NDK FINANCIAL SERVICES LIMITED vs. SAFKOS FARMS & 2 ORS

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D.2026

CORAM: AMADU JSC (PRESIDING)

PROF. MENSA-BONSU (MRS) JSC

KULENDI JSC

DARKO ASARE JSC

DZAMEFE JSC

CIVIL APPEAL

NO: J4/06/2025

22ND JULY, 2026

NDK FINANCIAL SERVICES LIMITED ……… PLAINTIFF/RESPONDENT/

RESPONDENT

VRS

1. SAFKOS FARMS LIMITED DEFENDANTS/APPELLANTS/

2. MICHEAL ABU SAKARA FOSTER APPELLANTS

3. MARY-LILY KAFELA

JUDGMENT

TANKO AMADU, JSC: –

INTRODUCTION

My Lords, before us are two appeals at the instance of the Defendants/Appellants/Appellants (hereinafter referred to as “the Appellants”) against the Plaintiff/Respondent/ Respondent (hereinafter referred to as “the Respondent”). The first appeal, by Notice of Appeal (No.A1) filed on 15th March 2021, is against the judgment of the Court of Appeal dated 25th February 2021. The second appeal, by Notice of Appeal (No.A2) filed on 28th February 2022, is also brought against the ruling of that same Court dated 10th February 2022, by which it adopted the report of an independent auditor appointed in the course of the appeal.

By an order of this Court dated 20th May 2025, the two appeals were consolidated and heard together. The consolidated appeal is now before us for final determination in what appears to be under circumstances of a novel situation. Through the diligence of this Court in discovering that an application by the Appellants to adduce fresh evidence on appeal had not been dealt with, this court on 4th February 2026, heard the application and granted the Appellants leave to adduce fresh evidence consisting of a letter dated 12th May 2017 (Exhibit ‘1’) authored by the 2nd Appellant and addressed to the Respondent.

This situation arose because, while reviewing the record of appeal, we discovered that, on the 10th day of February 2022 when the Court of Appeal delivered judgment in the second appeal, the same panel of Justices of the Court of Appeal had adjourned the Defendants/Appellants/Appellants’ application to adduce fresh evidence sine die, with the effect that, at the time the Court of Appeal proceeded to deliver the said judgment in the second appeal, there was pending before that court, an interlocutory application which could impact the course of the appeal and potentially its final outcome.

By virtue of the power conferred on this court pursuant to Article 129(4) of the Constitution, 1992, we assumed jurisdiction and exercised the power of the Court of Appeal, by hearing the application which the Plaintiff/Respondent/ Respondent did not oppose, and same granted.

Thereafter, the 2nd Appellant testified in person on 4th March 2026, and was cross-examined by Counsel for the Respondent. This court ordered the parties to file supplementary statements of case limited only to the effect of the fresh evidence adduced. The appeal was thus been re-heard for our determination.

The dispute between the parties substantially arises from four credit facilities granted by the Respondent to the 1st Appellant between October 2014 and February 2016, the alleged default in repayment thereunder, and the consequent action commenced in the High Court, (Commercial Division), Accra, on 5th October 2017 for the recovery of the sum of GH¢3,065,915.31 with continuing compound interest. The trial High Court entered judgment for the Respondent, the Court of Appeal allowed the appeal in part and ordered an audit, and the Appellants appealed against both decisions of the Court of Appeal as aforesaid.

BACKGROUND AND FACTS

By writ of summons issued in the High Court (Commercial Division), Accra, on 5th October 2017, accompanied by a Statement of Claim, the Respondent pleaded that, it is a non-bank financial institution engaged in the business of money-lending; that on or about 11th December 2014, by an agreement reduced into writing (Exhibit ‘A’), it advanced to the 1st Appellant a credit facility in the sum of Gh¢350,000.00, guaranteed personally by the 2nd and 3rd Appellants and secured by a deed of mortgage over a residential property at Adabraka, Accra. According to the Respondent, the said facility was to attract interest at the rate of 4.25% per month compound, calculated on a thirty (30) day basis, payable monthly in arrears, with a default charge of 2.5% on any outstanding balance where default occurred.

The Respondent further pleaded that on 12th February 2016, by a further agreement (Exhibit ‘C’), it advanced to the 1st Appellant an additional facility of Gh¢800,000.00 upon the same interest stipulations, secured by a further deed of mortgage over a residential property at Airport, Accra; and that clause 4.2 of Exhibit ‘C’ recorded that the grant of the said additional facility increased the 1st Appellant’s total indebtedness to Gh¢2,850,573.50 as at 12th February 2016.

The Respondent’s case, in essence, was that the Appellants had defaulted in the repayment of the credit facilities; that as at 31st August 2017 the outstanding indebtedness stood at GH¢3,065,915.31; and that, by reason of the persistent default, the Respondent had become entitled to the reliefs endorsed on the writ of summons:

The sum of Three Million and Sixty-Five Thousand, Nine Hundred and Fifteen Ghana Cedis and Thirty-One Pesewas (Gh¢3,065,915,31) being the outstanding loan amount as at 31st August 2017;

Interest on the said Three Million and Sixty-Five Thousand, Nine Hundred and Fifteen Ghana Cedis and Thirty-One Pesewas (Gh¢3,065,915.31) at the agreed compound interest rate of 4.25% per month from 1st September 2017 till date of final payment;

An amount of Seventy-Six Thousand, Six Hundred and Forty-Seven Ghana Cedis and Eighty-Eight pesewas (Gh¢76,647.88) being default charge of 2.5% of the balance due and owing to the Plaintiff;

Payment of legal fees;

Costs.

OR IN THE ALTERNATIVE:

An order for the judicial sale of the mortgaged properties;

An amount of Seventy-Six Thousand, Six Hundred and Forty-Seven Ghana Cedis and Eighty-Eight pesewas (Gh¢76,647.88) being default charge of 2.5% of the balance due and owing to the Plaintiff;

Payment of legal fees.

Costs.

THE DEFENCE

The Appellants joined issues with the Respondent by a Statement of Defence filed on 23rd November 2017 (pages 10-11 of Volume 1 of the Record of Appeal). They did not deny the grant of the four facilities. They pleaded, however, in their material averments, the following:

That to the Respondent’s knowledge, the 1st Appellant had relied upon a facility from the Export Development and Agricultural Investment Fund (“EDAIF”) to retire its indebtedness to the Respondent, but the EDAIF facility did not materialise, thereby frustrating the 1st Appellant’s efforts to satisfy its obligations from that source.

That, the foregoing notwithstanding, the 1st Appellant had “fully retired all the principal amounts on the facilities granted it by the Plaintiff.”

That, in addition to the repayment of the principal amounts in full, the 1st Appellant had paid “over 47% of the interest the Plaintiff alleges to have accrued on the facilities.”

That the Appellants had “made numerous overtures to Plaintiff to reconsider the astronomical compounding of interest to pave the way for a lump sum payment to be made to Plaintiff to close the transaction.”

That the amount stated on the Statement of Claim was the “result of wrongful, unjustified, unreasonable and harsh computation and accumulation of interest,” the Respondent having additionally applied penal interest not anticipated by the terms of the facilities; that accounts ought to be gone into; and that the transaction ought to be re-opened in the exercise of the Court’s powers under the Loans Recovery Act, 1918 (CAP 175), as harsh and unconscionable.

THE ISSUES SET DOWN FOR TRIAL

From the pleadings of the parties, the following issues were set down for the determination of the trial High Court:

Whether or not the 1st Appellant is indebted to the

Respondent in any sum, and, if so, the quantum of the said indebtedness as at the date of the writ.

Whether or not the Respondent’s computation of interest in respect of the four facilities is in accordance with the terms of the facility agreements.

Whether or not the 1st Appellant has discharged the principal and any portion of the interest accruing on the facilities by payments made.

Whether or not the transaction between the parties is harsh and unconscionable so as to warrant the intervention of the Court under the Loans Recovery Act, 1918 (CAP 175).

Whether or not the Respondent is entitled to the reliefs claimed in its Writ of Summons and Statement of Claim.

Any other issue or issues arising upon the pleadings.

THE EVIDENCE LED AT THE TRIAL HIGH COURT

THE EVIDENCE OF THE PLAINTIFF/RESPONDENT

The Respondent called a single witness, one Mr. Eric Bobie Antonio (the Plaintiff’s witness, hereinafter as “PW1”), described upon the record as the Respondent’s Senior Recoveries Officer. Per his witness statement filed on 24th May 2019, and adopted as his evidence-in-chief at the trial on 8th October 2019, PW1’s evidence was, in its essentials, a recitation of the contents of the Statement of Claim. He testified to the grant of the four credit facilities and tendered, through the witness box, the documentary exhibits comprising the facility agreements (Exhibits ‘A’ and ‘C’), the deeds of mortgage (Exhibits ‘B’, ‘D’ and ‘E’), the Statutory Declaration (Exhibit ‘F’), the personal guarantees of the 2nd and 3rd Appellants (Exhibits ‘G’ and ‘H’); and, of paramount importance to the present appeal, the consolidated Statement of Account of the 1st Appellant (Exhibit ‘J’). PW1 maintained that, as at the date of the writ, the 1st Appellant was indebted to the Respondent in the sum claimed.

It was, however, revealed during cross-examination that the substance of PW1’s evidence underwent a decisive modification. When cross-examined by Counsel for the Appellants on 9th October 2019, and further on 10th October 2019, PW1 was constrained to make admissions which, in our considered view, fundamentally altered the complexion of the Respondent’s case. Three admissions, in particular, merit attention.

First, on 9th October 2019, PW1 conceded, with respect to the contractual interest provision, that the rate of 4.25% per month had been applied not on a monthly compounding basis (as Clause 9 of the facility agreements stipulates), but on a daily compounding basis. In the witness’s own words, recorded at page 117 of Volume 1 of the Record of Appeal:

“It means compound interest; so the interest is compounded daily. So we have 4.25% per month; the same clause is saying that the interest is calculated on a 30-day basis. So for this, we calculate it daily. What I mean is that, we don’t wait till the end of the month to charge the 4.25%. So for the 4.25%, if there are 30 days, we divide by the 30 days and get the daily charge.”

Asked specifically whether the application of 4.25% per month yielded the figures appearing for successive months on Exhibit ‘J’, PW1 was compelled to answer in the negative, and was unable to demonstrate to the trial Court how the figures had been derived from the contractual rate when applied on a strictly monthly basis.

Secondly, and of yet greater consequence, on the resumed cross-examination of 10th October 2019, PW1 admitted, in respect of the credit entry of Gh¢60,477.83 of 18th May 2017 (the only credit appearing on the entirety of Exhibit J for the period 11th December 2014 to 15th July 2018), that the said entry was traceable to a remittance from the Bank of Ghana of US$650,000, and that the cedi equivalent of that remittance, at the prevailing exchange rate, was approximately Gh¢2,730,000.

