Foto-X Ltd v Driver And Vehicle Licensing Authority (DVLA) (J4/21/2026) [2026] GHASC 54 (29 July 2026)

pg. 1 FOTO – X v. DVLA - JUDGMENT IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A.D. 2026 CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING) PROF. MENSA-BONSU (MRS.) JSC ASIEDU JSC DARKO ASARE JSC ACKAAH-BOAFO JSC CIVIL APPEAL NO. J4/21/2026 29TH JULY, 2026 FOTO – X LTD. ………… PLAINTIFF/RESPONDENT/APPELLANT VRS DRIVER AND VEHICLE LICENSING ……….. DEFENDANT/APPELLANT/ AUTHORITY (DVLA) RESPONDENT JUDGMENT MAJORITY OPINION ACKAAH-BOAFO JSC: i. Overview: pg. 2 FOTO – X v. DVLA - JUDGMENT [1] The Driver and Vehicle Licensing Authority (DVLA) is an important agency in Ghana, providing essential services to the public. Any citizen who wishes to drive a vehicle, motorcycle, or any other motorised conveyance must be licensed by the DVLA. Once licen sed, a vehicle must also be registered and/or authorised by the DVLA before it can lawfully be used on Ghanaian roads. From the record before us, the Appellant, Foto -X, entered into an agreement with the DVLA to design, install, maintain, and service a system for the personalisation and production of temporary and permanent driver’s licences, following an advertisement for competitive tender. [2] The parties' initial contract was executed in 2006. According to Foto -X, before that contract expired, they entered into a second contract dated 2nd August 2012. This second contract was, in essence, an extension of the 2006 agreement. The dispute in this case concerns payment for work performed by Foto -X under the first contract, whether the 2012 contract was validly executed, and the proper interpretation of certain terms of the agreement. [3] At its core, this dispute is a commercial one concerning the allocation of certain costs and the entitlement to specific revenues arising from a longstanding arrangement for the production of drivers' licences. It has, however, assumed a statutory dimensio n by reason of the classification of the materials used in the production of those licences. It has also acquired a procedural aspect arising from the manner in which the Court of Appeal determined one facet of the case. Consequently, this appeal raises is sues relating to the construction of the relevant statutory provisions, the interpretation of the parties' written agreements, questions of pleading and the right to a fair hearing, as well as the principles governing the formation of contracts. I shall consider each of these issues in turn. [4] The High Court, presided over by Dadzie J (as she then was), ruled in favour of Foto -X. However, the first appellate court (Coram: Oppong, Kyei -Baffour and pg. 3 FOTO – X v. DVLA - JUDGMENT Archer JJA) reversed that decision. The proceedings before the High Court arose from the consolidation of two suits, which were tried together: Suit No. CM/BDC/0369/2016, relating to the 2006 contract, and Suit No. CM/TBDC/0047/16, concerning an arrangement alleged to have been concluded in 2012. Both suits arise out of a commercial relationship between the Plaintiff/Respondent/Appellant (Foto - X), an information technology enterprise, and the Defendant/Appellant/Respondent (DVLA), the statutory authority re sponsible for the licensing of drivers and vehicles in Ghana, as stated above. Aggrieved by the decision of the Court of Appeal, Foto -X is now before this Court, the final court of the land, seeking a final determination of the matter. [5] For convenience, I shall, throughout this judgment, refer to the Plaintiff/Respondent/Appellant, Foto -X, as the Appellant, and to the Defendant/Appellant/Respondent, the Driver and Vehicle Licensing Authority (DVLA), as the Respondent. ii. Material Background Facts: [6] The 2006 contract came into operation in April 2007. Under its terms, Foto -X undertook to design, supply, install, and operate an integrated system for the processing and production of driver's licences. The record indicates that Foto -X invested approximat ely US$2.77 million in the project, and the system was commissioned in time to serve twenty -six licence centres across the country. The commercial basis of the arrangement was a revenue-sharing model under which Foto- X was entitled to eighty per cent of the net revenue generated from licence processing fees, while the DVLA retained the remaining twenty per cent and assumed responsibility for collecting those fees. [7] The terms of the 2006 engagement were embodied in a consulting contract tendered in evidence as Exhibit C, to which several annexes were attached. Two of pg. 4 FOTO – X v. DVLA - JUDGMENT those annexes are of particular significance in this appeal. Annex D, described as the Financial Proposal, set out the financial assumptions underpinning the arrangement. Annex E comprised the Minutes of Contract Negotiation relating to meetings held on 7 and 21 June 2006. The relationship between these two documents lies at the heart of one of the grounds of appeal. [8] Three issues arising from the 2006 contract fall for determination by this Court. The first is whether the PVC cards used in the production of drivers' licences constitute value books within the meaning of the applicable financial regulations, such that their cost is to be borne by the State and reimbursed to the Appellant, or whether they are merely consumable items for which Appellant must bear the cost. The second issue is whether the revenue-sharing arrangement was based on four cost components or only three. The third is whether the Court of Appeal was entitled to found part of its decision on an estoppel which, according to the Appellant, had not been pleaded. [9] The issues arising from the alleged 2012 agreement rest on a different factual foundation. The Appellant contends that, in 2012, the parties entered into a fresh ten- year contract on the same eighty -twenty revenue -sharing basis, involving an estimated investment of approximately US$9.98 million. It maintains that it duly performed its obligations under that agreement, that the DVLA acknowledged the existence of the contractual relationship in its dealings with third parties, and that the DVLA subsequently repudiated and frustrated the contract. The DVLA, on the other hand, contends that no concluded contract was ever formed in 2012 because the parties failed to reach agreement on essential terms. [10] As indicated above, the two suits were tried together by the High Court, Commercial Division, Accra. The learned trial judge found substantially in favour of the Appellant, Foto-X. The court held that the PVC cards constituted value books and ordered their reimbursement in the sum of US$490,674.01. The court also accepted pg. 5 FOTO – X v. DVLA - JUDGMENT that the 2006 contract comprised four revenue components. Furthermore, it found that a concluded contract had come into existence between Foto-X and the DVLA in 2012. [11] On appeal, the Court of Appeal took a different view on nearly every material issue. It held that the PVC cards were merely consumables, the cost of which was to be borne by Foto-X. It reduced the number of revenue components from four to three and further held that no concluded contract had come into existence in 2012. In the course of its reasoning, the court relied, in part, on the doctrine of estoppel. The overall effect of its judgment was to reverse the decision of the trial court and enter judgment substantially in favour of the DVLA, while maintaining two monetary awards in favour of Foto-X and setting aside the award of costs. Specifically, the first appellate court maintained “ the order for recovery of an amount of Fifty -Three Thousand Seven Hundred and Eighty-Eight Ghana cedis and Eighty -Eight pesewas (GH¢53,788.88) together with interest” and “the award for the recovery of an amount of Six Thousand Six Hundred and Twenty-Five Pounds and Ninety -Eight Pence (£6,625.98) together with the applicable commercial interest”. It is against that reversal that Foto-X now appeals. iii. The Instant Appeal: [12] The Appellant, Foto -X, being dissatisfied with the judgment of the Court of Appeal, has filed the instant appeal. The Appellant appeals against the decision and prays this Court to set aside the judgment of the first appellate court on the following grounds: Grounds of Appeal: i. The learned Court of Appeal erred in law and in fact when it held that PVC Cards are not value books and set aside the findings of the High Court. ii. The Court of Appeal erred and occasioned a miscarriage of justice when it raised a legal issue of estoppel by conduct and representation when the Defendant/Appellant raised no such grounds in their Notice of pg. 6 FOTO – X v. DVLA - JUDGMENT Appeal. iii. The learned appellate court misapplied the principles governing contractual interpretation , particularly in failing to give effect to the intention of the parties by holding that there were three main components instead of four components in the 2006 contract. iv. The Court of Appeal erred in law and in fact in holding that there was no contractual or binding contract between the parties in 2012, despite clear evidence of mutual assent, performance by the Plaintiff, and written confirmation by the Defendant acknowle dging the existence of the contract. v. The judgment is against the weight of evidence. See pages 97-98 of the ROA, Volume 15. [13] My Lords, by the above five grounds of appeal, the Appellant challenges the decision of the first appellate court on both interpretative and procedural grounds, together with the omnibus ground. I do not propose to address the grounds in the order in which they appear in the Notice of Appeal. Rather, it is more convenient to