ANIN J.A: After the 1966 coup d’etat, the Ghana Government embarked on a reorganisation of the Ghana Cement Works at Tema and Takoradi, and a new company, Ghana Cement Works Ltd. was incorporated to take over the old cement works at the two ports. Advertisements were published inviting private entrepreneurs to enter into joint financial participation with the government in the proposed venture. Both parties to this suit were interested in joint participation with the government in the new company.
In the statement of claim, the plaintiff-appellant (hereinafter called simply the plaintiff) disclosed that he was requested by the defendants - respondents (hereinafter referred to simply as the defendants) to negotiate with the Ghana Government for (a) the financial participation of the defendants in the new company and (b) the contract for the exclusive supply by the defendants to Ghana Cement Works Ltd. of all the latter’s clinker supply requirements for a period of two years. Both negotiations were successfully concluded; and the two agreements were duly executed between the government and the defendants in April and May 1967. We learn from paragraph (4) of the statement of claim that “it was an implied term of the engagement of the plaintiff by the defendants in these negotiations that the latter would remunerate the former for successfully conducting the said negotiations” and in paragraph (5) that pursuant to this implied term the parties concluded an oral agreement on or about 10 December 1968,
“whereunder the plaintiff for successfully concluding the negotiation leading to participation by the defendants in the Ghana Cement Works Ltd., was to have transferred to him 10,000 shares fully paid by the defendants and also was to have an option expiring on 31 August 1970 to purchase a further 90,000 shares from defendants’ shareholding at an agreed price per share. This oral agreement was confirmed by the defendants on 24 December 1968.”
The statement of claim concluded that: “On or about 27 July 1969 the defendants orally agreed with the plaintiff to pay to him the sum of N¢80,000 by way of commission for work done in successfully negotiating on behalf of the defendants the exclusive supply by the defendants of the entire clinker supply of the Ghana Cement Works Ltd.” See paragraph (6) as amended.
Incidentally, the only claim endorsed on the writ of summons, as amended, was for “the sum of N¢80,000 (plus interest of ten per cent per annum thereon) being agreed commission for work done in successfully negotiating on behalf of the defendants the exclusive supply by the defendants of N¢9,800,000 worth of clinker to Ghana Cement Works Ltd.”
In the statement of defence, the defendants at first denied that the plaintiff conducted any negotiations on their behalf or at their request. They admitted, however, that he performed certain services for them, and in paragraph (4) stated that,
“at the conclusion of the negotiations they agreed to remunerate him for his services during the negotiations which they themselves conducted. The remuneration was to be (a) £1,000 in cash; (b) free shares for £5,000 (equivalent to 10,000 shares) and (c) an option to purchase further shares for £45,000 (i.e. 90,000 shares) at par. Such option was to be exercised by the plaintiff not later than 1 September 1969.”
After denying paragraphs (4) and (5) of the statement of claim dealing with the implied term about the plaintiff’s remuneration and the oral agreement of December 1968, and traversing paragraph (6) of the statement of claim, the defendants asserted in paragraph (7) that: “entirely without prejudice and in order to settle any possible claims the plaintiff might contemplate against them, they agreed to pay the plaintiff N¢80,000 to settle all issues between them. The amount was not expressed in sterling and the defendants deny that the said amount is commission to which the plaintiff is entitled.”
The plaintiff and his solicitor both testified in support of the claim. In addition, the plaintiff tendered in evidence some 35 letters and documents to illustrate the course of dealing between him and the defendant company over the years. The early correspondence shows the future partners discussing their respective capital contribution to the partnership venture. It also depicts the plaintiff’s desire for the monopoly of distribution rights of cement in the country and the monopoly of providing transport for the new company’s products in addition to his equity share in the main venture. The defendants, on the other hand, are revealed in a cautious and pragmatic light and as being minded to leave the new company, upon its formation, to settle all incidental questions of distribution rights and transport monopoly.
Matters came to a head on 28 March 1969 when the plaintiff sent a letter to the defendants (exhibit Al) demanding for the first time five per cent commission on the entire contract for the supply of £4,000,000 worth of clinker, gypsum and paper bags for the Ghana Cement Works Ltd. which he had helped to secure for the defendants. This written demand evoked a sharp written protest from the defendants, exhibit B1 of 21 April 1969, wherein the defendants stated:
“We can see no basis for your claim to a sales commission on our supplies of raw materials to Ghana Cement Works. On the other hand, we are prepared to discuss a settlement in accordance with the suggestions put forth during our meeting at Mr. Lynes’ office in Accra on 10 December 1968.”
These proposed terms of settlement of December 1968 were set out in the defendants’ letter of 24 December 1968 (exhibit HH), and the plaintiff confirmed his agreement with exhibit HH as a true record of conclusion reached at the December meeting (see exhibit JJ of 7 February 1969). To appreciate the stage reached in the protracted discussions between the parties about the plaintiff’s remuneration for past services rendered to the company, it would be necessary at this juncture to quote the first three paragraphs of exhibit HH:
“We write as promised, to record the decision arrived at when you and your client met with our clients and us on 10 December 1968.
(1) Our clients suggested that Mr. Addison might care to dispose of the whole matter by allowing our clients to repurchase from your client any right he might have to an option on shares in Ghana Cement Works Limited. (2) Although our clients do not wish to commit themselves to an extension of the option period until your client has had an opportunity of considering the proposal referred to in (1) above they are willing to consider an extension of the option period to 31 August 1970 upon the following terms: (a) They will transfer 10,000 shares to Mr. Addison free of charge to him. (b) Mr. Addison shall have the right exercisable at any time before 1 September 1970 to purchase from A/S Norway Cement Export not more than 90,000 shares at a price of N¢1.30 per share such shares to be transferred to Mr. Addison upon payment in full by him of the purchase price, transfers to be in blocks of not less than 10,000 shares on each transfer. (c) All the above transfer it is understood require the approval of government under the terms of the company’s regulations. (3) Our clients’ representatives will be coming to Ghana in the early spring of next year and on that visit would hope to finalise the above matter but if in the meantime your client wishes to discuss the proposal in (1) above our clients will be happy to do so.”
It would appear from the pleadings and the evidence in this case that even though the plaintiff claimed credit for two distinct negotiations performed by him for which he was entitled to two different kinds of remuneration, yet he chose to sue in this action for only one kind of remuneration, namely, for the sum of N¢80,000 as the agreed commission for the successful conclusion of the clinker supply tender. This solitary claim was predicated upon an oral agreement allegedly concluded between the parties on 27 July 1969.
During a lengthy review of both the oral and documentary evidence adduced by the parties, the learned trial judge made the following findings of facts:
“(1) The evidence clearly established that since 1964 the plaintiff had shown business interest in the defendants.
(2) Between 1966 and 1967 the plaintiff actively and with success did assist in negotiating with the Ghana Government for the financial participation by the defendants in the Ghana Cement Works Ltd.
(3) During the same period the plaintiff also assisted in negotiating for and on behalf of the defendants and at the latter’s request, the defendants’ supply to the new company for all their clinker requirements for a period of two years. “I have no doubt at all,” he held, “that the plaintiff did meet the negotiating committee on behalf of the defendants as regards clinker.” Elsewhere in the judgment he observed: “There is no doubt at all in my mind that the plaintiff . . . was eventually engaged by the defendants to negotiate on their behalf and in fact did negotiate for them.”
(4) The plaintiff’s services were not intended to be gratuitous, but were in fact intended to be paid for. (5) However, it is evidently clear that the parties had not reached any settlement for any payments to the plaintiff as at the dates of exhibits Al (28 March 1969) and B1 (21 April 1969).
(6) A meeting was held at Mr. Schuller’s house on 27 July 1969. (7) This meeting was attended by Messrs Tolfsby, J. B. Quashie-Idun and Djamson (on the defendants’ side) and by Mr. Akuoko, solicitor for the plaintiff. (8) The plaintiff was not present at this meeting on 27 July 1969 at Mr. Schuller’s house. This finding is, in my view, a necessary inference from the immediately preceding one (i.e. the seventh finding). (9) On the vexed issue whether there was only one meeting at Mr. Schuller’s house on 27 July 1969 between all those present in the living room, at the end of which a compromise figure of N¢50,000 was agreed upon (as contended by the defendants’ side), or whether there were two separate meetings on that occasion, the first such meeting taking place in the living room between all present followed by a private meeting between three persons only in the ante-room, when the alleged sum of N¢50,000 remuneration for the clinker negotiation was apparently agreed upon (as claimed by Mr. Akuoko), the learned judge found in favour of the defendants. Generally, he regarded the defendants’ side as the more truthful in their account of that famous 27 July 1969 meeting at Mr. Schuller’s house. As he opined, “I cannot really imagine J. B. Quashie-Idun and Djamson telling tales about the meeting. I do not see what benefit will enure to them.” Earlier in his judgment while recounting Mr. Akuoko’s evidence on the meeting, he politely expressed his scepticism: “I am not quite sure if Akuoko when he testified had a vague recollection of events on the Sunday 27 July 1969.” The learned judge clearly preferred the defendants’ account of the meeting as being more probable than Mr. Akuoko’s account, which he stigmatised as being vague. (10) At this meeting of 27 July 1969, the parties failed to agree on the terms of a final settlement. “The upshot of all this,” he held, “is that I cannot conceivably see how a settlement was therefore reached.”
(11) Nevertheless, he found as a fact that the parties did agree upon a figure which was to be paid by the defendants to the plaintiff. This figure was fixed at the Sunday meeting at N¢50,000; but it was increased on the following day to N¢80,000, as a result of a fresh meeting between Messrs. Tolfsby, Addison and Akuoko. (12) On the available evidence before him, the learned judge was however unable to discover what this agreed figure of N¢80,000 represented. He found it rather odd that the draft release prepared by the plaintiff’s solicitor (exhibit DD) should have omitted to describe the true nature and purpose of this agreed figure, if indeed as claimed bv the plaintiff it was intended to represent the plaintiff’s commission for the negotiation on clinker supply only. He concluded that: “It is really impossible for the court to ascertain with any perfection the terms of the settlement the parties reached in the later part of July 1969. On the facts, therefore, before me I find that on Sunday 27 July 1969, when there was a meeting to reach a settlement, the respective parties were not ad idem as to what the figure named on that day and subsequently amended to N¢80,000 represented. In the result there is no binding contract between the parties.”