The relevant exchange, recorded at pages 126-127 of Volume 1 of the Record of Appeal, bears reproduction.

“Q: Let me take you back to Exhibit ‘J’. By the benefit of yesterday’s adjournment, have you been able to trace the source of the Gh¢60,477.83 recorded for the 18th of May, 2017?

A: Yes, my Lord.

Q: Can you tell the court where it came from?

A: The source document indicated that it was part of an amount of USD650,000.00 that came from the Bank of Ghana.

Q: It came from the Bank of Ghana to do what?

A: As repayment.

Q: For whose benefit?

A: The Defendant.

Q: Can you tell the court what the rough equivalent to the Cedi of that amount is?

A: Gh¢2,730,000.00.”

Thirdly, on 10th October 2019, PW1 admitted that he had no document evidencing how the said remittance of Gh¢2,730,000 had been applied between the four facilities, and was unable to explain why a payment of so substantial a magnitude appeared on Exhibit ‘J’ as a credit of only Gh¢60,477.83. To a question from Respondent’s counsel whether he had documentary evidence to support an alternative application of the funds, his answer was: “I do not have any document for such payment.”

PW1 also conceded, in the course of the same cross-examination, with respect to the debit entries of 15th July 2018 in the sums of Gh¢476,672.12 and Gh¢7,420.00 (totalling Gh¢484,092.12 and described as legal fees and legal charges) that, those amounts had been debited unilaterally to the 1st Appellant’s account by the Respondent, and that the debits had thereafter formed part of the principal upon which the Respondent’s daily-compounded interest had been applied.

THE EVIDENCE OF THE DEFENDANTS/APPELLANTS AT THE TRIAL COURT

The Appellants called the 2nd Appellant, Mr. Michael Abu Sakara Foster, as their sole witness (“DW1”). By his witness statement filed on 5th August 2019, which he adopted as his evidence-in-chief at the trial on 4th December 2019, DW1 testified that he is a director of the 1st Appellant company and an agronomist by profession; that the 1st Appellant had obtained the four facilities from the Respondent for the purposes of its agribusiness operations; that the failure of the EDAIF facility had occasioned considerable financial pressure on the 1st Appellant; and that, in those circumstances, he had, in his personal capacity as the 2nd Appellant, sold his private residential property at Airport, Accra, for a consideration of US$650,000, and remitted the entirety of the proceeds, in the cedi equivalent of Gh¢2,730,000, to the Respondent on 18th May 2017.

DW1 further testified that, prior to the sale, the parties had engaged in discussions regarding the modalities for bringing their relationship to a close. According to him, the Respondent subsequently released the title documents in respect of the Airport property to facilitate the sale; and that, following receipt of the proceeds thereof, the Respondent took no steps against the Appellants for a period of approximately five months, until the institution of the present action in October 2017.

Under Cross-examination on 12th December 2019 by Counsel for the Respondent, DW1 maintained his account of the sale of the property and the remittance of the proceeds. He testified that, in his understanding, the said remittance was meant to bring the dealings between the parties to a final close. He acknowledged that, after the institution of the action, he had been unable to trace, on the documentation supplied to him by the Respondent, the application of the Gh¢2,730,000 across the four facilities; but he was emphatic that the payment had been made and that the Respondent’s representative had, on the very documents tendered in court, conceded that fact.

THE JUDGMENT OF THE TRIAL HIGH COURT

By its judgment of 27th February 2020 the High Court (Commercial Division), Accra, entered judgment for the Respondent against the Appellants jointly and severally.

The Learned Trial Judge found, in substance, that the Respondent had established the grant of the facilities and the Appellants’ default on the balance of probabilities. In the view of the trial court, the Appellants had failed to adduce sufficient evidence to show that they had made any payments other than those reflected in Exhibit ‘J’, and that the Statement of Account, Exhibit ‘J’, constituted a reliable record of the transactions between the parties. Further, the Appellants’ plea of unconscionability could not be sustained, as they had freely entered into the facility agreements with their eyes open and were persons of education and standing in the community.

Accordingly, the trial Court entered judgment for the Respondent in the principal sum of Gh¢3,065,915.31, with interest at 4.25% per month compound from 1st September 2017 till date of final payment, together with default charges of Gh¢76,647.88. The Court declined the prayer for an order of judicial sale of the mortgaged properties.

APPEAL TO THE COURT OF APPEAL

Aggrieved by the judgment of the trial Court, the Appellants mounted an appeal against same to the Court of Appeal per a notice of appeal filed on the 11th of March 2020 upon the following grounds:

The Judgment is against the weight of the evidence

The Court erred when it held that the Gh¢500,000 and Gh¢200,000 facilities are irrelevant to this case.

The Court erred when it accepted and relied on the one sided report of the Court appointed Auditor.

The Court erred when it failed and/or refused to consider the Defendants’ payment of the sum of Gh¢2,730,000 and thus caused Defendants substantial miscarriage of justice.

The Court erred when it failed and/or refused to consider Defendants’ case of Plaintiff’s wrongful arithmetic computation of the interest rate on the 1st Defendant’s Statement of Account and thereby caused Defendants substantial miscarriage of justice.

The Court erred when it failed and and/or refused to consider Defendants’ case of wrongful debits to 1st Defendant’s account and thus caused Defendants substantial miscarriage of justice.

The Court erred in law when it held that no case of unconscionability had been made by the Defendants to warrant a re-opening of the transaction.

The Court erred when it held that the only amount paid by the Defendants on the Gh¢350,000 and Gh¢800,000 facilities was Gh¢60,772 when Defendants made no such isolated payment.

The Court erred when it misconstrued Defendants’ case on the failed EDAIF facility and the compound interest.

By its judgment of 25th February 2021, the Court of Appeal allowed the appeal in part. The Court of Appeal accepted that on the true construction of clause 9 of the facility agreements, the operative stipulation was for monthly, and not daily compounding of interest. At pages 79-82 of Volume 2 of the Record, the Court reasoned that:

“The interest rate charged was not in accordance with the Loan Facility Agreement and the court experts’ evidence does not reflect the interest chargeable in the agreement. … Clause 9 of the agreement is the operative part of the agreement on the interest chargeable on the facility … Clause 9 of the agreement provides for monthly compound interest and not the ballooned 4.5% compounded daily interest contained in the table to the agreement which was used by the court expert to astronomically raise the interest on the principal amount to give it a monstrous picture to make it harsh and unconscionable.”

Upon that finding, the Court of Appeal allowed the appeal on grounds (a), (c) and (e), set aside the judgment of the trial Court, and made a consequential order appointing JS Morlu Chartered Accountants as Court Expert to reassess the indebtedness applying a monthly compounded rate of 4.5% per month. We observe, in passing, that the Court of Appeal’s direction that the rate be 4.5% per month is, with respect, an inadvertent departure from the contractual figure of 4.25%.

The Court of Appeal, however, declined to disturb the trial Court’s finding upon the question of the Gh¢2,730,000 payment. At page 74 of Volume 2 of the Record, the Court held: “In respect to grounds (b) and (d) of the appeal, the Defendants failed to adduce evidence to satisfy the trial Court that they made payments of Gh¢200,000,000.00 and Gh¢2,730,000.00 as payments against the two loan facilities granted by the Plaintiff to them in 2014, the subject matter of this appeal.”

THE RULING OF 10TH FEBRUARY 2022

Pursuant to the judgment of 25th February 2021, JS Morlu Chartered Accountants were appointed as Court Expert. Their report (Exhibit ‘CE1’) was filed on 7th May 2021. Their representative, one Mr. Aurelius J. Adobor, was thereafter cross-examined on 17th November and 15th December 2021, and the parties filed written addresses.

By its ruling of 10th February 2022, the Court of Appeal adopted the auditor’s computation as the indebtedness of the 1st Appellant. The relevant portion of the ruling reads:

“We accordingly accept the Defendants’ indebtedness contained in the auditor’s report issued by JS Morlu Chartered Accountants as having been calculated in accordance with 4.5 percent monthly compound interest calculated on monthly basis as agreed between the parties in their loan facilities agreements.”

It is against that ruling that, the second Notice of Appeal of 28th February 2022 was filed.

THE APPEAL TO THIS COURT AND THE GROUNDS THEREOF

As we have already indicated, the matter is now before this Honourable Court on two Notices of Appeal which have been consolidated for hearing. The first Notice of Appeal is against the judgment of the Court of Appeal delivered on 25th February 2021; the second is against the ruling of the same Court delivered on 10th February 2022. Each Notice contains its own set of grounds, addressing the distinct decisions thereby challenged. We propose to set them out separately.

THE FIRST NOTICE OF APPEAL

The first Notice of Appeal, filed on 15th March 2021 raises the following grounds against the judgment of the Court of Appeal dated 25th February 2021:

(a) The Judgment is against the weight of the evidence.

(b) The Court misconstrued Defendants’ case when it held that Defendants have not led sufficient evidence to show that they paid GH¢200,000 and thus caused Defendants substantial miscarriage of justice.

(c) The Court erred when it held that Defendants failed to adduce evidence to satisfy the trial Court that they paid Plaintiff GH¢2,730,000.

(d) The Court erred in law when it misplaced the burden of proof and held that, the Defendants failed to adduce evidence to prove how much the 1st Defendant owed.

The Court erred in law when it declined to accept Defendants’ case of unconscionability to warrant a re-opening of the transaction.

The Court erred when it attributed the testimony of PW1 to the Court-appointed Auditor thereby misconstruing Defendants’ case and thus caused Defendants substantial miscarriage of justice.

Additional Grounds to be filed upon receipt of the Record of Appeal.

It is important to point out, however, that no additional grounds, were filed despite the indication for same in (g) above.

THE SECOND NOTICE OF APPEAL

The second Notice of Appeal, filed on 28th February 2022 is against the ruling of the Court of Appeal of 10th February 2022 by which the Court adopted the report of the Court-appointed Auditor. The Notice raises the following grounds:

(a) The Ruling is against the weight of the evidence.

(b) The Court erred when it entered the loan balance assessed by the Court Expert as the indebtedness of the Defendants.

(c) Additional Grounds to be filed upon receipt of the Record of Appeal.

Like the first, no additional grounds were filed regarding the second notice of appeal, the indication to file same notwithstanding.

APPELLANTS’ CASE ON THE ADDUCTION OF FRESH EVIDENCE

Pursuant to the leave granted by this Court on 4th February 2026, the Appellants additionally rely on the fresh evidence (Exhibit ‘1’ and the testimony of the 2nd Appellant given on 4th March 2026) to advance an alternative case grounded in the equitable doctrine of promissory estoppel. That case is, in substance, that the Respondent, having induced the Appellants to alienate the Airport property and having received the proceeds thereof, is estopped from seeking any further recovery in respect of the four facilities.

