IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
WALTERGATES (GH) LTD - (Plaintiff)
THE INSPECTOR GENERAL OF POLICE AND THE ATTORNEY-GENERAL - (Defendants)
DATE: 28 TH JUNE 2018
SUIT NO: CM/0342/16
JUDGES: JENNIFER DODOO (MRS) JUSTICE OF THE HIGH COURT
GODWIN TAMEKLO FOR PLAINTIFF
JULIANA ADDO-YOBO, SENIOR STATE ATTORNEY FOR DEFENDANTS
In a writ issued out of the Registry of this court on 16th May 2016, the Plaintiff claimed against the Defendants the following reliefs:
a. A Declaration that the decision by the 1st Defendant to withdraw from the Agreement is a breach of contract and wrongful.
b. An order that the contract be specifically performed.
c. Damages of GH¢13,967,000.00 for breach of contract.
d. Special Damages of GH¢25 million for the expenses incurred in printing the scratch cards.
e. Cost including legal cost.
f. And any other orders that this court may deem fit.
It was the Plaintiff’s case as set out in its pleadings and in its witness statement that sometime in 2011, the 1st Defendant engaged its services to assist it move from the manual recruitment of personnel to a technology based method of recruitment. After a series of negotiations, the parties entered into a Memorandum of Understanding on 13th June 2012 where the Plaintiff was represented by its Chief Operating Officer and the 1st Defendant signed on behalf of the Ghana Police Service.
The Plaintiff averred that on 19th October 2012, the parties went a step further by signing a Public-Private Partnership Agreement (PPA) where the Plaintiff was to provide the 1st Defendant with the online recruitment services in accordance with the terms and conditions stated in the agreement. The Plaintiff stated that its obligations under the PPA were to create the online e-recruitment platform/portal, develop, finance, operate, maintain and co-manage the online recruitment portal. It therefore began to discharge its obligations by creating the e-recruitment platform and secured funding from its investors to pre-finance the logistical and administrative cost of the project.
The Plaintiff stated further that the 1st Defendant’s obligations were to nominate Information Technology and Human Resource personnel to be trained for the purposes of implementing and co-managing the e-recruitment system created pursuant to the PPA.
According to the Plaintiff, the parties had agreed that all net revenue generated from the e-recruitment system was to be shared in the ration of 60:40 to the 1st Defendant and to the Plaintiff respectively. However, after it had fulfilled its part of the bargain, the 1st Defendant unilaterally withdrew from the PPA by a letter dated 9th April 2014. It therefore instituted suit for the reliefs claimed above.
The Defendants in their defence and in their witness statement contended that after the signing of the MOU and the PPA, these were forwarded to the Attorney-General’s Office which raised certain queries which included the following:
1. That the Police Service ought to have obtained approval from the Ministry of Finance through the Ministry of Interior before entering into a Public-Private Partnership Agreement.
2. That the agreement was unacceptable and had to be redrafted by team comprising representatives of the Attorney-General’s Department, Ministries of Interior, Finance and the Ghana Police Service.
3. That the agreement did not state how the services procured would be funded or the party who would bear the financial responsibilities.
4. The agreement though contained provisions on how the revenue would be shared did not provide a payment schedule.
5. That the conditions for effecting/validating the contract had not been complied with.
They therefore contended that the Agreement was incapable of being acted upon as terms precedent for its validity had not been complied with. In its Reply, the Plaintiff submitted that the agreement authorized it to finance the project and did not make it obligatory for it to inform the 1st Defendant about the source of its finance. Being unable to resolve its differences at the pre-trial mediation conference, the following issues were forwarded to this court for trial:
1) Whether or not there was a binding legal agreement between the Plaintiff and the 1st Defendant Service?
2) Whether or not the 1st Defendant breached the said agreement for online recruitment?
3) Whether or not the Plaintiff is entitled to the reliefs endorsed on the writ?
The fact that the parties entered into an agreement to modernize the process of recruitment into the Ghana Police Service from the current process of manual recruitment to a modern IT based one is not in dispute. As the Plaintiff stated in paragraphs 5 and 6 of its witness statement:
5. Plaintiff was contracted by an Agreement dated 19th October 2012 to provide online recruitment for the Ghana Police Service represented by the Inspector General of Police ….
