Kessie v. Charmant & Ano. [1973] 2 GLR 194.

KESSIE v. CHARMANT AND ANOTHER [1973] 2 GLR 194

HIGH COURT, KUMASI

ANNAN J.A.

STATUTORY REF.
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Annan, J.A. The plaintiff claims “the sum of £G50,000 or 100,000 new cedis from the defendants jointly and severally for breach of a contract between the said plaintiff and the defendants contained in a document dated 2 December 1960.” The writ was filed on 21 June 1968. The plaintiff is a solicitor and barrister-at-law and has held office as an ambassador in Monrovia, Peking and Cairo. He was first appointed to the diplomatic service in August 1959. The first defendant is the managing director of the second defendants – a company registered in Ghana and engaged in the production of timber and sawn boards. The plaintiff’s statement of claim states inter alia:

“(3) In December 1960 the first defendant asked the plaintiff in his private capacity to approach the President of Liberia and other senior officials of the Department of Forestry to grant the defendant company a timber concession of about 3,000 square miles to enable them to operate in Liberia.

(4) In consideration for this and other services the plaintiff demanded the sum of £G5,000 or 10,000 new cedis in cash and five per cent of the shares from the first defendant; the first defendant in the same letter offered the plaintiff a directorship of the company which carried with it a remuneration of £G5,000 or 10,000 new cedis in case the plaintiff resigned his diplomatic service appointment at any time. The plaintiff also accepted the offers made to him by the first defendant and on behalf of the second defendants.

(5) After nearly six weeks of negotiations and discussions on behalf of the defendants the plaintiff succeeded in acquiring the said concession for the defendants in Liberia. 

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(6) Since the defendants acquired the concession in Liberia the defendants have failed to fulfil the conditions of the agreement and have since 1961 failed to deliver the share certificates to the plaintiff and have also not submitted a single statement of account to the plaintiff both in his capacity as a shareholder and as a director despite numerous reminders both oral and written.

(7) In December 1967 the manager, the first defendant’s brother Patrick Charmant, of the Liberian concession showed some papers alleged to be a statement of account for 1966 to the plaintiff and promised to communicate with the plaintiff about the shares and other statement of account, but this has not been done by the defendant’s brother.

(8) In the circumstances the plaintiff considers this to be a complete violation of the terms of the agreement with the defendants. Wherefore the plaintiff claims from the defendants jointly and severally the sum of £G50,000 or 100,000 new cedis for breach of the agreement between the plaintiff and the defendants on behalf of the second defendants.. .”

The second defendants are a company incorporated and registered in Ghana. The first defendant is their managing director. The defendants contend that the plaintiff was the Ghana Ambassador to Liberia at all times relevant to this action. It is contended therefore that the plaintiff was by law precluded from demanding or accepting any private gain whatsoever for himself as a reward for giving any assistance of any kind to Ghanaian residents or visitors or representatives of Ghanaian companies visiting the Republic of Liberia either for business or social purposes. It is said therefore that any contract with the plaintiff by the defendants is contrary to public policy. The defendants pleaded further that even if offers of shares or of office were made to the plaintiff he never accepted or took up the same. Such offers were in any case improper. No definite salary or remuneration was in any case attached to such office.

In reply the plaintiff contended that at the time that he acted on behalf of the defendants in Liberia he was not the Ghana Ambassador to that country “and therefore the defences of public policy etc. are all misconceived and frivolous.” The plaintiff was on contract for one year from August 1959 to August 1960 and by 8 December 1960 the plaintiff had left for Ghana and set up private practice as a legal practitioner in Kumasi. The plaintiff therefore insisted that he acted as a middleman in his private capacity and that his conduct did not infringe any rules of law.

Among the issues agreed for trial are the following:

(1) Whether or not the plaintiff negotiated on behalf of the Mim Timber Co., Ltd. when the plaintiff was Ambassador for Ghana to the Republic of Liberia. 

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(2) Whether or not the plaintiff was properly and lawfully entitled to demand or receive or accept any private gain or reward or any promise of the same for any or any alleged services rendered to the second defendants.

(3) Whether or not there is any binding or enforceable contract between the plaintiff and the second defendants.

(4) Whether or not the plaintiff’s claim is barred by lapse of time.

On the pleadings therefore the plaintiff says he was not an ambassador (and presumably not a public officer of any other description) at the time of the contract and that whatever he did he did in a personal or private capacity. The plaintiff gave evidence. Neither of the defendants gave evidence. They however called two witnesses, one of them an official from the Ministry of External Affairs and the other a director of the second defendants and the president of the Liberian company of the second defendants. This case raises certain issues of fact and of law. I take first the factual position. Was the plaintiff the Ghana Ambassador to Liberia in December 1960? The answer to this matter poses no difficulties.