In this appeal, the plaintiff’s counsel argued two cognate grounds of appeal together: (a) “The judge having found that N¢80,000 was agreed by the defendants to be paid to the plaintiff erred in law and on the facts in failing to resolve on the evidence before him the purpose for which the said sum was agreed to be paid”; and (b) “the judgment was against the weight of evidence.” In support of his argument under this limb, Mr. Campbell contended that exhibit GG, properly construed, settles in favour of his client the puzzle about the true purpose of the agreed sum of N¢80,000; and that this sum was mutually intended to represent his client’s consideration for work done on the clinker supply contract only, and was not a final settlement of all outstanding claims, as contended by the defendants. He relied strongly on a passage occurring in paragraph 3 of exhibit GG: “Our clients have already pointed out to Mr. Addison that this was an additional privilege not included in the settlement”; as establishing a clear, unequivocal admission by the defendants that the option on the shares was not included in the oral settlement of 27 July 1969, and therefore discrediting the defendants’ allegation to the contrary.
For the defendants, Mr. Reindorf replied that the meaning of the above quoted passage in exhibit GG is that the defendants’ earlier offer, made in December 1968 and recorded in exhibit HH of 24 December 1968, was not incorporated in the terms of the oral agreement of 27 July 1969. He submitted that his clients did not agree at the meeting of 27 July 1969 to extend the option to buy 90,000 shares beyond its original expiry date of 31 August 1969 until 31 August 1970. He relied on the explanation of the phrase “additional privilege” given by the defendants’ managing director, Mr. Tolfsby under cross-examination:
“Up to October 1969 I was still admitting that the option for shares was an additional privilege. By additional privilege it was meant something claimed by Addison in addition; in that it was not included in the agreement.” To the same effect was a passage in Mr. Tolfsby’s letter to his solicitors dated 12 August 1969 (exhibit 19): “When we pointed out to Mr. Addison that this was an additional privilege not included in the agreed settlement, Mr. Addison maintained that this was a right which he had already acquired.”
Exhibit GG which was tendered in evidence by the plaintiff, is a letter dated 7 October 1969 and was written after the alleged oral agreement of 27 July 1969 by the defendants’ solicitors (upon instructions received from their clients) to the plaintiff. It contains a record of what the defendants claim transpired between the parties at the meeting of 27 July 1969, and it sought to correct alleged mistakes in the plaintiff’s draft release (exhibit DD). In view of the different interpretations put on it, this exhibit GG deserves to be reproduced in full:
“L/7765 Lynes Quashie-Idun and Co. EAKA/JKN
P.O. Box 2549,
Accra.
7/10/69.
For the attention of Mr. Akuoko Messrs. Adade and Akuoko,
House No. D. 747/4, Kimberley Avenue,
P.O. Box 197,
Accra.
Dear Sirs,
A/S NORWAY CEMENT EXPORT LIMITED AND J. A. ADDISON We refer to your letter of the 9th of September, 1969, addressed to our clients, A/S, Norway Cement Ltd. We are instructed to refer to our letter of the 11th of August 1969, in which we informed you that the release was not in the form agreed between your client and ours. 1. The following offer was made by our clients on the 27th of July, 1969: In full settlement of all and any claims that Mr. Addison might have against Norway Cement, Addison would receive – in addition to amounts already paid in 1967 (£179 2s. 6d.), and the cancellation of an unpaid part of bills for cement deliveries in 1967 (£2,531 13s. 8d.) –10,000 shares and of Norway Cement’s holdings in Ghana Cement Works, and a cash amount of N¢50,000.00. This settlement was subject to a written declaration from Mr. Addison that all claims in this matter were settled and also subject to a definitive acceptance by Mr. Addison before the departure from Ghana on July 29th of Mr. Tolfsby. Moreover, it was understood that the mutual friendly relationship between the parties would continue. 2. On Monday evening, upon a strong request by Mr. Addison, Mr. Tolfsby agreed to raise the cash amount from N¢50,000.00 to 80,000. This amended settlement was finally accepted in the presence of your Mr. Akuoko. Our clients were, therefore, very much surprised to see in the release the figure of £40,000 instead of N¢80,000.00. 3. The statement also included an option for Mr. Addison to buy a further 90,000 shares from Norway Cement, such option to be exercised not later than the 31st of August, 1970. Our clients have already pointed out to Mr. Addison that this was an additional privilege not included in the settlement. In this regard, we wish to point out that Mr. Addison’s original option on 90,000 shares expired on the 31st of August, 1969, and had not been extended for one (1) year although our clients had indicated their willingness to consider such an extension. Our clients would still like to reach an amicable settlement in this matter, but they strongly resent the attitude being adopted by Mr. Addison in his refusal to abide by settlements reached after long and protracted negotiations.
Yours faithfully,
(Sgd.) Lynes Quashie-Idun and Co. c.c. Norway Cement, Oslo, NORWAY, J B QI/GAA”
I construe paragraph 3 of exhibit GG to mean that the option to buy a further 90,000 shares mentioned in the draft release as having been offered to the plaintiff, was a privilege or right previously conferred on him; it was additional or extra to the bundle of rights conferred on him under the oral agreement of 27 July 1969. In the penultimate paragraph of exhibit GG it is stated that “ the [said] option . . . expired on 31 August 1969, and had not been extended for one (1) year although [the defendants] had indicated their willingness to consider such an extension.” This statement is clearly borne out by paragraph (2) of exhibit HH of 24 December 1968, which recites: “Although our clients [i.e. the defendant company] do not wish to commit themselves to an extension of the option period until your client has had an opportunity of considering the proposal referred to in (1) above, they are willing to consider an extension of the option period to 31 August 1970 upon the following terms... “ Reading paragraph (3) of exhibit GG as a whole, I find that the defendants’ solicitors are therein taking the plaintiff ‘s solicitors to task for incorporating the controversial option in the draft statement of agreed terms of the oral agreement of 27 July 1969 in the teeth of the defendants’ objection that the option did not form part of the matters actually agreed upon on 27 July 1969. That being so, I fail to see how exhibit GG can be claimed to resolve the puzzle about the unspecified purpose of the agreed figure of N¢80,000.
On the contrary, as can be seen from paragraph (5) of the statement of claim, the plaintiff pleaded that his option to purchase 90,000 shares from the defendants’ shareholding, exercisable until 31 August 1970, was conferred on him under an oral agreement of 10 December 1968 and confirmed on 24 December 1968, an obvious reference to exhibit HH. The plaintiff even made a short-lived attempt to rely on another claim:
“Plaintiff further claims a declaration that pursuant to an agreement with defendants on 10 December 1968 he is entitled to exercise at any time up to 31 August 1970 an option to acquire 90,000 shares from the shareholdings of the defendants in Ghana Cement Works Ltd.”
Leave for the proposed amendment was granted on 17 April 1970, after the plaintiff had commenced his evidence. This additional claim was however abandoned with the leave of the court on 11 May 1970, with the net result that the solitary claim before the court remained the amended claim for N¢80,000 alleged to be agreed commission for work done in connection with the clinker supply contract, and founded upon the alleged oral agreement of 27 July 1969.
Turning now to the ground of appeal that the judgment of the court below was against the weight of evidence, it is pertinent to reiterate that the decisive issue in the case was as to the true nature and purpose of the sum of N¢80,000 undoubtedly agreed to be paid to the plaintiff by the defendants as a result of the July 1969 meeting. The crucial question was whether this sum represents commission payable for the clinker supply negotiation only (as claimed by the plaintiff), or whether, as claimed by the defendants, it was intended to be a full and final settlement of all outstanding claims the plaintiff might have against the defendants on account of two separate negotiations, namely, financial participation in the new company and the clinker supply contract, successfully executed by him at their request. Since the amended claim was predicted upon an oral agreement and remuneration for one kind of service rendered only, it was incumbent on the plaintiff to adduce satisfactory evidence, not only about the alleged oral agreement, but also about the nature and purpose of the agreed sum of N¢80,000.
In my opinion, the main conclusion of the judgment cannot be said to be unreasonable or wrong. Apart from the conflict of oral evidence between the two sides about what the figure agreed upon represented, the evidence in support of the plaintiff’s claim is, in my view, inherently weak, inconsistent and even improbable. In the first place, the plaintiff himself admitted under cross-examination that he did not have any agreement with the defendants that he should be paid separately for the two negotiations he conducted; and that “it was a unilateral decision that I should receive five per cent. for the negotiation for the clinker supplied.” (The emphasis is mine.) In the second place, if the parties at their meeting on 27 July 1969 had in fact agreed upon the payment of N¢80,000 as commission for the clinker supply contract as claimed by the plaintiff, it is highly unlikely and improbable that an experienced solicitor of the calibre of Mr. Akuoko, who had personally sat through the protracted negotiations, would have failed to indicate the true purpose of the agreed sum in the draft releases (exhibits CC, DD and EE) prepared by him shortly after the event; and that the plaintiff, who emerges from the proceedings as a shrewd, resourceful and punctilious businessman, would have failed to notice this important omission and to insist on the omission being rectified before approving the draft release and signing exhibit EE.
In the third place, it is noteworthy that the plaintiff’s own draft releases expressly discharge the defendants “from all claims, demands, actions ... in connection with the negotiations conducted jointly by myself, J. A. Addison and Co., and the said A/S Norway Cement Export Ltd. for participation in and for the supply of raw materials to the said Ghana Cement Works Ltd.” (The emphasis is mine.) It had been the contention of the defendants all along that the agreed sum was intended as a final release and discharge for both negotiations, i.e. joint participation and the clinker supply contract. In my view, the form of these draft releases, prepared by the plaintiff’s solicitor soon after the event, would tend to lend credence to the defendants’ case that the agreed figure was intended as a final release and discharge from the plaintiff’s claim arising from both negotiations.