6. Plaintiff says that in the year 2011, Ghana Police Service engaged our services to assist it to move the process of recruitment of its personnel from the manual process, which had associated with it logistical and administrative bottlenecks, to a technology-based process in order to avert the problems militating the recruitment process of the Ghana Police Service.
This has been corroborated by the Defendants in their witness statement at paragraphs 4, 5 and 6 when they state:
4. The Ghana Police Service in its bid to move away from the manual processes of recruitment into the service and their attendant logistics and administrative hurdles, entered into a Memorandum of Understanding (MOU) with Waltergates Ghana Ltd effective 13th day of June 2012.
5. The objective of the MOU was to enable Waltergates Ghana Ltd to develop an online recruitment process for the recruitment of personnel into the Ghana Police Service.
6. In furtherance of the MOU, Waltergates made a presentation on the operationalization and working of the e-recruitment processes to the Police Administration at the Police Headquarters.
However, it came to pass that the MOU and Agreement signed in June and October 2012 respectively were both referred to the Attorney-General’s Office for advice on 24th January 2014. On 25th February 2014, the Attorney -General forwarded the advice to the Defendant. The contents shall be reproduced for its full import.
REQUEST FOR ADVICE
AGREEMENT BETWEEN THE GHANA POLICE SERVICE AND WALTERGATES (GH) LTD
We refer to your letter No. HQ/LGL.ART/V.38 dated 24th January 2014 in respect of the above-subject, which was addressed to the Minister of Interior and copied to the Attorney-General.
Having read the executed Agreement submitted to this office, we wish to inform you as follows:
1. Generally the Agreement is unacceptable and has to be redrafted by a team comprising representatives from the Attorney-General’s Department, Ministry of Interior, Ghana Police Service and the Ministry of Finance.
2. The Ghana Police Service, through the Ministry of Interior ought to have obtained approval from the Ministry of Finance before entering into a Public Private Partnership agreement.
3. It appears the Ghana Police Service procured the services of Waltergates Ghana Limited (Company) and entered into the agreement with them through an unsolicited proposal submitted by the Company. Please refer to paragraph ‘iv’ of the recitals of the Agreement.
4. The Agreement did not state how the services procured will be funded or the Party who will bear the financial responsibilities.
5. The Agreement contains provisions on how revenue would be shared by the Parties, but did not provide a payment schedule
6. The appointment of a Banker should be renegotiated, because it is the opinion of this Office that, the Ghana Police Service should appoint the Banker for the venture, since the fee for the PIN codes will be determined by the Police.
7. Some terminologies in the Agreement ought to have been defined. The interpretation of the said terms in future by the Parties may result in disagreement. For instance what constitutes ‘net revenue’ is not known or has not been defined in the Agreement. A term such as ‘contract value’ in paragraph 5.5 is also a key terminology that ought to have been defined, as well as the terms ‘fundamental breach’, and ‘warranty period’ etc.
8. The phrase ‘governed for’ in the recitals should read ‘governed by’.
9. The entire paragraph, 5.0 especially 5.5 (‘Effectiveness and Validity of Contract’) is vague. The conditions to be fulfilled to enable the Agreement come into effect is not clear.
10. The words ‘Agreement’ and ‘Contract’ have been used interchangeably in the Agreement. Agreements of this nature requires uniformity in the use of terms, words and expressions.
11. The words ‘might determine’ in paragraph 8.1 should read ‘may terminate’.
12. The last sentence of paragraph 8.2 is meaningless.
13. Paragraph 8.4 is also vague.
14. The Agreement does not contain provisions on Dispute Resolution, Termination etc.
15. The provisions on Confidential Information is not adequate for such an agreement, because prospective Applicants will be giving out personal information that will be fed into the computer database of both the Police and the Company and therefore ought to be secured and kept very well.
It is the prayer of this Office that the Agreement is withdrawn and same properly drafted before it is finally executed for implementation.