The plaintiff was appointed Ambassador to Liberia in August 1959, as his letters of credence, exhibit A, show. According to the plaintiff his appointment was for one year from that date. Exhibit A however is silent on that issue and the plaintiff’s own evidence puts the date at November 1960. The plaintiff’s letter of appointment from the Ghana Government is dated 28 August 1959-exhibit 1 and speaks for itself.

Paragraph (1) of exhibit 1 dates the appointment of the plaintiff from 1 August 1959. Paragraphs (2), (6) and (7) state:

“(2) Your appointment will be for a minimum period of two years determinable on either side at three months’ notice or on payment of one month’s salary in lieu of notice ...

(6) You will not, at the conclusion of your term of service be eligible for a retiring award.

(7) Your other terms and conditions of service will be as set out in sessional papers approved by the National Assembly, Foreign Service Regulations and other directions applicable to the members of the Ghana Commonwealth and Foreign Service.”

It seems to me clear from the terms of exhibit 1 that the plaintiff was expressly appointed on a short-term contract of service for a minimum of two years and was not therefore a career diplomat. The appointment could be determined by notice by either side. It is equally clear to me that the appointment of the plaintiff was in all other substantial respects on the same terms and conditions of service as were applicable generally to members of the Ghana Commonwealth and Foreign Service. It is relevant, I think, to observe that Ghana was not a Republic at the date of the plaintiff’s appointment and the appointment was in fact made 

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by the Queen of England as Queen of Ghana and of Her other Realms and Territories Head of the Commonwealth. I see nothing in either exhibit A, the letters of credence or exhibit 1, the letter of appointment which puts the plaintiff’s appointment in any special category (apart from the short term nature of the appointment) different in any essential respect with regard to te duties, obligations and responsibilities of his office from the office of the career diplomat. Again on the issue of the tenure of office of the plaintiff as ambassador to Liberia, the correspondence between the first defendant and the plaintiff and the President of Liberia is very significant. The first defendant’s letter to the plaintiff, in which he made certain offers to him, is dated 2 December 1960. That is exhibit B. It was addressed to the plaintiff as: “Cobbina Kessie, Ghana Embassy, Monrovia, Liberia.” The plaintiff’s reply to exhibit B is dated 4 December 1960 and on 6 December 1960 the plaintiff wrote to the President of Liberia in furtherance of the interest of the defendants’ venture in Liberia. That letter, exhibit D, was signed by the plaintiff as ambassador and was obviously an official letter addressed by him to the Head of State in his character as the Ghana Ambassador.

According to the defendants’ first witness, the official of the Ministry of External Affairs who gave evidence for the defendants, the plaintiff assumed duty in Monrovia on 29 December 1959, completed his tour of duty in Liberia on 6 February 1961 and returned to Ghana on 6 February 1961. The plaintiff was then posted to China and later to the United Arab Republic. He finally left the service on 3 March 1964.

In my consideration of the totality of the evidence on the issue of the plaintiff’s tenure of office I find myself satisfied that the plaintiff was the Ghana Ambassador to Liberia at all times relevant to this action and certainly from December 1959 to December 1960. I find that at no time between December 1959 and March 1964 did the plaintiff ever cease to be a member of the Foreign Service neither did he engage in private practice as a legal practitioner. The evidence of Osei Tutu, the defendants’ first witness, the representative of the Foreign Office, taken together with the plaintiff’s letter of appointment and his letters of credence established firstly, that the plaintiff was appointed ambassador in August 1959 for a minimum period of two years and secondly, that that appointment was still effective two years later as it had not been revoked or otherwise terminated by either party to it. In fact the plaintiff remained an ambassador until 1964. The plaintiff did make some feeble efforts to show that he ceased to be an ambassador some time in December 1960, however, his evidence on that issue is wholly unacceptable. I find that the plaintiff was an ambassador of Ghana from August 1959 to some time in 1964. I find further that he was the ambassador to Liberia in December 1960. Further support for this position is found in exhibit D the plaintiff’s letter of 6 December 1960 addressed to the President of Liberia. The plaintiff clearly wrote that letter as the Ambassador of Ghana. 

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I next go on to consider the matter of the transaction between the parties. Clearly the second defendants, acting through their managing director the first defendant, did solicit the help of the plaintiff for the avowed objective of obtaining a foothold in the timber industry of Liberia. It was the wish of the second defendants to extend their operations from Ghana to Liberia. There is no dispute that the second defendants had operated successfully in Ghana for some time and that they were registered in Ghana.

Equally there is no dispute that the second defendants were introduced to the plaintiff for the specific purpose of getting the plaintiff to assist them in the realization of their wishes. It seems to me clear that the choice of the plaintiff for that purpose must have been influenced to a considerable degree by his official position as the ambassador. Exhibit B, the first of a series of written exchanges between the parties and dated 2 December 1960, shows that the parties had conducted certain conversations in Monrovia “re-initiating a new timber enterprise in Liberia.” In that letter the first defendant, admittedly acting on behalf of the second defendants, made certain proposals to the plaintiff. These appear on the second page of exhibit B:

“With regard to this proposed new company I would be pleased to offer you as a gift five per cent of the shares in the company in appreciation of your very great interest and help in the whole matter.