Fourthly, the learned judge’s finding that the plaintiff was not present at the Sunday 27 July 1969 meeting at Mr. Schuller’s house, and his general preference for the account of the meeting given by the witnesses for the defendants would seem to be justified from the inherent inconsistencies and improbabilities of the plaintiff and his witness’s account of the meeting on the one hand, and from the coherent and plausible testimony of the witnesses for the defendants. To begin with, the plaintiff stated under cross-examination that he went to the 27 July 1969 meeting alone and Akuoko came later, whereas Mr. Akuoko in his testimony stated: “I was there for the plaintiff. At a certain point, which I do not remember clearly, the plaintiff turned up.” Quite apart from this glaring inconsistency, it would appear that Mr. Akuoko’s recollection of the sequence of events was rather hazy and vague.
Faced with the conflicting stories between the two sides, the learned judge preferred the defendants’ account as being the more probable and credible. As can be seen from findings (9) to (12) above, he regarded the witnesses for the defendants as truthful and found Mr. Akuoko to be rather vague in his recollection. On this issue of credibility of oral witnesses, the trial judge’s decision must be respected. I am not convinced that he erred or that his findings on the events of Sunday 27 July 1969 and the following day were unreasonable or perverse. In fact, exhibits FF and GG provide independent documentary confirmation of the fact that the agreed sum of N¢50,000 was at a subsequent meeting between the plaintiff, his solicitor and Mr. Tolfsby, raised to N¢80,000, without the knowledge of the defendants’ solicitors. Speaking for myself, I am not satisfied that the plaintiff has succeeded in demonstrating either that the judgment was against the weight of evidence or that the findings of fact made are wrong.
In another ground of appeal Mr. Campbell criticised the learned judge for holding “that the parties were not ad idem when the defendants had not pleaded mistake or at all.” The full passage reads:
“On the facts, therefore, before me I find that on the Sunday 27 July 1969, when there was a meeting to reach a settlement the respective parties were not ad idem as to what the figure named on that day and subsequently amended to N¢80,000 represented. In the result there is no binding contract between the parties.”
In my opinion this passage has to be read and understood in relation to its context. In the preceding paragraph, the learned judge had decisively held that he could not conceivably see how a settlement was reached since (1) none of the releases prepared by the plaintiff’s solicitor was acceptable to the defendants as representing a true statement of facts: and (2) it is not expressly stated therein what the agreed sum of N¢80,000 represents: and (3) since the court could not with certainty discover the terms of the alleged statement. From the context as a whole, it is clear that what the learned judge meant to convey, was that the parties must have misunderstood each other during the oral discussion – a fact which is illustrated by their inability to agree on the wording of the releases, and by the failure to specify the purpose of the agreed sum of N¢80,000. That being so, there cannot be said to have been a consensus ad idem or a contract duly formed. Since there is no contract to be enforced, the terms of such a non-existent contract cannot be enforced.
The law is quite settled that if the terms of an agreement are so vague or indefinite that it cannot be ascertained with reasonable certainty what is the intention of the parties, there is no contract enforceable at all: see Scammell (G.) and Nephew Ltd. v. Ouston [1941] A.C. 251, H.L. The parties must make their own contracts; and the courts will not make a contract for them out of terms which are indefinite or illusory. Admittedly, in appropriate cases, the court attempts a fair and broad construction of business transactions and agreements, duly concluded, even though recorded in summary fashion, applying such maxims as verba ita sunt intelligenda ut res magis valeat quam pereat (words are to be so understood as that the subject-matter may be rather preserved than destroyed), and id certum est quod certum reddi potest (that which can be reduced to a certainty is a certainty already). I am also aware of the principle that where bargains have in fact been concluded, the courts should enforce them lest they should be criticised for being the destroyer of bargains. However, I am satisfied that the parties did not conclude the oral agreement pleaded in this case, and that the learned judge rightly dismissed the claim. For the reasons already stated, I would dismiss this appeal.
Before I am done, I would wish to observe, purely in an obiter manner, that on the facts of this case and in view of the findings made, that the plaintiff did perform services for the defendants and at their request, and that the parties intended that these services should be paid for, an alternative claim for quantum meruit would not be out of order. Once such a claim is instituted, appropriate evidence may then be led on what is the customary or reasonable commission in the circumstances of the case. In this connection, some help may be derived from the reported case of Mabsout v. Fara Brothers (Ghana) Ltd. [1964] G.L.R. 437, S.C. and from the decision, and in particular the dictum of Greer L.J., in Craven-Ellis v. Canons, Ltd. [1936] 2 K.B. 403, C.A. where he stated at p.412: “the obligation to pay reasonable remuneration for the work done when there is no binding contract between the parties is imposed by a rule of law, and not by an inference of fact arising from the acceptance of service or goods.”
It now remains to consider the defendants’ notice of contention to vary the judgment below by the deletion of the portion remitting the case for settlement along the lines indicated therein. The grounds relied upon are threefold:
(i) There is no legal basis for remitting the case for settlement.
(ii) Such remission cannot be supported having regard to the plaintiff’s claim
(iii) Such remission cannot form an operative part of the judgment nor can the same be binding upon the parties.
In my view, the order remitting the case for settlement after the dismissal of the action is erroneous in law, having regard to the state of the pleadings, the evidence adduced, and the nature and content of the solitary claim before the court. As has been stressed in my judgment, the plaintiff chose, for reasons best known to himself, to rely only on one particular claim for commission, grounded upon an alleged oral agreement: and flowing from one kind of service he had performed for the defendants. From the pleadings and the evidence adduced in the case, it is clear that he had actually performed two different negotiations for the defendants which were mutually intended to be paid for by the defendants. However, the court below, as well as this court, was only called upon to adjudicate upon one particular claim pleaded. The learned judge’s action in referring the suit, after dismissing it, to an arbitrator to settle it along self-imposed lines and on the basis of a contract different from the one pleaded, was tantamount to the substitution of a new and inconsistent case for the parties. On the authority of such cases as Dam v. Addo [1962] 2 G.L.R. 200, S.C., Seraphim v. Amua-Sekyi [1971] 2 G.L.R. 132, C.A. and Esso Petroleum Co., Ltd. v. Southport Corporation [1956] A.C. 218, H.L. the learned judge was not competent to make such an order in view of the pleadings and evidence before him. For the above reasons, I would allow the defendants’ application for variation of the judgment in the terms prayed.
ANNAN J.A.
The plaintiff-appellant (hereafter referred to as the plaintiff) by his writ of summons as amended claimed:
(1) N¢80,000.00 being agreed commission for work done in successfully negotiating on behalf of the defendants-respondents (hereafter referred to as the defendants) the exclusive supply by the defendants of N¢9,800,000.00 worth of clinker to Ghana Cement Works Ltd.
(2) Interest at the rate of ten per cent per annum on N¢80,000.00 from 27 July 1969 to date of payment.
In support of his claim the plaintiff gave evidence and called one witness, his solicitor. The defendants also called evidence from their managing director, their solicitors and another person. In addition to the oral evidence, both sides put in evidence considerable documentary evidence. It seems to me that in order the better to appreciate the oral evidence that evidence should be set against the background of the chronological sequence of events which appears very clearly from the documentary evidence. The plaintiff’s claim is based squarely on an agreement for the payment of commission to him by the defendants and by his statement of claim he put a date to that agreement and described it as an oral agreement. Several matters had however happened before that date and I deem it relevant to a proper determination of the issues raised at the trial and in this appeal to advert briefly to these maters.
DOCUMENTARY EVIDENCE
I start with the documentary evidence and from the exhibits set down the following sequence of events. Prior to 1966 the Government of Ghana was the owner of a cement factory at Tema. There was another factory under construction at Takoradi. These factories were in fact grinding mills which had to rely on imported clinker for their operations. In 1966, as a result of a shift in policy, the government decided to invite proposals from interested businessmen for participation in the operations of these factories. Two companies, among others, showed interest in this venture, one a Ghanaian, the other a Norwegian establishment. The plaintiff is the managing director of the Ghanaian company, Mesrs. J. A. Addison and Co. and the defendants are the Norwegian company. Prior to 1966 there had apparently been some business relations between the two companies in regard to the supply of cement and both parties had had some experience in the supply and marketing of this product.
In 1966 the plaintiff suggested to the defendant the idea of a joint enterprise for the operation of the government cement factories. This was on 16 March 1966 (exhibit A) and the suggestion was obviously designed to broaden the scope of the business relationship between them, that is, from the supply and sale of cement to the actual manufacture of cement in Ghana from imported clinker, the main component of cement. In that first exploratory communication the plaintiff mooted a partnership to exploit this new area of business investment. He said in exhibit C, “I wonder whether you would be interested in coming into partnership with me in the purchase of the factory in which case there would be a constant venue for the supply of clinker from your factory.” It seems to me clear from this initial approach to the matter by the plaintiff that there was a distinction drawn between the proposed joint venture, the manufacture of cement by a Ghanaian-Norwegian concern and what must be an ancillary or collateral matter, the supply of the main raw material to that factory by the Norwegian concern. In the one case, that of the manufacture of cement, what was proposed was a joint business venture between the appellant and the respondents; in the other, a subsidiary business transaction, namely, the supply of clinker by the defendants alone to the factory. Clearly the plaintiff was not directly interested in that ancillary transaction whereas the defendants were interested.
The parties had discussions subsequently and by 9 August 1966 the defendants had indicated their interest in the proposals of the plaintiff. Further correspondence followed and by 23 August 1966 the plaintiff was able to report to the defendants that the Ghana Government, the owners of the two existing clinker mills in Ghana, at Takoradi and Tema, had formally “invited us to participate in or purchase the clinker grinding plant at Takoradi.” Subsequent to this the managing director of the defendant company, Mr. Erling Tolfsby, visited Ghana and had discussions with the plaintiff and by 19 November 1966 the latter was writing about “our joint venture in participation with the Ghana Government in a company which the writer could call the Ghana Cement Works Ltd., Takoradi, and embracing the cement clinker mills in Takoradi and Tema.”
By 14 January 1967 the plaintiff had notified the defendants of the appearance of formal advertisements by the Ghana Government inviting participation in a number of State enterprises including the cement factories and requested the transmission to the Ministry of Industries by the defendants of comprehensive proposals on behalf of both parties. The detailed proposals were submitted by the defendants to the secretary of the negotiating committee of the State Enterprises Secretariat. These proposals dated 31 January 1967, were signed by Mr. Tolfsby, the managing director of the defendant’s company (exhibit R), and read in part as follows:
“Our proposal for the future operation of the cement grinding mills in Tema and Takoradi is submitted jointly with Messrs. J. A. Addison and Co., Kumasi, who have more than 10 years experience in the cement trade in Ghana and possess distribution facilities in Takoradi, Tema and Kumasi.”
