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JUDGMENT:
By a writ of civil summons the
plaintiffs in this matter claim
against the defendant herein
“a) An order to compel the
defendant and the Ministry of
Finance and Economic Planning
forthwith to pay plaintiffs an
amount of:
(i) Five Million United States
Dollars ($5m)
(ii) One Million Ghana Cedis (GH¢1m)
b) Interest on the said
amounts from the 29th
day of October, 2010 till the
date of final payment
c) General damages
d) Costs”
Accompanying the writ of summons
was a statement of claim. After
the service on the defendant of
the process filed by the
plaintiffs, an Appearance was
entered after which the
defendant filed a statement of
defence in which it
counterclaimed for:
(i) “A declaration that
the settlement agreement reached
with the 1st
plaintiff was void for being
contrary to public policy, was
entered into under a mistaken
apprehension of facts; lacked
the relevant consent, and is
consequently unenforceable.
(ii) An order setting
aside the purported settlement
agreement between the 1st
plaintiff and the Defendant on
grounds of public policy,
mistake, and for lack of consent
of the other defendants to the
several actions between
plaintiffs and defendant”.
The following issues set out in
the Application for Directions
were adopted for determination.
These are:
a. “Whether or not there
was actual settlement between
plaintiffs and defendant.
b. Whether or not the
settlement is contrary to public
policy and therefore void.
c. Whether or not there
is any criminal appeal pending
against plaintiffs that ought to
deny plaintiffs the amount they
are entitled to.
d. Whether or not the
present Attorney-General is
using his ministerial and state
powers to arbitrarily deny the
plaintiffs of their money.
e. Whether or not the
plaintiffs have suffered any
hardships and financial loss as
a result of the conduct of the
defendant.
f. Any other relevant
issues arising out of the
pleadings”
The following additional issues
were also adopted for trial by
the court:
1. “Whether or not the
trial High Court has
jurisdiction in this matter?
2. Whether the
plaintiff’s action can be
maintained since he seeks to
enforce a terms of settlement by
writ of summons rather than by
execution?
3. Whether or not the
terms of settlement are void
because the consent of third
parties was not obtained?
4. Whether or not the
terms of settlement can be
vitiated for public policy
reasons in view of the criminal
appeal that is pending against
the 2nd Plaintiff?
5. Whether or not the
terms of settlement can be set
aside on grounds of mutual
mistake”
At the trial, the 2nd
plaintiff gave evidence on his
own behalf and also on behalf of
the 1st plaintiff.
Thereafter, the defendant gave
evidence by calling six (6)
witnesses to testify for and on
its behalf.
The facts of the case are that
the plaintiffs had various suits
pending before various courts
against the defendant herein.
At a point in time the defendant
suggested to the plaintiffs for
the parties to explore the
possibility of settling the
disputes. Meetings were held
and negotiations took place
after which the parties reached
an agreement which was reduced
into writing as the settlement
of the disputes between them.
Thereafter the defendant took
steps to pay the amount arrived
at during the settlement as
being its indebtedness to the
plaintiffs. However just around
that time there was a change in
the occupant of the office of
the defendant. The new person,
who took over the office of the
defendant, stopped the payment
alleging various reasons. The
plaintiffs therefore instituted
the instant action for the
reliefs indorsed on their writ
of summons.
The first issue set out in the
Application for Directions is
whether or not there was actual
settlement between the
plaintiffs and the defendant.
The allegation of settlement was
made by the plaintiffs in
paragraphs 4 and 5 of their
statement of claim. In reacting
to these averments in paragraphs
4 and 5 of the statement of
claim, the defendant posed an
admission when it averred in
paragraph 2 of its Amended
statement of defence that:
“2. Save that there was a
purported consolidated
settlement of all pending civil
actions between the 1st
Plaintiff and the Defendant for
the sum of Five Million United
States Dollars and One Million
Ghana Cedis legal cost in favour
of the 1st Plaintiff,
paragraphs 4,5 and 7 are not
admitted”.
It has been held in the case of
FORI vs. AYIREBI [1966] GLR 627
SC that:
“When a party had made an
averment and that averment was
not denied, no issue was joined
and no evidence need be led on
that averment. Similarly, when a
party had given evidence of a
material fact and was not
cross-examined upon, he need not
call further evidence of that
fact”.
Notwithstanding the position of
the law as quoted above, the
plaintiffs gave evidence and
stated that:
“My Lord, there were some cases
against Ghana Government
(Attorney General). Whilst some
of these cases had been disposed
off some of the cases were still
pending in court and then the
Attorney General invited me and
discussed with me and brought
some suggestion that they wanted
a settlement of those cases
filed against them in court
and that brought the settlement.
Q: Before you agreed on
settlement did anything take
place?
A: Yes My Lord, I went to
court and one of the cases was
disposed of and was given an
amount of 6 million dollars”.
