EL http://ghalii.org/ en Abivams Ltd Vrs Platun Gas Oil Ghana Ltd (J4 29 of 2016) [2017] GHASC 29 (31 May 2017); http://ghalii.org/gh/judgment/supreme-court/2017/29 <span class="field field--name-title field--type-string field--label-hidden">Abivams Ltd Vrs Platun Gas Oil Ghana Ltd (J4 29 of 2016) [2017] GHASC 29 (31 May 2017);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/392" hreflang="x-default">CL</a></div> <div class="field__item"><a href="/taxonomy/term/517" hreflang="x-default">Contract of Sale</a></div> <div class="field__item"><a href="/taxonomy/term/518" hreflang="x-default">Contract Performance</a></div> <div class="field__item"><a href="/taxonomy/term/447" hreflang="x-default">Breach of Contract</a></div> <div class="field__item"><a href="/taxonomy/term/519" hreflang="x-default">Privity of Contract</a></div> <div class="field__item"><a href="/taxonomy/term/520" hreflang="x-default">Summary Judgment</a></div> <div class="field__item"><a href="/taxonomy/term/521" hreflang="x-default">Liquidated Claims</a></div> <div class="field__item"><a href="/taxonomy/term/369" hreflang="x-default">EL</a></div> <div class="field__item"><a href="/taxonomy/term/385" hreflang="x-default">Minerals</a></div> <div class="field__item"><a href="/taxonomy/term/386" hreflang="x-default">oil and gas</a></div> <div class="field__item"><a href="/taxonomy/term/522" hreflang="x-default">Administrative Action</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 06/23/2021 - 11:01</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>The appeal stemmed from the denial of the appellant's right to defend on merits due to the lower court’s grant of an Order 14 summary judgement in favor of the respondent, without properly engaging with the merits of the matter.</p> <p>Substantively, the court held that in a summary judgement application the plaintiff must bring a <em>prima facie</em> case for the claim, which includes showing the basis of the claim, before the burden shifts to the defendant to defend. However, a complete defence is not required but rather the defendant only needs to show that he has a reasonable defence to the claim and his defence is not a sham or intended to delay payment.</p> <p>Since the respondent’s claim had been based on an agreement and an alleged assignment, the court reasoned that on assessment of the evidence the argument of assignment lacked the element of intent and thus could not stand. Further, the argument that the respondent was a beneficiary of the agreement in question was unfounded. The trial court therefore erred in its decision to grant summary judgment as the very basis of the claim was reasonably challenged on the facts.</p> <p>The court thus concluded that the appellant had been unjustifiably been shut out of trial. It thus allowed the appeal setting aside the summary judgement.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.ghalii.org/files/judgments/ghasc/2017/29/2017-ghasc-29.pdf" type="application/pdf; length=410462">2017-ghasc-29.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p class="rtecenter"> </p> <p class="rtecenter"><strong><u>IN THE SUPERIOR COURT OF JUDICATURE</u></strong></p> <p class="rtecenter"><strong><u>IN THE SUPREME COURT</u></strong></p> <p class="rtecenter"><strong><u>ACCRA – A.D. 2017</u></strong></p> <p class="rtecenter"> </p> <p> </p> <p class="rteright"><u>CIVIL APPEAL NO. J4/29/2016</u></p> <p class="rteright"><u>31<sup>ST</sup> MAY, 2017</u></p> <p class="rteright"> </p> <p><strong>ABIVAMS LIMITED         ….         PLAINTIFF/APPELLANT/RESPONDENT</strong></p> <p><strong>VRS</strong></p> <div> <p><strong>PLATUN GAS OIL GHANA LTD.    ….    DEFENDANT/RESPONDENT/APPELLANT</strong></p> <p> </p> </div> <hr /><p class="rtecenter"><strong><u>JUDGMENT</u></strong></p> <hr /><p><strong><u>BENIN, JSC</u></strong><u>:- </u></p> <p>This appeal brings into focus once more the scope and limit of the popular Order 14 of the High Court (Civil Procedure) Rules), 2004, C.I. 47. That Order has become so popular even among students of the law because we are made to believe that it is the shortest route to obtain judgment in liquidated claims in particular, without going through the travails of litigation. But to the unwary judge who falls into that trap, he may be tempted to dismiss a defence to a claim under this order, as it were, to save time, especially bearing in mind the fact that the court is required to adopt expeditious and less expensive means to dispose of a case before it. But we must not lose sight of the fact that rules of court are meant to regulate orderly proceedings and nobody should be made to suffer therefrom, without real or just cause. The rules of natural justice prevail in all proceedings, hence the requirement that a person should not be made to suffer unless he has been heard in his defence, except by his own showing he does not want to be heard or clearly he has no defence to an action and should therefore not engage in a wild goose chase.</p> <p>As a result, the courts have over the years provided guidelines for the invocation of the provisions under Order 14 which every trial judge must observe, lest a defendant should be denied a hearing on merits, without justification. It is necessary at the outset of this decision to recall the caution sounded by Denman J in the case of <strong>Manger etc v. Cash (1889) 5 T.L.R. 271 </strong>when he said that: “<em>The jurisdiction is one to be exercised with great care, so as not to preclude a party from raising any defence he may really have. The judge is not to make the order if either he is satisfied that there is a defence, or that the defendant should be allowed to defend.” </em>This case is one of those cases in which the defendant/respondent/appellant, called the appellant, should have been allowed to defend but was denied this right to be heard on merits because of the unjustifiable invocation of Order 14 in favour of the plaintiff/appellant/respondent, called the respondent. The reasons for this conclusion with which this decision has begun would become apparent very shortly.</p> <p><strong>Facts of the case</strong></p> <p>On or about 13<sup>th</sup> January, 2015, the respondent issued a writ of summons at the High Court claiming the following reliefs against the appellant:</p> <p class="rteindent1">a.  An order for the recovery of the sum of USD522,010.06 or its equivalent in Ghana cedis at the prevailing commercial rate of exchange.</p> <p class="rteindent1">b.  Interest of 10% per annum on the said amount from 5<sup>th</sup> December, 2014 till date of final payment.</p> <p class="rteindent1">c.  General damages for breach of contract.</p> <p class="rteindent1">d.  Costs assessed at 10% of the amount owed, including Solicitors’ fees.</p> <p class="rteindent1">e.  Any further order(s) that this Honourable court could deem fit.</p> <p>For its full force and effect, we shall set out extensively the material contents of the accompanying statement of claim wherein the respondent averred as follows:</p> <p class="rteindent1">“3. The plaintiff says that pursuant to the Sales and Purchase Agreement (SPA) dated 18<sup>th</sup> July 2014, made between Omaroil Agency Limited as the seller of the one part and the Defendant herein as the buyer of the other part, Omaroil Agency Limited was to supply to the defendant 11,200 barrels of crude oil between the 23<sup>rd</sup> and 24<sup>th</sup> July 2014.</p> <p class="rteindent1">4. Plaintiff says that pursuant to the Sales and Purchase Agreement executed between Omaroil Agency Limited and the defendant it was agreed between the parties that an amount of USD87.10 per barrel was to be paid within 10 days of discharge to the plaintiff for its benefit for facilitating the supply of crude oil to the defendant.</p> <p class="rteindent1">5. Plaintiff says that a quantity of 8,149 barrels of crude oil was however actually supplied to the defendant on the 12<sup>th</sup> of August 2014 as a result of which it had to discount an amount of USD2.00 per barrel to the defendant as penalty for delay of 10 days, the discount of USD2.00 per barrel for the 10 days reduced the amount per barrel to USD85.10, thus bringing the total amount payable to USD693,479.90.</p> <p class="rteindent1">6. Plaintiff says that the defendant on 13<sup>th</sup> August 2014 through its bankers………..paid to it the Ghana cedi equivalent of USD120,000.00 out of the total amount of USD693,479.90 for the crude oil supplied to defendant.</p> <p class="rteindent1">7. Plaintiff also says that on the 18<sup>th</sup> August, 2014 it therefore issued the defendant with an invoice for the payment of outstanding balance of USD 567,479.90 for the quantity of oil supplied to defendant.</p> <p class="rteindent1">8. Plaintiff says that on the 2<sup>nd</sup> October, 2014 following the defendant’s failure to pay its outstanding debt, a Memorandum of Understanding to the Sales and Purchase Agreement was executed between it, the defendant and Omaeoil Agency Ltd in which the parties agreed that the defendant shall pay the outstanding balance of USD567, 479.90 to the plaintiff within two months in three equal installments by the 31<sup>st</sup> of December 2014.</p> <p class="rteindent1">9. Plaintiff also says that per the Memorandum of Understanding executed, it was also agreed by the parties that due to the delay on the part of the defendant to pay the amount of USD567,479.90 which was due and owing under the contract, an interest rate of 10% per annum from the 18<sup>th</sup> of August 2014……was to be paid on the outstanding balance.</p> <p class="rteindent1">10. Plaintiff further says that the defendant subsequently paid to it cash of USD10,000.00 on 5<sup>th</sup> December, 2014 as well as a further payment of the Ghana Cedi equivalent of USD52,416.50 by swift through its bankers……..leaving the outstanding balance of USD505,063.40.</p> <p class="rteindent1">11. Plaintiff says that the interest accrued on the outstanding balance……is USD16,946.66 bringing the total amount due and owing by the defendant under the contract to USD522,010.06 as at 5<sup>th</sup> December 2014.”</p> <p>The respondent brought the action following the appellant’s failure to pay the outstanding balance to it. The appellant entered appearance to the writ on 15<sup>th</sup> January 2015. On 22<sup>nd</sup> January 2015, the respondent caused to be filed a motion on notice for summary judgment under Order 14 of C.I. 47. In the affidavit in support deposed to by one Captain Michael Adu, the Managing Director of respondent-company, it exhibited a copy of the agreement made between the appellant and Omaroil, it was marked exhibit MA1. They also exhibited correspondence between the parties herein confirming that monies that were due under exhibit MA1 were to be paid to the respondent, marked as exhibits MA ‘2a’, and MA ‘2b’ respectively. They also exhibited the Memorandum of Understanding, as exhibit MA5. Furthermore, they exhibited evidence of payments made by the appellant and invoice issued by the respondent. Respondent also deposed to the fact that in their belief the appellant had no defence to the action.</p> <p>In their affidavit in opposition deposed to by one Ivan Romanov, the Managing Director, the appellant relied on the statement of defence which he said raised “very serious and triable issues”. Consequently, the appellant relied wholly on the statement of defence filed on 27<sup>th</sup> January 2015 wherein they made the following material averments:</p> <p class="rteindent1">“4. The defendant denies paragraph 4 of the statement of claim. In further denial, the defendant contends that the Sale and Purchase Agreement was executed between the defendant and Omaroil but Omaroil subsequently instructed defendant to transfer the purchase price to plaintiff on its behalf.</p> <p class="rteindent1">5………….Defendant shall contend that the agreement to transfer the purchase price to plaintiff’s account on behalf of Omaroil does not transfer any liability of Omaroil onto defendant. Accordingly plaintiff has no cause of action against defendant.</p> <p class="rteindent1">8. Save that the parties executed a Memorandum of Understanding which merely confirmed the earlier position of defendant effecting payment on behalf of Omaroil to plaintiff without any definite amount stated therein, paragraph 8 of the statement of claim is denied and plaintiff is put to strict proof.</p> <p class="rteindent1">9. The defendant admits paragraph 9 of the statement of claim save that no amount was stated therein and the contents of the said MOU were mere understandings between the parties but is not binding and of no legal effect. Therefore the contention by plaintiff for payment of interest of 10% per annum is of no legal significance.</p> <p class="rteindent1">10. In the alternative, the defendant contends that it was at all material times agreed that all payments to plaintiff was (sic) for and on behalf of Omaroil and therefore, defendant cannot be made to pay any such interest on the amount. Accordingly, there is no contractual relationship or privity of contract between plaintiff and defendant.</p> <p class="rteindent1">12. Paragraphs 11-14 of the statement of claim are denied and plaintiff is put to strict proof.</p> <p class="rteindent1">13. Defendant shall contend that it had entered into another agreement with Omaroil on the 18/09/2014 in which defendant was to pay another entity, Dome Energy an amount of USD 240,000.00 and which said amount was to be used to offset from the defendant’s liability or debt for the crude oil supplied by Omaroil.  </p> <p class="rteindent1">14. The defendant will contend at the trial that it had to adhere to Omaroil’s instructions as they were the suppliers of the crude oil save that defendant was instructed to pay to the plaintiff herein for their facilitating the supply of crude oil to the defendant.</p> <p class="rteindent1">15. The defendant says it had no option to pay Dome Energy as instructed by Omaroil as they were the actual suppliers of the crude oil and their liability was to Omaroil and not the plaintiff.”</p> <p>In a supplementary affidavit in support of the application, the plaintiff deposed that the defence put up by the defendant was a sham. They also deposed that the agreement between the defendant and Omaroil in favour of Dome Energy, if at all, was not binding on the plaintiff.</p> <p>The defendant responded to this in a supplementary affidavit in opposition filed on 10<sup>th</sup> February 2015 by annexing the MOU in respect of the instructions to pay Dome Energy. It was marked OC1.</p> <p>The defendant relied largely on its pleadings for the evidence in rebuttal of the facts in support of the application. Rule 3(1) of Order 14 entitles the defendant to do that, for the rule says a party may show cause either by affidavit or otherwise. The expression ‘otherwise’ includes the pleadings so far filed on record. On the same point, in the case of <strong><em>Ray v. Newton, (1913)1 K.B. 249 at 258</em></strong> Hamilton, L.J. held the view that a defendant’s affidavit is not conclusive and does not preclude him from relying on defences not raised in it.</p> <p>The defendant is given much latitude to introduce any plausible or credible defence to the claim, subject of course to the test of relevancy, in order not to be shut out. And he may do so in an affidavit or by reference to existing pleadings or other acceptable ways of introducing evidence to a court. And the court is bound to have regard to everything the defendant has to offer to guide it in making a determination.</p> <p><strong> Decisions of the courts below.</strong></p> <p>The trial court dismissed the application for the reason that triable issues were raised on the pleadings in two areas, namely (i) “whether the plaintiff could take benefit of the contract by the assignment” and (ii) “the priority of the plaintiff and Omaroil” The Court of Appeal thought otherwise and reversed the High Court’s decision and entered judgment for the plaintiff, save for the relief for damages which it ordered the High Court to determine on merits.</p> <p>The reasons given by the Court of Appeal may be summed up thus:</p> <p class="rteindent1">1.  The fact that the defendant had made part payment to the plaintiff is an admission of liability.</p> <p class="rteindent1">2.  The issue of priority of payment between the defendant and Omaroil as found by the trial judge is erroneous and non-existent.</p> <p class="rteindent1">3.  The issue of privity as raised by the defendant is “not real, and not substantial or consequential” as defendant “is estopped by its own conduct in raising the said issue having previously made payments” to the plaintiff before the action giving rise to the appeal was commenced.</p> <p class="rteindent1">4.  There was an assignment to the plaintiff by Omaroil under the SPA of 18<sup>th</sup> July 2014. Consequently “by virtue of section 7 of Act 25…….the assignment of legal rights and interest to an assignee extinguishes the rights and interest of the assignor” </p> <p>Being dissatisfied with this decision, the defendant has appealed to this court on these grounds:</p> <p class="rteindent1">(a) The learned Justices of the Court of Appeal erred in holding that the provisions of the Sale and Purchase Agreement dated the 18<sup>th</sup> day of July, 2014, inured to the benefit of the plaintiff which at all material times was not a party to the said agreement.</p> <p class="rteindent1">(b) The learned Justices of the Court of Appeal failed to consider in detail the plaintiff’s claim which was mainly for facilitation of the supply of crude oil to defendant and not for the actual supply of crude oil to defendant.</p> <p class="rteindent1">(c) The learned Justices of the Court of Appeal erred in granting the Plaintiff summary judgment without any proof of the amount due and in the face of triable issues raised on the pleadings and affidavits of both parties to this suit.</p> <p class="rteindent1">(d) The award of GH₵10,000.00 made by the Court of Appeal as costs in favour of the plaintiff is rather harsh and excessive.</p> <p><strong>Arguments by Counsel</strong></p> <p>The appellant’s counsel argued grounds (a) and (b) together, followed by (c). However, he abandoned ground (d) on the question of costs. We would address all the grounds together for purposes of convenience since they all arise from the same facts and source/s of law. To begin with, Counsel for the appellant argued that the first two grounds of appeal are intended to raise for the consideration and/or determination by this court “whether triable issues were raised on the pleadings of the parties or otherwise to warrant a grant or refusal of an application for summary judgment under Order 14 of C.I. 47.” Counsel cited this court’s decision in the case of <strong>Ballast Nedam Ghana BV vs. Horizon Marine Construction Ltd. (2010) SCGLR 435, </strong>on the scope of Order 14. And for the same purpose, he also cited the dictum of Wood JA (as she then was) in the case of <strong>Sadhwani vs. Alhassan (1999-2000) 1 GLR 19 CA </strong>at p. 25. Counsel stated the fact that though the court below cited both of these authorities, yet it misapplied their <em>ratio decidendi, </em>thereby occasioning a grave miscarriage of justice.</p> <p>Counsel then made this material assertion: “<em>Examining the statement of claim and affidavit in support filed by the respondent, alone, without comparing same with the processes filed by the appellant, should have convinced the lower court that the respondent is not entitled to summary judgment.”</em></p> <p>Counsel proceeded to examine the plaintiff’s case as pleaded, and pointed out two inconsistent or contradictory claims. The first one pleaded in paragraph 4 of the statement of claim, supra, is a claim based on payment of commission for facilitating the supply and delivery of oil to the defendant. The second is based on the actual supply of the crude oil contained in the contract, exhibit MA1. Counsel therefore stated that “<em>this apparent inconsistency of whether respondent was launching a claim against appellant as a facilitator entitled to commission or as the seller or supplier of the crude oil, was never resolved and still remains unresolved.”</em></p> <p>On the issue of assignment, counsel contended that there is no evidence on record that the seller, Omaroil, ever expressly assigned its interest in the SPA to the respondent.</p> <p>On the payments made by the appellant to the respondent, counsel contended that they were made to the respondent’s account “because that was nominated by Omaroil in the contract, exhibit MA1” Thus the payment could not be construed as an admission of the appellant’s liability to the respondent, counsel opined. Consequently, counsel submitted that the “contention by the appellant in its statement of defence that the respondent has no cause of action should have been interrogated to the hilt by the lower court before arriving at its decision. It is an issue arising from the pleadings of both parties to the suit.”</p> <p>In counsel’s view, several questions remained unresolved through the summary procedure adopted, and it would be fair and just that all questions be addressed through a full trial.</p> <p>In response to these arguments, counsel for the respondent said the respondent never pleaded that they were to be paid ‘some commission’ for facilitating the supply and delivery of the crude oil. Counsel stated that “it has never been the contention of the respondent that it was entitled to ‘some commission’ neither has it been in controversy, whether the respondent facilitated or actually supplied the crude oil. In fact, nowhere in the appellant’s pleadings was the issue of whether the respondent ‘facilitated’ or actually supplied the crude oil raised as an issue for determination by the lower courts.” According to counsel, the respondent’s case has been that it “facilitated the supply of the crude oil” to the appellant, per paragraph 4 of the statement of claim, repeated in paragraph 8 of the affidavit in support of the motion for summary judgment. This is the basis for the respondent’s claim, counsel contended.</p> <p>Counsel stated that the question whether the plaintiff was basing his claim on commission for facilitating the supply of crude oil was a new matter as same was never raised before any of the courts below. Besides, counsel referred to the fact that the request to interrogate the issue of supply and delivery of the crude oil was also a new matter, which the trial judge did not find was a triable issue. It is too late in the day to raise such matter for the first time in the apex court, counsel submitted. The principle, in the words of counsel, was that “facts which were not canvassed as being the subject matter before a lower court cannot be raised for the very first time at an appellate court.” He cited the authority of <strong>Antie and Adjuwuah v. Ogbo (2005-2006) SCGLR 494, </strong>holding 5. Further, counsel’s view was that it would amount to accepting a case different from what the party had put forward, and that would be contrary to the decision in the case of <strong>Dam v. Addo (1962) 2 GLR 200. </strong>He also cited the case of <strong>Aboagye v. Controller and Accountant-General &amp; Another (2012) SCGLR 538, </strong>where it was stated that it was not permissible under the Supreme Court Rules to introduce evidence by way of the statement of case.</p> <p>On the specific questions of privity and assignment, counsel was of the firm opinion that if there was no assignment, there would have been no basis for the execution of the MOU, exhibit MA5, and also for the appellant to have paid so much money to the respondent. According to counsel, the respondent was designated as the beneficiary of the funds under the contract wherein it was stated to benefit assignees of the parties, inter alia. The respondent was named in Appendix A of the contract as the beneficiary thereof. He also cited the various correspondences on the subject which he said confirmed the respondent as the beneficiary of the proceeds. In concluding this question, Counsel submitted that an attempt to distinguish between the assignment of the benefit and beneficiary “is of no legal consequence as to warrant a re-opening of this matter for trial. It is abundantly clear that the benefits of the contract had been unequivocally conferred on the respondents…..”</p> <p>On ground (c), the appellant is challenging the decision of the Court of Appeal that the provisions of the SPA inured to the benefit of the respondent when it was not a party thereto. The court below had stated that the appellant had acknowledged its indebtedness to the respondent and has pursuant thereto made part payments. It also stated that the seller had assigned its rights under the SPA to the respondent. The Court also stated that the respondent was the beneficiary of the SPA under Appendix A thereof. The appellant’s view was that there was nothing in the SPA which suggested that the respondent was a beneficiary; merely using its bank account to receive payments under the SPA did not constitute the respondent into a beneficiary, counsel submitted. Counsel also made reference to the other exhibits and concluded that they did not conclusively make the respondent a beneficiary. Counsel also referred to the lower court’s description of the respondent as an assignee of Omaroil and said the respondent could not be a beneficiary and an assignee at the same time. At any rate there was no evidence of an assignment. According to Counsel, what the court below did was tantamount to dealing with the matter on merits by the affidavits, contrary to the clear decision in the Sadhwani case, supra.