Should you also at any time in the future consider taking up permanent residence in Liberia or Ghana and leaving government service I would also like to offer you an appointment as public relations officer for the company and a directorship.

The post of public relations officer would carry a salary but would not necessarily be a full time job. I would only hope that you would be mainly resident in Monrovia and not much further away than Ghana for any lengthy period of time.

A directorship carries the normal fees, which are voted annually plus the possibility of substantial bonus according to what is achieved or services rendered during the year.”

Exhibit B states that the proposals made therein were made “in appreciation of your very great interest and help in the whole matter” and were said to be “an idea” of the first defendant’s “intentions.”

By exhibit C dated 4 December 1960 the plaintiff “gladly accepted” these offers. These two letters, on the pleadings, contain the substance of the transaction between the parties. What then are the terms of this transaction? The proposals relate to (a) a gift of five per cent of the shares of the new Liberian company,

(b) an appointment as public relations officer for the company and (c) a directorship of the company. The five per cent shares were specifically designated a gift, in exhibit B and in exhibit C the plaintiff accepted it as a gift. The shares of course did not then exist as there was then no company in existence. It is to 

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be noted that the Liberian company was actually registered on 20 June 1962. With regard to the proposals as to offices in the Liberian company these proposals were dependent on a number of contingencies: namely, they were expressed to take effect after the plaintiff had decided to take up permanent residence in Ghana or Liberia, and after he had left the public service. The evidence shows that the plaintiff left the public service in 1964. In the event then those proposals as to office could not have been carried out before 1964, and the plaintiff in fact did not press the matter until some time in 1967.

Again exhibit B and exhibit C do not contain any indications as to remuneration, however, these appointments would naturally attract reasonable remuneration in keeping with the duties of these offices and the state of the finance of the second defendants. Having then ascertained the terms of the proposals of the second defendants to the plaintiff, I then go on to consider the effect of the making of these proposals, and the acceptance thereof by the plaintiff as at December 1960.

In my view the offer of five per cent shares and its acceptance by the plaintiff did not give rise to any contractual obligation. A gift, or an offer to make one, is to be distinguished from a contract or an offer with a view to a contract. A gift of shares is not at law perfect in the absence of delivery and there is no equity in this court to perfect an imperfect gift. Both parties in exhibits B and exhibit C designated the offer of shares as a gift. It is not therefore open to either of them to put the case differently in the face of the actual documentary evidence in the two exhibits.

With regard to the proposals for the appointment of the plaintiff to office, these proposals may well be seen as mere indications of the good intentions of the defendants towards the plaintiff in appreciation of his services to the cause of the defendants in Liberia. The first defendant said in exhibit B: “I hope that the above very briefly gives you an idea of my intentions and very much hope that this venture will materialise and that you will find your way to become closely and permanently connected with it.”

That concluding paragraph in exhibit B does suggest, taken together with the rest of it and exhibit C, that the proposals were more in the nature of a statement of what gratuitous compensation for the plaintiff’s efforts the defendants contemplated rather than elements in a contractual bargain. I am prepared to assume however, without deciding the point, that these proposals of the defendants in exhibit B as to appointments, and the plaintiff’s acceptance thereof in exhibit C, did constitute elements in a contractual bargain. I therefore go on to consider whether these exhibits taken by themselves provide all the elements of a contract. If exhibit B contained contractual offers and exhibit C the acceptance thereof, was there any consideration and an intention on the part of both parties to create legal relations? Counsel for the plaintiff appears to submit, relying on the Contracts Act, 1960 (Act 25), that consideration is no longer necessary to create a binding contract. It seems to me, that 

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put a broadly, that proposition cannot be supported as a correct statement of the present legal position.

The Contracts Act, 1960, has made vast in-roads into the law of the contract, but then it is hardly correct to say that there is nothing left of the branch of that law which deals with consideration. Part III of the Act deals with consideration in sections 8, 9 and 10. These provide:

“8. (1) A promise to keep an offer open for acceptance for a specified time shall not be invalid as a contract by reason only of the absence of any consideration therefor.

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

    1. The performance of an act or the promise to perform an act may be a sufficient consideration for another promise notwithstanding that the performance of that act may already be enjoined by some legal duty, whether enforceable by the other party or not.
    2. No promise shall be invalid as a contract by reason only that the consideration therefor is supplied by someone other than the promisee.”