For the avoidance of doubt, in the discussion which follows, we shall, when referring to a particular ground of the first Notice of Appeal, designate it as “Ground (a)/First NoA,” and so on, and shall similarly designate the grounds of the second Notice of Appeal as “Ground (a)/Second No.A” and “Ground (b)/Second No.A.”

IMPROPER GROUNDS

Before proceeding to the merits of the appeal, it is necessary to address a preliminary, though not insignificant, issue, namely, whether the grounds of appeal as formulated comply with the requirements prescribed by the Rules of this Court. This objection was also duly raised in the course of argument by learned Counsel for the Respondent.

Rule 6(2)(f) of C.I. 16 provides as follows:

(2) A notice of civil appeal shall set forth the grounds of appeal and shall state-

(f) the particulars of any misdirection or error in law, if so alleged.

Further, Rule 6(4) of C.I. 16 enacts that:

“The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered seriatim; and where a ground of appeal is one of law the appellant shall indicate the stage of the proceedings at which it was first raised”.

Rule 6(5) of C.I. 16 also provides that:

“No ground of appeal which is vague or general in terms or discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of evidence; and any ground of appeal or any part of it which is not permitted under this rule may be struck out by the Court on its own motion or on application by the Respondent”.

The above-quoted Rules impose mandatory requirements. First, where a ground of appeal alleges misdirection or error of law, the particulars of such misdirection or error must be expressly and clearly stated. Secondly, the grounds of appeal must be concisely formulated and set out under distinct heads, devoid of argument or narrative. Thirdly, no ground which is vague or general in nature, or which discloses no reasonable ground of appeal, is permissible, save for the omnibus ground that the judgment is against the weight of the evidence.

These rules are not, as has occasionally been suggested in the course of argument before this Court, mere matters of pleader’s etiquette. Rather, they reflect important principles of fair process, requiring that an appellant afford both the respondent and the Court fair and adequate notice of the case it is required to meet, so that neither time nor judicial energy is dissipated in the pursuit of irrelevancies.

The jurisprudence of this Court has consistently insisted upon their observance, while at the same time tempering rigid application with considerations of substantial justice. In BROWN VS. QUASHIGAH [2003-2004] 2 SCGLR 930, the appellant had filed grounds of appeal couched in narrative form, embedding particulars within the heads of the grounds themselves. This Court struck out the offending grounds, holding that Rule 6(4) and its analogues in the Court of Appeal Rules constitute a structured discipline designed to ensure clarity and precision in appellate practice.

There has, however, developed alongside this strict line a complimentary line of authority emphasising that procedural rules are the handmaid of justice and not its mistress. See cases such as OWUSU-DOMENA VS. AMOAH [2015-2016] 1 SCGLR 790; REPUBLIC VS. HIGH COURT, ACCRA; EX-PARTE ARYEETEY (ANKRAH INTERESTED PARTY) [2003-2004] SCGLR 398; IN RE ASERE STOOL; NIKOI OLAI AMONTIA IV (SUBSTITUTED BY) TAFO AMON II VS. AKOTIA OWORSIKA III [2005-2006] SCGLR 637; and the more recent authority of ASAMOAH VS. ATTORNEY-GENERAL [2017-2018] 1 SCGLR 1. These decisions establish, in our considered view, the following propositions: a. First, the omnibus ground that the judgment is against the weight of the evidence is, by the express terms of Rule 6(5), exempt from the requirements of particulars and concision; and it is, on the established jurisprudence (TUAKWA VS. BOSOM [2001-2002] SCGLR 61; DJIN VS. MUSA BAAKO [2007-2008] SCGLR 686), sufficiently capacious to embrace any complaint that a finding of fact below is not supported by the totality of the evidence on record. b. Secondly, a ground which alleges error of law without setting out the particulars of the error is formally defective, and would ordinarily be struck out; but the Court, in the exercise of its inherent power to do justice, may consider the substance of such a ground where its meaning is plainly discernible. c. Thirdly, a ground which is argumentative or narrative in the sense that it embeds the appellant’s reasoning or recites the decision below within the head of the ground itself is objectionable; but, again, may be considered upon its substance where no prejudice has been occasioned to the respondent. d. Fourthly, a ground which is genuinely vague such that neither the respondent nor the Court can divine the case to be made will be struck out; for to entertain such a ground would be to require the Court to descend into the arena of conflict. Save the omnibus ground, we proceed to test the other grounds against these adjectival yardsticks in the Rules of Court.

Ground (b) of First NoA.

“The Court misconstrued Defendants’ case when it held that Defendants have not led sufficient evidence to show that they paid Gh¢200,000 and thus caused Defendants substantial miscarriage of justice.” With the utmost respect to Counsel who drafted the Notice of Appeal, the ground does not meet the requirements of Rules. It alleges a misconstruction but supplies no particulars of such misconstruction beyond a mere recitation of the conclusion of the Court below. The ground does not specify in what respect the Defendants’ case was said to have been misconstrued—whether the alleged error lay in a misreading of the pleadings, an improper appreciation of the documentary evidence, or a misapprehension of the testimony of PW1. Nor does it identify the particular items of evidence which the Defendants contend were ignored or wrongly evaluated. The concluding assertion, that there was a misconstruction, is therefore left as a bare allegation unsupported by any particulars capable of meaningful appellate review. The closing flourish, that the alleged misconstruction “caused Defendants substantial miscarriage of justice,” is mere argument: it adds nothing of substance to the head of the ground and falls foul of the prohibition in Rule 6(4) against argument or narrative.

We are satisfied, however, that the substance of the complaint is discernible from the supplementary statement of case and that the Respondent has been able to address it without prejudice. We propose, accordingly, to consider the substance of the ground, but to do so under the umbrella of the omnibus ground.

Ground (c)/First NoA.

“The Court erred when it held that Defendants failed to adduce evidence to satisfy the trial Court that they paid Plaintiff Gh¢2,730,000.” The defects of Ground (b)/First NoA reproduce themselves here. The ground identifies the conclusion below but supplies no particulars of why that conclusion is said to be erroneous, whether on the basis of PW1’s admissions in cross-examination on 9th and 10th October 2019, of documentary evidence on the record, or of some other particular. For the same reasons as we have given in respect of Ground (b)/First NoA, and on the same authority, we shall consider its substance under the omnibus ground.

Ground (d) /First NoA.

“The Court erred in law when it misplaced the burden of proof and held that the Defendants failed to adduce evidence to prove how much the 1st Defendant owed.” The ground squarely alleges an error in law yet there are no particularisation of the said errors as sanctioned by the Rules. The proper formulation would have indicated which provision of the Evidence Act, 1975 (NRCD 323) was alleged to have been misapplied (whether Section 11, Section 14, or both); upon what evidence the legal burden was said to have shifted to the Respondent; and the precise passage in the judgment of the Court of Appeal in which the alleged misallocation is said to be manifested. The ground, as drafted, is once again argumentative, as it embeds within its formulation a recitation of the holding of the Court below. We nevertheless hold that the complaint is intelligible upon a fair reading of the ground and is fully addressed in the supplementary statement of case.

Ground (e)/First NoA.

“The Court erred in law when it declined to accept Defendants’ case of unconscionability to warrant a re-opening of the transaction.” Once again, the ground alleges an error of law without particularising it. It does not state which provision of whatever law is alleged to have been misapplied, nor what circumstances of the transaction are said to engage the equitable doctrine of unconscionable bargain. The ground recites, in narrative form, the conclusion of the Court below and asserts that it was wrong. By the same approach, we consider its substance under the omnibus ground.

Ground (f)/First NoA.

“The Court erred when it attributed the testimony of PW1 to the Court-appointed Auditor thereby misconstruing Defendants’ case and thus caused Defendants substantial miscarriage of justice.” The ground alleges an error of fact, a misattribution and identifies the witnesses concerned. Even so, it does not indicate the passage of the judgment in which the misattribution is said to occur, nor the particulars of how that misattribution affected the determination of the appeal. The closing flourish about “substantial miscarriage of justice” is, once again, argumentative. We shall, however, consider its substance, since the misattribution, if any, is verifiable upon the face of the record.

Ground (b)/Second NoA.

“The Court erred when it entered the loan balance assessed by the Court Expert as the indebtedness of the Defendants.” The defects already identified in respect of grounds (b) and (c) of the First Notice of Appeal recur. The ground recites the conclusion of the Court below and asserts that it was erroneous, without supplying any particulars of why the entry was wrong, whether on the basis that the Court Expert worked from a different Statement of Account (a matter admitted by the Court Expert in cross-examination on 15th December 2021); that he applied an erroneous rate of interest; that the Gh¢2,730,000 payment was not properly credited; or upon some other footing. We shall consider its substance under the omnibus Ground (a) of the Second Notice of Appeal.

Grounds (g) of First NoA and (c) of Second NoA — additional grounds. These are mere expressions of intention to file additional grounds of appeal.

We pause to make two observations of a more general nature arising from this analysis. First, the deficiencies in the drafting of the grounds are not merely technical or minor. Rather, they reflect, with respect, a failure to observe the structural discipline imposed by the Rules of Court, a discipline designed to crystallise the issues for determination, to focus the Court’s attention on the real questions in controversy, and to afford the respondent fair and adequate notice of the case it is required to meet.

Were the present case one in which the Respondent had been embarrassed in its preparation, or in which the substance of the complaint were obscure, this Court would not hesitate to strike out the non-conforming grounds. The second observation is that the indulgence we have extended in this case ought not to be taken as an encouragement to indifferent draftsmanship. It rests upon the particular features of this matter. Having addressed the threshold question of compliance, we now turn to the substantive law governing the appeal.

THE LAW GOVERNING CIVIL APPEALS

It is settled that, an appeal is by way of rehearing. See TUAKWA VS. BOSOM [2001-2002] SCGLR 61, DJIN VS. MUSA BAAKO [2007-2008] SCGLR 686, AND REPUBLIC VS. CENTRAL REGIONAL HOUSE OF CHIEFS, EX-PARTE GYAU IX [2013-2014] 2 SCGLR 845.

Where, as in the instant situation, the omnibus ground that the judgment is against the weight of the evidence is invoked, this Court is enjoined to take another and a careful look at the entire record, both oral and documentary and to satisfy itself, on the preponderance of the probabilities, whether the conclusions of the courts below are amply supported by the evidence.

In matters of the burden of proof, the regulating statutory provisions are Sections 10, 11 and 14 of the Evidence Act, 1975 (NRCD 323), as expounded in In RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU VS. KOTEY [2003-2004] 1 SCGLR 420, where Brobbey JSC drew the now-familiar distinction between the legal burden of persuasion (which remains fixed where the law places it) and the evidential burden of adducing evidence (which is fluid and shifts according to the state of the evidence as it unfolds at trial).