There is evidence to the effect
that the Attorney General
invited the plaintiffs to
present a proposal for the
settlement of the cases. I find
that as a result of the
prompting of the defendant the
plaintiffs submitted exhibit ‘A’
a proposal for settlement to the
defendant herein. There is
evidence on record that after
the submission of the proposal,
the defendant invited the
plaintiff together with other
persons for negotiations which
culminated in a settlement of
four civil suits pending between
the parties. The plaintiffs
tendered in evidence exhibit ‘B’
which is the terms of settlement
reached between the parties. I
find that the terms of
settlement have been signed by
the Deputy Attorney General for
and on behalf of the defendant
herein. It was also signed by
the 2nd plaintiff for
and on behalf of himself and the
1st plaintiff
herein. The solicitor for the
plaintiffs also appended his
signature to the terms of
settlement.
Exhibit ‘B’ states that:
“The parties to the above named
suit have agreed and adopted the
comprehensive and consolidated
settlement in the following
terms,
(a) Five Million United States
dollars (US$5,000,000.00) in
full and final settlement of all
claims in the above mentioned
suits.
(b) One Million Ghana Cedis
(GH¢1,000,000.00) in full and
final settlement of all legal
fees and costs.
The settlement is in full and
final settlement of all claims
by the Plaintiff; and the above
named suits will be discontinued
and withdrawn by the plaintiff
with no liberty to apply”.
It is very significant to point
out that before this settlement
was brokered by the defendant,
the plaintiffs have obtained
judgment in one of the cases
settled and indeed judgment has
been entered against the
defendant and in favour of the
plaintiffs in the sum of over
six million dollars ($6m) as
shown by exhibits F and F1
tendered and received in
evidence. The settlement
therefore compromised the
judgment obtained in exhibits F
and F1. This was within the
rights of the parties so to do
and the courts cannot refuse to
recognize same as held in the
case of REPUBLIC VS. HIGH COURT,
CAPE COAST, EX-PARTE GHANA COCOA
BOARD (APOTOI III INTERESTED
PARTY) [2009] SCGLR 603 that:
“Terms of settlement of an
action were contractual, and for
that reason, the courts would
hardly interfere with them when
submitted for adoption as a
consent judgment. Thus the
parties could compromise an
action or even a judgment of a
competent court. In that event,
the parties would be held to
their bargain in place of such
action or judgment. But the
terms of settlement, must be
certain, at least, as to its
essential terms so as to bind
the parties. And where there
had been part-performance, the
agreement would survive as a
contract.”
It is also important to point
out that the defendant is not an
ordinary person in the
Constitutional arrangement of
this country. The office of the
defendant is established by
Article 88 of the 1992
Constitution which provides at
clause 1 that:
“(1) There shall be an
Attorney-General of Ghana who
shall be a Minister of State and
the principal legal adviser to
the Government”.
The Attorney General is not only
responsible for the institution
of civil proceedings but he/she
takes charge of all civil
proceedings instituted on behalf
of the Republic of Ghana as well
as civil suits brought against
the state. Hence, Article 88(5)
provides that:
“(5) The Attorney-General shall
be responsible for the
institution and conduct of all
civil cases on behalf of the
State; and all civil proceedings
against the State shall be
instituted against the
Attorney-General as defendant”.
The conduct of civil cases
involves the total and complete
management of a suit from the
issuance of a writ of summons or
the entry of appearance through
to the final completion of the
civil suit including where
necessary the settlement of the
case as well.
In the opinion of the court the
powers of the Attorney General
in the conduct of civil suits
include the settlement of suit
as well.
In ROCKSON vs. GHANA FOOTBALL
ASSOCIATION [2010] SCGLR 443 the
court pointed out that:
“It was well-settled that
parties could voluntarily agree
to resort to Alternative Dispute
Resolution (ADR) mechanism such
as arbitration or mediation.
That was an accepted public
policy in all legal systems.”
In delivering the judgment of
the Court of Appeal in ASAHIN
INDUSTRIES LTD V KOFIFOH BOAT
BUILDING CO. LTD [1984/86] 1 GLR
453, Francois JSC quoted with
approval part of the joint
dissenting opinion of Lord Guest
and Lord Devlin in United
Engineering Workers’ Union vs.
Devanayagan (1968) AC 356 at 390
PC where their Lordships are
reported to have said that:
“A court of law has no doubt the
formal power of refusing to make
an order in accordance with a
settlement reached by the
parties, but it is a power which
is exercised only in exceptional
cases, as, for example, when one
of the parties is under the
protection of the court.
Otherwise the court does not
inquire whether the proposed
settlement achieves a just
result; it assumes that it does.
It assumes also that counsel has
authority to make a settlement
on behalf of his client; if he
has not, it is a matter that
they must settle between
themselves.”