These provisions to my mind do not justify the broad proposition that the law of Ghana no longer requires proof of consideration in any contract. In cases, for instance, where consideration is past, exemplified in the common law by Roscorla v. Thomas (1842) 3 Q.B. 234 and Re McArdle [1951] Ch. 669 - and where on the authorities there is therefore no consideration and so no contract at common law, I do not see that the Contracts Act, 1960, has changed the common law position. In my view where the facts show absence of consideration the case must be brought within any one of sections 8, 9 and 10 if the plaintiff is to avoid the effect at common law of the absence of consideration. I have looked at the memorandum of the Contracts Bill (See Memoranda on Acts of the Republic of Ghana, Vol. 1 published by the Ministry of Justice, 1966, pp. 39-40). With regard to Part III of the Bill on consideration and formalities the memorandum says: “Part III deals with consideration and formalities. Section 8 dispenses with the requirement of consideration in two cases. Subsection (1) deals with firm offers.” An illustration is given of the type of case covered by section 8 (1).The memorandum goes on: “Section 8 (2) abolishes the rule generally known as the rule in Pinnel’s Case under which waiver of a debt or other obligation is only valid if accompanied by consideration.” Section 9 clarifies a doubtful corner in the law of consideration by making it clear that the mere fact that a person is already legally bound to do what he now promises (or performs) does not prevent his promise (or performance) from being good consideration. Again there is an illustration of the scope of the provision. Section 10 is said to abolish the requirements that consideration must move from the promisee and the memorandum goes on at p. 40: 

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“This is to some extent connected with section 5 since it forestalls a possible argument that even if a third person were a party to the contract he would not be able to enforce it as he supplied no consideration. But it also has a wider operation since a person may be a party to a contract and yet not supply any consideration.”

Looking then at sections 8, 9 and 10 of Act 25 in the light of the memorandum to the bill, it is easy enough to answer the question: What was the mischief the Act was designed to remedy? That mischief is obviously to be found in the law of contract as to the requirement of consideration but then the very wording of the sections quoted, and the memorandum, do show that these provisions, far from doing away with the whole law as to consideration in one fell swoop, do not in fact go beyond making specific and well-defined in-roads into that doctrine. The basic common law position is stated thus by the learned authors, Cheshire and Fifoot in their book The Law of Contract (6th ed.) at p. 57: “To sustain an action on a promise made by the defendant the plaintiff must show either that it is contained in a document under seal or that it is supported by the presence of consideration.” The ramifications and intricacies of this doctrine are well indicated in any book on the law of contract. That doctrine is still a part of the common law of Ghana, subject to the specific amelioration of its less desirable aspects explicitly set out in the Contracts Act, 1960. The law as to consideration in contract is therefore still to be found in our common law, subject however to the statutory changes of 1960. In my view none of these changes affects the case of past consideration.

Turning now to the evidence, does the case show that consideration is necessary? If one accepts that the defendants in exhibit B made certain concrete offers to the plaintiff and that the plaintiff accepted these offers in exhibit C that then is a matter of offer and acceptance. Clearly the defendants’ offers were made in consideration of the plaintiff’s services to the defendants’ cause: past services as well as further services he was expected to perform for the defendants. Indeed the plaintiff made his first recorded move on behalf of the defendants on 6 December 1960 by exhibit D, after the making and acceptance of the defendants’ offers. In my view there is no case here of mere past consideration. The consideration is substantially executory consideration - the plaintiff was to get all these advantages as an inducement for him to exert himself on behalf of the defendants. The consideration is executory not past.

Assuming however that the offers were made in consideration of services rendered in the past it is clear that the plaintiff performed those services upon the request of the defendants and having regard to the commercial nature of the defendants’ venture in Liberia, one may well say that both parties must have assumed throughout their negotiations that the services were ultimately to be paid for and that they were “performed in the way of business not as an office of friendship.” Such 

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an understanding would then raise for consideration the decision in Re Casey’s Patents; Stewart v. Casey [1892] 1 Ch. 104, C.A. where Bowman L.J. stated at pp. 115-116:

“The fact of a past service raises an implication that at the time it was rendered it was to be paid for, and, if it was service which was to be paid for, when you get in the subsequent document a promise to pay, that promise may be treated as an admission which evidences or as a positive bargain which fixes the amount of that reasonable remuneration on the faith of which the service was originally rendered. So that here for past services there is ample justification for the promise to give the third shares.”

That was the case in which the owners of certain patent rights wrote to their manager as follows: “In consideration of your services as the practical manager in working our patents, we hereby agree to give you one-third share of the patents.” The reasoning in the decision shows that the fact that the promise of shares to the manager was subsequent to the performance of the manager’s services was irrelevant. since the original request to him to perform those services was accompanied by a tacit understanding of remuneration. Ought not the plaintiff’s case to be viewed in the same light? He was a stranger to the defendants albeit that as the diplomatic representative of the country of registration of the second defendants he was perhaps under some obligation to look generally to their interests. Again the defendants were specifically introduced to the plaintiff for the purposes of their business. I think that in the circumstances of this case there is evidence of an understanding of remuneration for the plaintiff’s services, from the outset, and I think the case cited ought to apply.