follow the internal logic of the dispute by first addressing the two questions of construction arising under the 2006 contract, followed by the procedural complaint, then the issue relating to the 2012 contract, and finally the omnibus ground. [14] Reduced to their essentials, the grounds are these. The first is that the Court of Appeal erred in holding that the PVC cards are ordinary consumables rather than value books within the meaning of the Financial Regulations. The second is that the Court of Appeal wrongly based part of its decision on an estoppel that the DVLA, the Respondent had never pleaded. The third is that the Court of Appeal erred in holding that the 2006 contract comprised three revenue components instead of four. The fourth is that t he Court of Appeal erred in holding that no concluded contract came into pg. 7 FOTO – X v. DVLA - JUDGMENT existence in 2012. The fifth is the omnibus ground, namely, that the judgment is against the weight of the evidence. iv. Issues for determination: [15] My Lords, although the Appellant has predicated this appeal on five grounds, it is my considered view that the appeal can be conveniently determined on a single issue, namely: whether the Court of Appeal erred in law and misapplied the facts when it set aside the judgment of the trial court in the consolidated actions and reversed many of the orders made therein. v. Submissions of Counsel: [16] The Appellant, Foto -X, advanced arguments in support of the grounds of appeal, which may be summarised as follows. First, it contended that the Court of Appeal erred in law in holding that PVC cards did not constitute value books. Second, it argued that the Court of Appeal occasioned a miscarriage of justice by raising and determining the issue of estoppel sua sponte without first affording the parties an opportunity to address the court on the issue. Third, it maintained that the Court of Appeal misapplied the principles governing contractual interpretation by holding that the parties had agreed on three, rather than four, revenue components under the contract. Fourth, it challenged the finding of the Court of Appeal that no binding contract had been concluded between the parties in 2012. Lastly, it relied on the omnibus ground that the judgment of the Court of Appeal was against the weight of the evidence. [17] On the first ground of appeal, Foto-X, the Appellant submits that the PVC cards used in the production of driver's licences constitute "value books" under Regulation 209 of the Financial Administration Regulations, 2004 (L.I. 1802). It contended that the cards are official government instruments used in the dischar ge of a public function, are linked to financial and institutional records, and are the property of the Republic pg. 8 FOTO – X v. DVLA - JUDGMENT of Ghana. Relying on Regulations 210 and 211, the Appellant further submitted that the Controller and Accountant-General's Department (CAGD) has statutory oversight over the production and acquisition of value books. Consequently, the Plaintiff was entitled to reimbursement for PVC cards purchased in the performance of the contract, provided the requisite approval had been obtained from the Controller and Accountant-General. [18] The Appellant also relied on the conduct of the parties and the institutional treatment accorded to the PVC cards as further evidence that they were regarded as value books. It pointed to the Defendant's letter of 18 May 2010 introducing the Plaintiff to the Controller and Accountant -General for reimbursement of the cost of PVC cards, as well as the more than twenty-two reimbursements subsequently made. The Appellant further r elied on the Auditor -General's report (Exhibit E), which classified the PVC cards as value books and recommended that their cost be processed through the CAGD. The Appellant emphasized that the report was accepted by all the parties, including the Controller and Accountant -General, who is expressly empowered under Regulation 209(2)(f) of L.I. 1802 . Consequently , the Appellant maintained that the trial court correctly found that PVC cards were value books and that the Court of Appeal erred in disturbing that finding. [19] The Appellant's second ground of appeal challenged the Court of Appeal's decision to raise and rely on estoppel by conduct and representation on its own motion, even though the Defendant had not pleaded that issue in its Notice of Appeal. Foto-X argued that this constituted a miscarriage of justice and violated Rule 8(7) of the Court of Appeal Rules, 1997 (C.I. 19), which mandatorily prohibits an appellant from arguing grounds not contained in the notice of appeal without leave of the court. Relying on section 42 of the Interpretation Act, 2009 (Act 792), the Appellant contended that the mandatory nature of the rule rendered it impermissible for the Court o f Appeal to entertain arguments on an unpleaded ground. Citing Kwabena pg. 9 FOTO – X v. DVLA - JUDGMENT Agyei v. The Republic , Crim. Appeal No. H2/04/2019 delivered 29 April, 2019, the Appellant further submitted that although an appellate court may examine the evidence under an omnibus ground, the appellant bears the burden of demonstrating that the judgment is against the weight of the evidence. In the present case, the Defendant neither pleaded nor adduced evidence in support of estoppel by conduct, having abandoned its specific grounds of appeal and relied solely on the omnibus ground. [20] The Appellant further contended that the Court of Appeal erred in relying on section 26 of the Evidence Decree, 1975 (NRCD 323), to hold that estoppel, being a form of presumption, need not be pleaded. Foto -X argued that this reasoning was flawed and that, if accepted, the Plaintiff would equally have been entitled to rely on estoppel by conduct in light of the Defendant's consistent reimbursement of PVC card costs. Relying on Social Security Bank v. Agyarkwa [1991] 2 GLR 192 and Moorgate Mercantile Co. Ltd. v. Twitchings, [1977] AC 890 the Appellant maintained that estoppel by conduct applies only where it is just to invoke it and that fairness requires the party against whom estoppel is raised to be afforded an opportunity to address the surrounding circumstances — an opportunity the Appellant was denied because the issue was never pleaded. [21] On the third ground of appeal, the Appellant contended that the Court of Appeal erred in its interpretation of the 2006 Contract by holding that the revenue - sharing arrangement comprised three, rather than four, components. The Appellant maintained that th e net revenue from the driver’s licence project was to be apportioned among four components, namely, New Licence, Photograph, Form, and Eye Test, whereas the Defendant recognised only three, excluding Form. [22] The Appellant relied on the distinction between Annex D, which identified three components in the Financial Assumptions, and Annex E, comprising the minutes of the negotiation meetings, which expressly identified four cost items, pg. 10 FOTO – X v. DVLA - JUDGMENT including Form valued at GH¢2,000.00. The Appellant argued that Annex E, being the later instrument relating to the same contractual arrangement, should prevail over the earlier provision in accordance with the principle leges posteriores priores contrarias abrogant. It was further submitted that, in construing a contract, the court may correct an obvious mistake in the written expression of the parties’ intention. According to Foto-X, the two sets of negotiation minutes dated 7 and 21 June 2006, which expressly identified and assigned values to the four components, demonstrated the parties’ deliberate intention to include Form as a revenue component. The Appellant relied, inter alia, on East v Pantiles (Plant Hire) Ltd [1982] EGLR 111, Wilson v Wilson (1854) 5 HLC 40 at 66, Homburg Houtimport B.V. v Agrosin Ltd [2003] 2 WLR 711, and North Circular Properties Ltd v Internal Systems Organisation Ltd (Ch.D., unreported, 24 October 1984), in support of the proposition that a court may, by construction, correct a clear mistake appearing on the face of a contractual instrument. [23] On the fourth ground, Foto-X argued that the Court of Appeal erred in holding that no concluded or binding contract existed between the parties in 2012. The Appellant relied principally on Exhibit S, the contract executed on 2nd August 2012 after the Publi c Procurement Authority (PPA) approved sole sourcing at a cost of US$3,600,000.00. The Appellant contended that Exhibit S contained all essential elements of a valid and enforceable contract, including the subject matter, estimated investment value of US$9 ,976,209.50, ten -year duration, and the parties’ respective obligations. The Appellant further relied on Exhibit T, the Statement of Understanding executed on the same day, which it argued merely acknowledged that the signed contract was concluded but open to an addendum dealing with outstanding matters. According to Foto -X, the language of Exhibit T contemplated future operational refinements rather than an absence of consensus on the essential terms of the agreement. pg. 11 FOTO – X v. DVLA - JUDGMENT [24] The Appellant also relied on the subsequent conduct of the parties as evidence of the existence of a concluded contract. The Appellant referred to the Defendant’s correspondence with the PPA and UT Bank (GH) Ltd, including Exhibit N, which expressly acknowledged the existence of the August 2012 contract, as well as Exhibit U dated 13th February 2013 , which referred to issues outstanding since the parties signed the contract. It also relied on the series of sub -addenda and the procurement and inspection of customised