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Agreement - Lease - Aircraft -
Official Liquidation - Section2
(2) of
the Bodies Corporate (Official
Liquidation) Act, 1963 (Act.
180).
HEADNOTES
The
Plaintiff/Appellant/Appellant,
hereinafter referred to as ‘the
Appellant’, brought an action in
the Commercial Division of the
High Court, Accra against the
Defendants/Respondents/Respondents,
hereinafter referred to as ‘the
Respondents’, in respect of
claims it had against Ghana
Airways Ltd, hereinafter
referred to as ‘the 2nd defendant’.
The Appellant is an aircraft
leasing company registered in
Antigua and by an agreement it
leased a DC-10-30 aircraft to
the 2nd defendant for
a period of 36 months on a dry
lease basis. At the end of the
lease period Appellant had some
outstanding claims against 2nd,
by the terms of the aircraft
lease, the monthly rent stated
in the agreement to be paid by 2nd defendant
continued to accrue since 2nd defendant
failed to pay Appellant’s claims
and did not return the aircraft.
Appellant therefore filed a suit
in the High Court, England, it
being the national airline. the
appellant, informing them of the
intention of the Government of
Ghana to assume the
liabilities,the Government of
Ghana, acting by the Minister of
Finance and Economic Planning,
resolved to place the 2nd defendant
into official liquidation under
Section2 (2) of the Bodies
Corporate (Official Liquidation)
Act, 1963 (Act. 180).
Appellant, through its lawyer in
Ghana, attended some meetings
with the liquidator at which he
requested for the return of the
aircraft but did not get a
satisfactory answer, Appellant
did not see any prospects of a
satisfactory settlement of its
claims by the liquidator so it
sought and obtained leave of the
High Court of Ghana, pursuant to
Section 17 of Act 180, and filed
a writ of summons. The 1st defendant
filed a defence and denied being
liable to pay Appellant’s
claims. 2nd defendant
also filed a defence denying
Appellant’s claims and
counterclaimed for various sums
of money it contended it was
entitled to from the Appellant.
2nd defendant pleaded
that plaintiff had sold out the
aircraft while it was parked in
Rome so it had no locus
standi to bring the action
HELD
Without
further evidence in respect of
this issue we cannot conclude
that the destruction of the
aircraft was authorized by the
Government of Ghana. For the
reasons explained above we
dismiss Ground G of the Appeal.
In conclusion, save for the
entry of judgment for Appellant
against 2nd defendant
in the sum of US$9,100,000.00
plus interest at the prevailing
bank rate of interest of the
United States Dollar in New York
from 28th May, 2004
to date of this judgment, the
appeal is dismissed. For the
avoidance of doubt, the judgment
by the High Court in favour of
Appellant to recover in
liquidated damages
US$27,000.000.00 against the
liquidator of Ghana Airways
still stands and is not affected
by this judgment.
STATUTES REFERRED TO IN JUDGMENT
Bodies Corporate (Official
Liquidation) Act, 1963 (Act.
180)
Evidence Act 1975 (NRCD 323)
High Court (Civil Procedure)
Rules, 2004 (CI 47).
Courts (Award of Interest and
Post Judgment Interest) Rules,
2005 (C.I.52)
Companies Code, 1963 (Act 179)
CASES REFERRED TO IN JUDGMENT
ACHORO AND ANOR V.
AKANFELA [1996-97] SCGLR 209;
KOGLEX LTD (NO.2)
V. FIELD [2000] SCGLR 175;
ADU V. AHAMAH
[2007-2008]SCGLR 143;
GREGORY V. TANDOH &
HANSON [2010] SCGLR 971,
ASIBEY V GBOMITTAH
& COMMANDER OSEI [2012] 2 SCGLR
800
ACQUIE V. TIJANI
[2012] SCGLR 1252.
Ackah v Pergah
Transport Ltd [2010] SCGLR 728
AKUFFO-ADDO V. CATHELINE
[1992] 1 GLR 377,SC.
Delmas Agency Ghana Ltd vrs Food
Distributors International Ltd
[2007-2008] SCGLR 748
Ghana Ports and Harbours
Authority v Issoufou [1993-94] 1
GLR 24. SC.
Takoradi Floor Mills V
Samir Faris [2005-2006] SCGLR
882; Zambrama V Segbedzi
[1991]2GLR 231.
Royal Dutch
Airlines ( KLM ) v Farmex Ltd
(No.2) [1989-90] 2 GLR 682
Norwegian American Cruise
A/S (formerly Norwegian American
Lines A/S) v Paul Mundy Ltd (the
Visafjord) [1988] 2 Lloyds Rep
343 C.A.
Chartbrook Ltd v Persimmon
Homes Ltd [2009] UKHL 38.
Law v Bouverie (1891) 3 Ch
82)
Central London Property
Trust Ltd V High Trees House Ltd
[1947] KB 130,
Hughes v.
Metropolitan Ry. Co. (7) (1877)
(2 App. Cas. 439),
Birmingham &
District Land Co. v. London &
North Western Ry. Co. (8) (1888)
(40 Ch.D. 268),
Salisbury v.
Gilmore (9) ([1942] 1 All E.R.
457
Combe V Combe[1951]
2KB 215, Walton Stores
(Intestate) ltd v Maher (1988)
164 CLR 387
Quist V George
[1974] 1 GLR 1
Alan v El Nasr [1972] 2
WLR 800.
Woodhouse A.C. Israel
Cocoa Ltd v Nigerian Product
Marketing Co Ltd [1972] A.C.
741;
D & C Builders v Rees
[1966] 2WLR 28 and Guimeli v
Guimeli (1999) 196 CLR 387
.
Osei v Ghanaian Australian
Goldfields Ltd [2003-2004] SCGLR
69.
ATTORNEY-GENERAL V FAROE
ATLANTIC CO LTD [2005-2006]
SCGLR 27
YEBEREH V. CFAO [1966] GLR 357
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG,
JSC.
COUNSEL
ESINE OKUDJETO ESQ. WITH HER
NAA AMORKOR AMARTEIFIO, ROSEMARY
OWUSU AND JUSMINE BABA FOR THE
PLAINTIFF /APPELLANT
/APPELLANT.
CECIL ADADEVOR (PSA) FOR THE 1ST
DEFENDANT/RESPONDENT
/RESPONDENT.
J U D G M E N T
---------------------------------------------------------------------------------------------------------------------
PWAMANG, JSC.
This is an appeal against the
unanimous decision of the Court
of Appeal dated 10th
May, 2012 dismissing a Cross
Appeal against the judgment of
the High Court, Accra delivered
on 5th February,
2009.
The
Plaintiff/Appellant/Appellant,
hereinafter referred to as ‘the
Appellant’, brought an action in
the Commercial Division of the
High Court, Accra against the
Defendants/ Respondents/
Respondents, hereinafter
referred to as ‘the
Respondents’, in respect of
claims it had against Ghana
Airways Ltd, hereinafter
referred to as ‘the 2nd
defendant’. The Appellant is an
aircraft leasing company
registered in Antigua and by an
agreement dated 7th
March 1997 it leased a DC-10-30
aircraft to the 2nd
defendant for a period of 36
months on a dry lease basis.
At the end of the lease period
Appellant had some outstanding
claims against 2nd
defendant in respect of rent,
maintenance reserves and engine
repairs it carried out on behalf
of 2nd defendant. In
the meantime, by the terms of
the aircraft lease, the monthly
rent stated in the agreement to
be paid by 2nd
defendant continued to accrue
since 2nd defendant
failed to pay Appellant’s claims
and did not return the aircraft.
Appellant therefore filed a suit
in the High Court, England,
against the 2nd
defendant on 28th May, 2004
claiming among other reliefs,
payments of outstanding rent,
maintenance reserves and damages
for breach of contract.