In REPUBLIC VS. HIGH COURT, CAPE
COAST, EX-PARTE GHANA COCOA
BOARD (APOTOI III INTERESTED
PARTY) [2009] SCGLR 603, the
Supreme Court held that:
“Terms of settlement of an
action were contractual, and for
that reason, the courts would
hardly interfere with them when
submitted for adoption as a
consent judgment. Thus the
parties could compromise an
action or even a judgment of a
competent court. In that event,
the parties would be held to
their bargain in place of such
action or judgment. But the
terms of settlement, must be
certain, at least, as to its
essential terms so as to bind
the parties. And where there
had been part-performance, the
agreement would survive as a
contract”.
I hold that the terms of
settlement reached between the
plaintiffs and the defendant
herein received as exhibit ‘B’
in this matter constitutes a
contract between the plaintiffs
and the defendant.
The defendant has raise as an
issue for determination whether
the plaintiffs’ action can be
maintained since he seeks to
enforce terms of settlement by
writ of summons rather than by
execution. By their writ of
summons the plaintiffs seek an
order to compel the defendant
and the Ministry of Finance and
Economic Planning to pay to them
$5m and GH¢1m together with
interest as well as damages for
breach of contract. It is very
true that the plaintiff’s claim
as it stands arose under the
settlement expressed in exhibit
‘B’ herein. However the said
settlement did not constitute a
judgment of a court of law.
Rather it constitutes an
understanding, an agreement and
a contract between the
plaintiffs and the defendant
that in consideration of the
plaintiffs not pursuing their
claims against the defendant
some of which judgment had been
obtained by the plaintiffs for
sums far in excess of the amount
settled, the defendant will pay
to the plaintiff the amount
stated in exhibit ‘B’. It
follows that the agreement
reached is not and cannot be
equated to a judgment of a court
of competent jurisdiction so as
to enable the plaintiffs enforce
same by resort to the processes
of execution as contended on
behalf of the defendant.
It needs to be pointed out that
one can only resort to the
processes of execution where a
court of law has decreed
judgment in favour of that
person. Order 43 of the High
Court (Civil Procedure) Rules,
2004 CI 47 governs the
‘enforcement of judgments and
orders”. Where the judgment is
for the payment of money rule 1
(1) of CI 47 provides that:
“1. Enforcement of judgment for
payment of money
(1) Subject to these Rules, a
judgment or order for the
payment of money, not being a
judgment or order for the
payment of money into court, may
be enforced by one or more of
the following means,
(a) writ of
fieri facias;
(b) garnishee
proceedings;
(c) a
charging order;
(d) the
appointment of a receiver;
(e) in a case in which
rule 5 applies, an order of
committal or a writ of
sequestration”.
The underlying condition for
resort to the provisions or
rules of execution is that a
court of competent jurisdiction
must have first and foremost
entered judgment or made an
order for the payment of money
or some other benefit in favour
of the party seeking to invoke
the provisions of Order 43.
However where a party is seeking
to assert a right or enforce a
contract as in this case enforce
the terms of a settlement then
Order 2 rule 2 provides that the
procedure is the issuance of a
writ of summons. I hold that
the plaintiffs’ action, contrary
to the contention of the
defendant, is maintainable.
Another argument raised by the
defendant is that the terms of
settlement are void because the
consent of third parties was not
obtained. It has been argued on
behalf of the defendant that
some of the parties sued by the
plaintiffs in some of the cases
that were settled were not
present at the settlement so the
terms of settlement is void.
Specifically the defendant has
mentioned one Theophilus Cudjoe,
the Serious Fraud Office who
were parties in suit No. AD
18/2010 which is one of the four
cases that was settled between
the plaintiffs and the
defendant. Again reference has
been made to a company called
Kolon (UK) Limited which was
also one of the defendants in
suit No.AC 528/2010 which is one
of the cases listed in exhibit
‘B’ as having been settled
between the plaintiffs and the
defendant herein.
Theophilus Cudjoe was sued in
his capacity as the Acting
Executive Director of the
Serious Fraud Office until the
year 2007. The said Theophilus
Cudjoe investigated and started
the prosecution of a case
against the plaintiffs herein in
his capacity as the Acting
Executive Director aforesaid.
The defendant herein made these
assertions and admission in the
statement of defence which the
defendant filed on its own
behalf and also on behalf of the
said Theophilus Cudjoe as well
as the Serious Fraud Office
which is a Public Office or
Department having been
established by an Act of
Parliament. See Article
190(i)(d) of the 1992
Constitution.
Upon the issuance of the writ
against the said Theophilus
Cudjoe and the Serious Fraud
Office the defendant entered
appearance and filed a statement
of defence on their behalf as
depicted by exhibits ‘M’ and
‘L’.
