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
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This case revolves around the enforceability of a promise to pay another's debt without express consideration. The Court of Appeal upheld the High Court's decision, finding that the defendant's undertaking to pay his son's debt was enforceable, even without express consideration, as consideration can be implied from the circumstances. The court also ruled that the defendant could not benefit from an agreement to accept a lesser sum when he failed to pay within a reasonable time. The appeal was dismissed, with a modification to the interest rate, which was to be calculated using the Bank of Ghana dollar rate instead of the cedi rate. The case highlights important principles in contract law, including implied consideration, the significance of time in contractual obligations, and the principle that one cannot benefit from their own default.
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