At that time, in addition to
Appellant, 2nd
defendant was indebted to many
other businesses for non-payment
of various bills all totaling
over US$160 million and was
struggling to operate. The
Government of Ghana, as the sole
shareholder decided to intervene
to try and salvage the 2nd
defendant, it being the national
airline. Consequently, the
Minister for Transport wrote a
letter, dated 24th
September 2004 to creditors of
the 2nd defendant,
including Appellant, informing
them of the intention of the
Government of Ghana to assume
the liabilities of 2nd
defendant incurred as at 31st
August 2004. The letter
indicated that Appellant would
be contacted by a debt committee
the government had established
and charged with the negotiation
of claims against 2nd defendant.
Appellant was subsequently
contacted and sent a
representative to Ghana who met
with the debt committee and held
some discussions with them.
According to Appellant, it
suspended the suit in the United
Kingdom on account of the letter
from the Minister of Transport
but nothing conclusive was ever
agreed upon with the debt
committee.
On 22nd June, 2005
the Government of Ghana, acting
by the Minister of Finance and
Economic Planning, resolved to
place the 2nd
defendant into official
liquidation under Section2
(2) of the Bodies
Corporate (Official Liquidation)
Act, 1963 (Act. 180). The
official liquidator, who is the
Registrar-General of Ghana,
published a notice to all
creditors of 2nd
defendant requesting them to
submit to the liquidator proof
of their debts. Appellant
responded to the notice by
filing its proof of debt on 25th
August 2005 claiming an amount
of US$ 35,021,488.00 as
outstanding rent and maintenance
reserves for the lease of its
aircraft for the period ending
20th August 2003,
including claims on engine
pooling account.
Thereafter Appellant, through
its lawyer in Ghana, attended
some meetings with the
liquidator at which he requested
for the return of the aircraft
but did not get a satisfactory
answer. According to Appellant
it learnt, much later, that the
aircraft was scrapped in Rome by
the Italian authorities for
reasons relating to the
inability of 2nd
defendant to pay taxes levied on
the aircraft. Appellant did not
see any prospects of a
satisfactory settlement of its
claims by the liquidator so it
sought and obtained leave of the
High Court of Ghana, pursuant to
Section 17 of Act 180,
and filed a writ of summons on
13th July 2006
claiming the following reliefs:
a.
Recovery of the sum of
thirty-five million and
twenty-one thousand, four
hundred and eighty-eight dollars
(US$35,021,488) being
outstanding rent for the lease
of the McDonnell Douglas
DC-10-30 series Aircraft and
replacement engines.
b.
Interest on the sum of
thirty-five million and
twenty-one thousand, four
hundred and eighty thousand
dollars ($35,021,488) from 20th
June 2001 to the date of final
payment.
c.
Return of the aircraft,
McDonnell Douglas DC-10-30
Series Aircraft with
Manufacturer’s Serial Number
46554 and Registration Number
GH-PHN and the replacement
engines fixed on them by the
plaintiff in accordance with the
conditions of return under
section 9 of the lease agreement
or in the alternative, the
cost of the aircraft and
engines.
d.
Damages for breach of
contract by the 4th
Defendant.
e.
Costs.
Appellant sought relief against
the 1st defendant on the grounds
that the Government of Ghana
promised to assume the
liabilities of 2nd
defendant which it relied on so
the government is liable to pay
Appellant its claims.
The 1st defendant
filed a defence and denied being
liable to pay Appellant’s
claims. 2nd defendant
also filed a defence denying
Appellant’s claims and
counterclaimed for various sums
of money it contended it was
entitled to from the Appellant.
2nd defendant pleaded
that plaintiff had sold out the
aircraft while it was parked in
Rome so it had no locus
standi to bring the action.
JUDGEMENT OF THE HIGH COURT
The High Court in its judgment
held that Appellant had capacity
to institute the action and also
upheld the claim of Appellant
for the value of the aircraft
which was set at
US$27,000,000.00 as provided in
the lease Agreement. She
however dismissed Appellant’s
claim for rent as unproven by
the evidence adduced before the
court. She further dismissed
Appellant’s claim that the
Government of Ghana be held
liable to pay its claims on the
ground that the principle of
estoppels Appellant raised
against the government was not
applicable on the facts of the
case. She dismissed the 2nd
defendant’s counterclaim and
held that Appellant was not
liable under the lease Agreement
for the obligations 2nd
defendant sought to hold against
it.
APPEAL TO THE COURT OF APPEAL
The 2nd defendant
filed a Notice of Appeal in the
Court of Appeal against the
judgment of the High Court and
stated four grounds of appeal
but did not pursue its appeal.
Appellant also filed an appeal
to the Court of Appeal and they
pursued it and that is the
appeal that was determined by
the Court of Appeal resulting in
this appeal to the Supreme
Court. The Appellant stated only
two grounds of appeal in its
Notice of Appeal in the Court of
Appeal. These were as follows;
“a). The Learned Trial Judge
misdirected herself and
occasioned a grave miscarriage
of justice when she came to the
conclusion that the plaintiff
had failed to lead evidence in
support of his claim for
outstanding rent.
b). The Learned trial
Judge misdirected herself on the
principles applicable to
promissory estoppel when she
held that the promise to the
plaintiff was conditional and
that the steps to be taken had
not been completed at the time
of the liquidation of the 2nd
defendant company and as such
the promise could not be
fulfilled.”
The Court of Appeal in its
judgment affirmed the finding of
the High Court that Appellant
had failed to prove its claim
for rent of US$ 35,921,488.00.
It further upheld the decision
of the High Court on the
principle of promissory
estoppels and dismissed
Appellant’s appeal in its
entirety.
APPEAL TO THE SUPREME COURT
Being aggrieved by the judgment
of the Court of Appeal,
Appellant has further appealed
to this court. Appellant set out
six grounds of appeal in the
original Notice of Appeal and
then filed and argued one
Additional Ground of Appeal with
the leave of this court. The
original grounds of appeal are
as follows;
a)
That the Learned Court of
Appeal Justices misdirected
themselves when they failed to
award the Appellant his claim
for rent even though the
Defendant/ Respondent/
Respondent’s witness
acknowledged that rent was due
to the Plaintiff/Appellant.
b)
The Learned Court of
Appeal Justices misdirected
themselves on the principles
applicable to promissory
estoppel when they held that the
letters written by the Minister
for Finance was not a firm
irreversible commitment to
negotiate and pay the moneys due
the plaintiff.
c)
That the learned Justices
failed to apply the equitable
doctrine of fairness when the
evidence clearly states that the
very Government which made the
promise to the Appellant to
settle Ghana Airways debts
turned round to liquidate the
Airline before paying the debt
thus leaving the Appellant in a
lurch in the enforcement of the
Judgment Debt.
d)
The learned Court of
Appeal judges misdirected
themselves and occasioned a
grave miscarriage of justice
when they held that the
Plaintiff had not suffered any
detriment upon its reliance on
the Government of Ghana’s
promise to settle Ghana Airways
debts with its debtors.
e)
The learned Court of
Appeal Judges erred and
misdirected themselves when they
applied the rules relating to
proof of special damages to the
claim for outstanding rental
charges endorsed on the
Plaintiff’s Writ.
f)
That the Learned Court of
Appeal Judges erred and
misdirected themselves upon the
failure of the 2nd
Defendant/Appellant to pursue
their appeal to grant the
Plaintiff/Cross Appellant the
opportunity to lift the
corporate veil as the 2nd
Defendant/Appellant has been
liquidated.
g)
Further grounds of appeal
would be filed upon receipt of
the Records of Proceedings.
Despite the fact that Appellant
set out six original Grounds of
Appeal they cover the two main
grounds that were filed in the
Court of Appeal. We intend to
start with Ground A and after
that deal with Ground E. We
shall then tackle Grounds B, C,
and D together. Ground F was not
argued by plaintiff. The
Additional Ground shall be
considered separately.
