IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
GREAT CAPE COMPANY LTD - (Plaintiff)
ATTORNEY-GENERAL & MINISTER FOR JUSTICE AND MINISTRY OF FINANCE - (Defendant)
DATE: 21ST OCTOBER, 2016
SUIT NO: BPC/11/2015
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
PLAINTIFF’S ATTORNEY, DR. NAT TANOH
ANDREW DANIELS, ESQ. FOR PLAINTIFF
GRACE OPPONG, MS, PSA FOR DEFENDANTS
Plaintiff, a company registered under the laws of Switzerland and acting through its lawful attorney, Dr. Nat Tanoh on the 15/05/15 issued a writ out of the Registry of the court seeking the following reliefs:
a. A declaration that following from the admission of liability by the Attorney General for and behalf of the Government of Ghana on 18th April, 2001 and again on the 8th July, 2014, the Plaintiff is entitled to an amount of US$1,117,818.45 (One Million, One Hundred and Seventeen Thousand, Eight Hundred and Eighteen US Dollars and Forty Five Cents) as damages for breach of contract and also pursuant to S. 18(1) of the Limitations Act, 1972 (NRCD 54).
b. A further declaration that the defendants are estopped from in anyway denying the liability of the Government of Ghana in the terms as set out in relief (a) above.
c. Interest on (a) until date of final payment.
d. Costs and such further order(s) as the honourable court may deem fit.
Plaintiff provides the basis of his claim to the reliefs he seeks in a twenty three paragraph statement of claim that accompanied the issuance of the writ.
Plaintiff avers that it entered into a contract dated 9th May 1978 with the Ghana National Procurement Agency (GNPA) for the supply of 200,000 tonnes of cement clinker to GNPA. And that under the SMC
Government, GNPA wrongly abrogated the contract on the 23rd November 1978 after rejecting a third shipment from the Plaintiff.
Plaintiff further states that in 1981 a Committee of Enquiry appointed by the Government of Ghana established the liability of GNPA and that after negotiation between the parties the Plaintiff agreed to accept $400,000.00 in full and final settlement of the GNPA’s indebtedness to the Plaintiff on condition that payment will be made promptly.
It is Plaintiff’s case that the 2nd Defendant failed to make the payments as agreed, and that in 1987 the
Solicitor General acting for the 1st Defendant agreed that an interest of 8.5% per annum compound interest would accrue on the amount of $400,000.00.
Plaintiff then proceeds to states that in 1998, the then Minister of Finance acting on the advice of the then Attorney General paid the amount of $927,000.00 to the Plaintiff.
In February 2001 the Plaintiff petitioned the 1st Defendant for payment to it of a balance of the amount due on the ground that there had been a miscalculation of the amounts of interests that had accrued on the debt at the time the 2nd Defendant made its part payment in 1998.
It is the Plaintiff’s case that even though the 1st Defendant in a letter dated the 18th April 2001 agreed through its then Attorney General, Nana Addo Dankwa Akuffo Addo and directed the 2nd Defendant to pay an outstanding debt of $1,117,818.45, the 2nd defendant has failed to make such payment.
Plaintiff says that despite several requests to the 1st and 2nd Defendants to make good their indebtedness to the Plaintiff, the Defendants have failed to make the payment but are now denying the liability of the Government of Ghana to the Plaintiff.
It is therefore the Plaintiff’s case that since the 1st and 2nd Defendants had never denied the
Government of Ghana’s liability and the Plaintiff has at all material times relied on the 1st and 2nd Defendants’ promise to pay the settlement the Defendants are estopped from now denying their liability to the Plaintiff.
Defendants have denied the material averments that form the basis of the claim of the Plaintiff. Defendants deny having wrongly abrogated the contract. Defendants say that the Government abrogated the contract because the contract was entered into without following the due procedure and without knowledge and concurrence of the GNPA Board. According to the Defendants the interest rate of 8.5% agreed to be paid on the $400,000.00 was at a simple interest rate and was to accrue for a period of six years, that is 1981 to 1987.