I turn then to consider the last leg of the case as to consideration, namely, whether it is shown to be sufficient. The common law rule is that although consideration need not be adequate it has to be shown to be sufficient and merely to repeat an existing obligation is not generally considered sufficient. Such a case at common law is the situation where the plaintiff is already under a public duty imposed by law to perform the act which is relied on as consideration.

“It may readily be appreciated that a person, who by his official status or through the operation of the law is under a public duty to act in a certain way, is not regarded as furnishing consideration merely by promising to discharge that duty”: see Cheshire and Fifoot, Law of Contract (6th ed.), p. 76. This proposition of the common law, however, is one of those which the Contracts Act, 1960, has done away with. The present position is therefore as set out in section 9 of the Act. No issue therefore arises in this case as to sufficiency of consideration. I conclude that no difficulty arises in this case in respect of any aspect of the law as to consideration.

The last requirement that calls for discussion is the matter of the intention of the parties to create legal relations. I see no difficulty here. 

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The transaction related to a commercial or business matter. The defendants are seasoned men of business.

The plaintiff was at all material times a man with business interest and this was known to the defendants.

I find it impossible to say that there was here no intention to create legal relations. The result of the above analysis is that I find that the plaintiff has proved that there was a contract by the terms of which the defendants were bound to appoint him a public relations officer and a director of their Liberian company when it was established, without any specific remuneration being agreed. That was in 1960. That contract was to be performed by the defendants upon the happening of stipulated conditions.

Events after 1960 

The plaintiff was ambassador in Liberia until 6 February 1961. It seems clear to me that between December 1960 and that date he exerted himself on behalf of the defendants’ venture in Liberia and facilitated contact and discussion between them and the authorities in that country. The plaintiff said so.

Patrick Charmant the defendants’ second witness confirmed it. He said:

“I know that my brother in 1960 went to Liberia about the prospects of establishing a timber company there. I got to know that the plaintiff was then Ghana Ambassador in Liberia and that he introduced my brother to various important persons in Liberia including I believe, the President. I see exhibit 2, (the statement of understanding). I see exhibits 3, 4 and 5 - permits for survey of three areas in Liberia. I would say that it was as a result of the introductions of the plaintiff that we were able to get these permits.”

While making this admission, however, the defendants’ second witness was careful to play down the effect of the plaintiff’s efforts vis-a-vis the defendants’ operations in Liberia by indicating that they got nothing as a result of their initial operations and they certainly did not get anything like the 3,000 square miles that the plaintiff had spoken of. Exhibit 8, a letter from the Secretary of Agriculture and Commerce of Liberia to the defendants, dated 6 January 1961, clearly demonstrates that the defendants did not get anything like 3,000 square miles of territory to exploit and exhibit 8 shows clearly that the defendants had not got very far by its date. I think it is generally true to say that up to 1962 the defendants had not made much profitable headway in their Liberian venture.

The Liberian company was set up on 20 June 1962 and the evidence discloses a pattern of unprofitable incursions into the rather sparse Liberian forests up to 1969. In that year they succeeded in entering the relatively richer National Forest. The defendants say that as a result of the plaintiff’s efforts on their behalf they barely managed to scrape out an existence of any sorts. The whole of that evidence, however, seems to me 

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not germane to the issue of whether or not the plaintiff and the defendants entered into a binding contract in December 1960 as the plaintiff contends. If there was such an agreement and if the plaintiff gave consideration for it by performing the acts he had undertaken to perform, then it matters not whether as a result of his efforts the defendants’ own efforts were crowned with success. That evidence merely goes to show that subsequent to the contract the defendants’ Liberian company did not fulfil the expectations of the defendants. That failure however cannot per se affect the matter of the contract.

Events of 1962

The first defendant wrote to the plaintiff, then at his new post in Cairo, informing him of the formation and registration of the Liberian company. In that letter the first defendant called on the plaintiff to pay up his allotment of five per cent in the company. Nothing was said therein as to a gift of these shares. Presumably the first defendant had in mind the shares he had first spoken of two years before. The plaintiff was called upon to pay up very soon. This is exhibit 3 dated 20 June 1962. The plaintiff’s reaction to this demand was explosive. In his reply of 6 September 1962 he did not mince his words as to what he thought of the demand and of the defendants for making it. He then hinted at legal action. That is exhibit K. It seems to me that the plaintiff’s reaction was justifiable. The demand for payment for the shares cannot be proper in the light of the offer of a gift of those shares made by the first defendant to the plaintiff in December 1960. Did this changed attitude of the defendants then indicate a decision not to carry out their promise of a gift? That question cannot be answered with certainty since the defendants chose to say nothing immediately in response to the plaintiff’s remonstrances in exhibit K. It seems to me that the defendants’ silence, at that material time is not without significance. Be that as it may, there seems to have been a hiatus in the exchanges as from September 1962 till 29 November 1967, the date of the plaintiff’s next letter to the defendants. The plaintiff had meanwhile reverted to private life in 1964, and rather surprisingly, there is no indication of any attempt by him to claim his rights as to delivery of the shares or as to appointment to office.