PRINCIPLES APPLICABLE TO APPEALS
AGAINST CONCURRENT FINDINGS
It is well-settled that where a
second appellate court is called
upon to reverse concurrent
findings and conclusions on
evidence by two lower courts,
the second appellate court has
to be slow in coming to a
decision to reverse those
findings and conclusions.
However, the rule does not bar
the second appellate court from
reversing concurrent findings
and conclusions where there are
sufficient grounds to do so. The
grounds upon which a second
appellate court may reverse
concurrent findings and
conclusions have been stated in
a number of cases decided by
this court including the
following; ACHORO AND ANOR V.
AKANFELA [1996-97] SCGLR 209;
KOGLEX LTD (NO.2) V. FIELD
[2000] SCGLR 175; ADU V. AHAMAH
[2007-2008]SCGLR 143; GREGORY V.
TANDOH & HANSON [2010] SCGLR
971, ASIBEY V GBOMITTAH &
COMMANDER OSEI [2012] 2 SCGLR
800 and ACQUIE V. TIJANI [2012]
SCGLR 1252. These cases lay
down the following as grounds
upon which a second appellate
court may interfere and set
aside concurrent findings by two
lower courts;
(i)
Where the said
findings are not supported by
the evidence on record or where
the reasons in support of the
findings are unsatisfactory.
(ii)
Where the findings
are based on a wrong proposition
of law or a principle of
evidence such that if that wrong
proposition is corrected the
findings will cease to exist.
(iii)
Where the findings are
inconsistent with a crucial
document or other undisputed
evidence on the record.
(iv)
Where the findings
are otherwise substantially or
seriously perverse and
unjustified so as to occasion a
grave miscarriage of justice.
An appeal is by way of rehearing
and where particularly an
appellant is challenging
findings and conclusions which
are based on evidence led at the
trial, the appellate court is
required to review the whole
record and come to its own
conclusions on the evidence and
the law. See Ackah v Pergah
Transport Ltd [2010] SCGLR 728.
In the case of ACQUIE V.
TIJANI [2012] SCGLR 1252, Anin
Yeboah JSC. delivering the
unanimous judgment of this court
stated as follows at page 1257
of the report;
“This court is the second
appellate court before which
this ground has been canvassed
to invite it to reverse the
findings of facts made by the
trial court and affirmed by the
first appellate court, i.e. the
court of Appeal. It has been
said several times that, in
civil appeals the Supreme Court,
as a second appellate court,
should be slow in reversing
findings of fact made by the
trial court which had been
concurred in by the court of
Appeal. The onus thus
lies on the defendant in the
instant case to demonstrate
clearly that the findings were
perverse and unjustified.”
(emphasis mine).
GROUND A
In a bid to discharge the onus
on them in this case where there
have been concurrent findings by
the High Court and the Court of
Appeal, the Appellant has argued
in its statement of case under
Ground A of the Grounds of
Appeal that the 3rd
witness of the 2nd
defendant (hereinafter referred
to as DW3) acknowledged that 2nd
defendant owed plaintiff the sum
of US$3,941,821.00. Appellant
stated that the evidence of DW3
amounted to an admission that
Appellant was entitled to that
amount from 2nd
defendant so the courts below
ought not to have required any
further proof of that part of
its claim. Appellant has based
this submission on the witness’s
testimony on oath and exhibits
“28”, “29” and “35” tendered by
the witness. Appellant concluded
on Ground A that it is entitled
to recover the sum of
US$3,941,821.00 as admitted.
The Respondent in their
statement of case quoted from
the judgments of the High Court
and the Court of Appeal to the
effect that Appellant did not
adduce sufficient evidence in
proof of its claim and prayed
this court not to disturb those
findings.
By the line of argument under
Ground A of the appeal,
Appellant appears to contend
that the two lower courts failed
to apply the rule of evidence
that where a claim or part of it
is admitted by the opponent,
then the claimant needs no
further proof in order to obtain
judgment in his favour. We
therefore need to examine what
amounts to admission of an
opponent’s claim in law in order
to determine whether defendant’s
witness indeed admitted that
part of Appellant’s claim.
The well-settled position of the
law is that for a statement to
amount to admission of an
opponent’s case, it has to be
clear, unequivocal and
unambiguous, leaving no doubt
that the intention of the maker
of the statement was to accept
the case of his opponent against
his own proprietary or pecuniary
interest in the matter
concerned. See the case of
AKUFFO-ADDO V. CATHELINE [1992]
1 GLR 377,SC.
In this case the claim Appellant
filed in the High Court court
was for “(a) Recovery of the
sum of thirty-five million and
twenty-one thousand four hundred
and eighty-eight dollars
(USD35,021,488.00) being
outstanding rent for the lease
of the aircraft, McDonnel
Douglas DC 10-30 series Aircraft
and replacement engines.”
(emphasis mine).
The question that arises
therefore is, did DW3
unequivocally and unambiguously
admit that Appellant was
entitled to USD 3,941, 821 as
outstanding rent for the lease
of its aircraft?
Appellant has referred the court
to the following testimony of
DW3 in his evidence-in-chief;
“Q. When plaintiff
sent you exhibit 28 did Ghana
Airways agree the plaintiff was
due all that amount?”
“A. Yes, we checked
this one into our accounts to
see the invoices there were
okay, the payment and all those
things that were there. We only
have objection to some of them,
for example the interest
charges, we raised objection.”
This answer that the witness
provided here is open ended and
cannot be said to be unequivocal
and unambiguous. As the Court
of Appeal rightly noted in its
judgment;
“What could be gleaned from this
cross-examination (sic) (in fact
it was evidence-in-chief) was
that when witness was asked
whether the 2nd
defendant agreed to the amounts
on Exhibit 28 he said yes and
that they did some
cross-references and had
objection to some of them. He
gave as example the interest
charges as one item they
objected to. Which are the
other’s one would ask?”
When counsel for Appellant cross
examined DW3, if he intended to
rely on admissions he should
have asked questions to
ascertain clearly what specific
amount the witness would admit
was due to Appellant as rent for
the aircraft. Unfortunately he
did not pin the witness down to
any specific figure.
In the statement of case in this
court, Appellant has also
referred to the following
cross-examination of this same
DW3;
“Q. Ghana Airways
knew that they owed plaintiff
and that is why it made the
offer of making payment on
arrears in 2001 of $250,000 per
month?
“A. Yes Ghana Airways
made an offer pending a
reconciliation because at the
point, they agreed that there
should be a reconciliation of
the accounts to see exactly how
much Ghana Airways owed and if
so exactly how much
Ghana Airways owed and if you
look at the statement of account
that I tendered here it shows
that at least immediately Ghana
Airways owes so much
according to that statement
(emphasis mine).”
However, on further cross
examination of the witness the
following transpired;
“Q. Have
a look at exhibit ‘C’ what you
are saying is that there is just
a blank statement by
Ghana Airways that they would
pay the outstanding rent
at a rate of 250 thousand
dollars per month?” (emphasis
mine)
A.
Yes this letter dated the 21st
of May 2001 and at that time
Ghana Airways had the intention
of doing the ‘C’ check which the
aircraft was ferried and the
position of the plaintiff
statement that was brought
showed that he owes some money.
So at this meeting that they
held, then that agreement was
written. But there was another
meeting where Ghana Airways was
saying that they should, I read
one of it, but there was a later
one that the said plaintiff
should not talk about any
rental. What they want to do is
that the security deposit should
just go off and they finished
with it and that too was not
agreed.” (emphasis mine)
When DW3 stated in his answer
that “if you look at the
statement of account that I
tendered here it shows that at
least immediately Ghana Airways
owes so much according to
that statement” (emphasis
mine), the witness was not made
to specify the statement of
account he was referring to
since he tendered two statements
of account. Nonetheless,
Appellant in its statement of
case in this court has opined
that the witness was referring
to Exhibit 35.” We shall accept
that for the purpose of analysis
of the evidence of the witness.