The Attorney General filed an
Appearance and a defence for and
on behalf of the said Theophilus
Cudjoe because as already
pointed out he was sued for
performing a duty as a Public
Officer. Indeed the said action
cannot be said to be a personal
action against Theophilus
Cudjoe. The law is that Public
officers who are agents of the
Government or of the State are
defended in that capacity by the
Attorney General. Hence in the
case of TSIKATA vs. CHIEF
JUSTICE AND ATTORNEY GENERAL
[2001 – 2002] 1 GLR 186, the
court held that:
“The Chief Justice was a public
officer appointed by the
President in consultation with
the Council of State and with
the approval of Parliament. Acts
performed by him in pursuance of
the functions of his office were
therefore official acts.
Accordingly, as provided by
article 88(5), any attack on him
in the performance of his duties
needed to be defended by the
Attorney-General on behalf of
the State. And even though the
Attorney-General was a proper
defendant in the instant case,
the joinder of the Chief Justice
would enable the court to
determine the issues more
effectively and effectually as
between the parties. In the
circumstances, the
Attorney-General’s Office had
every right to swear to the
affidavit verifying the facts
deposed to in the defendants’
statement of case”.
Sections 1(1) of the Serious
Fraud Office Act, 1993 Act 466
(now repealed) states that:
“1. Establishment of the Serious
Fraud Office
(1) There is hereby established
a Serious Fraud Office which is
part of the Public Services”.
The fact that the SFO is a
Public Office/Department admits
of no debate. Equally, the
occupants of the office of
Executive Director, like
Theophilus Cudjoe was, are
Public Officers. Hence, the SFO
as well as its officers are
rightly defended by the Attorney
General when civil suits are
instituted against them for the
performance of their statutory
duties. Section 4 of Act 466
states that the Attorney General
is responsible for the office.
In the view of the court as
depicted by the evidence on
record there was nothing
personal about the suit
instituted by the plaintiffs
herein against the defendant,
Mr. Theophilus Cudjoe and the
Serious Fraud Office. That
being so, just as the Attorney
General entered Appearance and
filed a statement of defence for
and on behalf of all the
defendants in that case, the
Attorney General was right in
settling the case for and on
behalf of the defendants. After
all the entire suit was
essentially a suit against the
State and not against any
individual per se.
When did the defendant realized
that the suit in question was a
personal action against Mr.
Theophilus Cudjoe? And if that
was the case why did the
defendant enter appearance and
file a statement of defence for
and on behalf of all the
defendants including Mr.
Theophilus Cudjoe. Does that
not amount to blowing hot when
it suits the defendant and on
the same issue or matter blowing
cold when it suits the
defendant? At any rate if the
defendant, with its eyes wide
open, has settled the cases
which the plaintiffs had with it
and others how can the same
person turn round to use the
non-participation of other
parties in the exercise to avoid
its obligation under the terms
of settlement. In the opinion
of the court it is only the
parties who did not take part in
the settlement who can employ
their non-involvement in the
settlement process as a
tool/defence to avoid
obligations under the said
contract should the plaintiffs
take steps to enforce the terms
of settlement against them.
Before this court no evidence
has been proffered by any of the
parties who were not invited to
take part in the negotiations
leading to the settlement that
the plaintiffs have taken steps
to enforce the terms of
settlement against them and
there is equally no evidence
that any of them has lodged a
complaint against the settlement
reached between the plaintiffs
and the defendant herein. In
the opinion of the court the
defendant is estopped by its own
conduct from avoiding its
obligations under the terms of
settlement.
Section 26 of the Evidence Act
1975, (NRCD 323) provides that:
“26. Estoppel by own
statement or conduct
Except as otherwise provided by
law, including a rule of equity,
when a party has, by that
party’s own statement, act or
omission, intentionally and
deliberately caused or permitted
another person to believe a
thing to be true and to act upon
that belief, the truth of the
thing shall be conclusively
presumed against that party or
the successors in interest of
that party in proceedings
between
(a) that party or the
successors in interest of that
party, and
(b)
the relying person or
successors in interest of that
person”.
In the case of GHANA CABLE CO.
LTD vs. BARCLAYS BANK (GHANA)
LTD [2010] SCGLR 108, the court
held that:
“The well-established principle
was that it would be
unconscionable for a party to be
permitted to deny that which,
knowingly or unknowingly, he had
allowed or encouraged another to
assume to his detriment.”
Another issue raised by the
defendant is whether or not the
terms of settlement can be
vitiated for public policy
reasons in view of the criminal
appeal that is pending against
the 2nd plaintiff.
By paragraph 4 of its Amended
Statement of Defence the
defendant agrees that it settled
all civil actions pending
between the plaintiffs and the
defendant. Exhibit C which was
written and signed by the then
Attorney General Betty – Mould
Iddrisu (Mrs.) has listed all
the civil cases settled between
the plaintiffs and the
defendant. There is no evidence
that any criminal appeal against
the plaintiffs was part of the
cases settled between the
defendant and the plaintiffs.