</p> <p>In his response, counsel for the respondent said the SPA was made to benefit the respondent; consequently, the provisions of sections 5 and 6 of Act 25 were applicable. Thus the appellant and Omaroil were not entitled to vary the terms of the contract or rescind same. Counsel stated that “by the combined effect of exhibits MA(1), MA 2a &amp; b, MA(4) and MA(5), the appellant undertook to pay all proceeds to respondent. Having bound itself to such an agreement or undertaking, it is now not open to the appellant to contend that the court should have delved into the issue of whether or not it was bound by that undertaking to the respondent. In any case, it was not clear from the appellant’s pleadings whether the said amount of US$240,000.00 allegedly instructed to be paid to Dome Energy was paid. What is clear from the appellant’s affidavit in opposition and the submissions of his counsel…….is that, only an amount of USD183,000.00 was paid and even that, no evidence of payment was exhibited.”</p> <p><strong>Consideration by the court</strong></p> <p>Starting from the last submission by Counsel for the respondent, he stated that the payment of USD183,000.00, even if made, should not affect the appellant’s obligation to the respondent. In effect even if the appellant has paid part of the amount stated in the SPA to the seller’s credit as instructed in exhibit OC1, it is a matter of no consequence as far as the respondent is concerned. In effect without even interrogating the case, the court should overlook the apparent overpayment that evidence on record has thrown up. The court would not be entitled to ignore what appears to be double payment under the same contract, intended to benefit the seller and the respondent who claims to be the seller’s assignee. They would be unjustly enriched thereby and the court could not close its eyes to it. This was a sufficient reason why judgment should not have been entered for the respondent, at least not for the entire claim.</p> <p>We would next consider what counsel for the respondent referred to as new matters and/or evidence which have been raised for the first time in this appeal. It is observed that up to this point all arguments and decisions have been based on the pleadings and affidavit evidence filed before the trial court. Thus factually, nothing new has been introduced since then. It is clear all the submissions have been made pursuant to the facts on record. For that reason the submissions are admissible even if not canvassed in the courts below. What we understand counsel to be doing is placing different construction on the pleadings and affidavit evidence, especially the exhibits. This does not amount to introducing new matter or evidence. The court is entitled to draw inferences from accepted facts on record and for that reason a party may urge on the court a particular meaning or construction on the accepted facts even if the court below was not given such benefit. It does not violate any of the principles highlighted by counsel for the respondent in his submissions which have been outlined above. </p> <p>Order 14 of C.I. 47 has the following relevant provisions:</p> <p>Rule 1</p> <p><strong>Application for summary judgment</strong></p> <p>1 Where in an action a defendant has been served with a statement of claim and has filed appearance, the plaintiff may on notice apply to the Court for judgment against the defendant on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or that the defendant has no defence to such a claim or part of a claim, except as to the amount of damages claimed.</p> <p>Rule 2</p> <p class="rteindent1">(1) The notice of the application shall set out the reliefs sought by the plaintiff.</p> <p class="rteindent1">(2) The notice shall be supported by an affidavit verifying the facts on  which the relevant claim or part of a claim is based, and stating that in the deponent’s belief there is no defence to that claim or part of a claim, or no defence except as to the amount of damages claimed.</p> <p>Rule 3</p> <p><strong>Defendant may show cause</strong></p> <p>(1) A defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court.</p> <p>Rule 5</p> <p class="rteindent1">(1) On the hearing of the application the Court may</p> <p class="rteindent1">(a)  give such judgment for the plaintiff against the defendant on the relevant claim or part of a claim as may be just having regard to the nature of the remedy or relief sought, unless the defendant satisfies the Court, with respect to that claim or part of it, that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part of it.</p> <p>Over the years the courts have expressed in different ways what considerations to apply in proceedings for summary judgment. Some of them are contained in the following authorities:</p> <p class="rteindent1">(i)      In the case of <strong>Ballast etc v Horizon Marine Construction, </strong>supra, this court stated, per Gbadegbe, JSC, that “the court may only grant the application in cases where the defendant failed to set up a good defence or raise an issue which ought to be tried.”</p> <p class="rteindent1">(ii)      In <strong>Sadhwani v. Alhassan, </strong>supra, the court spoke of bona fide or good defence, that means a defence known in law, to entitle a defendant to defeat an application for summary judgment, and also that the court should not rely on affidavit evidence to dispose of triable issues.</p> <p class="rteindent1">(iii)     In the case of <strong>Jones v. Stone (1894) AC 122; 70 L.T. 174, </strong>Lord Halsbury stated that the proceeding established by Order 14 is a peculiar proceeding, intended only to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment; and where it is inexpedient to allow defendant to defend for mere purposes of delay.</p> <p class="rteindent1">(iv)     <strong>in Daimler Co. Ltd. v Continental Tyre &amp; Rubber Co. (Great Britain), Ltd. (1916) 2 A.C. 307; (1916-17) All E.R. Rep. 191, </strong>the trial-provided of course there is no arguable defence to the action-nevertheless, facts, this procedure was not appropriate. Among others, the defendant had alleged that the action was commenced without proper authorisation.</p> <p class="rteindent1">(v)      “When the Judge is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant, it is his duty to give judgment for the plaintiff”, per Jessel MR, in <strong>Anglo-Italian Bank v. Wells (1878) 38 L.T. 197 C.A. </strong>at 201.</p> <p class="rteindent1">(vi)     Even when there is a fair probability of a defence, leave to defend should be given; see <strong>Ward v. Plumbley, (1890), 6 T.L.R. 198.</strong></p> <p class="rteindent1">(vii)    It is important to note these significant words of Anin J.A. (as he then was) in the case of Wilson. V. Smith (1980) G.L.R. 152 at 161: “<em>While it is true that the rationale behind the summary procedure under Order 14 of L.N. 140A is to provide the plaintiff with a speedy mode of recovery of judgment in cases properly falling under it and thereby to prevent him from being delayed and put to an unnecessary and protracted trial-provided of course there is no arguable defence to the action-nevertheless, the Order was not intended as an engine for the suppression of the defendant. The Order is only intended to apply to cases where there is no substantial dispute as to the facts or the law.”</em></p> <p>It is observed that under both the old rules contained in Order 14 of the High Court (Civil Procedure) Rules, 1954, L.N. 140A (repealed) and the new rules under C.I. 47, also Order 14 thereof the provisions for summary judgment have been similar in content. Similar provisions apply under the English rules, thus the English authorities on this subject are quite germane and persuasive. These principles are also outlined in the Supreme Court Practice, 1967 edition at page 119 in these words: “<strong><em>The defendant may show cause against the plaintiff’s application….(2)on the merits, e.g. that he has a good defence to the claim on the merits, or that a difficult point of law is involved, or a dispute as to the facts which ought to be tried, or a real dispute as to the amount due which required the taking of an account to determine, or any other circumstances showing reasonable grounds of a bona fide defence.”</em></strong></p> <p>There are numerous cases which need not be cited, for the principles have become well-known and accepted and are briefly condensed in rule 5(1)(a) of Order 14. In summary, the court must be satisfied that on the facts and law the defendant ought to be given the opportunity to be heard on merits, where his defence raises reasonable and arguable points and is not intended merely to cause delay and is not a sham. A complete defence is not required at this stage; but as was held in <strong>Wallingford v. Mutual Society (1880) 5 App. Cas. 685; 29 W.R. 81 H.L. </strong>mere denial is insufficient; the defendant must give sufficient facts and particulars to show that there is a bona fide defence. </p> <p>We recount what counsel for the appellant said in his statement of case that  “Examining the statement of claim and affidavit in support filed by the respondent, alone, without comparing same with the processes filed by the appellant, should have convinced the lower Court that the respondent is not entitled to summary judgment.’’ In effect counsel is saying the plaintiff made no prima facie case in the first place to have warranted a consideration of the defence to the claim. Even though counsel did not expatiate on this, it is a true representation of the initial consideration of an application under order 14.</p> <p>Rules 1, 2 and 3 are the heartbeat of Order 14 and complement each other and should thus be construed together. The starting point in an application under this Order is for the court to examine the endorsement on the writ, statement of claim and affidavit in support of the application and decide whether the plaintiff has made what is called a prima facie case to entitle him to the court’s decision, even in the absence of a defence. Rule 1 entitles the plaintiff to make the application for summary judgment after entry of appearance; that is, even before the defendant has filed a statement of defence. This means that the court may proceed to examine only the material placed before it by the plaintiff. Hence the requirement that the court should be satisfied that the plaintiff has made a case, albeit prima facie. Where the court takes the view that the application is properly constituted, the burden is shifted to the defendant to show cause by affidavit evidence or otherwise, especially his statement of defence, if any has been filed, that he has a good, bona fide, reasonable, or fair defence to the plaint, in short that he has raised a legally cognizable defence to the claim or a part of it which ought to be tried as rule 5(1)(a) requires.</p> <p>In the statement of claim, the respondent averred that an SPA was entered into between the defendant and Omaroil. The respondent was not a party to this contract. The pleading also stated that the respondent was to be paid some money for facilitating the supply of crude oil under the contract, per paragraph 4 thereof, supra, which is repeated for purposes of emphasis:</p> <p class="rteindent1"><strong>“Plaintiff says that pursuant to the Sales and Purchase Agreement executed between Omaroil Agency Limited and the Defendant it was agreed between the parties that an amount of USD87.10 per barrel was to be paid within 10 days of discharge to the Plaintiff for its benefit for facilitating the supply of the crude oil to the Defendant.”</strong></p> <p>This particular pleading was the subject of two different constructions and given two different meanings. Taking the first construction or meaning which is espoused by counsel for the respondent, the payment due the plaintiff is covered by the SPA itself, wherein the seller was given the right to assign and the respondent was made a beneficiary. Following the second construction or meaning, Counsel for the appellant understands the respondent to be saying that besides the SPA there was another agreement between defendant and Omaroil which was made for the benefit of the respondent to the tune of USD87.10 per barrel payable by the appellant to the respondent within a period of 10 days of the supply or delivery. But Counsel for the respondent strenuously argued that there was no such discrepancy between the said paragraph 4 and the SPA in as far as the SPA was intended to benefit the respondent.</p> <p>Since the arguments are based on the same pleading and facts, we would proceed to discuss the two viewpoints together. Having regard to the nature of the case put forward by the respondent, certain questions arose. Since the respondent is not a party to the SPA, was there an assignment of Omaroil’s interest therein to the respondent? Or was the respondent a beneficiary of the SPA under its clear terms? What document evidences the other agreement, if any, referred to in paragraph 4 of the statement of claim? Is the appellant liable under both the SPA and the agreement, if any, mentioned in paragraph 4 of the statement of claim? Taking into account the averments in the statement of claim, these are legitimate questions which the trial court could raise even without regard to the defence. And if the court was not satisfied that there was a clear assignment, or that the respondent was a beneficiary under the SPA, he ought to refuse the application for summary judgment. In his view, Counsel for the respondent considered these matters to be trivial and inconsequential, but they are not. The party must be made to know the basis of the claim against him, for that will inform the nature of his defence.</p> <p>The appellant pleaded that the respondent had no cause of action against it since the respondent was not a party to the SPA and was neither a beneficiary nor assignee thereof. It is observed that all the various correspondences exhibited in this application made reference to the SPA as the only contract. The respondent admits it is not a party to it; thus there was the need for evidence to be adduced to satisfy the court that there was an assignment to it or it was a beneficiary of the SPA which entitled it to sue under the SPA, in other words that it has a cause of action under the SPA in its own right. When the issue is raised as to a cause of action, it ought to be interrogated first before any further step is taken in the action for it goes to the foundation of the matter before the court. For in a case founded on contract, the principle applicable, as stated in Halsbury’s Laws of England, 5<sup>th</sup> edition Vol 11, paragraph 208 at page 206 is that “<em>the proper claimant is the person with whom or on whose behalf the contract was made, or in whom the rights under the contract are vested.” </em>  </p> <p>The Court of Appeal answered these questions in favour of the respondent, for reasons which have been summarized above. It is clear there was no privity between the respondent and Omaroil as far as the SPA was concerned. But lack of privity could be defeated by a successful plea of assignment as an exception to the rules on privity. On the other hand, he could succeed if it established that it was a beneficiary of the contract. All the other matters arising in this case are ancillary to a resolution of the key questions of whether the respondent is an assignee of Omaroil or a beneficiary under the SPA. These two concepts, namely assignment and beneficiary under a contract, have different connotations in law so it was inappropriate for the Court below to have treated them together as one legal concept.</p> <p>What is required to be established in a case founded on assignment of an interest under contract? The elements applicable for the consensual transfer of rights under a contract are equally applicable to assignment under a contract, since it also entails a transfer of right/s. Thus to be legally effective, an assignment of rights under a contract must establish four elements. These elements have statutory backing in subsections 1 and 2 of section 7 of the Contracts Act, 1960, (Act 25). These are:</p> <p class="rteindent1">i.        The assignor must have the original right to the subject-matter; in this case the sum mentioned in the SPA. <em>Nemo dat quod non</em> <em>habet</em> applies.</p> <p class="rteindent1">ii.       The assignor must have expressed or exhibited clear intent to divest itself of its title or right to the subject-matter. This is a requirement under consensual transfer of right under contract as well as the Statute, namely section 7(1) of Act 25.</p> <p class="rteindent1">iii.      The assignor must have taken steps to effectuate that intention by an act of transfer or an agreement to assign recognized in law or equity. Section 7(2)(b) of Act 25 requires it to be in writing signed by the assignor or his agent. This does not exclude the principles of equity against fraud and unjust enrichment; if the court finds it unconscionable to allow an assignor to resile from his action which has caused detriment to the assignee, it will enforce it even in the absence of writing.</p> <p class="rteindent1">iv.      The subject-matter of the assignment, in this case, the amount of money, must be known and certain.</p> <p>The facts relied upon by the Court of Appeal were the SPA itself, the MOU, the various correspondences and the payments made by the appellant to the respondent. It is noted that the MOU as well as all the various correspondences made reference to, and relied on, the SPA. Thus the parties had no doubt that the SPA reigned supreme. If the respondent was the beneficiary under the SPA, why was Omaroil a party to the subsequent MOU? If the respondent was the assignee of Omaroil’s rights since 18<sup>th</sup> July 2014, why was Omaroil’s consent subsequently required for any transaction in relation to the SPA? Counsel for the respondent sought to answer by stating that the Appendix A took its roots from article 24 of the SPA, and when read together they made the respondent the beneficiary of the contract. But it does not answer the question why Omaroil’s consent was still required after making the respondent the beneficiary of the contract. Let us quote these provisions of the SPA and discuss their import. They provide:</p> <p class="rteindent1">“24. <strong>Appendices: </strong>There is one (1) appendix in this contract: Banking Coordinates (Appendix A)</p> <p class="rteindent1"><strong>APPENDIX (A)</strong></p> <p class="rteindent1"><strong>SELLER’S BANKING DETAILS</strong></p> <p class="rteindent1"><strong>BANK NAME                                      ECOBANK GHANA LIMITED</strong></p> <p class="rteindent1"><strong>BANK ADDRESS                       TEMA MAIN BRANCH</strong></p> <p class="rteindent1"><strong>ACCOUNT NAME                      ABIVAMS LIMITED</strong></p> <p class="rteindent1"><strong>BENEFICIARY                                   ABIVAMS LIMITED</strong></p> <p class="rteindent1"><strong>SWIFT CODE                                     </strong></p> <p class="rteindent1"><strong>IBAN ACCOUNT NO.</strong></p> <p class="rteindent1"><strong>CURRENCY                              USD</strong></p> <p class="rteindent1"><strong>A/C OFFICER</strong></p> <p class="rteindent1"><strong>A/C OFFICER CONTACT</strong></p> <p class="rteindent1"><strong>BUYER’S BANK DETAILS</strong></p> <p class="rteindent1"><strong>BANK NAME                                      UT BANK LTD</strong></p> <p class="rteindent1"><strong>BANK ADDRESS                       25B MANET TOWERS, AIRPORT CITY</strong></p> <p class="rteindent1"><strong>ACCOUNT NAME                      PLATON GAS OIL GHANA LTD</strong></p> <p class="rteindent1"><strong>BENEFICIARY                                   PLATON GAS GHANA LTD</strong></p> <p class="rteindent1"><strong>ACCOUNT NO</strong></p> <p class="rteindent1"><strong>CURRENCY                              USD</strong></p> <p class="rteindent1"><strong>ACCOUNT OFFICER</strong></p> <p class="rteindent1"><strong>TELEPHONE NO.</strong></p> <p>Article 24 of the contract upon which Appendix A hinges only makes provision for bank account, and in this context bank account to be named by both parties. The use of the expression ‘Beneficiary’ appears under Appendix A in both the buyer and seller’s account. It could bear more than one meaning, having regard to (i) the express words used and (ii) the subsequent conduct of the parties. On the face of the document, it could mean that the account holder is the same person who is the beneficiary of the account, in other words there is no other beneficiary of the account, like a trust or client or joint account which have other beneficiaries. It could also mean, as described by the respondent that it meant the money was for the benefit of the respondent. It could also mean that despite the designation of the respondent’s bank account to receive the payment, the money remains that of the seller hence the description in the contract as the “Seller’s Banking Details” and not the Beneficiary’s Banking Details. And from the subsequent conduct of the parties in involving Omaroil in signing MOU etc in respect of the SPA it appeared the contract does not mean what the respondent ascribes to it. In short, there was no clear intent from the face of the SPA and subsequent dealings or conduct of the parties that Omaroil had ceded its right to the money to the respondent. The lack of intention is buttressed by the fact that Omaroil also contracted with the appellant to pay part of this amount to another named person in exhibit OC1 dated 18<sup>th</sup> September 2014. A key element in assignment appears to be missing upon reading the SPA, MOU and exhibit OC1. Certainly intent may be established through the writing required by section 7(2) of the Contracts Act if indeed there was one.</p> <p>It is also significant to note that there is nothing in the express terms of the SPA that an assignment has been made to the respondent by Omaroil. The agreement only permitted Omaroil to assign its interest, meaning that it could be done by a separate agreement subsequently.</p> <p>On the question of whether the respondent was a beneficiary under the SPA, the respondent recounted Appendix A of the SPA and relied on Sections 5 and 6 of Act 25 the relevant of which which provide thus:</p> <p class="rteindent1">“<strong>5. Provision in contract for benefit of third party</strong></p> <p class="rteindent2"><strong>(1)          A provision in a contract made after the commencement of this Act which purports to confer a benefit on a person who is not a party to the contract, whether as a designated person or as a member of a class of persons, may, subject to this section and sections 6 and 7, be enforced or relied on by that person as though that person were a party to the contract.</strong></p> <p class="rteindent1"><strong>6.  Rights of third party</strong></p> <p class="rteindent1"><strong>Where under section 5 a person who is not a party to a contract is entitled to enforce or rely on a provision in the contract,</strong></p> <p class="rteindent2"><strong>(a)          a variation or rescission of the contract shall not prejudice that person’s right to enforce or rely on the provision if that party has acted to the prejudice of that party in reliance on the variation or rescission, unless that party consents to the variation or rescission; and</strong></p> <p class="rteindent2"><strong>(b)          subject to paragraph (a), a party against whom the provision is sought to be enforced or relied on is entitled to rely on or to plead by way of defence, set-off, counterclaim or otherwise a matter relating to the contract which that party could have so relied on or pleaded if the provision were sought to be enforced or relied on by the other party in the contract. </strong></p> <p>The applicable statutory provisions have been correctly cited by the respondent. However, these provisions apply only where the contract clearly confers a benefit on the third party. But as earlier pointed out, from article 24 and Appendix A of the SPA, one cannot conclude positively, without further extraneous evidence, that it conferred a benefit on the respondent. The SPA referred to the seller and not a facilitator of the sale as paragraph 4 of the statement of claim talks about. The seller as used in the SPA is not synonymous with a facilitator as used in the pleadings. If they are one and the same, let there be evidence to prove it. Based on the available evidence we hold that these provisions do not apply and the court below was wrong in concluding that those provisions under the SPA conferred a benefit on the respondent.</p> <p>What must be noted now is that at this stage it is not a full blown trial, the defendant only needs to show that he has a reasonable defence to the claim and his defence is not a sham or intended to delay payment. The defence raises for the court’s consideration key legal issues of assignment and enforcement of contract. If indeed exhibit OC1 is valid, the court’s decision would mean the appellant would have been compelled to over pay what was contracted for.