The proposal was itself set out in that document in these words:
“Our proposal is to establish the Ghana Cement Works Limited as a joint venture between the Ghanaian Government and A/S Norway Cement Export Ltd. This new company should take over the mill in Takoradi when commissioned and the mill at Tema. Our proposal calls for the participation on the part of the Government of 40% of the equity capital of £750,000 with 60% coming from the Norwegian group and their Ghanaian associates, other finance coming from short and long term loans and credits as shown above.”
In May 1967, the Ghana Government concluded contracts with the defendants. It is I think common ground that two contracts were concluded between the Ghana Government and the defendants, one for the main venture, that is the operation of the cement factories, and the other for the ancillary project of supply of clinker by the defendants to these factories. It is also common ground that the plaintiff was actively concerned with the negotiations which culminated in the signing of both contracts.
No formal arrangements appear to have been made or considered for the sharing of the spoils of victory or for remuneration or other financial reward for the plaintiff or the defendants for their individual efforts in negotiating the contract on their joint behalf or that for the exclusive benefit of the defendants. No doubt in the hustle and bustle of the keen negotiations preceding the signing of the contracts both sides may safely be presumed to have consigned this matter to later negotiation.
It seems clear to me that in the absence of formal stipulation the plaintiff was entitled to participate with the defendants in the allocation of shares in the new company, the Ghana Cement Works Ltd., from out of the block of shares assigned to the defendants in the contract and that pending such allocation the defendants hold their block of shares, as to part thereof, in trust for the plaintiff. I think it is clear also, that quite apart from the matter of a reasonable apportionment of shares as between the plaintiff and the defendants, it was open to the parties to agree upon such remuneration as they should consider reasonable in all the circumstances for the individual efforts of the plaintiff in helping to bring the negotiations to a successful conclusion.
The evidence I think justifies a distinction being drawn in the roles played by the plaintiff in the course of these negotiations. In the first place he participated in negotiations for the purpose of establishing a joint venture between himself or his company and the Norwegian company on the one hand and the Ghana Government on the other. In the second place he participated in negotiations for the purpose of obtaining for the defendants the exclusive right of supply of clinker by the defendants to the Ghana Cement works Ltd. Quite apart, therefore, from the benefits that may be derived by both the plaintiff and the defendants in the operations of the Ghana Cement Works Ltd., as part owners, the defendants by themselves stood to gain from the operation of the clinker contract. This distinction is, I think, of importance because it would appear to me to lie at the base of the conflict which later developed between the parties and which in turn led to the present proceedings.
I have spoken of exclusive benefits to be derived by the defendants and in this regard they did not stand alone. The plaintiff also had high hopes of similar benefits not indeed from the supply of clinker to the factory but from the expected acquisition of certain rights as to transportation, distribution and sales of the finished product. This range of ancillary benefits the plaintiff had insisted upon at all stages. Thus on 21 June 1967 in exhibit X, the plaintiff had said as to the matter of sale and distribution of cement: “This matter of the sale of cement is of crucial importance to us since that is our main business.” And in reply the defendants had said: “The question of the future distribution of cement in Ghana is a very important one and a decision should only be taken after the managing directors of the Ghana Cement Works Ltd. have had sufficient opportunity to form precise opinion.” See exhibit 8 of 7 August 1967. Before this date the defendants had, in their original proposal to the government (exhibit R) earlier in that year, referred to the plaintiff’s ten years of experience in the cement trade in Ghana and to the fact that the plaintiff’s company possessed distribution facilities in Takoradi, Tema and Kumasi and elsewhere; and in that proposal had referred to their reliance on the plaintiff’s organisation for the setting up of “an efficient sales organisation.”
The high hopes of the plaintiff did not materialise for his ancillary venture. The defendants got their contract for the exclusive supply of clinker by their company to the Ghana Cement Works Ltd. The plaintiff did not obtain any comparable arrangement for his exclusive benefit. On 25 May 1968 the plaintiff gave voice to his “bitter disappointment” in his “reliance on expressions of good intention” on the part of the defendants (exhibit 12). Later that year, on 10 December, the parties and their solicitors met to thrash out their differences. On 24 December 1968, the solicitors of the defendants sent out the decision of that meeting to the solicitors of the plaintiff with regard, among other things, to the issues of distribution and transport, and in that letter exhibit HH the defendants’ position was set out as follows:
“(4) As regards the situation as to distribution of cement and transport for Ghana Cement Works Ltd. it was understood that first our clients are not in a position to make any commitments on those matters which are for the Board of Ghana Cement Works and secondly that it would not be proper for them to use any influence they might have to obtain ‘most favoured nation’ terms for your client.
Our clients are however prepared to use their influence to ensure that (a) as regards distribution of cement Mr. Addison or his company is given fair treatment in accordance with the rules and practices of the company and (b) as regards transport: (i) your client is given full opportunity to tender in respect of both matters on terms no less favourable that those given to other tenderers and (ii) if any tender by your client when considered in all its aspects is no less advantageous to Ghana Cement Works Ltd. than others it shall be given favourable consideration.’
On 7 February 1969 the plaintiff’s solicitors confirmed exhibit HH “as a true record of the conclusions of the meeting.” The conclusions of the meeting of 10 December 1968 would appear to fall far short of the plaintiff’s hopes with regard to his ancillary and exclusive benefits. It is clear from exhibit HH that by 24 December 1968 the defendants had made it manifest that they were not minded to mount a lobby on behalf of the plaintiff on the Board of the Ghana Cement Works Ltd.
Faced with this firm stand of the defendants the plaintiff (perhaps in envy of the ancillary arrangement which the defendants had obtained by way of the exclusive supply of clinker to the Ghana Cement Works Ltd.) put forward a claim against the defendants for a commission of five per cent on the total value of the defendants’ contract for the supply of clinker to the Ghana Cement Works Ltd. This was on 28 March 1969 and the relevant exhibit is exhibit A1. In that letter the plaintiff stated:
“I wish to recall the last meeting between us in Accra when you suggested that I should be given a lump sum for initiating and bringing to a successful conclusion the negotiations which led to our participation with the Ghana Government in the formation of Ghana Cement Works Ltd. This payment is in lieu of my portion of the shares of that company which have been allotted to us jointly and it relates only to our right to participate as shareholders in the company.
Apart from this we also secured for your company in Norway orders worth some £4,000,000 sterling for the supply of clinker gypsum and paper bags for the two mills. So far I have not had any proposal from you with regard to this business which is for the exclusive benefit of your company. For this I propose to charge a commission fee of five per cent on the total worth of the order so secured.
I very much hope that you will find this proposal acceptable in order to enable us to clear all our present misunderstandings. I feel that any further extension of these misunderstandings will force us to resort to legal action with consequences which will be embarrassing to both sides.”
This was the first time such a claim for specific remuneration by way of commission had been put forward by the plaintiff and in this letter, exhibit A1, the plaintiff drew a distinction between the negotiations leading to their joint participation in the new business venture for their mutual benefit and the negotiations for the sole participation of the defendants in the clinker supply venture for their exclusive benefit.
The reaction of the defendants was sharp and immediate. On 20 April 1969 they gave short shrift to the plaintiff’s claim for commission, they said in exhibit B1:
“Unfortunately we can see no basis for your claim to a sales commission on our supplies of raw materials to Ghana Cement Works. On the other hand we are prepared to discuss a settlement in accordance with suggestions put forth during our meeting at Mr. Lynes’ office in Accra on 10 December 1968.”
On 3 May 1969 the appellant threatened legal action. He said in exhibit C1:
“As you do not intend to meet my claim on commission for successfully negotiating for your firm the purchase of £4,000,000 worth of clinker by the Ghana Government we have no alternative but to reluctantly ask my lawyers to take the necessary legal action which is properly considered here as legitimate.”
On 12 May 1969 the plaintiff authorised his solicitors to sue “for £200,000 being five per cent commission on £4,000,000 sterling.” On 24 June 1969, the defendants’ solicitors sent this letter (exhibit 13B) to’ the plaintiff’s solicitors:
“We refer to our recent discussions regarding the above matter and write to inform you that we are expecting our clients representative to come to Ghana towards the end of next month and in these circumstances you will no doubt advise your client to refrain from further action until there is a possibility of a discussion.”
In the last days of June 1969 there was a meeting of the parties in Accra. Although there is no agreement upon the evidence as to certain important details of the events of that meeting it seems to me, however, that there is agreement that as a result of discussions at that time in which the parties and their solicitors featured, certain concrete decisions were arrived at. There is also I think agreement that whatever these decisions were the parties, acting with due guidance from their respective solicitors, intended these decisions of July 1969 to be binding on themselves by way of a concluded oral settlement of issues in dispute between them.
Subsequent to this oral transaction, disagreement arose as to the precise terms and scope of that transaction. Both sides put forward different versions of that matter. Releases were put out in draft for the approval of the parties and their Solicitors regarding the terms and effect of the oral transaction. None of these releases was approved or signed. These are exhibits CC, DD and EE. The initial reaction of the defendants to these draft releases was communicated by their solicitors on 11 August 1969 to the plaintiff’s solicitors. The letter is exhibit FF and in it they said:
“As we have already informed you, the release is not in the form which was according to our instruction agreed between your clients and Norway Cement Export Ltd. Particularly we received definite instructions that the negotiations and agreement did not stipulate that the amount is to be paid in pounds (£).
We are told that after the settlement based on the sum of N¢80,000.00 your client stated that he would appreciate it very much if our client could accommodate him by paying the amount overseas. Our clients did not commit themselves on this issue as it formed no part of the agreement. We are therefore extremely surprised to find the release in the form in which it was sent to us.
For your information we are sending the release to our clients for their further instructions.”