Defendants in their statement of defence claim that the letter of the 1st Defendant dated the 23rd October 1998 stated that the amount of $927,000.00 paid to the Plaintiff was in full and final settlement of the debt. And that it was after three whole years after the Plaintiff had been paid in full that it petitioned the then Government claiming a miscalculation of the amount of interest. That the then
Attorney-General unaware of the full facts of the negotiated settlement directed the 2nd Defendant to make further payments to the Plaintiff.
Defendants claim that whereas they have never denied their liability they have in good faith and in reliance on the negotiated settlement between the Government of Ghana and the Plaintiff paid promptly in 1998 all the amounts agreed on to the Plaintiff. And that if they did not make any payment in 1987, it was due mainly to the fact that after the settlement, plaintiff decided to take the matter to an international arbitral forum which delayed the payment and defendants cannot be held liable for a delay emanating from Plaintiff’s own conduct. Defendants accordingly contends, therefore, that Plaintiff is not entitled to any of its reliefs.
ISSUES FOR TRIAL
At the close of pleadings, the matter was referred for Pre-Trial Conference. The settlement having broken down, the following issues were set down for trial:
1. Whether or not the Government of Ghana through the Attorney-General (i.e the 1st
Defendant) admitted its liability towards the Plaintiff on the 18th April, 2001 and also 8th July, 2014.
2. Whether or not the Plaintiff is entitled to the payment of $1,117,818.45 for the breach of contract by the Government of Ghana and also pursuant to section 18(1) of the Limitation Act 1972, (N.R.C.D 54), together with interest at the prevailing bank rate until the date of final payment.
3. Whether or not the Defendants from their conduct are stopped from denying the liability of the Government of Ghana towards the Plaintiff.
Additional issues filed were subsequently filed by the Attorney General when the trial was about to commence in this court and they were:
Whether or not the Government of Ghana erred in abrogating the contract between the Plaintiff company and the Ghana National Procurement Agency (GNPA)
Whether or not the Plaintiff could have sold the cement rejected by the Government on its arrival at the Tema Harbour to mitigate its losses.
Whether or not the Government of Ghana agreed to pay $400,000.00 in full and final settlement of the matter in 1981.
Whether or not at a negotiated settlement of the matter in 1987 the Plaintiff company and the Government of Ghana agreed that an interest rate of 8.5% on the amount of $400,000.00 would be paid in full and final settlement of the claim.
Whether or not it was always understood by the Plaintiff that the interest rate of 8.5% would be simple interest and whether it was stated at the negotiation that the interest rate to be applied would be compound interest.
Whether or not the letter dated 23rd October 1998 by the then Minister of Finance, stated in paragraph 7 that the amount of $927,000.00 paid to the Plaintiff was in full and final settlement of the claim.
Whether or not the $927,000.00 paid to the Plaintiff company was a unilateral decision of the Defendants and based on an erroneous calculation
Whether or not the Plaintiff acted prudently when it waited for three years after it had been paid an amount in full and final settlement of its claim before petitioning the Attorney- General claiming a miscalculation of interest.
Whether or not the 1st Defendant was aware of the full facts of the negotiated settlement which had occurred between his predecessor and the Plaintiff company, when he instructed the 2nd Defendant to make further payments to the Plaintiff company.
Whether or not the letter date 3rd October 2011 in which the previous Attorney- General stated that he only had a vague recollection of the matter amounted to fully admitting the import of a letter claimed by the Plaintiffs to have been written by him in their favour.
Whether or not the Government of Ghana has made good its indebtedness to the Plaintiff company based on the full terms of the negotiated settlement.
EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW
The filing of eleven additional issues by the Attorney General after the pre-trial Judge, Asiedu J. together with counsel for the parties on both sides have agreed on three issues for determination; was superfluous. Indeed issues 1and 2 of the additional issues do not arise at all for determination from the nature of the pleadings and evidence adduced before the court.
It is not the province of this court now to resurrect a dead issue as to the propriety of the abrogation of the contract between GNPA and the plaintiff in 1978 and the necessity for the plaintiff to have mitigated his losses by selling the cement as it is implicit in the first two additional issues. That bridge has long been crossed and it served no useful purpose for the learned Chief State Attorney, Helen A. Ziwu to have introduced them as an issue for determination. The court will keep clear of those additional issues and focus on the germane issues to avoid distractions and keep the arena of conflict between the parties free from waffle and gabble.
