DIKYI AND OTHERS vs. AMEEN SANGARI INDUSTRIES LTD. [1989]DLHC2006

Date	1989-04-24
Suit No.
Citation No.	[1989]DLHC2006

KPEGAH J.

FRANK SAWYERR FOR THE PLAINTIFFS.

EBOW QUASHIE (CANN WITH HIM) FOR THE DEFENDANTS.

[1989]DLHC2006
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">DIKYI AND OTHERS<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AMEEN SANGARI INDUSTRIES LTD.<o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1992] 2 GLR 380<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 24 APRIL
1989<o:p></o:p>

</div>COUNSEL:<o:p></o:p>FRANK SAWYERR FOR THE PLAINTIFFS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

EBOW QUASHIE (CANN WITH HIM) FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGMENT OF KPEGAH J.<o:p></o:p>This ruling concerns an objection taken to the tendering of a
letter by the plaintiffs. The defendants are said to have leased from the
plaintiffs, 575 acres of land for 99 years at an annual rent of ¢500. The
plaintiffs sought, through meetings with the representatives of the
defendant-company, a review of the rent but failed to secure this because the
defendants would not agree to any such review.<o:p></o:p>Frustrated in their initiative, they decided to engage a solicitor
who wrote to the defendants reiterating the plaintiffs’ demand that the
agreement is unfair and there is a need to review the rent. This probing letter
was intended to excite the defendants to react favourably to the plaintiffs’
demands contained therein. The defendants in turn gave the letter to their
solicitors who replied to the plaintiffs’ claim and demand. This reply was
marked by the defendants’ solicitors “without prejudice.” The plaintiffs are
seeking to tender, not this reply, but the one written by their solicitor which
prompted the said reply. Mr. Ebow Quashie, counsel for the defendants, objected
on the ground that since their reply was marked “without prejudice” it operates
to make the original letter of the plaintiffs inadmissible; so also their
reply.<o:p></o:p>The point I am called upon to decide here is very simple; whether
where a party replies a letter and chooses to mark his reply “without
prejudice”, this precludes the original letter to which the said reply is being
given from being tendered in evidence by the party who wrote it. This consideration
will invariably involve the meaning and scope of the term “without prejudice.”
In the Dictionary of English Law (1965 ed.) by Earl Jowitt, the learned author
gave the definition and scope of the term which I adopt as my own. This is what
appears at page 1388:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The term is given to overtures and communications between parties
in the course of negotiation, or between litigants before action, or after
action, but before trial or verdict. The words import an understanding that if
the negotiation fails, nothing that has passed shall be taken advantage of
thereafter; so, if a defendant offers, ‘without prejudice,’ to pay half the
claim, the plaintiff must not rely on the offer as an admission of his having a
right to some payment.”<o:p></o:p>McTaggart v. McTaggart [1948] 2 All E.R. 754, C.A. was a case in
which on the hearing of a petition by a husband for divorce on the ground of
the wife’s desertion, the parties gave evidence of what transpired at an
interview which had taken place between them in the presence of the probation
officer of a magistrate’s court with a view to effecting a reconciliation.
There being a conflict of evidence between the parties as to what happened
before the probation officer, the judge admitted the evidence of the probation
officer who appeared on a subpoena. It was held that the evidence was rightly
admitted. Cohen L.J. at 755 gave his reasons as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“In my opinion, the commissioner had no alternative. The
privilege, if any, was the privilege of the parties, and they, having given
evidence on the point, could not assert the privilege. The result is none the
less unfortunate as the success of attempts at reconciliation might be
prejudiced if it became known that the probation officer could be called to
give evidence about them, and I desire to make it clear that, as at present
advised, I think that, if objection had been taken by the wife to the husband’s
giving evidence on this issue, the objection would have been valid. Such a
conclusion seems to me to be in accordance with the principle that discussions
and correspondence in negotiations if ‘without prejudice’ are privileged unless
the parties waive the privilege.”<o:p></o:p>And in his judgment, Lord Denning at 755 also gave us the scope of
the rule as follows: <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The rule as to ‘without prejudice’ communications applies with
especial force to negotiations for reconciliation. It applies whenever the
dispute has got to such dimensions that litigation is imminent.”<o:p></o:p>The rationale for the rule was nicely put in the case of La Roche
v. Armstrong [1922] 1 K.B. 485 at 489 by Lush J. t</main>