Exhibit “35” was tendered by DW3
as a tabulation of the
respective amounts that were
being claimed by the parties as
at 30th June 2001. It is not an
official accounting record of
the 2nd defendant and
it is not signed by anyone. It
is titled;
“CLIPPER LEASING
/SKYJET VRS GHANA AIRWAYS
STATEMENT OF ACCOUNT OF DRY
LEASE OF DC 10 AIRCRAFT AT 30TH
JUNE, 2001; CURRENCY; USD”
The relevant entries in the said
statement are as follows:
“A. Lease/maintenance
Reserve position at April 20th
2001 . . . . .
Balance as per
Clipper Leasing/Skyjet statement
(up to 28/3/01) – 3,941,821.00”
Clipper Leasing/Sky Jet
Statement of Accounts was
tendered as Exhibit “28”. So
Exhibit “35” is not different
from what DW3 stated in his
evidence namely that the amount
of US$3,941,821.00 was the claim
“according to Clipper
Leasing/Skyjet”. Is that an
unequivocal and unambiguous
admission by the witness that
what Clipper Leasing is saying
in their Statement of Account is
the true position? We do not see
any intention on the part of DW3
to admit the amount of
US$3,941.821.00 as owed by 2nd
defendant to Appellant. We are
fortified in this view by reason
also of the further answer the
witness gave under cross
examination to the effect that
Ghana Airways at a meeting told
Appellant not to talk of any
rental payment but to contend
itself with the Security Deposit
of US$1,280,000.00 that 2nd
defendant had paid.
We agree with the finding of the
Court of Appeal that the amount
of US$3, 941,821.00 as stated in
Exhibits “28” and “35” is in
respect of rent and maintenance
reserve payment combined whereas
the claim before the court is
for rent; so what portion of the
amount of US$ 3,941, 821.00 is
for rent and what portion is for
maintenance reserves?
As has been pointed out already,
in law an admission of the case
of an opponent has to be clear,
unequivocal and unambiguous and
is not to be conditional or the
result of an interpretive
exercise by the court. The
analysis above shows that the
evidence of DW3 which Appellant
has relied upon in its statement
of case does not pass the test
of admission of an opponent’s
case. We therefore hold that
there was no admission in law of
a part of Appellant’s claim in
the sum of US$3,941,821 so
Appellant had the burden to
prove that at the end of the
lease, 2nd defendant
owed it outstanding rent in the
sum of US$3,941,821.00.
A review of the evidence of
Appellant on the record does not
show any explanation by
plaintiff’s witness as to how
the figure of US$3,941,821.00 in
the accounts it submitted to 2nd
defendant as covering rent and
maintenance reserves can still
remain the same when only rent
is claimed. The court has no way
of determining the value that
was assigned to the maintenance
reserves, and in those
circumstances the court cannot
award such a figure as rent to
Appellant. We therefore further
hold that, on an evaluation of
all the evidence on the record,
the amount of US$3,941,821 as
rent has not been sufficiently
proved on a balance of
probabilities. Accordingly we
dismiss Ground A of the appeal.
GROUND E
Under Ground E of the appeal the
Appellant has argued as follows;
“Even if the exact amount owed
plaintiff by the 28th
of March, 2001 was not known, it
is humbly submitted that there
is sufficient evidence for the
Honourable Court to make finding
of fact as to how much rent is
due the plaintiff as at the date
it filed its writ from the date
of the last invoice.”
The evidence Appellant relies on
is Exhibit “A”, the Aircraft
Lease and particularly its
provisions for monthly rent of
US$260,000 payable until the
aircraft is returned. By
Appellant’s calculation it
arrived at the figure of
US$20,321,821.00 as the amount
it claims the evidence is able
to support and therefore prays
that judgment be entered in its
favour for that amount instead
of the amount of
US$35,021,488.00 endorsed on the
writ of summons.
By this Ground of appeal the
Appellant appears to be
introducing a claim in the
alternative to its claim for
outstanding rent of
US$35,021,488 owed it by 2nd
defendant as at 12th
August, 2005. Unfortunately the
Attorney-General did not
specifically react to this
ground of appeal. In the
statement of case of the
Respondent the Attorney-General
quoted and relied on the finding
in the judgment of the Court of
Appeal that Appellant was unable
to prove the specific claim for
US$35,021,488.00 so was entitled
to nothing.
Our view is that Ground E of the
appeal directly raises an
important legal issue for the
determination of the court;
namely whether if a party claims
a specific sum in an action and
is able to prove only part of
the claim, he is entitled to
judgment on the part proved or
is entitled to nothing, as the
Court of Appeal seem to have
implied. It is only if this
issue is resolved in favour of
Appellant that we shall consider
whether, on the evidence in this
case, the Appellant has proved
that he was owed
US$20,321,821.00 as rent for the
lease of its aircraft.
In respect of the issue of
whether a party who is unable to
strictly prove a specific sum
claimed in a suit is entitled to
recover judgment for any portion
of the claim proved, the Court
of Appeal quoted and relied on
the following passage in the
judgment of Dr Twum JSC in the
case of; Delmas Agency Ghana
Ltd vrs Food Distributors
International Ltd [2007-2008]
SCGLR 748 at page 760 as
follows;
“Where the plaintiff has
suffered a properly quantifiable
loss, he must plead specifically
his loss and prove it strictly.
If he does not, he is not
entitled to anything unless
general damages are also
appropriate.”
Appellant disagrees with this
position and states as follows
in its statement;
“…it is asserted that although a
plaintiff must prove strictly
any loss suffered as special
damages the court will grant a
claimant the quantum of damages
that he has led sufficient
evidence on. This is despite the
fact that it may be less than
what is endorsed on its
statement of claim.”
We are inclined to agree with
Appellant on this point. With
all due respect to the justices
of the Court of Appeal, they
quoted the statement of Dr Twum
JSC in Delma Agency V Food
Distributors (supra) out of
its context and wrongly applied
the principle of pleading and
proving special damages. What Dr
Twum JSC said did not imply
that, where a party endorses a
sum certain on his writ of
summons as special damages, he
must prove the full amount
endorsed or he would not be
entitled to anything. Dr Twum
JSC in the Delmas case
was not referring to the total
amount that may be endorsed on
the writ of summons but about
the quantifiable loss or losses
that the plaintiff has to plead
and strictly prove.
The law as we know it is that
where a party has suffered a
quantifiable loss as a result of
a breach of a right he is
required to specifically plead
it, with particulars. The claim
should not only be stated in the
endorsement on the writ of
summons but the pleadings must
contain the particulars as to
how such loss came about and the
value in money terms of the
loss. The purpose is to give
sufficient notice to the
opponent so that there are no
surprises at the trial and for
the opponent to prepare to
defend the claim. A party may
suffer more than one
quantifiable loss and in that
case he is required to give
particulars of each loss and
will be required to prove each
particulars strictly. All the
particulars will give the total
sum being claimed as special
damages which may be endorsed on
the writ of summons. What Dr
Twum JSC must be understood to
mean is that a party who has
given particulars of how his
total loss is made up must
strictly prove each of the
particulars or else is not
entitled to anything in respect
of the particulars that he is
unable to prove.
In any event the Appellant’s
claim in this case is more in
the nature of debt owed as rent
outstanding than special damages
for breach of contract and
though the requirements of proof
may be similar they are not
exactly the same. There are two
important questions here; (i)
was the claim for rent for the
lease of the aircraft from the
end of the lease till its return
pleaded with sufficient
particulars so that defendants
had the opportunity to answer?
(ii) is the evidence on the
record sufficient to prove that
claim of Appellant?