</p> <p>To get over the issue of intent to assign and the effects of exhibit OC1, the Court of Appeal relied on section 7 of the Contracts Act and concluded that Omaroil could not validly enter into another contract exhibit OC1 when it had already assigned its interest under the SPA to the respondent. Section 7 of Act 25 provides that:</p> <p class="rteindent1"><strong><em>(1)          Subject to the relevant rule of law, and subject to any contrary intention appearing from a transaction giving rise to legal rights, a person may, after the commencement of this Act, assign a legal right to another person as specified in this Act.</em></strong></p> <p class="rteindent1"><strong><em>(2)          An assignment, whether given for consideration or not, of a vested right, transfers the right and interest in the assignment to the assignee and extinguishes the right and interest in the assignment of the assignor if-</em></strong></p> <p class="rteindent2"><strong><em>(a)     it is absolute and not by way of a charge only; and </em></strong></p> <p class="rteindent2"><strong><em>(b)     it is in writing and is signed by the assignor or the agent of the assignor; and </em></strong></p> <p class="rteindent2"><strong><em>(c) written notice of the assignment is given to the debtor or any other person against whom the right is enforceable.</em></strong></p> <p class="rteindent1"><strong><em>(3)          A purported assignment of a conditional right operates as a promise to assign the right if and when the condition occurs.</em></strong></p> <p class="rteindent1"><strong><em>(4)          An assignment, whether given for consideration or not, is valid although it does not comply with all or any of the requirements of subsection (2) but-</em></strong></p> <p class="rteindent1"><strong><em>(a)     a right so assigned shall not be enforced or relied on against the debtor or other party against whom the right is enforceable unless the assignor is a party to the proceedings in which it is sought to be enforced or relied on, or unless the Court is satisfied that it would be impossible or impracticable so to join the assignor; and</em></strong></p> <p class="rteindent1"><strong><em>(b)     the assignment shall not prejudice the debtor or any other person against whom the right is enforceable unless the debtor or the other person has written notice of the assignment.</em></strong></p> <p class="rteindent1"><strong><em>(5)          Where there are two or more assignments in respect of the same debt or right, a later assignee has priority over an earlier assignee if the debtor or other person liable had not received written notice of the earlier assignment at the time when the later assignment was made.</em></strong></p> <p class="rteindent1"><strong><em>(6)          A debtor or other person against whom a right is enforceable is entitled as against a person to whom the debt or the other right is assigned, to rely on or plead by way of defence, set off, counterclaim or otherwise, a matter relating to the right which the debtor or that other person could have relied on or pleaded against the assignor at the time when the writtten notice of the assignment was received by the debtor or that other person.</em></strong></p> <p>Section 7 applies when it is established that there was an assignment in terms of the elements set out above, meaning there was an intent to assign, and there was writing identifying the subject-matter and specifically naming an assignee and bringing it to the notice of the debtor. As earlier stated, the SPA does not unequivocally create an assignment in favour of the respondent. The conduct of the purported assignor in signing exhibit OC1 seems to suggest that under the SPA it meant to retain ownership of the amount stated therein and this gives more credibility to the suggestion that article 24 of the SPA and Appendix A only chose the respondent’s bank account to receive payments from the appellant. When the MOU and the various correspondences are read together with the SPA, there is no doubt that the parties were still relying on the provisions of the SPA to which the respondent was not a party and which on the face of it did not make it an assignee. Evidence is required to unearth the Omaroil’s intention in signing both exhibits OC1 in September 2014 and then exhibit MA5 in October 2014, vis-a-vis the earlier documents signed in July 2014.</p> <p>In summary, the court has to consider the fact that the SPA, MOU and the various correspondences did not appear to have specifically made the respondent a beneficiary, neither do they appear to have created an assignment of Omaroil’s rights, except that payments were to be made to the respondent per its stated bank account. It also has to consider the fact that the defence has raised very critical issue of cause of action, and the probability that it might face payments under two different contracts on the same subject-matter resulting in over payment. At this stage it is unwise in as much as it is unreasonable to reject exhibit OC1 when a clear intent to assign and actual assignment of Omaroil’s rights under the SPA have not been fully unearthed.</p> <p>The Court of Appeal undertook to construe the documents exhibited by the parties in coming to its decision. That would have been justified if the documents were conclusive of the matter. The respondent denies any knowledge of exhibit OC1 and the payment/s that were made under it. Therefore, the appellant would be required to provide evidence at a trial to prove the validity of exhibit OC1 and the payments made pursuant thereto. The appellant would also have to satisfy the court that it was entitled to deduct the amount contained in exhibit OC1 from whatever the balance is in the SPA. The respondent would be required to prove that it was either a beneficiary or assignee of the SPA, which is not easily deducible from the totality of the documentary evidence at this stage.</p> <p>The principle is that where, on an application for summary judgment, the issue raised was a pure point of construction which could be as well determined on summary application as at a trial, because it would not be affected by evidence, the court had jurisdiction to grant summary judgment, on the basis that a trial would have no realistic prospect of causing it to reach a different judgment. That was so stated in the case of <strong>BBC Worldwide Ltd. v. Bee Load Ltd., t/a Archangel Ltd. (2007) T.L.R. 86. </strong>But this matter does not depend on pure construction of documents, as at least exhibit OC1 and payments made under it have to be established at the trial, and moreover the exhibits are capable of more than one plausible construction and will thus require some form of evidence to assist the court determine the issues. Most importantly, the very basis of the respondent’s action is reasonably being challenged for if it is neither a beneficiary under the SPA nor an assignee of Omaroil, the respondent might not have a cause of action against the appellant.</p> <p>It is for these reasons that we conclude that the appellant was unjustifiably shut out of the trial. We therefore allow the appeal, set aside the judgment of the Court of Appeal and restore the decision of the High Court. We must state that except on matters of law stated herein which are binding on the courts below, nothing stated herein should be taken as a finding of fact by this Court; all the issues are at large and the trial court is unfettered in its decision to conduct a ‘full blown’ trial.</p> <p class="rtecenter"><strong>A. A. BENIN</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>S. A. B. AKUFFO (MS)</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>ANIN YEBOAH</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>P. BAFFOE-BONNIE</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>G. PWAMANG</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong><u>COUNSEL</u></strong></p> <p>OSAFO BUABENG FOR THE DEFENDANT/RESPONDENT/APPELLANT.</p> <p>CHARLES TETTEH FOR THE PLAINTIFF/APPELLANT/RESPONDENT.</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-18293e2e2ed0f11946574bd24e8e84e06e93d592721ccc383e7ffed3209cbb08"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p class="rtecenter"> </p> <p class="rtecenter"><strong><u>IN THE SUPERIOR COURT OF JUDICATURE</u></strong></p> <p class="rtecenter"><strong><u>IN THE SUPREME COURT</u></strong></p> <p class="rtecenter"><strong><u>ACCRA – A.D. 2017</u></strong></p> <p class="rtecenter"> </p> <p> </p> <p class="rteright"><u>CIVIL APPEAL NO. J4/29/2016</u></p> <p class="rteright"><u>31<sup>ST</sup> MAY, 2017</u></p> <p class="rteright"> </p> <p><strong>ABIVAMS LIMITED         ….         PLAINTIFF/APPELLANT/RESPONDENT</strong></p> <p><strong>VRS</strong></p> <div> <p><strong>PLATUN GAS OIL GHANA LTD.    ….    DEFENDANT/RESPONDENT/APPELLANT</strong></p> <p> </p> </div> <hr /><p class="rtecenter"><strong><u>JUDGMENT</u></strong></p> <hr /><p><strong><u>BENIN, JSC</u></strong><u>:- </u></p> <p>This appeal brings into focus once more the scope and limit of the popular Order 14 of the High Court (Civil Procedure) Rules), 2004, C.I. 47. That Order has become so popular even among students of the law because we are made to believe that it is the shortest route to obtain judgment in liquidated claims in particular, without going through the travails of litigation. But to the unwary judge who falls into that trap, he may be tempted to dismiss a defence to a claim under this order, as it were, to save time, especially bearing in mind the fact that the court is required to adopt expeditious and less expensive means to dispose of a case before it. But we must not lose sight of the fact that rules of court are meant to regulate orderly proceedings and nobody should be made to suffer therefrom, without real or just cause. The rules of natural justice prevail in all proceedings, hence the requirement that a person should not be made to suffer unless he has been heard in his defence, except by his own showing he does not want to be heard or clearly he has no defence to an action and should therefore not engage in a wild goose chase.</p> <p>As a result, the courts have over the years provided guidelines for the invocation of the provisions under Order 14 which every trial judge must observe, lest a defendant should be denied a hearing on merits, without justification. It is necessary at the outset of this decision to recall the caution sounded by Denman J in the case of <strong>Manger etc v. Cash (1889) 5 T.L.R. 271 </strong>when he said that: “<em>The jurisdiction is one to be exercised with great care, so as not to preclude a party from raising any defence he may really have. The judge is not to make the order if either he is satisfied that there is a defence, or that the defendant should be allowed to defend.” </em>This case is one of those cases in which the defendant/respondent/appellant, called the appellant, should have been allowed to defend but was denied this right to be heard on merits because of the unjustifiable invocation of Order 14 in favour of the plaintiff/appellant/respondent, called the respondent. The reasons for this conclusion with which this decision has begun would become apparent very shortly.</p> <p><strong>Facts of the case</strong></p> <p>On or about 13<sup>th</sup> January, 2015, the respondent issued a writ of summons at the High Court claiming the following reliefs against the appellant:</p> <p class="rteindent1">a.  An order for the recovery of the sum of USD522,010.06 or its equivalent in Ghana cedis at the prevailing commercial rate of exchange.</p> <p class="rteindent1">b.  Interest of 10% per annum on the said amount from 5<sup>th</sup> December, 2014 till date of final payment.</p> <p class="rteindent1">c.  General damages for breach of contract.</p> <p class="rteindent1">d.  Costs assessed at 10% of the amount owed, including Solicitors’ fees.</p> <p class="rteindent1">e.  Any further order(s) that this Honourable court could deem fit.</p> <p>For its full force and effect, we shall set out extensively the material contents of the accompanying statement of claim wherein the respondent averred as follows:</p> <p class="rteindent1">“3. The plaintiff says that pursuant to the Sales and Purchase Agreement (SPA) dated 18<sup>th</sup> July 2014, made between Omaroil Agency Limited as the seller of the one part and the Defendant herein as the buyer of the other part, Omaroil Agency Limited was to supply to the defendant 11,200 barrels of crude oil between the 23<sup>rd</sup> and 24<sup>th</sup> July 2014.</p> <p class="rteindent1">4. Plaintiff says that pursuant to the Sales and Purchase Agreement executed between Omaroil Agency Limited and the defendant it was agreed between the parties that an amount of USD87.10 per barrel was to be paid within 10 days of discharge to the plaintiff for its benefit for facilitating the supply of crude oil to the defendant.</p> <p class="rteindent1">5. Plaintiff says that a quantity of 8,149 barrels of crude oil was however actually supplied to the defendant on the 12<sup>th</sup> of August 2014 as a result of which it had to discount an amount of USD2.00 per barrel to the defendant as penalty for delay of 10 days, the discount of USD2.00 per barrel for the 10 days reduced the amount per barrel to USD85.10, thus bringing the total amount payable to USD693,479.90.</p> <p class="rteindent1">6. Plaintiff says that the defendant on 13<sup>th</sup> August 2014 through its bankers………..paid to it the Ghana cedi equivalent of USD120,000.00 out of the total amount of USD693,479.90 for the crude oil supplied to defendant.</p> <p class="rteindent1">7. Plaintiff also says that on the 18<sup>th</sup> August, 2014 it therefore issued the defendant with an invoice for the payment of outstanding balance of USD 567,479.90 for the quantity of oil supplied to defendant.</p> <p class="rteindent1">8. Plaintiff says that on the 2<sup>nd</sup> October, 2014 following the defendant’s failure to pay its outstanding debt, a Memorandum of Understanding to the Sales and Purchase Agreement was executed between it, the defendant and Omaeoil Agency Ltd in which the parties agreed that the defendant shall pay the outstanding balance of USD567, 479.90 to the plaintiff within two months in three equal installments by the 31<sup>st</sup> of December 2014.</p> <p class="rteindent1">9. Plaintiff also says that per the Memorandum of Understanding executed, it was also agreed by the parties that due to the delay on the part of the defendant to pay the amount of USD567,479.90 which was due and owing under the contract, an interest rate of 10% per annum from the 18<sup>th</sup> of August 2014……was to be paid on the outstanding balance.</p> <p class="rteindent1">10. Plaintiff further says that the defendant subsequently paid to it cash of USD10,000.00 on 5<sup>th</sup> December, 2014 as well as a further payment of the Ghana Cedi equivalent of USD52,416.50 by swift through its bankers……..leaving the outstanding balance of USD505,063.40.</p> <p class="rteindent1">11. Plaintiff says that the interest accrued on the outstanding balance……is USD16,946.66 bringing the total amount due and owing by the defendant under the contract to USD522,010.06 as at 5<sup>th</sup> December 2014.”</p> <p>The respondent brought the action following the appellant’s failure to pay the outstanding balance to it. The appellant entered appearance to the writ on 15<sup>th</sup> January 2015. On 22<sup>nd</sup> January 2015, the respondent caused to be filed a motion on notice for summary judgment under Order 14 of C.I. 47. In the affidavit in support deposed to by one Captain Michael Adu, the Managing Director of respondent-company, it exhibited a copy of the agreement made between the appellant and Omaroil, it was marked exhibit MA1. They also exhibited correspondence between the parties herein confirming that monies that were due under exhibit MA1 were to be paid to the respondent, marked as exhibits MA ‘2a’, and MA ‘2b’ respectively. They also exhibited the Memorandum of Understanding, as exhibit MA5. Furthermore, they exhibited evidence of payments made by the appellant and invoice issued by the respondent. Respondent also deposed to the fact that in their belief the appellant had no defence to the action.</p> <p>In their affidavit in opposition deposed to by one Ivan Romanov, the Managing Director, the appellant relied on the statement of defence which he said raised “very serious and triable issues”. Consequently, the appellant relied wholly on the statement of defence filed on 27<sup>th</sup> January 2015 wherein they made the following material averments:</p> <p class="rteindent1">“4. The defendant denies paragraph 4 of the statement of claim. In further denial, the defendant contends that the Sale and Purchase Agreement was executed between the defendant and Omaroil but Omaroil subsequently instructed defendant to transfer the purchase price to plaintiff on its behalf.</p> <p class="rteindent1">5………….Defendant shall contend that the agreement to transfer the purchase price to plaintiff’s account on behalf of Omaroil does not transfer any liability of Omaroil onto defendant. Accordingly plaintiff has no cause of action against defendant.</p> <p class="rteindent1">8. Save that the parties executed a Memorandum of Understanding which merely confirmed the earlier position of defendant effecting payment on behalf of Omaroil to plaintiff without any definite amount stated therein, paragraph 8 of the statement of claim is denied and plaintiff is put to strict proof.</p> <p class="rteindent1">9. The defendant admits paragraph 9 of the statement of claim save that no amount was stated therein and the contents of the said MOU were mere understandings between the parties but is not binding and of no legal effect. Therefore the contention by plaintiff for payment of interest of 10% per annum is of no legal significance.</p> <p class="rteindent1">10. In the alternative, the defendant contends that it was at all material times agreed that all payments to plaintiff was (sic) for and on behalf of Omaroil and therefore, defendant cannot be made to pay any such interest on the amount. Accordingly, there is no contractual relationship or privity of contract between plaintiff and defendant.</p> <p class="rteindent1">12. Paragraphs 11-14 of the statement of claim are denied and plaintiff is put to strict proof.</p> <p class="rteindent1">13. Defendant shall contend that it had entered into another agreement with Omaroil on the 18/09/2014 in which defendant was to pay another entity, Dome Energy an amount of USD 240,000.00 and which said amount was to be used to offset from the defendant’s liability or debt for the crude oil supplied by Omaroil.  </p> <p class="rteindent1">14. The defendant will contend at the trial that it had to adhere to Omaroil’s instructions as they were the suppliers of the crude oil save that defendant was instructed to pay to the plaintiff herein for their facilitating the supply of crude oil to the defendant.</p> <p class="rteindent1">15. The defendant says it had no option to pay Dome Energy as instructed by Omaroil as they were the actual suppliers of the crude oil and their liability was to Omaroil and not the plaintiff.”</p> <p>In a supplementary affidavit in support of the application, the plaintiff deposed that the defence put up by the defendant was a sham. They also deposed that the agreement between the defendant and Omaroil in favour of Dome Energy, if at all, was not binding on the plaintiff.</p> <p>The defendant responded to this in a supplementary affidavit in opposition filed on 10<sup>th</sup> February 2015 by annexing the MOU in respect of the instructions to pay Dome Energy. It was marked OC1.</p> <p>The defendant relied largely on its pleadings for the evidence in rebuttal of the facts in support of the application. Rule 3(1) of Order 14 entitles the defendant to do that, for the rule says a party may show cause either by affidavit or otherwise. The expression ‘otherwise’ includes the pleadings so far filed on record. On the same point, in the case of <strong><em>Ray v. Newton, (1913)1 K.B. 249 at 258</em></strong> Hamilton, L.J. held the view that a defendant’s affidavit is not conclusive and does not preclude him from relying on defences not raised in it.</p> <p>The defendant is given much latitude to introduce any plausible or credible defence to the claim, subject of course to the test of relevancy, in order not to be shut out. And he may do so in an affidavit or by reference to existing pleadings or other acceptable ways of introducing evidence to a court. And the court is bound to have regard to everything the defendant has to offer to guide it in making a determination.</p> <p><strong> Decisions of the courts below.</strong></p> <p>The trial court dismissed the application for the reason that triable issues were raised on the pleadings in two areas, namely (i) “whether the plaintiff could take benefit of the contract by the assignment” and (ii) “the priority of the plaintiff and Omaroil” The Court of Appeal thought otherwise and reversed the High Court’s decision and entered judgment for the plaintiff, save for the relief for damages which it ordered the High Court to determine on merits.</p> <p>The reasons given by the Court of Appeal may be summed up thus:</p> <p class="rteindent1">1.  The fact that the defendant had made part payment to the plaintiff is an admission of liability.</p> <p class="rteindent1">2.  The issue of priority of payment between the defendant and Omaroil as found by the trial judge is erroneous and non-existent.</p> <p class="rteindent1">3.  The issue of privity as raised by the defendant is “not real, and not substantial or consequential” as defendant “is estopped by its own conduct in raising the said issue having previously made payments” to the plaintiff before the action giving rise to the appeal was commenced.</p> <p class="rteindent1">4.  There was an assignment to the plaintiff by Omaroil under the SPA of 18<sup>th</sup> July 2014. Consequently “by virtue of section 7 of Act 25…….the assignment of legal rights and interest to an assignee extinguishes the rights and interest of the assignor” </p> <p>Being dissatisfied with this decision, the defendant has appealed to this court on these grounds:</p> <p class="rteindent1">(a) The learned Justices of the Court of Appeal erred in holding that the provisions of the Sale and Purchase Agreement dated the 18<sup>th</sup> day of July, 2014, inured to the benefit of the plaintiff which at all material times was not a party to the said agreement.</p> <p class="rteindent1">(b) The learned Justices of the Court of Appeal failed to consider in detail the plaintiff’s claim which was mainly for facilitation of the supply of crude oil to defendant and not for the actual supply of crude oil to defendant.</p> <p class="rteindent1">(c) The learned Justices of the Court of Appeal erred in granting the Plaintiff summary judgment without any proof of the amount due and in the face of triable issues raised on the pleadings and affidavits of both parties to this suit.</p> <p class="rteindent1">(d) The award of GH₵10,000.00 made by the Court of Appeal as costs in favour of the plaintiff is rather harsh and excessive.</p> <p><strong>Arguments by Counsel</strong></p> <p>The appellant’s counsel argued grounds (a) and (b) together, followed by (c). However, he abandoned ground (d) on the question of costs. We would address all the grounds together for purposes of convenience since they all arise from the same facts and source/s of law. To begin with, Counsel for the appellant argued that the first two grounds of appeal are intended to raise for the consideration and/or determination by this court “whether triable issues were raised on the pleadings of the parties or otherwise to warrant a grant or refusal of an application for summary judgment under Order 14 of C.I. 47.” Counsel cited this court’s decision in the case of <strong>Ballast Nedam Ghana BV vs. Horizon Marine Construction Ltd. (2010) SCGLR 435, </strong>on the scope of Order 14. And for the same purpose, he also cited the dictum of Wood JA (as she then was) in the case of <strong>Sadhwani vs. Alhassan (1999-2000) 1 GLR 19 CA </strong>at p. 25. Counsel stated the fact that though the court below cited both of these authorities, yet it misapplied their <em>ratio decidendi, </em>thereby occasioning a grave miscarriage of justice.</p> <p>Counsel then made this material assertion: “<em>Examining the statement of claim and affidavit in support filed by the respondent, alone, without comparing same with the processes filed by the appellant, should have convinced the lower court that the respondent is not entitled to summary judgment.”</em></p> <p>Counsel proceeded to examine the plaintiff’s case as pleaded, and pointed out two inconsistent or contradictory claims. The first one pleaded in paragraph 4 of the statement of claim, supra, is a claim based on payment of commission for facilitating the supply and delivery of oil to the defendant. The second is based on the actual supply of the crude oil contained in the contract, exhibit MA1. Counsel therefore stated that “<em>this apparent inconsistency of whether respondent was launching a claim against appellant as a facilitator entitled to commission or as the seller or supplier of the crude oil, was never resolved and still remains unresolved.”