Full Judgment: Britnana Company Limited v Accra Metropolitan Assembly

SUIT NO.: HI/179/2025

Britnana Company Ltd – Plaintiff/Appellant
vs
Accra Metropolitan Assembly

DR. ERNEST OWUSU-DAPAA JA :

1. INTRODUCTION

[1].    My Lords, this appeal arises from the judgment of the High Court, Accra (General Jurisdiction, Court 9), delivered on 18^th November 2024, dismissing in its entirety the Plaintiff’s action as endorsed on the Writ of Summons, namely: (a) a declaration of breach of contract; (b) damages for breach of contract; (c) an order compelling the Defendant to pay the sum of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis, Ninety-Four pesewas (GH¢422,594.94) as an outstanding balance of the contract sum; (d) interest thereon; and (e) costs.

[2].    The appeal therefore turns on a fundamental juridical question rooted in the Plaintiff’s own endorsement: whether a claim framed squarely as non-payment of an outstanding balance of a written contract can survive where the claimant has unequivocally admitted that the entire contract sum has been paid, and thereafter seeks to sustain the same relief by recasting the claim as one founded on alleged additional works, oral instructions, certificates, or collateral arrangements not pleaded on the writ.

[3].    Stated differently, the appeal requires this Court to determine whether the reliefs endorsed on the writ—particularly the claim for Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis, Ninety-Four pesewas (GH¢422,594.94) as part of the contract sum—can lawfully be supported by evidence and argument that depart from the pleaded cause of action, and whether documentary certification, without a proved and pleaded contractual foundation, can transmute an admitted discharge of the principal contract into a continuing monetary liability. We shall maintain the original designation of Appellant as Plaintiff and Respondent as Defendant  in this rendition.

2. FACTUAL BACKGROUND

[4].    The dispute giving rise to this appeal originates from a construction contract entered into between the Plaintiff, Britnata Company Limited, and the Defendant, Accra Metropolitan Assembly, in respect of the construction of a public school facility within the Accra Metropolis.

[5].    The Plaintiff is a construction company registered under the laws of Ghana, with its registered office situate at House Number 807, Sowortuom High Street, Accra. The Defendant is a local government authority established by law, responsible for the administration of the Accra Metropolis, and clothed with capacity to sue and be sued.

[6].    In or about November 2011, the Defendant embarked upon a programme for the construction of school infrastructure within its jurisdiction. In furtherance of this programme, the Defendant invited bids for the construction of a three-storey, eighteen-unit classroom block with ancillary facilities at the Abavana Cluster of Schools, Kotobabi, Accra.

[7].    The Plaintiff submitted a bid pursuant to an invitation issued by the Defendant, and by a letter dated 22^nd November 2011, endorsed by the Director of Metropolitan Works, the Defendant awarded the Plaintiff the contract for the construction of the said classroom block at a total contract sum of Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65).

[8].    The Plaintiff accepted the offer and executed the requisite contract documents. The contract period was stated to be twelve (12) months, commencing from 28^th November 2011. The supervising authority under the contract was the Metropolitan Director of Works of the Defendant Assembly.

[9].    According to the Plaintiff, notwithstanding several challenges encountered during execution of the project—including delayed payments, alleged unreasonable delays in the preparation of payment certificates, and other forms of administrative neglect by officers of the Defendant—the Plaintiff duly performed its contractual obligations and completed the construction works. The project was subsequently handed over to the Defendant in or about September 2013.

[10].  The Plaintiff’s case is that, despite completion of the project and full performance of its obligations under the contract, the Defendant failed and/or refused to pay the outstanding balance of the contract sum. The Plaintiff contends that the unpaid balance amounts to Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94), being sums allegedly due under the last two payment certificates, namely:

(a)GH¢302,421.71 under the first certificate; and
(b) GH¢ 120,173.23 under the second certificate.

[11].  The Plaintiff further averred that repeated demands made on the Defendant to settle the outstanding indebtedness yielded no positive response, and that unless compelled by an order of the court, the Defendant would persist in refusing to honour its obligations, thereby threatening the Plaintiff’s continued commercial viability.

[12].  On 25^th June 2020, the Plaintiff commenced proceedings in the High Court, Accra, by writ of summons, claiming the following reliefs, reproduced verbatim as endorsed on the writ and Statement of Claim:

“WHEREFORE plaintiff claims as follows:

a) Declaration of breach of contract between the parties by the Defendant

b) Damages for breach of Contract

c) An Order directed at Defendant to pay the total sum of Four Hundred and Twenty-Two Thousand Five Hundred and Ninety-Four Cedis and Ninety-Four Pesewas (GH¢422,594.94)

d) Interest on relief (c) at Banking rate from the day it became due till date of final payment

e) Cost reflecting the cost of this suit.”

[13].  The Defendant filed a Statement of Defence in which it admitted the existence of the contract and the award thereof to the Plaintiff, but denied liability for any outstanding payments. The Defendant contended that the project in question was a USAID-funded and supported project, and asserted that the Plaintiff had been fully paid the contract sum, and indeed paid in excess thereof. The Defendant therefore denied any breach of contract and invited the court to dismiss the Plaintiff’s claims as unmeritorious and frivolous.

[14].  Following an application for directions pursuant to Orders 32 Rules 1 and 2 of C.I. 47, the trial court settled the issues for determination and reduced them to two principal issues, namely:

(a) whether or not the Defendant had paid the contracted sum; and
(b) whether or not the Plaintiff was entitled to the reliefs claimed.

[15].  At the trial, the Plaintiff called its Managing Director, Ebenezer Anane Addo, as its sole witness. He adopted his witness statement as evidence-in-chief and tendered, inter alia, the letter of invitation, letter of acceptance, contract agreement, payment certificates, and a demand notice addressed to the Defendant. The Defendant did not call any witness in rebuttal.

[16].  Upon conclusion of the trial, the High Court delivered judgment, from which the present appeal has been lodged, challenging, inter alia, the findings of fact and conclusions reached on payment, indebtedness, and entitlement to reliefs.

3. SUMMARY OF THE JUDGMENT OF THE HIGH COURT

[17].  The High Court (General Jurisdiction), delivered judgment after trial, in which the Plaintiff had testified through its representative and tendered documents including the letter of acceptance (Exhibit “B”) and the two payment certificates said to be outstanding (Exhibits “D” and “E”). The Defendant, although represented, elected not to call evidence, and the court proceeded to determine the matter on the basis of the Plaintiff’s evidence, emphasising that the Plaintiff’s burden to prove its case was not lightened by the Defendant’s election not to testify.

[18].  In its introductory portion, the trial court identified the claim as a contractual dispute arising from a construction contract awarded to the Plaintiff by a letter dated 22^nd November 2011 for the construction of a three-storey, eighteen-unit classroom block with ancillary facilities at Kotobabi, Accra, at a contract sum of Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65), and that the Plaintiff sued for alleged unpaid balance of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94), being sums allegedly due under Interim Payment Certificates Nos. 6 and 7.