Before the defendants’ solicitors could transmit a copy of the release to them the appellant himself turned up in Oslo, Norway, with a copy of a release which he had signed. The defendants reported that arrival and their reaction to that draft release in their letter of 12 August 1969 to their solicitors. This is Exhibit 19 and in it the defendants’ view of the matter was that the release produced by the appellant “does not represent a true picture of the settlement agreed upon.” They then set our their version of the terms and scope of that settlement and expressed their feelings on the plaintiff’s attitude rather bluntly. They said:
“It is very unfortunate that the whole issue in this way has again been thrown wide open. We have a very uneasy feeling that whatever agreement we reached with Mr. Addison will afterwards be twisted to suit his after-thoughts. Still we would like to arrive at an amicable settlement and we have intimated a further talk with him on the next visit to Ghana of Mr. Backe and the writer some time before the end of the year. But we would like to know from you by return of mail how it came about that the settlement produced by Mr. Addison misrepresented the agreement reached on such important points and we trust that you will contact Mr. Akuoko in this respect.”
On 9 September 1969, the plaintiff’s solicitors on their part wrote to the defendants setting out the plaintiff’s own report to them on his trip to Oslo and their point of view. They said (exhibit 17):
“We have been informed by Mr. Addison since his return from Norway that you suggested to him that the terms of the release drawn up by us on the conclusion of the negotiations on his claim differed from the terms agreed. Specifically he reports that you stated to him in Norway that upon payment of the agreed amount he could no longer be entitled to exercise the option for shares as agreed last December.
We must say that this is a departure from the agreements reached to date. All along we had pursued his claims to the shares and to compensation in respect of the supply contract as separate issues. This was made very plain to Mr. Lynes before he invited you for the last discussion and it was only for the purpose of providing an entire release that we drafted the release to cover the two issues jointly. We are sure your learned solicitors will confirm that the release, even though drawn up as one, really covers the two matters separately.”
The defendants promptly replied to this letter on 19 September 1969 (exhibit 18) saying: “We have received your letter of September 9th. We do not agree to the statements contained in the second paragraph of your letter. You will hear from our lawyers Messrs. Lynes, Quashie-Idun and Co. in this respect.”
On 7 October 1969, the defendants’ solicitors duly wrote to the plaintiff’s solicitors and referred in that letter, exhibit GG, to the latter’s letter of 9 September 1969 (exhibit 17) and their own previous communication of 11 August 1969 (exhibit FF). They then set out the views of their clients as communicated to them in exhibit 19.
PLEADINGS
Shortly before this letter was written and a few days after the defendants’ letter of 19 September 1969 (exhibit 18) the plaintiff sued. That was on 23 September 1969. In his statement of claim (as amended) the plaintiff based his action on an oral agreement and paragraphs (6), and (7) are as follows:
“(6) On or about 27 July 1969 the defendants orally agreed with the plaintiff to pay to him the sum of N¢80,000.00 by way of commission for work done in successfully negotiating on behalf of the defendants the exclusive supply by the defendants of entire clinker supply of the Ghana Cement Works Limited.
(7) Despite this agreement of 27 July 1969 and despite repeated demands by the plaintiff the defendants refused and still refuse to pay the aforesaid sum or any part thereof.”
In paragraphs (1) and (2) of the statement of claim the plaintiff pleaded two distinct lines of negotiations, one for participation in the joint enterprise with the Ghana Government by the defendants and the other for the exclusive supply of clinker by the defendants to the Ghana Cement Works Ltd. He therefore claimed separate remuneration for each line of negotiation and each of the two contracts of May 1967. The statement of claim states in paragraph (4): “It was an implied term of the engagement of the plaintiff by the defendants in these negotiations that the latter would remunerate the plaintiff for successfully concluding the aforesaid negotiations.”
Paragraph (5) states that in pursuance of this implied term the defendants agreed in December 1968 to transfer to the plaintiff 10,000 shares fully paid by the defendants as well as an option expiring on 31 August 1970 to purchase a further 90,000 shares from the defendants’ shareholding in Ghana Cement Works Ltd. and this was agreed to be remuneration “for successfully concluding the negotiation leading to participation by the defendants in the Ghana Cement Works Ltd.”
Paragraph (6) of the statement of claim makes it clear that the agreed remuneration pleaded in paragraph (5), that is, the matter of the shares, was wholly distinct from the agreed remuneration set out in paragraph (6), that is, the N¢80,000.00. The one agreement was in 1968 in respect of the “participation” contract; the other was in 1969 in respect of the “supply” contract.
The defendants in their statement of defence denied that the plaintiff conducted the negotiations at their request or on their behalf. They admitted however that the plaintiff rendered services to the defendants in the course of the negotiations. The defendants denied paragraph (6) of the statement of claim and maintained that:
“Entirely without prejudice and in order to settle any possible claims the plaintiff might contemplate against them they agreed to pay the plaintiff N¢80,000.00 to settle all issues between them. The amount was not expressed in sterling and the defendants deny that the said amount is commission to which the plaintiff is entitled.”
In his reply the plaintiff in paragraph (4) thereof maintained that the amount of N¢80,000.00 “was in settlement of his claim on the clinker supply contract.” Among issues agreed for trial were:
(a) Whether the defendants first agreed orally with plaintiff on 27 July 1969 to pay to him the sum of N¢80,000.00 in settlement of claim made by him in respect of commission for securing to the defendants the exclusive supply by it of the entire clinker requirement of the Ghana Cement Works Ltd.
(b) Whether or not the parties herein had ever split the services of the plaintiff into two or more categories.
(c) Whether or not the plaintiff is entitled to commission apart from what the defendants offered to him at the conclusion of the contract with the government.
Apart from the issue as to commission, which is the declared basis of the plaintiff’s claim, the pleadings of both parties show that another issue as to shares was raised for determination. The plaintiff’s contention in paragraph (5) of the statement of claim that the allocation of shares to him was limited to the discharge of the agreed remuneration in respect of the “participation” contract and was separate from the later agreement for remuneration in respect of the “supply” contract was denied by the defendants who claim that “at the conclusion of the negotiations they agreed to remunerate the plaintiff for the services during the negotiations.” The agreed remuneration was:
(a) In cash £1,000;
(b) free shares for £5,000 (equivalent to 10,000 shares), and
(c) an option to purchase further shares for £45,000 (i.e. 90,000 shares) at par. Such option was to be exercised by the plaintiff not later than 1 September 1969.
It is the defendants’ case on the pleadings that any obligation to remunerate the plaintiff for his services in the course of the negotiations had been fully discharged by them by the agreed remuneration set out above. There was therefore no further or additional obligation on their part to remunerate the appellant. In this respect the defendants drew no distinction in the services rendered by the plaintiff as they contend that there was one negotiation for both contracts and not two streams of negotiations as contended by the plaintiff. With regard to the option to purchase 90,000 shares, which on the pleadings of both parties was admittedly agreed to be given to the plaintiff by-the defendants, there is a clear dispute on the pleadings as to its date of expiry; the plaintiff put the date at 31 August 1970, whereas the defendants put it at no later than 1 September 1969.
As the evidence shows, the plaintiff’s case on this aspect of the case was that the original date of the option had been extended for one year to 31 August 1970 by agreement at a meeting on 10 December 1968 and confirmed in writing on 24 December 1968 in exhibit HH. The defendants however denied this and stood by the original date and put down for trial the additional issue: “Whether or not the defendants on 10 December 1968 extended the said option in favour of the plaintiff from 1 September 1969 to 31 August 1970.”
The matter of the option, and the dispute as to whether or not it had been extended to 1970, loomed large in the consideration of the specific issue raised in the plaintiff’s claim, namely, the matter of agreed commission. The matter of the plaintiff’s entitlement to the sum of N¢80,000.00 claimed by him was linked with the matter of whether or not the agreement to pay him that amount was solely for commission or included a purchase of the option and that issue as settled for trial is whether the agreement in respect of N¢80,000.00 was conditional on the plaintiff’s relinquishing his option to take up 90,000 shares in the Ghana Cement Works Ltd. the exercise of which option the defendants had previously on 10 December 1968 extended in favour of the plaintiff to 31 August 1970.
ORAL EVIDENCE
I turn now to a consideration of the oral evidence against the background of the documentary evidence. The bulk of the oral evidence relates to the events of the last week in July 1969 at a meeting or meetings at which the plaintiff says the oral agreement he relies on was concluded for the payment of commission to him. Both the plaintiff and his only witness, his solicitor, spoke of a meeting in the last week of July 1969 to resolve the differences between the parties. According to the plaintiff the meeting was held towards the end of July 1969. He said:
“In July 1969 I saw a representative of the defendants in Accra. He was Erling Tolfsby. There was a meeting between myself and Tolfsby. The parties present at the meeting were Mr. J.B. Quarshie-Idun, Mr. Djamson from Lynes, Quashie-Idun, Mr. Akuoko from Adade and Akuoko and Co. and myself. This meeting was towards the end of July 1969. At the meeting Mr. Tolfsby and all of us discussed the question of a settlement of the commission on the clinker. At the meeting it was suggested that N¢50,000 should be paid as commission to me on the clinker supplied. I objected to it. Then Tolfsby, Akuoko and myself repaired to an ante-room where we had further discussion on the commission. Finally I agreed to take N¢80,000.00. After that we all came back to the hall where the gentlemen were and the agreement was announced to them by Tolfsby. We then had a drink and Mr. Akuoko, my lawyer, was asked to prepare a release of what had been agreed upon. Thereafter a release was prepared by my lawyer.”
The plaintiff in cross-examination was quite certain that he was at the meeting with Quashie-Idun, Djamson, Akuoko and Tolfsby and that the agreement on which he was basing his claim was reached at that meeting. He said he went along to the meeting and Akuoko came later.
The plaintiff was further cross-examined as to his presence at the meeting of July 1969 and he gave certain details as to that meeting. In his evidence the plaintiff’s solicitor said of the July meeting that it took place on 29 July 1969. The meeting was originally scheduled for the Continental Hotel but when they met there they decided that it would be more convenient if they met at the house of the managing director of the Ghana Cement Works in the Airport Residential Area. That was Sunday. Those at the meeting were the defendants’ representative, Quashie-Idun, Djamson and himself. At a certain point the plaintiff turned up. The meeting began in the living room and the plaintiff took part in it. He continued:
“I remember at one stage of the meeting I, Addison and Tolfsby asked permission of J.B Quarshie-Idun and Djamson to go into another room because since the amount of the settlement was difficult to reach I could discuss this separately from the meeting with Tolfsby and Addison. We reached the compromised figure of N¢80,000. We all had a drink over it.”