From the pleadings in this case
the claim for rent owed by
defendant might be divided into
two parts; the amount owed as at
20th June 2001 when the lease
came to an end and the rent
payable under the lease up to
the time all contractual
obligations under the lease
became non operational. In its
statement of claim Appellant
pleaded as follows at paragraphs
7 and 8;
“7. Plaintiff further states
that the Lease expired on 20th
June 2001. By the terms of the
lease, the lease continued to
run until the Lessee (sic)
returned the aircraft and
engines in accordance with
Section 9 of the lease agreement
governing the return of the
aircraft.
8. Plaintiff avers that at
the expiration of the lease, in
spite of repeated demands from
the plaintiff to defendant to
return the aircraft in
accordance with the lease
agreement, the defendant refused
to do so. Accordingly defendant
remained obliged to perform all
its obligations set out in the
lease, including in particular,
the obligation to pay rent, the
maintenance of the aircraft and
the return of the aircraft in
suitable return condition
following the expiry of the term
granted under the lease
agreement.”
To our understanding it is this
part of Appellant’s claim that
forms the basis for the claim he
is now pursuing under Ground E
of the appeal.
What was 2nd
defendant’s answer to the said
pleading? In its statement of
defence 2nd defendant denied the
averments and demanded strict
proof of same. 2nd
defendant further pleaded that
Appellant sold the aircraft to
Pan Aviation Corporation so it
no longer had title to the
aircraft consequently Appellant
had no cause of action based on
the aircraft. Clearly therefore
the purpose of justice was
served when Appellant stated its
claim and defendant answered it.
The second issue is the question
of proof.
In law proof simply means
convincing the court or jury
that a fact that is alleged is
true. This is the purpose of the
provisions on burden of proof
contained in SS.10 and 11(1)
& (4) of the Evidence Act
1975 (NRCD 323) which are as
follows;
S.10 (1)
“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 the tribunal
of fact or the court.
S.11 (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 the fact was move
probable than its
non-existence.”
In determining whether a fact
has been proved, precedent is
certainly helpful but courts
must realize that in each case
the precedent does not override
its function of deciding what to
believe provided it has grounds
and reasons for what it
believes. The decided cases are
clear that evidence is not
counted but is weighed and the
court can be convinced of the
existence or non existence of a
fact basing on the evidence of
only one witness. See the cases
of Takoradi Floor Mills V
Samir Faris [2005-2006] SCGLR
882; Zambrama V Segbedzi
[1991]2GLR 231.
Therefore, the simple question
that needs to be answered here
is whether there is sufficient
evidence on the record to
convince a reasonable mind that
2nd defendant owed
appellant rent under the lease
in the sum of US$20,321,821.00?
It is important to distinguish
the debt being claimed in this
case from that of simple debt
where a defendant borrowed a
lump sum from a plaintiff and
refuses to pay and when he is
sued he flatly denies borrowing
any money and plaintiff is
called upon to prove that
defendant in deed borrowed money
from him.
In this case the debt arose by
virtue of a contractual
relationship. The defendant has
not denied the existence or
validity of the contract neither
have they denied that the
monthly rent under the lease was
US$260,000 per month. So we turn
to the record to assess the
evidence led on this aspect of
Appellant’s claim. The Managing
Director of Appellant testified
and tendered the aircraft lease
as Exhibit ‘A’ and section 9 of
Exhibit ‘A’ states exactly what
plaintiff pleaded in its
statement of claim. In his
evidence he explained that
Appellant made several demands
on 2nd defendant to
return the aircraft but they
failed to do so. In her judgment
the trial judge dismissed the
defences put up by 2nd
defendant. Appellant led
evidence to prove that the sale
of the aircraft was aborted
because it was unable to collect
it from 2nd defendant
and deliver the same to the
purchasers. Though the 2nd
defendant filed an appeal and
complained against the findings
of the High Court dismissing
their counterclaim, they did not
pursue their appeal,
consequently, that findings of
the High Court are of binding
effect.
It is therefore our finding that
on the evidence, Appellant has
proved on a balance of
probabilities that it is
entitled to monthly rent of
USD260, 000.00 from 20th
June, 2001 till the termination
of the agreement.
This finding we have made on the
proof of this part of
plaintiff’s claim was not made
by the High Court and the Court
of appeal. This is because
Appellant did not make a case
for only a part of its claim as
an alternative relief in the
courts below in the manner it
has argued before us. In the
reply to the written address of
2nd defendant filed
in the High Court, Appellant’s
counsel argued that the evidence
led sufficiently proved that
they were entitled to
US$32,741,821.00 as at 15th
August, 2005. Appellant pressed
the same case in its submissions
at the Court of Appeal and
prayed the court to exercise its
authority under Article 129(4)
of the 1992 Constitution and
amend its claim and award it
US$32,741,821.00. However the
evidence did not support that
contention.
It has always been the law that
a party is entitled to make his
claims in court in the
alternative. See Rule 10(2)
of Order 11 of the High Court
(Civil Procedure) Rules, 2004
(CI 47).
The silence of the respondent on
this issue notwithstanding,
there is the need for the court
to decide on the period for
which Appellant is entitled to
be paid the rent stated in the
Lease as this is a point of law
which the court can suo moto
raise. On the evidence, and as
is conceded by Appellant, the
commencement date for this claim
is 20th June 2001
however it is the end date that
is debatable. In its pleadings
in the High Court Appellant
claimed rent up to 12th
August 2005. When it filed its
proof of debt with the
liquidator the period for rent
and maintenance reserves was
stated as at 23/8/2003. Before
us it now claims in its
statement of case that it should
be paid the rent up to the date
of filing of the writ of summons
which is 13th July
2006. What is the basis for
these varying dates and what is
the right date that shall be
applied?
The well-known rule in law of
contract is that where a party
defaults in the performance of
his obligations under a
contract, the non defaulting
party has an option to continue
performing his obligations under
the contract and hold the
defaulting party to the
performance of its obligations
too. The other option is for the
non defaulting party to
terminate the contract and claim
against the defaulting party for
outstanding payments due under
the contract and damages for
breach of contract. See Ghana
Ports and Harbours Authority v
Issoufou [1993-94] 1 GLR 24. SC.
When the non defaulting party
terminates the contract this way
the contract ceases to exist and
no obligations arise from it.
The facts in this case show that
after 20th June, 2001
when 2nd defendant
failed to deliver the aircraft
to Appellant he initially waived
the breach while pursuing 2nd
defendant to honour its
obligations and return the
aircraft. However after a period
of time during which the
Appellant sought, unsuccessfully
to recover the aircraft,
Appellant sued the 2nd
defendant on 28th
May, 2004 in the High Court,
Queens Bench Division in London
claiming monies due under the
contract with interest and
damages for breaches of the
contract. By this act of suing
the 2nd defendant,
Appellant is deemed to have
exercised its option to
terminate the contract. The
legal effect is that,
thereafter, no obligations arise
from it. The true legal position
of the Appellant, therefore, is
that section 9 of the Lease
ceased to be operative on 28th
May, 2004 thus it is only
entitled to be paid rent under
that section for the period 21st
June, 2001 to 28th
May, 2004. That is approximately
35 months giving us a figure of
US$9,100,000.00. In our judgment
this is the amount Appellant is
entitled to, based on the
evidence and the applicable law
in this case.
At all times material, the 2nd
defendant who executed the lease
was aware of the provisions of
section. 9 of the Lease yet they
did not take steps to resolve
the issue of the deregistration
of the aircraft which, from the
record, could have ended this
whole dispute long ago. We are
not unaware of the defendant’s
case in their counterclaim that
Appellant was responsible for
the non delivery of the
aircraft. That position of 2nd
defendant was rejected by the
trial court and same has not
been set aside so the axe has to
fall on 2nd
defendant.
Article 129(4) of the 1992
Constitution which
Appellant referred to provides
as follows;
“For the purposes of hearing and
determining a matter within its
jurisdiction and the amendment,
execution or the enforcement of
a judgment or order made on any
matter, and for the purposes of
any other authority, expressly
or by necessary implication
given to the Supreme Court by
this Constitution or any other
law, the Supreme Court shall
have all the powers, authority
and jurisdiction vested in any
court established by this
Constitution or any other law.”