The Plaintiff in its address has urged the court to find for it on all the issues. It has argued in reference to Black’s Law Dictionary 9th edition (2004) that an agreement is “a mutual understanding between … parties about their relative rights and duties”. The Plaintiff in reference to Black’s Law dictionary has also defined a contract as “an agreement between … parties creating obligations that are enforceable”.
The Defendants have also referred to Black’s Law Dictionary 8th edition’s definition of contract which includes “conditional contract” as “an agreement that is enforceable only if another agreement is performed or if another particular prerequisite or condition is satisfied”. They argue that the agreement between the parties has not been concluded as it is a conditional contract. They have made reference to the Legal Reference Book 2nd Edition by Derick Adu-Gyamfi at p. 325 where the learned author points out “to be a good contract, there must be a concluded bargain, and a concluded contract is one which settles everything that is necessary to be settled and leaves nothing to be settled by agreement between the parties.”
In spite of the Attorney-General’s misgivings, the judicial task is to determine whether or not there was a binding legal agreement between the Plaintiff and the 1st Defendant Service?
According to Cheshire & Fifoot’s, Law of Contract 11th edition at p. 27, an agreement is said to be not a mental state, but an act and as an act is a matter of inference from conduct. The parties are to be judged by not what is in their minds but what they have written, said or done. For as Chief Justice Brian proclaimed “the devil himself knows not the intent of a man.” What have the parties said and done in relation to the transactions between them?
The burden of proof was initially on the Plaintiff to lead evidence that would entitle it to judgment. See Section 17(2) of the Evidence Act, 1975 NRCD 323. This burden continues to shift depending on the nature of evidence adduced by the parties and their witnesses. Thereafter, it was up to the Defendants to lead evidence in proof of their contention that there was no valid contract between the parties as alleged. In Re Ashalley Botwe Lands: Adjetey Agbosu & Others v. Ebenezer Nikoi Kotey & Others (2003/2004) 1 SCGLR 420 @ 444 the court held as follows:
It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case is not fixed but shifts from party to party at various stages of the trial depending on the issue(s) asserted or denied.
In Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the court held:
It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.
See also Section 12(1) of the Evidence Act which provides as follows:
Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.
Preponderance of the probabilities’ means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.
The Plaintiff therefore assumed the burden of proof to establish that it had entered into what could be described as contractual relations with the 1st Defendant. What is the evidence that it has led to establish this? Was there a valid contract between the parties? In NTHC v. Yaa Antwi (2009) SCGLR 117, Date-Bah JSC defined a valid offer and acceptance in the following words:
Basically, an offer is an indication by words or by conduct by an offeror that he or she is prepared to be bound by a contract in the terms expressed in the offer, if the offeree communicates to the offeror his or her acceptance of these terms. Accordingly, the offer has to be definite and final and must not leave significant terms open for negotiation. By significant, we here mean terms that are essential to the bargain contemplated. It is important to emphasize the proposition that the mere acceptance of an offer is sufficient to turn the offer into a contract, if there is consideration for it, together with an intention to create legal relations.
As usual recourse would be had to the evidence before the court to make a determination.
See also the case of Reardon Smith Line Ltd v. Hansen Tangen (1976) 1 WLR 989 where Lord Wilberforce stated:
“When one speaks of the intention of the parties to the contract one speaks objectively – the parties cannot themselves give direct evidence of what their intention was – and what must be ascertained is what is to be taken as the intention which reasonable people would have had if placed in the situation of the parties.”
The Court finds that the parties entered into 2 agreements. There was a Memorandum of Understanding dated 13th June 2012 tendered in evidence as Exhibit B by the Plaintiff and Exhibit 1 by the Defendants. Clauses 2.0 (i), 4.0 and 5.0 of Exhibit B or 1 are very illuminating. These state as follows
2.0: NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
(i) That this Memorandum of Understanding is sequel or supplemental to the signing of a formal contract between the parties.
4.0: EFFECTIVE DATE OF THE MOU
This MOU shall become effective and operational on the date which all the following events have been satisfied, such date being the effective date;
i. The signing of the formal contract between the parties.
ii. Both parties have appended their signatures to this MOU.
iii. The Partner has obtained the necessary facility to pre-finance the project.
iv. A letter that a formal contract has been duly approved by the Police Administration.