This witness insisted that the plaintiff was at the meeting, though he came later, and that after the closed meeting the compromise was announced to the general meeting in the presence of Quashie-Idun and Djamson. He mentioned that the N¢80,000 represented the commission for the supply of the raw materials and was a settlement of the claim for £200,000 sterling by the plaintiff. He continued: “The plaintiff has not requested for lump sum payment for his shareholding rights. On the contrary it is the defendants who have tried to persuade the plaintiff to give up whatever rights he has to share in exchange for a lump sum payment but the plaintiff has always refused.” In cross-examination the plaintiff’s solicitor insisted that the plaintiff, Tolfsby and all the solicitors for both parties were present at the July meeting and that the settlement was reached on that day and announced to all present on that day.
The defendants’ case denies certain aspects of the evidence for the plaintiff but does not in my view dispute that case in its entirety and I think it is important at the outset to identify the areas of agreement before going on to consider the matters of fact in real controversy. It seems to me that the matter that there was a meeting in July 1969 for the purpose of thrashing out differences between the plaintiff and the defendants, was not in dispute on the evidence of both parties. The plaintiff said so and put the date at Sunday, 27 July 1969. The appellant spoke of a date “towards the end of July 1969, a Sunday. On the writ and the statement of claim the date set out is either “on or about 27 July 1969.” However there is no dispute between the parties that there was a meeting on a Sunday in July 1969 and on this aspect of the matter the meeting itself, rather than the date thereof, would appear to me to be the important matter. As to those who were present at the meeting and where it was held there is agreement that the plaintiff’s solicitor Akuoko was present as well as Tolfsby and his solicitors Quashie-Idun and Djamson. The meeting itself, it is agreed took place at the residence of a Mr. Schuller in the Airport Residential Area.
The major disagreement in this respect is as to whether the plaintiff himself was present at this meeting on that Sunday in July 1969. He himself says he was there throughout. His solicitor says he joined them later. Both of them assert that the plaintiff took part in the discussions on that Sunday. The defendants deny that the plaintiff was present on that Sunday and all their three witnesses were united in this assertion.
With regard to the issues which were discussed on that Sunday there is agreement between the parties that the matter of the plaintiff’s claim to a commission for the defendants’ clinker contract was discussed. The disagreement here relates to the issue of whether that was the only matter discussed or whether the matter of the plaintiff’s option and his contention about the date of expiry of the option had also been discussed. Akyea-Djamson put it this way:
“When we got to the house of Schuller we were settling down to have certain discussions concerning certain claims the plaintiff was making against the defendants. The object of the discussion was to arrive at a settlement . . . We discussed the question of the commission to the plaintiff. That is the second defendants’ witness who is the defendant stated that the defendant company had never agreed to pay any commission (percentage) to the plaintiff. He further stated that even though the plaintiff helped them to be introduced, the defendants’ representatives were the authorities in Ghana. He said the negotiations were carried on by their representatives. Akuoko said he thought the offers made by the second defendants’ witness were reasonable. The claim for commission was included in the conclusions we came to.”
Quashie-Idun put it this way: “Tolfsby explained the purpose of the meeting and said in view of certain disagreements that had existed between his company and the plaintiff he wanted the matter settled once and for all. Tolfsby made proposals for the settlement.” Tolfsby himself put the matter as follows: “The question of commission was raised at the meeting. Akuoko arranged that a settlement could be agreed upon on three per cent commission instead of the five per cent.” Akuoko himself said:
“What was discussed was the claim by the plaintiff for a monetary reward in respect of a contract for the supply of raw materials, clinker, paper bags, etc. The plaintiff said that the total value of the order was in the region of £4,000,000 in sterling. He was claiming a percentage of this as commission for obtaining the contract for the defendants. I think he was claiming five per cent as commission. He calculated this at £500,000 sterling. This is what was discussed.”
The plaintiff also said: “At the meeting Mr. Tolfsby and all of us discussed the question of a settlement of the commission on the clinker.” With regard to the purpose or nature of the meeting on that Sunday again there is agreement on the evidence that it was held to endeavour to arrive at a settlement. With regard to the matter whether there was in fact any agreement reached amounting to a settlement there is again substantial unanimity in the respective cases of the parties. The appellant said he settled for N¢80,000 after discussions. His witness says that that figure was agreed as a settlement and he was asked to draw up a release to record the settlement. The defendants’ representative agreed that: “The N¢80,000 offered to Addison was a complete settlement of all his claims. The settlement of July 1969 included everything. It was not in settlement for the claim on clinker only.” It seems to be clear then on the evidence of both parties that the parties intended a settlement and that they did reach an agreement amounting to a settlement.
As to the legal effect of that settlement there is no doubt that the evidence clearly demonstrated that it was the intention of the parties that whatever settlement was reached should have effect as a contract between the parties. I do not think that it is open to anyone to canvass that there was no contract between the parties or that the agreement reached at the settlement was meant to take effect only upon a written contract being signed by the parties. It is true a release was to be prepared but then on the evidence it seems clear to me that the release took its authority from a preceding oral contract and which the release was to record.
Turning now to the matter of the terms of the settlement, it is here that there is the major and most significant area of disagreement. First, however, as to terms not in dispute. There is no dispute that a term of the settlement was the disposal of the appellant’s claim to a commission. Whatever other matters the parties settled in July 1969 they certainly settled the appellant’s claim to a commission of five per cent for the clinker supply contract. On this there is manifest unanimity in the evidence.
Were there any other terms in the settlement apart from the matter of commission? The plaintiff’s case is that there were not. Akuoko said: “The N¢80,000 represented the commission for the supply of the raw materials. This was a settlement for the claim of £200,000 sterling.” And the plaintiff said:
“What was agreed at the meeting was simply that for my commission on arranging for the £4,000,000 sterling worth of raw materials covering supply of clinker gypsum and paper bags for packing cement they were prepared to pay N¢80,000 . . . At the meeting it was suggested that N¢50,000 should be paid as commission to me on the clinker supplied. I objected to it. Then Tolfsby, Akuoko and myself repaired to an ante-room where we had further discussions on the commission. Finally I agreed to take N¢80,000.”
The defendants’ case is that the settlement of July 1969 “was a complete settlement of all his claims” and that it “included everything” and was “not in settlement for the claim for clinker only.” By everything the defendants’ meant as Djamson put it “a final settlement of all claims” which covered as well “the claim the plaintiff was making for the option to acquire shares.” So that part of the consideration for the sum agreed to be paid “was the option given to the plaintiff to acquire 90,000 shares.” Quashie-Idun put it also this way that the jump sum was to cover “all possible claims and rights” the appellant had against the defendants.
Again with regard to the date when the settlement was finally concluded there is a significant disagreement on the evidence with the plaintiff and his witness contending that everything was concluded on one day, that Sunday, at Schuller’s residence, including the agreement as to the final figure of N¢80,000 and the defendants asserting that the sum agreed upon was initially N¢50,000 at Schuller’s house on the Sunday and that subsequently, on the following Monday, there was a second meeting at that same house when the figure was, by consent, raised to N¢780,000. The defendants contend that the plaintiff was not present at the meeting on Sunday and that neither solicitor of the defendants was present at the second meeting on Monday. The plaintiff spoke of only one meeting at which all the persons named were present but says that in the course of that meeting he, Tolfsby and Akuoko retired to an ante-room where the three of them thrashed out the final figure of N¢80,000.00, in the absence of the defendants’ solicitors.
It is evident from the above analysis of the case on both sides that the main issues that the trial judge was called upon to determine were issues of fact. That determination would in the circumstances of this case depend to some extent on the credibility of the witnesses. The trial judge heard and saw these witnesses and he was certainly in the position of making findings as to demeanour. In the view of the trial judge the defendants’ witnesses were preferable to the plaintiff and his witness. Clearly to the extent that the determination of the issues of fact depended solely or substantially on credibility of witnesses the trial judge’s findings cannot be lightly disturbed. In all the circumstances I have no reason to find fault with the trial judge’s assessment of the credibility of the defendants’ witnesses, and if the success or failure of the plaintiff’s case had depended exclusively on the credibility of witnesses the judgment that the plaintiff had failed to establish his case could not be impeached.
In my judgment, in the particular circumstances of this case, it would be taking too simple a view of the matter to hinge the determination of the case purely on matters of credibility. In my consideration the oral evidence in the case had to be viewed against the background of the documentary evidence so copiously provided by both parties. Obviously the parties thought these various pieces of documentary evidence of some importance and counsel must have concurred in this view by their conduct of the case at the trial. The trial judge himself appears to have realised the importance of the documentary evidence and he referred to some of them in his judgment.
Putting together then the documentary evidence and the oral evidence I find no difficulty in saying that certain specific issues of fact upon which the plaintiff built his case were established without any dispute and are therefore acceptable as proved. I have already identified these areas of agreement on the evidence and I summarise them as follows: In late July 1969 the plaintiff and the defendants, with the aid of their respective solicitors, held discussions for the purpose of settling certain points of difference between them. The discussions were held at the house of one Schuller in the Airport Residential Area. Before these discussions the plaintiff had been granted certain benefits by the defendants including an option to purchase 90,000 shares exercisable up to 1 September 1969. The plaintiff had sought an extension of the option to 31 August 1970. The defendant had proposed a repurchase of the plaintiff’s option. A meeting was held on 10 December 1968 between the parties and their solicitors at which certain decisions were taken. After this meeting the solicitors of the defendants wrote to the solicitors of the plaintiff, as agreed, presenting a record of the decisions arrived at on 10 December 1968. That record is contained in exhibit HH of 24 December 1968. The solicitor for the plaintiff wrote to his opposite party on 7 Febraury 1969 to confirm, to a substantial extent, the record as set out in exhibit HH. That letter is JJ. These decisions were that:
“(1) Our clients suggested that Mr. Addison might care to dispose of the whole matter by allowing our clients to repurchase from your client any right he might have to an option on shares in Ghana Cement Works Ltd. (2) Although our clients do not wish to commit themselves to an extension of the option period until your client has had an opportunity of considering the proposal referred to in (1) above they are willing to consider an extension of the option period to 31 August 1970 upon the following terms: (a) They will transfer 10,000 shares to Mr. Addison free of charge to him. (b) Mr. Addison should have the right exercisable at any time before 1 September 1970 to purchase from A/S Norway Cement Export not more than 90,000 shares at a price of N¢1.30 per share such shares to be transferred to Mr. Addison upon payment in full by him of the purchase price, transfers to be in blocks of not less than 10,000 shares on each transfer.”
