Contract -
Breach of contract - Banking -
Loan agreement - Importation
tractors - New terms of
agreement - Detention and
disposal of 20 tractors -
concurrent liability in contract
and tort – Whether or not the
facts of each case will
determine whether the extent of
any concurrent imposition of a
liability in contract and tort
is justifiable – Whether or not
the plaintiff’s liability under
the loan contract to the
defendant bank remains
outstanding
HEADNOTES
The key facts
in this appeal are that a
farming company the plaintiff
entered into a
loan
agreement with a bank the
defendant to finance the
importation of 10
tractors from France. On
their arrival in Ghana, the
farming company took delivery
and custody of the tractors.
Dissatisfied with this, the bank
seized the tractors and put them
in its warehouse. It released 5
of the tractors to the company
only after
new terms
had been agreed between
them. The remaining five
remained in the bank’s custody
until they were ultimately sold
by the bank. The bank claimed
to be exercising rights under
the original loan agreement that
it had concluded with the
farming company. But this
agreement was never put in
evidence at the trial.
Eventually, the five tractors
released to the company were
also seized by the bank and
sold. The claim and counterclaim
of the company and the bank
respectively came for trial at
the High Court and judgment was
delivered in favour of the
company and the bank’s
counterclaim dismissed, the
learned trial judge’s holding
was in substance upheld on
appeal by the Court of Appeal.
HELD
In the
result, the appeal is allowed in
part. The damages for
conversion awarded by the
learned trial judge and affirmed
by the Court of Appeal are
hereby further affirmed, subject
to a deduction from them of the
plaintiff/ respondent /
respondent’s outstanding
indebtedness to the
defendant/appellant/appellant,
together with interest at the
bank rate, in accordance with
the Court (Award of Interest and
Post Judgment Interest) Rules,
2005 (CI 52). However, there
should be deducted from the
interest thus payable the
interest due on the sum owed to
the defendant from the date of
seizure of the tractors to the
date of their sale. This
deduction of interest represents
a measure of damages for breach
of the contract of loan which is
more than nominal damages.
STATUTES
REFERRED TO IN JUDGMENT
Common Law
Procedure Act 1852
Court (Award
of Interest and Post Judgment
Interest) Rules, 2005 (CI 52).
CASES
REFERRED TO IN JUDGMENT
Henderson v
Merrett Syndicates Ltd. [1994] 3
All E.R. 506.
J Bracconot
et Cie v Cie des Messageries
Maritimes (The Sindh) [1975] 1
Lloyd's Rep 372),
Bean v Wade
(1885) 2 TLR 157);
Groom v
Crocker [1938] 2 All ER 394,
[1939] 1 KB 194
Bagot v
Stevens Scanlan & Co Ltd [1964]
3 All ER 577 at 580, [1966] 1 QB
197
Tai Hing
Cotton Mill Ltd v Liu Chong Hing
Bank Ltd [1985] 2 All ER 947 at
957, [1986] AC 80 at 107:
Groom v
Crocker [1938] 2 All ER 394,
[1939] 1 KB 194
Hedley Byrne
& Co Ltd v Heller & Partners Ltd
[1963] 2 All ER 575, [1964] AC
465
Cann v
Willson (1888) 39 Ch D 39, and
[1963] 2 All ER [1964] AC 465
Groom v
Crocker [1938] 2 All ER 394,
[1939] 1 KB 194
Appeal in
Cook v S [1967] 1 All ER 299,
[1967] 1 WLR 457
Heywood v
Wellers (a firm) [1976] 1 All ER
300, [1976] QB 446
Esso
Petroleum Co Ltd v Mardon [1976]
2 All ER 5, [1976] QB 801.
Boorman v
Brown (1842) 3 QB 511 114 ER 603
(1844) 11 Cl & Fin 1 at 44, 8 ER
1003 at 1018-1019
Lister v
Romford Ice and Cold Storage Co
Ltd [1957] 1 All ER 125 at 139,
[1957] AC 555
Matthews v
Kuwait Bechtel Corp [1959] 2 All
ER 345, [1959] 2 QB 57
Nocton v Lord
Ashburton [1914] AC 932
[1914-15] All
ER Rep 45
Batty v
Metropolitan Property
Realizations Ltd [1978] 2 All ER
445, [1978] QB 554,
Midland Bank
Trust Co Ltd v Hett Stubbs &
Kemp (a firm) [1978] 3 All ER
571, [1979] Ch 384
Arenson v
Arenson [1975] 3 All ER 901,
[1977] AC 405
Esso
Petroleum Co Ltd v Mardon [1976]
2 All ER 5, [1976] QB 801
Groom v
Crocker [1938] 2 All ER 394,
[1939] 1 KB 194
Edwards v
Mallan [1908] 1 KB 1002
Donoghue v
Stevenson [1932] AC 562 at 610,
[1932] All ER Rep 1
Grant v
Australian Knitting Mills Ltd
[1936] AC 85
Aluminum
Products (Qld) Pty Ltd v Hill
[1981] Qd R 33
In re Timber
and Transport Kumasi – Krusevac
Co. Ltd, Sativa v Bonsu [1981]
GLR 256
Wallis, Son &
Wells v. Pratt and Haynes [1910]
2 K.B. 1003, C.A.;
Sweet &
Maxwell Ltd. v. Universal News
Services Ltd. [1964] 3 All E.R.
30
Joseph v.
Boakye [1977] 2 G.L.R. 392 at p.
402, C.A.
Johnson v
Agnew [1980] AC 367
Sunley and
Company Ltd. v Cunard White
Star Ltd. [1940] 1 KB 740
BOOKS
REFERRED TO IN JUDGMENT
Weir in XI
Int Enc Comp Law, ch 12, paras
47-72, at para 52)
Handbook on
the Law of Torts (7th edn, 1984)
p 444)
Fleming Law
of Torts (8th edn, 1992) p
187).
Cheshire,
Fifoot and Furmston’s Law of
Contract (15th Ed,
2007
Dam v Addo
[1962] 2 GLR 200
Barclays Bank
Ghana Ltd v Sakari 1997-98 1 GLR
746, SC
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH
JSC:
COUNSEL
L.N.S.
AKUETTEH (WITH HIM PAUL DEKYI)
FOR THE APPELLANT.
NII AKWEI
BRUCE-THOMPSON FOR THE
RESPONDENT.
_____________________________________________________________________________________
J U D G M E N
T
_____________________________________________________________________________________
DR. DATE-BAH
JSC:
The key facts
in this appeal are that a
farming company (the
plaintiff/respondent/respondent)
entered into a loan agreement
with a bank (the
defendant/appellant/appellant)
to finance the importation of 10
tractors from France. On their
arrival in Ghana, the farming
company took delivery and
custody of the tractors.
Dissatisfied with this, the bank
seized the tractors and put them
in its warehouse. It released 5
of the tractors to the company
only after new terms had been
agreed between them. The
remaining five remained in the
bank’s custody until they were
ultimately sold by the bank.
The bank claimed to be
exercising rights under the
original loan agreement that it
had concluded with the farming
company. But this agreement was
never put in evidence at the
trial. Eventually, the five
tractors released to the company
were also seized by the bank and
sold.
The farming
company brought this action in
1993, claiming:
a)
“that an account be taken of the
proceeds obtained by the
Defendants from the operation of
5 (five) Renault agricultural
tractors belonging to the
Plaintiffs from 1988 to date of
disposal plus interest on such
proceeds at the rate of 26% or
the prevailing bank rate
whichever is higher;
b)
that an account be taken of the
proceeds obtained from the sale
of 10 (ten) Renault tractors
belonging to Plaintiffs by
defendants plus interest thereon
at 26% or the prevailing bank
rate whichever is higher;
c)
General damages for wrongful
detention
and disposal of 20 (sic) (ten)
Renault tractors the
property of the plaintiffs by
the defendants or Alternatively
an order for the replacement by
the Defendants of the 10 Renault
tractors plus damages for their
wrongful detention and or
wrongful disposal.
d)
An order that any sums
outstanding in respect of claims
(a) and (b) above be paid to the
Plaintiffs by the defendants.”
The bank, in response,
counterclaimed for:
a)
“Account of all the jobs
undertaken by Plaintiffs and the
proceeds obtained from them for
the use of 5 (five) Renault
Agricultural Tractors from 1986
to 1992.
b)
Payment to defendants of the
Plaintiff’s outstanding
indebtedness and interest
thereon at the current Bank
rate.”
From the
nature of the claim and
counterclaim, it would appear
that the company sued in tort,
whilst the bank counterclaimed
in
contract.
The claim
and counterclaim of the company
and the bank respectively came
before Aryeetey JA, as he then
was, for trial at the High Court
and he delivered judgment on 30th
July 2007 in favour of the
company on its claim and
dismissed the bank’s
counterclaim, after a full trial.