Events of 1967

The plaintiff’s next recorded move was made more than two years after he had left public service. That was the letter of 29 November 1967, exhibit L. In that letter the plaintiff reminded the defendants of their last letter of 6 September 1962 and then asked for a meeting “to thrash out this unfortunate misunderstanding.” In their reply the defendants stated that they were “sorry to hear that you consider there is still an unfortunate misunderstanding between us.” They thought any such misunderstanding had been settled. The first defendant however 

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agreed to a meeting at Christmas time in 1967 “to thrash out this whole matter once and for all” in the presence of the defendants’ second witness, Patrick Charmant the president of the Liberian company. The defendants insisted that the defendants second witness should be present at the discussion since he was the man on the spot in Liberia: see exhibits M and N dated 5 December and 19 December 1967 from the defendants to the plaintiff. Nowhere in this exchange of letters in 1967 did the defendants expressly deny the offer of a gift of shares to the plaintiff or the offer of office to him. Indeed in the face of the defendants’ letter of 2 December 1960 the defendants could not, consistent with honour, do so.

There was a meeting on Christmas Day of 1967 at Mim. The first defendant was there. The defendants’ second witness was there . The plaintiff was there. The Liberian company was discussed. Looking at the correspondence of 1967 exhibits, L. M and N. I have no hesitation in accepting the plaintiff’s evidence that at that Christmas Day meeting his grievances against the defendants were gone into. The defendants’ case that it was a social event merely cannot be countenanced. In exhibits M and N the defendants had written:

“I am wondering therefore whether it would not be a good idea for you to come up to Mim over the Christmas holidays so that we can thrash out this whole matter once and for all with my brother Patrick Charmant present? His presence is actually essential for reasons that I can explain to you when we meet”

And then later in exhibit H in reply to a further letter of the plaintiff dated 8 December 1967 and not in evidence:

“I hope you appreciate that I am not trying to wriggle (to use your own expression) out of settling this misunderstanding with you direct as the fact is that due to the almost impossible excessiveness and strain of business here in Ghana over the last few years, I was obliged to hand over totally everything connected with the Liberia business to my brother Patrick… It stands to reason therefore that I should not attempt to start discussing anything in connection with Liberia without my brother Patrick being present.”

That was the defendant’s stated position in December 1967, and yet Patrick Charmant would have me believe that when the three of them met on Christmas Day 1967 the “unfortunate misunderstanding” for which the meeting had been arranged was not discussed at all. This is the evidence of the first defendant’s witness in cross-examination:

“Q. I put it to you at the Christmas meeting the issues of the plaintiff’s appointment as directors and public relations officer were discussed?

A. No, they were not even raised.”

That evidence I reject as most improbable. I can well understand the defendants’ unwillingness to discuss the commitments they had made 

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to the plaintiff seven years earlier. Perhaps those commitments were made in the first flush of excitement at the prospect of profit in a new business venture and in their understandable anxiety to get a foothold in a new business setting by making use of the plaintiff’s influence for that purpose. It may well have been galling the defendants, seven years later, to be held to such commitments. The defendants’ reluctance to discuss the matter apart, is it reasonably likely that the plaintiff would not even have raised the matter?

No doubt the defendants could and did set a lavish table on Christmas Day but I doubt whether that attraction per se would have been sufficient inducement to the plaintiff to pay a social call on the defendants at that time of the year having regard to the recent strained relationship between them. I do not see how the plaintiff could have forgone this unique opportunity to thrash out the whole matter (to use the language of the first defendant) with the two brothers. No doubt the festive season is as good an occasion as any other, if not better, to thrash out misunderstandings between erstwhile friends.

The plaintiff says the misunderstanding was settled on agreed terms as to the shares, and his offices. It was agreed that he should be given the share certificate for five per cent shares free of charge and that he be appointed director and public relations officer at the agreed remuneration. The defendants’ answer to this is a complete denial. I have found that answer improbable. The plaintiff’s version is supported by the correspondence of 1967. I accepts that version as I believe the plaintiff and disbelieve the defendants’ second witness on that issue. I find therefore that there was an agreement between the plaintiff and the defendants on Christmas Day 1967 to settle the misunderstanding between them, and that that agreement is binding on the defendants for whatever force and effect it has at law. What did that agreement say?

According to the plaintiff :

“The first defendant and I met at Mim on Christmas Day in terms of exhibit N. I went with one Eshun of British Petroleum. I described the offers which I had accepted with the defendant. We reached a consensus. Patrick, the brother of the first defendant, said he would send me the share certificate when he got back and that he would contact Mr. Goodrich about the post of public relations officer and the directorship. He told me the post of public relations officer carried a salary of £G6,000 a year as a full time job and the directorship carried an allowance of £G600 a year.”

