G. B. KANDEWEN vs. FELICIA AKYAA [2016]DLCA4755

Date	2016-01-21
Suit No.	CIVIL APPEAL NO: H1/174/2014
Citation No.	[2016]DLCA4755

KUSI-APPIAH J.A. – PRESIDING

ADUAMA OSEI J.A.

KWEKU GYAN J.A.

MAJOR (RTD.) T. A. DARTEY FOR PLAINTIFF/RESPONDENT

DAVID BONDORIN FOR DEFENDANT/APPELLANT

[2016]DLCA4755
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													<main id="main" class="content" style="min-height: 60rem" >G. B. KANDEWEN&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>(DEFENDANT/ APPELLANT)<o:p></o:p>vs.<o:p></o:p>FELICIA AKYAA <o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO: H1/174/2014&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 21ST JANUARY,
2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MAJOR (RTD.) T. A. DARTEY
FOR PLAINTIFF/RESPONDENT<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">

DAVID
BONDORIN FOR DEFENDANT/APPELLANT<o:p></o:p>

KUSI-APPIAH
J.A. – PRESIDING, ADUAMA OSEI J.A., KWEKU GYAN J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>KUSI-APPIAH, ( J.A.):<o:p></o:p>The
central issue in this appeal is whether a promise to pay debt already incurred
by another is enforceable in the absence of express consideration.&nbsp; There is also the question whether the
defendant having failed to pay the lesser sum is entitled to benefit from the
plaintiff’s agreement to accept the lesser sum.&nbsp;
I will refer to the parties in the manner they appeared at the court
below.<o:p></o:p>The
facts grounding this appeal as can be ascertained from the pleadings and
evidence of the plaintiff are that in 1997 the plaintiff paid an amount of four
thousand five hundred dollars ($4,500) to defendant’s son, Ahmed Baba for a
passport, visa and ticket to enable her nephew travel outside the country.&nbsp; When the defendant’s son could not honour his
promise of organizing the trip, plaintiff caused his arrest at the airport when
he was about to leave the country.<o:p></o:p>Upon
his arrest, Ahmed Baba pleaded to be taken to his father at Tema where the
defendant gave an undertaking to refund the money and his son released.&nbsp; Defendant’s undertaking was tendered as
Exhibit ‘A’.<o:p></o:p>According
to the plaintiff, when the defendant failed to pay (as promised), she reported
the case to Forces Sergeant Major who invited him.&nbsp; There, she was persuaded to accept two
thousand, one hundred and fifty dollars ($2,150.00) as full settlement of the
debt on condition that the defendant pays within one month.&nbsp; The plaintiff’s undertaking was also tendered
as Exhibit ‘B’.&nbsp; However, the defendant
once again defaulted and as at the time of instituting this action, he had only
paid six hundred dollars ($600.00).<o:p></o:p>On
20th November, 2001, the plaintiff by her writ of summons therefore
brought an action against the defendant for the following reliefs:<o:p></o:p>“a.
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Recovery of three thousand, nine
hundred dollars ($3,900.00) being balance outstanding on a debt incurred by
defendant’s son Ahmed Baba and which sum the defendant gave an undertaking to
pay but has failed to pay same.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Interest on the said amount at the
current bank rate with effect from 1st April, 1999 till date of
judgment.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; General damages.”<o:p></o:p>The
defendant resisted the plaintiff’s claim by his statement of defence filed on
19th December, 2001.&nbsp; The
defendant in his evidence denied that the note he gave on 27th
March, 1999 was an undertaking to pay the money.&nbsp; He testified that he is a pensioner and it
was understood that he would pay the money when the son sent the money.&nbsp; He stated that his son has made two
installment payments totaling six hundred dollars ($600.00) in April and
December 1999 through him, but has not made further payments because of job
difficulties.<o:p></o:p>The
defendant further stated that even though the plaintiff agreed to take
US$2,150.00 as full settlement, no time limit was fixed for payment.&nbsp; He contended that the plaintiff having
und</main>