In that letter the defendants’ solicitors intimated that their clients’ representative would be coming to Ghana “in the early spring of next year” and on that visit would hope to “finalise the matter,” but if in the meantime the plaintiff wished to discuss the proposal to repurchase his option the defendants would be happy to do so. In his reply the plaintiff’s solicitor said: “Subject as noted below we confirm our agreement with the record made by you as a true record of the conclusions of the meeting.” The exception noted is of no relevance to the case.
Apart from the matter of the option the meeting of 10 December 1968 also discussed certain requests by the plaintiff for the conferment on his company of certain ancillary benefits as to distribution and transportation of cement produced by the Ghana Cement Works Ltd. The plaintiff’s requests in this respect did not find favour with the defendants and the concessions they were prepared to make as set out in the offer of 24 December 1968 (exhibit HH) appear to fall short of the plaintiff’s expectations. This was the position as at 7 February 1969 the date of exhibit JJ.
A few weeks later on 28 March 1969 the plaintiff put forward for the first time a claim for a commission of five per cent on the clinker supply contract. That is exhibit Al. That claim was rejected in no uncertain terms by the respondents on 21 April 1969 in exhibit B1 who preferred a settlement along the lines suggested at the meeting of 10 December 1968. On 21 April 1969 the plaintiff wrote to the defendants threatening to go to court and on 12 May 1969 authorised his solicitor to commence an action. Discussions would appear to have been held between the respective solicitors (see exhibit B1) and the defendants’ solicitors on 24 June 1969 in exhibit BB requested the appellant’s solicitor to advise him to “refrain from further action until there is a possibility of discussion” when the defendants’ representative would be coining to Ghana in the last week of July 1969 and the necessary discussions were held at Schuller’s house.
Pausing here for a moment I think the undisputed evidence justifies the inference that the discussions of July 1969 were meant to consider the proposals of 10 December 1968 as to either purchase or extension of the plaintiff’s option as well as the plaintiff’s claim to commission. A settlement was reached and a sum of N¢80,000.00 offered to be paid to the appellant. That settlement and all its terms were intended by both parties to operate as a binding contract. All this undisputed.
In my judgment the main dispute relates to the terms of this settlement and the circumstances in which it was arrived at and not to the existence of the contract itself. Of these matters in dispute it is my view that those which relate to the date and place of the contract and the presence or absence of the plaintiff or the solicitors for the defendants in the course of the entire discussions, so also as to whether there were one or two meetings, important though they may be for purposes of credibility, do not in themselves, go to the root of the matter of whether or not there was an oral contract concluded in July 1969. There is no dispute that there was an oral contract. Again these conflicts do not appear to me to be relevant to the matter of the nature of that contract. There is no dispute that it was a contract intended to operate as a settlement of matters of difference between the parties. Again as to who were parties to that settlement there is no dispute that the plaintiff and the defendants were the only parties to it.
It is when one comes to consider the evidence as to what were the terms of that contract that the conflict of evidence becomes of crucial importance. Clearly the burden was on the plaintiff to establish the terms of the contract in support of his claim. What he had undertaken to prove by his writ of summons and his pleadings was that on the terms of the contract that he be paid N¢80,000 in settlement of his claim for commission and for nothing else. That was his case and that was what he set out to prove. To establish these matters he and his witness gave evidence that the sum of N¢80,000.00 was the amount for which his claim to commission was settled and that that settlement did not include the relinquinshing of his option. That was the gist of the oral evidence for the plaintiff. He further relied on documentary evidence in support of his stand. That is exhibit GG a letter from the defendants’ solicitors to his solicitor. Exhibit GG itself was based on exhibit 19 a letter from the respondents to their solicitors and conforms to it in substance. It is the plaintiff’s case that his direct oral testimony as to the terms of the settlement derives circumstantial support from exhibit GG and that the circumstantial evidence fully swings the scale in his favour. The defendants do not accept that the documentary evidence has this effect and they rely on the oral testimony of their witnesses.
It seems to me that the determination of the conflict as to the terms of the settlement does not depend solely on the oral testimony in the case and therefore on the credibility of the witnesses who gave that evidence. Upon my consideration of the contents of exhibit GG and its present document exhibit 19, the defendants’ case as to the terms of the settlement is that the agreement: (a) awarded the sum of N¢80,000 to the appellant in settlement of; (b) his claim to five per cent commission; (c) to repurchase his option; and (d) to settle all possible claims in the matter of the negotiations for the two contracts.
Since the terms of the contract relating to the amount of N¢80,000 and the settlement of the claim to commission were common ground, the dispute then as to the terms narrows down to the issue of whether it was a term of the settlement that the option was repurchased. That this dispute had been foreseen by the plaintiff is shown by issue 1 (a) in his summons for directions, namely, whether the agreement in respect of the N¢80,000.00 was conditional on the plaintiff relinquishing his option. The documentary evidence, exhibit GG and exhibit 19 set out the defendants’ version of the terms of the settlement. They state the offer they made in July 1969, the counter proposal made by the plaintiff as to the amount of the award and the final acceptance of these terms by both parties in the presence of Mr. Akuoko. The relevant part of these exhibits, around which much argument revolved at the hearing of the appeal, relates to the option and is as follows:
“[T]he statement included an option for Mr. Addison to buy a further 90,000 shares from us, the option to be exercised not later than August 31st, 1970. When we pointed out to Mr. Addison that this was an additional privilege not included in the agreed settlement, Mr. Addison maintained that this was a right which he had already acquired. To this we had to state:
(1) That Mr. Addison’s original option on 90,000 shares expires on August 31st, 1969 and we have never agreed to extend the option for one year although we on December 10th in your office declared our willingness to consider such an extension;
(2) That at the same meeting we indicated a willingness to repurchase from Mr. Addison his original rights; and finally
(3) That the settlement offered Mr. Addison on July 28th, 1969 completely stated the benefits which Mr. Addison would receive and that consequently no further claims could be entertained. To these points Mr. Addison did not agree.”
(The emphasis is mine.) This extract is from exhibit 19 which itself shows that these discussions set out in it took place in Oslo on 12 August 1969, that is in about a fortnight after the settlement. Exhibit GG is in substantially the same terms and is based on exhibit 19. It is dated 7 October 1969.
Counsel for the plaintiff contends that when the oral testimony is assessed in the light of these exhibits the issue as to the relinquishment of the option must be decided in favour of the plaintiff. That argument, as I understand it, is that these letters of the defendants nowhere state specifically that it was a term of the settlement that the option had been purchased and that on the contrary they state, as at 12 August 1969, (a) that the option was due to expire on 31 August 1969; (b) that the defendants had never agreed to extend it; (c) that on 10 December 1968 the defendants had indicated their willingness to repurchase the option; (d) that the claim of Addison that the option had been extended for one year could not be entertained since it was an additional privilege not included in the agreed settlement; and (e) that no further claims could be entertained from Addison since the settlement which he had accepted clearly and completely stated the benefits which he would receive. I have emphasized the words in these exhibits which I consider of great significance to this argument. The issue then is whether these letters of the defendants contain admissions made soon after the settlement that that contract did not contain a term for the repurchase or relinquishment of the plaintiff’s option.
It seems to me that the effect of these letters is plain on the face of them, and I see no difficulty about an option for 90,000 shares due to expire on 31 August 1970. It was the defendants’ case that they had repurchased whatever rights he had to an option two weeks before. The defendants then wrote in these letters of the plaintiff’s request made in 1968 for an extension of the option and their refusal to extend it. They wrote further of their own position in 1968, that is the expression of their willingness to repurchase the option even though they had come so near to the matter and the option itself was under discussion. They wrote rather of their willingness as at 1968 to repurchase the option and not of an actual purchase as at 1969. They go on to write of benefits to themselves. They say, as at 12 August 1969, that the option “expires” on 31 August 1969. Their solicitors wrote on 7 October 1969 and setting out their clients’ position stated that the option “expired” on 31 August 1969.
Faced by the plaintiff with a release which recited the existence of the option and its expiry on 1 September 1970 the defendants merely stated that the option had not been extended from 1969 to 1970, that it was therefore due to expire at the end of August 1969, that the claim to an extension was an additional privilege not included in the settlement, that the settlement itself set out clearly and completely what benefits were to be received by the plaintiff and that no further claims would be entertained. In my opinion if the option had been repurchased or relinquished as a term of the settlement the defendants would have said so in exhibit 19 and their solicitors likewise in exhibit GG. In my view the contents of exhibit 19 and exhibit GG belie the defendants’ case that the settlement of July 1969 included a term as to the plaintiff’s option. In my judgment the only reasonable conclusion to come to as matter of inference is that these exhibits support the plaintiff’s case that the option did not form part of the settlement and that they totally contradict the defendants’ case on that matter. In my view any claim that the option had been extended, repurchased or relinquished, cannot be determined by reference to the settlement since that agreement did not deal with any of these matters. The trial judge after an exhaustive consideration of the evidence, including exhibit GG came to the following final conclusion:
“The upshot of all this is that I cannot conceivably see how a settlement was therefore reached. None of the releases prepared by Mr. Akuoko was acceptable to the defendants as representing a true statement of the facts. I have read and re-read what has been described by Mr. Akuoko as the approved draft exhibit DD and it is not clear what the N¢80,000 represents in that document. It is contended by the plaintiff that it is for five per cent commission for the supply of clinker while the defendants maintain it is the amount agreed upon as the full settlement of all claims by the plaintiff. It is really impossible for the court to ascertain with any perfection the terms of the settlement the parties reached at the latter part of July 1969. On the facts therefore before me I find that on the Sunday 27 July 1969 when there was a meeting to reach a settlement the respective parties were not ad idem as to what the figure named on that day and subsequently amended to N¢80,000 represented. In the result there is no binding contract between the parties. The contract on which the claim is based being unenforceable the parties must be restored to as nearly the same position as they were prior to the abortive settlement.”