Be that as it may, the rest of the nine additional issues or so can conveniently be subsumed under any of the three main issues for determination and that is how the court intends to approach the resolution of the matters in controversy.
But first some few guiding rules on burden of proof assumed by the parties in this suit as that would be very critical in resolving the issues between the parties. It is a settled principle of evidence that a party making a claim bears both the burden of producing evidence and burden of persuasion, the two being components of the burden of proof. The burden of persuasion is defined in section 10 of the Evidence Act, NRCD 323 to mean:
“For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of tribunal of fact or the court
(2) the burden of persuasion may require a party
(a) to raise a reasonable doubt concerning the existence of a fact or
(b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or proof beyond reasonable doubt”
The burden of producing evidence on the other hand is defined in section 11 as follows:
“(1)For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.
(4) In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of a fact was more probable than its non-existence”.
Per section 14 of the Decree, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting whiles section 17 governs the allocation of the burden of producing evidence. It notes that the burden of producing evidence of a particular fact is on the party against whom a finding on the fact would be required in the absence of further proof and that the burden of producing evidence is initially on the party with the burden of persuasion as to the fact.
The Supreme Court had earlier reiterated this principle in the case of ABABIO v AKWASI III [1994-95] GBR 774 where the court noted as follows:
“a party whose pleadings raised an issue essential to the success of his case assumed the burden of proving such issue. The burden only shifted to the defendant when the plaintiff has adduced evidence to establish the claim”
The plaintiff having made a number of allegations and praying for remedies, how did he go about discharging its obligations under the law? As factually, the plaintiff has the burden to prove and demonstrate that the government was truly and justly indebted to it in the sum of $US1,117,818.45.
Plaintiff testified through its lawful attorney, Dr. Nat Tanoh in line with its pleadings and tendered a number of Exhibits from Ex ‘A’ to ‘W’ in an attempt to prove its claim. Pertinent among the writings or evidence tendered by the plaintiff’s attorney were Ex ‘D’, a letter from the Attorney General, Marietta Brew Appiah Oppong to the Ministry of Finance advising against any payment to Great Cape. Plaintiff contrast this writing with that of Ex ‘H’ from the same Attorney General where she had earlier advised that the Ministry of Finance pay plaintiff an outstanding amount of $1,117,818.45.
Again Ex ‘M’ being a letter purportedly authored in 2001 by then Attorney General, Nana Akuffo Addo, requesting the Ministry of Finance to pay the plaintiff an amount of $1,117,818 is relied on heavily by the plaintiff. The substance and the probative weight to accord to the critical exhibits relied on by the parties would soon be made bare by the court.
Defendants, on the other hand testified through three persons, namely, Nabeela Wahab, a State Attorney, Douglas Kumasi of GNPA and Major (Rtd.) M. S. Tara, Chief Director at the Ministry of Finance. Witness statement was filed on behalf of one Naab Kunbuor of Ministry of Finance but as same did not avail himself for cross examination, his witness statement in the discretion of the court was expunged from the record in reliance on section 62 of the Evidence Act, NRCD 323. The defendants also relied on virtually the exhibits tendered by the plaintiff and it was solely to avoid the danger of duplicitous evidence that the court did not allow an exhibit that was already in evidence to be further tendered by the defendants. Besides, exhibits 1 to 6 were tendered and admitted on behalf of the defendants.
So did the plaintiff who bears the burden of proof discharge them during the trial of this action?
It is not in dispute that a contract for the supply of cement clinker was entered into between GNPA and the plaintiff in 1978 for the supply of 200,000 tons of cement clinker and same was abrogated by the government. And it is not in dispute that a negotiated settlement was reached for the payment of an amount of $US 400.000 in 1981 and that this amount was not paid till 1998 where the amount had accumulated interest to the tune of $US 944.000 on an interest of 8.5% per annum les $17.000.
What is in dispute is whether the amount of $US927.000.00 paid to the plaintiff constituted a final discharge of the government of Ghana’s obligation to the plaintiff in respect of the contract or there still remained, as plaintiff contends, an outstanding amount of US1,117,818.45 to be paid to it.