equipment, including the Factory Acceptance Test in Exhibit EE, as demonstrating that the parties acted upon the agreement. Foto -X therefore submitted that the Defendant’s conduct constituted compelling evidence of a binding contract. In the alternative, the Appellant argued that, even if no concluded written contract was found to exist, t he parties’ conduct established a binding agreement by conduct, which the Court, in the interests of justice and equity, ought not to disregard. [25] On the fifth and omnibus ground of appeal, Foto -X contended that the judgment of the Court of Appeal was against the weight of the evidence. The Appellant argued that the Court of Appeal failed to properly consider the Auditors’ Reports and the reasoning u nderpinning them, particularly the interpretation of the term “value book” as a possible term of art in accountancy. It further submitted that Exhibit CE13 was admitted into evidence without objection or cross -examination of the court-appointed expert, and that the Court of Appeal failed to consider the parties’ conduct and performance under the 2012 contract. In particular, the Defendant had participated in the inspection and approval of the customised machines, was aware that the Plaintiff had incurred expenses in manufacturing and shipping the equipment to Ghana, and had requested the installation of new equipment to address the backlog of licences. The Appellant also relied on the principle that a party’s failure to challenge material evidence presented by an opposing witness may amount to an admission of the truth of that evidence. pg. 12 FOTO – X v. DVLA - JUDGMENT [26] Based on all of the foregoing, the Appellant prays this Court to allow the appeal, set aside the judgment of the Court of Appeal, and restore the judgment of the trial High Court. In the alternative, the Appellant contended that, should the Court find that no binding 2012 contract existed, then, in the interests of justice and equity, the Defendant should be ordered to reimburse the Plaintiff for all expenditure incurred under the contract from which the Defendant had benefited, including the cost of the customised equipment, which was usable only for the production of Ghanaian driver’s licences. Respondent’s Counsel Submission: [27] The Respondent, the DVLA, for its part, filed its Statement of Case dated 22nd December 2025 pursuant to Rule 15(4) of C.I. 16. Its principal submission was that, unlike the trial court, which had conflated the 2006 and 2012 matters, the Court of Appeal correctly distinguished between them and that its conclusions were supported by the evidence on record. [28] The DVLA advanced three preliminary arguments. First, it contended that the Appellant’s grounds of appeal were defective under Rule 6(2)(f), (4) and (5) of C.I. 16, as they were narrative and argumentative and failed to particularise the alleged errors of law and fact. Second, it submitted that the appeal raised only three substantive issues, namely, whether PVC cards were consumables or value books; whether Forms constituted part of the revenue streams subject to the 80/20 sharing ratio; and whether a contract was concluded in 2012. Third, it argued that the appeal was wholly without merit and ought to be dismissed. [29] In support of its position that the defective grounds of appeal ought to be struck out, the Respondent relied on Dahabieh v. SA Tarqui & Brothers [2001-2002] 1 GLR 171 and Zabrama v. Segbedzi [1991] 2 GLR 221. pg. 13 FOTO – X v. DVLA - JUDGMENT [30] On the value-book issue, the Respondent argued, based on Regulations 209(1) and (2) of L.I. 1802, that PVC cards do not qualify as value books. It submitted that the examples listed in the Regulations, such as receipt documents, cheque books, requisitions and bill books, possess intrinsic financial value and, when improperly used, may facilitate access to public funds or goods. In contrast, blank PVC cards are merely valueless plastic substrates until personalised and, even after being printed with driving licence information, do not represent money or function as receipts, vouchers, cheques, or payment authorities. Relying on the ejusdem generis principle, the Respondent contended that the general expression “any other form” in Regulation 209(2)(f) must be limited to items similar in nature to the specifically listed instruments, which PVC cards are not. [31] The Respondent contends that the Appellant’s evidence disclosed an irreconcilable inconsistency regarding responsibility for PVC cards and other consumables. According to the Respondent, while the Plaintiff’s Managing Director admitted that the Plaintiff ( now Appellant) was the sole investor responsible for providing the necessary hardware, software, equipment, funding, logistics, and consumables, he also asserted that consumables, described as “value books,” did not form part of the Appellant’s investment and ought to have been paid for by the Controller and Accountant -General’s Department (CAGD). The Respondent argued that the Appellant could not simultaneously maintain both positions or claim reimbursement for costs that it was contractually bound to bear. [32] The Respondent further submitted that the court -appointed auditor’s classification of PVC cards as “value books” was based on an erroneous characterisation of the agreement as a Public -Private Partnership. It argued that the 2006 contract neither classified PVC cards as value books nor imposed any obligation on the DVLA or the CAGD to reimburse the cost thereof. Accordingly, imposing such pg. 14 FOTO – X v. DVLA - JUDGMENT an obligation solely on the basis of the auditor’s characterisation would amount to impermissibly rewriting the parties’ agreement. [33] On the issue of the number of revenue components, the Respondent submitted that the Court of Appeal correctly held that the 2006 Contract provided for three revenue streams — licence, photograph, and eye test — and not four. The Respondent relied principally on the terms of the Contract, particularly Annex D, which expressly sets out the financial assumptions underlying the commercial arrangement and identifies only those three revenue components as subject to th e 80%-20% revenue- sharing ratio. [34] According to the Respondent, Annex E, on the other hand, merely records discussions on cost items and serves a different purpose from Annex D. The Respondent contends that the fact that four cost items were mentioned in Annex E did not transform statutory forms procured from the CAGD, for which DVLA accounted to the CAGD, into a contractual revenue stream for Foto X. [35] According to Counsel, the evidence, including the testimony of the Plaintiff’s Managing Director under cross -examination, confirmed that the agreed revenue components were licence, photograph, and eye test, and that the subsequent introduction of the “cove r note”, formerly referred to as the “Form”, represented a change to the original arrangement. [36] The Respondent further submits that the trial court erred in applying the “later in time” rule to treat Annex E as superseding Annex D, since that principle applies to conflicting statutory provisions of equal authority and cannot be mechanically applied to annexes forming part of the same private contract, executed on the same day. [37] The Respondent submitted that neither the contra proferentem nor the “obvious mistake” doctrines advanced by the Appellant assisted Foto -X’s case. It pg. 15 FOTO – X v. DVLA - JUDGMENT argued that the contra proferentem rule applies only where contractual language is genuinely ambiguous and capable of bearing two reasonable meanings. Annex D, however, clearly identifies three revenue components, and any alleged ambiguity arises only from wrongly treating Annex E as a competing revenue provision. In any event, since the financial proposal in Annex D originated from Foto -X, the rule, if applicable, would operate against Foto-X as the maker of the instrument. [38] The Respondent further contended that the “obvious mistake” doctrine requires both a clear error on the face of the instrument and certainty as to the correction required. Neither condition was satisfied, as there was no apparent error in Exhibit C or Ann ex D, nor any clear evidence that the parties had agreed to include Forms as a revenue stream. Accordingly, the Court of Appeal correctly upheld the primacy of Annex D and the contractual terms and declined to treat statutory forms as a fourth revenue stream based on the negotiation minutes. [39] On the issue of estoppel, the Respondent submitted that estoppel under section 26 of the Evidence Act, 1975 (NRCD 323), is a statutory presumption distinct from common law estoppel and must be specifically pleaded. According to Counsel, once the facts givi ng rise to the statutory estoppel are established, the relevant matter is conclusively presumed against the party who made the representation, and the Court need only determine whether the statutory requirements have been satisfied on the evidence. Relying on In Re Suhyen Stool; Wiredu & Anor v Agyei [2005-2006] SCGLR 424, the Respondent argued that a party who, by its representations, induces another to act in a particular manner may be precluded from resiling from those representations where it would be unjust to do so. [40] In the present case, the Respondent submitted that the representation arose from the Appellant’s own Financial Assumptions in Annex D, wherein the Appellant represented that it would bear the costs of all technical services and, in return, receive pg. 16 FOTO – X v. DVLA - JUDGMENT 80% of the net revenues. Accordingly, the Respondent contended that the Court of Appeal committed