On the cardinal principle that evidence given by a witness which is not effectively challenged in cross-examination is to be accepted by the court, this Court has spoken with one voice in cases such as MANTEY VS. BOTWE [1989-90] 1 GLR 479, QUAGRAINE VS. ADAMS [1981] GLR 599, SAMIR FARIS VS. TAKORADI FLOUR MILLS LTD [2006] DLSC 6443. The principle applies a fortiori where the unchallenged evidence is wrung from the opposing party’s own witness in cross-examination.

It will be observed, that this appeal challenges the concurrent findings and judgments of two lower courts, the trial high court and the court of appeal. It is established in appellate proceedings that, where there has been concurrent findings, the final appellate court, should be very slow to disturb those findings. This, however, does not make such findings sacrosanct, and insulate them from interference. Where, however, there are exceptional circumstances which have led to manifest injustice, arising out of clear errors whether of facts, or of law, occasioned by a mis-evaluation or misapplication of the law and evidence, this court is empowered to deviate from such course. In FRANK ODURO VS GRAPHIC COMMUNICATIONS GROUP LTD. [2018] DLSC 4518, at 3-4, Benin JSC (as he was then) expressed this position as follows; “On the concurrent findings of fact by courts below, it has been pointed out time without number that the second appellate court cannot substitute its own views for those of the Courts below, even if given the same facts, the second appellate court would have reached a different conclusion on the facts: However, the second appellate court can upset the findings of fact if certain questions or some of them are answered in the affirmative. Did the court fail to consider vital pieces of evidence, oral as well as documentary? Did the court take into consideration and rely on irrelevant and non-material evidence? Did the court rely on legally inadmissible evidence? Did the court wrongfully exclude relevant material and admissible evidence? Did the court fail to identify and allocate the burden of producing evidence and of persuasion and thereby failed to consider the party’s case properly. Did the court fail to identify the standard of proof required on a particular issue and thereby failed to access the party’s case accordingly? Did the court embark upon a proper evaluation of the evidence as a whole? These are by no means exhaustive. Answers to such questions and others may guide the court to reach a decision whether to disturb the findings of fact or otherwise”.

EVALUATION OF THE EVIDENCE ON RECORD

From the evidence, three findings stand undisputed. First, on 12th May 2017, the 2nd Appellant communicated to the Respondent in writing his intention to liquidate his private property and to apply the proceeds in settlement of the indebtedness (Exhibit ‘1’). Secondly, the Respondent thereupon released to the Appellants the title documents in respect of the said property to enable the contemplated sale. Thirdly, the property was duly sold for US$650,000 and on 18th May 2017 the cedi equivalent thereof, in the sum of Gh¢2,730,000, was remitted to the Respondent through the Bank of Ghana.

We seek to evaluate the effect of this development, in the light of the defence grounded on the doctrine of promissory estoppel, and its impact on the appeal.

The Doctrine of Promissory estoppel: its Origins and Development;

The doctrine of promissory estoppel is a relatively modern child of equity, though one whose lineage may be traced to older equitable doctrines of waiver and forbearance. Its first authoritative intimation is to be found in the opinion of LORD CAIRNS LC in HUGHES VS. METROPOLITAN RAILWAY CO. (1877) 2 APP CAS 439, where his Lordship observed, at page 448 thus:

“it is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results- certain penalties or legal forfeiture – afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.”

It is essential at the very inception of our exposition of the doctrine that, we identify with precision the mischief which it was fashioned to meet. At common law, a promise by one contracting party to waive, forbear from insisting upon, or suspend his strict legal rights arising under a subsisting contract would not, as a general rule, be enforceable against him in the absence of fresh consideration flowing from the promisee. Such promises were treated as gratuitous undertakings, and were dismissed as unenforceable upon the flat and mechanical application of the doctrine of consideration.

This position found its earliest and most influential formulation in PINNEL’S CASE (1602) 5 CO REP 117a, where Coke CJ, delivering the resolution of the Court, laid down the classical rule in these unambiguous terms:

“that payment of a lesser sum on the day in satisfaction of a greater cannot be any satisfaction for the whole, because it appears to the Judges that by no possibility a lesser sum can be a satisfaction to the plaintiff for a greater sum.”

The rule in PINNEL’S case was reaffirmed in a succession of subsequent authorities. In CUMBER VS. WANE (1721) 1 STR 426, Sir John Pratt CJ applied the rule to hold that the acceptance of a note for a lesser sum in satisfaction of a larger debt could not, in the absence of consideration, discharge the whole. So, too, in STILK VS. MYRICK (1809) 2 CAMP 317, Lord Ellenborough CJ held, in the classical modification case that, a promise by an employer to pay additional wages to seamen for the completion of a voyage they were already bound to perform was unenforceable for want of fresh consideration. The principle, though therein stated in relation to a variation of an executory obligation, is the analogue in modification of the same rule that governs waiver: no promise made in the modification or discharge of a subsisting contract is enforceable unless supported by fresh consideration.

The capstone of this line was placed by the House of Lords in FOAKES VS. BEER (1884) 9 APP CAS 605, where their Lordships, upon the fullest consideration, affirmed the rule in PINNEL’S case with binding effect. Dr. Foakes had obtained judgment against Mrs. Beer for a large sum, and thereafter Mrs. Beer agreed in writing to accept payment by instalments and to forgo the interest that had accrued upon the judgment debt. Dr. Foakes paid the instalments in reliance upon that agreement. Mrs. Beer nonetheless subsequently sued for the unpaid interest. The House of Lords held that her agreement to forgo the interest, having been made without fresh consideration flowing from Dr. Foakes, was unenforceable against her. She was thus entitled to recover the balance.

A further and closely related common-law fetter upon the enforceability of such promises was that laid down in JORDEN VS. MONEY (1854) 5 HLC 185, where the House of Lords held that a promise as to future conduct as distinct from a representation of an existing fact could not found an estoppel. Lord Cranworth LC observed that, estoppel by representation applied only to representations of existing fact, and not to promises concerning future intentions. The effect of JORDEN VS. MONEY (supra) was, if permitted to stand as decisive, to close off altogether the equitable avenue by which a promisee might seek to hold a promisor to a promise to waive or forbear. It is precisely the reasoning of JORDEN VS. MONEY (supra) that Denning J. was concerned to circumvent in HIGH TREES (supra). His Lordship’s celebrated observation that “the law has not been standing still since JORDEN VS. MONEY” was, in truth, the doctrinal turning-point at which the modern doctrine of promissory estoppel emerged from the shadow of that decision.

Yet, in the ordinary course of commercial life, arrangements of this nature, often described in the learning as modification contracts or variation agreements are of daily occurrence and considerable practical importance. As Professor Christine Dowuona-Hammond observes in her authoritative treatise, The Law of Contract in Ghana (Frontiers Printing & Publishing Company, 2011), such arrangements typically become necessary in the case of misfortunes, temporary recessions, or other obstacles in economic activity which disrupt the continued performance of contracts and necessitate the variation of the terms of an existing contract. The rigidity of the common-law rule frustrated the reasonable expectations of businessmen and the smooth readjustment of commercial arrangements. It was to mitigate the harshness of that rule that equity, through the doctrine of promissory estoppel, intervened.

The doctrine is thus, in its essential character, a defensive and preventive instrument. It does not create fresh contractual rights in the absence of consideration. It however restrains a promisor from insisting upon the strict enforcement of pre-existing rights where, having regard to the dealings between the parties, it would be unconscionable for him to do so. This foundational purpose was clearly articulated by Lord Cairns LC in the passage set out above; and it has informed the whole subsequent development of the doctrine, both in England and in this jurisdiction.

The doctrine has since been developed through COMBE VS. COMBE [1951] 1 ALL ER 767, TOOL METAL VS. TUNGSTEN ELECTRIC CO. LTD [1955] 1 WLR 761, AJAYI VS. BRISCOE (NIGERIA) LTD., [1964] 1 WLR 1326 , and D & C BUILDERS VS. REES [1966] 2 QB 617 to embrace precisely the kind of promise that JORDEN VS. MONEY (supra) had held to be beyond the reach of estoppel.

The rule in FOAKES VS. BEER (supra), though repeatedly criticised as productive of injustice and though attempts have been made, notably by Lord Blackburn in FOAKES VS. BEER (supra) itself, to soften its application has not been overruled in England, and was as recently as 1995 reaffirmed by the English Court of Appeal in RE SELECTMOVE LTD. [1995] 1 WLR 474, where Peter Gibson LJ observed that the rule in FOAKES VS. BEER (supra) remains binding and that it may be departed from only by the House of Lords or, in modification of contract cases, by way of the doctrine of practical benefit developed in WILLIAMS VS. ROFFEY BROS. & NICHOLLS (CONTRACTORS) LTD. [1990] 1 QB 1. The upshot at English common law is thus this: the rule that a promise to waive or forgo a debt without fresh consideration is not enforceable remains the general position. Its rigours have been ameliorated in the debt context, primarily by the equitable doctrine of promissory estoppel, and, in a limited class of modification cases, by the doctrine of practical benefit.

It was, however, in the celebrated decision of Denning J. (as he then was) in CENTRAL LONDON PROPERTY TRUST LTD. VS. HIGH TREES HOUSE LTD. [1947] KB 130, that the doctrine received its definitive modern formulation. The case concerned a wartime arrangement between a landlord and a tenant of a block of flats in Clapham, by which the landlord had agreed, in 1940, to halve the rent payable in view of the difficulty of securing tenants during the Blitz. The tenant thereafter paid the reduced rent until 1945. When, the war having ended and the flats again being fully tenanted, the landlord sought to recover the full rent for the future. Denning J. held that, the landlord was entitled to do so prospectively, but that, in respect of the period during which the reduced rent was being paid pursuant to the parties’ understanding, equity precluded any claim for the balance. The learned Judge said, at page 134 thus:

“A promise intended to be binding, intended to be acted on, and in fact acted on, is binding so far as its terms properly apply.”

The doctrine was thereafter elaborated and refined in COMBE VS. COMBE [1951] 1 ALL ER 767, where its constituent elements were identified as:

“Where a promise is given; which is intended to create legal relations; which is intended to be acted upon by the promisee; and is in fact acted upon, the promisor cannot bring an action which involves the repudiation of his promise or is inconsistent with it.”

In COMBE VS. COMBE (supra), it was established that promissory estoppel operates as a shield and not as a sword; that is to say, the doctrine does not create a cause of action where none would otherwise lie, but operates only to qualify or negative the strict legal rights of the promisor within the context of an existing legal relationship between the parties. In the instant appeal, that limitation presents no obstacle. The Appellants do not seek to found a cause of action upon the doctrine; rather, they invoke it defensively, as a shield against the Respondent’s pursuit of the indebtedness.