From the records and the evidence at the trial I find two main grounds which plaintiff posit for its claim and which the court must deal with to determine the propriety of the claim of the plaintiff.
The first is the claim by the plaintiff that the amount of $US400.000 which was agreed to be due to plaintiff in 1981 and which was not paid promptly was to attract from 1981 to the date of payment a compound interest rate of 8.5% per annum and not a simple interest rate as the learned Attorney General seems to imply in Ex ‘D’. Plaintiff’s attorney makes this fundamental claim in paragraph 4 of his witness statement that interest on the amount of $400.000 was to accrue 8.5% per annum compound interest to the date of payment. And that the payment of $US927.000 made in 1998 was only part payment of the then amount together with the accumulated compound interest rate standing at $US2,044,818.45.
Learned Principal State Attorney confronted the plaintiff’s attorney on his claim of the application of a compound interest rate to the monies that was paid by the government in the following exchanges:
Q. In paragraph 4 of your witness statement you have stated that the Solicitor General in 1987 agreed that the interest on the sum of $400.000 due to the plaintiff accrued at 8.5% per annum of compound interest. Is that correct.
A: Yes My Lord.
Q. Where in the document does it say the interest is compounded.
A. It just say in paragraph 4 of interest of 8.5% per annum
Q. Does it say compound interest?
A. Not specifically.
Q. I suggest to you that defendants never agreed to pay to you the compound interest of 8.5% on the sum of $400.000
A: I am not of that view.
Q: So you still claim that defendants agreed to pay you compound interest?
A. That compound interest claim will be clearer as proceedings go on. I believed that.
Q. It is not your belief but what it is stated.
A. Yes as I have stated”.
I do not find the claim of the plaintiff for the application of a compound interest rate from the exhibits. Plaintiff’s Attorney was unable to point out from the exhibit when asked to do so and shifted the goal post that the compound interest was to be made clearer in the course of proceedings in the court. If anything at all there was no clarity that the interest rate of 8.5% agreed to by the parties was to be compounded.
Interest payment is a matter of agreement between parties as it is a policy of the law to give effect to what parties have agreed to in an agreement. Where parties agrees to a compound interest rate to apply to a transaction that is what a court of law will give meaning to. However, in the absence of an express agreement that a transaction was to be governed by a compound interest, the presumption of the law is in favour of a simple interest rate. This is clearly captured in Rule 1 of the Courts (Award of Interest and Post Judgment Interest) Rules, 2005 (C.I 52) which reads as follows:
“If the court in a civil cause or matter decides to make an order for the payment of a sum of money due to a party in an action, that interest shall be calculated
at the bank rate prevailing at the time the order is made
at simple interest
but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner”.
The reason why compound interest is not presumed to govern transactions unless it is clear is simple. That compound interest is the calculation of the agreed interest rate on the principal plus accumulated interest. Interest paid on accrued interest plus the principal amount cannot be exacted unless the contract stated so.
Plaintiff having failed abysmally to prove to the court that the agreement for the payment of the compensation was to be governed by a compound interest rate, I find and hold that the agreement for the payment of compensation was governed by the payment of a simple interest rate and not compound interest rate as plaintiff wanted the court to believe and I so find and rule accordingly.
My position is buttressed by Justice S. A. Brobbey in his work “Practice and Procedure in the Trial Courts and Tribunals of Ghana” that where a party fails to lead evidence to demonstrate an agreement for the payment of a compound interest his claim must fail. See DIAB v QUANSAH  1 GLR 101.
In the address filed on behalf of the plaintiff, learned counsel for the plaintiff seems to assume that the application of compound interest rate was what was agreed without pointing out in a single exhibit tendered in court as to how plaintiff arrived at this compound interest rate. That may only be the invention of the plaintiff but not anything borne out of the record at the trial.