The learned
trial judge found that the bank,
without reference to the farming
company, had caused to be sold
both the 5 tractors that they
had permitted the company to put
in use and the 5 brand new and
unused tractors which they had
refused to release to the
plaintiffs. He also found that
there was no justification for
the bank’s detention of the
company’s chattels. He found
that the relationship between
the bank and the company was
that of banker and customer and
nothing more. He highlighted
the fact that the bank had been
unable to produce a copy of the
agreement under which it
purported to exercise a right to
take possession of the
tractors. In his own words (at
pp. 271-2 of the Record):
“However,
what is missing from various
documents tendered in evidence
is what should have been the
original loan agreement between
the plaintiff company and
defendant bank which in the
first place facilitated the
importation of the ten Renault
tractors from France into the
country. That document governed
the relationship between the
parties at the time of the
seizure of the ten tractors
which were warehoused at the
instance of the plaintiff
company. As it turned out by
its conduct the defendant bank
assumed the role of owners of
all the ten tractors that were
ordered at the instance of the
plaintiff company and in fact
were all consigned to the
plaintiff company. I do not
think that under the missing
agreement document the defendant
bank had power to seize the
tractors on their arrival and
assume the right as owners to
compel the plaintiffs to agree
to completely new terms under
new agreements. If that had
been the case the defendant bank
would have been quick to tender
that document in evidence in
support of its despicable
conduct in seizing the tractors
from the plaintiffs.”
Although, as
noted above, the company sued in
tort, the learned trial judge
purported to resolve aspects of
the case on the basis of a
contractual analysis. He was
correct in this regard since the
bank, having counterclaimed on
its contract of loan for the
farming company’s outstanding
indebtedness to be enforced, put
a contractual dimension of the
case into play.
Aryeetey JA
argued that since the bank was
in fundamental
breach of
the contract of loan with
the company by unlawfully
seizing the tractors belonging
to the company, this breach
discharged the company from any
further obligations under the
contract of loan. Accordingly,
the company was no longer under
any obligation to repay the loan
that it had received. This is a
startling proposition of law and
one that seems to invoke
forfeiture as a penalty against
the bank. Although it is in a
different context that the maxim
“equity abhors a forfeiture” is
usually considered, issues of
unconscionability and equity
cannot be ignored on the facts
of this case. The case has very
significant commercial
implications beyond the facts of
this particular case and
therefore deserves careful
consideration,
since the
learned trial judge’s holding
was in substance upheld on
appeal by the Court of Appeal.
The learned
trial judge articulated the
proposition of law referred to
above thus (at pp. 279-80 of the
Record):
“I am of the
view that the breach in respect
of the five tractors which the
defendant bank kept and were not
put to any use until they were
sold at its instance together
with the five other tractors
which it had earlier released
for use by the plaintiff
company, without any reference
to the plaintiff company, was
fundamental in that the
plaintiff company’s ownership of
the tractors and its half
measure means of repaying the
loan were taken away. It also
means that the conversion
committed by the defendant bank
in both instances which amounted
to repudiation of its rights
under the contract brought
everything to an end and in fact
by its conduct the defendant
bank forfeited its rights to any
further claims under the
contract. It would not
therefore be expected that the
plaintiffs would be required to
honour their debt obligation in
respect of the ten tractors. On
the other hand the plaintiff
company would be entitled to
pursue a claim for wrongful
seizure and detention of their
tractors. Indeed the plaintiffs
claim for general damages for
wrongful detention and disposal
of all their ten Renault
tractors by the defendants or
alternatively an order for the
replacement by the defendants of
the ten Renault tractors plus
damages for their wrongful
detention and or wrongful
disposal.”
This position
of the learned trial judge would
appear, on close analysis, to be
awarding, in effect, double
compensation in respect of the
same injury arising from the
same set of triggering facts.
The company is released from the
obligation to repay the debt it
had contracted and received and
also allowed to recover damages
for conversion by the bank of
the chattels purchased with the
loan. Causes of action in both
contract and tort are upheld on
the same facts. Is this
justifiable, on the facts of
this case?
In principle,
there can be concurrent
liability in both contract and
tort. In the past, there was
some confusion on this issue of
principle in English law, but
the modern English law has been
authoritatively settled in the
English House of Lords case
of
Henderson v Merrett Syndicates
Ltd. [1994] 3 All E.R. 506.
Lord Goff’s speech in that case
is particularly instructive and
it is helpful to quote a fairly
lengthy passage from it on this
issue (at p. 522 et seq.):
“All systems
of law which recognise a law of
contract and a law of tort (or
delict) have to solve the
problem of the possibility of
concurrent claims arising from
breach of duty under the two
rubrics of the law. Although
there are variants, broadly
speaking two possible solutions
present themselves: either to
insist that the claimant should
pursue his remedy in contract
alone, or to allow him to choose
which remedy he prefers. As my
noble and learned friend Lord
Mustill and I have good reason
to know (see
J
Bracconot et Cie v Cie des
Messageries Maritimes (The
Sindh) [1975] 1 Lloyd's Rep
372), France has adopted the
former solution in its doctrine
of non cumul, under which the
concurrence of claims in
contract and tort is outlawed
(see Weir
in XI Int Enc Comp Law, ch 12,
paras 47-72, at para 52).
The reasons given for this
conclusion are (1) respect for
the will of the legislator, and
(2) respect for the will of the
parties to the contract (see
para 53). The former does not
concern us; but the latter is of
vital importance. It is however
open to various interpretations.
For such a policy does not
necessarily require the total
rejection of concurrence, but
only so far as a concurrent
remedy in tort is inconsistent
with the terms of the contract.
It comes therefore as no
surprise to learn that the
French doctrine is not followed
in all civil law jurisdictions,
and that concurrent remedies in
tort and contract are permitted
in other civil law countries,
notably Germany (see para 58). I
only pause to observe that it
appears to be accepted that no
perceptible harm has come to the
German system from admitting
concurrent claims.
The situation in common law
countries, including of course
England, is exceptional, in that
the common law grew up within a
procedural framework
uninfluenced by Roman law. The
law was categorised by reference
to the forms of action, and it
was not until the abolition of
the forms of action by the
Common
Law Procedure Act 1852 that
it became necessary to
reclassify the law in
substantive terms. The result
was that common lawyers did at
last segregate our law of
obligations into contract and
tort, though in so doing they
relegated quasi-contractual
claims to the status of an
appendix to the law of contract,
thereby postponing by a century
or so the development of a law
of restitution. Even then, there
was no systematic
reconsideration of the problem
of concurrent claims in contract
and tort. We can see the courts
rather grappling with
unpromising material drawn from
the old cases in which liability
in negligence derived largely
from categories based upon the
status of the defendant. In a
sense, we must not be surprised;
for no significant law faculties
were established at our
universities until the late
nineteenth century, and so until
then there was no academic
opinion available to guide or
stimulate the judges. Even so,
it is a remarkable fact that
there was little consideration
of the problem of concurrent
remedies in our academic
literature until the second half
of the twentieth century, though
in recent years the subject has
attracted considerable
attention.
In the result, the courts in
this country have until recently
grappled with the problem very
largely without the assistance
of systematic academic study. At
first, as is shown in particular
by cases concerned with
liability for solicitors'
negligence, the courts adopted
something very like the French
solution, holding that a claim
against a solicitor for
negligence must be pursued in
contract, and not in tort (see
eg, Bean
v Wade (1885) 2 TLR 157); and in
Groom v Crocker [1938] 2 All ER
394, [1939] 1 KB 194 this
approach was firmly adopted. It
has to be said, however, that
decisions such as these, though
based on prior authority, were
supported by only a slender
citation of cases, none of great
weight; and the jurisprudential
basis of the doctrine so adopted
cannot be said to have been
explored in any depth.
Furthermore, when in
Bagot v
Stevens Scanlan & Co Ltd [1964]
3 All ER 577 at 580, [1966] 1 QB
197 at 204-205 Diplock LJ
adopted a similar approach in
the case of a claim against a
firm of architects, he felt524
compelled to recognise that a
different conclusion might be
reached in cases 'where the law
in the old days recognised
either something in the nature
of a status like a public
calling (such as common carrier,
common innkeeper, or a bailor
and bailee) or the status of
master and servant'. To this
list must be added cases
concerned with claims against
doctors and dentists. I must
confess to finding it startling
that, in the second half of the
twentieth century, a problem of
considerable practical
importance should fall to be
solved by reference to such an
outmoded form of categorisation
as this.
I think it is desirable to
stress at this stage that the
question of concurrent liability
is by no means only of academic
significance. Practical issues,
which can be of great importance
to the parties, are at stake.
Foremost among these is perhaps
the question of limitation of
actions. If concurrent liability
in tort is not recognised, a
claimant may find his claim
barred at a time when he is
unaware of its existence. …
It can of course be argued that
the principle established in
respect of
concurrent liability in contract
and tort should not be
tailored to mitigate the
adventitious effects of rules of
law such as these, and that one
way of solving such problems
would no doubt be 'to rephrase
such incidental rules as have to
remain in terms of the nature of
the harm suffered rather than
the nature of the liability
asserted' (see Weir, XI Int Enc
Comp Law ch 12, para 72). But
this is perhaps crying for the
moon; and with the law in its
present form, practical
considerations of this kind
cannot sensibly be ignored.