[19].  The trial court recorded that, whilst the Plaintiff’s Application for Directions proposed several issues, the issues set down earlier by a differently constituted court were framed in broad terms. In the course of its analysis, the trial judge relied on the Supreme Court’s decision in DALEX FINANCE AND LEASING COMPANY LTD V NII KPAKPO OTI KOFI & ors (Civil Appeal No J4/02/2021, 7 July 2021) to criticise the formulation of an omnibus issue framed as whether the Plaintiff was entitled to its claim, quoting the Supreme Court’s admonition as follows:

“… We take this opportunity to deprecate the emerging wrong practice where in a civil case ‘whether or not the Plaintiff is entitled to the claim’ is put down as an issue for trial… The practice is a product of lazy work and a stop must be put to it…”

[20].  Upon reviewing the pleadings and the evidence, the trial court reformulated what it considered to be the single germane issue for determination, namely whether the Defendant had breached the contract by refusing to pay the remaining sum of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94). The court approached that issue as turning principally on proof of non-payment and whether the claimed certificates were referable to, and unpaid under, the pleaded contract sum.

[21].  On the law, the trial court set out the statutory framework on the burden and standard of proof under the Evidence Act, 1975 (NRCD 323), citing the relevant provisions on the burden of producing evidence and persuasion, and reaffirming that the standard in civil cases is proof on the balance of probabilities. The court also cited Ghanaian appellate authority on the principles that: (i) the party who asserts must lead credible evidence; (ii) proof of an averment requires more than repeating it on oath where it is capable of proof by positive evidence; and (iii) the assessment must be based on the totality of the evidence.

[22].  The trial court further accepted that, although the Defendant did not testify, the Plaintiff still had to establish a prima facie case entitling it to its reliefs. In that connection, the court cited authority to the effect that the failure of a defendant to testify does not automatically entitle a plaintiff to judgment, and the plaintiff’s burden remains.

[23].  Turning to the evidence, the trial court held that the documentary foundation of the contract sum was best captured in the letter of acceptance (Exhibit “B”) which stated the contract sum as Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65). The court placed reliance on the rule that where parties have reduced their agreement into writing, extrinsic evidence is not admissible to add to, vary, subtract from, or contradict the terms of the written instrument, citing Section 177 of NRCD 323 and authorities on the primacy of documentary proof where it conflicts with oral testimony.

[24].  The decisive factual pivot in the judgment was the court’s finding that, during cross-examination, the Plaintiff’s representative admitted that the contract sum of Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65) had been paid, and sought to explain the claim for certificates 6 and 7 as relating to “additional job” outside the pleaded case. The trial court treated this as a material departure from the Plaintiff’s pleaded position, holding in substance that the Plaintiff could not re-characterise the certificates as claims for “additional works” when its pleadings presented them as unpaid balances under the original contract sum.

[25].  The trial court considered that this departure undermined the Plaintiff’s case and concluded that the Plaintiff failed, on the balance of probabilities, to prove breach of contract by non-payment. The central conclusion of the judgment was expressed in the following terms:

“From the analysis of the evidence placed before the Court and the review of the authorities herein contained, I am satisfied that the Plaintiff was on the balance of probabilities not able to prove the Defendant has breached the contract between the parties since by the Plaintiff’s own showing the total contract sum… has been paid by the Defendant.”

[26].  In consequence, the High Court dismissed the Plaintiff’s claim in its entirety, and awarded costs of Twenty Thousand Ghana Cedis (GH¢20,000.00) against the Plaintiff in favour of the Defendant.

4. NOTICE OF APPEAL, COMPETENCY OF GROUNDS, AND APPELLATE REVIEW STANDARDS

[27].  The Notice of Appeal challenges the whole judgment on the grounds that:

1. the judgment is against the weight of the evidence;
2. the High Court failed to consider all the evidence adduced by the Plaintiff; and
3. the High Court erred in fact in holding that there was no basis for the sum of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas GH¢422,594.94, or that it had already been paid.

By the Notice of Appeal, the Appellant appeals against the whole judgment and, in its primary form, relies on the omnibus ground that “[t]he judgment is against the weight of the evidence,” with an express reservation that additional grounds would be filed upon receipt of the judgment and the record.

[28].  Apart from the omnibus grounds the latter grounds, in substance, are best understood as particulars and expansions of the omnibus complaint, and they are accordingly competently taken together as a single broad challenge to the trial court’s evaluation of the evidence and the inferences drawn therefrom.

[29].  The law is settled that an omnibus ground that a judgment is against the weight of evidence opens the entire record for review and entitles the appellate court to re-examine the evidence in order to determine whether the conclusions reached can be supported on the balance of probabilities. TUAKWA V BOSOM [2001–2002] SCGLR 61. This is not to convert the appeal into a fresh trial; rather, it reflects the appellate court’s duty to ensure that the decision under appeal is reasonably supported by the evidence as a whole, and that the trial court’s appraisal is not vitiated by material error.

[30].  Where the complaint is that a judgment is against the weight of evidence, the appellate court’s obligation is to undertake a re-evaluation of the record—oral, documentary, and the pleadings—so as to satisfy itself that, on a preponderance of probabilities, the judgment is justified. In this sense, an appeal of this nature is “by way of rehearing” on the record. TUAKWA V BOSOM [2001–2002] SCGLR 61.

[31].  That duty of review, however, is attended by restraint. An appellate court does not interfere with findings of primary fact merely because it might have reached a different conclusion on the printed record. Interference is warranted where the impugned findings are: (i) unsupported by the evidence; (ii) founded upon an improper approach to the evaluation of evidence or a failure to draw reasonable inferences; (iii) grounded on a wrong proposition of law which materially affects the conclusion; or (iv) inconsistent with crucial documentary evidence on record. KOGLEX LTD (NO 2) V FIELD [2000] SCGLR 175.

[32].  In applying these principles, the Court remains mindful that the onus rests on an appellant who invokes the omnibus ground to demonstrate, with reasonable clarity, the respects in which the trial court’s assessment is said to be flawed—whether by omission to consider material evidence, misapprehension of the evidence, or wrong inferences drawn from proved facts. DJIN V MUSAH BAAKO [2007–2008] SCGLR 686.  It is by these settled standards that the grounds of appeal taken together will be assessed.

5. CRITICAL ISSUES FOR THE DISPOSAL OF THE APPEAL

[33].  Having regard to the pleadings, the record of proceedings, the judgment of the High Court, and the grounds of appeal canvassed before this Court, we are of the considered view that the appeal turns on a limited number of closely connected issues, the resolution of which will be determinative of the appeal.

[34].  Although the Appellant has framed the grounds of appeal in broad terms, it is settled that an appellate court is not bound by the exact formulation adopted by the parties. The duty of the Court is to distil from the grounds and the record the real questions that arise for determination and which are capable of disposing of the appeal one way or the other. See DOMFE V ADU (1984–86) 1 GLR 653 (CA); FATTAL V WOLLEY [2013–2014] 2 SCGLR 1070.

[35].  Properly analysed, the appeal raises the following three interrelated issues:

1. Whether the trial court was right in finding that the Respondent had fully paid the original contract sum of Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65), and that no further sum remained outstanding under the written contract between the parties.
2. Whether, on the pleadings and evidence, the Appellant proved the existence of a valid contractual basis—whether by way of variation, collateral agreement, or otherwise—entitling it to payment of the additional sum of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94) claimed as outstanding.
3. Whether the trial court erred in law or in fact in rejecting the Appellant’s reliance on Payment Certificates Nos. 6 and 7, having regard to:the Appellant’s pleaded case; the consistency (or otherwise) between the pleadings and the evidence led; and the applicable principles governing departure from pleadings and the admissibility and probative value of documentary evidence.