This then leads me to the second main ground of contention of the plaintiff for his demand for the payment of an amount of $US1,117,818.45 as an outstanding monies owed it by the government of Ghana. Plaintiff claim that defendants have made admissions of the government’s continuing liability to the plaintiff and further claim that defendants have admitted of as a miscalculation of the interest component of the monies to be paid. As part of the attempt to prove its claim, plaintiff rely on Ex ‘M’ and ‘H’ as evidence of that admission of liability by the government and claim that the defendants per their conduct had made it to believe that plaintiff was entitled to the amount of $1,117.818.45 and the court should not allow the defendants to make a volte face on their open admission of liability.
This he does by supporting it with section 26 of the Evidence Act, NRCD 323, the doctrine of estoppel by one’s own conduct that had made another person to believe a state of affairs to be true. Ex ‘M’ even though admitted into evidence needs a careful scrutiny. It is a letter purportedly authored in April, 2001 by the then Attorney General, Nana Akuffo Addo, wherein he notes that based upon a petition by the plaintiff company that there had been a miscalculation of the interest component of the compensation, and recommended further payment of $1,117,818.45. It is worth noting that the basis of miscalculation that plaintiff relies on is that a compound interest had not been used by the government which I have demonstrated that position of the plaintiff to be untenable and not in accord with the law. And it was based on the claim of plaintiff that compound interest rate ought to have been applied to his compensation, that necessitated Nana Addo to write Ex ‘M’.
Ex ‘M’ deserves more attention and scrutiny in one or two respects. All the exhibits and correspondence emanating from the Attorney-General and Ministry of Justice office is on its letter head. All the correspondence emanating from the Ministry of Finance is on the letter head of the Ministry of Finance. The only exception is Ex ‘M’ claimed to have been authored by the then Attorney General. How come such an important exhibit is not on the letter head of the Ministry of Justice and yet is claimed by plaintiff to have been written and signed by Nana Akuffo Addo at a time he was the Attorney General.
Plaintiff attempts an answer by producing Ex ‘P’ where Nana Akuffo Addo states that he has a vague recollection of the transaction but confirm the signature on Ex ‘M’ as his signature. Ex ‘P’ written in 2011 when Nana Akuffo Addo was not in public office is rather on the letter head of the ‘Office of Nana Akuffo Addo’ whiles Ex ‘M’ when Nana Addo was in public office is not on any letter head. Defendants per Ex ‘2’ had serious questions with Ex ‘M’ and had recommended that the letter be sent for forensic examination for a determination of the authenticity of the signature.
Ex ‘M’ though in evidence, it has always been the rule that admission of a writing is one thing and its weight is another. In the face of such a crucial document not being on a letter head, and in the face of Ex ‘2’, the defendants were simply raising an issue regarding the authenticity of Ex ‘M’. One of the best way to have resolved this was for the plaintiff to have invited the alleged author of Ex ‘M’ to be in court to testify as to the authorship of Ex ‘M’ and answer why such a formal letter, not being an internal memo, but a letter to the Ministry of Finance, was not on a letter head; but not merely to tender Ex ‘P’. Ex ‘P’ only attest to the signature but does not answer why Nana Addo did not write the said Ex ‘M’ on the letter head of the Ministry of Justice. There seems to be a substantial question regarding the genuiness and authenticity of Ex ‘M’. It contravenes the best evidence rule enunciated by Lord Hendricks in ONYCHUND v BARKER  1 AIK 21. The reasons why this letter was not a letter head had not been explained and the alleged author was the best person to have explained. Besides not to talk of it being only a photocopy that was produced.
A court is always imbued with the power and discretion to exclude a document that has wrongly been admitted into evidence if at the time of writing the judgment it is the opinion of the court that a particular document should not have been admitted into evidence. And authenticity is a precondition precedent to admissibility of a writing. See section 136 of the Evidence Act, NRCD 323. See also the case of JUXON-SMITH v KLM DUTCH AIRLINES [2005-2006] SCGLR 438; where the Supreme Court affirmed the decision of the Court of Appeal to exclude four vital documents admitted by the trial Judge as the precondition necessary for their admissibility had been violated, thus sinning against section 136 of NRCD 323.
Rather than rule that Ex ‘M’ was wrongly admitted and exclude same, I restrain myself from taking that path. Instead, I would place scant probative value or weight on Ex ‘M’ due to the questions regarding its authenticity that I have raised supra.