no procedural error in applying section 26 to the facts established on the record, since appellate courts are entitled to apply the correct law to facts established by the evidence, even where the issue was not expressly raised in the grounds of appeal, pursuant to Rule 6(7)(b) of C.I. 16 and the analogous Rule 8(8) of C.I. 19. [41] On the fourth ground of appeal, concerning the 2012 contract, the Respondent submits that the Court of Appeal rightly held that no concluded or binding contract came into existence. The Respondent relies on Exhibit T, the Statement of Understanding execut ed contemporaneously with Exhibit S on 2nd August 2012, which expressly stated that the signed contract “is not a finality” and contemplated a subsequent addendum to address outstanding issues. According to the DVLA, this demonstrated the absence of consensus ad idem and negated any intention to create legal relations. [42] The Respondent further submits that the outstanding matters, identified during the cross -examination of the Plaintiff’s Managing Director, included significant discrepancies in the contract price; the provision of detailed financial proposals and technical specifications; the duration of the contract; ownership and custody of equipment and materials; and various implementation and reporting requirements. Relying on May & Butcher Ltd v The King [1934] 2 KB 17, NTHC v Yaa Antwi [2009] SCGLR 117, and Asare v Antwi [1975] 1 GLR 16, the Respondent maintains that an agreement to agree on essential matters in the future is unenforceable, that acceptance must be absolute and unqualified, and that specific performance cannot be granted in respect of an inchoate agreement. [43] The Respondent further submits that the substantial disparity between the PPA-approved ceiling of US$3,600,000.00 and the sum of US$9,976,209.50 stated in Exhibit S raises serious issues as to the contract’s compliance with the statutory pg. 17 FOTO – X v. DVLA - JUDGMENT procurement framework. Relying on Attorney-General v Faroe Atlantic Co Ltd [2005- 2006] SCGLR 271 and Republic v High Court (Waterville) [2013] 1 SCGLR 319, the Respondent argues that the courts will not enforce public contracts that circumvent mandatory procurement requirements. [44] On the fifth and omnibus ground, the Respondent submitted that the judgment of the Court of Appeal was balanced, evidence-based, and correct. Relying on Tuakwa v. Bosom [2001-2002] SCGLR 61 and other authorities, the DVLA argued that an appellate court, when faced with a challenge that a decision is against the weight of the evidence, must review the entire record and draw its own conclusions, while respecting the trial judge’s advantage in observing the witnesses. It was submitted that the Court of Appeal properly applied this approach by distinguishing between the 2006 and 2012 transactions, re -examining the contractual documents, and assessing the audit reports against the primary evidence and admissions on record. [45] Counsel submitted that the first appellate court correctly identified instances where the High Court had relied excessively on the audit findings, including the award of GH¢9,067,120.82 without accounting for payments already made to Foto -X, which had rec eived its contractual 80% share and, in some instances, had been overpaid. The Court of Appeal also identified overpayments amounting to GH¢319,525.00, which ought to have been refunded to the DVLA. [46] Regarding renovation costs, the Respondent submitted that the evidence established that the renovation of the first 20 sites formed part of the Appellant’s contractual obligations and that the relevant costs had already been paid, with some of the invoices originating from its sister company, Med -X Ltd. The Respondent therefore maintained that the judgment of the Court of Appeal was neither one-sided nor punitive, as it rejected unjustified claims, ordered the recovery of overpayments, recognised legitimate expenditure incurred by Foto -X, and declined to enforce the pg. 18 FOTO – X v. DVLA - JUDGMENT incomplete and procurement-non-compliant 2012 contract. Based on all of the above, Counsel accordingly prays this Honourable Court to dismiss the appeal. vi. The Law and Analysis: [47] My Lords, by contending that the judgment is against the weight of the evidence, the Appellant has invited this Court to undertake a fresh evaluation of the entire body of evidence on record. In essence, we are urged, as the final appellate court, to place ourselves in the position of the trial court and the first appellate court and determine whether we would have arrived at the same conclusions as the Court of Appeal. Put differently, an appeal on the ground that a judgment is against the weight of the ev idence calls upon this Court to re -examine the record to ascertain whether the findings and conclusions reached by the trial court and the Court of Appeal are supported by the evidence adduced, or whether those conclusions are, in fact, perverse. This Cour t is, therefore, entitled, and indeed obliged, to examine the record for itself and arrive at the conclusion that is properly supported by the law and the evidence. [48] It is also important to note that where the trial court and the first appellate court have arrived at concurrent findings of fact, a settled principle of restraint applies. In such circumstances, this Court will decline to disturb such concurrent findings unless they are shown to be unsupported by the evidence or to have been vitiated by a manifest error of law or fact that has occasioned a miscarriage of justice. That principle was stated by this Court in Achoro v Akanfela [1996-97] SCGLR 209 and reflects the sound principle that findings of fact upon which the two courts below have agreed ought not to be lightly overturned. [49] In the present case, however, the principle of restraint has no application. The trial court and the Court of Appeal did not arrive at concurrent findings. Rather, they reached opposing conclusions on nearly every material issue in the case. Where the pg. 19 FOTO – X v. DVLA - JUDGMENT courts below have diverged in this manner, there are no concurrent findings for this Court to protect. The Court is, therefore, at large to undertake its own evaluation of the record and determine which of the two competing judgments is supported by the evidence. [50] A further matter concerns the applicable standard of review. The two principal issues arising from the 2006 contract — namely, the classification of the PVC cards and the construction of the revenue components — are questions of law. The interpretation of a statutory expression and a written contract are matters for the Court. In determining such questions, this Court owes no deference to the conclusions of the court below and is entitled to substitute its own view. [51] The estoppel ground raises a different question. It concerns procedural regularity and the right to a fair hearing and falls to be determined by the settled rules governing pleadings and the issues which a court may properly adjudicate upon. The remaining ground, that the judgment is against the weight of the evidence — requires a review of the entire evidence in the manner prescribed for a rehearing court in Tuakwa v. Bosom (supra). [52] It is within this framework that I proceed to consider the grounds of appeal, beginning with the classification of the PVC cards. My Lords, before dealing with the main issues, I wish first to address the Respondent’s contention that the Appellant’s grounds of appeal are defective under rules 6(2)(f), (4) and (5) of C.I. 16, on the basis that they are narrative and argumentative and fail to particularise the alleged errors of law and fact. [53] In my view, in considering the adequacy of grounds of appeal which challenge the admission, rejection, or evaluation of evidence, it is necessary to have regard to three key considerations, namely: pg. 20 FOTO – X v. DVLA - JUDGMENT i. the evidence admitted or rejected by the trial court; ii. the basis or purpose for which the evidence was admitted or rejected; and iii. the manner in which the evidence was evaluated by the court below in arriving at its judgment or ruling. [54] These considerations must, however, be viewed within the broader framework of the applicable rules of court governing the preparation and formulation of grounds of appeal. In the present case, those requirements are prescribed by C.I. 16. The grounds must therefore be formulated in a manner that sufficiently identifies the alleged errors of law or fact complained of and enables the opposing party and the appellate court to understand the case being advanced on appeal. See also S. A. Brobbey’s book “Essentials of the Ghana Law of Evidence” 1, pages 529-530. [55] I agree with the Respondent that, as a general principle of appellate practice, a ground of appeal must not be vague, ambiguous, or couched in broad and general terms. A ground which fails to disclose with reasonable clarity the error complained of would be incompetent. For instance, a purported ground stating, “I appeal against the judgment because it does not make sense to me,” would plainly be insufficient, as it neither identifies the error complained of nor provides any basis upon which the appellate court can properly consider the complaint. [56] In Ofosu Addo v. Graphic Corporation [2011] SCGLR 355, where a ground of appeal was framed as “The Court erred in granting an application which was manifestly incompetent,” this Court held that the formulation was vague and overly general and, consequently, offended rule 6(5) of the Supreme Court Rules, C.I. 16. [57] In the instant case, however, I am unable