That was the settlement. The defendants never carried it out and the plaintiff therefore sued on 21 June 1968.

What then is the effect of this settlement of 1967? Firstly the plaintiff did not sue on that settlement. He sued for damages for breach of the contract of 1960 - the original contract. Secondly I do not think that the settlement of 1967 effectively discharged the defendants’ obligations under the 1960 agreement. That settlement was subject to performance 

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by the defendants of their part of it before it could be effective. I think therefore that the original contract still subsisted and the plaintiff could sue on it. I come now finally to consider fundamental issues of law raised for determination. These are as to illegality and limitation.

Limitation

I take first the matter of limitation. Clearly there is no merit in the argument that the claim is statute-barred. The obligation though arising in 1960 was not to be performed then but later when the plaintiff was available for the job. It was conditional. The first condition was satisfied in 1964 when the plaintiff left the public service. The other condition as to residence, in 1967 when the plaintiff appears to have settled in Ghana. Time then did not run from 1960, and the action, commenced in 1968, was not barred by the Limitation Act, 1623 (21 Ja. 1, c. 16), , which provides the limitation period of six years: see Koney v. Union Trading Co., Ltd. (1934) 2 W. A. C. A. 188.

Illegality

The defendants’ case in this area is that the plaintiff’s admitted status as his country’s diplomatic representative in Monrovia in 1960 debarred him from demanding or accepting any financial or other remuneration or reward for services rendered by him to a Ghanaian registered company in that capacity.

Any contract for reward for such services rendered is therefore illegal as being contrary to public policy and therefore void ab initio. Counsel for the defendants placed reliance on the case of Montefiore v. Menday Motor Components Co., Ltd. [1918] 2 K.B. 241. Admittedly the plaintiff wrote his first letter on behalf of the defendants on 6 December 1960 two days after he had accepted the offers of reward in the defendants’ letter of 2 December 1960. No doubt the defendants sought out the plaintiff because of his position in Liberia at that time. There is no evidence to support the plaintiff’s case that he was approached in his personal capacity rather than as the Ambassador of Ghana to Liberia, or that the plaintiff acted other than as such ambassador, or that the plaintiff had any influence arising from his personal as distinct from his official status. There is no evidence to support the plaintiff’s case that outside of the dignity and leverage attributable to his official status he otherwise had the ear of the Liberian authorities. In my judgment whatever influence the plaintiff was expected to bring to bear on the Liberian authorities on behalf of the defendants was largely, if not wholly, dependent on his status as an ambassador. Was the plaintiff then bound to go to the assistance of the defendants in the way he did and to the extent he did go? Admittedly, the plaintiff did smooth the path of the defendants in Liberia and thus enabled them to gain an impressive foothold there. Indeed they even managed to get a Liberian executive public officer on their board as secretary 

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and director. That is the politician Everest T. Goodrich who ran the Liberian company as acting president in the absence of Mr. Patrick Charmant. Mr. Goodrich, be it noted, is or was last year, Secretary of the Interior of the Government of Liberia having been in his turn administrative assistant to the President of that State for ten years up to 1968, and then Secretary for Defence, and Chairman of the County of Montserado (which contains Monrovia) for the True Whig Party. Mr. Goodrich was engaged in sorting out the problem of the defendants in Monrovia “at a very high level.” It was the plaintiff who put the defendants in touch with Mr. Goodrich.

One doubts whether the plaintiff could have done all that in a purely personal capacity. I think it much more probable that he did so in his official capacity. Since the rewards promised to the plaintiff were for services to be rendered by him in that capacity the issue of illegality clearly arises. The plaintiff however contended that his position as a contract officer was distinct from that of a career diplomat not only as to emolument and length of service but also as to his right to engage in enterprises for profit. There seems to be no dispute that a career diplomat is a public officer and a civil servant subject to the normal rules of the civil service as to the acquisition of private gain for the performance of a public duty enjoined by the obligations of public office. Is the case of a contract officer, whether in the foreign service or the home service, any different?

I start then from the plaintiff’s letter of appointment of 28 August 1959 - exhibit 1. Paragraph (1) states the plaintiff’s appointment “to the Commonwealth and Foreign Service of Ghana in the Al Grade.” Exhibit 1 sets out certain terms and conditions of service of that appointment and then states in paragraph

(7): “Your other terms and conditions of service will be as set out in sessional papers approved by the National Assembly, Foreign Service Regulations and other directions applicable to the members of the Ghana Commonwealth and Foreign Service.”