5.0: AMENDMENT AND SUPPLEMENT
i. THIS MOU shall only be amended or supplemented by mutual consent between the parties in a written form. Such annexure, amendments or supplements when executed in accordance with this clause shall form part of this MOU.
There are progressive steps which the parties have agreed for themselves. These range from the signing of a formal contract, appending of signatures, obtaining of a facility to pre-finance the project to the issuance of a letter stating that a formal contract had been duly approved by the Police Administration. Thereafter, the parties proceeded to execute Exhibit A tendered by the Plaintiff and which is the same document as Exhibit 2 tendered by the Defendants. This is dated 19th October 2012.
Section 2.0 states: NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
i. That this Contract is in addition to and combination with the Memorandum of Understanding (MOU) signed by the 2 parties on 13th June 2012.
Section 5.0 is captioned EFFECTIVENESS AND VALIDITY OF CONTRACT and provides as follows:
5.1This Contract shall come into force and have effect after the date of the last event stipulated below has been fulfilled.
5.2 Both parties have signed this formal contract and exchange same accordingly.
5.3 The Partner has obtained the necessary financial facility to pre-finance the project.
5.4 A letter that a formal contract has been duly approved by the Police Administration is issued to the Partner.
5.5 The contract shall be effectual/effective upon the attainment/achievement of the above-mentioned conditions and shall remain in force or be valid until the whole contract value has been received by both parties.
Section 6 deals with Amendments and Supplements and provides in 6.1 thus:
This contract shall only be amended or supplemented by mutual consent between the parties in a written form. Such annexure, amendments, or supplements when executed in accordance with this clause shall form part of this contract.
The court has observed that parties had made it a condition that the contract was only to come into force when the last item in Section 5 had been complied with. The last event listed is for 1st Defendant to issue a letter confirming that a formal contract had been duly approved by the Police Administration.
Furthermore, in cross-examination of the Plaintiff’s representative on 19th March 2018, the following information was elicited:
Q: have a look at your Exhibit B, Clause 9.0 it states to the effects that any notice or accordance with the MOU shall be in communication from one party to the other in writing. Is that correct?
A: Yes. My Lord
Q: Have a look at Clause 3.0 of Exhibit B of the same MOU, it is to the effect that the Police Service agreed to provide office accommodation to serve as the data centre. Is that correct?
A: Yes My Lord.
Q: Did the Police Service give you an office accommodation?
A: No. My Lord.
Q: Have a look at Exhibit B, Clause 4.0, the MOU indicates that there were certain events that were to be satisfied before the MOU could be effective and operational. Not so?
A: Yes. My Lord.
Q: Do you have that letter?
A: No My Lord.
Moreover, in the Defendant’s Witness Statement at paragraphs 13 and 14, the following assertions were made:
13. That indeed the Agreement was still subject to contract because the conditions precedent that must be satisfied to make the contract binding had not been met by Waltergates. That the said Agreement was not executed because the conditions precedent as stipulated under clauses 5.0 through to 5.5 had not been met and therefore the contract had not been given effect and neither was it valid.
14. That under the said Clause 5.0, the clause 5.1 states that ‘this Contract shall come into force and have effect after the date of the last event stipulated below has been fulfilled.” Thus the contract cannot be executed unless the last event stipulated under paragraph 5.0 has been fulfilled.
In Madina Shopping Mall Association v. Rosehill (Ghana) Ltd (2012) 39 MLRG 81, the trial court had relied on Okai v. Ocansey (1992/93) GBR 1047 in holding that the parties were not ad idem on the nature and transaction they had embarked on. This was because while the Plaintiffs maintained they had entered into an outright purchase of stores from the Defendants, the latter asserted that the transactions so entered were leases for a fixed term. The Supreme Court per Atuguba JSC stated that where an essential element of a contract had not been agreed upon by the parties to that contract, there was no valid contract. The court relied on May & Butcher v. R (1934) 2 KB 17 per Viscount Dunedin when he stated:
To be a good contract, there must be a concluded bargain and a concluded contract is one which settles everything that is necessary to be settled and leaves nothing to be settled by agreement between the parties.