to accept the Respondent’s contention 1 Published by Wrenco (Publications) Ltd, Accra, 2014. pg. 21 FOTO – X v. DVLA - JUDGMENT that the Appellant’s grounds of appeal are so vague or insufficiently particularised as to render them incompetent. Although the grounds may, in parts, be couched in narrative or argumentative terms, the substance of the complaints and the errors alleged against the decision of the court below can, in my view, be readily discerned from a fair reading of the grounds as a whole. The alleged errors of law and fact are sufficiently identifiable, and neither the Respondent nor this Court is left in any real doubt as to the matters being challenged on appeal. Indeed, the Respondent, in my view, understood the grounds sufficiently well to file a copious statement of case for our consideration. [58] In the circumstances, I am satisfied that the grounds of appeal, read as a whole, substantially comply with the requirements of rule 6 of C.I. 16. I would, accordingly, reject the Respondent’s objection to the competence of the Appellant’s grounds of appeal. [59] To reiterate, the positions of the parties on Ground One of the appeal are as follows. First, according to the Appellant, the PVC cards procured for the production of the licences constitute “value books” within the meaning of Regulation 209 of the Financial Administration Regulations, 2004 (L.I. 1802). The Appellant therefore contends that the cost of procuring such value books is a financial responsibility of the State and is, accordingly, reimbursable through the CAGD. [60] The Respondent, on the other hand, disputes this position and maintains that the PVC cards are merely ordinary consumable items. It argues that, pursuant to the Financial Assumptions contained in Annex D to the consulting contract, the Appellant expressly undertook to bear the cost of all consumables in consideration of its entitlement to eighty per cent of the revenue generated under the arrangement. pg. 22 FOTO – X v. DVLA - JUDGMENT [61] The trial court considered the competing positions of the parties and accepted the Appellant’s contention that the PVC cards constituted value books. Accordingly, it ordered the State to reimburse the Appellant in the sum of US$490,674.01. The first appellate court, however, reached a contrary conclusion. It accepted the Respondent’s position that the PVC cards were no more than ordinary consumables and, on that basis, rejected the Appellant’s claim for reimbursement. [62] In my view, the proper starting point is the statutory scheme, as the issue is fundamentally one of statutory classification rather than commercial description. L.I. 1802, made under the Financial Administration Act, 2003 (Act 654), was in force when the 2 006 contract was executed. The Regulations establish a regime for the safe custody and accounting of documents that carry or represent value in the hands of the State. Value books are central to this regime because they facilitate the collection, receipting, or representation of public revenue and are therefore subject to security printing and strict control. [63] Regulation 209 generally identifies the documents that constitute value books, while Regulation 209(2)(f) empowers the CAGD to declare any other form to be a value book. Regulations 210 and 211 place the security printing and supply of value books under th e responsibility of that office. The statutory scheme thus vests the CAGD with both the authority to determine what constitutes a value book and the responsibility for supplying such books to State institutions. Accordingly, the classification of an item a s a value book is, to a significant extent, a matter entrusted by law to the judgment of the CAGD. [64] Once the statutory scheme is understood in this manner, it follows that where an enactment places the cost of an item on the State, parties to a private contract cannot, by agreement, displace that statutory allocation. A private contractual arrangement operates subject to the law and must yield to it. Accordingly, a term of pg. 23 FOTO – X v. DVLA - JUDGMENT the consulting contract requiring Foto-X, the Appellant to bear the cost of consumables could not deprive it of reimbursement to which it is entitled under the law, provided that the item in question properly qualifies as a value book. [65] In my view, therefore, the Court of Appeal's characterisation of the cards as mere consumables rests on a false opposition between two descriptions that in truth sit comfortably together . An item may be a consumable in the ordinary commercial sense, in that it is used up during production, while simultaneously qualifying as a value book in the statutory sense. The former concerns the physical use of the item in the production process, whe reas the latter concerns its legal character and the responsibility for its supply. The absence of any contractual provision on reimbursement, in my opinion does not affect the statutory entitlement, which derives from the law and operates independently of the contract. [66] I note that the Respondent relies heavily on the ejusdem generis principle of statutory interpretation. It argues that Regulation 209(2) of L.I. 1802 identifies specific examples of value books, including official receipt documents, cheque books, local purchase order forms, requisitions, bill books forming part of a st andardised system, and travel warrants. According to the Respondent, these items share common characteristics: they contain pre -printed official information, possess intrinsic financial value, and, when completed, provide access to money or goods. It there fore contends that the general words in Regulation 209(2)(f), empowering the Controller and Accountant -General to declare “any other form” to be a value book, must be restricted to items sharing those characteristics. On that basis, blank PVC cards, which have no value until personalised or encoded, cannot properly be classified as value books. [67] The difficulty with this submission in my view, however, lies in the structure of Regulation 209. The provision is not one in which general words merely follow a pg. 24 FOTO – X v. DVLA - JUDGMENT list of specific examples, which is the usual context in which the ejusdem generis principle applies. Rather, it is structured in two limbs. Sub-regulation (1) provides the general definition of a “value book” as any official form, book, or electronic device used in public financial business, the improper use of which might occasion loss of public or trust moneys or loss to members of the public. Sub -regulation (2)(a) –(e) provides examples, while paragraph (f) confers a separate power on the Controller and Accountant-General to declare “any other form” to be a value book. [68] The ejusdem generis principle operates where general words are intended as a residual or supplementary category and are therefore confined to things of the same kind as the specific items preceding them. It does not necessarily apply where the provision confers a distinct de claratory power on a named officeholder. In such circumstances, the provision does not merely extend an existing list but authorises the officeholder to bring other items within the regulatory framework by administrative classification. Paragraph (f), properly construed, is such a power-conferring provision, and its exercise is therefore governed principally by the breadth of the definition in sub-regulation (1), rather than by the specific examples in paragraphs (a)–(e). [69] The question, therefore, is whether the Controller and Accountant -General’s classification of PVC cards as value books falls within sub-regulation (1). In my view, it does. Once personalised, the PVC cards serve as driver’s licences bearing the inscription “property of the Republic of Ghana.” They are produced under the authority of the DVLA, a statutory body, and their issuance forms part of a licensing system through which revenue is generated for the State. Their duplication, forgery, or unauthorised issuance may occasion loss to the public and undermine the integrity of the public financial system. The cards therefore fall within the broad definition of a value book in sub -regulation (1), and the Controller and Accountant -General was entitled, under paragraph (f), to classify them as such. pg. 25 FOTO – X v. DVLA - JUDGMENT [70] My Lords, this conclusion is further supported by the conduct of the relevant institutional actors in this case . Following an audit, the Auditor -General concluded that the PVC cards constituted value books whose costs should be routed through the Controller and Accountant -General. The Respondent accepted and acted upon that position by authoring the letter of introduction, Exhibit F, and facilitating more than twenty reimbursement payments. This conduct is consistent with, and lends support to, the conclusion that the PVC cards had been brought within the value-book regime pursuant to the power conferred by paragraph (f). [71] I am, accordingly, satisfied that the ejusdem generis principle does not preclude the classification of PVC cards as value books. Paragraph (f) is not merely a residual provision to be confined by the specific examples in paragraphs (a) –(e); rather, it confers a distinct declaratory power on the Controller a nd Accountant-General. That power is to be exercised within the broad parameters of the definition in sub - regulation (1), and, in the circumstances of this case, the classification of the PVC cards as value books falls within those parameters. [72] The evidence, in my view, points firmly in one direction. The office vested with the statutory power of classification treated the PVC