</em></p> <p>On the issue of assignment, counsel contended that there is no evidence on record that the seller, Omaroil, ever expressly assigned its interest in the SPA to the respondent.</p> <p>On the payments made by the appellant to the respondent, counsel contended that they were made to the respondent’s account “because that was nominated by Omaroil in the contract, exhibit MA1” Thus the payment could not be construed as an admission of the appellant’s liability to the respondent, counsel opined. Consequently, counsel submitted that the “contention by the appellant in its statement of defence that the respondent has no cause of action should have been interrogated to the hilt by the lower court before arriving at its decision. It is an issue arising from the pleadings of both parties to the suit.”</p> <p>In counsel’s view, several questions remained unresolved through the summary procedure adopted, and it would be fair and just that all questions be addressed through a full trial.</p> <p>In response to these arguments, counsel for the respondent said the respondent never pleaded that they were to be paid ‘some commission’ for facilitating the supply and delivery of the crude oil. Counsel stated that “it has never been the contention of the respondent that it was entitled to ‘some commission’ neither has it been in controversy, whether the respondent facilitated or actually supplied the crude oil. In fact, nowhere in the appellant’s pleadings was the issue of whether the respondent ‘facilitated’ or actually supplied the crude oil raised as an issue for determination by the lower courts.” According to counsel, the respondent’s case has been that it “facilitated the supply of the crude oil” to the appellant, per paragraph 4 of the statement of claim, repeated in paragraph 8 of the affidavit in support of the motion for summary judgment. This is the basis for the respondent’s claim, counsel contended.</p> <p>Counsel stated that the question whether the plaintiff was basing his claim on commission for facilitating the supply of crude oil was a new matter as same was never raised before any of the courts below. Besides, counsel referred to the fact that the request to interrogate the issue of supply and delivery of the crude oil was also a new matter, which the trial judge did not find was a triable issue. It is too late in the day to raise such matter for the first time in the apex court, counsel submitted. The principle, in the words of counsel, was that “facts which were not canvassed as being the subject matter before a lower court cannot be raised for the very first time at an appellate court.” He cited the authority of <strong>Antie and Adjuwuah v. Ogbo (2005-2006) SCGLR 494, </strong>holding 5. Further, counsel’s view was that it would amount to accepting a case different from what the party had put forward, and that would be contrary to the decision in the case of <strong>Dam v. Addo (1962) 2 GLR 200. </strong>He also cited the case of <strong>Aboagye v. Controller and Accountant-General &amp; Another (2012) SCGLR 538, </strong>where it was stated that it was not permissible under the Supreme Court Rules to introduce evidence by way of the statement of case.</p> <p>On the specific questions of privity and assignment, counsel was of the firm opinion that if there was no assignment, there would have been no basis for the execution of the MOU, exhibit MA5, and also for the appellant to have paid so much money to the respondent. According to counsel, the respondent was designated as the beneficiary of the funds under the contract wherein it was stated to benefit assignees of the parties, inter alia. The respondent was named in Appendix A of the contract as the beneficiary thereof. He also cited the various correspondences on the subject which he said confirmed the respondent as the beneficiary of the proceeds. In concluding this question, Counsel submitted that an attempt to distinguish between the assignment of the benefit and beneficiary “is of no legal consequence as to warrant a re-opening of this matter for trial. It is abundantly clear that the benefits of the contract had been unequivocally conferred on the respondents…..”</p> <p>On ground (c), the appellant is challenging the decision of the Court of Appeal that the provisions of the SPA inured to the benefit of the respondent when it was not a party thereto. The court below had stated that the appellant had acknowledged its indebtedness to the respondent and has pursuant thereto made part payments. It also stated that the seller had assigned its rights under the SPA to the respondent. The Court also stated that the respondent was the beneficiary of the SPA under Appendix A thereof. The appellant’s view was that there was nothing in the SPA which suggested that the respondent was a beneficiary; merely using its bank account to receive payments under the SPA did not constitute the respondent into a beneficiary, counsel submitted. Counsel also made reference to the other exhibits and concluded that they did not conclusively make the respondent a beneficiary. Counsel also referred to the lower court’s description of the respondent as an assignee of Omaroil and said the respondent could not be a beneficiary and an assignee at the same time. At any rate there was no evidence of an assignment. According to Counsel, what the court below did was tantamount to dealing with the matter on merits by the affidavits, contrary to the clear decision in the Sadhwani case, supra.</p> <p>In his response, counsel for the respondent said the SPA was made to benefit the respondent; consequently, the provisions of sections 5 and 6 of Act 25 were applicable. Thus the appellant and Omaroil were not entitled to vary the terms of the contract or rescind same. Counsel stated that “by the combined effect of exhibits MA(1), MA 2a &amp; b, MA(4) and MA(5), the appellant undertook to pay all proceeds to respondent. Having bound itself to such an agreement or undertaking, it is now not open to the appellant to contend that the court should have delved into the issue of whether or not it was bound by that undertaking to the respondent. In any case, it was not clear from the appellant’s pleadings whether the said amount of US$240,000.00 allegedly instructed to be paid to Dome Energy was paid. What is clear from the appellant’s affidavit in opposition and the submissions of his counsel…….is that, only an amount of USD183,000.00 was paid and even that, no evidence of payment was exhibited.”</p> <p><strong>Consideration by the court</strong></p> <p>Starting from the last submission by Counsel for the respondent, he stated that the payment of USD183,000.00, even if made, should not affect the appellant’s obligation to the respondent. In effect even if the appellant has paid part of the amount stated in the SPA to the seller’s credit as instructed in exhibit OC1, it is a matter of no consequence as far as the respondent is concerned. In effect without even interrogating the case, the court should overlook the apparent overpayment that evidence on record has thrown up. The court would not be entitled to ignore what appears to be double payment under the same contract, intended to benefit the seller and the respondent who claims to be the seller’s assignee. They would be unjustly enriched thereby and the court could not close its eyes to it. This was a sufficient reason why judgment should not have been entered for the respondent, at least not for the entire claim.</p> <p>We would next consider what counsel for the respondent referred to as new matters and/or evidence which have been raised for the first time in this appeal. It is observed that up to this point all arguments and decisions have been based on the pleadings and affidavit evidence filed before the trial court. Thus factually, nothing new has been introduced since then. It is clear all the submissions have been made pursuant to the facts on record. For that reason the submissions are admissible even if not canvassed in the courts below. What we understand counsel to be doing is placing different construction on the pleadings and affidavit evidence, especially the exhibits. This does not amount to introducing new matter or evidence. The court is entitled to draw inferences from accepted facts on record and for that reason a party may urge on the court a particular meaning or construction on the accepted facts even if the court below was not given such benefit. It does not violate any of the principles highlighted by counsel for the respondent in his submissions which have been outlined above. </p> <p>Order 14 of C.I. 47 has the following relevant provisions:</p> <p>Rule 1</p> <p><strong>Application for summary judgment</strong></p> <p>1 Where in an action a defendant has been served with a statement of claim and has filed appearance, the plaintiff may on notice apply to the Court for judgment against the defendant on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or that the defendant has no defence to such a claim or part of a claim, except as to the amount of damages claimed.</p> <p>Rule 2</p> <p class="rteindent1">(1) The notice of the application shall set out the reliefs sought by the plaintiff.</p> <p class="rteindent1">(2) The notice shall be supported by an affidavit verifying the facts on  which the relevant claim or part of a claim is based, and stating that in the deponent’s belief there is no defence to that claim or part of a claim, or no defence except as to the amount of damages claimed.</p> <p>Rule 3</p> <p><strong>Defendant may show cause</strong></p> <p>(1) A defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court.</p> <p>Rule 5</p> <p class="rteindent1">(1) On the hearing of the application the Court may</p> <p class="rteindent1">(a)  give such judgment for the plaintiff against the defendant on the relevant claim or part of a claim as may be just having regard to the nature of the remedy or relief sought, unless the defendant satisfies the Court, with respect to that claim or part of it, that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part of it.</p> <p>Over the years the courts have expressed in different ways what considerations to apply in proceedings for summary judgment. Some of them are contained in the following authorities:</p> <p class="rteindent1">(i)      In the case of <strong>Ballast etc v Horizon Marine Construction, </strong>supra, this court stated, per Gbadegbe, JSC, that “the court may only grant the application in cases where the defendant failed to set up a good defence or raise an issue which ought to be tried.”</p> <p class="rteindent1">(ii)      In <strong>Sadhwani v. Alhassan, </strong>supra, the court spoke of bona fide or good defence, that means a defence known in law, to entitle a defendant to defeat an application for summary judgment, and also that the court should not rely on affidavit evidence to dispose of triable issues.</p> <p class="rteindent1">(iii)     In the case of <strong>Jones v. Stone (1894) AC 122; 70 L.T. 174, </strong>Lord Halsbury stated that the proceeding established by Order 14 is a peculiar proceeding, intended only to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment; and where it is inexpedient to allow defendant to defend for mere purposes of delay.</p> <p class="rteindent1">(iv)     <strong>in Daimler Co. Ltd. v Continental Tyre &amp; Rubber Co. (Great Britain), Ltd. (1916) 2 A.C. 307; (1916-17) All E.R. Rep. 191, </strong>the trial-provided of course there is no arguable defence to the action-nevertheless, facts, this procedure was not appropriate. Among others, the defendant had alleged that the action was commenced without proper authorisation.</p> <p class="rteindent1">(v)      “When the Judge is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant, it is his duty to give judgment for the plaintiff”, per Jessel MR, in <strong>Anglo-Italian Bank v. Wells (1878) 38 L.T. 197 C.A. </strong>at 201.</p> <p class="rteindent1">(vi)     Even when there is a fair probability of a defence, leave to defend should be given; see <strong>Ward v. Plumbley, (1890), 6 T.L.R. 198.</strong></p> <p class="rteindent1">(vii)    It is important to note these significant words of Anin J.A. (as he then was) in the case of Wilson. V. Smith (1980) G.L.R. 152 at 161: “<em>While it is true that the rationale behind the summary procedure under Order 14 of L.N. 140A is to provide the plaintiff with a speedy mode of recovery of judgment in cases properly falling under it and thereby to prevent him from being delayed and put to an unnecessary and protracted trial-provided of course there is no arguable defence to the action-nevertheless, the Order was not intended as an engine for the suppression of the defendant. The Order is only intended to apply to cases where there is no substantial dispute as to the facts or the law.”</em></p> <p>It is observed that under both the old rules contained in Order 14 of the High Court (Civil Procedure) Rules, 1954, L.N. 140A (repealed) and the new rules under C.I. 47, also Order 14 thereof the provisions for summary judgment have been similar in content. Similar provisions apply under the English rules, thus the English authorities on this subject are quite germane and persuasive. These principles are also outlined in the Supreme Court Practice, 1967 edition at page 119 in these words: “<strong><em>The defendant may show cause against the plaintiff’s application….(2)on the merits, e.g. that he has a good defence to the claim on the merits, or that a difficult point of law is involved, or a dispute as to the facts which ought to be tried, or a real dispute as to the amount due which required the taking of an account to determine, or any other circumstances showing reasonable grounds of a bona fide defence.”</em></strong></p> <p>There are numerous cases which need not be cited, for the principles have become well-known and accepted and are briefly condensed in rule 5(1)(a) of Order 14. In summary, the court must be satisfied that on the facts and law the defendant ought to be given the opportunity to be heard on merits, where his defence raises reasonable and arguable points and is not intended merely to cause delay and is not a sham. A complete defence is not required at this stage; but as was held in <strong>Wallingford v. Mutual Society (1880) 5 App. Cas. 685; 29 W.R. 81 H.L. </strong>mere denial is insufficient; the defendant must give sufficient facts and particulars to show that there is a bona fide defence. </p> <p>We recount what counsel for the appellant said in his statement of case that  “Examining the statement of claim and affidavit in support filed by the respondent, alone, without comparing same with the processes filed by the appellant, should have convinced the lower Court that the respondent is not entitled to summary judgment.’’ In effect counsel is saying the plaintiff made no prima facie case in the first place to have warranted a consideration of the defence to the claim. Even though counsel did not expatiate on this, it is a true representation of the initial consideration of an application under order 14.</p> <p>Rules 1, 2 and 3 are the heartbeat of Order 14 and complement each other and should thus be construed together. The starting point in an application under this Order is for the court to examine the endorsement on the writ, statement of claim and affidavit in support of the application and decide whether the plaintiff has made what is called a prima facie case to entitle him to the court’s decision, even in the absence of a defence. Rule 1 entitles the plaintiff to make the application for summary judgment after entry of appearance; that is, even before the defendant has filed a statement of defence. This means that the court may proceed to examine only the material placed before it by the plaintiff. Hence the requirement that the court should be satisfied that the plaintiff has made a case, albeit prima facie. Where the court takes the view that the application is properly constituted, the burden is shifted to the defendant to show cause by affidavit evidence or otherwise, especially his statement of defence, if any has been filed, that he has a good, bona fide, reasonable, or fair defence to the plaint, in short that he has raised a legally cognizable defence to the claim or a part of it which ought to be tried as rule 5(1)(a) requires.</p> <p>In the statement of claim, the respondent averred that an SPA was entered into between the defendant and Omaroil. The respondent was not a party to this contract. The pleading also stated that the respondent was to be paid some money for facilitating the supply of crude oil under the contract, per paragraph 4 thereof, supra, which is repeated for purposes of emphasis:</p> <p class="rteindent1"><strong>“Plaintiff says that pursuant to the Sales and Purchase Agreement executed between Omaroil Agency Limited and the Defendant it was agreed between the parties that an amount of USD87.10 per barrel was to be paid within 10 days of discharge to the Plaintiff for its benefit for facilitating the supply of the crude oil to the Defendant.”</strong></p> <p>This particular pleading was the subject of two different constructions and given two different meanings. Taking the first construction or meaning which is espoused by counsel for the respondent, the payment due the plaintiff is covered by the SPA itself, wherein the seller was given the right to assign and the respondent was made a beneficiary. Following the second construction or meaning, Counsel for the appellant understands the respondent to be saying that besides the SPA there was another agreement between defendant and Omaroil which was made for the benefit of the respondent to the tune of USD87.10 per barrel payable by the appellant to the respondent within a period of 10 days of the supply or delivery. But Counsel for the respondent strenuously argued that there was no such discrepancy between the said paragraph 4 and the SPA in as far as the SPA was intended to benefit the respondent.</p> <p>Since the arguments are based on the same pleading and facts, we would proceed to discuss the two viewpoints together. Having regard to the nature of the case put forward by the respondent, certain questions arose. Since the respondent is not a party to the SPA, was there an assignment of Omaroil’s interest therein to the respondent? Or was the respondent a beneficiary of the SPA under its clear terms? What document evidences the other agreement, if any, referred to in paragraph 4 of the statement of claim? Is the appellant liable under both the SPA and the agreement, if any, mentioned in paragraph 4 of the statement of claim? Taking into account the averments in the statement of claim, these are legitimate questions which the trial court could raise even without regard to the defence. And if the court was not satisfied that there was a clear assignment, or that the respondent was a beneficiary under the SPA, he ought to refuse the application for summary judgment. In his view, Counsel for the respondent considered these matters to be trivial and inconsequential, but they are not. The party must be made to know the basis of the claim against him, for that will inform the nature of his defence.</p> <p>The appellant pleaded that the respondent had no cause of action against it since the respondent was not a party to the SPA and was neither a beneficiary nor assignee thereof. It is observed that all the various correspondences exhibited in this application made reference to the SPA as the only contract. The respondent admits it is not a party to it; thus there was the need for evidence to be adduced to satisfy the court that there was an assignment to it or it was a beneficiary of the SPA which entitled it to sue under the SPA, in other words that it has a cause of action under the SPA in its own right. When the issue is raised as to a cause of action, it ought to be interrogated first before any further step is taken in the action for it goes to the foundation of the matter before the court. For in a case founded on contract, the principle applicable, as stated in Halsbury’s Laws of England, 5<sup>th</sup> edition Vol 11, paragraph 208 at page 206 is that “<em>the proper claimant is the person with whom or on whose behalf the contract was made, or in whom the rights under the contract are vested.” </em>  </p> <p>The Court of Appeal answered these questions in favour of the respondent, for reasons which have been summarized above. It is clear there was no privity between the respondent and Omaroil as far as the SPA was concerned. But lack of privity could be defeated by a successful plea of assignment as an exception to the rules on privity. On the other hand, he could succeed if it established that it was a beneficiary of the contract. All the other matters arising in this case are ancillary to a resolution of the key questions of whether the respondent is an assignee of Omaroil or a beneficiary under the SPA. These two concepts, namely assignment and beneficiary under a contract, have different connotations in law so it was inappropriate for the Court below to have treated them together as one legal concept.</p> <p>What is required to be established in a case founded on assignment of an interest under contract? The elements applicable for the consensual transfer of rights under a contract are equally applicable to assignment under a contract, since it also entails a transfer of right/s. Thus to be legally effective, an assignment of rights under a contract must establish four elements. These elements have statutory backing in subsections 1 and 2 of section 7 of the Contracts Act, 1960, (Act 25). These are:</p> <p class="rteindent1">i.        The assignor must have the original right to the subject-matter; in this case the sum mentioned in the SPA. <em>Nemo dat quod non</em> <em>habet</em> applies.</p> <p class="rteindent1">ii.       The assignor must have expressed or exhibited clear intent to divest itself of its title or right to the subject-matter. This is a requirement under consensual transfer of right under contract as well as the Statute, namely section 7(1) of Act 25.</p> <p class="rteindent1">iii.      The assignor must have taken steps to effectuate that intention by an act of transfer or an agreement to assign recognized in law or equity. Section 7(2)(b) of Act 25 requires it to be in writing signed by the assignor or his agent. This does not exclude the principles of equity against fraud and unjust enrichment; if the court finds it unconscionable to allow an assignor to resile from his action which has caused detriment to the assignee, it will enforce it even in the absence of writing.</p> <p class="rteindent1">iv.      The subject-matter of the assignment, in this case, the amount of money, must be known and certain.</p> <p>The facts relied upon by the Court of Appeal were the SPA itself, the MOU, the various correspondences and the payments made by the appellant to the respondent. It is noted that the MOU as well as all the various correspondences made reference to, and relied on, the SPA. Thus the parties had no doubt that the SPA reigned supreme. If the respondent was the beneficiary under the SPA, why was Omaroil a party to the subsequent MOU? If the respondent was the assignee of Omaroil’s rights since 18<sup>th</sup> July 2014, why was Omaroil’s consent subsequently required for any transaction in relation to the SPA? Counsel for the respondent sought to answer by stating that the Appendix A took its roots from article 24 of the SPA, and when read together they made the respondent the beneficiary of the contract. But it does not answer the question why Omaroil’s consent was still required after making the respondent the beneficiary of the contract. Let us quote these provisions of the SPA and discuss their import. They provide:</p> <p class="rteindent1">“24. <strong>Appendices: </strong>There is one (1) appendix in this contract: Banking Coordinates (Appendix A)</p> <p class="rteindent1"><strong>APPENDIX (A)</strong></p> <p class="rteindent1"><strong>SELLER’S BANKING DETAILS</strong></p> <p class="rteindent1"><strong>BANK NAME                                      ECOBANK GHANA LIMITED</strong></p> <p class="rteindent1"><strong>BANK ADDRESS                       TEMA MAIN BRANCH</strong></p> <p class="rteindent1"><strong>ACCOUNT NAME                      ABIVAMS LIMITED</strong></p> <p class="rteindent1"><strong>BENEFICIARY                                   ABIVAMS LIMITED</strong></p> <p class="rteindent1"><strong>SWIFT CODE                                     </strong></p> <p class="rteindent1"><strong>IBAN ACCOUNT NO.</strong></p> <p class="rteindent1"><strong>CURRENCY                              USD</strong></p> <p class="rteindent1"><strong>A/C OFFICER</strong></p> <p class="rteindent1"><strong>A/C OFFICER CONTACT</strong></p> <p class="rteindent1"><strong>BUYER’S BANK DETAILS</strong></p> <p class="rteindent1"><strong>BANK NAME                                      UT BANK LTD</strong></p> <p class="rteindent1"><strong>BANK ADDRESS                       25B MANET TOWERS, AIRPORT CITY</strong></p> <p class="rteindent1"><strong>ACCOUNT NAME                      PLATON GAS OIL GHANA LTD</strong></p> <p class="rteindent1"><strong>BENEFICIARY                                   PLATON GAS GHANA LTD</strong></p> <p class="rteindent1"><strong>ACCOUNT NO</strong></p> <p class="rteindent1"><strong>CURRENCY                              USD</strong></p> <p class="rteindent1"><strong>ACCOUNT OFFICER</strong></p> <p class="rteindent1"><strong>TELEPHONE NO.