Moreover I myself perceive at
work in these decisions not only
the influence of the dead hand
of history, but also what I have
elsewhere called the temptation
of elegance. Mr Weir (XI Int Enc
Comp Law ch 12, para 55) has
extolled the French solution for
its elegance; and we can discern
the same impulse behind the
much-quoted observation of Lord
Scarman when delivering the
judgment of the Judicial
Committee of the Privy Council
in Tai
Hing Cotton Mill Ltd v Liu Chong
Hing Bank Ltd [1985] 2 All ER
947 at 957, [1986] AC 80 at 107:
'
Their
Lordships do not believe that
there is anything to the
advantage of the law's
development in searching for a
liability in tort where the
parties are in a contractual
relationship. This is
particularly so in a commercial
relationship. Though it is
possible as a matter of legal
semantics to conduct an analysis
of the rights and duties
inherent in some contractual
relationships including that of
banker and customer either as a
matter of contract law when the
question will be what, if any,
terms are to be implied or as a
matter of tort law when the task
will be to identify a duty
arising from the proximity and
character of the relationship
between the parties, their
Lordships believe it to be
correct in principle and
necessary for the avoidance of
confusion in the law to adhere
to the contractual analysis: on
principle because it is a
relationship in which the
parties have, subject to a few
exceptions, the right to
determine their obligations to
each other, and for the
avoidance of confusion because
different consequences do follow
according to whether liability
arises from contract or tort, eg
in the limitation of action.'
It is however
right to stress, as did
Sir Thomas Bingham MR in the
present case, that the issue in
Tai Hing was whether a tortious
duty of care could be
established which was more
extensive than that which was
provided for under the relevant
contract.
At all events, even before
Tai Hing we can see the
beginning of the redirection of
the common law away from the
contractual solution adopted in
Groom v
Crocker [1938] 2 All ER 394,
[1939] 1 KB 194, towards the
recognition of concurrent
remedies in contract and tort.
First, and most important, in
1963 came the decision of your
Lordships' House in
Hedley
Byrne & Co Ltd v Heller &
Partners Ltd [1963] 2 All ER
575, [1964] AC 465. I have
already expressed the opinion
that the fundamental importance
of this case rests in the
establishment of the principle
upon which liability may arise
in tortious negligence in
respect of services (including
advice) which are rendered for
another, gratuitously or
otherwise, but are negligently
performed-viz, an assumption of
responsibility coupled with
reliance by the plaintiff which,
in all the circumstances, makes
it appropriate that a remedy in
law should be available for such
negligence. For immediate
purposes, the relevance of the
principle lies in the fact that,
as a matter of logic, it is
capable of application not only
where the services are rendered
gratuitously, but also where
they are rendered under a
contract. Furthermore we can see
in the principle an acceptable
basis for liability in
negligence in cases which in the
past have been seen to rest upon
the now outmoded concept of
status. In this context, it is
of particular relevance to refer
to the opinion expressed both
implicitly by Lord Morris of
Borth-y-Gest (with whom Lord
Hodson agreed) and expressly by
Lord Devlin that the principle
applies to the relationship of
solicitor and client, which is
nearly always contractual (see
[1963] 2
All ER 575 at 590-591, [1964] AC
465 at 497-499 where Lord
Morris approved the reasoning of
Chitty J
in Cann v Willson (1888) 39 Ch D
39, and [1963] 2 All ER 575 at
610-611, [1964] AC 465 at
529 per Lord Devlin).
The decision in Hedley Byrne,
and the statement of general
principle in that case, provided
the opportunity to reconsider
the question of concurrent
liability in contract and tort
afresh, untrammelled by the
ancient learning based upon a
classification of defendants in
terms of status which drew
distinctions difficult to accept
in modern conditions. At first
that opportunity was not taken.
Groom v
Crocker [1938] 2 All ER 394,
[1939] 1 KB 194 was followed
by the Court of
Appeal in
Cook v S [1967] 1 All ER 299,
[1967] 1 WLR 457, and again
in
Heywood v Wellers (a firm)
[1976] 1 All ER 300, [1976] QB
446; though in the latter
case (see [1976] 1 All ER 300 at
306, [1976] QB 446 at 459) Lord
Denning MR was beginning to show
signs of dissatisfaction with
the contractual test accepted in
Groom v Crocker-a
dissatisfaction which
crystallised into a change of
heart in
Esso Petroleum Co Ltd v Mardon
[1976] 2 All ER 5, [1976] QB
801. That case was concerned
with statements made by
employees of Esso in the course
of pre-contractual negotiations
with Mr Mardon, the prospective
tenant of a petrol station. The
statements related to the
potential throughput of the
station. Mr Mardon was persuaded
by the statements to enter into
the tenancy; but he suffered
serious loss when the actual
throughput proved to be much
lower than had been predicted.
The Court of Appeal held that Mr
Mardon was entitled to recover
damages from Esso, on the basis
of either breach of warranty or
(on this point affirming the
decision of the judge below)
negligent misrepresentation. In
rejecting an argument that
Esso's liability could only be
contractual, Lord Denning MR
dismissed Groom v Crocker as
inconsistent with other
decisions of high authority,
viz
Boorman v Brown (1842) 3 QB 511
at 525-526, 114 ER 603 at 608
per Tindal CJ; (1844) 11 Cl &
Fin 1 at 44, 8 ER 1003 at
1018-1019 per Lord Campbell;
Lister v
Romford Ice and Cold Storage Co
Ltd [1957] 1 All ER 125 at 139,
[1957] AC 555 at 587 per
Lord Radcliffe;
Matthews
v Kuwait Bechtel Corp [1959] 2
All ER 345, [1959] 2 QB 57 and
Nocton v Lord Ashburton [1914]
AC 932 at 956,
[1914-15]
All ER Rep 45 at 54 per
Viscount Haldane LC. He then
held that, in addition to its
liability in contract, Esso was
also liable in negligence. The
other members of the Court of
Appeal, Ormrod and Shaw LJJ,
agreed that Mr Mardon was
entitled to recover damages
either for breach of warranty or
for negligent misrepresentation,
though neither expressed any
view about the status of Groom v
Crocker. It was however implicit
in their decision that, as Lord
Denning held, concurrent
remedies were available to Mr
Mardon in contract and tort. For
present purposes, I do not find
it necessary to comment on the
authorities relied upon by Lord
Denning as relieving him from
the obligation to follow Groom v
Crocker; though I feel driven to
comment that the judgments in
Esso Petroleum Co Ltd v Mardon
reveal no analysis in depth of
the basis upon which concurrent
liability rests. That case was,
however, followed by the Court
of Appeal in
Batty v
Metropolitan Property
Realizations Ltd [1978] 2 All ER
445, [1978] QB 554, in which
concurrent remedies in contract
and tort were again allowed.
The requisite analysis is,
however, to be found in the
judgment of Oliver J in
Midland
Bank Trust Co Ltd v Hett Stubbs
& Kemp (a firm) [1978] 3 All ER
571, [1979] Ch 384, in which
he held that a solicitor could
be liable to his client for
negligence either in contract or
in tort, with the effect that in
the case before him it was open
to the client to take advantage
of the more favourable date of
accrual of the cause of action
for the purposes of limitation.
In that case Oliver J was much
concerned with the question
whether it was open to him, as a
judge of first instance, to
depart from the decision of the
Court of Appeal in Groom v
Crocker. For that purpose, he
carried out a most careful
examination of the relevant
authorities, both before and
after Groom v Crocker, and
concluded that he was free to
depart from the decision in that
case, which he elected to do.
It is impossible for me to do
justice to the reasoning of
Oliver J, for which I wish to
express my respectful
admiration, without unduly
prolonging what is inevitably a
very long opinion. I shall
therefore confine myself to
extracting certain salient
features. First, from his study
of the cases before Groom v
Crocker, he found no unanimity
of view that the solicitor's
liability was regarded as
exclusively contractual. …
He expressed
his conclusion concerning the
impact of Hedley Byrne on the
case before him in the following
words ([1978] 3 All ER 571 at
595-596, [1979] Ch 384 at 417):
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'The case of a layman
consulting a solicitor
for advice seems to me
to be as typical a case
as one could find of the
sort of relationship in
which the duty of care
described in the Hedley
Byrne case [1963] 2 All
ER 575, [1964] AC 465
exists; and if I am free
to do so in the instant
case, I would,
therefore, hold that the
relationship of
solicitor and client
gave rise to a duty on
the defendants under the
general law to exercise
that care and skill upon
which they must have
known perfectly well
that their client
relied. To put it
another way, their
common law duty was not
to injure their client
by failing to do that
which they had
undertaken to do and
which, at their
invitation, he relied on
them to do. That duty
was broken, but no cause
of action in tort arose
until the damage
occurred; and none did
until 17th August 1967.
I would regard it as
wholly immaterial that
their duty arose because
they accepted a retainer
which entitled them, if
they chose to do so, to
send a bill to their
client.'
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I wish to express my respectful
agreement with these passages in
Oliver J's judgment.