[36].  These issues are not discrete silos. They overlap substantially, and together they encapsulate the central question whether the High Court’s conclusion—that there was no legal or evidential basis for the claim of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94)—can be sustained on the record and the applicable principles of law.

[37].  We shall therefore address the appeal on the basis of these issues, bearing in mind that where a trial court’s findings are shown to be unsupported by the evidence, founded on a misapprehension of material facts, or based on an erroneous application of legal principle, an appellate court is not only entitled but duty-bound to intervene. See TUAKWA V BOSOM [2001–2002] SCGLR 61; KOGLEX LTD (NO 2) V FIELD [2000] SCGLR 175.

6. RESOLUTION OF THE CRITICAL ISSUES

ISSUE 1:  Whether the Respondent fully paid the original contract sum of GH¢814,444.65 and the legal effect of admissions

[38].  The first issue concerns the correctness of the trial court’s finding that the Respondent fully discharged its payment obligation under the original written contract, the agreed contract sum being                                    Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65), and that no further sum remained outstanding thereunder.

[39].  It is common ground that the parties reduced their principal agreement into writing. The letter of acceptance dated 22^nd November 2011 and the executed contract documents fixed the contract price at Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65), and neither party pleaded any formal written variation altering that figure. The Respondent’s defence was explicit that it had paid the contract sum in full, while the Appellant’s Statement of Claim proceeded on the footing that an outstanding balance of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94) remained unpaid.

[40].  At the trial, however, a critical evidential development occurred during the cross-examination of the Appellant’s sole witness. The witness repeatedly confirmed, under oath, that the final contract sum agreed between the parties wasEight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65), and that this amount had in fact been paid. The record shows the following exchange:

Q: “And your final contract sum was Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65), is that so?”.

A: “That is exactly so, yes.”

That evidence was consistent with the witness’s earlier acceptance that the written contract (Exhibit B) governed the parties’ relationship in respect of the original scope of works.

[41].  More significantly, when pressed further on the issue of payment, the witness made an express admission as to full payment of the original contract sum. The record captures the following:

Q: “From this testimony, the contract sum of Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65) has been paid, is that correct?”
A: “Yes, we were asked to do additional job on the project and a letter to that effect was given to us requesting additional sum for the contract.”

Notwithstanding the explanatory reference to additional work, the admission as to payment of the original contract sum was clear, direct, and unambiguous.

[42].  The law on admissions is settled. An admission, whether contained in pleadings or elicited viva voce in the witness box, constitutes the best evidence against the party making it, and ordinarily relieves the opposing party of the burden of proving the admitted fact. See FYNN V FYNN & OSEI [2013–2014] 1 SCGLR 727 AT 738; IN RE ASERE STOOL; NIKOI OLAI AMONTIA IV (SUBSTITUTED BY TAFO AMON II) V AKOTIA OWORSIKA III (SUBSTITUTED BY LARYEA AYIKU III) [2005–2006] SCGLR 637.

In YAA SEMANHYIA & ORS V  ELIZABETH BIH & ORS  (2006) 5 M.L.R.G.  184 at 195, Dotse JA ( as he then was) stated:

       ” It is an acceptable practice that whichever party sets up an entirely different case from that which has been pleaded must fail and or bear the consequences.”

Smilarly, Mensa Boison JA in APPIAH V TAKYI (1982-83) 1 GLR 7 also took the view that:

” where there is a departure from pleadings at trial by one party whereas he other’s evidence accords with his pleadings, the latter’s is, as a rule, preferable.”

[43].  It is equally trite that where a party’s own testimony establishes a fact adverse to its pleaded case, the court is entitled—indeed bound—to take that admission into account in evaluating the balance of probabilities. In the present case, the Appellant’s witness not only accepted the contract sum pleaded by both parties, but further conceded that the Respondent had paid that sum in full. The trial court was therefore entitled to rely on that admission, notwithstanding the Appellant’s attempt to reframe its claim as one grounded in additional works. SEE KUSI & KUSI V BONSU [2010] SCGLR 60 AT 78–79; FOLI V AYEREBI [1966] GLR 627 (SC).

[44].  On the evidence as a whole, the admission was neither isolated nor accidental. It was consistent with the documentary foundation of the contract (Exhibit B) and with the witness’s repeated acceptance that the written agreement fixed the original contract price. The witness did not suggest that any portion of the Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65) remained unpaid; rather, his consistent position was that the dispute concerned Certificates Nos. 6 and 7, which he associated with additional works. That distinction, however, does not detract from the legal effect of the admission as to payment of the original contract sum.

[45].  Counsel for the Appellant has argued that the trial court ought not to have treated the admission as determinative, because the Appellant’s “real case” was not non-payment of the original contract sum but non-payment for additional works. That submission, however, reinforces rather than undermines the trial court’s approach. Once payment of the original contract sum was admitted, any entitlement to further sums necessarily depended on the establishment of a separate contractual basis beyond the written contract.

[46].  In these circumstances, the trial court did not err in law or in fact in holding that the Respondent had fully paid the original contract sum of Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65). Nor did it misdirect itself by placing weight on the Appellant’s own testimony. To have disregarded such clear admissions would itself have amounted to a misapprehension of material evidence.

[47].  We therefore affirm the finding that, as regards the original written contract, the Respondent discharged its payment obligations in full. The appeal cannot succeed on any footing that treats the sum of of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94) as an unpaid balance of the original contract price. The determinative question that remains is whether that sum was payable on some other legal basis, to which we now turn.

ISSUE 2  Whether the Appellant proved a valid contractual basis—by variation, collateral agreement, or otherwise—entitling it to additional payment of of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94).

[48].  Having concluded under Issue 1 that the Respondent fully paid the original contract sum of Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65), the determinative question under this issue is whether the Appellant established any distinct and legally cognisable contractual basis entitling it to the further sum of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94). The Appellant’s case at trial, as ultimately presented, rested on the assertion that this amount represented payment for alleged additional works and variations, said to have been undertaken pursuant to oral instructions and reflected in Payment Certificates Nos. 6 and 7.

[49].  The analysis must necessarily begin with the pleadings, it being elementary that parties are bound by the cases they set up therein. In its Statement of Claim, the Appellant pleaded a single written contract at a fixed contract price of Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65), pleaded completion of the works, and asserted non-payment of an “outstanding balance” of of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas GH¢422,594.94). Significantly, the pleadings did not allege: any contractual variation, whether written or oral; any collateral agreement separate from the principal contract; any particulars of additional works, including scope, valuation, dates, or authority; or any departure from the original contract price mechanism.

[50].  This omission was not a mere technical defect. A claim for payment beyond a fixed contract sum must be anchored in a pleaded juridical basis. It is settled law that a party who seeks to rely on variation, collateral agreement, or extra-contractual entitlement must plead it with particularity. Failure to do so is fatal, for evidence cannot be led to set up a case materially different from that pleaded. See ADOM V MARFO [2012] 38 MLRG 58; MAHAMA V ISSA [2002–2003] 1 GLR 94.