cards as value books. The Audit Service Report, tendered as Exhibit E (at pages 227 to 238 of the ROA, Volume 7) and reproduced as Exhibit CE13 as expert evidence, classified the cards as value books and recommended that the cost thereof be routed through the CAGD. The report was admitted without objection at trial, and its contents were not challenged in cross - examination. Similarly, on 18 May 2010, the Respondent through its Chief Executive Officer wrote to the CAGD introducing the Appellant for reimbursement, as evidenced by Exhibit F (at page 240 of the ROA, Volume 7) following which more than twenty payments were made in respect of the cards. pg. 26 FOTO – X v. DVLA - JUDGMENT [73] The Court of Appeal, however, disregarded this uncontroverted evidence without providing the reasons required by law for doing so. Instead, it relied on section 26 of the Evidence Act to hold in favour of the Respondent. Although a court is not bound to accept expert evidence, it must give cogent reasons for rejecting it. This principle was affirmed by this Court, per Dotse JSC, in Tetteh and Another v Hayford (Substituted by Larbi and Decker) [2012] 1 SCGLR 417 at 423, and reaffirmed in Mfum Farms and Feedmill Ltd v Gyamfua (Civil Appeal No. J4/25/2017, 24 October 2018). The auditors' classification constituted evidence of this nature and could not properly be displaced by the Court's own inference without due consideration of the auditors' reasoning and the statutory role of the CAGD. [74] The failure to challenge evidence may amount to an admission of the truth of the assertion made. This principle has its foundation in the old landmark House of Lords decision in Browne v. Dunn (1893) 6 R. 67 (H.L.), concerning the rules of cross - examination and trial fairness. The same principle was applied in TUI UK Ltd v. Griffiths (2023) UKSC 48, the main issue in which concerned uncontroverted expert evidence. This Court, in Dzaisu v. Ghana Breweries Ltd [2008] SCGLR 60, however, qualified the position by holding that a failure to cross-examine on every single point does not automatically bind the court to accept the evidence if it conflicts with the overall weight of the case. [75] In the present case, the evidence tendered as Exhibit E, in my respectful opinion, does not conflict with the overall weight of the case. Consequently, since the classification of the cards as value books was not challenged at trial, I am of the view that the trial court was entitled to rely on that evidence. The Court of Appeal, therefore, ought not to have preferred a contrary view without addressing the unchallenged evidence on the record. pg. 27 FOTO – X v. DVLA - JUDGMENT [76] I have also considered the Respondent’s reliance on the admission by the Appellant’s Managing Director that Foto-X was the sole investor and would provide the project's infrastructure at no cost to the DVLA. While that admission is significant in explaining why Foto-X bore the costs of the equipment, software, installation, and training, it does not resolve the narrower statutory issue. An investor may undertake to provide a project's infrastructure at its own expense and yet remain entitled, under the law, to recover the cost of a specific item classified as a value book and for which the State is statutorily responsible. The general undertaking and the specific statutory entitlement operate on distinct planes and are not inconsistent, in my view. [77] My Lords, I further note that the first appellate court relied on section 26 of the Evidence Act, which embodies the principle of estoppel by statement or conduct. The principle, in essence, precludes a person from denying the truth of a statement or the effect of conduct where that person has intentionally caused another to believe in and rely upon such statement or conduct. I understand the decision of the Court of Appeal to be that, under the original agreement, the Appellant, as Plaintiff, undertook to bear all the costs of the project and to recoup those costs through the sharing of the profits on an 80% and 20% basis. See page 77 of the Record of Appeal, Volume 15. [78] To my mind, if reliance on section 26 of the Evidence Act was applicable at all, the principle ought to have been applied equally to the conduct of the Respondent, the DVLA. The Respondent referred the matter to the Ghana Audit Service, which investigated the disagreement and subsequently issued a report, Exhibit E. As stated earlier, the report was tendered in evidence at the trial without objection. Following the report, the Respondent, through its Chief Executive Officer, authored Exhibit “F” and forwarded it to the CAGD for payment to the Appellant, which the CAGD did. [79] In my view, these actions on the part of the Respondent constituted conduct upon which the Appellant was entitled to rely and, therefore, fell within the scope of pg. 28 FOTO – X v. DVLA - JUDGMENT the principle of estoppel by conduct. Accordingly, if the doctrine of estoppel was to be invoked in the circumstances of this case, it ought to have been applied against the Respondent as well, rather than solely against the Appellant. [80] Further, the conclusion reached is reinforced by the proper approach to statutory interpretation. Section 10(4) of the Interpretation Act, 2009 (Act 792), requires an enactment to be construed in a manner that promotes the rule of law and the values of good gover nance, while avoiding technicalities of form and language that may defeat its purpose. This approach was affirmed by this Court in Banful and Another v Attorney-General and Another [2017-2018] 1 SCGLR 82. [81] The purpose of the value-book regime is to protect public revenue and ensure an orderly system for the supply and accounting of instruments of value. It would therefore be inconsistent with that purpose to interpret the regime as excluding the very cards t hrough which licences, and the revenue accruing from them, are produced. [82] Accordingly, I would hold that the PVC cards constitute value books and that their cost is borne by the State through the CAGD. The Court of Appeal therefore erred on this issue, and the ground of appeal succeeds, subject to the determination of the appropriate quantum. This qualification is necessary because the record shows that reimbursement for the cards was made up to 2012 and that some payments already made related to value books. The Appellant, Foto -X, is therefore entitled to reimbursement only for value -book co sts that remain outstanding and are duly proved. The sum of US$490,674.01 awarded by the trial court must accordingly be reconciled with payments already received, so that the Appellant recovers only the balance genuinely due and not an amount calculated o n the basis that no prior payments had been made [Emphasis Mine]. pg. 29 FOTO – X v. DVLA - JUDGMENT [83] My Lords, I next turn to Ground Three of appeal and consider whether the revenue share under the 2006 contract was based on four cost components, namely, New Licence, Photograph, Form, and Eye Test, or on three, excluding Form. This is the second question of construction arising under the contract. The trial court accepted the Appellant’s position that there were four components, whereas the Court of Appeal held that there were three. [84] The Respondent’s most forceful submission on this ground rests on a conceptual distinction between cost items and revenue streams. DVLA contends that Annex D (the Financial Assumptions) identifies three revenue components subject to the 80% and 20% sharing ratio, namely, the licence, photograph, and eye test, while Annex E (the minutes of the negotiations) records four cost items discussed at the meetings. Cost and revenue, the Respondent submits, are distinct concepts in the context of the contract. The fa ct that four cost items were recorded in the minutes of the negotiations does not, in its submission, convert statutory forms procured from the CAGD and accounted for to the CAGD into a fourth revenue stream for Foto -X. The submission has the virtue of ana lytical clarity and, in my view, deserves careful consideration. [85] The distinction between cost and revenue is, as a matter of general accounting principle, perfectly sound. A cost item represents an expense incurred in producing a good or delivering a service, whereas a revenue stream represents income generated from the sale of that good or service. There are commercial arrangements in which the two do not necessarily correspond. A business may incur several categories of cost while generating revenue from only one source, and the cost structure of an enterprise need not, of necessity, mirror its revenue structure. If Annex D and Annex E were intended to operate in that manner, the Respondent’s submission would be well taken. pg. 30 FOTO – X v. DVLA - JUDGMENT [86] My Lords, the difficulty, however, is that, in the context of this particular contract, the cost items and the revenue streams cannot, in my view, be treated as wholly independent variables. The revenue generated from the driver’s licence project arose from fees paid by members of the public in respect of the various components of the licensing process. An applicant for a driver’s licence pays a composite fee comprising amounts attributable to the different elements of the service, namely, the licence itself, the photograph, the eye test, and the form. The contractual architecture, as reflected in both Annex D and Annex E, appears to have been designed to identify the constituent elements of that composite fee and, thereby, to determine the total revenue pool to which the 80% and 20% sharing ratios would apply. [87] In that specific context, the agreed