Thereafter, Oliver J
proceeded to consider the
authorities since Hedley Byrne,
in which he found, notably in
statements of the law by members
of the Appellate Committee in
Arenson v
Arenson [1975] 3 All ER 901,
[1977] AC 405 and in the
decision of the Court of Appeal
in Esso
Petroleum Co Ltd v Mardon [1976]
2 All ER 5, [1976] QB 801,
the authority which relieved him
of his duty to follow
Groom v
Crocker [1938] 2 All ER 394,
[1939] 1 KB 194. But I wish
to add that, in the course of
considering the later
authorities, he rejected the
idea that there is some general
principle of law that a
plaintiff who has claims against
a defendant for breach of duty
both in contract and in tort is
bound to rely upon his
contractual rights alone. He
said ([1978] 3 All ER 571 at
598, [1979] Ch 384 at 420):
|
'There is not and
never has been any rule
of law that a person
having alternative
claims must frame his
action in one or the
other. If I have a
contract with my dentist
to extract a tooth, I am
not thereby precluded
from suing him in tort
if he negligently
shatters my jaw (Edwards
v Mallan [1908] 1 KB
1002).'
|
The origin of concurrent
remedies in this type of case
may lie in history; but in a
modern context the point is a
telling one. Indeed it is
consistent with the decision in
Donoghue
v Stevenson itself, and the
rejection in that case of the
view, powerfully expressed in
the speech of Lord Buckmaster
(see [1932] AC 562 esp at
577-578, [1932] All ER Rep 1 esp
at 10), that the manufacturer or
repairer of an article owes no
duty of care apart from that
implied from contract or imposed
by statute. That there might be
co-existent remedies for
negligence in contract and in
tort was expressly recognised by
Lord Macmillan in
Donoghue
v Stevenson [1932] AC 562 at
610, [1932] All ER Rep 1 at
25 and by Lord Wright in
Grant v
Australian Knitting Mills Ltd
[1936] AC 85 at 102-104,
[1935] All ER Rep 209 at
216-217. Attempts have been made
to explain how doctors and
dentists may be concurrently
liable in tort while other
professional men may not be so
liable, on the basis that the
former cause physical damage
whereas the latter cause pure
economic loss (see the
discussion by Christine French
'The Contract/Tort Dilemma'
(1981-84) 5 Otago LR 236 at
280-281). But this explanation
is not acceptable, if only
because some professional men,
such as architects, may also be
responsible for physical damage.
As a matter of principle, it is
difficult to see why concurrent
remedies in tort and contract,
if available against the medical
profession, should not also be
available against members of
other professions, whatever form
the relevant damage may take.
The judgment of Oliver J in
Midland
Bank Trust Co Ltd v Hett Stubbs
& Kemp (a firm) [1978] 3 All ER
571, [1979] Ch 384 provided
the first analysis in depth of
the question of concurrent
liability in tort and contract.
Following upon Esso Petroleum Co
Ltd v Mardon [1976] 2 All ER 5,
[1976] QB 801, it also broke the
mould, in the sense that it
undermined the view which was
becoming settled that, where
there is an alternative
liability in tort, the claimant
must pursue his remedy in
contract alone. The development
of the case law in other common
law countries is very striking.
In the same year as the Midland
Bank Trust case, the Irish
Supreme Court held that
solicitors owed to their clients
concurrent duties in contract
and tort: see Finlay v Murtagh
[1979] IR 249. Next, in Central
Trust Co v Rafuse (1986) 31 DLR
(4th) 481 Le Dain J, delivering
the judgment of the Supreme
Court of Canada, conducted a
comprehensive and most
impressive survey of the
relevant English and Canadian
authorities on the liability of
solicitors to their clients for
negligence, in contract and in
tort, in the course of which he
paid a generous tribute to the
analysis of Oliver J in the
Midland Bank Trust case. His
conclusions are set out in a
series of propositions (at
521-522); but his general
conclusion was to the same
effect as that reached by Oliver
J. He said (at 522):
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'A concurrent or
alternative liability in
tort will not be
admitted if its effect
would be to permit the
plaintiff to circumvent
or escape a contractual
exclusion or limitation
of liability for the act
or omission that would
constitute the tort.
Subject to this
qualification, where
concurrent liability in
tort and contract exists
the plaintiff has the
right to assert the
cause of action that
appears to be the most
advantageous to him in
respect of any
particular legal
consequence.'
|
I respectfully agree.
Meanwhile in New Zealand the
Court of Appeal had appeared at
first, in McLaren Maycroft & Co
v Fletcher Development Co Ltd
[1973] 2 NZLR 100, to require
that, in cases where there are
concurrent duties in contract
and tort, the claimant must
pursue his remedy in contract
alone. There followed a period
of some uncertainty, in which
differing approaches were
adopted by courts of first
instance. In 1983 Miss Christine
French published her article on
the contract/tort dilemma in
(1981-84) 5 Otago LR 236, in
which she examined the whole
problem in great depth, with
special reference to the
situation in New Zealand, having
regard to the 'rule' in McLaren
Maycroft. Her article, to which
I wish to pay tribute, was of
course published before the
decision of the Supreme Court of
Canada in the Central Trust
case. Even so, she reached a
conclusion which, on balance,
favoured a freedom for the
claimant to choose between
concurrent remedies in contract
and tort. Thereafter in Rowlands
v Collow [1992] 1 NZLR 178
Thomas J, founding himself
principally on the Central Trust
case and on Miss French's
article, concluded that he was
free to depart from the decision
of the New Zealand Court of
Appeal in McLaren Maycroft and
to hold that a person530
performing professional services
(in the case before him an
engineer) may be sued for
negligence by his client either
in contract or in tort. He said
(190):
|
'The issue is now
virtually incontestable;
a person who has
performed professional
services may be held
liable concurrently in
contract and in
negligence, unless the
terms of the contract
preclude the tortious
liability.'
|
In Australia, too, judicial
opinion appears to be moving in
the same direction, though not
without dissent: see, in
particular,
Aluminum
Products (Qld) Pty Ltd v Hill
[1981] Qd R 33 (a
decision of the Full Court of
the Supreme Court of Queensland)
and Macpherson & Kelley v Kevin
J Prunty & Associates [1983] 1
VR 573 (a decision of the Full
Court of the Supreme Court of
Victoria). A different view has
however been expressed by Deane
J in Hawkins v Clayton (1988)
164 CLR 539 at 585, to which I
will return later. In principle,
concurrent remedies appear to
have been accepted for some time
in the United States (see
Prosser
Handbook on the Law of Torts
(7th edn, 1984) p 444),
though with some variation as to
the application of the principle
in particular cases. In these
circumstances it comes as no
surprise that Professor Fleming,
writing in 1992, should state
that 'the last ten years have
seen a decisive return to the
"concurrent" approach' (see
Fleming
Law of Torts (8th edn, 1992) p
187).
I have dealt with the matter
at some length because, before
your Lordships, Mr Temple QC for
the managing agents boldly
challenged the decision of
Oliver J in the Midland Bank
Trust case [1978] 3 All ER 571,
[1979] Ch 384, seeking to
persuade your Lordships that
this House should now hold that
case to have been wrongly
decided. This argument was
apparently not advanced below,
presumably because Oliver J's
analysis had received a measure
of approval in the Court of
Appeal: see eg Forster v Outred
& Co (a firm) [1982] 2 All ER
753 at 764, [1982] 1 WLR 86 at
99 per Dunn LJ. Certainly there
has been no sign of disapproval,
even where the Midland Bank
Trust case has been
distinguished: see Bell v Peter
Browne & Co (a firm) [1990] 3
All ER 124, [1990] 2 QB 495.
Mr Temple adopted as part of
his argument the reasoning of Mr
J M Kaye in an article The
Liability of Solicitors in Tort
(1984) 100 LQR 680. In his
article Mr Kaye strongly
criticised the reasoning of
Oliver J both on historical
grounds and with regard to his
interpretation of the speeches
in Hedley Byrne. However,
powerful though Mr Kaye's
article is, I am not persuaded
by it to treat the Midland Bank
Trust case as wrongly decided.
First, so far as the historical
approach is concerned, this is
no longer of direct relevance in
a case such as the present,
having regard to the development
of the general principle in
Hedley Byrne. No doubt it is
correct that, in the nineteenth
century, liability in tort
depended upon the category of
persons into which the defendant
fell, with the result that in
those days it did not
necessarily follow that, because
(for example) a surgeon owed an
independent duty of care to his
patient in tort irrespective of
contract, other professional men
were under a similar duty. Even
so, as Mr Boswood QC for the
names stressed, if the existence
of a contract between a surgeon
and his patient did not preclude
the existence of a tortious duty
to the patient in negligence,
there is no reason in principle
why a tortious duty should not
co-exist with a contractual duty
in the case of the broad duty of
care now recognised following
the generalisation of the tort
of negligence in the twentieth
century.
So far as Hedley Byrne itself
is concerned, Mr Kaye reads the
speeches as restricting the
principle of assumption of
responsibility there established
to cases where there is no
contract; indeed, on this he
tolerates no dissent, stating (p
706) that 'unless one reads
[Hedley Byrne] with deliberate
intent to find obscure or
ambiguous passages' it will not
bear the interpretation favoured
by Oliver J. I must confess
however that, having studied yet
again the speeches in Hedley
Byrne in the light of Mr Kaye's
critique, I remain of the
opinion that Oliver J's reading
of them is justified. It is, I
suspect, a matter of the angle
of vision with which they are
read. For here, I consider,
Oliver J was influenced not only
by what he read in the speeches
themselves, notably the passage
from Lord Devlin's speech quoted
above (see [1963] 2 All ER 575
at 610-611, [1964] AC 465 at
528-529), but also by the
internal logic reflected in that
passage, which led inexorably to
the conclusion which he drew. Mr
Kaye's approach involves
regarding the law of tort as
supplementary to the law of
contract, ie as providing for a
tortious liability in cases
where there is no contract. Yet
the law of tort is the general
law, out of which the parties
can, if they wish, contract;
and, as Oliver J demonstrated,
the same assumption of
responsibility may, and
frequently does, occur in a
contractual context. Approached
as a matter of principle,
therefore, it is right to
attribute to that assumption of
responsibility, together with
its concomitant reliance, a
tortious liability, and then to
inquire whether or not that
liability is excluded by the
contract because the latter is
inconsistent with it. This is
the reasoning which Oliver J, as
I understand it, found implicit,
where not explicit, in the
speeches in Hedley Byrne. With
his conclusion I respectfully
agree. But even if I am wrong in
this, I am of the opinion that
this House should now, if
necessary, develop the principle
of assumption of responsibility
as stated in Hedley Byrne to its
logical conclusion so as to make
it clear that a tortious duty of
care may arise not only in cases
where the relevant services are
rendered gratuitously, but also
where they are rendered under a
contract. This indeed is the
view expressed by Lord Keith of
Kinkel in Murphy v Brentwood DC
[1990] 2 All ER 908 at 919,
[1991] 1 AC 398 at 466, in a
speech with which all the other
members of the Appellate
Committee agreed.”