</strong></p> <p>Article 24 of the contract upon which Appendix A hinges only makes provision for bank account, and in this context bank account to be named by both parties. The use of the expression ‘Beneficiary’ appears under Appendix A in both the buyer and seller’s account. It could bear more than one meaning, having regard to (i) the express words used and (ii) the subsequent conduct of the parties. On the face of the document, it could mean that the account holder is the same person who is the beneficiary of the account, in other words there is no other beneficiary of the account, like a trust or client or joint account which have other beneficiaries. It could also mean, as described by the respondent that it meant the money was for the benefit of the respondent. It could also mean that despite the designation of the respondent’s bank account to receive the payment, the money remains that of the seller hence the description in the contract as the “Seller’s Banking Details” and not the Beneficiary’s Banking Details. And from the subsequent conduct of the parties in involving Omaroil in signing MOU etc in respect of the SPA it appeared the contract does not mean what the respondent ascribes to it. In short, there was no clear intent from the face of the SPA and subsequent dealings or conduct of the parties that Omaroil had ceded its right to the money to the respondent. The lack of intention is buttressed by the fact that Omaroil also contracted with the appellant to pay part of this amount to another named person in exhibit OC1 dated 18<sup>th</sup> September 2014. A key element in assignment appears to be missing upon reading the SPA, MOU and exhibit OC1. Certainly intent may be established through the writing required by section 7(2) of the Contracts Act if indeed there was one.</p> <p>It is also significant to note that there is nothing in the express terms of the SPA that an assignment has been made to the respondent by Omaroil. The agreement only permitted Omaroil to assign its interest, meaning that it could be done by a separate agreement subsequently.</p> <p>On the question of whether the respondent was a beneficiary under the SPA, the respondent recounted Appendix A of the SPA and relied on Sections 5 and 6 of Act 25 the relevant of which which provide thus:</p> <p class="rteindent1">“<strong>5. Provision in contract for benefit of third party</strong></p> <p class="rteindent2"><strong>(1)          A provision in a contract made after the commencement of this Act which purports to confer a benefit on a person who is not a party to the contract, whether as a designated person or as a member of a class of persons, may, subject to this section and sections 6 and 7, be enforced or relied on by that person as though that person were a party to the contract.</strong></p> <p class="rteindent1"><strong>6.  Rights of third party</strong></p> <p class="rteindent1"><strong>Where under section 5 a person who is not a party to a contract is entitled to enforce or rely on a provision in the contract,</strong></p> <p class="rteindent2"><strong>(a)          a variation or rescission of the contract shall not prejudice that person’s right to enforce or rely on the provision if that party has acted to the prejudice of that party in reliance on the variation or rescission, unless that party consents to the variation or rescission; and</strong></p> <p class="rteindent2"><strong>(b)          subject to paragraph (a), a party against whom the provision is sought to be enforced or relied on is entitled to rely on or to plead by way of defence, set-off, counterclaim or otherwise a matter relating to the contract which that party could have so relied on or pleaded if the provision were sought to be enforced or relied on by the other party in the contract. </strong></p> <p>The applicable statutory provisions have been correctly cited by the respondent. However, these provisions apply only where the contract clearly confers a benefit on the third party. But as earlier pointed out, from article 24 and Appendix A of the SPA, one cannot conclude positively, without further extraneous evidence, that it conferred a benefit on the respondent. The SPA referred to the seller and not a facilitator of the sale as paragraph 4 of the statement of claim talks about. The seller as used in the SPA is not synonymous with a facilitator as used in the pleadings. If they are one and the same, let there be evidence to prove it. Based on the available evidence we hold that these provisions do not apply and the court below was wrong in concluding that those provisions under the SPA conferred a benefit on the respondent.</p> <p>What must be noted now is that at this stage it is not a full blown trial, the defendant only needs to show that he has a reasonable defence to the claim and his defence is not a sham or intended to delay payment. The defence raises for the court’s consideration key legal issues of assignment and enforcement of contract. If indeed exhibit OC1 is valid, the court’s decision would mean the appellant would have been compelled to over pay what was contracted for.</p> <p>To get over the issue of intent to assign and the effects of exhibit OC1, the Court of Appeal relied on section 7 of the Contracts Act and concluded that Omaroil could not validly enter into another contract exhibit OC1 when it had already assigned its interest under the SPA to the respondent. Section 7 of Act 25 provides that:</p> <p class="rteindent1"><strong><em>(1)          Subject to the relevant rule of law, and subject to any contrary intention appearing from a transaction giving rise to legal rights, a person may, after the commencement of this Act, assign a legal right to another person as specified in this Act.</em></strong></p> <p class="rteindent1"><strong><em>(2)          An assignment, whether given for consideration or not, of a vested right, transfers the right and interest in the assignment to the assignee and extinguishes the right and interest in the assignment of the assignor if-</em></strong></p> <p class="rteindent2"><strong><em>(a)     it is absolute and not by way of a charge only; and </em></strong></p> <p class="rteindent2"><strong><em>(b)     it is in writing and is signed by the assignor or the agent of the assignor; and </em></strong></p> <p class="rteindent2"><strong><em>(c) written notice of the assignment is given to the debtor or any other person against whom the right is enforceable.</em></strong></p> <p class="rteindent1"><strong><em>(3)          A purported assignment of a conditional right operates as a promise to assign the right if and when the condition occurs.</em></strong></p> <p class="rteindent1"><strong><em>(4)          An assignment, whether given for consideration or not, is valid although it does not comply with all or any of the requirements of subsection (2) but-</em></strong></p> <p class="rteindent1"><strong><em>(a)     a right so assigned shall not be enforced or relied on against the debtor or other party against whom the right is enforceable unless the assignor is a party to the proceedings in which it is sought to be enforced or relied on, or unless the Court is satisfied that it would be impossible or impracticable so to join the assignor; and</em></strong></p> <p class="rteindent1"><strong><em>(b)     the assignment shall not prejudice the debtor or any other person against whom the right is enforceable unless the debtor or the other person has written notice of the assignment.</em></strong></p> <p class="rteindent1"><strong><em>(5)          Where there are two or more assignments in respect of the same debt or right, a later assignee has priority over an earlier assignee if the debtor or other person liable had not received written notice of the earlier assignment at the time when the later assignment was made.</em></strong></p> <p class="rteindent1"><strong><em>(6)          A debtor or other person against whom a right is enforceable is entitled as against a person to whom the debt or the other right is assigned, to rely on or plead by way of defence, set off, counterclaim or otherwise, a matter relating to the right which the debtor or that other person could have relied on or pleaded against the assignor at the time when the writtten notice of the assignment was received by the debtor or that other person.</em></strong></p> <p>Section 7 applies when it is established that there was an assignment in terms of the elements set out above, meaning there was an intent to assign, and there was writing identifying the subject-matter and specifically naming an assignee and bringing it to the notice of the debtor. As earlier stated, the SPA does not unequivocally create an assignment in favour of the respondent. The conduct of the purported assignor in signing exhibit OC1 seems to suggest that under the SPA it meant to retain ownership of the amount stated therein and this gives more credibility to the suggestion that article 24 of the SPA and Appendix A only chose the respondent’s bank account to receive payments from the appellant. When the MOU and the various correspondences are read together with the SPA, there is no doubt that the parties were still relying on the provisions of the SPA to which the respondent was not a party and which on the face of it did not make it an assignee. Evidence is required to unearth the Omaroil’s intention in signing both exhibits OC1 in September 2014 and then exhibit MA5 in October 2014, vis-a-vis the earlier documents signed in July 2014.</p> <p>In summary, the court has to consider the fact that the SPA, MOU and the various correspondences did not appear to have specifically made the respondent a beneficiary, neither do they appear to have created an assignment of Omaroil’s rights, except that payments were to be made to the respondent per its stated bank account. It also has to consider the fact that the defence has raised very critical issue of cause of action, and the probability that it might face payments under two different contracts on the same subject-matter resulting in over payment. At this stage it is unwise in as much as it is unreasonable to reject exhibit OC1 when a clear intent to assign and actual assignment of Omaroil’s rights under the SPA have not been fully unearthed.</p> <p>The Court of Appeal undertook to construe the documents exhibited by the parties in coming to its decision. That would have been justified if the documents were conclusive of the matter. The respondent denies any knowledge of exhibit OC1 and the payment/s that were made under it. Therefore, the appellant would be required to provide evidence at a trial to prove the validity of exhibit OC1 and the payments made pursuant thereto. The appellant would also have to satisfy the court that it was entitled to deduct the amount contained in exhibit OC1 from whatever the balance is in the SPA. The respondent would be required to prove that it was either a beneficiary or assignee of the SPA, which is not easily deducible from the totality of the documentary evidence at this stage.</p> <p>The principle is that where, on an application for summary judgment, the issue raised was a pure point of construction which could be as well determined on summary application as at a trial, because it would not be affected by evidence, the court had jurisdiction to grant summary judgment, on the basis that a trial would have no realistic prospect of causing it to reach a different judgment. That was so stated in the case of <strong>BBC Worldwide Ltd. v. Bee Load Ltd., t/a Archangel Ltd. (2007) T.L.R. 86. </strong>But this matter does not depend on pure construction of documents, as at least exhibit OC1 and payments made under it have to be established at the trial, and moreover the exhibits are capable of more than one plausible construction and will thus require some form of evidence to assist the court determine the issues. Most importantly, the very basis of the respondent’s action is reasonably being challenged for if it is neither a beneficiary under the SPA nor an assignee of Omaroil, the respondent might not have a cause of action against the appellant.</p> <p>It is for these reasons that we conclude that the appellant was unjustifiably shut out of the trial. We therefore allow the appeal, set aside the judgment of the Court of Appeal and restore the decision of the High Court. We must state that except on matters of law stated herein which are binding on the courts below, nothing stated herein should be taken as a finding of fact by this Court; all the issues are at large and the trial court is unfettered in its decision to conduct a ‘full blown’ trial.</p> <p class="rtecenter"><strong>A. A. BENIN</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>S. A. B. AKUFFO (MS)</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>ANIN YEBOAH</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>P. BAFFOE-BONNIE</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>G. PWAMANG</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong><u>COUNSEL</u></strong></p> <p>OSAFO BUABENG FOR THE DEFENDANT/RESPONDENT/APPELLANT.</p> <p>CHARLES TETTEH FOR THE PLAINTIFF/APPELLANT/RESPONDENT.</p></span></div></div> </div> </div> Wed, 23 Jun 2021 11:01:06 +0000 Anonymous 2332 at http://ghalii.org X-tra Gold Mining Ltd Vrs Attorney General (J1 23 of 2015) [2016] GHASC 57 (28 July 2016); http://ghalii.org/gh/judgment/supreme-court/2016/57 <span class="field field--name-title field--type-string field--label-hidden">X-tra Gold Mining Ltd Vrs Attorney General (J1 23 of 2015) [2016] GHASC 57 (28 July 2016);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/392" hreflang="x-default">CL</a></div> <div class="field__item"><a href="/taxonomy/term/483" hreflang="x-default">Legislative Amendment</a></div> <div class="field__item"><a href="/taxonomy/term/484" hreflang="x-default">Mining Law</a></div> <div class="field__item"><a href="/taxonomy/term/369" hreflang="x-default">EL</a></div> <div class="field__item"><a href="/taxonomy/term/485" hreflang="x-default">Procedural Fairness</a></div> <div class="field__item"><a href="/taxonomy/term/486" hreflang="x-default">Liability for remediation costs</a></div> <div class="field__item"><a href="/taxonomy/term/487" hreflang="x-default">Role of state in relation to environment</a></div> <div class="field__item"><a href="/taxonomy/term/399" hreflang="x-default">Constitutional Interpretation</a></div> <div class="field__item"><a href="/taxonomy/term/483" hreflang="x-default">Legislative Amendment</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 06/23/2021 - 11:00</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>The Fees and Charges Act (the act) calculated the plaintiff’s rent for five mining leases. The plaintiff challenged the Minister of Finance’s authority to amend the legislation.</p> <p>Issue one: whether the Administrator of Stool Lands had any role to play in fixing annual ground rents. The court held that the Administrator did not fix the rates, but wrote to demand payment.</p> <p>Issue two: whether the administrator was part of a review team that recommended the adjustments, amounting to prescribing annual ground rent. The administrator provided an advisory opinion with no legal force.</p> <p>Issue three: whether the grant of power to the Minister of Finance was unconstitutional. A schedule forms part of an act. Subordinate legislation cannot amend an act; however, this rule is not invariable regarding schedules. Acts may empower another to revise the contents of a schedule, and this power must be expressly conferred by Parliament. It was found that it was.</p> <p>Issue four: whether or not the Fees and Charges Instruments contravened the act and the Constitution. The Minister of Finance was empowered to amend the schedule in fixing fees and charges; however the inclusion of the administrator in the amended list was inconsistent with the Constitution, and void to the extent of this inclusion</p> <p>Issue five: whether the power conferred on the Minister of Lands and Natural Resources was transferred to the Minister of Finance. The court held that no such transfer of power occurred.</p> <p>Issue six: whether the failure by the Minister of Lands and Natural Resources to exercise the power conferred on him in the act violated the Constitution. The Minister of Mines was empowered in terms of the act; however the parties incorrectly cited the Minister of Lands.</p> <p>The Minister of Mines was ordered to fix the fees and charges under the act.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.ghalii.org/files/judgments/ghasc/2016/57/2016-ghasc-57.pdf" type="application/pdf; length=277904">2016-ghasc-57.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p class="rtecenter"> </p> <p class="rtecenter"><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p class="rtecenter"><strong>IN THE SUPREME COURT OF GHANA</strong></p> <div> <p class="rtecenter"><strong>ACCRA, AD 2016</strong></p> </div> <p> </p> <p><strong>                </strong></p> <p> </p> <p class="rteright"><strong><u>WRIT NO. J1/23/2015</u></strong></p> <p class="rteright"><strong><u>28 JULY, 2016</u></strong></p> <p> </p> <p><strong>X-TRA GOLD MINING LIMITED             -               PLAINTIFF</strong></p> <p><strong>VRS.</strong></p> <p><strong>ATTORNEY-GENERAL                            -               DEFENDANT</strong></p> <hr /><p class="rtecenter"><strong>JUDGMENT</strong></p> <hr /><p><strong><u>BENIN, JSC</u></strong></p> <p>The facts of this case are quite straight forward but the Plaintiff introduced a lot of material that is irrelevant for the exercise of our jurisdiction for judicial review of legislation that has been properly invoked. Accordingly we shall trim the facts to those required for the purpose of determining the real issue before the court.</p> <p>In 2009, the Parliament of Ghana passed into law the Fees and Charges (Miscellaneous Provisions) Act, 2009 (Act 793). It is a short piece of legislation with only three Sections as follows;</p> <p><strong>“Specified enactments</strong></p> <p>1.     For the enactments specified in the first column of the Schedule and in relation to the revenue items specified in the second column of the Schedule, there is substituted for the fees and charges specified in the third column of the Schedule, the fees and charges specified in the fourth column of the Schedule.</p> <p><strong>Transfer of power</strong></p> <p>2.     (1) The authority conferred under the enactments set out in the first column of the Schedule to determine fees and charges is hereby trans­ferred to the Minister responsible for Finance and Economic Planning and accordingly those enactments are hereby amended.</p> <p>(2) The Minister for Finance and Economic Planning may by Legislative Instrument amend the Schedule to this Act.”</p> <p>Pursuant to Section 2(2) of Act 793, the Minister for Finance made the Fees and Charges (Amendment) Instrument, 2012 (L.I. 2191) and added the Office of the Administrator of Stool Lands Act, 1994 (Act 481) to the enactments covered by Act 793. He proceeded to determine and fix ground rent payable in respect of lands subject to a mineral right. The ground rent as fixed in L.I. 2191 was changed by the Minister for Finance in 2013 and 2014 by the making of L.I. 2206 and L.I. 2216 respectively. All the above Legislative Instruments were duly laid in parliament as required by Article 11(7) of the Constitution and came into force.</p> <p>Basing itself on the above Legislative Instruments, the Office of the Administrator of Stool Lands calculated ground rent payable by plaintiff in respect of five mining leases it owns and served invoices on it. Plaintiff refused to pay the amounts claimed because, according to him, the Legislative Instruments made by the Minister for Finance were void as the authority given by Parliament to the Minister to amend Act 793 was unconstitutional. Plaintiff therefore brought the instant action for the following reliefs:</p> <p class="rteindent1">i.  A declaration that on a true and proper construction or interpretation of Article 267(3) of the Constitution, the Office of the Administrator of Stool Lands has no legal power or authority under the 1992 Constitution, and the Office of the Administrator of Stool Lands Act 1994 (Act 481) to prescribe the annual ground rent payable by holders of mineral rights, commonly referred to as mining concessions granted over stool lands by the Government acting through the Minister for Lands and Natural Resources pursuant to the Mineral and Mining Act, 2006 (Act 703).</p> <p class="rteindent1">ii. A declaration that the purported grant of power and authority by Parliament to the Minister for Finance under sections 2(1) and (2) of the Fees and Charges (Miscellaneous Provisions) Act 2009 (Act 793) to amend the Schedule to the Act which authority, the said Minister purportedly exercised under the Fees and Charges (Amendment) Instrument 2012 (L.I. 2191), the Fees and Charges (Amendment) Instrument 2013 (L.I. 2206) and the Fees and Charges (Amendment) Instrument 2014 (L.I. 2216) to prescribe annual ground rent payable by holders of mining concessions granted over stool lands is inconsistent with and in contravention of articles 1(2), 11(1), 93(2), 106 and 267(3) of the 1992 Constitution as well as sections 23 of the Minerals and Mining Act 2006 (Act 703) and to that extent such grant of authority is ultra vires, null and void.</p> <p class="rteindent1">iii.        A declaration that the purported exercise by the Minister for Finance of the authority and power purportedly conferred on him under section 2(2) of the Fees and Charges (Miscellaneous Provisions) Act 2009, (Act 793) to prescribe through the three Fees and Charges (Amendment) Instruments namely L.I. 2191 of 2012, L.I. 2206 of 2013 and L.I. 2216 of 2014 the annual ground rent payable by holders of mining concessions granted over stool lands is inconsistent with and in contravention of articles 1(2), 11(1), 93(2) and 267(3) of the 1992 Constitution as well as sections 23 of the Mineral and Mining Act, 2006 (Act 703) and to that extent the said prescriptions of annual ground rent by the Minister for Finance are ultra vires, null and void.</p> <p class="rteindent1">iv. A declaration that the conduct of officers of the Office of the Administrator of Stool Lands in relying on the said prescription by the Minister for Finance of annual ground rent payable by holders of mining concessions granted over Stool Lands in the said Fees and Charges (Amendment) Instruments, namely L.I. 2191 of 2012, L.I. 2206 of 2013 and L.I. 2216 of 2014 to raise invoices based on the said prescribed rents, serve same on the holders of mining concessions granted over stool lands, and demanding payment of such prescribed rents is also conduct that is inconsistent with and in contravention of articles 1(2), 11(1), 93(2) and 267 of the 1992 Constitution and to that extent such conduct is also ultra vires, null and void.</p> <p class="rteindent1">v. A declaration that the failure or omission of the Minister for Lands and Natural Resources to exercise the discretionary power and authority duly conferred upon him under section 23 of the Minerals and Mining Act, 2006 (Act 703) to prescribe by Legislative Instrument the annual ground rent payable by holders of mining concessions is failure or omission which is inconsistent with or is in contravention of the constitutional duties imposed on the said Minister as an Administrative Official or public officer pursuant to Articles 23 and 296(c) of the 1992 Constitution and to that extent such failure or omission on the part of the said Minister constitutes a fragrant violation of articles, 23 and 296(c) of the Constitution.</p> <p class="rteindent1">vi. An order declaring as null, void and of no effect the prescriptions by the Minister for Finance of annual ground rent GH₵36.50 per acre contained in the Fees and Charges (Amendment) Instrument 2012 (L.I. 2191), the Fees and Charges (Amendment) Instrument 2013 (L.I. 2206) as well as the prescription of GH₵15.00 per acre contained in the Fees and Charges Instrument 2014 (L.I. 2216) as having been made in contravention of articles 1(2), 11(1), 93(2), 106 and 267 of the 1992 Constitution.</p> <p class="rteindent1">vii.       An order directing the Minister for Lands and Natural Resources to comply with the provisions of Articles 23 and 296(c) of the 1992 Constitution and  power and authority to prescribe by Legislative Instrument the annual ground rent payable by holders of mining concessions granted by the Government over stool lands under the Minerals and Mining Act, 2007 (Act 703).</p> <p class="rteindent1">viii.      Perpetual injunction against the Office of the Administrator of Stool Lands, its officers and agents or any person acting for or on their behalf from relying on the said Fees and Charges (Amendment) Instruments 2012 (L.I. 2191), 2013 (L.I. 2206) and 2014 (L.I. 2216) to demand or enforce against the plaintiff payment of the prescribed ground rent contained in the said Instruments which prescriptions are inconsistent with and in contravention of articles 1(2), 11(1), 93(2), 106 and 267(3) of the 1992 Constitution.</p> <p class="rteindent1">ix. Any further or other consequential orders as shall be deemed meet by the Supreme Court.</p> <p>The parties agreed on six issues for the court’s determination. The first two were expressed in the alternative. The issues will be discussed seriatim.