charge for each component and the revenue generated from the composite fee cannot be regarded as wholly unrelated concepts. The charges attributable to the respective components form part of the total amount paid by the applicant, and that total amount represents the revenue generated from the transaction. The Respondent’s submission, however, treats cost and revenue as wholly severable categories. The structure of the contract suggests otherwise. For the purpose of determining the revenue pool, the two concepts appear to be functionally connected, at least to the extent that the amounts charged in respect of the respective components form part of the total sum payable by the applicant. [88] This functional relationship is further supported by the content of Annex E itself. The minutes of the two meetings held on 7th June 2006 and 21st June 2006 do more than merely list cost items in the abstract. They record the agreed current cost of acquisition of a driver’s licence, broken down into four specified components, with an agreed price attached to each: New Licence at GH¢6,000.00, Photograph at GH¢40,000.00, Forms at GH¢2,000.00, and Eye Test at GH¢50,000.00. See page 144, ROA, Volume 1 . These component charges, when aggregated, produce the total amount payable by each applicant. That total amount, in turn, constitutes the revenue pg. 31 FOTO – X v. DVLA - JUDGMENT generated from the transaction and is the amount from which the question of revenue sharing arises. [89] The significance of this arrangement lies not merely in the fact that four cost items were identified, but in the fact that the parties took the trouble to identify and agree upon the price attributable to each component at two separate and specifically convened negotiation meetings, and to record those agreed prices in minutes which the contract expressly incorporates. This, in my view, is significant. It suggests that the respective components were intended to form part of the financial structure of the transaction from which the revenue pool was to be determined. [90] The Respondent nevertheless invites this Court to accept that, although four components were identified and agreed upon for the purpose of determining the cost of the service, only three were intended to form part of the revenue -sharing arrangement. In my opinion, that proposition finds no apparent support in the language of the contract. If the parties intended the Forms component to be treated solely as a cost item and excluded from the revenue-sharing arrangement, one would reasonably expect the contract to have made that intention clear. [91] My Lords, the contract of the parties contains no express provision excluding Forms from the revenue pool. Nor does it prescribe any mechanism by which revenue attributable to Forms is to be treated differently from revenue generated by the other three components. This omission assumes particular significance in the circumstances of this case. Where the parties have expressly identified and priced four constituent components of the transaction, but have provided for revenue sharing in respect of only three of them without expressly excluding the fourth, the Court must be slow to introduce such an exclusion by implication, particularly where the contractual documents contain no separate mechanism for accounting for the excluded component. pg. 32 FOTO – X v. DVLA - JUDGMENT [92] In the absence of any such provision, the partition which the Respondent urges upon the Court appears, in my view, to exist principally in submission rather than in the text of the contract. The distinction between cost and revenue, although conceptually valid, cannot by itself establish that the Forms component was excluded from the revenue-sharing arrangement. The question must ultimately be determined by the intention of the parties as expressed in the contractual documents. On the materials before the Court, the better view appears to be that the four identified components formed part of the financial structure of the transaction and, absent an express or clearly ascertainable exclusion, the revenue attributable to each ought to be considered in determining the revenue pool to which the agreed 80% and 20% sharing ratios apply. [93] To my mind, t he issue arises from an apparent inconsistency between two documents annexed to the consulting contract. Annex D, the Financial Proposal, lists three components and excludes Form. Annex E, the Minutes of Contract Negotiation dated 7 and 21 June 2006, lists four components and assigns Form a price of GH¢2,000. The contract expressly provides that the Consultant shall adhere to the Minutes o f Contract Negotiation in Annex E. The question, therefore, is which of the two documents prevails in the event of an inconsistency. [94] In my opinion, contrary to the position of the Respondent and the first appellate court, the contract itself provides the answer. By expressly incorporating Annex E and requiring adherence to its terms, the parties made those terms part of the contract. Annex E records the four cost components agreed upon during the successive negotiation meet ings and reflects the parties’ considered position following those negotiations. Accordingly, where Annex D is inconsistent with Annex E, the incorporated Annex E must prevail, with the result that the revenue share was properly based on all four cost components, including Form. pg. 33 FOTO – X v. DVLA - JUDGMENT [95] Furthermore, t he construction of the instrument as a whole supports this interpretation. The Court must determine the meaning that the contract would convey to a reasonable person having the background knowledge that was reasonably available to the parties. This approach is consistent with the landmark English contract law case of Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, in which Lord Hoffmann laid down five principles governing the modern interpretation of contracts. His Lordship emphasised that contracts should not be interpreted solely on a literal basis. Rather, the Court must ascertain the meaning that a reasonable person, having knowledge of the relevant background or “matrix of fact” available to the parties, would have understood the words to convey. [96] The five principles may be summarised as follows: 1. The meaning of a contract is what a reasonable person, having all the relevant background knowledge reasonably available to the parties, would have understood it to mean. 2. The relevant background includes the “matrix of fact” that was reasonably available to the parties and which may affect the meaning of the language used. 3. Prior negotiations and declarations of subjective intention are generally excluded from consideration, partly to avoid increasing the scope of litigation. 4. The meaning of contractual words should be determined contextually rather than by relying solely on their literal or dictionary meaning. 5. It should be presumed that the parties intended to use language in a sensible manner and did not readily make linguistic mistakes. [97] In this case, it is my view that the background includes the central role of forms in an enterprise whose business involves the production and issuance of licences. Forms are used throughout the process, from capturing applicants’ biodata to the issuance of temporary and final licences. Excluding such a fundamental component pg. 34 FOTO – X v. DVLA - JUDGMENT from the enterprise’s revenue model would be inconsistent with the commercial purpose of the arrangement. The Court should, therefore, prefer the interpretation that accords with business common sense. [98] Accordingly, the omission of the word “Form” from Annex D is properly regarded as an obvious error that the Court may correct in construing the instrument. The authorities relied upon by the Appellant, including Wilson v Wilson (1854) 5 H.L. Cas. 40 at 66, per Lord St. Leonards, establish that a court may correct an evident mistake on the face of an instrument where its sense admits of no other reasonable interpretation. The modern formulation of the principle is found in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, where the House of Lords held that, where it is clear that the language has gone wrong, that a mistake was made in regards to what the intended meaning was, the Court may construe the instrument as if the mistake had been corrected. [99] It is important to note that the correction in question is an exercise in construction and is distinct from rectification, which is an equitable remedy aimed at reforming a document to reflect the parties’ prior common intention. In the present case, rectification is unnecessary because the contract, read as a whole and with due effect given to its incorporation clause, clearly establishes Form as a fourth component. The apparent omission in Annex D must, therefore, yield to the express incorporation of Ann ex E and the commercial improbability of any contrary interpretation. [100] My Lords, I note that the trial court and the Appellant relied on the maxim leges posteriores priores contrarias abrogant , which suggests that a later instrument prevails over an earlier one. In my respectful view, however, the maxim has no application in the present case. It is principally a canon of statutory interpretation concerning pg. 35 FOTO – X v. DVLA - JUDGMENT successive statutes and does not apply to the construction of different parts of a single private contract. I, therefore, agree with the Court of Appeal on this point. [101] The proper basis for the conclusion in my opinion is the express incorporation of Annex E, considered in light of the commercial context outlined above. I accordingly hold