Even though
this extended passage from Lord
Goff’s speech shows that there
can be concurrent liability in
contract and tort,
the facts
of each case will determine
whether the extent of any
concurrent imposition of a
liability in contract and tort
is justifiable.
Aryeetey JA,
the learned trial judge,
justified his decision to
release the company from its
debt obligation by reference to
the law on the discharge of
contracts by breach. The learned
trial judge relied on the
proposition of law enunciated by
the Court of Appeal in
In re
Timber and Transport Kumasi –
Krusevac Co. Ltd, Sativa v Bonsu
[1981] GLR 256 that where a
contract party manifests a clear
intention to be no longer bound
by the terms of the contract or
where he openly repudiates it,
the innocent party might treat
it as at an end and seek such
remedies as are open to him or
her. In that case, the Court of
Appeal said:
“The crucial
issue which in our view was
avoided by the High Court is
whether the agreement was still
binding on the parties. On this
issue, we are thrown back on
first principles and
particularly on the effect of
breaches of an agreement by one
or other of the parties. The
principle which emerges from a
long line of decisions is that
where one party manifests a
clear intention to be no longer
bound by the terms of his
contract or where he openly
repudiates it, the innocent
party may treat the contract as
at an end and seek such remedies
as are open to him. Where the
breach hits at the root or
substance of the contract, in
other words, where the breach is
fundamental, the innocent party
may accept the breach and treat
it as absolving him from his own
obligations under the contract.
The question whether a breach is
fundamental is, of course, for
the court to determine: see
Wallis,
Son & Wells v. Pratt and Haynes
[1910] 2 K.B. 1003, C.A.; Sweet
& Maxwell Ltd. v. Universal News
Services Ltd. [1964] 3 All E.R.
30 and Joseph v. Boakye [1977] 2
G.L.R. 392 at p. 402, C.A.”
Whilst this
statement of the law is largely
correct, it needs further
clarification in the context of
the facts of this case. In this
connection, I would like to
refer to the analysis of
Cheshire, Fifoot and Furmston’s
Law of Contract (15th
Ed, 2007) on the effect of
discharge by breach, at p. 691:
“A party who
treats a contract as discharged
is often said to rescind the
contract. To describe the legal
position in such a manner,
however, must inevitably mislead
and confuse the unwary. In its
primary and more correct sense,
as we have already seen,
rescission means the
retrospective cancellation of a
contract ab initio, as for
instance where one of the
parties has been guilty of
fraudulent misrepresentation.
In such a case the contract is
destroyed as if it had never
existed, but its discharge by
breach never impinges upon
rights and obligations that have
already matured. It would be
better therefore in this context
to talk of termination or
discharge rather than of
rescission.”
This analysis
is illuminating and I accept it.
It is supported by the House of
Lords decision in
Johnson v
Agnew [1980] AC 367, where
Lord Wilberforce said (at pp.
392-3):
“it is
important to dissipate a fertile
source of confusion and to make
clear that although sometimes
the vendor is referred to …as
‘rescinding’ the contract, this
so-called ‘rescission’ is quite
different from rescission ab
initio, such as may arise for
example, in cases of mistake,
fraud or lack of consent. In
those cases the contract is
treated in law as never having
come into existence… In the case
of an accepted repudiatory
breach the contract has come
into existence but has been put
an end to, or discharged.
Whatever contrary indications
may be disinterred from old
authorities, it is now quite
clear, under the general law of
contract, that acceptance of a
repudiatory breach does not
bring about ‘rescission ab
initio’."
The
implication of this analysis for
this case is that the
obligations of the company that
arose before the date of the
conduct by the bank held by the
learned trial judge to be in
breach of contract are not wiped
out but remain binding. The
company is released from any
further performance of the
discharged contract, from the
date of discharge, but its
accrued obligations remain
binding. It cannot therefore be
correct to hold that it is
relieved from the obligation to
repay the loan it contracted and
which it had received in full.
As at the date of discharge of
its contract of loan, the
company’s debt obligation (that
is, the obligation to repay the
loan) had already accrued. The
debt was accordingly not
discharged. The company is
limited to recovering damages in
contract for the breach found by
the learned trial judge, which
breach was supported by evidence
on the record. This recovery of
damages would be governed by the
usual contract law principles
laid down in Hadley v Baxendale
(1854) 9 Exch. 341 as to
remoteness of damage. Beyond
remoteness and as to the measure
of the damages payable to the
company, this again would be
governed by the usual principle
of restitutio in integrum. The
company must be restored, so far
as money can do it, to the
position that it would have been
in, had the breach not
occurred. This is where the
concurrent recovery of damages
in tort for the same conduct
characterized as breach of
contract becomes relevant. If
the recovery of damages in tort
has already secured for the
company a restitutio in
integrum, it follows that only
nominal damages can be awarded
it for the breach identified by
the learned trial judge.
The learned
trial judge’s error in holding
that the company was absolved
from any obligation under the
contract of loan is perpetuated
in a different guise by the
Court of Appeal and is thus the
subject of grounds of appeal
before this Court. Grounds (ii)
and (iii), which were argued
together, are as follows:
ii.
“The learned Justices of Appeal
erred in law when they held that
after the consolidation of the
debt the Plaintiff/Respondent
ceased to be liable for the
payment of the debt.
iii.
The learned Justices misdirected
themselves in law on the nature
and effect of consolidation of
debts which misdirection led
them to hold that after
consolidation the debt ceased to
be payable.”
Quaye JA, in
delivering the Court of Appeal’s
judgment, had said, in relation
to the bank’s counterclaim for
the payment of the company’s
outstanding indebtedness to it,
(at p.426 of the Record) that:
“The second
segment of the counterclaim was
in respect of respondent’s
outstanding debt. Learned
Counsel shot himself in the foot
when he contended that the
various loans that the
respondents contracted with the
appellants were consolidated at
a point in time. This is a
correct statement upon the facts
and evidence before us. The
loans which were consolidated
upon the suggestion, advise
(sic) or prompting of the
appellants were FF 1.958.180.00
for the ten tractors and
c707.500.00 other loan. In
order to resolve whether the
appellants were entitled to the
Court’s decision on this segment
of the counterclaim to warrant
the setting aside of the finding
by the trial Court, it is my
candid view that we determine
the legal meaning and effect of
consolidation….”
The learned
judge then proceeds to define
consolidation and then
continues:
“The point
which I want to bring home is
that merging, or fusion or
consolidation of two loan
accounts had the effect of each
of them losing its previous
separate identity and from the
time of consolidation, they
become one. Take for example,
pouring water from two different
containers into one container.
After that, you cannot identify
which was previously contained
in one or other of the two
containers….
The total
effect therefore is that only
one loan account stood in the
records of the appellants for
the obligation of the
respondents after the accounts
had been consolidated. In Law,
it is not available for the
appellants to turn round after
the merger at their own
prompting, to want to see two
separate loan accounts. The law
would neither allow a party to
take advantage of his own wrong
nor to approbate and reprobate
at the same time….It is
therefore clear that, as at the
time this action was commenced,
and more specifically, at the
time the counterclaim was made,
there was only one loan account
between the appellants and the
respondents, irrespective of how
the loan was contracted, the
purpose(s) for which segments
thereof were given and taken or
the time it was done. There was
no separate debt standing
against the respondent. If
there was, then the appellants
failed to lead evidence to
establish that fact. I can
identify no error in the refusal
by the learned trial judge to
grant the counterclaim and the
reasons supporting his refusal.
This ground of appeal fails and
it is dismissed.”
With respect,
the learned Justice of Appeal is
in error in his view that the
company had no debt liability at
the time the counterclaim was
filed. Apart from the bank’s
objection to the issue of
consolidation being a ground of
decision when it had not been
argued in the appeal, on which I
will give my view later in this
judgment, the learned Justice
seems to make the assumption
that the only debt in respect of
which there could be liability
was the “other loan” of
c707,500. That seems to be
the explanation for the great
lengths to which he went to
establish the consolidation of
the two loans. He seemingly
fails to appreciate that the
receipt of FF 1.958.180.00 to
finance the importation of the
ten tractors also resulted in a
debt. The counterclaim was thus
with reference to both amounts.
There is undisputed evidence on
record that the bank supplied
the funds for purchase of the
tractors.
In my view,
as already set out above, the
holding by the learned trial
judge that the breach of
contract by the bank discharged
the company from its accrued
obligation to repay the loan it
had already received was clearly
erroneous. That view equally
applies to the holding by the
Court of Appeal on this point.