Moreover, the criminal appeal
out of which the defendant has
made a lot of capital to avoid
its obligations under the terms
of settlement sprung out of a
judgment in a criminal case
which was prosecuted against the
plaintiffs. The said judgment
was received in evidence as
exhibit ‘G’. In the said
judgment the defendant had
entered a nolle prosequi during
the prosecution of the
plaintiffs among others before
the High Court presided by
Justice D.K. Ofosu Quartey.
After considering the whole
process the judge acquitted and
discharged the accused persons.
The said judgment was delivered
on the 19th December,
2008.
The Defendant says it filed an
Appeal against the said judgment
on the 24th December,
2008. The evidence of the 2nd
Plaintiff is that this Notice of
Appeal allegedly filed on 24th
December, 2008 was served on him
on the 8th day of
December, 2011. In the opinion
of the court, the conduct of the
defendant is enough testimony
that the defendant is not
desirous of prosecuting any
appeal against the plaintiffs
herein otherwise it would not
wait three 3 years after the
acquittal of the plaintiffs
before serving them with a
Notice of Appeal. At any rate
the only relief sought by the
said Notice of Appeal is a
reversal of the acquittal and
not the discharge of the
plaintiffs. It is the pendency
of this appeal which the
defendant alleges to be at
variance with Public Policy for
the civil cases to be settled
between the plaintiffs and the
defendants.
The concept of Public Policy
does not submit to easy
definition. Thus, in her book
“The Law of Contract in Ghana”
authored by Christine
Dowuona-Hammond, Frontiers
Printing & Publishing Company
Accra, Ghana (2011), the learned
author has stated at page 250
paragraph 11.1:
“CONTRACT WHICH ARE ILLEGAL ON
GROUNDS OF PUBLIC POLICY
The common law forbids certain
kinds of contracts on the ground
their purpose offends general
principles of public policy.
The concept of public policy has
proved difficult to define. It
is generally accepted, however,
that the concept of public
policy is applied by the courts
to emphasize the fact that no
court will assist a plaintiff to
enforce a contract, which in its
view, is injurious to society.
Injury to society, however, is
not easy to define. Contracts
have been held unenforceable
because they are contrary to the
general policy of the law, or
against the public good, or
against good morals etc. It is
clear, however, that the courts
applying the concept of public
policy have been of the view
that any contract which tends to
prejudice the social or economic
interest of the community must
be forbidden.
It must further be noted that
public policy is a variable or
changing notion, depending on
changing manners, morals and
social and economic conditions
of a particular society. By its
very nature, the law on public
policy cannot remain unchanged.
It changes with the passage of
time. Beyond that it changes
with the place, since social and
economic conditions are
invariably reflected in the
ideals of public policy. For
this reason, notions of public
policy in the U.K. are bound to
be different from the notions of
public policy in Ghana and
therefore the role of the courts
is to adapt the common law
notions of public policy to fit
the peculiar social and economic
circumstance in Ghana”.
Professor D. D. Prentice has
tried to set out the scope of
Public Policy in his
contribution to the discussion
in the book Chitty on Contracts,
Volume 1, Sweet & Maxwell,
London (1999); The Common Law
Library. At page 838 paragraph
17 – 005 the learned writer had
stated that:
“Scope of public policy
Objects which on grounds of
public policy invalidate
contracts may, for convenience,
be generally classified into
five group: first, objects which
are illegal by common law or by
legislation; secondly, objects
injurious to good government
either in the field of domestic
or foreign affairs; thirdly,
objects which interfere with the
proper working of the machinery
of justice; fourthly, objects
injurious to marriage and
morality; and fifthly, objects
economically against the public
interest. This classification
is adopted primarily for ease of
exposition. Certain cases do
not fit clearly into any these
five categories. For example,
an agreement was held
unenforceable by reason of the
undertaking contained in it on
the part of one of the parties,
a newspaper, not to publish any
comment on the activities of a
company with which the other
party was connected (although
this was also held to be
injurious to trade and commerce
as in restraint of trade). Any
undertaking not to disclose
matters of legitimate public
interest may be insufficient
consideration to support a
contract, and, if the matters
are such that in the public
interest they ought to be
disclosed, an undertaking not to
disclose them certainly will not
be enforced”.
Professor D. D. Prentice has
argued at the same page that
“most importantly, there is a
public policy in favour of
upholding contracts freely
entered into, a policy which of
course the doctrine of
illegality completely
undermines”.
In PRINTING and NUMERICAL
REGISTERING CO. V. SAMPSON
(1875) L.R. 19 Eq. 462 Jessel
MR. has made the point
forcefully that:
“It must not be forgotten that
you are not to extend
arbitrarily those rules which
says that a given contract is
void as being against public
policy, because if there is one
thing which more than another
public policy requires, it is
that men of full age and
competent understanding shall
have the utmost liberty of
contracting and that their
contracts when entered into
freely and voluntarily shall be
held sacred and shall be
enforced by courts of justice.