</p> <p>Issue 1. Whether or not the Office of the Administrator of Stool Lands has authority and power under Article 267(2) of the 1992 Constitution to prescribe annual ground rent payable by holders of mineral rights granted over stool lands by the Minister for Lands and Natural Resources pursuant to the Minerals and Mining Act, 2006 (Act 703).</p> <p>OR</p> <p>Issue 2. Whether or not the Administrator of Stool Lands, being a head of department, can participate in the mandatory review exercise under Regulation 20 of the Financial Administration Regulations, 2004 (L. I. 1802) and, if so, whether such participation amounts to prescribing annual ground rent payable by mineral right holders and contravenes Article 267(2) of the 1992 Constitution.</p> <p>Issues 1 and 2 have a common strand running through them and it is whether the Administrator of Stool Lands, hereafter called the Administrator,  legally has any role to play in fixing annual ground rents for mineral rights granted over stool lands. This issue has arisen in respect of the functions assigned to the Administrator under Article 267(2) of the Constitution, 1992 which provides:</p> <p class="rteindent1"><strong><em>There shall be established the Office of the Administrator of Stool Lands which shall be responsible for</em></strong></p> <p class="rteindent1"><strong><em>(a) the establishment of a stool land account for each stool into which shall be paid all rents, dues, royalties, revenues or other payments whether in the nature of income or capital from the stool lands;</em></strong></p> <p class="rteindent1"><strong><em>(b) the collection of all such rents, dues, royalties, revenues or other payments</em></strong><strong> <em>whether in the nature of income or capital, and to account for them to the beneficiaries specified in clause (6) of this article; and </em></strong></p> <p class="rteindent1"><strong><em>(c) the disbursement of such revenues as may be determined in accordance with clause (6) of this article.</em></strong></p> <p>The functions assigned to the Administrator are clear and not ambiguous and do not require any arguments. From these issues the plaintiff is clearly saying that the Administrator has exceeded his statutory functions by, either suo motu or in conjunction with others, fixing the rates payable by holders of mineral rights created over stool lands. But the facts do not support this assertion. The plaintiff’s own case was that the Administrator wrote to demand payments in accordance with the rates determined by the Minister of Finance under various Legislative Instruments. The Administrator on his own accord did not fix the rates. Issue number 1 thus has no factual basis and is accordingly rejected.</p> <p>In the alternative, parties set down issue 2 that the Administrator was part of a review team that recommended adjustments to the annual rates. This is contained in a letter purported to have been sent to the plaintiff by the Eastern Regional Office of the Administrator. This letter is found in paragraph 4.6 of the plaintiff’s statement of case and it reads in relevant part thus:</p> <p class="rteindent1"><strong><em>“…………the Office of the Administrator of Stool Land is part of a committee of technocrats and stakeholders including Chamber of Mines and Small Scale Miners working with the Ministry of Finance for a review of the current rate GH</em></strong><strong><em>₵</em></strong><strong><em>36.50 per acre per annum. We have been informed by our Head Office that they have agreed on GH</em></strong><strong><em>₵</em></strong><strong><em>15.00 per acre for 2013 and 2014.” </em></strong></p> <p>It is noted that this recommendation for a downward adjustment of the 2012 rate was acted upon by the Minister of Finance by L.I. 2206 of 2013 and L.I. 2216 of 2014. It is crystal clear from this letter and the issuance of the Legislative Instruments by the Minister of Finance that the Administrator, in conjunction with others, only plays an advisory role to the Minister of Finance. This does not derogate from his core functions as set out in article 267(2) of the 1992 Constitution. An advisory opinion is not binding on the Minister of Finance so it has no force of law. It is noted that participation in such committee work by the Administrator is purely administrative, which the Constitution is not required to spell out. It is an incident of the functions of the Administrator who is responsible for all royalties and other fees accruing to stool lands and this places him in the position to offer expert advice on matters pertaining to stool lands. The Minister of Finance who has acted under Act 793 to fix the rates may thus seek the advice of the Administrator, among other persons, in deciding on what rate to fix. The process of seeking advice before acting is purely administrative and is inherent in and derives from the power conferred by the statute, which also derives its source from the Constitution, 1992. This was one of the reasons why the setting up of a Constitutional Review Implementation Committee by the President of the Republic was held to be legal as same was purely an administrative body to help the President to carry out a constitutional function. That was in the case of PROFESSOR STEPHEN KWAKU ASARE VS. THE ATTORNEY-GENERAL; Writ No. J1/15/2015, dated 29<sup>th</sup> October 2015, unreported.  Therefore the Administrator did not commit any violation of Article 267(2) of the Constitution by participating in the fee-fixing review process.</p> <p>Issue 3. Whether or not the grant of power and authority by Parliament to the Minister for Finance under sections 2(1) and (2) of the Fees and Charges (Miscellaneous Provisions) Act, 2009 (Act 793) to amend the Schedule to the Act is inconsistent with or in contravention of articles 1(2), 11(2), 93(2) and 267(3) of the 1992 Constitution and section 23 of the Minerals and Mining Act, 2006 (Act 793).</p> <p>This issue questions Parliament’s decision to confer on the Minister of Finance power and authority to amend the Schedule to the Act in question, namely Act 793, section 2 thereof, supra.</p> <p>The issue throws up for discussion several important legal questions. In the first place, what is the status of a Schedule to an enactment? Is it legally permissible to amend a Schedule to an Act of Parliament by way of a Legislative Instrument and for that matter a subordinate legislation? To what extent, if at all, may Parliament delegate its power of legislation to another person? Has section 2 of Act 793 transferred the function of prescribing fees under section 23 of Act 703 to the Minister of Finance? Has Section 2 of Act 793 impliedly repealed section 23 of Act 703?</p> <p>What then is a Schedule to an Act? Bennion on Statutory Interpretation, 5<sup>th</sup> edition, published by LexisNexis at page 721 says “A Schedule is an extension of the section which induces it. Material is put into a Schedule because it is too lengthy or because it forms a separate document (such as a treaty).” The learned author goes on to explain that it is a convenient way of incorporating part of the operative provisions of an Act in the form of a Schedule. And as further explained by Lord Wilberforce in the case of FLOOR v. DAVIS (INSPECTOR OF TAXES) (1980) 3 All ER 39, when speaking of the Finance Act of 1965, that a Schedule is a technique which Parliament employs to place most of the working and detailed  provisions in the Act.</p> <p>The upshot of the foregoing is that once the intent is clear the Schedule is part of the Act and must thus be construed as one whole document. In the case of A-G v. LAMPLOUGH (1878) 3 Ex. D 214 at 229 Brett LJ said that “<strong><em>A Schedule in an Act is a mere question of drafting, a mere question of words. The Schedule is as much a part of the statute, and is as much an enactment as any other part.” </em>  </strong></p> <p>See also these cases: FLOWER FREIGHT CO. LTD. v. HAMMOND (1963) 1 QB 275. R. v. LEGAL AID COMMITTEE NO. 1 (LONDON) LEGAL AID AREA; EX PARTE RONDEL (1967) 2 QB 482. METROPOLITAN POLICE COMMISSIONER v. CURRAN (1976) 1 WLR 87 HL.</p> <p> Thus a Schedule forms an integral part of an Act. The next obvious question is whether a Schedule to an Act may be amended by subordinate or subsidiary legislation. The plaintiff is challenging the power conferred by Parliament on the Minister of Finance to amend the Schedule to Act 793 by Legislative Instrument as being inconsistent with and in contravention of articles 1(2), 11(1), 93(2) and 267(3) of the 1992 Constitution, as well as section 23 of Act 703. These constitutional provisions are:</p> <p class="rteindent1"><strong>1(2)</strong> <strong>The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.</strong></p> <p class="rteindent1"><strong>11(1) The laws of Ghana shall comprise </strong></p> <p class="rteindent1"><strong>(a) this Constitution;</strong></p> <p class="rteindent1"><strong>(b) enactments made by or under the authority of the Parliament established by this Constitution;</strong></p> <p class="rteindent1"><strong>(c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution;</strong></p> <p class="rteindent1"><strong>(d)        the existing law; and</strong></p> <p class="rteindent1"><strong>(e) the common law.</strong></p> <p class="rteindent1"><strong>93(2) Subject to the provisions of this Constitution, the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution.</strong></p> <p class="rteindent1"><strong>267(3) There ahall be no disposition or development of any stool land unless the Regional Lands Commission of the region in which the land is situated has certified that the disposition or development is consistent with the development plan drawn up or approved by the planning authority for the area concerned.</strong></p> <p>It is clear that article 267(3) has no bearing on this case. The issue raised herein is one of revenue accruing to, and not disposition or development of, stool land. The relevant provision is article 93(2) of the Constitution which has vested Parliament with the legislative power of the state. Any Act of Parliament takes precedence over provisions in a subordinate legislation passed pursuant to an Act of Parliament; therefore any such subordinate legislation or provision thereof which is inconsistent with and in contravention of an Act of Parliament is void to the extent of the inconsistency. Parliament itself has the responsibility to pass Acts of Parliament, whereas subordinate legislation may be passed by other persons outside Parliament but must be laid before Parliament to give same legal validity. Thus an Act of Parliament may only be amended by another Act duly passed by Parliament. That is the general principle which ensures that Parliament’s mandate under the principle of separation of powers is adhered to. Thus prima facie an Act of Parliament may not be amended by a subordinate legislation.</p> <p>But this is not an invariable rule when it comes to the Schedule to an Act. The Schedule sometimes includes forms, or transitional provisions which remain in force until the main provisions in the Act may be brought into force, or an International Treaty whose terms may be renegotiated without reference to Parliament, or fees that may be charged by an institution or a person for some service rendered to the public. In such instances it is possible for the parent Act to entrust the responsibility of revising the forms or fixing the fees to a body or person outside Parliament.  For now let me refer to the view expressed by Justice G. P. Singh in his book Principles of Statutory Interpretation, 13<sup>th</sup> edition published in 2012 by LexisNexis at page 215. Whilst making reference to the 5<sup>th</sup> and 6<sup>th</sup> Schedules to the Constitution of India and also the 1<sup>st</sup> Schedule to the Code of Civil Procedure, 1908, the learned author and jurist said a Schedule may “<strong>contain such rules and forms which can be suitably amended according to local or changing conditions by process simpler than the normal one required for amending other parts of the statute.”</strong></p> <p>In the specific case under consideration, Parliament entrusted the power to amend the Schedule in relation to fees and charges, to the Minister of Finance through the passage of Legislative Instrument. The revision of fees upwards or downwards is a constant thing. It is a revenue matter which the Constitution has entrusted to Parliament to raise. Thus only Parliament may authorize another person or body to act on its behalf. Such power has been entrusted to several bodies and persons to charge fees by subsidiary legislation and this process enables Parliament to exercise its oversight responsibility. Thus whether a Schedule to an Act may be amended by subsidiary legislation depends on the subject of the legislation and whether the power to amend has been expressly given by Parliament not being inconsistent with the legislative function conferred upon it by article 93(2) of the 1992 Constitution.<strong>  </strong></p> <p>That brings us to a discussion on the extent of Parliamentary delegation of its legislative functions. In the case of JOHN AKPARIBO NDEBUGRE v. THE ATTORNEY-GENERAL &amp; 2 ORS, Writ J1/05/2013 dated 20<sup>th</sup> April 2016, unreported, we had occasion to talk about this question. After examining cases from US Jurisprudence, we came to the conclusion that “<strong><em>in view of the fact that it is almost impossible and impracticable for Parliament to oversee all the activities and functions that fall within its domain, it is appropriate that it delegates some of these functions which do not involve law-making to others to execute the policies it has set out, within the framework and the policy outlined in the law. This does not infringe the principle of separation of powers. Thus the principle of delegation is permissible if it does not infringe the power granted to Parliament to make laws for the country under article 93(2) of the Constitution.”</em></strong></p> <p>We will refer to some cases decided by the US Supreme Court which are of persuasive influence. The first case is J.W. HAMPTON, Jr. &amp; CO. v. UNITED STATES, 276 U.S.394 (1928). The President was empowered and directed by The Tariff Act of 1922 to increase or decrease duties imposed by the Act so as to equalize the differences which, upon investigation, he finds and ascertains between the costs of producing at home and in competing foreign countries the kinds of articles to which such duties apply. The Act laid down certain criteria to be taken into consideration in ascertaining the differences, fixed certain limits of change and made an investigation by the Tariff Commission, in aid of the President, a necessary preliminary to any proclamation changing the duties. The court held that the delegation was not unconstitutional and that a valid delegation must establish <strong>“an intelligent principle to which the person or body authorized to take action is directed to conform……….The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid</strong> <strong>objection can be made</strong>.” The court’s view was that Congress had not delegated any authority or discretion as to what the law shall be, which would not be allowable, but had merely conferred an authority and discretion, to be exercised in the execution of the law by Congress, and authorize the application of the congressional declaration, to enforce it by regulation equivalent to law.</p> <p>The second case is YAKUS v. UNITED STATES, 321 U.S. 414 (1944). In this case, the plaintiff challenged provisions in the Emergency Price Control Act, which allowed the office of Price Administration to issue regulations fixing the maximum prices of commodities and rents. The Act declared that prices were to be fixed to effectuate the Act’s policy of preventing wartime inflation, directed the Administrator to give consideration to prevailing prices and mandated that the prices set be “fair and equitable.” The court held that the delegation did not involve an unconstitutional delegation to the Price Administrator of the legislative power of Congress to control commodity prices in time of war. This is what the court said: “<strong><em>The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct-here the rule, with penal sanctions, that prices shall not be greater than those fixed by maximum price regulations which conform to standards and will tend to further the policy which Congress has established. These essentials are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, as ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective.”</em></strong></p> <p>On the contrary, the same court rejected Congressional delegation in the case of PANAMA REFINING CO. v. RYAN, 293 U.S. 388 (1935). The court invalidated a provision of the National Industrial Recovery Act, 1933 which delegated to the Executive the authority to prohibit the interstate transportation of oil violating state mandated production quotas. The court held that the vagueness of the statute did not sufficiently direct the Executive’s action and therefore impermissibly delegated legislative discretion to the President. See also SCHECTER POULTRY CORP. v. UNITED STATES, 295 U.S. 495 (1935).</p> <p>When Parliament acts in excess of the power vested in it by Article 93(2) of the Constitution this court would intervene, so there is nothing like parliamentary sovereignty in the sense as known in Britain. See the case of OPREMREH v. ELECTORAL COMMISSION &amp; ANOR. (2011) 2 SCGLR 1159, per Dotse JSC at 1174. The Indian case of JATINDRANATHGUPLA v. THE PROVINCE OF BAHIR (1949) FCR 595, presents another useful reference point. In that case the Governor of the Province of Bahir was given authority under an Act of Parliament to extend the operation of the Act with such modifications as may be specified. The Supreme Court of India in an Advisory Opinion and basing itself on a case that went on appeal before the Privy Council held that the provision giving authority to the Governor to extend the Act with modifications was ultra vires the power of the legislature. Kania C.J. said at page 620 of the report that: “<em>It was observed by their Lordships of the Privy Council in KING EMPEROR v. BEONARILALSAMA (1945) FCR 161 that; ‘It is undoubtedly true that the Governor-General acting under s. 72 of Schedule LX must himself discharge the duty of legislation there cast on him, and cannot transfer it to other authorities.’ That observation applies with equal force to cases of legislative authorities. They are not allowed to transfer to others the essential legislative function with which they are invested………The distinction between the power to make the law which necessarily involves a discretion as to what it shall be and conferring discretion or authority as to its execution to be exercised under and in pursuance of the law is a true one and has to be made in all cases where such a question is raised. The provision which has been assailed, judged from the above test, comes within the ambit of delegated legislation and is thus an improper piece of legislation.”</em></p> <p>In the instant case Act 793, section 2 thereof entrusted the power to fix charges to the Minister responsible for Finance and Economic Planning. The Act merely transferred that responsibility which hitherto existed under various enactments to the Minister of Finance. The policy underpinning this legislation is clear that the Minister of Finance should be solely responsible for fixing revenue charges which would otherwise have been done by several other persons or bodies. The underlying policy is also reflected in the memorandum accompanying the Bill that culminated in the passage of Act 793, which has been quoted below in this decision. The Act did not set the parameters to guide the Minister in fixing the charges. But the Constitution itself has in-built mechanism to guide a person in the exercise of authority based on discretion. Article 296 provides that:</p> <p class="rteindent1"><strong><em>Where in this Constitution or in any other law discretionary power is vested in any person or authority,</em></strong></p> <p class="rteindent1"><strong><em>(a) that discretionary power shall be deemed to imply a duty to be fair and candid;</em></strong></p> <p class="rteindent1"><strong><em>(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and </em></strong></p> <p class="rteindent1"><strong><em>(c) where the person or authority is not a Justice or other judicial officer, there shall be published by constitutional instrument or statutory instrument, Regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of that discretionary power.</em></strong></p> <p>Section 2 of Act 793 has invested the Minister of Finance with authority and discretion in respect of rates chargeable for certain issues. By the provisions of article 296 of the Constitution, a duty is cast on the Minister to act fairly and consult with stakeholders; the due process requirement and the duty not to act arbitrarily ensure fairness. He is also required to act by a Legislative Instrument in each case to guarantee Parliamentary involvement. And once the Minister fixes the charge by way of a Legislative Instrument, it has the force of law amending the Schedule to the Act. So whether the Act empowers him to amend the Schedule of fees or not the action has that effect in law. This is permissible within the Constitutional framework for he would not be making any new law but would just be carrying out the function imposed upon him by law to fix the rates.</p> <p>The next question is whether section 2 of Act 793 has transferred the function of prescribing fees under section 23 of Act 703 to the Minister of Finance. The said section 23 provides:</p> <p class="rteindent1"><strong><em>(1) A holder of a mineral right shall pay an annual mineral right fee that may be prescribed.</em></strong></p> <p class="rteindent1"><strong><em>(2) Payments of annual ground rent shall be made to the owner of the land or successors and assigns of the owner except in the case of annual ground rent in respect of mineral rights over stool lands, which shall be paid to the Office of the Administrator of Stool Lands, for application in accordance with the Office of Administrator of Stool Lands Act, 1994 (Act 481).</em></strong></p> <p>This section should be read together with sections 111 and 110(1).  Section 111 assigns the functions under the legislation to the Minister responsible for Mines and by section 110 the Minister is required to publish Regulations by way of a Legislative Instrument to carry into effect the functions assigned to him under the legislation. It means that the right to prescribe fees for holders of mineral rights over stool lands is the responsibility of the Minister responsible for Mines. But according to the parties herein this function has been transferred to the Minister of Finance by Act 793, section 2. Both Act 703 and Act 793 are the creatures of Parliament. Therefore Parliament would be perfectly justified in the exercise of its constitutional mandate in transferring the fixing of charges for mineral rights to the Minister of Finance. But that intention must be clearly stated in the subsequent Act or by repealing the earlier provision expressly or impliedly. When the intention is clearly expressed that Act cannot be questioned by this court.</p> <p>We first have to consider whether Act 793, being a subsequent legislation, could be said to have impliedly repealed section 23 of Act 703. The principle of implied repeal is well grounded in the law. “<strong><em>It is well settled that the Court does not construe a later Act as repealing an earlier Act unless it is impossible to make the two Acts or the two sections of the Act stand together, i.e. if the section of the later Act can only be given a sensible meaning if it is treated as impliedly repealing the section of the earlier Act”….</em></strong>per Farwell J. in In Re BERREY, LEWIS v. BERREY (1936) Ch. 274 at page 279.</p> <p>The learned author Bennion in his book referred to above states the principle at page 304 thus: <strong><em>if a later Act makes contrary provision to an earlier, Parliament (though it has not said so) is taken to intend the earlier to be repealed……The principle is a logical necessity, since two inconsistent laws cannot both be valid without contravening the principle of contradiction. </em></strong></p> <p>According to A.L. Smith J., in the case of WEST HAM CHURCH WARDENS AND OVERSEERS v. FOURTH CITY MUTUAL BUILDING SOCIETY (1892) 1 QB 654 at 658, <strong>“<em>The test of</em> <em>whether there has been a repeal by implication by subsequent legislation is this: are the provisions of a later Act so inconsistent with, or repugnant to, the provisions of an earlier Act that the two cannot stand together?”</em></strong></p> <p>However, this principle raises only a rebuttable presumption that the subsequent legislation has repealed an earlier inconsistent one. It may be rebutted when for instance the maxim <em>‘generalia</em> <em>specialibus non derogant’</em> is successfully raised. Counsel for the plaintiff argued that Act 703 is a special legislation so the general provisions in Act 793 cannot override the provisions of Act 703. The applicable law is that where a general enactment covers a situation for which a specific provision has been made by an earlier enactment, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Therefore the earlier specific provision is not treated as impliedly repealed.