We pause here to note one substantial doctrinal complication which the High Trees doctrine had to navigate, for it bears upon the instant appeal. The common law had long held, in the rule in PINNEL’S CASE (1602) 5 CO REP 117A, as affirmed by the House of Lords in FOAKES VS. BEER (supra) that the part-payment of a debt in money on the due date does not, even where accepted by the creditor, discharge the whole debt for want of consideration. The rule has been roundly criticised as productive of injustice, and it was precisely to mitigate its rigour that equity, through the High Trees doctrine, intervened. As Denning LJ. observed in D & C BUILDERS LTD. VS. REES (supra) where a debtor pays a lesser sum upon the faith of a representation by the creditor that the lesser sum will be received in full discharge, and acts to his detriment upon that representation, equity will not permit the creditor to resile from the representation and pursue the balance. The principle in FOAKES VS. BEER (supra) is, in such a case, displaced by the equitable estoppel.

The doctrine’s subsequent development is authoritatively encapsulated in the judgment of the Privy Council in AJAYI VS. R. T. BRISCOE (NIGERIA) LTD. (supra) where, in an appeal from West Africa on a point of commercial estoppel arising out of a hire-purchase transaction, Lord Hodson, delivering the advice of the Board, set out the doctrine in its now-classical form in the following words:

“The principle, which has been described as quasi estoppel and perhaps more aptly as promissory estoppel, is that when one party to a contract in the absence of fresh consideration agrees not to enforce his rights, an equity will be raised in favour of the other party. This equity, however, is subject to the qualifications: (1) that the other party has altered his position; (2) that the promisor can resile from his promise on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position; (3) the promise only becomes final and irrevocable if the promisee cannot resume his position.”

The judgment in AJAYI VS. BRISCOE (supra) is of particular pertinence to the courts of Ghana. It is a decision of the Privy Council on appeal from a West African jurisdiction, delivered upon the very kind of commercial transaction which regularly comes before our courts, and it has been of persuasive authority in our jurisprudence for well over half a century. This Court has repeatedly acknowledged its influence, most recently in NATIONAL INVESTMENT BANK LTD. VS. ARYEH (supra), to which we shall come in our discussion of the Ghanaian reception. The structured, three-limbed formulation of the doctrine which Lord Hodson articulated has become, in substance, the analytical framework upon which our own courts have proceeded.

We may add, as a further observation upon the English development of the doctrine before proceeding to its Ghanaian reception, a reference to the important decision of the English Court of Appeal in AMALGAMATED INVESTMENT & PROPERTY CO. LTD. VS. TEXAS COMMERCE INTERNATIONAL BANK LTD. [1982] QB 84. That case is of particular resonance to the appeal before us, arising, as it did, out of a banking transaction in which the parties had for many years conducted their dealings upon a shared understanding subsequently sought to be disavowed by the bank. Delivering a judgment of characteristic breadth, Lord Denning MR (as he then was) formulated the principle of estoppel in what has come to be known as the unified doctrine of equitable estoppel, uniting under a single principle the previously fragmented species of promissory, proprietary, and conventional estoppel. His Lordship observed as follows:

“When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law whether due to misrepresentation or mistake makes no difference on which they have conducted the dealings between them, neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.”

The Learned Master of the Rolls’ formulation captures, with characteristic elegance and generality, the underlying rationale of the whole family of equitable estoppels. The principle is, in its essence, that, where parties in a commercial relationship have proceeded upon a shared assumption whether that assumption be founded upon an express representation, an implied understanding, or a course of conduct, equity will not permit one of them to resile to the prejudice of the other. That formulation, in our considered view, applies with singular force to the lender-borrower relationship which subsisted between the Respondent and the Appellants. The parties in this case proceeded, from at least 12th May 2017, upon the shared assumption that, the proceeds of the sale of the Airport property would discharge the indebtedness of the 1st Appellant. Upon the authority of AMALGAMATED INVESTMENT VS. TEXAS COMMERCE (supra), the Respondent may not now go back upon that assumption to the manifest prejudice of the Appellants.

The modern English restatement of this principle in the very context which occupies us here; that of part-payment of a debt is to be found in the decision of the Court of Appeal in COLLIER VS. P & MJ WRIGHT (HOLDINGS) LTD. [2007] EWCA CIV 1329; [2008] 1 WLR 643. In that case, Mr. Collier was one of three joint debtors to the defendant, a property-development company. Following protracted dealings, the Defendant company was said to have agreed to accept from Mr. Collier one-third of the total indebtedness in full and final settlement of his personal liability. Mr. Collier duly paid his share, whereupon, upon the default of his Co-debtors, the Defendant company sought to hold him liable for the balance. Delivering the lead judgment, Arden LJ (as she then was), held that, where a creditor voluntarily accepts a lesser sum from a debtor upon the shared understanding that such payment is to be received in final settlement, and the debtor pays that sum in reliance upon the understanding, equity may prevent the creditor from subsequently seeking to recover the balance. The learned Lady Justice observed as follows:

“To a significant degree it makes the doctrine of consideration redundant … The facts of this case demonstrate that, if (1) a debtor offers to pay part only of the amount he owes; (2) the creditor voluntarily accepts that offer, and (3) in reliance on the creditor’s acceptance the debtor pays that part of the amount he owes in full, the creditor will, by virtue of the doctrine of promissory estoppel, be bound to accept that sum in full and final satisfaction of the whole debt. For him to resile will of itself be inequitable.”

The judgment in COLLIER VS. WRIGHT (supra) is, in our respectful view, of the highest pertinence to the appeal before us. The three-limbed formulation which Arden LJ articulated (i) an offer by the debtor of part-payment; (ii) voluntary acceptance by the creditor; and (iii) reliance by the debtor in paying that part maps with striking exactness onto the very structure of the transaction between the parties in May 2017. The Appellants made overtures to settle their indebtedness by the payment of the proceeds of the sale of the Airport property; the Respondent, by releasing the title deeds, voluntarily accepted those overtures; and the Appellants, in reliance upon that acceptance, alienated the property and remitted the entirety of the proceeds to the Respondent. On the authority of COLLIER VS. WRIGHT, the Respondent is now bound in equity to accept those proceeds in full and final satisfaction of the whole indebtedness. To permit it now to resile would, in the language of Arden LJ, “of itself be inequitable.”

We must, before turning to the reception of the doctrine into our own jurisprudence, register one further qualification of considerable importance: namely that, the doctrine of promissory estoppel operates, as a general rule, only to suspend and not to extinguish the strict legal rights of the promisor. That principle was authoritatively established by the House of Lords in TOOL METAL MANUFACTURING CO. LTD. VS. TUNGSTEN ELECTRIC CO. LTD. [1955] 1 WLR 761, where their Lordships held that a promisor who has, in equity, been precluded from insisting upon his strict contractual rights may, upon giving reasonable notice to the promisee, resume those rights and revert to the original terms of the contract. The notice need not be formal; it must, however, afford the promisee a reasonable opportunity to resume his original position. Where, however, subsequent events have rendered it impossible for the promisee to resume that position, as for example, where he has irretrievably altered his affairs in reliance on the representation, the promisor’s rights are, on the authorities, deemed to be extinguished altogether. In such a case, the doctrine crosses from suspension into permanent prohibition. We shall return to this qualification when we to apply the doctrine to the facts of the instant appeal before us.

THE RECEPTION OF THE DOCTRINE INTO GHANAIAN LAW

The doctrine of promissory estoppel has, for several decades, been received into our jurisprudence and applied as part of the law of Ghana. In TSEDE VS. NUBUASA [1962] 1 GLR 338, One C.N., a relative of the Defendants, incurred a debt of £1,340 1s 5d. in the course of his employment by the Plaintiffs. On his being asked to pay the money, he took the Plaintiffs to the Defendants. The Defendants promised to pay the debt on behalf of their relative C.N. within one week. They caused a note, Exhibit ‘B’, to be prepared in favour of the Plaintiffs to that effect. They were able to pay only £G 50. The Plaintiff acted against them for the balance. It was contended on their behalf that there was no consideration for their promise to pay the debt and therefore the contract was unenforceable.

It was held that even though on the face of exhibit B, there was no consideration for the promise to pay, consideration need not always be express; it could be implied from the circumstances of a particular case. The court held further that an agreement to forbear from instituting legal proceedings to enforce a legal or equitable right is sufficient consideration for a promise to pay a debt already incurred. Such an agreement to forbear could be implied from the facts of the case and the Plaintiffs were, therefore, entitled to succeed.

The scholarly reception of TSEDE VS. NUBUASA (supra) illustrates the significance of the decision as an early and welcome inroad into the rigidity of the consideration doctrine in this jurisdiction. Writing shortly after the judgment, Professor S. K. Date-Bah (later Professor Date-Bah JSC) observed, in his seminal article “TSEDE VS. NUBUASA: A Welcome Inroad into the Doctrine of Consideration” (1969) VI (No. 1) University of Ghana Law Journal 60, that the case brought the Ghanaian law near to making the principle of promissory estoppel a sword, and not a mere shield, by giving decisive weight to the Plaintiff’s reliance on the Defendant’s promise. That commentary, in our respectful view, captures the essential jurisprudential trajectory along which the doctrine has since developed in this jurisdiction.

The Learned Professor was careful to identify the deeper justifications for the reception of the doctrine. Beyond the moral consideration that, a man’s word should be his bond, there is a substantial economic justification. As Dean Roscoe Pound famously observed in a phrase which Professor Date-Bah employed with telling effect “Wealth, in a commercial age, is made up largely of promises.” In an economic system such as ours, in which credit is of vital significance to commercial expansion, business investment, and industrial development, it is essential that the law should extend as wide a protection as possible to serious promises deliberately given, particularly those made in a commercial setting. The law must lend its weight to the enforcement of commercial morality and business probity in order to sustain the confidence of the business community in the security of the commercial transactions into which its members enter. These considerations lie at the very heart of the reception of the doctrine of promissory estoppel into our law, and furnish the policy foundation upon which its subsequent development has proceeded.

We may add, by way of comprehensive statement of the law that, the doctrine of promissory estoppel operates in this jurisdiction alongside, and in some respects, is supplemented by the statutory reforms introduced by the Contracts Act, 1960 (Act 25). Section 8(2) of Act 25, which we shall have occasion to revisit, dispenses with the requirement of consideration for promises to waive the payment of a debt or the performance of a contractual obligation; while Section 9 of the Act dispenses with the requirement of consideration in the modification of contracts. Together, these provisions constitute a significant statutory softening of the common-law consideration rule. But they do not, in our considered view, displace or render redundant the equitable doctrine of promissory estoppel. While the statutory rules address the question of enforceability of variation agreements, the doctrine of estoppel addresses the broader equitable question of whether it would be unconscionable, in all the circumstances of the case, for a promisor to resile from a representation upon which a promisee has acted to his detriment. The two operate on distinct planes and each has its proper sphere of application.