See also British Bank for Foreign Trade v. Novinex Ltd (1949) 1 KB 623 per Cohen LJ where he said:
The principle to be deduced from the cases is that if there is an essential term which has yet to be agreed and there is no express provision for its solution, the result in point of law is that there is no binding contract.
The court therefore finds that the parties did not enter an ordinary contract where one would only find the features familiar to many a student of contract law namely an offer, an acceptance, intention to create legal relations and consideration. They entered into a conditional contract where the contract would come into effect when a letter that a formal contract had been duly approved by the Police Administration had been issued to the Plaintiff. In the absence of any such letter, the Plaintiff has failed to prove that the condition precedent to the contract taking effect had been met. It would appear that soon after executing the Exhibit A, the Plaintiff sought to discharge its obligations under the Agreement without waiting for the formal letter from the 1st Defendant’s Administration.
In Poku v. Ghana Commercial Bank (1989/90) 2 GLR 37 @39 the court had this to say:
Parties to a contract would not be permitted to avoid the contract unless there were valid or lawful reasons to do so. It is not the duty of courts to make contracts for parties. And where the terms of the contract had been reduced into writing, the court would interpret them to give effect to the intentions of the parties.
If the parties had bound themselves to wait until the last condition had been satisfied to make the contract valid, then neither party was at liberty to take any steps under the contract until all the conditions precedent had been met. In the case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another  2 SCLR 845 the court held at p. 867 that:
“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”
The Plaintiff has not been able to prove that the agreement it had entered into had come into being in accordance with the terms the parties had signed up to. As a result, the issue of whether or not the 1st Defendant breached the said agreement for online recruitment has become moot leaving the court with the outstanding issue of:
Whether or not the Plaintiff is entitled to the reliefs endorsed on the writ?
On 8th April, 2014, the 1st Defendant caused Exhibit C to be written to the Plaintiff. It is captioned RE: AGREEMENT BETWEEN THE GHANA POLICE AND WALTERGATES (GH) LTD. The contents are as follows:
This letter has reference to the agreement executed between Waltergate (Gh) Ltd and the Ghana Police Service on 19th October 2012. The agreement was referred to the Attorney-General, the Government Legal Advisor for study and advice. After a careful study of the document, the Honourable Attorney-General has advised that the agreement should be withdrawn. We are therefore informing you that the agreement should be treated as withdrawn…..
The Plaintiff has prayed the court for a Declaration that the decision by the 1st Defendant to withdraw from the Agreement is a breach of contract and wrongful. The court has already found that the parties had entered into a conditional contract. The conditions precedent to the validity of the contract, had not all been fulfilled. The first condition had been fulfilled by both parties in signing and exchanging the formal contract. There was no evidence of the fulfillment of the second condition which required the Plaintiff to show that it had obtained the necessary financial facility to pre-finance the project. Then finally and most importantly, there was no evidence that a letter had been issued by the 1st Defendant to the Plaintiff indicating that the formal contract had been duly approved. The Plaintiff is therefore not entitled to the declaration it seeks.
The Plaintiff has also sued for an order that the contract be specifically performed. In Koglex Ltd v. Field (1998/99) SCGLR 451, the majority decision was to the effect that the doctrine of part performance could not avail a Plaintiff unless he could establish a contract certain and definite in its terms between the parties. The court held further that no amount of what would otherwise be part performance would render certain a contract which was void for uncertainty or make it an agreement which was not an agreement at all (such as an agreement “subject to contract”). The court also speaking through Atuguba JSC had this to say at pp 471-472:
But the crucial matter to consider is not whether the terms of the agreement were settled but rather when these terms were intended to have contractual effect.
In this court’s view, the agreement was meant to have contractual effect when the letter had been issued by the 1st Defendant to the Plaintiff advising it that the formal contract had been approved. In view of that the court refuses to grant the relief of specific performance. The Plaintiff has put in a claim for damages of GH¢13,967,000.00 for breach of contract. On the question of damages for breach of contract, the classical case in this regard is Hadley v. Baxendale (1854) 9 Ex. 341.