The extent of the award of both
a tort and a contract remedy, on
the facts of this case, leads to
overkill in the remedying of the
plaintiff’s injury. I would
therefore allow the appeal on
grounds (ii) and (iii) and give
judgment in favour of the
appellant on item (b) of its
counterclaim, namely, there
should be “payment to the
defendants of the Plaintiff’s
outstanding indebtedness and
interest thereon” at the Bank
rate. This payment is,
however, to be made subject to
the payment by the appellant of
the damages awarded by the
learned trial judge in favour of
the
plaintiff/respondent/respondent
in respect of the tort of
conversion committed by the
appellant/appellant/defendant.
The payment of the plaintiff’s
indebtedness is also to be made
subject to whatever damages is
awarded by this court in respect
of the breach by the defendant
of the loan agreement.
The
plaintiff/respondent/respondent,
however, disputes this result,
in its Statement of Case, and
makes the case that the
defendant/appellant/appellant
had failed to prove its
counterclaim and therefore it
should be dismissed. This is
how it puts its case in its
Statement of Case:
“As noted
earlier in these Submissions, in
the case of Claim (ii)(i.e. the
second segment of the
counterclaim), the Appellants
mentioned no specific sum in
their Counterclaim. However,
two sums were mentioned in the
course of the evidence of their
Representative as the
indebtedness for which they were
counterclaiming. On the 27 May
1997, he stated the figure as c
367,624,305.68 (vide p. 99 of
the Record, line 19). Then on
4/7/97, he put the figure at
c412,679,178.74 (vide p. 105 of
the Record, line 9). In both
cases, the figure was said to be
the outstanding sum as at
30/8/96.
A
Counterclaim is a fresh action.
It is joined to another suit so
as to avoid a proliferation of
suits. The same standards of
proof apply to a counterclaim
and a normal suit. The party
making a counterclaim must prove
the claim. Where the claim is
for a liquidated sum, it must be
strictly proved. This the
Appellants woefully failed to
do. In the absence of proof
which of the sums mentioned by
the Representative, and noted
above, is the Judge to accept.
In any event, it is submitted
that the claim was not properly
before the Court because of the
Appellant’s failure to specify
the amount in their pleadings
and to pay the appropriate
filing fee thereon (vide p. 149
of the Record) where the
Representatives of the
Appellants failed to say the
Appellants paid a filing fee for
this claim.
In the
circumstances the only decision
that can be made fairly on the
counterclaim is to dismiss
them.”
Thus the
respondent company, by this
argument, tries to move the
issue of its liability on the
appellant’s counterclaim from
one of contract law, as
discussed above, to one of
evidence and civil procedure.
At this level also, I do not
think that it can escape
liability. There was
indisputable evidence on record
of its acceptance of a loan from
the bank to finance the
importation of the tractors.
Its endeavour to quibble at the
exact amount of the outstanding
debt cannot rescue it from
liability. The exact amount of
the indebtedness was
ascertainable from evidence on
record. Admitted facts do not
need to be proved and the fact
that respondent owed money to
the appellant was not disputed
by the respondent. In the
respondent’s own Statement of
Claim, he averred in paragraphs
12 to 16 as follows:
12.
“Defendants granted the
Plaintiffs a loan of FF
1,284,780 with interest pegged
at 26% per annum. A loan
agreement dated 23 June 1988 was
signed between Plaintiffs and
Defendants.
13.
The Plaintiffs through their
Managing Director secured the
total loan now amounting to FF
1,958,180 including the sum of
FF 673,400.91 earlier granted by
the Defendants with three
residential houses situated in
Tamale the title deeds of which
were lodged with the Defendants.
14.
The Defendants also unilaterally
decided to add the sum of
c707,500.00 being an unrelated
loan granted to the Plaintiffs
in 1986 to the loan for the
purchase of the tractors.
15.
The Defendants charged a
processing and commitment fee of
c9,317,020.30 to cover the loan
made to the plaintiffs.
16.
In due course, the Plaintiffs
took delivery of the 10 Tractors
and informed the Defendants.”
By these
averments, it is clear that, by
the
plaintiff/respondent/respondent’s
own pleadings, it admitted the
existence of a loan from the
appellant. It is thus estopped
by representation from denying
the existence of the loan in its
defence to the counterclaim of
the appellant in the same
proceedings. The appellant
indeed did admit, in its
Statement of Defence, para. 12
of the respondent’s Statement of
Claim. The loan agreement of
23 June 1988 was thus an
admitted fact. In spite of
this, the respondent generally
traversed, in its Defence to the
Counterclaim, all the averments
in the Counterclaim of the
appellant, which in part relied
on this loan agreement and the
other loan of c707,500 which
existed in the appellant’s
books. The respondent was thus
approbating and reprobating.
Beyond the
pleadings, there was testimony
at the trial, which established
the respondent’s liability on
the loans that were the basis
for the Counterclaim of
outstanding indebtedness. In the
evidence in chief of the
respondent’s representative, Mr.
Abdu Aziz, he made the following
admission (at p. 72 of the
Record) when asked:
“Q. Has
your company paid any part of
the loan to the bank.
A.
No.”
Also, there
was testimony by the Appellant’s
representative, in his
evidence-in-chief to the
following effect (at p. 99 of
the Record):
“It is normal
practice for the bank to open a
loan account for all our
borrowing customers. It is
expected that loan repayments
for the customers are paid into
this account. In the particular
case of Hajaara Farms Limited
payments into this account
Number 76 were mainly by
transfers from the two
operational account –that is
Number 9211. No payments on
withdrawal in respect of the
loan account are made by
cashiers. I have in my hand the
loan account Number 76 of the
plaintiffs. I would like to
tender it in evidence – no
objection – admitted and marked
Exhibit 11. Exhibit 11
indicates that there were only a
few repayments into the account.
As a result of loan repayment
Hajaara Farms as at the
statement date on 30/8/96 still
owed the bank an amount of
c367,624,304.68. Payment for
this amount is long overdue.”
The
respondent, in its Statement of
Case, points out that there was
testimony given by the same
witness in which he stated a
different amount as the debt
owing as at 30/8/96. At p. 105
of the Record, the Defendant’s
representative said:
“The
plaintiff company is owing the
bank. As at 30/8/96 the company
owed the bank c412,679,178.74.
Judgment should be given to the
defendants for that amount with
interest. It is due for
payment.”
This
unfortunate internal conflict
and contradiction in the
evidence of the same witness
cannot be interpreted as
absolving the
plaintiff/respondent/respondent
from liability on its admitted
loan transaction with the
appellant bank. It would be
perverse and against the weight
of evidence to do so. I would
rather resolve the conflict by
holding the company liable for
the lesser sum, namely,
c367,624,304.68 as at 30/8/96,
together with interest at the
bank rate. In spite of the
extensive cross-examination of
the witness, he was not shaken
in his testimony that there was
an outstanding indebtedness of
the respondent to the appellant.
I am not
impressed by the respondent’s
captious point about the
appellant’s failure to pay a
filing fee for its
counterclaim. The respondent
contends that this is a basis
for a dismissal of the
counterclaim. The testimony
relied on to found this point is
inconclusive. The
defendant/appellant/appellant’s
representative was asked (at p.
149 of the Record):
“Q. Do
you know how much filing fees
was paid for your counter-claim
A. I
don’t know.”
This
testimony cannot be the basis
for dismissing the counterclaim.
The arguments
rehearsed above apply, mutatis
mutandis, to grounds (iv) and
(v) of the Appellant before this
court, which it argued
together. These are:
iv.
“The learned Justices of Appeal
erred in law when they failed to
distinguish between the loan
contract and the tort of detinue
and conversion which failure led
to the erroneous decision that
the loan (admitted by the
Plaintiff/Respondent) ceased to
be payable.
v.
The learned Justices of Appeal
erred in law by avoiding the
issue of whether or not the tort
of detinue and conversion
allegedly committed by the
Defendant/Appellant amounted to
a repudiation of the loan
contract which issue was the
main basis upon which the trial
court rejected
Defendant/Appellant’s
Counterclaim for the payment of
the debt.”
In support of
these grounds, the bank argued
as follows in its Statement of
Case (Para. 20):
“One of the
grounds on which the High Court
dismissed the Appellant’s
counterclaim for the outstanding
debt (see pages 279 – 280 of the
Record quoted above) was that by
“seizing” the tractors, the
Appellant repudiated the loan
agreement under which the Bank
wholly financed the importation
of the 10 tractors. At pages
406-407 of the Record the
Appellant strongly argued at the
Court of Appeal that the learned
High Court judge failed to
distinguish between the loan
agreement through which the Bank
provided 100% funding for the
importation of the ten tractors
and the subsequent alleged tort
of detinue and conversion
committed. The Appellant
further argued that if the High
Court had drawn the distinction
between the two it would have
seen its way clear in upholding
the legitimacy of the
counterclaim for the outstanding
debt especially after awarding
the Respondent damages for the
detinue and conversion. Equity
fairness and justice require
that the Respondent’s
indebtedness should at least
have been set off against the
damages awarded him in order not
to unjustly enrich the
Respondent.”
It is clear
from my earlier discussion and
holding in this judgment that I
accept the main thrust of the
bank’s argument on this point,
namely, that its counterclaim
should be upheld and that the
seizing of the tractors, even if
a breach of contract, did not
release the company from its
obligation to repay the debt. I
would, in consequence, uphold
ground (iv) of the appellant’s
grounds of appeal. Ground (v),
however, causes me some
discomfort and I would not
uphold it in the exact language
through which it is expressed.