The decision of this court in NARTEY VS. MECHANICAL LLOYD ASSEMBLY PLANT LTD. [1987] 2 GLR 314] is a leading judicial confirmation that the doctrine of promissory estoppel, as a doctrine of equity, forms part of the laws of Ghana by virtue of the reception clause in the Courts Act 1971. In that case, the Plaintiff, Mr. Nartey, was employed by the Defendant company under a fixed-term contract of employment. In the course of his employment, senior officers of the company, including the Managing Director, made repeated representations to him that his appointment would be confirmed on a permanent basis upon the expiry of the fixed term, and that he should continue to discharge his duties diligently on that understanding. The Plaintiff, relying on those representations, declined other offers of employment and undertook financial commitments, including commitments in respect of his residential accommodation, predicated upon the expectation of continued employment.

Upon the expiry of the fixed term, the Defendant company declined to renew the contract and gave no explanation beyond a bare statement that the fixed term had elapsed. The Plaintiff brought an action claiming, among other things that, the company was estopped by its representations from denying him the benefit of continued employment, and that the doctrine of promissory estoppel precluded the company from relying on the contractual termination date to defeat his legitimate expectation.

The Supreme Court unanimously held that, the doctrines of equity, including promissory estoppel, form part of the laws of Ghana by virtue of Section 54 of the Courts Act 1971. The court rejected any suggestion that promissory estoppel was a foreign imposition inapplicable to Ghanaian circumstances. In the view of Adade JSC, in delivering the lead judgment, His Lordship said: inter alia as follows: “The doctrines of equity are part of the law of Ghana… [and] a party who has been induced by the representations of another to alter his position may be entitled to the protection of equity against unconscionable resiling.”

The court confirmed that the elements of the doctrine, being (i) a pre-existing legal relationship, (ii) a clear and unequivocal representation, reliance, and the inequitability of strict enforcement apply in Ghana in substantially the same form as articulated in the English authorities. It further confirmed that the “clean hands” requirement is operative in Ghana. Thus, a promisee who procures a promise through misrepresentation or unconscionable conduct cannot thereafter invoke equity to enforce it.

The significance of NARTEY VS. MECHANICAL LLOYD (supra) cannot be overstated. Promissory estoppel is available as a plea in Ghanaian courts. The case established the Supreme Court’s authoritative imprimatur on the doctrine and gave lower courts the confidence to apply it without concern that they were straying beyond their received. A successful plea of promissory estoppel requires more than proof of a promise and subsequent disappointment. The reliance must be real, concrete, and directly attributable to the promise. A claimant who would have acted in the same way regardless of the representation cannot establish the necessary causal nexus.

A more recent and authoritative Ghanaian restatement of the elements which a party invoking the doctrine must establish is to be found in the decision of this Court in IBM WORLD TRADE CORPORATION VS. HASNEM ENTERPRISE LTD. [2010] SCGLR 100. This Court had occasion to observe that, in England and in Ghana, promissory estoppel may be used indirectly as a cause of action where the Plaintiff has an independent cause of action, or as a direct cause of action in the limited situations of proprietary estoppel. On the question of what must be established, the Court held inter alia thus:

“It is clear from the authorities that a party relying on the principle of promissory estoppel must make out a clear case that such a promise was made, intended to be binding, intended to induce him to act on it and that he in fact acted upon it. Such an alleged promise or representation forms a vital part of the cause of action and must be proved. It is not a matter of conjecture and speculation. Where it is to be inferred, the facts must justify the inference.”

The judgment in IBM VS. HASNEM (supra) is significant in three principal respects. First, it confirms, in the clearest terms, that the doctrine of promissory estoppel is part of the corpus of Ghanaian law. Secondly, it identifies with precision the ingredients which a party relying on the doctrine must establish: (i) a promise, (ii) intended to be binding, (iii) intended to induce action, and (iv) in fact acted upon. Those ingredients map cleanly onto the four elements identified by Asquith LJ in COMBE VS. COMBE (supra), and thus confirm the fidelity of our jurisprudence to the English common-law source. Thirdly, and most tellingly for present purposes, the Court emphasised that the promise or representation constitutes a vital part of the cause of action and must be proved. The passage is a clear rejection of any suggestion that the doctrine may be raised on speculation or on a bare assertion. It demands, as we shall demonstrate presently, a careful examination of the evidence upon which the representation is said to rest.

Similarly, in IN RE SUHYEN STOOL; WIREDU AND OBENEWAA VS. AGYEI AND OTHERS [2005-2006] SCGLR 424, this Court, in considering an issue of estoppel by conduct in the context of customary law and chieftaincy, reaffirmed that the equitable principles which underlie the doctrine of estoppel, representation, reliance, and detriment are of universal application in the courts of Ghana.

More recently, and of direct relevance to the matter before us, this Court applied the doctrine in the commercial-banking context in GUARANTY TRUST BANK LTD. VS. WESTERN STEEL & FORGINGS LTD., CIVIL APPEAL NO.J4/34/2016 (dated 31 May 2017) even though this court in that case found the doctrine inapplicable.

We must add that, the doctrine has, since 1975, also found statutory expression in Section 26 of the Evidence Act, 1975 (NRCD 323), which provides:

“Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall, as against that party, be conclusively presumed in any proceedings between that party and such relying person or his successor in interest.”

The section, though couched in the language of conclusive presumption rather than estoppel simpliciter, has been recognised by this Court in numerous decisions as the statutory embodiment of the equitable doctrine of estoppel by representation, of which promissory estoppel is but one species.

It is worth emphasising also that, even though the common law’s position as held in the PINNEL’S case (supra) and affirmed in FOAKES VS BEERS (supra), had been, that a promise to waive or forego a debt or part payment of a debt is not binding on the promisor unless there is some fresh consideration flowing from the promiseee, Ghana has deviated on this stance statutorily under the Contracts Act, 1960 (Act 25). Section 8(2) of Act 25 enacts as follows:

“A promise to waive the payment of a debt or part of a debt or the performance of some other contractual or legal obligation shall not be invalid as a contract by reason only of the absence of any consideration therefore”.

Thus, under our statutory regime, a promise to waive or forgo part of a debt, is not invalid as a contract, only because of the absence of any fresh consideration. It therefore implies, that “a creditor, after promising to accept part payment of a debt in full discharge of the entire debt cannot go back and sue for the rest of the debt on the ground of lack of consideration. The promise, according to Act 25, is binding in the absence of consideration”. See Christine Dowuona-Hammond, The Law of Contract in Ghana (Frontiers Printing & Publishing Company, 2011) at 141.

We hold accordingly that, the doctrine of promissory estoppel, in its fullness as articulated in HUGHES VS. METROPOLITAN RAILWAY, CENTRAL LONDON PROPERTY TRUST VS. HIGH TREES HOUSE, AND COMBE VS. COMBE, AND AS DEVELOPED IN CASES SUCH AS D & C BUILDERS VS. REES, FORMS PART OF THE CORPUS OF THE LAWS OF GHANA, and is to be applied wherever its constituent elements are established upon the evidence.

THE APPLICATION OF THE DOCTRINE TO THE FACTS OF THIS CASE

On the basis of the foregoing principles, we proceed to examine their bearing on the facts of the instant appeal, taking in turn each of the four constituent elements making up the doctrine.

(i) The Promise or Representation.

The Respondent has sought to rely narrowly on the words “propose” and “request” in Exhibit “1”, contending that the letter was merely a unilateral overture without acceptance. With respect, that submission misconceives the proper approach to construing commercial communications. As Lord Hoffmann cautioned in INVESTORS COMPENSATION SCHEME LTD. VS. WEST BROMWICH BUILDING SOCIETY [1998] 1 WLR 896, documents must be interpreted in light of their factual matrix and the parties’ subsequent conduct, not in artificial isolation. The 2nd Appellant, an agronomist rather than a draftsman, employed language that must be read contextually, against the backdrop of the parties’ dealings before, during, and after the letter.

When so construed, Exhibit “1” reveals a concluded understanding. The 2nd Appellant unequivocally recorded that he had abandoned reliance on the EDAIF facility and had resolved to sell his private property “to settle this loan in good faith.” In commercial usage, to settle denotes finality, that is, the extinguishment of the obligation. This understanding was reinforced by the Respondent’s conduct: it voluntarily released the title deeds, which had been the very basis of its writ and statement of claim for judicial sale. Crucially, the Respondent did not protest, reserve its rights, or stipulate that the proceeds would be received merely on account. Instead, it facilitated the sale by releasing the security, thereby affirming the Appellants’ understanding that the proceeds would discharge the debt in full.

As earlier observed, and consistent with ordinary commercial practice, a lender does not part with its security unless satisfied that the contemplated transaction will liquidate the indebtedness secured. The release of the title deeds was therefore conduct of the clearest and most unambiguous character, conveying to any reasonable person in the Appellants’ position that the proceeds of sale would be accepted in full and final satisfaction of the debt. As Lord Wilberforce explained in REARDON SMITH LINE LTD. VS. HANSEN-TANGEN [1976] 1 WLR 989, the meaning of a commercial communication must be ascertained by reference to what it would convey to a reasonable person with the background knowledge available to the parties. Here, the background knowledge and the Respondent’s conduct converge irresistibly to the conclusion that the parties had reached a binding understanding which is that, the property would be sold, and the proceeds applied in full discharge of the loan.

(ii) The Intention to Create Legal Relations.

We now come to the second of the COMBE VS. COMBE ELEMENTS: that the promise must have been intended to create legal relations. This ingredient demands somewhat fuller treatment than the first, especially as the Respondent has urged upon us with some persistence that, the exchanges of May 2017 were of a purely concessional or accommodating character, lacking the formality and intent which the law requires for the engagement of estoppel.

The starting point for the analysis is the well-established principle that, in the context of commercial dealings between parties at arm’s length, there exists a strong presumption that communications and conduct are intended to have legal effect. The presumption was authoritatively stated by Megaw J. in EDWARDS VS. SKYWAYS LTD. [1964] 1 WLR 349, where the learned Judge observed, at page 355 as follows:

“In the present case, the subject-matter of the agreement is business relations, not social or domestic matters. There was a meeting of minds – an intention to agree. There was admittedly consideration for the company’s promise. I accept the propositions of counsel for the plaintiff that in a case of this nature the onus is on the party who asserts that no legal effect was intended, and the onus is a heavy one.”