The facts of this case were that Hadley, a miller engaged Baxendale, a carrier to take a broken shaft to the manufactures to make him a new one. The Defendant delayed in delivering the shaft. The Plaintiff therefore sued the Defendant for loss of profit whilst the mill lay idle. The court dismissed the claim on the ground that there could have been a spare shaft. The fact that there was no spare shaft was neither in the contemplation nor in the actual knowledge of the Defendant nor would a reasonable man, under the circumstances, have known that there was no spare shaft. As the court stated:
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as should be fairly and reasonably be considered as either arising naturally, i.e. according to the usual course of things, from such breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as a probable result of the breach of it.”
The operative words here are “where two parties have made a contract which one of them has broken”. The court has not found evidence of a definite and concluded contract between the parties. As such, there could not be a breach of a non-existent contract and damages would not arise.
The Plaintiff has also claimed Special Damages of GH¢25 million for the expenses incurred in printing the scratch cards. Exhibit D is a Commercial Invoice for 200,000 scratch cards. The total cost on the invoice excluding freight is $300,000.00. A sample of the scratch cards has been tendered in evidence as Exhibit E. Exhibit E has the Ghana Police Service logo as well as the Ghana Coat of Arms on it. It also has the instructions for users of the scratch card. The Plaintiff in its witness statement at paragraph 26 deposed as follows:
26. That the Plaintiff expended $300,000.00 to print 200,000 scratch cards which were subsequently taken by the Ghana Police Service personnel.
The fact that these cards eventually found their way into Ghana and into the custody of the 1st Defendant is evidenced in Exhibit K which is the Police Report on E-Recruitment onto Ghana Police Service Fraud. The Brief Facts in Exhibit K state:
On August 20, 2013, an Extract of occurrence together with suspect Solomon Kwesi Andoh and twenty five boxes of E-Recruitment Scratch Cards were received from Regional CID, Kumasi/Ashanti Region for investigation. Suspect Solomon Kwesi Andoh is the Chief Operation Officer (COO) at Walter Gates Ghana Ltd. On June 13, 2013, Walter Gate Ghana Ltd represented by suspect Solomon Kwesi Andoh signed a Memorandum of Understanding with Ghana Police Administration which was represented by the Inspector General of Police (IGP) Mr. Paul Tawiah Quaye and Director Legal, Assistant Commissioner of Police, Mr. Ken Yeboah under which Walter Gate Ghana Ltd was required to develop an E-recruitment portal to assist Ghana Police Service in its future recruitment exercises. On October 19, 2012 Walter Gate and Ghana Police Administration agreed to share any cash proceeds from the recruitment exercise in the ration 40:60 respectively. Suspect and his company imported 2000,000 pieces of e-scratch cards from China as agreed with Police Administration. There is no evidence that suspect Solomon Kwesi Andoh and Walter Gate Ghana Ltd have sold any scratch card to any member of the public or have defrauded anybody as alleged.
RESULT OF POLICE ACTION: No offence was detected against suspect …. Case docket is to be closed accordingly.
Exhibit K shows that 25 boxes of e-recruitment scratch cards were received by the police during the course of investigations into the matter of alleged fraud against the Plaintiff. Although the case docket was closed, there was no mention of the cards having been returned to the Plaintiff. The Defendant in its evidence did not also categorically say that the cards had been returned to the Plaintiff. In Re: Ashalley Botwe Lands; Adjetey Agbosu and Others v. Kotey and Others (2003-2004) SCGLR 420 @ 464-465, the Court speaking through Brobbey JSC had this to say:
The effect of Sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is the Defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if a court has to make a determination of a factor of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause by adducing before the court such facts or evidence that will induce the determination to be made in his favour
What would be the implications of the cards still remaining in the 1st Defendant’s custody? The 1st Defendant has in holding onto the cards has kept them. It is inferred that it would put the cards which has its logo and pictures of its personnel to use sometime in the not too distant future. In the case of Nyame v. Tarzan Transport (1973) 1 GLR 8 CA, the court held:
“There is a distinction between pure conjecture and reasonable inference. A conjecture may be plausible but it is of no legal value for its essence is that it is a mere guess. An inference in the legal sense on the other hand, is a deduction from the evidence and if it is a reasonable deduction, it may have the validity of legal proof. The attribution is always a matter of inference.”