Admittedly, the learned Justices
of Appeal were in error in not
addressing the issue of whether
the bank’s conduct in seizing
the tractors constituted a
breach of contract and what were
the consequences of that breach
of contract. However, their
error was not in failing to
address the issue of whether
“the tort of detinue and
conversion allegedly committed
by the Defendant/Appellant
amounted to a repudiation of the
loan contract”, as alleged in
the ground of appeal. The
learned trial judge had held the
defendant bank liable in both
contract and tort and it would
have been right for the learned
Justices of Appeal to have
adverted to the issue of whether
the bank’s conduct had indeed
been a breach of the contract of
loan.
However, I do
not accept the argument made by
the bank in support of this
ground of appeal to the effect
that the High Court’s decision
that there was a fundamental
breach of the loan agreement was
an error of law. I uphold the
High Court’s decision that there
was a fundamental breach of the
loan agreement. My disagreement
with that Court relates to the
consequences of that fundamental
breach, and not to the breach
itself. To my mind, the
consequence of the fundamental
breach was the bank’s liability
to pay damages and not the
cancellation of the debt
obligation owed to it by the
plaintiff/respondent/respondent.
This is an implication of the
law explained above that
discharge by breach does not
relate back to set aside
obligations that had accrued
before the date of discharge.
However, the damages payable, on
the facts of this case, might
only be nominal, because of the
substantial damages awarded by
the learned trial judge in
respect of the tort liability of
the appellant bank, unless there
is evidence that the plaintiff
has proven a loss not covered by
the tort damages. Restitutio in
integrum is the purpose of the
award of contract damages and
not unjust enrichment of the
innocent party beyond restoring
him or her to the position he or
she would have been in if the
breach had not taken place.
Accordingly, in place of the
learned trial judge’s
cancellation of the plaintiff
company’s debt obligation to the
defendant bank, I would
substitute nominal damages
payable by the bank to the
plaintiff/respondent/respondent
company for the breach of the
loan agreement, unless the
Record discloses that the
Plaintiff has proven substantial
damages beyond the loss covered
by the tort damages.
Ground (vi)
of the Appellant bank’s grounds
of appeal reads as follows:
“The learned
Justices of Appeal erred by
upholding the damages awarded by
the trial Court in spite of the
legal submissions made by the
Defendant/Appellant and further
by failing to properly take into
account the outstanding debt
admitted by the
Plaintiff/Respondent from which
the importation of the ten (10)
tractors was financed.”
The Appellant
supports this ground with only
one paragraph in its Statement
of Case. That paragraph states:
“Our main
grievance on the above ground is
the fact that the High Court
after awarding such damages
should have taken into
consideration the outstanding
debt owed by the Respondent and
set it off against the damages
so as not to unjustly enrich the
Respondent because after all it
was the Appellant that wholly
paid for the ten tractors for
the Respondent and yet ask him
not to pay the loan is most
unfair, unjust and
unconscionable. The Court of
Appeal therefore committed an
error when it affirmed the High
Court’s erroneous decision.”
Apart from
complaining about the High
Court’s failure to take the
plaintiff/respondent’s
outstanding debt liability to
the defendant/appellant into
account, this ground of appeal
does not appear to complain
about the quantum and principles
underlying the damages awarded
by the High Court in tort. If
it does, it is half-hearted.
The issue of the outstanding
debt has already been dealt with
above. Subject to that, I would
affirm the damages awarded by
the learned trial judge. In
explaining how he quantified the
damages payable in respect of
the conversion, he said (at pp.
281-2 of the Record):
“For the
moment I would deal with the
assessment of damages in respect
of the five tractors which the
defendant bank refused to
release for the use of the
plaintiff company. A practical
way of assessing the minimum
value of the five tractors which
were not put to use and remained
in the custody of the defendant
bank until they were disposed of
would be to estimate what amount
it cost the plaintiff company to
procure all five of them. I
think the total indebtedness of
the plaintiffs to the bank which
emanated from the loan
transaction between the bank and
the plaintiffs should be a safe
guide in arriving at what it
least cost the plaintiff to
procure the tractors. According
to the evidence on record the
purchase and importation of the
ten tractors were wholly funded
by monies provided by the bank.
Therefore it would be reasonable
in the circumstances to limit
the minimum value to be placed
on the ten tractors to the total
indebtedness of the plaintiff
company to the defendant bank.
According to exhibit 13 quoted
above the plaintiff company, at
the inception owed the defendant
bank amounts of FF 1,958180.00
and ¢776470.00 which represent
the total amount it cost the
plaintiff company to procure the
ten Renault tractors. It means
therefore that the value of five
of the Renault tractors would be
half of the two amounts, which
would be FF979,090.00 and
c388.235.00 respectively. To me
the total of the two amounts
would be adequate compensation
for the plaintiffs in the nature
of damages for the conversion
committed by the defendant bank
in respect of the five tractors
which it refused to release to
the plaintiff company after
their unjustifiable and
unwarranted seizure.”
In relation
to the remaining five tractors
which were released to the
plaintiffs, the learned trial
judge explained his
quantification of damages in
relation to them as follows (at
p. 284 of the Record):
“…they were
entitled to the award of damages
for conversion which would be
equal to the value of the five
tractors at the time of their
sale. Unlike the five tractors
which were not released, it
would not be relatively easy to
compute their value at the time
of sale, especially when no
evidence was led by the
plaintiff company in that
regard. That, of course, is
understandable since the
plaintiffs’ pleading did not
anticipate that the court would
treat the five tractors which
were not released differently
from the other five. To be on a
safe side we just have to limit
our assessment of the value of
the five tractors, which were
used for some time, to the total
amount which was derived from
their sale at the instance of
the defendant company.”
An issue
which arises from the learned
trial judge’s quantification of
the tort damages is whether
after the award of those
damages, there is any room left
for the award of further
damages, whether in contract or
in tort. In tort, an argument
could be made in support of
consequential loss of profit by
the plaintiff company caused by
the commission of the tort. The
difficulty for the plaintiff is
that such consequential loss of
profit has to be proved.
Moreover, the plaintiff did not
cross-appeal against the quantum
of tort damages awarded it.
Alternatively, the plaintiff
could rely on contract to
recover further damages flowing
from the fact that the bank’s
unlawful seizure of the
plaintiff’s chattels, in breach
of contract, probably caused it
to lose profit. The first
problem for a court seeking to
award supplementary contract
damages on this score is that
the plaintiff did not sue in
contract. However, the
defendant bank did counter-claim
in contract. Thus, in
determining whether the
plaintiff’s liability under the
loan contract to the defendant
bank remains outstanding, the
issue can be legitimately
addressed as to whether any
loss, beyond that in relation to
which tort compensation had
already been awarded, had been
caused to the plaintiff by the
defendant’s breach of the
contract of loan such that that
loss should be deducted from the
plaintiff’s indebtedness to the
defendant bank. In principle,
it is reasonable to hold that
the plaintiff’s indebtedness
under the contract of loan
should be reduced by the
monetary value of any breaches
of that contract by the
defendant bank. In this regard,
the main loss raised by the
evidence on record relates to
the plaintiff’s probable loss of
profits from the use of the five
tractors that were never
released to them, in consequence
of the defendant bank’s breach
of contract. Can this be
quantified and how is it to be
quantified?
Because the
plaintiff did not sue in
contract, it did not lead
evidence of any loss of profits
from being denied the use of the
five tractors that were not
released to it. That makes the
task of quantifying loss of
profit difficult. The failure
to lead evidence on loss of
profits also raises the issue of
whether this court is precluded
from awarding substantial
damages in respect of the
defendant bank’s breach of the
contract of loan.
The English
Court of Appeal case of Sunley
and Company Ltd. v Cunard White
Star Ltd. [1940] 1 KB 740
provides ideas as to how this
Court might deal with the
absence of evidence on the loss
of profit. That case also dealt
with how to measure damages for
a breach of contract resulting
in loss of use of a chattel, in
that particular case for a
week. The plaintiffs had not
led any evidence on loss of
profit resulting from this loss
of use. Nevertheless, the Court
of Appeal held that the
plaintiffs were entitled to such
damages as would put them
pecuniarily in the same position
as if the week’s delay had not
taken place. The court awarded
modest sums in respect of
depreciation of the machines
that had been delayed, for
interest, maintenance and
wages. The Court said (at p.
747 of the Report):
“In these
circumstances, the plaintiffs
really failed to prove any facts
on which their damages could be
estimated. In the absence of
evidence they relied on the
law. And the learned judge
unfortunately succumbed to the
invitation to discuss a variety
of cases like The Mediana [1900]
A.c. 113 at great length. Those
cases establish that when a
plaintiff is deprived of the use
of a chattel which he does not
use for making profit he is not
to be debarred from claiming as
damages what during that time
its use would have been worth to
him, had he not been prevented
from using it. But those cases
are no authority for the
proposition that, if the owner
of a profit-earning chattel does
not prove the loss he has
sustained, the judge may make a
guess in the dark and award him
some arbitrary sum.”
The court,
therefore, set aside the trial
judge’s award of 250 pounds as
damages for the plaintiffs’ loss
of use of their machinery
because of the defendants’
delivery of the machinery a week
late in breach of contract. The
court, however, did go on to
award damages under the
following principles (at p.