[51].  Notwithstanding the pleaded case, the Appellant’s sole witness, Ebenezer Anane Addo, sought during cross-examination at the trial to recast the claim by asserting that the sums represented payment for additional works allegedly instructed orally by officers of the Respondent. Yet, in his Witness Statement on Oath, the same witness unequivocally anchored the contractual relationship in the written contract. At paragraph 6 of his Witness Statement, he stated in substance that the works were undertaken pursuant to the governing contract document, tendered as Exhibit B.

[52].  Exhibit B—the Contract Document—is located at pages 28 to 85 of Volume One of the Record of Appeal (ROA). That document contains an elaborate and self-contained contractual regime governing communications, variations, valuation, and payment. In Section V (Conditions of Contract), Clause 6.1 expressly provides as follows:

“Communications between parties that are referred to in the Conditions shall be effective only when in writing. A notice shall be effective only when it is delivered.”

[53].  In our considered view, this clause inherently and intrinsically forecloses any possibility of oral modification of the contract. Variation of a contract necessarily presupposes communication between the parties. Where, as here, the contract expressly stipulates that all communications of contractual significance must be in writing, any theory of oral variation is rendered legally untenable. It is impossible to reconcile a claim of oral variation with a contractual framework that insists on written communication as a condition of effectiveness.

[54].  The contractual provisions on variation further reinforce this conclusion. Clause 39.1 provides in clear terms:

“All Variations shall be included in updated Programmes produced by the Contractor.”

Similarly, Clause 40.1 stipulates:

“The Contractor shall provide the Project Manager with a quotation for carrying out the Variation when requested to do so by the Project Manager. The Project Manager shall assess the quotation, which shall be given within seven days of the request or within any longer period stated by the Project Manager and before the Variation is ordered.”

Clause 40.2 then prescribes the valuation mechanism for variations by reference to the Bill of Quantities or, where applicable, new rates.

[55].  These clauses collectively establish a formal, structured, and documentary process for contractual variation. There was no evidence—documentary or otherwise—of compliance with any of these mandatory requirements. No written instruction, no updated programme, no quotation, no approval, and no valuation consistent with the contractual machinery were pleaded or proved. The Appellant’s theory of variation was therefore not merely unsupported; it was structurally incompatible with the governing contract.

[56].  The evidential weaknesses of the Appellant’s case were further exposed during cross-examination on the hearing dates in October 2023, where the sole witness was unable to identify:

• the specific officer of the Respondent who allegedly authorised the oral variation;
• the capacity in which such officer acted;
• the date or terms of the alleged oral instructions; or
• any contemporaneous written confirmation of the alleged additional works.

No attempt was made by the Appellant to subpoena any officer of the Respondent alleged to have authorised the supposed oral variation or additional works. This omission is telling. Where a party’s case hinges on the authority and conduct of a third party within the opposing institution, the failure to call or compel such a witness may properly attract an adverse inference.

[57].  The procedural history of the trial further undermines the Appellant’s position. At pages 419 to 425 of Volume Two of the Record of Appeal, the Appellant applied to the trial court for leave to recall its sole witness for the purpose of testifying specifically on alleged variations and additional works. The trial court refused the application, holding that the documents upon which the Appellant sought to rely were in its possession at all material times before the witness originally testified. The court accordingly declined to permit the reopening of the Appellant’s case.

[58].  Crucially, that interlocutory ruling was not included among the grounds of appeal, nor was it challenged in the instant proceedings. It therefore stands unimpeached. In a real sense, the ruling reinforces the trial court’s ultimate conclusion that the Appellant failed to prove any contractual variation or entitlement to additional payment. An appellate court cannot be invited, by indirection, to undo the effect of an unappealed interlocutory ruling.

[59].  The Appellant also sought to rely heavily on Payment Certificates Nos. 6 and 7 as evidence of entitlement. However, as the trial court correctly appreciated, payment certificates do not create contractual liability in vacuo. They operate within, and derive their efficacy from, the underlying contract. Where the contractual entitlement itself is disputed, the claimant must first establish the juridical foundation upon which the certificates rest. Certificates cannot be used to manufacture a contractual right that the governing agreement does not recognise.

[60].  The Appellant’s attempt to invoke oral instructions as a collateral agreement equally fails. A collateral contract, even where legally permissible, must be pleaded and proved. No such pleading existed in this case. Moreover, a collateral agreement cannot contradict the express terms of a written contract. To allow an oral collateral agreement authorising variation would directly contradict Clauses 6.1, 39, and 40 of the governing contract.

[61].  In the totality of the evidence, pleadings, contractual provisions, and procedural history, we are unable to find any error in the trial court’s conclusion that the Appellant failed to establish a valid contractual basis—by variation, collateral agreement, or otherwise—entitling it to payment of of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94) beyond the original contract sum. Issue 2 is accordingly resolved against the Appellant.

ISSUE 3-  THE EFFECT, AUTHENTICITY, AND EVIDENTIAL WEIGHT OF CERTIFICATES 6 AND 7

[62].  A preliminary but necessary question is whether Certificates Nos. 6 and 7 were properly in evidence before the trial court. This issue arises because the Appellant’s case, both at trial and on appeal, places substantial reliance on these certificates, said to represent a sum of of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94), while the Respondent contends in its appellate submissions that the certificates were never admitted into evidence but were merely annexed to an affidavit filed in a subsequently dismissed application to recall a witness.

[63].  With respect, the record does not support the Respondent’s contention. The trial proceedings disclose that on 20^th October 2023, the Appellant tendered documentary exhibits which were admitted by the trial court without objection. These included: Exhibit D — Certificate No. 6; and Exhibit E — Certificate No. 7.

Further, both the addresses of counsel and the High Court judgment itself proceed expressly on the footing that Exhibits D and E were before the court as admitted documentary exhibits. The learned trial judge referred to them as such and evaluated their probative value in the context of the Plaintiff’s claim.

[64].  We therefore proceed on the correct basis that Certificates Nos. 6 and 7 were duly admitted in evidence. The Respondent’s submission to the contrary appears to stem from a misapprehension of the record or a conflation of these exhibits with the later procedural episode concerning the unsuccessful application to recall the Plaintiff’s sole witness.

[65].  The dispute arises out of a construction contract governed by a structured and formalised certification regime. Payment under such a contract is not a matter of informal negotiation but is regulated by contractual mechanisms which, broadly stated, require that: the Contractor submits statements of value; the Project Manager assesses and determines the value of work executed; and the Project Manager issues payment certificates for sums contractually due, which the Employer is then obliged to honour within a stipulated period.

[66].  The legal consequence is that while a payment certificate may constitute strong documentary evidence of valuation, it does not operate as a self-contained or autonomous source of liability. Its probative force depends on whether it relates to work that is contractually authorised—whether under the original contract sum or pursuant to validly executed variations or compensation events recognised by the contract. Thus, a certificate may be authentic as a document yet legally ineffective to ground liability if the underlying entitlement has not been established.

[67].  At trial, the Appellant characterised Certificates Nos. 6 and 7 (Exhibits D and E) as Interim Payment Certificates prepared and signed by an authorised officer of the Respondent and urged the court to treat them as conclusive proof of indebtedness. The Appellant further contended that the Respondent’s attempt to question their authenticity amounted to an unpleaded allegation of forgery and that the Respondent’s failure to call the signatory—identified as the Metro Director of Works—should weigh against it.

[68].  The same line of argument is repeated on appeal. The Appellant submits that the certificates constitute documentary proof of additional works executed and of the Respondent’s obligation to pay the certified sum.

