant and in favour of the 2^ndRespondent is that while refusing to enforce the takeover process, the court gave to the 2^nd Respondent all that it would have gained from the same take over process. I agree with the upholding of grounds c, f, g, h, and i of the appeal. I agree with the setting aside of the order of GH¢1,829,650 as 2^nd Respondent’s ‘top up’ for the take over of the concession and the setting aside of the order of general damages of $7.5 million to the 2^nd Respondent.

CLAIMS OF THE 3^RD AND 4^TH DEFENDANTS

While dismissing their counter claim in general, the court awarded damages of $3.5 million and 2.4$ million respectively to the 3^rd and 4^th Respondents on account of their alleged loss of earnings and reimbursement of investment. And the court arrived at this award of damages against the Appellant for the breach of contract that we have reversed. The court found the Appellant wrong in not involving the 3^rd and 4^th Defendants when it paid money to the 2^nd Respondent through the 1^st Respondent and awarded damages against it for doing so. But the same court did not find the 1^st and 2^nd Respondents wrong for keeping the money from their partners. And the same court recognized that by the clause 16(1) of the agreement that the parties operated, the 3^rd and 4^th Respondents were sufficiently notified of any activity if the Appellant dealt with the 2^nd Respondent through the 1^st Respondent. This was a typical case of ‘heads you win, tails I lose’ where the Appellant was concerned. The finding of breach of contract against the Appellant which was behind the award of damages to the 3^rd and 4^th Respondents is perverse, has been set aside and the awards in favour of the 3^rd and 4^th Respondents are also set aside. I agree with all orders settled by my senior sister as well as recovery of possession of the Crusher for the Appellant.

I agree with my senior sister that after setting aside the judgment and upholding the appeal, we grant monetary reliefs to the Appellant. I agree to the reliefs as settled in the lead judgment.

(sgd.)

GERTRUDE TORKORNOO (MRS.)

[JUSTICE OF APPEAL]

WEST AFRICA QUARRY LIMITED vs GODFRED SUMMABE & 3 ORS

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA - A.D 2018

WEST AFRICA QUARRY LIMITED - (Plaintiff/Appellant)

GODFRED SUMMABE & 3 ORS. - (Defendants/Respondents)

DATE: 24TH MAY, 2018

SUIT NO: H1/6/2018

JUDGES: MARIAMA OWUSU J.A. (PRESIDING), DENNIS ADJEI J. A., GERTRUDE TORKORNOO J. A.

LAWYERS: KWAME ADEBOR WITH ABIGAIL TETTEH FOR PLAINTIFF/APPELLANT KWESI BLAY FOR 1ST & 2ND DEFENDANTS/RESPONDENTS DAVID BONDORIN FOR 4TH DEFENDANT/RESPONDENT MR. SAMUEL Q. ANSAH FOR 3RD DEFENDANT/RESPONDENT

JUDGMENT

IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018

LAWYERS: KWAME ADEBOR WITH ABIGAIL TETTEH FOR PLAINTIFF/APPELLANT
KWESI BLAY FOR 1ST & 2ND DEFENDANTS/RESPONDENTS
DAVID BONDORIN FOR 4TH DEFENDANT/RESPONDENT
MR. SAMUEL Q. ANSAH FOR 3RD DEFENDANT/RESPONDENT