that the 2006 contract comprises four revenue components, including Form, and that the Court of Appeal erred in reducing them to three. Ground Three, therefore, succeeds. [102] I now turn to Ground Two of the appeal, which raises a procedural complaint. The Appellant, Foto-X, contends that the Court of Appeal partly founded its decision on estoppel by conduct and representation, although the Respondent, DVLA, had neither pleaded nor raised any such estoppel in its notice of appeal. The complaint, therefore, is that the Court of Appeal determined the matter on a ground on which the Appellant had no opportunity to address the Court. [103] In my view, the complaint is well founded in principle, although, for reasons I shall shortly give, it does not, by itself, affect the ultimate outcome of the appeal. It is a settled principle of procedure that estoppel must be specifically pleaded by the party seeking to rely on it, thereby giving the opposing party notice of the case to be met and an opportunity to adduce evidence and make submissions in response. [104] This rule reflects the broader principle that pleadings define the issues for determination and bind both the parties and the court. Accordingly, a court ought not to determine a case on a ground that was neither pleaded nor addressed by the parties, as do ing so may occasion prejudice and offend the fundamental principle of fair hearing embodied in the maxim audi alteram partem. Where a court departs from the issues raised in the pleadings in a manner that causes prejudice, the resulting irregularity is one that an appellate court is entitled to correct. pg. 36 FOTO – X v. DVLA - JUDGMENT [105] The complaint is particularly compelling where the departure from the issues arises on a first appeal. The jurisdiction of the Court of Appeal is ordinarily confined to the grounds of appeal before it. Where the court proposes to determine an appeal on a point not raised by either party, fairness requires that it bring s the point to the attention of the parties and afford them an opportunity to make submissions on it. [106] The jurisprudence of this Court establishes that, where a party fails to make submissions on a ground of appeal, that party is deemed to have abandoned the ground. See Awere Kyere v. Foster (2003–2004) SCGLR 1050 and Charles Blankson - Hemans & Anor. v. Peter Enti , Civil Appeal No. J4/14/2026, delivered on 8 July 2026 (unreported). If a failure to make submissions on a stated ground of appeal is deemed to amount to an abandonment of that ground, how, then, can a court raise a ground of appeal on its own motion and determine an appeal on that basis? In my view, there is no legal basis for such an approach. [107] Accordingly, as the Court of Appeal relied on an unpleaded estoppel to defeat the Appellant’s claim, it determined the matter on a basis outside the issues raised by the parties, thereby rendering the Appellant’s complaint well founded. [108] The practical effect of this finding on the outcome of the appeal is, however, limited for two reasons. First, the value-book claim, to which the estoppel appears to have been directed, succeeds on its merits for the reasons already given under Ground One. The Appellant, therefore, need not overcome the estoppel in order to succeed on that claim. [109] Second, estoppel and part performance, where applicable, ordinarily operate to support the enforcement of an arrangement between the parties rather than to defeat it. This position is also acknowledged in the Respondent’s Reply. To the extent pg. 37 FOTO – X v. DVLA - JUDGMENT that either doctrine applies to the dealings between the parties, it supports, rather than undermines, the Appellant’s position. I would, therefore, uphold this ground as a correct statement of procedural principle, while holding that it has no independent effect on the ultimate outcome of the appeal. [110] My Lords, I next turn to Ground Four of appeal. In relation to the alleged 2012 contract, the Appellant, Foto-X's case is considerably weaker. The Appellant contends that the parties concluded a binding ten -year contract based on the existing 80% and 20% revenue-sharing arrangement, with an estimated investment value of approximately US$9.98 million. It relies on evidence of mutual assent, its performance under the arrangement, and documentary acknowledgements, including Exhibit S and Exhibit NN, a letter from the Respondent, DVLA to UT Bank confirming the existence of the alleged contract. The Appellant further argues that the Respondent breached the agreement in September 2014 by attempting to reduce its duration to six years, excluding eye testing and learner's licences from its scope, thereby frustrating its performance, and subsequently engaging a third party. The Respondent, however, maintains that no binding contract was ever concluded because the parties never reached agreement on the essential terms. In support of this contention, it relies on Attorney-General v. Faroe Atlantic Co. Ltd [2005–2006] SCGLR 271. [111] In my considered view, Ground Four is without merit, and the Court of Appeal was correct in holding that no enforceable contract came into existence in 2012. The law is well settled that a contract is formed only where the parties have reached agreement on all its essential terms. Where material terms remain unresolved or are left for future agreement, no binding contract arises; at most, the parties remain engaged in negotiations. An agreement to agree on an essential term lacks the certainty required for contractual enforceability. This principle was authoritatively affirmed in May and Butcher Ltd v. The King [1934] 2 KB 17, where the House of Lords pg. 38 FOTO – X v. DVLA - JUDGMENT held that no concluded contract existed because the price and other essential terms had been left for future agreement. [112] The general rule is that no binding contract arises where the parties leave an essential term to be agreed upon in the future. However, that rule does not apply where the parties have provided a workable mechanism for resolving the outstanding issue or where the unresolved matter is merely subsidiary and does not prevent the agreement from operating. This principle is illustrated by Foley v. Classique Coaches Ltd [1934] 2 KB 1, where the court upheld a binding contract because the agreement contained a mechanism for fixing the price and had been performed for several years. The distinction to my mind, therefore, is whether the unresolved term is fundamental and le ft for future agreement or merely ancillary and capable of determination through an agreed mechanism. [113] My Lords, applying these principles to the present case, the evidence does not support the existence of a concluded contract in 2012. The record shows that several essential terms of the proposed ten -year revenue -sharing arrangement remained unresolved. As reflected in Exhibit T, these included the definition of consumables, materials, and supplies; whether eye testing and learner's licences formed part of the services; ownership of the equipment; the duration of the contract; the specifications of the equi pment and software; the unit cost of producing each licence; and the custody and security of the cards. Exhibit 129 likewise identified several outstanding matters requiring further agreement. [114] These were not peripheral issues but fundamental terms going to the heart of the proposed arrangement. The duration of the contract, the scope of the services, and the basis for calculating the revenue share were all essential elements of the bargain. A proposed agreement that leaves such critical matters for future negotiation lacks the certainty required by law to constitute a binding and enforceable contract. pg. 39 FOTO – X v. DVLA - JUDGMENT [115] In my opinion, the issue is further resolved by the evidence of the Appellant's own Managing Director. Under cross -examination, he admitted that the unresolved issues were discussed at the meeting during which the purported 2012 contract was signed. That a dmission, coming from the Appellant’s principal witness, strongly demonstrates that the parties themselves understood that they had not yet reached a final and binding agreement. [116] Also, the documents relied upon by the Appellant do not alter that conclusion. Correspondence from the Respondent, DVLA to a bank, or other documents acknowledging that the parties had contractual dealings, cannot establish agreement on essential terms tha t remained unresolved. At most, such documents demonstrate that negotiations were ongoing and that the parties contemplated concluding a formal contract in due course. They do not establish the consensus ad idem necessary to create an enforceable agreement . As affirmed in Faroe Atlantic (supra) , the court's concern is whether the parties reached a concluded and enforceable agreement, not whether documents merely describe or assume the existence of a contract in the absence of agreement on its essential terms. [117] Accordingly, I would hold that no concluded contract came into existence in 2012 and would affirm the decision of the Court of Appeal on this issue. Ground Four therefore fails. [118] The fifth ground of appeal is the omnibus ground complaint that the judgment is against the weight of the evidence. There is a wealth of judicial authority on the scope and application of this omnibus ground of appeal. Among the notable decisions elucidating this principle are Republic v. Conduah; Ex Parte Aaba (substituted by) Asmah [2013–2014] 2 SCGLR 1032 and Owusu Domena v. Amoah [2015–2016] SCGLR 790. In determining such a ground, the court is required, as stated in Tuakwa v. Bosom