[69].  The Respondent, on the other hand, consistently maintained at trial and on appeal that:

1. the Appellant’s pleaded claim was for an outstanding balance of the original contract sum, not for additional works;
2. the Appellant admitted that the contract sum had been fully paid;
3. the certificates could not be relied upon to vary or enlarge the written contract through extrinsic evidence; and
4. in any event, the certificates did not, without more, establish any enforceable obligation.

In support of this position, the Respondent relied on the primacy of documentary contracts, the parol evidence rule under sections 25 and 177 of NRCD 323, and authorities such as WILSON V BROBBEY 1974) 1 GLR 250 at 253  and GORMAN V ANSONG [2012] 41 GMJ 113

[70].  It is important to distinguish carefully between two related but distinct concepts which are often conflated: that is authenticity — whether the document is genuine, that is, whether it was in fact issued or signed by the named authorised officer; and evidential weight and legal effect — whether, even if genuine, the document establishes a debt legally due.

[71].  On the question of authenticity, cross-examination of the Appellant’s sole witness was directed at highlighting anomalies and irregularities in the certificates. These included: first, chronological inconsistencies, particularly the fact that Certificate No. 7 bore an earlier date than Certificate No. 6; second,the absence of reference numbers and formatting differences when compared with earlier certificates; and lastly a suggestion, expressly put to the witness, that the certificates were fabricated by him rather than issued by the Respondent. The witness denied any fabrication and maintained that the certificates were prepared and signed by officers of the Respondent.

[72].  Crucially, no plea of fraud or forgery was raised in the Respondent’s pleadings, and no evidential foundation was laid to establish forgery. Had forgery been directly in issue, the applicable standard of proof under section 13 of NRCD 323 would have been proof beyond reasonable doubt. That standard was plainly not approached on this record.

[73].  The learned trial judge did not make a finding of forgery. Rather, the certificates were treated as insufficient to sustain the Plaintiff’s claim. On the evidence, therefore, Certificates Nos. 6 and 7 were not proved to be fabricated. For present purposes, we accept that they are authentic in the narrow sense that they were not shown to be forged.

[74].  The decisive question, however, is not authenticity but legal effect. What, if anything, do Exhibits D and E prove, given the pleadings, admissions, and contractual framework? Three considerations are determinative.

[75].  First, the Appellant’s own evidence places the certificates squarely in the realm of alleged additional works. The Appellant’s sole witness repeatedly admitted that the original contract sum had been fully paid and that the claim related to “additional works and fluctuations.” Once that concession was made, the certificates could no longer support a pleaded claim for an outstanding balance of the contract sum.

As resolved under Issue 2, no valid contractual foundation for variation or additional works was pleaded or proved. In the absence of such proof, the certificates could not, by themselves, create indebtedness.

[76].  Second, the general principle that documentary evidence is preferable to oral evidence does not avail the Appellant in this context. While documentary evidence is ordinarily to be preferred in the event of conflict, the point here is not a conflict between documents and oral testimony, but the absence of proof that the documents relate to a legally enforceable entitlement. Documentary form does not dispense with the need to establish the contractual basis of liability.

[77].  Third, although the internal inconsistencies and dating anomalies do not establish fabrication, they diminish the probative weight of the certificates as sole proof of a sum lawfully due. Where a fact is capable of being proved positively—such as authorised variation or additional works—it cannot be established by assertion supplemented only by documents whose provenance and contractual footing remain unclear, as articulated in ZABRAMA V SEGBEDZI [1991] 2 GLR 221 and MAJOLAGBE V LARBI [1959] GLR 190.

[78].  The learned trial judge’s reasoning on the certificates was concise but legally sound. Once the Plaintiff admitted full payment of the contract sum, the pleaded claim for an outstanding balance necessarily failed. The subsequent attempt to rely on the certificates as proof of additional works represented a departure from the pleaded case and was unsupported by proof of valid contractual variation.

[79].  We would, however, clarify that the certificates were not irrelevant; rather, they were insufficient to ground liability in the absence of proper pleading and proof of a valid variation or collateral agreement.

[80].  Accordingly, we hold that: first, Certificates Nos. 6 and 7 (Exhibits D and E) were admitted in evidence and are not shown to be forged; they are therefore authentic in the narrow sense. Secondly, their evidential weight is insufficient to establish contractual indebtedness in the sum of of Four Hundred and Twenty-Two Thousand, Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Pesewas (GH¢422,594.94), because the Appellant’s own evidence places them in the context of alleged additional works; also no valid contractual basis for additional payment was pleaded or proved; and finally internal anomalies diminish their reliability as sole proof of lawful indebtedness. In our view the certificates cannot, by themselves, enlarge the Respondent’s contractual liability beyond the original contract sum, which was admitted to have been fully paid. Issue 3 is accordingly resolved against the Appellant.

FINAL CONCLUSION AND ORDERS

[81].  This appeal invited the Court to interfere with the findings of the trial High Court on the basis that the judgment was against the weight of the evidence. Having subjected the entire record to a careful and anxious review, we are unable to agree.

[82].  The Appellant’s case, as pleaded, was that the Respondent failed to pay an outstanding balance on the original contract sum. On the evidence, however, the Appellant’s own sole witness unequivocally admitted that the contract sum of Eight Hundred and Fourteen Thousand, Four Hundred and Forty-Four Ghana Cedis and Sixty-Five Pesewas (GH¢814,444.65) had been fully paid. That admission was fatal to the pleaded claim and entitled the trial court to so find.

[83].  The Appellant’s subsequent attempt to sustain the claim on the basis of alleged variation or additional works was neither pleaded nor proved in accordance with the governing contract. The contractual regime expressly required written communication, formal valuation, and certification procedures for any variation. None was established. The evidential and procedural record further demonstrates that the Appellant had full opportunity at trial to advance such a case but failed to do so, and the interlocutory ruling refusing to reopen the case was not appealed against.

[84].  Although Certificates Nos. 6 and 7 were admitted in evidence and were not proved to be forged, their evidential weight was insufficient to ground contractual liability in the absence of a valid pleaded and proved foundation for additional payment. Authenticity alone could not enlarge the Respondent’s contractual obligations beyond the fully paid original contract sum.

[85].  In the circumstances, the learned trial judge cannot be faulted for dismissing the Plaintiff’s claim. The judgment was supported by the evidence on record, consistent with settled principles governing pleadings, proof, and contractual interpretation, and disclosed no error of law or fact warranting appellate intervention.

[86].  Accordingly, the appeal fails and is hereby dismissed in its entirety. The judgment of the High Court 18^th  November 2024 is affirmed. No order as to cost.

DR. RICHMOND OSEI- HWERE, JA

I have had the privilege of reading beforehand the judgment delivered by my esteemed brother Dr. Owusu-Dapaa, JA, and I am in full agreement with his analysis and conclusion. I have, however, taken the liberty of expressing my views on two fundamental issues relating to our civil procedure and the law of contract, respectively. These issues are germane to the determination of the instant appeal. The first is the legal effect of unpleaded facts which have been admitted in evidence without objection. The second question is whether a contractual term that suggests an agreement can only be varied in writing is legally effective. Such contractual terms are mostly referred to as “Anti-oral variation” clause, “Non-oral variation” clause or “No oral modification” clause.