There’ is nothing in this letter of appointment which generally sets apart a contract officer, or the plaintiff in particular, apart from the matters of limited engagement and the absence of retiring award. The plaintiff’s letters of credence, exhibit A, does not seem to me to create any specially privileged category of ambassador for the likes of the plaintiff. Exhibit A seems to me to be in general form. Apart from the plaintiff’s own pronouncements there is not a shred of confirmatory evidence. In my view if the plaintiff’s position as a contract officer set him apart from the ordinary run of diplomats, with regard to the matter of private reward for the performance of an official duty there would have been some confirmatory evidence of that matter. Of such evidence there is none. I am not in any way impressed by the plaintiff’s assertions on this issue. I find no difficulty in rejecting those assertions as I find no difference proved to me between a contract officer and a career 

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diplomat on this matter. The defendants’ first witness, the foreign office official, was clear on the point.

He said there is no difference in status between the career officer and the contract officer and I agree with him.

In my judgment both types of appointment bring the incumbent under the purview of the Acts and regulations and international conventions which govern service in the Foreign Service. Reference was made to the Civil Service Act, 1960 (C.A. 5), and regulations made thereunder. I am satisfied upon a perusal of the Act that it applies to ambassadors of either variety as civil servants. Section 42 of the Act makes provision for its application to civil servants serving outside Ghana and the appropriate regulations made under the Act, L.I. 47 and L.I. 139 make special references to the posts of ambassador and high commissioner. Section 3 of the Civil Service Act, 1960 (C.A. 5) defines the term civil servant. Section 10 creates four categories in the service, A, B, C and D. An ambassador and a high commissioner are set down in the first schedule to the Civil Service Regulations, 1960 (L.I. 47), as holders of therefore a civil servant. category “A” posts. An ambassador is therefore a civil servant.

Is the plaintiff’s contract then illegal? In my view that contract was entered into upon an unlawful consideration. The plaintiff was required to use his official position to render services to the defendants by bringing his official influence to bear on a foreign government, to whose country he was accredited as an ambassador, for the betterment of the defendants’ business transactions and with a view, to the plaintiff’s own financial advantage. In sum, the purpose of the contract was that the plaintiff was to procure an advantage for the defendants in his official capacity and for a private reward. That in my judgment is clearly an unlawful purpose and contrary to public policy. The common law rule is that any action brought before our courts is subject to the common law rule of public policy. “Whenever the Courts of this country are called upon to decide as to the rights and liabilities of the parties to a contract, the effect on such contract of the public policy of this country must necessarily be a relevant consideration.” Per Lord Parker in Dynamit Actien-Gesellschaft v. Rio Tinto Co., Ltd. [1918] A.C. 292 at 302, H.L. Where the action is in contract and there is a foreign element involved, the rule as to public policy still applies over and above other systems of foreign law that may be applicable if the contract infringes the distinctive public policy of our law.

It was argued on behalf of the plaintiff that the proper law of the contract is Liberian law. I do not subscribe to that view as in my judgment the evidence does not support it. In any case, Liberian law was not pleaded or proved as the law requires of foreign law. The issue was not raised as to foreign law and no expert was called to testify as to that law. Counsel for the plaintiff appears to rely on the evidence of the defendants’ second witness who is an English trained lawyer, as some evidence of the law of Liberia. I find that the defendants’ second witness is not competent to prove that law as he is not an expert in that law qualified to express an opinion as to it. The defendants’ first 

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witness was never shown to be a practicing lawyer either in English law or Liberian law nor was it shown that he occupies a position or follows a calling in which he must necessarily acquire a practical working knowledge of the foreign law. He was not even shown to have an academic knowledge of that law and hat is not in any case a sufficient qualification. The defendants’ second witness in any case did not purport to speak of Liberian law. He merely spoke of the activities of Mr. Everest P. Goodrich. That evidence cannot be equated to a disquisition on Liberian law. I therefore feel justified in applying the Ghana common law of public policy to the contract.

In Montefiore v. Menday Motor Components Co., Ltd. (supra) Shearman J. said at p. 246:

“A contract may be against public policy either from the nature of the acts to be performed, or from the nature of the consideration. In my judgment it is contrary to public policy that a person should be hired for money or valuable consideration, when he has access to persons of influence, to use his position and interest to procure a benefit from the Government.”

This statement of principle, which I endorse, applies with even greater force in the case of a public officer who uses his official position to procure a business advantage for another in return for a private reward. Such an act is injurious to the public interest and tends to undermine the high standards which one is entitled to expect of public officials in a responsible position of authority or influence.

In my judgment the plaintiff’s contract, as well as the offer of a gift of five per cent shares are illegal transactions and therefore void. I do not see that it makes any difference that the performance by the defendants of their part of the bargain was put off to a date after the plaintiff had ceased to be a public officer. That fact cannot affect the substance of the matter since the contract was illegal at birth. In these circumstances I hold that the plaintiff’s action must fail and I dismiss it with costs. I award costs of N¢2,200 inclusive to the defendants.

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