Then Rule 7(1) of CI 47
provides as follows;
“For the purpose of determining
the real question in controversy
between the parties or of
correcting any defect or error
in the proceedings either of its
own motion or on the application
of any party, order any document
in the proceedings to be amended
on such terms as to costs or
otherwise as may be just and in
such manner as it may direct.”
Having regard to our finding
that Appellant proved that it
was entitled to US$9,100,000.00
it will be in the interest of
justice for the court to amend
the endorsement on Appellant’s
writ of summons to include an
alternative relief for
US$9,100,000.00 being rent owed
under the aircraft leased from
Appellant from 21st
June, 2001 to 28th
May, 2004. We hereby do so and
proceed to grant that amount to
Appellant.
Appellant would be entitled to
interest on the amount. The
lease agreement in this case did
not state any rate of interest
to be applied in the event of
default in payment. In the suit
in the London court Appellant
claimed interest at the rate of
1.5% or such rate as the court
may award. However, in
accordance with the Courts
(Award of Interest and Post
Judgment Interest) Rules, 2005
(C.I.52) and the decision of
this court in the case of
Royal Dutch Airlines ( KLM ) v
Farmex Ltd (No.2) [1989-90] 2
GLR 682, we award interest
at the prevailing bank rate of
interest of the United States
Dollar in New York. The interest
shall be calculated from 28th
May, 2004 to date of this
judgment.
In effect we uphold Ground E of
the appeal in a modified form.
GROUNDS B, C and D
Grounds B, C and D are based on
estoppels and will therefore be
dealt with together. Though
Appellant mentioned ground F,
the arguments in the statement
of case covered only the
doctrine of estoppels. Under
these grounds plaintiff is
praying this court to hold the
Government of Ghana liable to
settle any amount that they are
found to be entitled to as rent
so that instead of pursuing the
liquidator for payment, they
might enforce their judgment
against the Government of Ghana.
Appellant on these grounds of
appeal has built its case mainly
on the contents of three
letters, two by the Ministry of
Roads and Transport and one by
Mr Amoah, (then of the legal
department of 2nd
defendant), all written in 2004
and tendered in evidence by
plaintiff as Exhibits “F”, “G”
and “H”. These letters expressed
an intention of the Government
of Ghana to assume the
liabilities of Ghana Airways
“including all known and unknown
debts as at 31st
August 2004”. The letters
informed creditors of Ghana
Airways including Appellant that
the government had established a
debt committee to validate and
negotiate the debts of 2nd
defendant with a view to raising
money to settle them.
According to Appellant, it
relied on the content of these
letters and suspended the
prosecution of its suit in the
High Court in England only for
the government to suspend the
work of the debt committee and
put 2nd defendant
into official liquidation. The
official liquidator told them
that, having regard to the value
of the assets and liabilities of
2nd defendant,
Appellant will be paid only
about 7% of what 2nd
defendant owed it. This,
Appellant contends, is a
detriment it has suffered by
relying on the representations
in the letters referred to.
Appellant argued that the
letters and conduct of the
government implied an
undertaking to pay off the debts
of 2nd defendant so
by virtue of the provisions of
Section 26 of the Evidence
Act 1975 (NRCD 323) and the
doctrine of promissory
estoppels, the government ought
to be held liable for
Appellant’s claim. Appellant has
argued that it will be
unconscionable for the
government to be allowed to
avoid liability in the
circumstances.
Respondents in their statement
of case herein contend
themselves with the holding of
the Court of Appeal on this
aspect of the case and urged
this court not to disturb those
holdings.
The Court of Appeal on the issue
of estoppels held that the
letters relied on by the
Appellant did not state in clear
and unambiguous terms a
commitment to negotiate to
conclusion and payment of the
debts of 2nd
defendant or that it will not
rely on its statutory right to
put 2nd defendant
into official liquidation. The
Court of Appeal held that the
representations in the letters
relied on by Appellant to found
promissory estoppels were
conditional and could not in law
be the ground for promissory
estoppels. The Court of Appeal
further held that there was no
proof that Appellant had
suffered a detriment by relying
on the letters from the
government so it cannot in law
rely on promissory estoppels.
Though Appellant all along built
its case on the doctrine of
promissory estoppels, which it
pleaded in its reply to the
statement of defence of the 1st
defendant, in its statement of
case in this court plaintiff
alluded to the principle of
estoppels by convention which is
different from the doctrine of
promissory estoppels. Estoppel
by convention arises where two
parties have entered into a
contract but, in its operation
they both adopted a mistaken
interpretation or legal effect
of a term of the contract and
conducted their affairs on the
basis of that mistaken
interpretation. If a dispute
should arise out of that term of
the contract, the court, in
ascertaining the intention of
the parties, will hold them
bound by the mistaken
interpretation they themselves
had mutually given to the term
through their practice. See
Norwegian American Cruise A/S
(formerly Norwegian American
Lines A/S) v Paul Mundy Ltd (the
Visafjord) [1988] 2 Lloyds Rep
343 C.A.
Estoppel by convention is an aid
to interpretation of deeds to
help find the intention of
parties to a contract where the
parties are shown to have based
their subsequent dealings on a
common assumption or belief.
See the case of; Chartbrook
Ltd v Persimmon Homes Ltd [2009]
UKHL 38.
In this case there is no
contract between the Appellant
and the Government of Ghana. In
fact it is the absence of such a
contract of guarantee that has
left plaintiff to be relying on
equitable doctrines to found its
case against the government.
Consequently in our view, the
principle of estoppels by
convention is not applicable in
this case.
Before we proceed with the
consideration of Appellant’s
case in respect of promissory
estoppels, it is important to
distinguish between the
application of the doctrine of
promissory estoppels as a rule
of evidence and as a rule of
substantive law. As a rule of
evidence, promissory estoppel
bars a party, or his successor
to proceedings, from denying the
truth of a representation
intentionally made for his
opponent to rely upon and the
opponent acted on it. That is
what has been captured in
Section 26 of our Evidence Act
as a conclusive presumption in
the following wording;
“Except as otherwise
provided by law, including a
rule of equity, when a party
has, by his own statement, act
or omission, intentionally and
deliberately caused or permitted
another person to believe a
thing to be true and to act upon
such belief, the truth of
that thing shall be conclusively
presumed against that party
or his successors in interest in
any proceedings between that
party or his successors in
interest and such relying person
or his successors in interest.”
(See also the earlier case of
Law v Bouverie (1891) 3 Ch 82)
In equity however, promissory
estoppels is a rule of
substantive law. It was
originated by the English courts
to rectify the situation where,
at common law, an unwritten
contract is not binding unless
there is valuable consideration
from the promisee to the
promisor. This position of the
common law left parties who had
acted upon representations and
changed their positions without
relief because they did not
offer valuable consideration for
those representations in the
first place. So in the case of
Central London Property Trust
Ltd V High Trees House Ltd
[1947] KB 130, Denning J,
(as he then was) after failing
to find on the facts that the
defendant had given valuable
consideration to their landlord
for his promise to reduce the
rent that had been stated in the
contract, said as follows at
page 134;
“In each case the
court held the promise to be
binding on the party making it,
even though under the old common
law it might be said to be
difficult to find any
consideration for it. The courts
have not gone so far as to give
a cause of action in damages for
breach of such promises, but
they have refused to allow the
party making them to act
inconsistently with them. It is
in that sense, and in that sense
only, that such a promise gives
rise to an estoppel. The cases
are a natural result of the
fusion of law and equity; for
the cases of Hughes v.
Metropolitan Ry. Co. (7) (1877)
(2 App. Cas. 439), Birmingham &
District Land Co. v. London &
North Western Ry. Co. (8) (1888)
(40 Ch.D. 268), and Salisbury v.
Gilmore (9) ([1942] 1 All E.R.