The background facts leading to this appeal have been set out in the lead judgment, and I need not repeat them here. I shall, therefore, proceed to deal with the issues seriatim.

Pleadings are central to our adversarial system of civil litigation. The rule that parties are bound by their pleadings is deeply rooted in procedural fairness. Pleadings mark out the scope of a litigant’s case by concisely identifying the facts and issues in dispute. This gives a party reasonable information about an adversary’s claim against him. By this, an opposing party is given prior notice of the complaint against him to enable him to mount a defence.

Order 83 rule 3 of the High Court (Civil Procedure) Rules, 2004 (CI 47), the Interpretation section of our rules provides:

“Pleading” means the formal allegations by the parties to a lawsuit of their respective claims and defences with the intended purpose of providing notice of what is to be expected at the trial.”

In the case of Mohammed Odartey Lamptey v. Lands Commission & 3 Ors Civil Appeal No. J4/18/2015 dated 28th November 2018, the Supreme Court, in emphasizing the importance of pleadings in civil trials, had this to say through Yeboah JSC (as he then was):

“It should be noted that in civil proceedings commenced by writ of summons, the parties file pleadings to guide the court to know before the trial their respective cases and the evidence that may be led. Parties are therefore confined to their respective pleadings in the course of trials and would be permitted to lead evidence usually within the confines of their pleadings. See HAMMOND v ODOI [1982-83] 2GLR 1215 SC. Pleadings also assist the court to know the real issues and the applicable law to be applied to the facts. A judge is not permitted to suo motu raise a point of law and base his judgment on it. The court, like the parties, is also bound by the pleadings filed on record, and pleadings guide both the trial and appellate courts throughout the case. Before the often-quoted case of ESSO PETROLEUM CO. LTD v SOUTHPORT CORPORATION [1956] AC 218 HL was decided, SCRUTTON LJ had cautioned trial judges in the case of BLAY v POLLARD & MORRIS [1930] I KB 628 CA at 634 as follows:

“Cases must be decided on the issues raised on the record; and if it is desired to raise other issues, they must be placed on the record by amendment. In the present case, the issue on which the judge decided was raised by himself without amending the pleading and in my opinion, he was not entitled to take such a course.”

It is settled law that the jurisdiction given to any court to determine a suit is conferred by the pleadings and claims of the parties. See: Dam v J. K. Addo and Brothers [1962] 2 GLR 204; Hammond v Odoi [1982-83] 2 GLR 1215.

From the writ of summons and statement of claim, the suit was mounted on the clear and unmistakable basis that defendant/respondent herein owed the plaintiff/appellant herein an amount of Four Hundred and Twenty-Two Thousand Five Hundred and Ninety-Four Ghana Cedis and Ninety-Four Ghana Pesewas (GHC 422,594.94) being an outstanding amount payable by the respondent to the appellant as a result of the construction contract executed by the appellant. Appellant’s case has been that the contract sum was Eight Hundred and Fourteen Thousand Four Hundred and Forty-Four and Sixty-five (GH¢814,444.65). It is also Appellant’s case – which is borne out of the pleadings – that the unpaid amount of GH¢422,594.94 was based on two payment certificates (Certificates 6 and 7) prepared by the respondent’s Director of Works. The two payment certificates represent the amount of Three Hundred and Two Thousand, Four Hundred and Twenty-One Ghana Cedis and Seventy-one pesewas (GH¢302,421.71) and One Hundred and Twenty Thousand, One Hundred and Seventy-Three Ghana Cedis and Twenty-Three pesewas (GH¢120,173.23) respectively.

There is no controversy that appellant never averred in its pleadings that the liquidated claim is based on additional works performed on the contract upon an oral agreement of the parties. It is also not in contention that appellant’s assertion relating to the alleged additional works based on an oral agreement sprung up for the first time during trial when appellant’s representative was under cross-examination. Nowhere in the appellant’s pleadings was it indicated that Certificates 6 and 7 are for additional works carried out by the appellant.

Appellant has maintained that, in light of the evidence of additional works arising out of an oral agreement collateral to the written contract, which evidence was admitted without objection, the trial judge ought to have considered this evidence in her judgment.

Appellant’s case borders on the issue of unpleaded facts which have been led without objection. Unpleaded facts are facts that do not appear in the pleadings of a party, either in his statement of claim or statement of defence; and the general rule is that unless the pleadings are amended, the court will not allow a party to make claim or submissions on it. See: MURIEL ABREFI ODURO VRS ISAAC KWAME ACHEAMPONG CIVIL APPEAL NO. J4/32/2015 (dated 6TH DECEMBER, 2017).

In DAM v. J. K. ADDO AND BROTHERS supra at page 200, the Supreme Court held that:

“The function of pleadings is to give fair notice of a case which has to be met, so that the opposing party may direct his evidence to the issue disclosed by them. To condemn a person on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.”

It must, however, be noted that the ultimate rationale for the maintenance of any technical rules of procedure, such as ‘the rule against departure from pleadings’, can only be justified upon the basis of ensuring a fair trial. The Federal Court of Australia has attempted to identify the necessary elements of a fair trial in Sullivan & Ors v Triology Funds Management Ltd, [2017] FCAFC 153 at [264]:

“Elements of a fair trial

The following basic principles are relevant to this appeal:

1. A trial that departs from the pleadings is not necessarily an unfair trial. It is necessary to consider what issues were fairly fought between the parties at the trial: Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; 22 CLR 490 at 517 (Gould v Mount Oxide Mines); Vale v Sutherland [2009] HCA 26; 237 CLR 638 at [41] (Vale v Sutherland); Banque Commerciale SA (en liquidation) v Akhil Pty Ltd v New South Wales [2010] FCAFC 133; 189 FCR 356 at [51] (Betfair v NSW); NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98 at [26] (NRM Corporation v ACCC) …”

Appellant has placed great reliance on the Supreme Court case of Emmanuel Osei Amoako v. Standford Edward Osei (2016) Civil Appeal No. J4/3/2016 (delivered 11^th June, 2016) where both the trial court and the Court of Appeal rejected an important evidential fact of the Appellant at trial and on the first appeal, simply because the Defendant/Appellant did not include the said fact in his pleading before the commencement of trial, even though he put the fact before the trial Court during the trial. Upon further appeal to the Supreme Court, the decisions of the two lower courts were overturned. His Lordship Apau JSC stated at page 8 of the judgment as follows:

“It is unfortunate that the trial court and the Court of Appeal rejected the testimony of the appellant on the sale of the “trotro” bus to establish the business as an afterthought because it was not pleaded. The authorities are clear that once an unpleaded testimony is allowed to go in without any objection from the opposing side, the court cannot close its eyes to it or ignore such piece of evidence in determining the issues at stake, unless that piece of evidence was inadmissible per se …”

In Edward Nasser v. McVroom [1996-97] SCGLR 468, Acquah JSC (as he then was) stated that “the correct answer, in the light of the Evidence Decree, 1975 … is that where evidence in respect of an unpleaded fact had been led without objection, unless that evidence is inadmissible per se, the court is bound to consider that evidence in the overall assessment of the merits of the case.”