748):
“The machine
here was a chattel of commercial
value, but on the facts before
us there are only four possible
heads of damage: (1)
depreciation which was running
on, (2) interest on the money
invested which was being
wasted, (3) some trivial amount
of maintenance which was no
doubt involved, (4) some
expenditure of wages which were
thrown away.”
The total
amount of damages awarded by the
court under these heads was in
total 14 pounds. This case
illustrates that, in the absence
of evidence of loss of profits,
a court may assess some damages
under the four heads mentioned
above, but those damages should
be modest, though more than
nominal.
Applying the
approach of Sunley v Cunard
White Star Ltd. (supra) to the
facts of this case, I would be
inclined to deduct from the
plaintiff’s indebtedness to the
defendant bank the interest that
was due to be paid, from the
date of seizure of the tractors
to the date of their sale, on
the debt payable. I do not
consider that the other possible
heads of damage are relevant, on
the facts of this case.
The Appellant
bank abandoned ground (vii) of
its grounds and therefore it
will not be dealt with here.
That leaves only ground (i) as
the ground not yet dealt with in
this judgment. Ground (i) reads
as follows:
“The learned
Justices of Appeal erred by suo
motu raising and basing their
decision on the legal effect of
consolidation of the loan
without giving the parties an
opportunity to be heard on the
issue.”
In arguing
this ground in its Statement of
Case, the
appellant/appellant/defendant,
whilst admitting that in
appropriate cases the Court of
Appeal could raise an issue not
canvassed by any of the parties
to determine an issue before it,
urged that the power should be
exercised with great
circumspection and pointed out
that the authorities made it
clear that the parties should be
given a reasonable opportunity
to react or comment on an issue
raised suo motu by the Court.
The Appellant relied on the
well-known case of Dam v Addo
[1962] 2 GLR 200 to sustain its
argument. In that case,
Adumua-Bossman JSC, delivering
the judgment of the Supreme
Court, said (at p. 203):
“The process
of consideration and weighing up
of the respective cases of the
parties by which the learned
judge arrived at the conclusion
at which he did arrive, would
appear to have involved the
substitution by him proprio motu
of a case substantially
different from, and inconsistent
with, the case put forward by
the respondents and the ultimate
acceptance by him of that
substituted case which was not
the respondents’ case at all.
This acceptance in favour of a
party of a case different from
and inconsistent with that which
he himself has put forward in
and by his pleadings, has been
consistently held to be
unjustifiable and fundamentally
wrong both by the English
superior courts and our local
superior courts.”
The issue is
whether this principle is
relevant to the facts of this
case. Whilst, undoubtedly Quaye
JA discussed the legal issue of
the consolidation of the loans
disclosed by the evidence in
this case, it would not appear
that the legal issue raised in
it was inconsistent with the
case put forward by the
plaintiff company in the High
Court, as my discussion earlier
in this case has shown. He did
not rely on any new facts or on
a case incompatible with the
plaintiff’s case that it was not
liable on the counterclaim.
Whilst it is desirable and
prudent for an appellate court
to invite arguments on
propositions of law it intends
to rely on other than those
canvassed by the parties before
it, there is no absolute bar on
an appellate court from deciding
a case on the basis of such a
proposition of law. In any
case, what occasioned the
miscarriage of justice, through
the application of the
proposition of law relating to
the consolidation of the loans,
in this case was its
perpetuation of the learned
trial judge’s error in refusing
to enforce the plaintiff
company’s admitted indebtedness,
rather than the lack of notice
of the legal gloss in the
argument adopted by Quaye JA. I
would accordingly dismiss this
ground of appeal.
In the
result, the appeal is allowed in
part. The damages for
conversion awarded by the
learned trial judge and affirmed
by the Court of Appeal are
hereby further affirmed, subject
to a deduction from them of the
plaintiff/respondent/respondent’s
outstanding indebtedness to the
defendant/appellant/appellant,
which stood at c367,624,304.68
as at 30/8/96, together with
interest at the bank rate, in
accordance with the Court (Award
of Interest and Post Judgment
Interest) Rules, 2005 (CI 52).
However, there should be
deducted from the interest thus
payable the interest due on the
sum owed to the defendant from
the date of seizure of the
tractors to the date of their
sale. This deduction of
interest represents a measure of
damages for breach of the
contract of loan which is more
than nominal damages. Of
course, the post-judgment
interest rate applicable under
CI 52 will equally apply to the
damages awarded by the High
Court for conversion.
(SGD) DR. S. K. DATE BAH
JUSTICE OF THE SUPREME COURT
ATUGUBA J.S.C:
Certain
matters on which I would have
liked to express an opinion have
not been raised by the parties
and the evidence relating to
them does not appear to be
incontrovertible. I therefore,
on the facts of this case, agree
with the learned, comprehensive
and masterly analytical judgment
of my able brother Dr. Date-Bah,
JSC.
(SGD) W. A. ATUGUBA
ACTING CHIEF JUSTICE
ANSAH JSC.
I had the
benefit of reading before hand
the didactic and eclectic
judgment of my noble and
respected brother, Date Bah JSC.
I agree with his analysis of the
facts giving rise to this suit.
I also agree he has carefully
and fairly dealt with the
un-treaded issue of concurrent
causes of action in tort and
contract in our jurisdiction; I
agree with his conclusion that
the appeal before us be
dismissed in part.
With the
above, there would not be any
need for me to say anything more
except perhaps only to add some
few words in further support.
I shall limit
myself to the issue of contact
obligations as far as loans are
concerned just to lend further
support to what has been said
already.
The case of
Barclays Bank Ghana Ltd v Sakari
1997-98 1 GLR 746, SC, is worthy
of mention. The facts of the
case as reported in the
head-notes are that:
“The
plaintiff-bank granted an
application by the defendant a
customer for a loan of
¢2,145,420 to enable him
purchase two Mercedes Benz
trucks hr required for the
operation of his business.
However, without the consent of
the plaintiff, the defendant
used the loan to purchase a
Saurer tanker instead of the
Mercedes Benz trucks. A week
after the purchase of the
tanker, it was seized by the
government on the ground that
Saurer trucks were to be
operated exclusively by the
State and not individuals. After
repeated unsuccessful demands by
the plaintiff on the defendant
to repay the loan, the plaintiff
brought an action against him at
the High Court, Tamale, for,
inter alia, recovery of the loan
plus the accrued interest
thereon. In his defence, the
defendant contended that the
unexpected seizure of the Saurer
tanker by the government had
frustrated the loan agreement
and had thereby discharged him
his obligations under the
contract. The trial High Court
found that it was a term of the
loan agreement that the
defendant was to operate the
Saurer tanker and repay the loan
from its proceeds. It therefore
dismissed the plaintiff’s claims
on the ground that the loan
transaction had been frustrated
by the seizure of the Saurer
tanker by the government. On
appeal by the plaintiff to the
Court of Appeal, the decision of
the High Court was affirmed by a
two to one majority decision.
The plaintiff then appealed to
the Supreme Court against the
majority decision of the Court
of Appeal.”
The Supreme
Court allowed the appeal. While
the court held that the events
leading to the seizure of the
vehicles did not amount to
frustration it nonetheless
addressed the issue of the
supposed frustration of the
contract vis-à-vis the
obligations to the parties under
the contract, Acquah JSC as he
then was held thus:
“Now what is
the obligation created under
this loan contract, a breach of
which would entitle the other to
sue? The obligation of the bank
was to advance the money which
it did and that of the defendant
was to repay the loan together
with interest if any. This is
the obligation of the parties
under this loan contract, and
indeed almost all loan
contracts. When a bank lends
money to its customer, the
obligation of the customer is to
repay the loan….Thus the
obligation of a borrower in a
loan contract as opposed to
other types of contracts is to
repay the loan and not the
performance of the purpose for
which the loan was sought.”
In my view,
the above case applies mutatis
mutandis to the issue of the
appellant’s counterclaim which
had been dismissed by the Court
of Appeal to the effect that the
seizure of the respondent’s
tractors by the appellant bank
did not release the respondent
company of its primary
obligation under the loan
contract. In this case, the
respondent owed the appellant an
obligation to repay the loan,
whether or not there was a
breach occasioned by the
appellant. The primary
obligation to repay the loan had
not changed and its obligation
was not dependent on the
performance of the purpose of
the loan or a breach of contract
by the appellant bank.
The issue of
the quantum of damages for
breach has been dealt with by my
learned brother and I have
nothing to add in that regard.
I agree that
the appeal be dismissed in part.
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
BAFFOE-BONNIE
J.S.C:
I agree that
the appeal be allowed in part.
(SGD) P. BAFFOE-BONNIE
JUSTICE
OF THE SUPREME COURT
AKOTO BAMFO
[MRS.] J.S.C:
I have had
the privilege of reading the
well-researched opinion of my
learned and respected brother
Dr. Date-Bah JSC. I agree with
him and therefore have nothing
useful to add.
(SGD) V.
AKOTO-BAMFO (MRS.)
JUSTICE OF THE SUPREME COURT
COUNSEL;
L.N.S.
AKUETTEH (WITH HIM PAUL DEKYI)
FOR THE APPELLANT.
NII AKWEI BRUCE-THOMPSON FOR
THE RESPONDENT. |