457), show that a party will not
be allowed in equity to go back
on such a promise. The time has
now come for the validity of
such a promise to be recognised.
The logical consequence, no
doubt, is that a promise to
accept a smaller sum in
discharge of a larger sum, if
acted on, is binding,
notwithstanding the absence of
consideration, and if the fusion
of law and equity leads to that
result, so much the better. At
this time of day it is not
helpful to try to draw a
distinction between law and
equity. They have been joined
together now for over seventy
years, and the problems have to
be approached in a combined
sense.”
As is the case with all the
doctrines of equity, promissory
estoppels has further evolved
such that, whereas at its birth
it was applied as a shield and
not a sword, it is now regularly
resorted to found a claim. See
Combe V Combe[1951] 2KB 215,
Walton Stores (Intestate) ltd v
Maher (1988) 164 CLR 387 and
the Ghanaian case of Quist V
George [1974] 1 GLR 1. The
requirement that the party
relying on promissory estoppels
must demonstrate a detriment he
suffered by relying on the
promise of his opponent does not
appear to be supported by any
legal authority binding on
Ghanaian courts contrary to what
the Court of Appeal stated in
its judgment. After all the
High Trees case supra was
one where the party that relied
on the promise actually gained
by the reliance. See also
Alan v El Nasr [1972] 2 WLR 800.
In its current form, promissory
estoppels is a doctrine of
equity that allows a party to
recover the benefit of a promise
made even if a legal contract
does not exist. The promise must
be clear, unequivocal,
unambiguous and unconditional
and the promisor must have
intended the promisee to act
upon it 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 and the usual
maxims of equity will apply. See
Woodhouse A.C. Israel Cocoa
Ltd v Nigerian Product Marketing
Co Ltd [1972] A.C. 741; D & C
Builders v Rees [1966] 2WLR 28
and Guimeli v Guimeli (1999) 196
CLR 387.
In this matter, Appellant has
grounded its case, for the
application of the doctrine of
promissory estoppels against the
government on its reliance on
the letter of the Minster for
Transportation dated 24th
September, 2004. It is therefore
important to quote the relevant
parts of this letter in order to
appreciate the promise or
representation (if any) that the
government made to Appellant;
“The Government of Ghana
(“GOG”), the sole shareholder in
Ghana Airways Limited (GH), has
expressed its intention to
assume the liabilities of the
airline including all known and
unknown debts as at 31st
August, 2004.
In this regard, the
government has constituted a
Debt Committee, which is tasked
with entering into
discussions and negotiations
(emphasis mine) with GH’s
creditors to reach agreements
that will allow GOG to assume
and discharge the company’s
liabilities to those creditors…
The purpose of this
letter is to advise you, as a
known creditor of GH, that the
committee has commenced its work
and will be in touch with you to
commence discussions that GOG
hopes will lead towards the
eventual settlement of the
companies outstanding
liabilities to you.”
This was followed by another
letter from the Ministry which
set out the following four steps
that were to be gone through
leading to any payments to
creditors;
1.
Validation of debts
2.
Request for parliamentary
approval and funding
3.
Negotiation of debts and
signing of agreements
4.
Payments of agreed
amounts.
The relief that Appellant is
claiming against the Respondent
is that the Government of Ghana
be held liable to pay the amount
found to be owed them by 2nd
defendant. In its statement of
case in this court the Appellant
repeated a number of times that
the government undertook “to pay
off the debts” of the 2nd
defendant. It also stated in the
statement of case that the
government made plaintiff to
believe that government will pay
off the debts of 2nd
defendant. But the fundamental
question is; did government
represent to Appellant that it
will pay to plaintiff whatever
amount was found to be owed them
by 2nd defendant?
The answer to this question can
be found in ascertaining what
promise or representation the
government made through the
letters referred to. As is
evident from the tenor of the
letters government issued, it
promised to undertake validation
of the claims, seeking for
parliamentary approval,
negotiation of the validated
amounts with the creditors,
signing binding contracts on the
negotiated debts before payment.
Appellant has submitted that it
will be unconscionable to allow
the government to avoid
liability in this case but the
question we ask ourselves is; is
it conscionable for us to hold
the government to a promise it
did not make?
From the letters relied upon by
the Appellant we do not see any
undertaking in any form by the
government to pay any amount
validated. Mr Felix Addo from
Price Waterhouse Coopers who was
the responsible person on the
government’s debt committee
testified in the trial on behalf
of the 1st defendant.
In his evidence-in-chief he
stated as follows;
“It has been very
clear from the inception of the
debt committee’s work that
government was not guaranteeing
payment of 100% of all...”
This significant evidence was
not challenged under cross
examination and is deemed
admitted. This shows that
Appellant was alerted not to
expect full payment. In any case
the plain understanding of
negotiating a validated claim is
in order to seek a compromised
figure that would be paid as
full discharge of all claims.
Appellant cannot be speaking the
truth when it claims that it was
made to believe that the
government would pay all debts
of 2nd defendant. The
letters speak for themselves and
if Appellant seeks to rely on
them, then it will be bound by
their whole contents. See
Osei v Ghanaian Australian
Goldfields Ltd [2003-2004] SCGLR
69.
A close reading of the letter
written by Mr. Amoah, shows on
its face that it was written
without prejudice. This ought to
have sounded a warning to
Appellant that the defendants
were not giving up their legal
rights as far as the claims of
plaintiff were concerned. The
lawyer forwarded the Minister’s
letter to Appellant saying he
hoped that Appellant will be
convinced to stay his legal suit
and explore the opportunity
offered by the government. This
letter could not have conveyed
any promise bigger than the
Minister’s letter which was
being forwarded and stated to be
“self explanatory”. Besides,
since the lawyer did not write
the letter on behalf of the
government of Ghana, we fail to
see how the government can be
held bound by any representation
contained in that lawyer’s
letter.
It is a well-known fact that
business involves risks and this
includes the possibility of
insolvency of a business partner
which could lead to a situation
of bad debts. To forestall this
eventuality, some businesses
enter into properly drafted
third party guarantee
agreements. The absence of such
an agreement has been the bane
of Appellant in this case. On
the analysis of the facts and
the law we are unable to uphold
plaintiff’s grounds B, C and D
and same are hereby dismissed.
Ground F was not argued so it is
struck out.
It now remains plaintiff’s
Ground G which is that;
“the learned High
Court Judge erred and
misdirected herself when she
failed to avert her mind to the
fact that it was the Government
of Ghana that ordered the
destruction of the aircraft and
as such should be held liable.”
Appellant contends in respect of
this Ground of Appeal that the
rules of appeal permit her to
argue this ground of appeal
which is expressed to be against
the decision of the High Court
and ought normally to have been
made to the Court of Appeal
under the law.
The Respondents in their further
arguments filed pursuant to
leave of the court dated 1st
March, 2016, has argued that
Appellant did not plead this
ground at the High Court and
therefore is not entitled to
raise it before this court. They
further deny that the
destruction of the aircraft was
on the orders of the government
of Ghana.
The general rule is that a party
cannot, on appeal, rely on a
ground in support of his claim
or defence which ground was not
raised at the trial court. The
exception to this general rule
is in respect of a substantial
point of law that arises on the
record of appeal.
The law on this subject was
authoritatively stated by
Georgina Wood JSC (as she then
was) in the case of
ATTORNEY-GENERAL V FAROE
ATLANTIC CO LTD [2005-2006]
SCGLR 271 at 309 as follows:
“The salutary and well-known
general rule of law is that
where a point of law is relied
on in an appeal, it must be one
which was canvassed at the
trial. But there are exceptions
to this rule; the question of
jurisdiction being of one of
them. A jurisdiction issue can
therefore be taken or raised at
any time, even for the first
time, on appeal. Another
exception is where an act or
contract is made illegal by
statute…. Again, the
well-established general rule is
that where the legal question
sought to be raised for the
first time is substantial and
can be disposed of without the
need for further evidence it
should be allowed.”