Therefore, you have this
paramount public policy to
consider- that you are not
likely to interfere with freedom
of contract”.
Apart from saying that there is
a criminal appeal pending
against the plaintiffs herein in
which the defendant is seeking
the reversal of the order
acquitting the plaintiffs by the
judgment of the High Court which
also discharged the plaintiffs,
the defendant has offered no
evidence to show that the
settlement between the defendant
and the plaintiffs offends
general principles of public
policy. There is no evidence
that the terms of settlement is
injurious to society or that it
is against the public good or
against public morals or that it
is prejudicial to the social or
economic interest of the
society. There is no evidence
to show that the settlement is
illegal in anyway.
Public Policy has been described
as “a very unruly horse, and
when once you get astride it you
never know where it will carry
you”. See RICHARDSON V MELLISH
(1824) 2 Bing 229 at 252. Lord
Denning MR. however says that
“with a good man in the saddle,
the unruly horse can be kept in
control. It can jump over
obstacles”. See Ender by Town
Football Club Ltd v the Football
Association Ltd (1971) Ch. 591
at 606.
As already pointed out, the
defendant has failed to prove
that the terms of settlement
entered into between the
plaintiffs and the defendant
herein are contrary to Public
Policy. The defendant will
therefore not be allowed to
avoid its obligations under the
terms of settlement on the
ground that it runs counter to
Public Policy.
Another issue raised by the
defendant is whether or not the
terms of settlement can be set
aside on grounds of mutual
mistake. Christine Dowuona –
Hammond in her book the Law of
Contract in Ghana (aforesaid)
has this to say on mutual
mistake at page 189 that:
“Mutual mistake is said to exist
where, although to all outward
appearances the parties are
agreed, there is in fact no
genuine consensus between them
because one party makes an offer
to the other, which the other
accepts in a different sense
from that intended by the
offeror. Here, the two parties,
unknown to each other are at
cross purposes, in that, each
party is mistaken as to the
other party’s intention, even
though neither party realizes
that their respective promises
have been misunderstood. An
example of mutual mistake could
exist where A offers to sell his
car to B, intends to sell him
his Mercedes Benz to B, but B
accepts the offer, thinking that
A intends to sell him his BMW
car. The question is this; is
there a contract, if so, what is
the subject matter of the
contract of sale?
In deciding whether or not a
contract should be deemed to
exist, the courts apply the
objectives test to determine
whether an agreement can be
inferred from the facts or not”.
Despite alleging that the terms
of settlement was arrived at or
agreed upon by the parties upon
a mutual mistake none of the
witnesses invited by the
defendant was able to give
evidence as to the alleged
mistake of fact which the
parties to the settlement fell
prey to. Indeed there is no
evidence whatsoever in proof of
the allegation that there was a
mutual mistake which vitiated
the agreement.
On the contrary the second
witness for the defendant DW2 –
Cecil Kwesi Adadevor, a Senior
State Attorney who works with
the defendant gave the following
evidence which in the opinion of
the court amounts to a clear
admission of the terms of
settlement negotiated and agreed
upon by the parties. Led by the
Chief State Attorney, DW 2 gave
the following answers to
questions put to him in his
evidence in chief:
“A: After we obtained the
stay the then learned Attorney
General invited me to a meeting
at which….
Q: Who was the Attorney
General at that time?
A: Hon. Betty Maud
Iddrisu invited me to attend a
meeting at which Mr.
Fosu-Gyeabour here was present.
And at the meeting she told him
to go and prepare his brief and
bring it back to another
meeting.
Q: She told him to
prepare a brief in respect of
what?
A: Of the cases that they
had against Attorney General.
And that she wanted to settle
that was my understanding, so
she asked him to go and prepare
his brief and bring it. So there
was a second meeting and he came
with the brief and I think after
submitting the briefs a third
meeting was scheduled. And at
the third meeting that was the
first time I met the plaintiff,
Kasule with his counsel. At the
meeting the Attorney General
decided to settle the case for 5
million dollars and 500 thousand
USD legal costs. I was asked to
prepared the terms of
settlement, which I did
but the title of the terms
of settlement was about
5 or 6 cases I am not too sure
unless I see the settlement,
Kasule signed and the lawyer
signed. I also prepared a letter
for the Attorney General to
Minister of Finance.
Q: I want you to have a
look at Exhibit “B”, I believe
Exhibit “B” is the copy of terms
of settlement?