See also Section 18(2) of the Evidence Act, 1975 NRCD 323 which states:
“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.”
In Skanska v. Klimatechnik Engineering Ltd (2003/2004) SCGLR 698@ 715-716 the court held as follows:
The law in this area draws two clear distinctions. There are two grounds for fixing the value of that quantum meruit: (a) reasonable remuneration fixed by the court; and (b) quantum meruit assessed at the contract rate. Where one party starts to perform the contract but is prevented from completing it by the other party’s breach, he can claim quantum meruit at the contract rate…..
Where there is no concluded contract, then the court must assess reasonable remuneration having regard to all the circumstances. An example is where one party does work at the request of another during negotiations which are expected to lead to a contract but are broken off and no contract results.
In the instant case, the deliberations and agreements signed were expected to lead to a contract. However the 1st Defendant pulled out of the agreement. The Plaintiff had procured scratch cards in furtherance of the agreement. These scratch cards are in 1st Defendant’s possession. They must be paid for since they are not in the Plaintiff’s custody. The Plaintiff has sued for an amount of GH¢25 million. In the case of Yamusah v. Mahama & Another, (1991) GLR 551, it was held that special damages were based on facts within the peculiar knowledge of the Plaintiff, so he must first plead them and then go on to prove them strictly in court and that these must not be too remote. In the case of Andreas Bschor GMBH & Co v. B. W. C. Ltd (2008) 4 GMJ 203 the court quoting from Stroms Bruks Aktie Bolag v. Hutchinson (1905) AC 515 @ 525-526 per Lord Macnaghten had this to say:
“Special Damages are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character and therefore, they must be claimed specially and proved strictly.”
See also Tema Oil Refinery v. African Automobile Ltd (2011) 2 SCGLR 907 @ 931 where the court quoting with approval Attorney General v. Faroe Atlantic Co Ltd (2005/2006) SCGLR 271 @290 stated:
‘Special Damages, on the other hand, are such a loss as the law will presume to be the consequence of the Defendant’s act, but depend at least, on the special circumstances of the case. They must therefore be explicitly claimed on the pleadings….”
Exhibit D puts the price of these cards as $300,000.00. It did not put the price at GH¢25 million. The Court will therefore order the 1st Defendant to pay for the cost of the scratch cards as reasonable remuneration. This is an amount of $300,000.00 or its cedi equivalent together with interest at the current bank rate from 20th August 2013 when the cards came into 1st Defendant’s custody until date of final payment.
In Fibrosa Spolka Akeying v. Fairburn Lawson Combe Barbar Ltd (1943) AC 32 the court held:
It is clear that any civilized system of law is bound to provide remedies from cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which is against conscience that he should keep. Such remedies in English Law are generally different from remedies in contract or tort and are now recognized to fall within a second category of the Common Law which has been called quasi-contract or restitution. The principle of unjust enrichment requires:
1. That the Defendant has been enriched by the receipt of a benefit.
2. That this enrichment is at the expense of the Claimant.
3. That the retention of the enrichment be unjust.
The 1st Defendant is therefore not entitled to keep the cards and yet fail to pay for them.
The 1st Defendant should never have entered into the Agreements with the Plaintiff in the first instance. As a state institution, it ought to have known that it could not enter Public-Private Agreements as if it was autonomous and with its own budget. The
Plaintiff is equally to blame for not waiting for the letter of approval from 1st Defendant as stipulated in both agreements before embarking unilaterally to perform its obligations under same. Aside of the money expended on the printing of the cards, the Plaintiff is not entitled to the rest of its claims which are hereby refused. Each party is to bear its own costs.
JENNIFER A. DODOO
JUSTICE OF THE HIGH COURT