So clearly the exception to the
general rule on appeals is in
respect of substantial points of
law. The well known policy of
the law is that parties to a
case in court are to know
exactly what it is that they are
required to answer and this is a
requirement of fair hearing that
the courts insist on. The
requirement of fair hearing is a
fundamental rule of natural
justice so a party cannot change
its case on appeal when the
opponent has no opportunity to
adequately defend himself and
lead requisite evidence in his
defence.
Appellant argued in its
statement of case that
unchallenged evidence at the
trial showed that it was the
Government of Ghana that ordered
the destruction of the
Appellant’s aircraft without any
lawful authority and so the
government should be held liable
and not the liquidator. This is
clearly a claim being made in
tort against the Government of
Ghana for allegedly unlawfully
ordering the destruction of
Appellant’s aircraft. This cause
of action was not pleaded at the
trail court. The case that was
made against 1st
defendant was that of promissory
estoppels and it fought the case
on that footing.
In the High Court, Appellant
claimed for return of the
aircraft in accordance with the
conditions of return under the
provisions of the lease or in
the alternative, the cost of the
aircraft and engines. In the
written address of Appellant’s
counsel in the trial High Court,
he submitted as follows;
“Now that evidence has been led
to show that the aircraft has
been scrapped by the 2nd
defendant although legal
ownership of the aircraft and
engines belonged to the
plaintiff company. The 2nd
defendant is liable to pay to
the plaintiff the value of the
aircraft and engines which as
stated in exhibit A (the Lease
Agreement) is the sum of twenty
seven million United State
dollars ($27,000,000.00)”
So the cause of action was in
contract against 2nd
defendant. The trial judge
granted this claim of Appellant
based on the terms of the lease
exhibit “A”. This new ground of
appeal which castigates the
trial judge for adopting the
submissions of Appellant is a
complete about-face by
Appellant. This new case is
inconsistent with that which it
put forward at the trial court.
It was held by the Supreme Court
in the case of TAWIAH-YEBEREH
V. CFAO [1966] GLR 357 by
Bruce-Lyle JSC at page 366 as
follows;
“Can the plaintiff at
this stage be heard to challenge
the validity of the mortgage
deed of 29 December 1953, and
the memorandum of agreement
dated 18 January 1954, when
throughout he had fought his
case on the basis that these
documents were genuine and
valid? My answer to this is in
the negative and I am supported
in my view by the principle laid
down in Esso Petroleum Co., Ltd.
V. Southport Corporation,
(Footnote 2) ably discussed and
followed by Adumua-Bossman
J.S.C. (as he then was) in Dam
v. J. K Addo and Brothers,
(Footnote 3) to the effect that
an appeal court should not
accept in favour of a party a
case different from and
inconsistent with that which he
himself has put forward in and
by his pleadings and that for an
appeal court to act otherwise
would be a flagrant disregard of
the functions of pleadings which
in the words of Lord Normand in
the Esso Petroleum case are "to
give fair notice of the case
which has to be met so that the
opposing party may direct his
evidence to the issue disclosed
by them” (Footnote 4) In view of
the foregoing, I find myself
unable to accept the submissions
of learned counsel that the
mortgage deed of 29 December
1953 is null and void and also
that the memorandum of agreement
made under that deed is not
binding on the late Forkuo.”
More importantly, the case
sought to be made under this
Ground of Appeal is not a point
of law but is a new cause of
action in tort which Appellant
is seeking to pursue against 1st
defendant at this late hour. We
observe that counsel for
Appellant has thrown into her
submissions Section 254 of
the Companies Code, 1963 (Act
179) to the effect that
Government of Ghana had no
authority to assume powers of
the Directors of Ghana Airways
in liquidation so that any
authorization the government
gave for the destruction of the
leased aircraft was ultra
vires and unlawful. That
reference will not make the
point being raised a legal one.
The net effect of plaintiff’s
new complaint is that Government
of Ghana unlawfully caused the
destruction of its aircraft and
should be held liable for its
value. This certainly is a new
cause of action which, if it had
been pleaded from the beginning
of the case, 1st
defendant would have answered.
Appellant should note that the
award of US$27,000,000 as the
value of the aircraft was
liquidated damages as agreed
between plaintiff and 2nd
defendant under the terms of the
aircraft lease. There was no
evidence as to the actual value
of the aircraft at the time of
the trial. If Appellant now
abandons the claim based on the
terms of the contract and
pursues a claim in tort against
the government, which was not
party to that contract, upon
what evidence will the court
assess the actual value of the
aircraft, assuming it succeeds?
Besides Appellant’s contention
that the evidence conclusively
shows that it was the Government
of Ghana that authorized the
scrapping of the aircraft is
opposed by defendant as not
borne out by the record. The
evidence-in-chief of Appellant’s
Managing Director covers the
processes leading to the
destruction of the aircraft and
it shows that it was Ghana
Airways, through the liquidator
who was handling that issue with
Appellant. For example the
following ensued between
plaintiff and his counsel;
Q.
Sometime before the destruction
of the aircraft did you receive
any correspondence from Ghana
Airways about wanting to destroy
the aircraft?
A. Yes, I did
receive a letter from Ghana
Airways asking my authorization
to scrap the aircraft and
document to be signed by myself
which I did not sign.
Q. who was by
then representing Ghana Airways
at the time you received the
letter?
A. I believe
it was the liquidator of Ghana
Airways.
Furthermore the full text of the
email sent by Alitalia to
Appellant tendered as Exhibit
“M” is as follows:
“Dear Pierre
I confirm that all
the aircrafts of Ghana Airways
have been destroyed after the
request of Italian custom for
the relevant V. A. T. not paid
at the moment of import and
about the aircrafts remained on
the Italian Ground and that
couldn’t fly. All the
operations terminated on august
2006 and were authorized by the
Government task force in Ghana.
Alitalia paid a relevant amount
in euro, and today has Ghana
Airways credit of 25 million US
dollars all the parts of the
aircraft (include the engines
that you are asking me) were
destroyed in the fire without
the recovery of any component.”
As at August 2006 Ghana Airways
had gone into liquidation as
shown by the evidence on the
record. So which body is the
email referring to as the
Government task force in Ghana?
Is it the liquidator that
according to Appellant’s
evidence he was dealing with or
some other body? In any case
the email does not say who
authorised the destruction of
the aircraft. It only states
that the operations seized on
the authorization of the
Government task force in Ghana.
Exhibit “M” is inconclusive.
Without further evidence in
respect of this issue we cannot
conclude that the destruction of
the aircraft was authorized by
the Government of Ghana. For the
reasons explained above we
dismiss Ground G of the Appeal.
CONCLUSION
In conclusion, save for the
entry of judgment for Appellant
against 2nd defendant
in the sum of US$9,100,000.00
plus interest at the prevailing
bank rate of interest of the
United States Dollar in New York
from 28th May, 2004
to date of this judgment, the
appeal is dismissed. For the
avoidance of doubt, the judgment
by the High Court in favour of
Appellant to recover in
liquidated damages
US$27,000.000.00 against the
liquidator of Ghana Airways
still stands and is not affected
by this judgment.
(SGD)
G. PWAMANG
JUSTICE OF THE SUPREME
COURT
(SGD)
S. A. B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE- BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
V . AKOTO – BAMFO (MRS)
JUSTICE OF THE SUPREM
COURT
(SGD)
YAW APPAU
JUSTICE OF THE SUPREME COURT
COUNSEL:
ESINE OKUDJETO ESQ. WITH HER
NAA AMORKOR AMARTEIFIO, ROSEMARY
OWUSU AND JUSMINE BABA FOR THE
PLAINTIFF /APPELLANT /APPELLANT
CECIL ADADEVOR (PSA) FOR THE 1ST
DEFENDANT/RESPONDENT
/RESPONDENT.
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