DramOil v Deloitte

Paragraphs in contention
19
20
21
22
23
25
34
35
36
40
46
54
55
81
82
83

Grounds for objection outlined by Ace A. Ankomah

2) The written evidence (witness statement) of the witness must provide evidence to
prove material facts in its pleadings (statement of claim) and nothing else. Contrary to
this, the paragraphs mentioned a) make claims on matters not contained in the
pleadings, and b) purport to raise points of law and make highly prejudicial and
scandalous claims
Submissions/objections made per paragraph
Paragraph 19
- “The witness claims that in suit no DFS/22/13, Vihama refused to divulge information
to the court on the amount it received as under recoveries, and that was why the court
made an order for accounts. My lady, this is an allegation material to the case. A
factual basis ought to have been pleaded to afford all parties the opportunity to plead
in response and provide evidence. There are no such pleadings anywhere in Plaintiff’s
( )”
Paragraph 20-23
- “The witness gave evidence of a meeting between DramOil’s representatives and
Vihama’s representatives and the then CEO of the Chamber for Bulk Oil Distribution
Companies, and that during that alleged meeting, Vihama’s CEO stated for the first
time that DramOil’s cargo was sold in January 2012 and that Vihama made this
statement so that it could be absolved of any liability to DramOil. This claim isn’t
supported by the pleadings. Throughout the pleadings, DramOil’s claim has been that
the products were sold between January 2012 and March 2012, and Dram has
maintained that the claim that the product was sold between January 2012 and March
2012 was an assumption drawn from applying the first-in, first-out principle only.
They have not claimed that this sales period was raised at any settlement meeting by
Vihama, and that they raised that claim in an attempt to escape liability. The only
mention of the difference of amount of under recoveries is at paragraph 17 of the
amended statement of claim, and so this evidence that the witness seeks to adopt is
not based on any pleadings”
Paragraph 25
- “The witness claims that PKF was unable to conduct a review of Vihama’s accounts
because Vihama couldn’t provide information that it started sale of products in
January 2012. This purported evidence is not based on any pleading. Indeed, there is
no pleading on any operant of PKF or any other auditor, and also no allusion to the
claim that it could not prove its claim.”
Paragraph 34
- “The witness says Boadi Agyei and all the lawyers in the first suit agreed the DramOil
should pay auditor fees because Dram was owed money under transactions. There is
no pleading to that effect. It is material they draw conclusion that Vihama was
indebted to DramOil. They should have ( )”
Paragraph 35 and 36
 - “The witness claims that Deloitte told Scipion Capital that DramOil stood to receive
money from the Vihama transaction, in other words, the report that Deloitte was to
file would state that Vihama owed money to DramOil. In paragraph 36, the witness
claims that Deloitte’s Daniel Owusu had threatened not to file Deloitte’s report until
DramOil had paid the fees. My lady these are wholly unsupported by the pleadings.
Indeed, in paragraph 40 and 41, in the amended statement of claim, Plaintiff
*intended* that Deloitte inform Scipion that it would file its draft report that showed a
positive balance in Dram’s favour if Dram had paid the fees owed to Deloitte. Deloitte
firmly denied these pleadings, and in the witness statement, the witness sets up a new
claim that Deloitte told Scipion that Dram stood to receive money from the
transaction. My lady, these claims are contradictory and what is in the witness
statement is not supported by the pleadings.
Paragraph 40, 46, 54 and 55
- “The witness introduces a new claim that Deloitte’s independence and integrity were
compromised by Vihama in an alleged collusion to overturn the 18 th of May 2015
judgement. My lady, once again there is no ( ) in pleadings to any collusion or
Deloitte’s integrity and the basis of its findings ought to have been pleaded to afford
Deloitte opportunity to respond. The paragraphs were scandalous, vexatious and
highly prejudicial, I pray for them to be struck out.”
Paragraph 43
- “The witness claims that DramOil had obtained full control of AP Oil and Gas and
was in charge of its management. This is nowhere in the pleadings. The only claim on
this point is that DramOil obtained funds from Scipion to acquire shares in AP Oil and
Gas and it was unable to proceed in the shares acquisition because Scipion withdrew
financing after the report was submitted to the court. There is no pleading that share
acquisition had been finalised and/or DramOil had began managing affairs of the
company. The material claim ( )”
Paragraph 81
- “The witness claims that CalBank wrongly carried itself as having won the first suit
and then filed a notice of entry of judgement set aside because it was fraudulently
filed. He adds that Vihama withdrew its counterclaim and that DramOil had been
unable to reap the benefits of its victory in the 18 th of May judgement. He attributes
this claim to Deloitte’s negligence and adds that Deloitte has *cased lying* to all the
parties in the first suit. Such a claim ought to have been proved. Nothing concerns
filing of a notice of entry for judgement or it’s setting aside, they didn’t even plead
that Deloitte’s actions caused * * to CalBank and Vihama. The material underlying
facts ought to have been pleaded to afford the parties the opportunity to respond and
provide evidence. This is especially because 1st Defendant (Deloitte) herein was not a
party to that suit and ought to have been afforded opportunity to respond to the
allegations in the proceedings and bring evidence.”
Paragraph 82
- “The witness purports to sate points of law, that Deloitte breached a duty of care owed
to Dram (Plaintiff herein) with losses based on the alleged breach. My lady, the
finding of a duty of care is a point of law ought to be determined by courts and not by
the witness making positive statements on law with the potential of prejudicing the
matter before the court.”
Paragraph 83
- “This paragraph contains highly prejudicial and scandalous claims about Deloitte
claiming that it had committed “unpardonable wrongs” and contrived false narratives
and technicalities to “cage the truth and the facts.” Respectfully, the statement is
highly prejudicial and ( ) do not lie in the mouth of the witness who is required to
provide evidence based on pleadings. We ask that the be struck out.”

Authorities
Appiah v Akers 1972 1 GLR 28, 34; Dam v Agbo 1962 2 GLR 200; Hammond v Odoi
1982-83 GLR 1215, 1235; Kells v Agyei 2001-2002 1 GLR 617, 628-9
- “A party is bound by [their] pleadings and cannot set up a case different from the
party’s pleadings”
Xenon v industrious Bee suit No. D5/683/2015, 23 Nov 2015; Indepth Network v Bank
suit No. DJ826/2018, 25 March 2020; Amoah v Andrews suit No. DJ1598/2014, 9 th June
2020
- “A witness statement is the written evidence to provide evidence on material facts of
the pleadings”
Agbosu v Boafu, civil appeal No. 90/92, 29 April 1999; SeaTech v Penton Hook 1984-6 1
GLR 605, 607, 609; Acheampong v Yeboah, suit No. H1/34/2022, 15 Nov 2022, per
Oppong JA relying on Akuffo Addo v Cathleen 1992 1 GLR 377, per Osei
- “in a witness’s evidence-in-chief, it cannot rely on unpleaded matters”