Axiomatic as this legal statement is, it only becomes applicable where the unpleaded facts which have been admitted without objection cannot be said to be inadmissible per se. Within the context of pleadings, particularly unpleaded facts, evidence is inadmissible if it causes irreparable prejudice to the other party that cannot be adequately compensated by costs or otherwise would be clearly unjust. It is worth remembering a foundational principle of law that if both parties disregard the pleadings and fight the case on issues chosen at trial, it would then be unjust for the parties to return to the pleadings as the governor of the trial. This may be done by inference from the way the trial was conducted, or, in a clear case, acquiescence by one party to the course adopted by the other. (see: Browne v Dunn (1893) 6 R 67 HL and Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-7).

In upholding this principle, it was held in the Australian case of Gould v Mount Oxide Mines Ltd. (In Liq.) (1916) 22 CLR 490 at 517, that:

“… pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.”

Also, in Betfair Pty Limited v Racing New South Wales [2012] HCA 12 at [51], a Full Bench of the High Court of Australia comprising Keane CJ, Lander and Buchanan JJ said:

“At trial, a party is entitled to have the opposing party confined to that party’s pleadings because the first party is entitled to come to trial to meet only the issues raised on the pleadings. However, if the first party does not seek to so confine the opposing party but allows the other party to raise other material facts and issues for the determination of the Court, then in our opinion the Court is permitted and possibly obliged to decide the proceeding on the further material facts and issues raised and addressed at trial: Banque Commerciale at 296-297; Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517. If it were otherwise, the party who has failed to plead all of the material facts or issues upon which the party’s case relies, but has brought those material facts or issues to the attention of his or her opponent at trial, would be denied natural justice if at the end of the trial the Court decided the proceeding on the pleadings without notice to that party. The first party in those circumstances would have been denied the opportunity to apply to amend those pleadings so as to formalise what was in fact addressed at the trial.”

The catch is that where material facts of a claim are not pleaded, the court will only allow the claim if it is satisfied that there will be no prejudice occasioned as a result, because both sides actively engaged with the issue at trial.

Also, evidence in proof of additional facts that explain pleaded facts is admissible, as it cannot be said to be prejudicial or unjust due to its consistency with the pleaded facts. In the Nigerian case of Eco Bank v Aghazu (2019) LPELR-46966 (CA), the Court of Appeal held that, if in the explanation of a fact pleaded, a witness begins to supply additional facts, evidence elicited through cross-examination on the additional facts supplied (even though not pleaded) is admissible.

The state of the Ghanaian jurisprudence is not settled that an unpleaded issue may never be the subject of investigation at trial, but that it will only be allowed where it would be unjust not to do so. Our fair trial protocols remain rooted in the notion that a party is not at liberty to depart from his pleadings and set out a new case. Barring the existence of any of the exceptional circumstances indicated above, unpleaded facts which have been admitted in evidence without objection ought to be ignored or rejected by the court in the determination of a matter. Section 8 of the Evidence Act, 1975 (NRCD 323) grants the courts the power to exclude legally inadmissible evidence which would be inadmissible if objected to by a party on its own motion. Akufo-Addo v. Catheline [1992] 1 GLR 377 expands the rule in Abowaba v. Adeshina (1946) 12 W.A.C.A. 18 that if evidence which is inadmissible goes on record without objection, the court can suo motu exclude it.

This explains why in Frabina Ltd v. Shell Ghana Ltd [2011] 1 SCGLR 429, the Supreme Court affirmed the rejection of an unpleaded fact admitted without objection when it held that:

“The essence of pleadings is, inter alia, not only to inform the opposing party of the case it will meet but also to put the opposing party on notice so as to prepare its case in response to the facts pleaded against it. In the instant case, the contention by the plaintiff that the payment of GH¢10,000 was a refundable deposit was not only an afterthought; it was also belated attempt to change its case from that of working capital to refundable deposit. That change would fly in the face of the known principles of pleadings; especially as provided in the High Court (Civil Procedure) Rules, 2004 (C.I. 47), Order 11, r 10(1).”

Order 11 Rule 10(1) of CI 47 provides:

“A party shall not in any pleading make any allegation of fact or raise any new ground or claim, inconsistent with a previous pleading made by the party.”

Relating the above exposition of the law to the instant appeal, it is apparent that since the appellant based its case on breach of the fixed sum contract in its pleadings, the respondent also put up its defence on the basis of the agreed contract sum. From the tone of the appellant’s own pleadings, the claim was for non-payment of the outstanding contract sum of GH¢814,444.65. By raising the case of ‘additional works based on oral variation of the contract’ for the first time during cross-examination, the respondent was not given the opportunity to plead facts or adduce evidence to rebut the fresh claim. In fact, there was no opportunity for both parties to actively engage with the issue. As far as this court is concerned, appellant’s unpleaded issue was a stark departure from its pleadings. Appellant should have sought leave of the court to amend its pleadings to reflect its position. Failure to do so constitutes a fundamental breach of the rules relating to pleadings. In the circumstances, adoption of the unpleaded issue by the trial court would have caused irreparable prejudice to the respondent. In this regard, I agree with the learned trial judge when she concluded at page 24 of her judgment that:

“From the pleadings, it is not in doubt that the claim for additional works is a new claim the Plaintiff was attempting to put forward and therefore giving in to the claim as afore-stated would amount to a significant change and/or departure from the Plaintiff’s claim of non-payment of outstanding (sic) of the contract sum of GH¢814,444.65.”

Having admitted during trial that the contract sum had been paid, there was no basis for appellant to make any claim. The trial judge reached a sound conclusion when she rejected the unpleaded facts and ultimately, the entire claim of the appellant.

I now turn my attention to a brief discussion on the legal effect of non-oral variation clauses in our contract law jurisprudence.

Non-oral variation clauses mandate that any amendments in a contract must be in writing and signed by both parties, invalidating informal or oral changes. They are very common in modern commercial contracts, the purpose being to preserve the integrity of contractual terms by preventing informal or inadvertent changes.

The policy benefits of non-oral variation clauses are not far-fetched. They promote certainty and help avoid false or frivolous claims which may emanate from an oral agreement. A non-oral variation clause prevents an attempt to undermine written agreements by informal means. It also makes it easier for organisations to police their internal rules regarding who has the authority to agree to contact variations.

Non-oral variation clauses in contracts are, however, seen as anathema to the freedom of parties to enter into a collateral contract by varying an existing contract in a manner that suits their intuition. Bearing in mind that the common law imposes no requirements of form in the making of a contract, parties may agree informally to dispense with an existing clause which imposes requirements of form in the modification of a contract. It is, thus, posited that parties can enter into an agreement in whatever form they choose to – they can do so in a document, by word of mouth or by conduct. Party autonomy is at the heart of the above principles.

These principles were amplified by Cardozo J in a well-known passage from his judgment in the New York Court of Appeals in Beatty v Guggenheim Exploration Co (1919) 225 NY 380, 387-388:

“Those who make a contract, may unmake it. The clause which forbids a change, may be changed like any other. The prohibition of oral waiver, may itself be waived. ‘Every such agreement is ended by the new one which contradicts it’ (Westchester F Ins Co v Earle 33 Mich 143, 153). What is excluded by one act, is restored by another. You may put it out by the door; it is back through the window. Whenever two men contract, no limitation self-imposed can destroy their power to contract again …”

There is a plethora of authorities in support of the rule espoused by Cardozo J in other common law jurisdictions. The rule has been applied in Australia in Liebe v Molloy (1906) 4 CLR 347 (High Court); Commonwealth v Crothall Hospital Services (Aust) Ltd [1981] 54 FLR 439, 447 et seq; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1. And in Canada, the case of Shelanu Inc v Print Three Franchising Corporation (2003) 226 DLR (4th) 577, para. 54 per Weiler JA, citing Colautti Construction Ltd v City of Ottawa (1984) 9 DLR (4th) 265 (CA), per Cory JA also applied the rule.