</p> <p>Act 703 makes elaborate provisions to govern operations in the minerals and mining industry and entrusts the responsibility of ensuring compliance with these provisions, including the fixing of fees, to the Minister responsible for Mines. On the other hand, Act 793 is a general provision which put together a number of enactments that dealt with fixing of fees and charges and entrusted future responsibility of fixing the charges to the Minister responsible for Finance and Economic Planning. Parliament excluded Act 703 from the enactments covered by Act 793. Their intention was very clear to exclude the provisions of Act 703 from the operation of Act 793 where the affected enactments were carefully set out. The principle of ‘<em>expressio unius est exclusio</em> <em>alterius</em>’ is equally applicable. By excluding Act 703, Parliament’s clear intention was that all the provisions of that Act should continue to apply. This principle will be addressed in a little detail later in this decision.  </p> <p>Issue 4. Whether or not all the three Fees and Charges Instruments made by the Minister for Finance pursuant to authority conferred under Act 793, namely L.I. 2191 of 2012, L.I. 2206 of 2013 and L.I. 2216 of 2014, are inconsistent with and in contravention of Articles 1(2), 11(1), 93(2) and 267(3) of the 1992 Constitution as well as section 23 of the Minerals and Mining Act, 2006 (Act 703).</p> <p>In order to resolve this issue it is necessary to determine the extent of the power and discretion given to the Minister of Finance by Act 793. For emphasis section 2 of Act 793 is repeated. It provides:</p> <p class="rteindent1">(1)        <strong>The authority conferred</strong> under the enactments set out in the first column of the Schedule <strong>to determine fees and charges</strong> <strong>is hereby transferred</strong> to the Minister responsible for Finance and Economic Planning and accordingly those enactments are hereby amended. (<strong><em>emphasis supplied</em></strong>)</p> <p class="rteindent1">(2)        The Minister for Finance and Economic Planning may by Legislative Instrument amend the Schedule to this Act.</p> <p>The two subsections must be read conjunctively. Subsection 1 makes it clear what power was given to the Minister; it is the power to determine fees and charges under the enactments listed in the first column of the Schedule. The same subsection transferred the authority granted to other persons to fix fees and charges in the listed enactments to the Minister of Finance; that is the extent of the authorization. Therefore when in the next subsection Parliament gave the Minister power to amend the Schedule, it was in reference to what he is empowered by subsection 1 to do and that is to fix the fees and charges in respect of the bodies listed in the first column of the Schedule. It did not empower the Minister to alter the list in the first column of the Schedule. Such authorization would amount to amending the main Act and that would be contrary to Article 93(2) of the Constitution, for the Minister would be legislating instead of Parliament. Adding to or subtracting from the list in the first column of the Schedule is a pure legislative function. Revising the fees and charges in respect of the bodies listed in the Schedule is an executive act carrying into effect the dictates of the legislation, which as pointed out has the force of law amending the Schedule.</p> <p>This reasoning finds support from the explanatory memorandum to Act 793 which counsel for the defendant quoted in their statement of case. It provides:</p> <p class="rteindent1"><strong><em>‘The authority to prescribe fees and charges in respect of sale of goods, services or licences and other matters is contained in various enactments. This Bill seeks to regulate those fees and charges under one enactment and for budgetary purposes, make it easier for the necessary changes to be made. Although certain fees are imposed by Legislative Instruments, these Legislative Instruments have not been referred to in the Schedule</em></strong><strong>, <em>rather the substantive laws under which the Legislative Instruments were made are stated in the first column of the Schedule. the reason for this is that the delegated authority of Parliament for subsidiary legislation to be made is found in the substantive Act.</em></strong></p> <p class="rteindent1"><strong><em>Under clause 2 of the Bill <u>the authority to determine the fees</u> <u>and charges in the various enactments</u> is being transferred to the Minister responsible for Finance and Economic Planning.’</em></strong></p> <p class="rteindent1"><strong><em>(emphasis supplied)  </em></strong></p> <p>From this memorandum the intention of Parliament is made manifestly clear. It intended that the only given to the Minister responsible for Finance is to amend the Schedule when it fixes the fees and charges in respect of the various wnctments listed in the first column of the Schedule through its delegated power of passing subsidiary legislation.</p> <p>In this connection it is necessary to refer to this court’s decision in the case of MORNAH v. ATTORNEY-GENERAL (2013) SCGLR (Special Edition) 502 which both lawyers in this case relied on. Whereas the plaintiff believes the court in that case had made it clear that a substantive Act cannot be amended by subsidiary legislation, the defendant said this could be done by express authorization. That case dealt with this court’s review jurisdiction which the Rules of Court Committee had amended by subsidiary legislation but the court held it had no such power or authorization to do that. Counsel for the defendant was interested in the point the court made that the power to amend the substantive law could be exercised if it was expressly conferred by the Constitution or other enabling law. That is the true position of the law. The Constitution empowers only Parliament to amend substantive Acts. And the Constitution also enables Parliament to empower another person to perform certain tasks by way of subordinate legislation, for instance to fix fees and charges and thereby effectively amend part of an Act in order to carry into effect or execute the legislative action. That decision did not say that Parliament could on its own empower another person to legislate an amendment to a substantive law. It is strictly limited to subsidiary legislation which in some cases may have the effect of amending part of an Act, notably the Schedule. There is no law whereby Parliament could authorize the Rules of Court Committee to amend the review jurisdiction of this court which has been given by the Constitution. That decision should therefore be understood in context that whatever legislative function any person exercises must be duly authorized by the Constitution or Statute. Whatever it is there must be no infraction of the Constitution in order to render such authorization valid.</p> <p>In the light of the foregoing, the Minister has no power under Act 793 to add to the list. Hence his inclusion of the Office of the Administrator of Stool Lands Act, (Act 481) was a clear breach of Article 93(2) of the Constitution. This is because he had effectively amended sections 1 and 2(1) of Act 793 by subordinate legislation when he was only authorized to amend the Schedule. He has also impliedly taken over the function given to the Minister of Mines under Act 703 through an implied repeal of section 23(1) of the said Act. And indeed such authorization could not even be given by Parliament which is under a duty to perform its task under the Constitution. Consequently whilst L.I. 2291 of 2012, L.I. 2206 of 2013 and L.I. 2216 of 2014 are valid in so far as they seek to fix charges and fees in respect of the bodies listed in the first column of Act 793, they are inconsistent with the letter and spirit of Article 93(2) of the Constitution with regard to the inclusion of the Office of the Administrator of Stool Lands Act, Act 481 and to that extent only null and void. Indeed these LI’s also run counter to section 2 of Act 793 as the Office of the Administrator of Stool Lands is not included in the Schedule thereto. As these LI’s also have the effect of impliedly amending section 23(1) of Act 703 by assuming the power given to the Minister responsible for Mines it is legally wrong. The principle is that that when the new Act, in this case Act 793, contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws becomes fortified on the principle <em>‘expressio unius est exclusio alterius’</em>. In the words of Lord Blackburn in the case of GARNETT v. BRADLEY (1877-78) 3 App. Cas. 944 at 965 “<strong><em>Inasmuch as there are certain statutes enumerated which are repealed, expressio unius est exclusio alterius, and accordingly those statutes and those alone are repealed….” </em></strong>See also HEADLAND v. COSTER and Another (1905) 1 K.B. 219; In re CHANCE (1936) 1 Ch. 266 at 268.</p> <p>Issue 5. Whether or not the power conferred on the Minister for Lands and Natural Resources under section 110(1) of the Minerals and Mining Act, 2006 (Act 703) has been transferred to the Minister of Finance under the Fees and Charges (Miscellaneous Provisions) Act, 2009 (Act 793).</p> <p>From the earlier discussions we can conclude that there has been no such transfer of power. Section 110(1) of Act 703 provides that <strong><em>The Minister may, by legislative instrument, make Regulations for the purpose of giving effect to this Act.</em></strong></p> <p>Briefly stated, a transfer of the power conferred on the Minister of Mines under section 110(1) of Act 703 could only be accomplished through an amendment, express or implied. Act 793 did not purport to amend section 110(1) of Act 703 in any manner especially having regard to the fact that all the functions assigned to the Minister responsible for Mines under Act 703 remain intact. There is nothing said in Act 793 which can even remotely be said to be a re-enactment of section 110(1) of Act 703.</p> <p>Issue 6. Whether or not the failure or omission by the Minister for Lands and Natural Resources to exercise the discretionary power and authority conferred upon him under sections 23 and 110(1) of the Minerals and Mining Act, 2006 (Act 703) to prescribe annual ground rent payable by holders of mineral rights granted by Government over stool lands is conduct which violates Articles 23 and 296(c) of the 1992 Constitution.</p> <p>Article 23 of the 1992 Constitution provides:</p> <p><strong>Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.</strong></p> <p>Article 296(c) has been quoted earlier in this judgment. The Minister responsible for Mines has the right, to the exclusion of every other person, to prescribe annual ground rents for holders of mineral rights granted over stool lands since there is no implied repeal of section 23(1) of Act 703 by section 2 of Act 793. So by Articles 23 and 296 of the Constitution, the Minister responsible for Mines would have failed in his duty for not complying with the provisions of section 110(1) and 23(1) of Act 703.</p> <p>It is observed that parties herein used the Minister for Lands and Natural Resources when making references in Act 703. It may be that currently he is the Minister responsible for Mines, but it is appropriate at all times to refer to the Minister responsible for Mines as the right person to deal with matters under Act 703. That responsibility may be passed on to another Minister by the President as he pleases. Hence as section 111 of the said Act has given the responsibility for matters arising under the Act to the Minister responsible for Mines it should be addressed as such in all matters that pertain to the Act.</p> <p><strong>Conclusion</strong></p> <p>We dismiss relief 1 for the reason that the Administrator’s role in the determination of the fees and charges pertaining to mineral and mining leases granted over stool lands was purely advisory.</p> <p>Relief 2 is dismissed for the reason that the extent of Parliament’s authorization was clear and did not extend beyond the enactments listed in the first column of the Schedule to Act 793.</p> <p>Subject to our decision that the inclusion of the Office of the Administrator of Stool Lands Act, 1994, Act 481 in L.I. 2191 of 2012, L.I. 2206 of 2013 and L.I. 2216 of 2014, is ultra vires, unconstitutional, null and void, relief 3 is dismissed.</p> <p>Relief 4 is dismissed for the reason that as public servants, the Administrator and the staff working in his office are bound by Article 23 of the 1992 Constitution to work with every law in force in the country that relates to their operations or which they are enjoined to apply.</p> <p>For reasons advanced in this decision, reliefs 5, 6. 7 and 8 are granted.</p> <p>The Minister responsible for Mines is hereby ordered to take steps to fix the fees and charges under sections 23 and 110(1) of the Minerals and Mining Act, 2006 (Act 703), including arrears, lest the State and other legitimate beneficiaries should lose revenue that they are entitled to by law.</p> <p class="rtecenter"><strong>(SGD)      A.  A. BENIN</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT     </strong></p> <p class="rtecenter"><strong>(SGD)        V. J. M. DOTSE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)       ANIN YEBOAH</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)        P. BAFFOE-BONNIE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)       N. S. GBADEGBE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)       V. AKOTO-BAMFO (MRS.)</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)         G. PWAMANG</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p><strong><u>COUNSEL</u></strong></p> <p><strong>INNOCENT AKWAYENA FOR THE PLAINTIFF.</strong></p> <p><strong>MRS. DOROTHY AFRIYIE ANSAH (CSA) WITH HER ZENAB AYARIGA (ASA) LED BY DR. DOMINIC AYINE, DEPUTY ATTORNEY GENERAL FOR THE DEFENDANT.</strong></p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-8d8d46b98eed589fa6356aafcdc5b780eb9c5748e2e1632c16cec64471deaba3"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p class="rtecenter"> </p> <p class="rtecenter"><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p class="rtecenter"><strong>IN THE SUPREME COURT OF GHANA</strong></p> <div> <p class="rtecenter"><strong>ACCRA, AD 2016</strong></p> </div> <p> </p> <p><strong>                </strong></p> <p> </p> <p class="rteright"><strong><u>WRIT NO. J1/23/2015</u></strong></p> <p class="rteright"><strong><u>28 JULY, 2016</u></strong></p> <p> </p> <p><strong>X-TRA GOLD MINING LIMITED             -               PLAINTIFF</strong></p> <p><strong>VRS.</strong></p> <p><strong>ATTORNEY-GENERAL                            -               DEFENDANT</strong></p> <hr /><p class="rtecenter"><strong>JUDGMENT</strong></p> <hr /><p><strong><u>BENIN, JSC</u></strong></p> <p>The facts of this case are quite straight forward but the Plaintiff introduced a lot of material that is irrelevant for the exercise of our jurisdiction for judicial review of legislation that has been properly invoked. Accordingly we shall trim the facts to those required for the purpose of determining the real issue before the court.</p> <p>In 2009, the Parliament of Ghana passed into law the Fees and Charges (Miscellaneous Provisions) Act, 2009 (Act 793). It is a short piece of legislation with only three Sections as follows;</p> <p><strong>“Specified enactments</strong></p> <p>1.     For the enactments specified in the first column of the Schedule and in relation to the revenue items specified in the second column of the Schedule, there is substituted for the fees and charges specified in the third column of the Schedule, the fees and charges specified in the fourth column of the Schedule.</p> <p><strong>Transfer of power</strong></p> <p>2.     (1) The authority conferred under the enactments set out in the first column of the Schedule to determine fees and charges is hereby trans­ferred to the Minister responsible for Finance and Economic Planning and accordingly those enactments are hereby amended.</p> <p>(2) The Minister for Finance and Economic Planning may by Legislative Instrument amend the Schedule to this Act.”</p> <p>Pursuant to Section 2(2) of Act 793, the Minister for Finance made the Fees and Charges (Amendment) Instrument, 2012 (L.I. 2191) and added the Office of the Administrator of Stool Lands Act, 1994 (Act 481) to the enactments covered by Act 793. He proceeded to determine and fix ground rent payable in respect of lands subject to a mineral right. The ground rent as fixed in L.I. 2191 was changed by the Minister for Finance in 2013 and 2014 by the making of L.I. 2206 and L.I. 2216 respectively. All the above Legislative Instruments were duly laid in parliament as required by Article 11(7) of the Constitution and came into force.</p> <p>Basing itself on the above Legislative Instruments, the Office of the Administrator of Stool Lands calculated ground rent payable by plaintiff in respect of five mining leases it owns and served invoices on it. Plaintiff refused to pay the amounts claimed because, according to him, the Legislative Instruments made by the Minister for Finance were void as the authority given by Parliament to the Minister to amend Act 793 was unconstitutional. Plaintiff therefore brought the instant action for the following reliefs:</p> <p class="rteindent1">i.  A declaration that on a true and proper construction or interpretation of Article 267(3) of the Constitution, the Office of the Administrator of Stool Lands has no legal power or authority under the 1992 Constitution, and the Office of the Administrator of Stool Lands Act 1994 (Act 481) to prescribe the annual ground rent payable by holders of mineral rights, commonly referred to as mining concessions granted over stool lands by the Government acting through the Minister for Lands and Natural Resources pursuant to the Mineral and Mining Act, 2006 (Act 703).</p> <p class="rteindent1">ii. A declaration that the purported grant of power and authority by Parliament to the Minister for Finance under sections 2(1) and (2) of the Fees and Charges (Miscellaneous Provisions) Act 2009 (Act 793) to amend the Schedule to the Act which authority, the said Minister purportedly exercised under the Fees and Charges (Amendment) Instrument 2012 (L.I. 2191), the Fees and Charges (Amendment) Instrument 2013 (L.I. 2206) and the Fees and Charges (Amendment) Instrument 2014 (L.I. 2216) to prescribe annual ground rent payable by holders of mining concessions granted over stool lands is inconsistent with and in contravention of articles 1(2), 11(1), 93(2), 106 and 267(3) of the 1992 Constitution as well as sections 23 of the Minerals and Mining Act 2006 (Act 703) and to that extent such grant of authority is ultra vires, null and void.</p> <p class="rteindent1">iii.        A declaration that the purported exercise by the Minister for Finance of the authority and power purportedly conferred on him under section 2(2) of the Fees and Charges (Miscellaneous Provisions) Act 2009, (Act 793) to prescribe through the three Fees and Charges (Amendment) Instruments namely L.I. 2191 of 2012, L.I. 2206 of 2013 and L.I. 2216 of 2014 the annual ground rent payable by holders of mining concessions granted over stool lands is inconsistent with and in contravention of articles 1(2), 11(1), 93(2) and 267(3) of the 1992 Constitution as well as sections 23 of the Mineral and Mining Act, 2006 (Act 703) and to that extent the said prescriptions of annual ground rent by the Minister for Finance are ultra vires, null and void.</p> <p class="rteindent1">iv. A declaration that the conduct of officers of the Office of the Administrator of Stool Lands in relying on the said prescription by the Minister for Finance of annual ground rent payable by holders of mining concessions granted over Stool Lands in the said Fees and Charges (Amendment) Instruments, namely L.I. 2191 of 2012, L.I. 2206 of 2013 and L.I. 2216 of 2014 to raise invoices based on the said prescribed rents, serve same on the holders of mining concessions granted over stool lands, and demanding payment of such prescribed rents is also conduct that is inconsistent with and in contravention of articles 1(2), 11(1), 93(2) and 267 of the 1992 Constitution and to that extent such conduct is also ultra vires, null and void.</p> <p class="rteindent1">v. A declaration that the failure or omission of the Minister for Lands and Natural Resources to exercise the discretionary power and authority duly conferred upon him under section 23 of the Minerals and Mining Act, 2006 (Act 703) to prescribe by Legislative Instrument the annual ground rent payable by holders of mining concessions is failure or omission which is inconsistent with or is in contravention of the constitutional duties imposed on the said Minister as an Administrative Official or public officer pursuant to Articles 23 and 296(c) of the 1992 Constitution and to that extent such failure or omission on the part of the said Minister constitutes a fragrant violation of articles, 23 and 296(c) of the Constitution.</p> <p class="rteindent1">vi. An order declaring as null, void and of no effect the prescriptions by the Minister for Finance of annual ground rent GH₵36.50 per acre contained in the Fees and Charges (Amendment) Instrument 2012 (L.I. 2191), the Fees and Charges (Amendment) Instrument 2013 (L.I. 2206) as well as the prescription of GH₵15.00 per acre contained in the Fees and Charges Instrument 2014 (L.I. 2216) as having been made in contravention of articles 1(2), 11(1), 93(2), 106 and 267 of the 1992 Constitution.</p> <p class="rteindent1">vii.       An order directing the Minister for Lands and Natural Resources to comply with the provisions of Articles 23 and 296(c) of the 1992 Constitution and  power and authority to prescribe by Legislative Instrument the annual ground rent payable by holders of mining concessions granted by the Government over stool lands under the Minerals and Mining Act, 2007 (Act 703).</p> <p class="rteindent1">viii.      Perpetual injunction against the Office of the Administrator of Stool Lands, its officers and agents or any person acting for or on their behalf from relying on the said Fees and Charges (Amendment) Instruments 2012 (L.I. 2191), 2013 (L.I. 2206) and 2014 (L.I. 2216) to demand or enforce against the plaintiff payment of the prescribed ground rent contained in the said Instruments which prescriptions are inconsistent with and in contravention of articles 1(2), 11(1), 93(2), 106 and 267(3) of the 1992 Constitution.</p> <p class="rteindent1">ix. Any further or other consequential orders as shall be deemed meet by the Supreme Court.</p> <p>The parties agreed on six issues for the court’s determination. The first two were expressed in the alternative. The issues will be discussed seriatim.</p> <p>Issue 1. Whether or not the Office of the Administrator of Stool Lands has authority and power under Article 267(2) of the 1992 Constitution to prescribe annual ground rent payable by holders of mineral rights granted over stool lands by the Minister for Lands and Natural Resources pursuant to the Minerals and Mining Act, 2006 (Act 703).</p> <p>OR</p> <p>Issue 2. Whether or not the Administrator of Stool Lands, being a head of department, can participate in the mandatory review exercise under Regulation 20 of the Financial Administration Regulations, 2004 (L. I. 1802) and, if so, whether such participation amounts to prescribing annual ground rent payable by mineral right holders and contravenes Article 267(2) of the 1992 Constitution.</p> <p>Issues 1 and 2 have a common strand running through them and it is whether the Administrator of Stool Lands, hereafter called the Administrator,  legally has any role to play in fixing annual ground rents for mineral rights granted over stool lands. This issue has arisen in respect of the functions assigned to the Administrator under Article 267(2) of the Constitution, 1992 which provides:</p> <p class="rteindent1"><strong><em>There shall be established the Office of the Administrator of Stool Lands which shall be responsible for</em></strong></p> <p class="rteindent1"><strong><em>(a) the establishment of a stool land account for each stool into which shall be paid all rents, dues, royalties, revenues or other payments whether in the nature of income or capital from the stool lands;</em></strong></p> <p class="rteindent1"><strong><em>(b) the collection of all such rents, dues, royalties, revenues or other payments</em></strong><strong> <em>whether in the nature of income or capital, and to account for them to the beneficiaries specified in clause (6) of this article; and </em></strong></p> <p class="rteindent1"><strong><em>(c) the disbursement of such revenues as may be determined in accordance with clause (6) of this article.</em></strong></p> <p>The functions assigned to the Administrator are clear and not ambiguous and do not require any arguments. From these issues the plaintiff is clearly saying that the Administrator has exceeded his statutory functions by, either suo motu or in conjunction with others, fixing the rates payable by holders of mineral rights created over stool lands. But the facts do not support this assertion. The plaintiff’s own case was that the Administrator wrote to demand payments in accordance with the rates determined by the Minister of Finance under various Legislative Instruments. The Administrator on his own accord did not fix the rates. Issue number 1 thus has no factual basis and is accordingly rejected.