The presumption is the converse of the position which obtains in social or domestic dealings, where the burden falls upon the party asserting legal intent to displace the contrary presumption. In commercial settings, by contrast, the party who would deny legal effect to his own conduct must positively establish that no such effect was intended. The classic illustration is ROSE AND FRANK CO. VS. JR CROMPTON & BROS LTD. [1925] AC 445, where the parties expressly inserted into their agreement what came to be known as an “honour clause,” providing that the arrangement was “not subject to legal jurisdiction.” Even there, the House of Lords held that, only such an express and unambiguous repudiation of legal intent could displace the commercial presumption. In the instant case, no such repudiation has been pleaded, much less proved.

The objective character of the inquiry is settled. As Lord Simon of Glaisdale observed in ESSO PETROLEUM LTD. VS. COMMISSIONERS OF CUSTOMS AND EXCISE [1976] 1 WLR 1, the question is not what the parties subjectively intended, but “whether a reasonable man, regarding all the circumstances, would consider that there was an intention to enter into legal relations.”

In NTHC LTD. VS. ANTWI [2009] SCGLR 117, this Court applied the same principle to the conduct of a financial institution toward its customer, holding that, the interactions between bank and borrower are to be construed objectively in light of the commercial expectations which the relationship inevitably engenders.

Applying these principles to the facts before us, the conclusion is inescapable that the parties intended their dealings of May 2017 to have legal effect. The relationship between the Respondent and the Appellants was, throughout the material period, governed by formal facility agreements (Exhibits ‘A’ and ‘C’); every payment, every default, every demand, every concession was, in the nature of things, an event of legal significance under those instruments. When, in those circumstances, the 2nd Appellant wrote to the Respondent on 12th May 2017 in the express terms of a proposal to settle the indebtedness by liquidating his private property, and the Respondent responded by releasing the title documents to enable that very transaction, the only conclusion that a reasonable observer could draw is that both parties intended their conduct to have legal consequences. The release of the title deeds was not, and could not realistically have been, a casual accommodation of a social character; it was the surrender, by a lender, of its security in expectation of the discharge of the secured debt. That conduct is freighted throughout with legal intent.

We are accordingly satisfied that, the second element of the doctrine of promissory estoppel is fully established. The Respondent has adduced no evidence whatsoever to displace the commercial presumption that operates in this case.

(iii) The intention that the promise be acted upon.

We now turn to the third constituent element: that the promise must have been intended to be acted upon by the promisee. As with the second element, the inquiry is conducted objectively. The promisor’s state of mind, in its purely subjective dimension, is of little forensic significance. What matters is whether, on a reasonable view of the conduct of the parties, the representation would have been understood as intended to be acted upon.

The classical exposition of this requirement is to be found in the holding of Lord Cairns LC in HUGHES VS. METROPOLITAN RAILWAY CO. (1877) 2 APP CAS 439, to which we have already had occasion to refer. The Learned Lord Chancellor spoke of conduct having “the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance.” That formulation captures, with characteristic economy, the essence of the third element: the conduct of the promisor must be such as, viewed objectively, would lead the promisee to suppose that he was intended to act upon the representation.

The principle was reinforced and given further refinement by Lord Denning MR in WJ ALAN & CO. LTD. VS. EL NASR EXPORT AND IMPORT CO. [1972] 2 QB 189, where the Learned Master of the Rolls held that, in the context of waiver and estoppel, the objective test is the controlling one. The question is not what the promisor secretly intended, but what a reasonable person in the position of the promisee would have understood the promisor’s conduct to convey.

A particularly instructive illustration of the principle is to be found in the decision of the English Court of Appeal in CRABB VS. ARUN DISTRICT COUNCIL [1976] CH 179. Although that case turned upon proprietary, rather than promissory, estoppel, the underlying principle on the requirement of intent is identical. There, Lord Denning MR observed that:

“The basis of this proprietary estoppel as indeed of promissory estoppel is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law. … It will prevent a person from insisting on his strict legal rights whether arising under a contract, or on his title deeds, or by statute when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties.”

In QUARTEY VS. CENTRAL SERVICES CO. LTD. (supra), this Court considered a Defendant company’s conduct toward the Plaintiff and held that the conduct, taken in context, was such as a reasonable Plaintiff in the position of the actual plaintiff would have understood as intended to be acted upon. This Court emphasised that, in the commercial sphere, conduct often speaks more eloquently than words; that a businessman’s deliberate course of dealing is, ordinarily, conduct upon which the other party is expected to rely. NTHC LTD. VS. ANTWI (supra) and SASU TWUM VS. STANDARD BANK OFFSHORE TRUST CO. LTD. (supra) are, again, to like effect.

When these principles are applied to the instant case, the conclusion is inescapable. By releasing the title documents in respect of the Airport property, the Respondent did not merely intend that its representation be acted upon; it positively enabled that action. The very transaction—namely, the sale of the Airport property to a third party could not have been effected without the title documents which the Respondent itself surrendered. No purchaser would have parted with US$650,000 had the Appellants been unable to produce a clean title. The Respondent’s conduct, in this respect, was not merely consistent with an intention that the representation be acted upon; it was, on any objective view, dispositive of that intention. A reasonable observer, apprised of the commercial relationship between the parties, the existing default, the proposed sale, and the release of the title deeds in temporal coincidence with that proposal, could draw no other conclusion than that the Respondent intended the Appellants to act upon the representation that the proceeds of the sale would discharge the total indebtedness. We hold, accordingly that, the third element of the doctrine is fully made out upon the facts.

(iv) Reliance and detriment.

The Appellants did, in fact, act upon the Respondent’s representation in the most unequivocal of ways. The 2nd Appellant alienated his private residential property at Airport, Accra and one which, on the unchallenged evidence, would not have been disposed of but for the Respondent’s persuasion and the joint expectation that its proceeds would extinguish the indebtedness. The 2nd Appellant testified, and was not contradicted, that the sale was “something the Plaintiff persuaded me to do to keep our hitherto cordial relationship.”

All four constituent elements of the doctrine of promissory estoppel are thus, in our considered judgment, established. The Respondent having, by its conduct, induced the Appellants to act upon a representation that the proceeds of the sale would be received in satisfaction of the indebtedness, equity will not now permit it to resile from that representation.

The matter before us is, indeed, a stronger case for the application of the doctrine than High Trees itself. In High Trees, the landlord’s representation was a bare promise to forbear; in the instant case, the Respondent’s representation was crystallised by the unequivocal act of releasing the security—a crucial act on the part of the lender. In High Trees, the tenant’s reliance consisted of remaining in possession; here, the 2nd Appellant’s reliance consisted of the alienation of a capital asset of very considerable value. And, in High Trees, no money had passed between the parties pursuant to the representation; here, the sum of GH¢2,730,000, representing nearly the entirety of the principal advanced under all four facilities, was paid to and retained by the Respondent.

The Court of Appeal, in its judgment of 25th February 2021, dealt with the issue of payment in two principal passages, both of which we have already had occasion to reproduce. At page 74 of Volume 2 of the Record, the learned justices held that: “In respect to grounds (b) and (d) of the appeal, the Defendants failed to adduce evidence to satisfy the trial Court that they made payments of Gh¢200,000,000.00 and Gh¢2,730,000.00 as payments against the two loans facilities granted by the Plaintiff to them in 2014.” And at page 77 of Volume 2 of the Record, the Court added: “The Defendants could not prove the circumstances under which an interest of 47% was paid. The Defendants failed to prove that they fully paid the principal amount and 47% of the interest.”

With all due respect, the reasoning of the Court of Appeal discloses, in our considered view, a fundamental misapprehension of the drift of the evidence. We reach this conclusion for three principal reasons.

First, the holding of the Court of Appeal that, the Appellants had “failed to adduce evidence” of the Gh¢2,730,000 payment cannot be reconciled with the unequivocal admissions of the Respondent’s own witness in cross-examination on 9th and 10th October 2019. PW1, the Respondent’s Senior Recoveries Officer, conceded in terms (recorded at pages 126-127 of Volume 1 of the Record) that the credit entry of Gh¢60,477.83 of 18th May 2017 was traceable to a remittance from the Bank of Ghana of US$650,000, the cedi equivalent of which he agreed to be Gh¢2,730,000, made for the benefit of the Appellants “as repayment.” That admission, on the settled jurisprudence of this Court, is, in itself, evidence of the strongest character of the fact admitted. The holding of the Court of Appeal to the contrary, as we have respectfully observed, is irreconcilable with the very record upon which it purported to act.

Secondly, nowhere in their judgment did the Learned Justices of the Court of Appeal address the evidence then before it, to the equitable question now squarely raised before us, namely, whether in the light of the Respondent’s release of the title deeds and its subsequent receipt of the proceeds of sale, the Respondent was estopped from denying that the proceeds discharged the indebtedness. While such a denial in our view is clearly conduct intended to overreach the Appellants, the Court of Appeal proceeded entirely upon the strict legal question of whether the Defendants had “proved” the payment, and whether the transaction was “harsh and unconscionable” within the meaning of the Loans Recovery Act, 1918 (CAP 175). Neither inquiry, with respect, exhausts the equitable considerations which arise upon a fair appreciation of the evidence. The focus of the Court of Appeal upon CAP 175 and its concomitant rejection of the unconscionability plea addressed, at best, only one limb of the Appellants’ case in equity. The doctrine of promissory estoppel, distinct from but allied to the doctrine of unconscionable bargain, was not separately judicially considered.

Thirdly, with the admission of the fresh evidence by this Court, Exhibit ‘1’ and the testimony of the 2nd Appellant of 4th March 2026, which was not contested by the Respondent by adducing evidence from their own witness, the evidential matrix before this Court differs significantly from that which was before the Court of Appeal especially as the testimony of the 2nd Defendant/Appellant before us was never materially discredited through cross-examination; Where, as in this case, fresh evidence has been duly admitted, this Court is enjoined to evaluate that fresh evidence alongside, and in the light of the totality of the evidence already on record, and to make such findings as the augmented record will support. The Court of Appeal did not have, and could not have had, the benefit of the additional evidence on record. We are, accordingly, in a position to make findings that, the Court of Appeal was never in a position to do. For these reasons, we with all due respect depart from the reasoning of the Court of Appeal upon the connected relevant questions of payment, settlement, and the equitable consequences which flow from the Respondent’s conduct.

The Objection that promissory estoppel was not pleaded, the effect of the fresh evidence

The Respondent has urged upon us, with not inconsiderable force that, promissory estoppel was at no stage pleaded by the Appellants in the trial High Court, and that the doctrine cannot, in consequence, found a successful defence at this advanced juncture of the proceedings. The submission is, in its general form, well-recognised in our jurisprudence and we have given it the most anxious consideration which it merits. We are however, unable to accede to it, for a constellation of reasons which, taken individually and cumulatively, place the matter in our considered view, beyond serious doubt.

We begin with what is in our judgment, the decisive consideration: the admission of fresh evidence by this Court on 4th February 2026 which fundamentally alters the evidential and procedural posture in which the question of estoppel falls to be adjudicated.