In a more recent case of Globe Motors Inc v TRW Lucas Variety Electric Steering Ltd [2016] EWCA Civ 396, the English and Welsh Court of Appeal decided that inclusion of a clause intended to prevent variation of the contract other than in writing would not prevent future variation of a contract orally or by conduct. TRW Lucas had entered into the Agreement with Globe Motors, which included, at Article 6.3, a provision that the Agreement “can only be amended by a written document which (i) specifically refers to the provisions of this Agreement to be amended and (ii) is signed by both Parties”.

The enforceability of the variation clause was actually a side-issue in the Globe Motors case supra – the decision was made orbiter – but its impact resonated in the English and Welsh contract law jurisprudence. All three judges commented on the issue because there were two conflicting Court of Appeal decisions. In United Bank Ltd v Asif [2000] EWCA Civ J0119-18, the Court of Appeal held that a contract containing an anti-oral variation clause could only be amended by a written document complying with that clause. Two years later, however, in World Online Telecom Ltd v I-Way Ltd [2002] EWCA Civ 413, the Court of Appeal had reached a different conclusion. Sedley LJ said that the question of whether the parties could override a clause excluding unwritten variations of an agreement was unsettled. He said that “in a case like the present, the parties have made their own law by contracting and can in principle unmake or remake it”.

It appears the UK Supreme Court has settled the controversy relating to the legal effect of the non-oral variation clauses in its jurisdiction. In Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24, the Supreme Court held that a no oral modification (NOM) clause is legally effective, effectively overturning the Court of Appeal’s ruling that a NOM clause did not prevent a valid variation by oral agreement. Lord Sumption justified the position of the Court when he stated at page 5 of the judgment that:

“10. In my opinion the law should and does give effect to a contractual provision requiring specified formalities to be observed for a variation.

11. The starting point is that the effect of the rule applied by the Court of Appeal in the present case is to override the parties’ intentions. They cannot validly bind themselves as to the manner in which future changes in their legal relations are to be achieved, however clearly they express their intention to do so. In the Court of Appeal, Kitchin LJ observed that the most powerful consideration in favour of this view is “party autonomy”: para 34. I think that this is a fallacy. Party autonomy operates up to the point when the contract is made, but thereafter only to the extent that the contract allows. Nearly all contracts bind the parties to some course of action, and to that extent restrict their autonomy. The real offence against party autonomy is the suggestion that they cannot bind themselves as to the form of any variation, even if that is what they have agreed. There are many cases in which a particular form of agreement is prescribed by statute: contracts for the sale of land, certain regulated consumer contracts, and so on. There is no principled reason why the parties should not adopt the same principle by agreement.”

There is a substantial body of recent academic writing in support of a rule which would give effect to No Oral Modification clauses according to their terms: see Jonathan Morgan, “Contracting for self-denial: on enforcing ‘No oral modification’ clauses” (2017) 76 CLJ 589; E McKendrick, “The legal effect of an Anti-oral Variation Clause”, (2017) 32 Journal of International Banking Law and Regulation, 439; and Janet O’Sullivan, “Unconsidered Modifications” (2017) 133 LQR 191.

Indeed, a non-oral variation clause does what it says on the tin – it provides the mode of modifying agreements thereby ensuring certainty of contractual terms. Giving effect to the clause will no doubt avert a situation where a person who is said to have orally or by conduct varied the contract does not necessarily have the authority to bind the contracting parties. Losing the certainty of such clauses is a high price to pay for the general freedom to contract, particularly in circumstances where the parties have agreed to waive that freedom.

In Ghana, the contractual relationships between parties are governed mainly by the common law contract law. There have been statutory reforms in the law on consideration, guarantees, third-party rights and frustration of contracts culminating in the Contracts Act of Ghana, 1960 (Act 25). It is observed that there is no provision in the Contract Act giving effect to non-oral variation clauses. Also, our courts have not extensively ruled on the enforceability of non-oral variation clauses. Given our common law heritage, Ghanaian Courts often consider precedents from other common law jurisdictions, such as the U.K., the U.S.A., South Africa, etc., when faced with legal questions or dilemma which have not been addressed directly by our laws. After all, by Article 11(1) of the 1992 Constitution, the common law forms an integral part of the laws of Ghana. In view of this, I am persuaded by the decision of the UK Supreme Court in the Rock Advertising Ltd case supra, that a No Oral Modification (NOM) clause is legally effective.

Reliance on the Rock Advertising Ltd dictum is also motivated by the position of the Ghanaian courts on the sanctity of contracts. Our courts have always given effect to agreements entered into voluntarily by parties of full age and capacity. In Oppong vs. Anarfi (2011) SCGLR 556, it was held as follows:

“The law was settled that a party of full age and understanding would normally be bound by his signature whether he read and understood it or not, particularly in the absence of the requisite evidence that the other party had misled him. Therefore, where parties had embodied the terms of their contract in a written document, extrinsic evidence or oral evidence would be inadmissible to add to, vary, subtract from or contradict the terms of the written instrument. Thus, mere negligence in not reading a document before signing could not amount to the defence of non-est factum.’’

In the Oppong case supra, the Supreme Court gave a stamp of approval to the English authority in the case of Printing and Numerical Registering Co. vs. Sampson (1975) L R 19 EQ 462 at 507, where Sir George Hessel said:

“If there is one thing more than another which public policy requires, it is that men of full age and understanding shall have the utmost liberty of contracting and that their contracts when entered into freely and voluntarily shall be held sacred and enforced by courts of justice.”

Under Ghanaian law, where parties have freely and voluntarily entered into a lawful agreement, the court is bound to uphold and enforce such a contract unless it is vitiated by fraud, mistake, illegality etc. By the non-oral variation clauses parties have not agreed to the fact that oral variations are forbidden but that they are invalid. The clause does not outlaw collateral contract. What it says is that any collateral contract must be written. Due to its legal effect, Ghanaian court have no option that to enforce them.

In the instant case, Article 6.1 of the contract (Exhibit A) provides:

“Communication between parties that are referred to in the Conditions shall be effective only when in writing. A notice shall be effective only when it is delivered.” [emphasis mine]

Article 1.1 (the definition section of the contract) also provides:

“A Variation is an instruction given by the Project Manager which varies the Works.”

The combined effect of these clauses suggests in no uncertain terms that the contract can only be varied in writing. For all intent and purposes, Article 6.1 of the Contract is a non-oral variation clause.

The effect is that assuming appellant’s unpleaded testimony that there was an oral variation of the contract had been adopted by the trial court in the determination of the case, the palpable breach of Article 6.1 would have rendered the evidence unreliable. This is because, in my considered opinion, the court was bound to give effect to the non-oral variation clause in Article 6.1.

It is for the above reasons that the appeal fails and is accordingly dismissed in its entirety.