DARKO AND ANOTHER v. BANK OF WEST AFRICA LTD.
1971
COURT OF APPEAL
CORAM
- SIRIBOE AZU CRABBE JJ.S.C. LASSEY J.A
Areas of Law
- Civil Procedure
- Contract Law
- Evidence Law
- Banking and Finance Law
1971
COURT OF APPEAL
CORAM
AI Generated Summary
Bank of West Africa Ltd. sued Mpotima Ltd. and its principals (Rexford Ayeh Darko, Kwabena Apenteng, Edward Kofi Aboagye) in two 1959 suits for substantial debts, leading to consent judgments entered before Smith J. on 22 June 1959 after negotiations by E. Akufo‑Addo memorialized in exhibit 1. The judgments provided instalment payments for suit 87/59 and full payment for suit 88/59, with costs. After giving Akufo‑Addo a live sheep and making part payments, the appellants waited nearly three years and sued to set aside the consent judgments alleging deceit, misrepresentation, collusion, and lack of authority, arguing clause 6 and title deed release were part of the settlement. Apaloo J.S.C., sitting as High Court judge, found the terms authorized and entered judgment for the bank. On appeal, Siriboe J.S.C. distinguished Neale and Hickman, held counsel acted within authority, appellants’ delay and conduct undermined their challenge, clause 6 was not part of the compromise, and dismissed the appeal with costs.
JUDGMENT OF SIRIBOE J.S.C.
This is an appeal from a judgment of Apaloo J.S.C. (as he then was), sitting as an additional judge of the High Court, Accra, on 9 November 1964. The circumstances leading to the judgment appealed from are briefly stated as follows:
On 11 March 1959 the defendant-bank (hereafter referred to as the respondents), took out two separate writs of summons against the plaintiffs (also referred to for short, as the appellants), a company called Mpotima Ltd. of which the appellants were the managing director and [p.244] chairman respectively and some other persons. The two writs serially numbered as suit No. 87/59 and No. 88/59, were specially endorsed for claims made for amounts due in respect of some monetary transactions between the parties. In suit No. 87/59, the sum claimed was £G81,569 14s. Id. and £G11,467 11s. Id. in No. 88/59. In each case, there was interest claimed at the rate of ten per cent from 24 January up to date of judgment.
Apart from an appearance that was entered on behalf of the defendants in those two suits which were before Smith J. no defence was filed. The reason for this, as explained by Mr. Akufo-Addo whom the defendants engaged, was that he saw there was no defence to the claims and he so informed them. He was therefore instructed by his clients to negotiate for terms of settlement of the debts by instalments.
In the course of this, it appears hard bargain was struck on both sides. The negotiations, therefore, dragged on for some time, and at one stage, nearly collapsed, because the respondents were insisting on another condition, requesting the appellants to execute a debenture as additional security for payment, but that was refused.
As a result, Mr. Akufo-Addo said he thought of filing a defence to gain time—but he never did. Eventually, he managed to get agreement of the solicitors for the respondents, on terms which were embodied in writing (exhibit 1) and later announced in court before Smith J. for judgment recorded on 22 June 1959. Exhibit 1 and the judgments (exhibit A3) recorded in pursuance thereof, are as follows:
"E. Akufo-Addo, M.A. (Oxon.) Kwakwaduam Chambers,
Barrister-at-Law P.O. Box 207,
Solicitor of Supreme Court of Ghana Accra, Ghana.
18th June, 1959.
My Reference: AA/B.M/93/59.
Your Reference:
Messrs Giles Hunt & Co.,
Solicitors,
Thorpe Road,
Accra.
Dear Sir,
Suit No. 88/59
Bank of West Africa Ltd. .. .. .. .. Plaintiffs
v.
1. Mpotima Ltd. }
2. E. K. Aboagye }
3.