The trial judge then dismissed the plaintiff’s case and made an order remitting the case for settlement along lines he had indicated.
These are the major findings upon which the plaintiff’s action was dismissed. In my view these findings are wholly wrong and manifestly contrary to the evidence of both parties and cannot be supported. If there was any one fact on which both parties and their solicitors were agreed it was that settlement was finally reached after discussions between them. Again both parties and their solicitors were certain of what the agreed sum of N¢80,000 represented. All parties and witnesses were clear in their own minds what were the terms of the settlement reached in July 1969. Again the defendants and the plaintiff both said they were ad idem as to what that figure represented. Further the parties intended their settlement to be a binding contract between them. I do not think it was ever contended that there was no contract or that any such contract was unenforceable. In my view the trial judge completely misunderstood the nature and the effect of the oral and documentary evidence before him and in so doing came to conclusions which were wholly at variance with the case of both parties. These conclusions cannot stand.
The real issue in controversy between the parties was as to the terms of the settlement and as some of these terms were not in dispute the determination of this controversy was the resolution of the dispute as to these terms which were not admitted. That was the matter of the option and in my judgment that issue should have been settled in the plaintiff’s favour. It seems to me that the obstacles the trial judge saw in his judicial path had no objective relation to the evidence before him and were therefore non-existent. The only “obstacle” in the way of the trial judge was the resolution of the conflict of evidence between the respective cases of the parties as to the terms of the settlement. That determination merely involved the exercise of the normal judicial function of choosing between opposing versions of a factual transaction which version the court accepts as true. I see no difficulty about that matter.
The plaintiff’s case was based on an oral contract. That case was supported by oral evidence not in dispute and by reasonable inferences from documentary evidence accepted by the trial court. In my view the plaintiff did establish his case at the trial as against the defendants. The plaintiff’s case, in substance, on the basis of the writ of summons, the statement of claim and the issues agreed for trial, was that he was entitled to a sum of N¢80,000.00 upon an oral contract which settled a claim he had raised for five per cent commission of £200,000 on a clinker contract which he had negotiated for the defendants, that that contract did not provide for the repurchase of an option for shares which he had as at the date of the settlement and that the only matter settled was his claim for commission. In my judgment the position as revealed on the evidence confirms the plaintiff’s case that there was an oral contract for settlement in the sum of N¢80,000.00 of the claim for five per cent commission and that the contract did not relate to the matter of the extension or relinquishment of the plaintiff’s option.
The plaintiff complains in this appeal that: (1) the trial judge erred in law and on the facts in dismissing the plaintiff’s claim based on a finding that the parties were not ad idem; (2) the trial judge having found that N¢80,000 was agreed by the defendants to be paid to the plaintiff erred in law and on the facts in failing to resolve on the evidence before him the purpose for which the sum was agreed to be paid; (3) the judgment is against the weight of the evidence. In my judgment these complaints are well-founded.
In the result I am satisfied that the appeal must be allowed and the entire judgment of the court below set aside including the order remitting the case for settlement and as to costs. I would give judgment to the plaintiff in the sum of N¢80,000.00 payable on an oral contract between the parties in July 1969 by virtue of which the plaintiff’s claim for five per cent commission was settled, together with interest.
KINGSLEY-NYINAH J.A.
I have had the happy privilege of reading, beforehand, judgments of my learned brethren. And upon due consideration of each judgment against the necessary background of the evidence, both oral and documentary, and with particular regard to natural justice, equity and good conscience, I have come to the decision that out of a sheer indebtedness to substantial justice this appeal must succeed.
One of the serious complaints I have against the learned trial judge’s handling of this case is his confession that he had been unable “to ascertain with any perfection the terms of the settlement the parties reached” at that meeting at Schuller’s residence in July 1969. To my mind, as modelled by the principles governing trials at first instance, that was a serious abdication of the trial judge’s judicial functions. It is my opinion that, no matter how difficult the exercise, the learned trial judge was in strict duty bound to pursue it with unrelenting assiduity until he had properly sifted the evidence and so separated the true metal from the dross as to arrive at a clear decision of fact on that vital issue. As I see it that grave dereliction denied justice to the parties herein, more particularly to the plaintiff.
It is my understanding of the facts in evidence that when the parties to this suit entered upon their transaction, they each and both of them had, as an essential part of their business contemplation, the eventual enjoyment of the fruits and benefits that they both knew and expected would accrue from that enterprise. And as has been so cogently pointed out in both judgments, just read, the evidence is clear and undisputed that the defendants themselves readily acknowledged, both before the suit and then at the trial, the great and helpful part that the plaintiff had so actively played, not only at the negotiations stage of their venture, but also thereafter. It is a matter of no mean significance, strongly supporting the plaintiff’s posture at the trial, that the defendants furthermore conceded the plaintiff’s just entitlement to certain benefits under their venture with him.
That being so, I deem it only fair and proper that this court to which the plaintiff has properly turned for redress does not stultify due justice by being too legalistic and too technical when considering the question of whether or not the plaintiff was able to discharge the burden that his own writ and statement of claim committed him to execute. It is not as though, when the matter went to trial, the plaintiff was neither diligent nor careful with the quality and nature of the proof that he marshalled in support of his case. It is my reading and understanding of the record of proceedings that all the facts and all the circumstances upon which the plaintiff relied strongly supported and vindicated his claim against the defendants to a substantial and convincing degree. If the plaintiff, on the contrary, had neglected to adduce any cogent and satisfactory evidence at all, in meaningful proof of his assertions, then could it be justly held, and confirmed, that he had so gravely violated the principle of the burden of proof as not to be entitled to succeed upon his claim. That, however, was not the case with the plaintiff.
By reason of this, therefore, I hold it to be utterly irrelevant that, at the close of the trial, the plaintiff had drawn only one string, instead of the two, that he elected to put on his bow. Since the plaintiff’s case depended upon an oral agreement arrived at after a series of discussions between himself and the defendants, I hold it enough for the essential purposes of his transaction with the defendants, that the subject-matter of their venture and the gravamen of the plaintiff’s claim were fully understood by both sides in a sense that was not disagreeable to the real essence and nature of their oral agreement: the mutual enjoyment of benefits.
In all the circumstances of the interpretation of the transaction herein, therefore, and in order that the true intention of the parties be duly respected and recognised, I would prefer equity to technicality and strict law. In a case such as we have before us, it is of importance that pre-eminent consideration be given to what the parties truly wanted to gain from their agreement to do business together, so that positive justice be done. Combining the substance (and not only the mere form of the plaintiff’s writ) together with the compulsive weight of the whole of the evidence that the plaintiff put forth in strength to establish his claim at the trial, I am inclined to the view that since the real issue in controversy was one of fact, and in order that no hardship be wrought against the plaintiff (not to mention a harsh denial of justice), we have a duty here, in this court, not to insist upon the technicality that the plaintiff, ought, strictly, to have sued upon and proved the two kinds of negotiations that he averred he had performed for the defendants. And that his claim must fail because he proved only one. This court has a duty to protect the substance of the parties’ agreement, and not to destroy it.
Speaking for myself, I would hold that in the peculiar circumstances of their transaction, as shown upon the record of appeal, it was enough that the plaintiff was able to adduce a preponderance of credible evidence, both real and inferential, in support of the substantial part of his claim. This, as I see it, and in the pertinent light of what both parties had within their business contemplation: namely, that not only one of them, but rather each and both of them derive, from the cement venture, worthwhile financial gains and other benefits: that, in my opinion, concluded the whole matter and rendered of very slight significance indeed whatever discrepancies and conflictions there may have been present in the evidence adduced by the plaintiff for, in my view, these variances never worked, either singly, or cumulatively, to adversely affect the material essence of the agreement between the plaintiff and the defendants, not yet to destroy the main aspect of the plaintiff’s claim against the defendants.
I have no doubt at all in my mind, having regard to the facts and circumstances of this case, that the parties herein did agree on the sum of N¢80,000 as properly due unto the plaintiff. And as I read and interpret these facts and the peculiar circumstances of this case in the light of the evidence adduced at the trial, I am satisfied there was not such an evenly balanced state of the evidence as to justify a failure of the plaintiff’s case.
I come to the decision, therefore, that in order that substantial justice be done, and the expectations of both sides to this dispute for profit and gain be respected and sustained, the plaintiff be not denied his merited enjoyment of the particular remuneration (N¢80,000) that he elected to sue for as agreed commission. To my mind the trial judge’s finding that the parties to the suit before him did eventually agree upon the figure of N¢80,000 as being justly due to the plaintiff amply supports the plaintiff’s righteous entitlement to that sum in recognition of his services (if for nothing at all), for the defendants herein. It does not strike me as either just, or conscionable, therefore, that while the defendants have undoubtedly gained immense financial benefits and other advantages from the commendable efforts of the plaintiff which won for them that massive cement deal with the Government of Ghana, the plaintiff should, by reason of too strict an obeisance to technicality, and legality, be made to suffer and lose the little that properly accrues to him from his business venture with the defendants. It is not for nothing, therefore, that:
“Courts of equity made a distinction in all cases between that which is matter of substance and that which is matter of form; and if it finds that by insisting on the form, the substance will be defeated, it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance.”
See Parkin v. Thorold (1852) 16 Beav. 59.
In my view, then, this court has a first duty to examine the purpose of the transaction between the parties, to look at the substance of their agreement and, preserving that substance, so to forestall the reasonably probable situation where, by affirming the trial court’s judgment, our verdict here would necessarily result to reduce the plaintiff to the position of a mere mendicant at the mercy of the defendants. As I perceive it, substantial hardship and real prejudice, instead of profit and pleasure, would result to the plaintiff, in contravention of the time-honoured precept that “an act of the court shall not prejudice anyone.” I would, therefore, allow this appeal and, reversing the trial court’s decision, pronounce judgment for the plaintiff in the sum claimed, of N¢80,000.