G. B. KANDEWEN v. FELICIA AKYAA
2016
COURT OF APPEAL
GHANA
CORAM
- KUSI-APPIAH, J.A. - Presiding
- ADUAMA OSEI, J.A.
- KWEKU GYAN, J.A.
Areas of Law
- Contract Law
- Civil Procedure
- Equity and Trusts
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal judgment, authored by Justice F. Kusi-Appiah, concerns Felicia Akyaa’s attempt to recover funds paid to Ahmed Baba, son of the defendant, for a failed travel arrangement. After Ahmed’s arrest at the airport, the defendant executed an undertaking (Exhibit A) to repay, leading to Ahmed’s release. Later, before a Forces Sergeant Major, Felicia agreed to accept US$2,150 (Exhibit B) if paid within one month; the defendant defaulted, paying only US$600 before suit. The High Court, Tema, awarded recovery of US$2,350 and interest. On appeal, the defendant challenged personal liability, consideration, timing and benefit of the lesser-sum agreement, and interest rate. Applying Tsede v Nubuasa (forbearance as consideration) and authorities on time being of the essence (Atta v Adu, Fofie v Zanyo, Hipwell v Knight), the Court held Exhibit A enforceable and that the defendant could not benefit from his default on Exhibit B. Interest was ordered at the Bank of Ghana dollar rate; the appeal was dismissed and the High Court affirmed, subject to that variation.
KUSI-APPIAH, ( J. A. ):
The central issue in this appeal is whether a promise to pay debt already incurred by another is enforceable in the absence of express consideration.
There is also the question whether the defendant having failed to pay the lesser sum is entitled to benefit from the plaintiff’s agreement to accept the lesser sum.
I will refer to the parties in the manner they appeared at the court below.
The facts grounding this appeal as can be ascertained from the pleadings and evidence of the plaintiff are that in 1997 the plaintiff paid an amount of four thousand five hundred dollars ($4, 500) to defendant’s son, Ahmed Baba for a passport, visa and ticket to enable her nephew travel outside the country.
When the defendant’s son could not honour his promise of organizing the trip, plaintiff caused his arrest at the airport when he was about to leave the country.
Upon his arrest, Ahmed Baba pleaded to be taken to his father at Tema where the defendant gave an undertaking to refund the money and his son released.
Defendant’s undertaking was tendered as Exhibit ‘A’. According to the plaintiff, when the defendant failed to pay (as promised), she reported the case to Forces Sergeant Major who invited him.
There, she was persuaded to accept two thousand, one hundred and fifty dollars ($2, 150.00) as full settlement of the debt on condition that the defendant pays within one month.
The plaintiff’s undertaking was also tendered as Exhibit ‘B’. However, the defendant once again defaulted and as at the time of instituting this action, he had only paid six hundred dollars ($600.00). On 20th November, 2001, the plaintiff by her writ of summons therefore brought an action against the defendant for the following reliefs: “a. Recovery of three thousand, nine hundred dollars ($3, 900.00) being balance outstanding on a debt incurred by defendant’s son Ahmed Baba and which sum the defendant gave an undertaking to pay but has failed to pay same.
b. Interest on the said amount at the current bank rate with effect from 1st April, 1999 till date of judgment.
c. General damages. ”The defendant resisted the plaintiff’s claim by his statement of defence filed on 19th December, 2001.
The defendant in his evidence denied that the note he gave on 27 th March, 1999 was an undertaking to pay the money.
He testified that he is a pensioner and it was understood that he would pay the money when the son sent the money.
He stated that his son has made two installment