Again, Ex ‘H’ where the Attorney General, Marietta Brew Appiah Oppong recommended further payment deserves some comment. Ex ‘H’ was heavily reliant on Ex ‘M’ that Nana Akuffo Addo had recommended further payment and also another letter authored by Dr. Obed Asamoah, Ex ‘W’ that government admitted its continuing liability to the Plaintiff. The authenticity of Ex ‘M’ has been ruled by the court not to have been established leading the court to place no weight on Ex ‘M’. Therefore the basis upon which Marietta Brew Appiah Oppong, the Attorney General came to the conclusion in Ex ‘H’ cannot be correct. In fact, there is nowhere in any of the documents authored by Dr. Obed Asamoah, especially Ex ‘W’ that plaintiff alludes to; that Dr. Obed Asamoah admitted of any continuing liability of the government to the plaintiff after payment of $927.000.00. For in Ex ‘F’ Kwame Pepra, the then Finance Minister in making payment of an amount of $927.000 stated in emphatic terms at paragraph 7 that:
‘I have, therefore, considered and approved the amount of US$927.000 [i.e US$944.000 less $17.000 (the equivalent of 11.000 pounds) as recommended by the Hon Attorney General, for payment to Great Cape Company in full and final settlement of the claim’.
Dr. Obed Asamoah’s letter that Plaintiff had claimed and still insist is one of the Attorney General’s admission of liability is Ex ‘W’. Dr. Obed Asamoah concludes that letter in the following:
“As a result of the long delay, the interest on the principal sum has accumulated over the period (1981-1997) to approximately US$544.000.00. This together with the principal sum of US$400.000.00 comes up to US$944.000.00 out of which the legal costs incurred by GNPA can be deducted. I therefore invite you to accept liability for the sum of US$944.000.00 for GNPA and approve payment of the said sum”.
Where in this letter, whether express or implied did Dr. Obed Asamoah admit that there was a continuing liability of the government after the payment of the sum stated in that letter for plaintiff to demand further payments. The contrary is rather evinced by the reading of Ex ‘W’. What more it destroy the foundation of the claim of plaintiff’s attorney that interest on the payment made to its principal was only calculated up to 1987.
Indeed, the Attorney General subsequently realized her error and rectified same in Ex ‘D’ when she advised against any further payments to the plaintiff. Learned counsel for plaintiff, Andrew Daniels, Esq contend that the letter of Ex ‘M’ constitutes a “contract and claim that an acknowledgement of a debt binds the person making it and the successors of that ..”.
With profound respect, I have demonstrated that Ex ‘M’ which I have strained not to exclude, was based on information that the interest paid to plaintiff should have been compound interest, which in actual fact was not true. A contract can be vitiated by a number of factors including mistake.
Besides the above, plaintiff claim that the decision to pay the US$927.000.00 was a unilateral decision on the part of the government and not as a result of any negotiated settlement of the indebtedness of the 1st defendant. Plaintiff’s attorney makes this assertion as part of the contents of paragraph 6 of his witness statement. Learned Principal State Attorney confronted Dr. Tanoh regarding this claim of a unilateral payment made by the government of Ghana in the following:
Q. Are you aware that in 1998, the director of Plaintiff’s company wrote to 2nd defendant proposing a settlement of 1.3 million dollars.
A: Yes I am aware. I was at the meeting
Q. And that was rejected by the 2nd defendant
A. Yes, unilaterally
Q. I suggest to you that the debt owed plaintiff had never been two million dollars
A. The facts do not support this contention
Q. I further suggest to you that that the payment of US$927.000.00 was not unilateral
A: Not correct
Q. I further suggest to you that it was in response to the proposal for 1.3 million US dollars by the director of Plaintiff’s company.
A: Not correct. It was unilateral.
Ex ‘V’ emanating from Florence Tchaptchet, a director of plaintiff company on 18th June, 1998 pleading with the Ministry of Finance to review upwards a settlement amount of US650.000 reached with plaintiff through one Charles Fordwoh, which the plaintiff director noted, his appointment as an Attorney had been revoked. The author then proposed a settlement of US$1.3 million and noted that:
“Our proposal is for a settlement at 1.3 million US dollars in full and final satisfaction of all matters between us. We believe that this is extremely reasonable and hope that this is acceptable to you”.