A: That is so. I think I
have to make a correction. I
think I said 500 thousand USD
legal costs, but from the
document it is (GH¢ 1 million
legal costs. The terms of
settlement was signed by the
Deputy Attorney General by the
Plaintiff and his lawyer. After
that the Plaintiff and his
lawyer came to the Ministry and
I directed them to the registry
of the Ministry, the registry of
the Ministry too facilitated the
filing of the document. As I
sit here I cannot say whether it
was a clerk of the Ministry who
filed the terms of settlement in
the court or it was the
plaintiff and his lawyer”.
As already pointed out, the
testimony of DW 2 quoted above
amounts to an admission of the
propriety of the terms of
settlement. In SMITH vs. HUGHES
(1871) L.R. 6QB 597, Blackburn
J. summed up the position of the
law as follows:
“If whatever a man’s real
intentions may be, he so
conducts himself that a
reasonable man would believe
that he was assenting to the
terms proposed by the other
party, and the other party upon
that belief enters into a
contract with him, the man thus
conducting himself would be
equally bound as if he had
intended to agree to the other
party’s terms”.
I hold that there is no evidence
on record to show that the
plaintiffs and the defendant
suffered from any mutual mistake
or at all such as should vitiate
the terms of settlement which
they voluntarily and freely
agreed upon. Consequently the
defendant will not be allowed to
resile from the agreement.
The defendant says that the
cases settled were not pending
before the same court but
various courts. I know of no
law and the defendant has not
cited any to the court which
says that parties can settle
their cases only when the cases
are all pending before the same
court or judge. Again no law
has been cited to the court to
show that parties cannot settle
their case if the same is
pending before an Appellate
Court. Indeed section 71 of the
Courts Act 1993 Act 459 as
amended makes no discrimination
as to which court may allow
parties to settle their cases.
Section 72 of Act 459 states
that:
“72. Promotion of
reconciliation in civil cases
(1) A Court with civil
jurisdiction and its officers
shall promote reconciliation,
encourage and facilitate
settlement of disputes in an
amicable manner between and
among persons over whom the
Court has jurisdiction.
(2) Where a civil suit or
proceeding is pending, a Court
with jurisdiction in that suit
or proceeding may promote
reconciliation among the
parties, and encourage and
facilitate the amicable
settlement of the suit or
proceeding”.
As already stated parties to a
case are free to settle their
cases at any time even after
judgment had been pronounced by
a court of competent
jurisdiction. In ROCKSON vs.
GHANA FOOTBALL ASSOCIATION
[2010] SCGLR 443, SC; the court
pointed out that:
“It was well settled that
parties could voluntarily agree
to resort to Alternative Dispute
Resolution (ADR) mechanism such
as arbitration or mediation.
That was an accepted public
policy in all legal systems”.
In REPUBLIC VS. HIGH COURT, CAPE
COAST, EX-PARTE GHANA COCOA
BOARD (APOTOI III INTERESTED
PARTY) (supra) the Supreme Court
held that:
“Parties could compromise an
action or even a judgment of a
competent court. In that event,
the parties would be held to
their bargain in place of such
action or judgment”.
It was also alleged that the 2nd
plaintiff herein was not a party
to the settlement and therefore
has no capacity to institute the
present action. I find this
allegation to be a complete
misapprehension of the evidence
adduced before the court
particularly exhibit ‘B’ and
exhibit ‘C’ which shows that the
2nd plaintiff herein
was party to at least two of
the cases which were settled by
the parties. I hold that the 2nd
plaintiff being a party to the
settlement has the right and
capacity to institute the
instant action against the
defendant.
In INUSAH V DHL [1992] 1 GLR 267
HC it was held that:
“the general rule was that when
a document containing
contractual terms was signed,
then in the absence of fraud or
misrepresentation, a party of
full age and understanding was
bound to the contract to which
he appended his signature. In
such a case it would be
immaterial whether he read the
document or not”.
One issue initially raised by
the defendant but which appears
to have been abandoned by them
was whether or not the Court has
jurisdiction to hear this
matter. Apart from the fact that
this issue was not addressed in
any way in the addresses filed
by the defendant no evidence was
also led to prove this
assertion. Article 140 (1) of
the Constitution 1992 gives
jurisdiction to the High Court
in all matters except matters
which the Constitution itself
takes out of the jurisdiction of
the High Court.
Touching on the jurisdiction of
the High Court, the Supreme
Court per Bamford- Addo JSC said
at pages 321 to 322 in the case
of SAM (NO.2) vs. ATTORNEY
GENERAL [2000] SCGLR 305 that:
“The High Court was given
jurisdiction in all matters in
article 140(1) subject to the
Constitution; but nowhere was
this wide jurisdiction limited,
curtailed or taken away in the
circumstances set out in section
15 of PNDCL 326; rather, other
further jurisdiction could, as
stated in article 140(1), be
conferred on it by the
Constitution or by any other
law. So that unless the
jurisdiction conferred on the
High Court is expressly or by
necessary implication limited,
ousted or curtailed, by the same
Constitution, no subordinate law
such as section 15 of PNDCL 326,
which seeks to oust the High
Court’s jurisdiction in tort in
certain circumstances, can so
provide.
