Introduction
The doctrine of consideration is a foundational principle of the law of contract in Ghana, having been adopted from the English common law system. For a simple contract to be legally enforceable, each party must provide consideration, which is often described as the 'price' for which the promise of the other is bought. Essentially, a promise given for nothing in return is generally not binding. The Ghanaian courts have, over the years, interpreted and applied this doctrine in various factual scenarios. This assignment will outline the facts and legal holdings of five Ghanaian cases to illustrate the operation of the doctrine of consideration.
1. Kessie v Charmant [1973] 2 GLR 194
Facts: The plaintiff, Mr Kessie, introduced the defendant, Mr Charmant, to a timber merchant. This introduction led to a successful business relationship for the defendant. Sometime after the introduction had been made and the business relationship established, the defendant promised to pay the plaintiff a commission for making the introduction. The defendant subsequently failed to pay the promised commission, and the plaintiff sued to enforce the promise.
Holding: The High Court held that the defendant's promise to pay the commission was unenforceable due to a lack of consideration. The court reasoned that the plaintiff’s act of introducing the defendant to the merchant was done before any promise of payment was made. This meant the consideration was "past consideration." The rule is that past consideration is not good consideration. Since the act was not done in return for the promise, but preceded it, there was no legally binding contract.
2. Adomako v Adomako [1982-83] GLR 970 (CA)
Facts: The case concerned an agreement between two brothers. The defendant, who was living overseas, asked his brother, the plaintiff, to look after his children in Ghana. In return, the defendant promised to build a house for the plaintiff. The plaintiff agreed and cared for the children. The defendant subsequently built the house as promised, but later attempted to evict the plaintiff from the property, arguing it belonged to him. The plaintiff sued, claiming ownership of the house based on the agreement.
Holding: The Court of Appeal held that a valid and enforceable contract existed between the brothers. The plaintiff's act of looking after the defendant's children was determined to be valuable consideration for the promise to build the house. This case illustrates the principle that consideration must be sufficient but need not be adequate. The court will not assess the economic value of the childcare against the value of the house; as long as the promisee's act has some value in the eyes of the law, it is sufficient to support the contract.
3. Delle & Delle v Owusu-Afriyie [1962] 1 GLR 23 (HC)
Facts: The plaintiffs, a firm of solicitors, were owed fees by one of their clients for legal services rendered. The defendant, a third party, made an oral promise to the plaintiffs that he would pay the debt owed by the client. Relying on this promise, the solicitors did not take legal action against their original client to recover the debt. When the defendant failed to honour his promise, the solicitors sued him.
Holding: The High Court found in favour of the plaintiffs. It was held that the solicitors' forbearance from suing their client constituted good consideration for the defendant's promise to pay the debt. By agreeing not to exercise their legal right to sue the original debtor, the plaintiffs had provided something of value. This gave the defendant's promise the necessary legal force to make it a binding contract.
4. Oppong v Anarfi [2011] 1 SCGLR 556
Facts: This case involved a family dispute over property. The respondent had commenced legal proceedings against the appellant concerning the property. To bring an end to the litigation, the appellant made a promise to give a portion of the disputed family property to the respondent. In exchange for this promise, the respondent agreed to and did withdraw his lawsuit. However, the appellant did not fulfil his part of the agreement to transfer the property.
Holding: The Supreme Court of Ghana held that a binding settlement agreement had been formed. The court stated that the withdrawal of the lawsuit by the respondent was valuable consideration. The compromise of a legal claim, provided it is a genuine claim and not frivolous or vexatious, is recognised as good consideration. Therefore, the respondent’s act of giving up his right to pursue his court case was the price for the appellant's promise, making the agreement enforceable.
5. Klimatechnik (Ghana) Ltd v Skanska Jensen International [2005-2006] SCGLR 819
Facts: A subcontractor, Klimatechnik, was owed a significant debt by Skanska Jensen, the main contractor. Skanska offered to pay a smaller amount than the total debt owed, and Klimatechnik agreed to accept this lesser sum in "full and final settlement" of the entire debt. After receiving the part-payment, Klimatechnik sued Skanska for the remaining balance of the original debt.
Holding: The Supreme Court applied the long-standing common law principle from Pinnel's Case (1602) and affirmed in Foakes v Beer (1884). It held that part-payment of a debt, without more, is not good consideration for a promise to discharge the entire debt. The debtor is already contractually bound to pay the full amount, so paying a portion of it does not constitute fresh consideration for the creditor's promise to forgive the rest. Since Skanska had not provided any new benefit or consideration (such as paying earlier than required), the promise was not binding, and Klimatechnik was legally entitled to recover the balance.
Conclusion
The five cases discussed demonstrate the consistent application of the core principles of the doctrine of consideration by Ghanaian courts. From Kessie v Charmant, which confirms the rule against past consideration, to Klimatechnik, which upholds the traditional rule on part-payment of debts, the judiciary has maintained a close adherence to established common law rules. Cases like Adomako and Oppong show the court's willingness to find consideration in acts of practical benefit and the compromise of legal disputes, ensuring that genuine agreements are upheld. Together, these decisions provide a clear framework for understanding what constitutes an enforceable promise within the Ghanaian law of contract.
References
Adomako v Adomako [1982-83] GLR 970 (CA)
Delle & Delle v Owusu-Afriyie [1962] 1 GLR 23 (HC)
Kessie v Charmant [1973] 2 GLR 194
Klimatechnik (Ghana) Ltd v Skanska Jensen International [2005-2006] SCGLR 819
Oppong v Anarfi [2011] 1 SCGLR 556