A letter of 23rd October, 1998 from Hon Kwame Peprah, then Minister for Finance settled it all as seen in Ex ‘F’. It makes reference to the negotiated settlement reached with Charles Fordwoh and how a director of plaintiff arrived in Ghana to notify them that Fordwoh’s appointment had been revoked and plaintiff had claimed the value of losses to be over US$2.000.000 but eventually putting in a proposal for an amount of US$1.3 million. Eventually the entitlements of plaintiff was reached to be US$927.000.00.
If in 1998, as per Exhibits ‘V’ the plaintiff itself was claiming US$1.3 million and only had US$927.000 how could plaintiff again turn round and claim that it should have been paid US$2,044,818.45 and based on this falsehood bombard subsequent Attorney Generals with letters and petitions to make more payments to it. If the Attorney – General, Hon. Marietta Brew Appiah Oppong had written Ex ‘H’ and plaintiff insist she should be bound by it, the plaintiff ought to realize that statements to the effect that Dr. Obed Asamoah had admitted continuous liability which was made to her, which in fact was not and is not true or correct, the learned Attorney General would not have written Ex ‘H’ as she did. And the attempt of plaintiff to invoke and rely on estoppel by one’s own conduct under section 26 of the NRCD 323 must fail.
Curious enough, the amount plaintiff claim against the government seems to be shooting up all the time. Ex ‘A’ being the power of attorney granted Dr. Nat Tanoh to put in claim, the amount that plaintiff claim is owed it is not US1,117,818.45 but rather $4,123,320.42 the question is why did plaintiff not claim that amount of $4,123,320.42 as stated in Ex ‘A’ but rather US$1,117.818.45 or was plaintiff just waiting after payment of the $1,117,818.45 and then come back to claim more making the liability of the government of Ghana proceed ad infinitum, which appears to be to be a clear strategy that plaintiff has adopted to milk the state.
The evidence of Nabeela Wahab and more especially DW2, Major (Rtd) M. S. Tara threw more light on the state of affairs of the payments made to plaintiff and how it represented final settlement to them. Indeed as Dw1 and Dw3 insists that if plaintiff had been truthful and made all the correspondence available and not be selective in the kind of documents it provided the Attorney General, the advice given in Ex ‘H’ would not have been given. And again, if even my finding on the lack of authenticity of Ex ‘M’ is wrong and assuming that the said Ex ‘M’ is genuine, the same conclusion holds that if the plaintiff had been candid to supply all the necessary documents for Nana Akuffo Addo to have apprise himself the conclusion would not have been a proposal for further payments. Plaintiff cannot be made by the court to benefit from his own wrong doing.
Throughout the cross examination of Plaintiff’s Attorney, he failed to impress the court. He was evasive with the questions posed by the State Attorney and prevaricated in a number of times in answering simple questions. For instance he was evasive in answering how he claimed his lawyer lost plaintiff’s documents and salvaged some later from GNPA and some from other sources. When pressed he could not tell which of the documents were from GNPA and those from other areas. He failed to state when asked which other sources he was referring to. He could not show any document that backed his claim to compound interest and failed to demonstrate the bases of a claim to US$2,044,818,46. In fact he was extremely economical with the truth and I find the material aspects of his witness as demonstrated supra by the findings made to be extremely unreliable.
Taking inspiration from the words of Ollenu J. A. (as he then was) in the case of KYIAFE v WONO  GLR 463 that:
‘It must be observed that the question of impressiveness or convincingness are products of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses”
The matters he testified to as the basis of his entitlement to a further claim is not borne out by the evidence on record.
On the whole, the plaintiff who bore the burden of proof at the end of the trial, his claim remained unproved and unpersuasive. His claim could not hold water. Whiles the evidence of the defendants showed how plaintiff had attempted to hoodwink them to make a further payment.
In conclusion, Plaintiff’s claim is dismissed in its entirety. I will exercise my discretion and award cost of Ghc50.000.00 in favour of the defendants.