By the order of 4th February 2026, this Court, being satisfied that the conditions for the adduction of fresh evidence on appeal had been met, granted leave to the Appellants to adduce Exhibit ‘1’, the letter dated 12th May 2017, and authorised the viva voce testimony of the 2nd Appellant before this Court. That leave was granted, it bears emphasis, after the most careful consideration; the Court was satisfied not only that the evidence could not, with reasonable diligence, have been obtained for use at the trial, but also, and crucially, that the evidence was of such a character as would, if admitted, probably have an important influence on the result of the appeal. To hold, after admitting evidence on the footing of its probable importance to the result that, the same evidence cannot be acted upon because the legal characterisation of the facts which it discloses was not pleaded at trial, would be to render the very leave we granted a mere ceremonial act, devoid of substantive consequence.

On the law relating to evidence which goes beyond the strict scope of the pleadings, this Court has spoken with consistency and clarity. In HAMMOND VS. AMUAH [1991] 1 GLR 89, where it was held that the function of pleadings is to give fair notice of the case to be met, and that, where evidence is admitted without objection upon matters extending beyond the strict pleadings, the policy of the rule has been satisfied and the Court is at liberty to make findings upon that evidence. To like effect is the decision of this Court in IN RE KRAH (DECD); YANKYERAAH VS. OSEI-TUTU [1989-90] 1 GLR 638, and in the more recent authority of FOSUA & ADU POKU VS. DUFIE [2009] SCGLR 310.

The principle which emerges from these decisions in our considered view is that, pleadings, though important, are instrumental rather than absolute. They serve the dual purpose of informing the opposing party of the case to be met and of defining the issues for the Court. Where, however, evidence has been led on a matter and the opposing party has had a full opportunity to challenge that evidence but has failed to do so (or, having done so, has failed to dislodge it), the rationale underlying the rule on pleadings is thereby spent. The Court is then enjoined to make findings on the evidence as it stands and to apply the law appropriate to the facts as found, irrespective of any imperfection in the technical formulation of the pleadings.

Applying that principle to the instant case, we observe that, the fresh evidence was neither admitted ex parte nor by stealth: it was admitted upon the application of the Appellants, after due service upon the Respondent, after submissions by Counsel for both sides, and after this Court was satisfied of the conditions for its reception and admission. The Respondent had every opportunity to oppose the application. It did not, as it never filed an affidavit in opposition but rather conceded. The Court ruled in favour of admission. Once Exhibit ‘1’ was admitted, the Respondent had a further and complete opportunity, on 4th March 2026, to cross-examine the 2nd Appellant upon every aspect of his testimony including the contention that Exhibit “1” recorded an agreement and not a mere proposal; that the title documents were released by the Respondent in furtherance of an understanding that the proceeds would settle the indebtedness; and that the 2nd Appellant’s alienation of his property was occasioned by that understanding.

The Respondent did indeed cross-examine. But, as already observed, the Respondent’s cross-examination, when measured against the well-settled principles of forensic engagement, did not dislodge the 2nd Appellant’s evidence in any material respect. More tellingly still, the Respondent did not, in answer to the fresh evidence, call any rebutting witness of its own.

That latter circumstance is, in our considered view, of considerable and significant weight. It is settled law that, where material evidence is led by one party and is not effectively challenged in cross-examination, nor met by contrary evidence in chief, the court is entitled (and ordinarily ought) to act upon the unchallenged evidence as established. The principle was applied by Wood JSC (as she then was) in IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU VS. KOTEY [2003-2004]1 SCGLR 420, where her Ladyship observed that, the failure to challenge material evidence under cross-examination operates as an implied admission of that evidence.

When that principle is applied to the instant case, the evidential consequence is, with respect, decisive. The 2nd Appellant’s evidence on 4th March 2026 that the May 2017 letter recorded an agreement and not a mere proposal; that the Respondent’s release of the title documents was in furtherance of that agreement; that the proceeds of the sale were remitted in full and final settlement of the indebtedness stood materially unchallenged. The Respondent did not lead, on its own behalf, the testimony of any officer who was a party to the discussions of May 2017, nor of any officer who could authoritatively explain the basis upon which the title documents were released. The Respondent clearly abandoned an opportunity to testify in order to contradict that testimony which the Respondents have adduced in support of their case.

We add, lest the point be missed, that the doctrine of promissory estoppel is, in any event, the natural legal territory within the scope of the facts pleaded by the Appellants in the trial High Court. Paragraphs 6 and 7 of the Statement of Defence, averred in terms that the 1st Appellant had “fully retired all the principal amounts on the facilities” and had paid “over 47% of the interest the Plaintiff alleges to have accrued.” The juridical characterisation of those facts whether as accord and satisfaction, as full and final settlement, or as promissory estoppel is a matter of legal classification, not of pleading.

As Lord Denning MR observed in LETANG VS. COOPER [1965] 1 QB 232, “It is sufficient for the pleader to state the material facts. He need not state the legal result.” Order 11 Rule 7 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), gives statutory expression to that principle in our own jurisdiction. To say that the doctrine of estoppel was not pleaded is, in our respectful view, to confuse the legal categorisation of facts with the facts themselves. The facts were not only pleaded, but ventilated at the trial, and have now been substantially augmented by the fresh evidence. No evidence is procedurally allowed in pleadings except facts as may be sufficient to be an assertion. To deny the Appellants the benefit of the legal doctrine which those facts engage would be to elevate form over substance a course consistently rejected by this Court.

Finally, we observe that, the Respondent’s reliance upon the principle in DAM VS. J.K. ADDO & BROTHERS [1962] 2 GLR 200, to the effect that, a court will not substitute a case proprio motu, is, with respect, misplaced. The principle in DAM VS. ADDO (supra) is directed against the substitution of a wholly novel case incompatible with that put forward by the party. The case of promissory estoppel is, as we have demonstrated at some length, perfectly compatible with, indeed, it is the legal embodiment of the case of full settlement which the Appellants have advanced, in substance, from the inception. This Court is not, in finding for the Appellants on the doctrine of estoppel, substituting a case for them. On the contrary, the Court is applying the law of equity to facts which the Appellants have, throughout the litigation, sought to establish. Accordingly, we hold that, the Respondent’s objection on the pleadings is an afterthought which cannot, in the unique procedural and evidential circumstances of this case, prevail.

The accounting consequences

In our view, however the doctrine of promissory estoppel is applied, this appeal must in any event succeed upon a separate and independent ground. The Respondent’s Statement of Account (Exhibit ‘J’), upon which both the trial High Court and, in consequence, the Court of Appeal proceeded, is, in our considered view, a document of profoundly compromised reliability. Three matters illustrate the point. First, the entry of Gh¢60,477.83 of 18th May 2017, recorded as the sole credit during a period of more than three and a half years, is, on the evidence elicited from the Respondent’s own witness, but a fragment of a remittance of Gh¢2,730,000 , some 2.2 per cent of the true credit. No explanation of substance has been advanced for this most material under-recording.

Secondly, the debit entries of 15th July 2018 in the sums of Gh¢476,672.12 and Gh¢7,420.00 (totalling Gh¢484,092.12) in respect of legal fees are, in our judgment, plainly unjustifiable. Legal fees expended by a creditor in the prosecution of his claim may not, otherwise than under express contractual stipulation or by the order of a court of competent jurisdiction, be debited unilaterally to the debtor’s account. No such stipulation has been pointed to in any of the four facility agreements; and the Respondent’s prayer for legal fees in the writ was a discrete relief requiring proof and judicial assessment, not unilateral self-help.

Thirdly, the Court Expert’s admission, made under cross-examination on 15th December 2021 and captured at pages 99-100 of Volume 2 of the Record that, the statement of account from which his audit was performed was “different” from Exhibit ‘J’ as tendered in the trial High Court is a circumstance which, in our considered judgment, deprives the auditor’s report of the evidential weight which the Court of Appeal accorded to it. An appellate process must work upon the record as constituted at the trial; a litigant may not, on the back of an appellate audit, smuggle into the proceedings a substantively different statement of account.

The proper computation of interest

On the construction of clause 9 of the facility agreements, we are in respectful agreement with the Court of Appeal that the operative stipulation is for monthly compounding. The opening words of clause 9.1, “interest at a rate of 4.25% per month compound,” and the closing words of clause 9.4, “Any interest amount which remains unpaid at the end of any calendar month shall be added to the principal,” speak to monthly periods, not to daily ones. We add that the contractual rate is 4.25%, not 4.5%, and to the extent that the Court of Appeal directed the auditor to apply 4.5%, that direction is, with respect, a manifest inadvertence.

CONCLUSION

From the above evaluation, we hold that the doctrine of promissory estoppel applies on the facts of this appeal in their entirety. The Respondent, having induced the Appellants to alienate the 2nd Appellant’s private residential property at Airport, Accra, and having received the entire proceeds of that sale in the sum of Gh¢2,730,000 on 18th May 2017, may not now be heard to deny that those proceeds were received in full and final satisfaction of the indebtedness of the 1st Appellant. Equity, that great corrector of the rigour of the law, intervenes to prevent such injustice.

We are of the view that, should this be otherwise held, this Court would countenance the spectacle of a creditor who, having received nearly the entirety of the principal advanced under the four facilities (Gh¢2,730,000 against principal sums totalling Gh¢1,850,000), and having released the very security to enable that payment, may yet pursue its debtor for a further Gh¢3 million on the strength of a daily-compounded interest computation for which there is no contractual warrant, augmented by close to half a Million Ghana Cedis in unilaterally debited legal fees. That is a spectacle against which equity has, since the days of Earl of Oxford’s Case (1615) 21 ER 485, set its face firmly, and which this Court is not minded to authorise.

Upon our consideration of this consolidated appeal in the round, we hold that, the appeal must succeed. Accordingly, the judgment of the Court of Appeal dated 25th February 2021 and the ruling of 10th February 2022, together with the judgment of the Trial High Court dated 27th February 2020, are hereby wholly set aside.

(SGD.) I. O. TANKO AMADU

(JUSTICE OF THE SUPREME COURT)

(SGD.) PROF. H. J. A. N. MENSA-BONSU (MRS)

(JUSTICE OF THE SUPREME COURT)

(SGD.) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

(SGD.) Y. DARKO ASARE

(JUSTICE OF THE SUPREME COURT)

(SGD.) S. DZAMEFE

(JUSTICE OF THE SUPREME COURT)

COUNSEL

MAAME SARPONG ESQ. FOR THE DEFENDANT/APPELLANT/APPELLANT WITH NANA PRAH OWUSU SEKYERE ESQ.

ANDREW APPAU OBENG ESQ. FOR THE PLAINTIFF/RESPONDENT/

RESPONDENT WITH RICHELLE HAIZEL ESQ.