The plaintiff argued that the
High Court is invested with
civil jurisdiction to adjudicate
in respect of torts committed by
the State or its employees by
virtue of article 140(1) and
293(1) and (2) and therefore
section 15 of PNDCL 326 cannot
oust the High Court’s
jurisdiction in respect of torts
committed by the State and its
employees as the said law
appears to do today. This
interpretation, it seems to me,
not only stems from the clear
and unambiguous language of
article 140(1), but is also in
conformity with the legal
presumption concerning the
jurisdiction of the Superior
Courts as stated in Akyem
v Adu; Adu v
Brantuo (Consolidated)
[1976] 2 GLR 63 where it is
stated in holding (2) thus:
“(2) There was a presumption
that no matter was deemed to be
beyond the jurisdiction of a
superior court unless it was
expressly shown to be so; while
nothing was within the
jurisdiction of an inferior
court unless it was expressly
shown on the face of the
proceedings of the particular
court. Similarly there was a
strong presumption against the
construction of statutes so as
to oust established jurisdiction
or else restrict the
jurisdiction of the Superior
Courts.”
The instant case borders on the
enforcement of a contract and it
cannot be said to be outside the
jurisdiction of the High Court.
I hold therefore that the Court
has jurisdiction to hear the
instant case.
From the evidence on record I
find and hold that the terms of
settlement agreed upon by the
plaintiffs and the defendant on
the 29th day of
October, 2010 in consequence of
which the defendant wrote
exhibit ‘C’ is binding on the
defendant herein. The court
will therefore dismiss the
counterclaim filed by the
defendant and enter judgment for
the plaintiffs on their claims
against the defendant. The
plaintiffs shall recover cash
the sum of Five Million United
States Dollars ($5, 000, 000)
and a further sum of One Million
Ghana Cedis (GH¢1, 000, 000) as
agreed upon in the terms of
settlement from the defendant
herein. The plaintiff will also
be permitted to recover interest
on the said amounts from 29th
October, 2010 till the date of
final payment.
The plaintiffs have shown that
as a result of the breach of the
defendant to honour its
obligations under the terms of
settlement, they have suffered
hardship. The 2nd
plaintiff stated in his evidence
in chief, among others, that
“we even won a contract and we
couldn’t operate the contract
for a number of months because
we were expecting to pay part of
the money into the contract and
yet because the money did not
come we couldn’t get the
contract moving for some months
until later on we had to get
assistance from UT Bank with
interest before we started the
project”.
It must be pointed out that the
1st plaintiff is a
Limited Liability Company which
engages, among other businesses,
in general construction. The 2nd
plaintiff is also the Director
and Chief Executive Officer of
the 1st plaintiff as
pleaded in paragraphs 1 and 2 of
the statement of claim and
admitted by the defendant in
paragraph 1 of its statement of
defence.
The plaintiffs tendered in
evidence exhibit ‘H’ a document
showing that the 1st
plaintiff has been contracted by
the Department of Urban Roads of
the Ministry of Roads and
Highways to undertake an
emergency rehabilitation of some
roads including the 3.0km
Adjei-Kojo Road.
Again the plaintiffs tendered in
evidence exhibit ‘J’ an
agreement by which the
plaintiffs borrowed various sums
of money at interest from the UT
Bank to finance the construction
of the road and other
activities.
This piece of evidence given by
the plaintiffs was never
challenged by the defendant
under cross examination. Indeed
the defendant is deemed to admit
the unchallenged evidence. See
QUAGRAINE VS. ADAMS [1981] GLR
599 CA.
It follows therefore that as a
result of the defendant’s
failure to pay the plaintiffs as
agreed under the terms of
settlement by virtue of the
letter of 4th
February, 2011 written by the
defendant and addressed to the
Honourable Minister of Finance
and Economic Planning exhibit
‘N’ herein which in turn
culminated in the stoppage or
suspension of payment of the
agreed sums to the plaintiffs
as indicated in the Ministry of
Finance letter dated 2nd
March 2011 and addressed to the
plaintiffs’ solicitors exhibit
‘D’ herein, the plaintiff were
put at extra cost by the
deprivation of their money as a
result of the actions of the
defendant.
The court therefore finds that
the plaintiffs have suffered
hardship and has been put to
extra expenses thereby. The
court holds therefore that the
plaintiffs are entitled to
recover general damages as
indorsed on their writ of
summons.
The court will therefore award
the plaintiffs general damages
in the sum of GHC150,000.00
against the defendant for breach
of contract. Costs of
GHC35,000.00 to the Plaintiffs
against the defendant.
S. K. A. ASIEDU, J.
JUSTICE OF THE HIGH COURT |