</p> <p>In the alternative, parties set down issue 2 that the Administrator was part of a review team that recommended adjustments to the annual rates. This is contained in a letter purported to have been sent to the plaintiff by the Eastern Regional Office of the Administrator. This letter is found in paragraph 4.6 of the plaintiff’s statement of case and it reads in relevant part thus:</p> <p class="rteindent1"><strong><em>“…………the Office of the Administrator of Stool Land is part of a committee of technocrats and stakeholders including Chamber of Mines and Small Scale Miners working with the Ministry of Finance for a review of the current rate GH</em></strong><strong><em>₵</em></strong><strong><em>36.50 per acre per annum. We have been informed by our Head Office that they have agreed on GH</em></strong><strong><em>₵</em></strong><strong><em>15.00 per acre for 2013 and 2014.” </em></strong></p> <p>It is noted that this recommendation for a downward adjustment of the 2012 rate was acted upon by the Minister of Finance by L.I. 2206 of 2013 and L.I. 2216 of 2014. It is crystal clear from this letter and the issuance of the Legislative Instruments by the Minister of Finance that the Administrator, in conjunction with others, only plays an advisory role to the Minister of Finance. This does not derogate from his core functions as set out in article 267(2) of the 1992 Constitution. An advisory opinion is not binding on the Minister of Finance so it has no force of law. It is noted that participation in such committee work by the Administrator is purely administrative, which the Constitution is not required to spell out. It is an incident of the functions of the Administrator who is responsible for all royalties and other fees accruing to stool lands and this places him in the position to offer expert advice on matters pertaining to stool lands. The Minister of Finance who has acted under Act 793 to fix the rates may thus seek the advice of the Administrator, among other persons, in deciding on what rate to fix. The process of seeking advice before acting is purely administrative and is inherent in and derives from the power conferred by the statute, which also derives its source from the Constitution, 1992. This was one of the reasons why the setting up of a Constitutional Review Implementation Committee by the President of the Republic was held to be legal as same was purely an administrative body to help the President to carry out a constitutional function. That was in the case of PROFESSOR STEPHEN KWAKU ASARE VS. THE ATTORNEY-GENERAL; Writ No. J1/15/2015, dated 29<sup>th</sup> October 2015, unreported.  Therefore the Administrator did not commit any violation of Article 267(2) of the Constitution by participating in the fee-fixing review process.</p> <p>Issue 3. Whether or not the grant of power and authority by Parliament to the Minister for Finance under sections 2(1) and (2) of the Fees and Charges (Miscellaneous Provisions) Act, 2009 (Act 793) to amend the Schedule to the Act is inconsistent with or in contravention of articles 1(2), 11(2), 93(2) and 267(3) of the 1992 Constitution and section 23 of the Minerals and Mining Act, 2006 (Act 793).</p> <p>This issue questions Parliament’s decision to confer on the Minister of Finance power and authority to amend the Schedule to the Act in question, namely Act 793, section 2 thereof, supra.</p> <p>The issue throws up for discussion several important legal questions. In the first place, what is the status of a Schedule to an enactment? Is it legally permissible to amend a Schedule to an Act of Parliament by way of a Legislative Instrument and for that matter a subordinate legislation? To what extent, if at all, may Parliament delegate its power of legislation to another person? Has section 2 of Act 793 transferred the function of prescribing fees under section 23 of Act 703 to the Minister of Finance? Has Section 2 of Act 793 impliedly repealed section 23 of Act 703?</p> <p>What then is a Schedule to an Act? Bennion on Statutory Interpretation, 5<sup>th</sup> edition, published by LexisNexis at page 721 says “A Schedule is an extension of the section which induces it. Material is put into a Schedule because it is too lengthy or because it forms a separate document (such as a treaty).” The learned author goes on to explain that it is a convenient way of incorporating part of the operative provisions of an Act in the form of a Schedule. And as further explained by Lord Wilberforce in the case of FLOOR v. DAVIS (INSPECTOR OF TAXES) (1980) 3 All ER 39, when speaking of the Finance Act of 1965, that a Schedule is a technique which Parliament employs to place most of the working and detailed  provisions in the Act.</p> <p>The upshot of the foregoing is that once the intent is clear the Schedule is part of the Act and must thus be construed as one whole document. In the case of A-G v. LAMPLOUGH (1878) 3 Ex. D 214 at 229 Brett LJ said that “<strong><em>A Schedule in an Act is a mere question of drafting, a mere question of words. The Schedule is as much a part of the statute, and is as much an enactment as any other part.” </em>  </strong></p> <p>See also these cases: FLOWER FREIGHT CO. LTD. v. HAMMOND (1963) 1 QB 275. R. v. LEGAL AID COMMITTEE NO. 1 (LONDON) LEGAL AID AREA; EX PARTE RONDEL (1967) 2 QB 482. METROPOLITAN POLICE COMMISSIONER v. CURRAN (1976) 1 WLR 87 HL.</p> <p> Thus a Schedule forms an integral part of an Act. The next obvious question is whether a Schedule to an Act may be amended by subordinate or subsidiary legislation. The plaintiff is challenging the power conferred by Parliament on the Minister of Finance to amend the Schedule to Act 793 by Legislative Instrument as being inconsistent with and in contravention of articles 1(2), 11(1), 93(2) and 267(3) of the 1992 Constitution, as well as section 23 of Act 703. These constitutional provisions are:</p> <p class="rteindent1"><strong>1(2)</strong> <strong>The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.</strong></p> <p class="rteindent1"><strong>11(1) The laws of Ghana shall comprise </strong></p> <p class="rteindent1"><strong>(a) this Constitution;</strong></p> <p class="rteindent1"><strong>(b) enactments made by or under the authority of the Parliament established by this Constitution;</strong></p> <p class="rteindent1"><strong>(c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution;</strong></p> <p class="rteindent1"><strong>(d)        the existing law; and</strong></p> <p class="rteindent1"><strong>(e) the common law.</strong></p> <p class="rteindent1"><strong>93(2) Subject to the provisions of this Constitution, the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution.</strong></p> <p class="rteindent1"><strong>267(3) There ahall be no disposition or development of any stool land unless the Regional Lands Commission of the region in which the land is situated has certified that the disposition or development is consistent with the development plan drawn up or approved by the planning authority for the area concerned.</strong></p> <p>It is clear that article 267(3) has no bearing on this case. The issue raised herein is one of revenue accruing to, and not disposition or development of, stool land. The relevant provision is article 93(2) of the Constitution which has vested Parliament with the legislative power of the state. Any Act of Parliament takes precedence over provisions in a subordinate legislation passed pursuant to an Act of Parliament; therefore any such subordinate legislation or provision thereof which is inconsistent with and in contravention of an Act of Parliament is void to the extent of the inconsistency. Parliament itself has the responsibility to pass Acts of Parliament, whereas subordinate legislation may be passed by other persons outside Parliament but must be laid before Parliament to give same legal validity. Thus an Act of Parliament may only be amended by another Act duly passed by Parliament. That is the general principle which ensures that Parliament’s mandate under the principle of separation of powers is adhered to. Thus prima facie an Act of Parliament may not be amended by a subordinate legislation.</p> <p>But this is not an invariable rule when it comes to the Schedule to an Act. The Schedule sometimes includes forms, or transitional provisions which remain in force until the main provisions in the Act may be brought into force, or an International Treaty whose terms may be renegotiated without reference to Parliament, or fees that may be charged by an institution or a person for some service rendered to the public. In such instances it is possible for the parent Act to entrust the responsibility of revising the forms or fixing the fees to a body or person outside Parliament.  For now let me refer to the view expressed by Justice G. P. Singh in his book Principles of Statutory Interpretation, 13<sup>th</sup> edition published in 2012 by LexisNexis at page 215. Whilst making reference to the 5<sup>th</sup> and 6<sup>th</sup> Schedules to the Constitution of India and also the 1<sup>st</sup> Schedule to the Code of Civil Procedure, 1908, the learned author and jurist said a Schedule may “<strong>contain such rules and forms which can be suitably amended according to local or changing conditions by process simpler than the normal one required for amending other parts of the statute.”</strong></p> <p>In the specific case under consideration, Parliament entrusted the power to amend the Schedule in relation to fees and charges, to the Minister of Finance through the passage of Legislative Instrument. The revision of fees upwards or downwards is a constant thing. It is a revenue matter which the Constitution has entrusted to Parliament to raise. Thus only Parliament may authorize another person or body to act on its behalf. Such power has been entrusted to several bodies and persons to charge fees by subsidiary legislation and this process enables Parliament to exercise its oversight responsibility. Thus whether a Schedule to an Act may be amended by subsidiary legislation depends on the subject of the legislation and whether the power to amend has been expressly given by Parliament not being inconsistent with the legislative function conferred upon it by article 93(2) of the 1992 Constitution.<strong>  </strong></p> <p>That brings us to a discussion on the extent of Parliamentary delegation of its legislative functions. In the case of JOHN AKPARIBO NDEBUGRE v. THE ATTORNEY-GENERAL &amp; 2 ORS, Writ J1/05/2013 dated 20<sup>th</sup> April 2016, unreported, we had occasion to talk about this question. After examining cases from US Jurisprudence, we came to the conclusion that “<strong><em>in view of the fact that it is almost impossible and impracticable for Parliament to oversee all the activities and functions that fall within its domain, it is appropriate that it delegates some of these functions which do not involve law-making to others to execute the policies it has set out, within the framework and the policy outlined in the law. This does not infringe the principle of separation of powers. Thus the principle of delegation is permissible if it does not infringe the power granted to Parliament to make laws for the country under article 93(2) of the Constitution.”</em></strong></p> <p>We will refer to some cases decided by the US Supreme Court which are of persuasive influence. The first case is J.W. HAMPTON, Jr. &amp; CO. v. UNITED STATES, 276 U.S.394 (1928). The President was empowered and directed by The Tariff Act of 1922 to increase or decrease duties imposed by the Act so as to equalize the differences which, upon investigation, he finds and ascertains between the costs of producing at home and in competing foreign countries the kinds of articles to which such duties apply. The Act laid down certain criteria to be taken into consideration in ascertaining the differences, fixed certain limits of change and made an investigation by the Tariff Commission, in aid of the President, a necessary preliminary to any proclamation changing the duties. The court held that the delegation was not unconstitutional and that a valid delegation must establish <strong>“an intelligent principle to which the person or body authorized to take action is directed to conform……….The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid</strong> <strong>objection can be made</strong>.” The court’s view was that Congress had not delegated any authority or discretion as to what the law shall be, which would not be allowable, but had merely conferred an authority and discretion, to be exercised in the execution of the law by Congress, and authorize the application of the congressional declaration, to enforce it by regulation equivalent to law.</p> <p>The second case is YAKUS v. UNITED STATES, 321 U.S. 414 (1944). In this case, the plaintiff challenged provisions in the Emergency Price Control Act, which allowed the office of Price Administration to issue regulations fixing the maximum prices of commodities and rents. The Act declared that prices were to be fixed to effectuate the Act’s policy of preventing wartime inflation, directed the Administrator to give consideration to prevailing prices and mandated that the prices set be “fair and equitable.” The court held that the delegation did not involve an unconstitutional delegation to the Price Administrator of the legislative power of Congress to control commodity prices in time of war. This is what the court said: “<strong><em>The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct-here the rule, with penal sanctions, that prices shall not be greater than those fixed by maximum price regulations which conform to standards and will tend to further the policy which Congress has established. These essentials are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, as ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective.”</em></strong></p> <p>On the contrary, the same court rejected Congressional delegation in the case of PANAMA REFINING CO. v. RYAN, 293 U.S. 388 (1935). The court invalidated a provision of the National Industrial Recovery Act, 1933 which delegated to the Executive the authority to prohibit the interstate transportation of oil violating state mandated production quotas. The court held that the vagueness of the statute did not sufficiently direct the Executive’s action and therefore impermissibly delegated legislative discretion to the President. See also SCHECTER POULTRY CORP. v. UNITED STATES, 295 U.S. 495 (1935).</p> <p>When Parliament acts in excess of the power vested in it by Article 93(2) of the Constitution this court would intervene, so there is nothing like parliamentary sovereignty in the sense as known in Britain. See the case of OPREMREH v. ELECTORAL COMMISSION &amp; ANOR. (2011) 2 SCGLR 1159, per Dotse JSC at 1174. The Indian case of JATINDRANATHGUPLA v. THE PROVINCE OF BAHIR (1949) FCR 595, presents another useful reference point. In that case the Governor of the Province of Bahir was given authority under an Act of Parliament to extend the operation of the Act with such modifications as may be specified. The Supreme Court of India in an Advisory Opinion and basing itself on a case that went on appeal before the Privy Council held that the provision giving authority to the Governor to extend the Act with modifications was ultra vires the power of the legislature. Kania C.J. said at page 620 of the report that: “<em>It was observed by their Lordships of the Privy Council in KING EMPEROR v. BEONARILALSAMA (1945) FCR 161 that; ‘It is undoubtedly true that the Governor-General acting under s. 72 of Schedule LX must himself discharge the duty of legislation there cast on him, and cannot transfer it to other authorities.’ That observation applies with equal force to cases of legislative authorities. They are not allowed to transfer to others the essential legislative function with which they are invested………The distinction between the power to make the law which necessarily involves a discretion as to what it shall be and conferring discretion or authority as to its execution to be exercised under and in pursuance of the law is a true one and has to be made in all cases where such a question is raised. The provision which has been assailed, judged from the above test, comes within the ambit of delegated legislation and is thus an improper piece of legislation.”</em></p> <p>In the instant case Act 793, section 2 thereof entrusted the power to fix charges to the Minister responsible for Finance and Economic Planning. The Act merely transferred that responsibility which hitherto existed under various enactments to the Minister of Finance. The policy underpinning this legislation is clear that the Minister of Finance should be solely responsible for fixing revenue charges which would otherwise have been done by several other persons or bodies. The underlying policy is also reflected in the memorandum accompanying the Bill that culminated in the passage of Act 793, which has been quoted below in this decision. The Act did not set the parameters to guide the Minister in fixing the charges. But the Constitution itself has in-built mechanism to guide a person in the exercise of authority based on discretion. Article 296 provides that:</p> <p class="rteindent1"><strong><em>Where in this Constitution or in any other law discretionary power is vested in any person or authority,</em></strong></p> <p class="rteindent1"><strong><em>(a) that discretionary power shall be deemed to imply a duty to be fair and candid;</em></strong></p> <p class="rteindent1"><strong><em>(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and </em></strong></p> <p class="rteindent1"><strong><em>(c) where the person or authority is not a Justice or other judicial officer, there shall be published by constitutional instrument or statutory instrument, Regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of that discretionary power.</em></strong></p> <p>Section 2 of Act 793 has invested the Minister of Finance with authority and discretion in respect of rates chargeable for certain issues. By the provisions of article 296 of the Constitution, a duty is cast on the Minister to act fairly and consult with stakeholders; the due process requirement and the duty not to act arbitrarily ensure fairness. He is also required to act by a Legislative Instrument in each case to guarantee Parliamentary involvement. And once the Minister fixes the charge by way of a Legislative Instrument, it has the force of law amending the Schedule to the Act. So whether the Act empowers him to amend the Schedule of fees or not the action has that effect in law. This is permissible within the Constitutional framework for he would not be making any new law but would just be carrying out the function imposed upon him by law to fix the rates.</p> <p>The next question is whether section 2 of Act 793 has transferred the function of prescribing fees under section 23 of Act 703 to the Minister of Finance. The said section 23 provides:</p> <p class="rteindent1"><strong><em>(1) A holder of a mineral right shall pay an annual mineral right fee that may be prescribed.</em></strong></p> <p class="rteindent1"><strong><em>(2) Payments of annual ground rent shall be made to the owner of the land or successors and assigns of the owner except in the case of annual ground rent in respect of mineral rights over stool lands, which shall be paid to the Office of the Administrator of Stool Lands, for application in accordance with the Office of Administrator of Stool Lands Act, 1994 (Act 481).</em></strong></p> <p>This section should be read together with sections 111 and 110(1).  Section 111 assigns the functions under the legislation to the Minister responsible for Mines and by section 110 the Minister is required to publish Regulations by way of a Legislative Instrument to carry into effect the functions assigned to him under the legislation. It means that the right to prescribe fees for holders of mineral rights over stool lands is the responsibility of the Minister responsible for Mines. But according to the parties herein this function has been transferred to the Minister of Finance by Act 793, section 2. Both Act 703 and Act 793 are the creatures of Parliament. Therefore Parliament would be perfectly justified in the exercise of its constitutional mandate in transferring the fixing of charges for mineral rights to the Minister of Finance. But that intention must be clearly stated in the subsequent Act or by repealing the earlier provision expressly or impliedly. When the intention is clearly expressed that Act cannot be questioned by this court.</p> <p>We first have to consider whether Act 793, being a subsequent legislation, could be said to have impliedly repealed section 23 of Act 703. The principle of implied repeal is well grounded in the law. “<strong><em>It is well settled that the Court does not construe a later Act as repealing an earlier Act unless it is impossible to make the two Acts or the two sections of the Act stand together, i.e. if the section of the later Act can only be given a sensible meaning if it is treated as impliedly repealing the section of the earlier Act”….</em></strong>per Farwell J. in In Re BERREY, LEWIS v. BERREY (1936) Ch. 274 at page 279.</p> <p>The learned author Bennion in his book referred to above states the principle at page 304 thus: <strong><em>if a later Act makes contrary provision to an earlier, Parliament (though it has not said so) is taken to intend the earlier to be repealed……The principle is a logical necessity, since two inconsistent laws cannot both be valid without contravening the principle of contradiction. </em></strong></p> <p>According to A.L. Smith J., in the case of WEST HAM CHURCH WARDENS AND OVERSEERS v. FOURTH CITY MUTUAL BUILDING SOCIETY (1892) 1 QB 654 at 658, <strong>“<em>The test of</em> <em>whether there has been a repeal by implication by subsequent legislation is this: are the provisions of a later Act so inconsistent with, or repugnant to, the provisions of an earlier Act that the two cannot stand together?”</em></strong></p> <p>However, this principle raises only a rebuttable presumption that the subsequent legislation has repealed an earlier inconsistent one. It may be rebutted when for instance the maxim <em>‘generalia</em> <em>specialibus non derogant’</em> is successfully raised. Counsel for the plaintiff argued that Act 703 is a special legislation so the general provisions in Act 793 cannot override the provisions of Act 703. The applicable law is that where a general enactment covers a situation for which a specific provision has been made by an earlier enactment, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Therefore the earlier specific provision is not treated as impliedly repealed.</p> <p>Act 703 makes elaborate provisions to govern operations in the minerals and mining industry and entrusts the responsibility of ensuring compliance with these provisions, including the fixing of fees, to the Minister responsible for Mines. On the other hand, Act 793 is a general provision which put together a number of enactments that dealt with fixing of fees and charges and entrusted future responsibility of fixing the charges to the Minister responsible for Finance and Economic Planning. Parliament excluded Act 703 from the enactments covered by Act 793. Their intention was very clear to exclude the provisions of Act 703 from the operation of Act 793 where the affected enactments were carefully set out. The principle of ‘<em>expressio unius est exclusio</em> <em>alterius</em>’ is equally applicable. By excluding Act 703, Parliament’s clear intention was that all the provisions of that Act should continue to apply. This principle will be addressed in a little detail later in this decision.  </p> <p>Issue 4. Whether or not all the three Fees and Charges Instruments made by the Minister for Finance pursuant to authority conferred under Act 793, namely L.I. 2191 of 2012, L.I. 2206 of 2013 and L.I. 2216 of 2014, are inconsistent with and in contravention of Articles 1(2), 11(1), 93(2) and 267(3) of the 1992 Constitution as well as section 23 of the Minerals and Mining Act, 2006 (Act 703).</p> <p>In order to resolve this issue it is necessary to determine the extent of the power and discretion given to the Minister of Finance by Act 793. For emphasis section 2 of Act 793 is repeated. It provides:</p> <p class="rteindent1">(1)        <strong>The authority conferred</strong> under the enactments set out in the first column of the Schedule <strong>to determine fees and charges</strong> <strong>is hereby transferred</strong> to the Minister responsible for Finance and Economic Planning and accordingly those enactments are hereby amended. (<strong><em>emphasis supplied</em></strong>)</p> <p class="rteindent1">(2)        The Minister for Finance and Economic Planning may by Legislative Instrument amend the Schedule to this Act.</p> <p>The two subsections must be read conjunctively. Subsection 1 makes it clear what power was given to the Minister; it is the power to determine fees and charges under the enactments listed in the first column of the Schedule. The same subsection transferred the authority granted to other persons to fix fees and charges in the listed enactments to the Minister of Finance; that is the extent of the authorization. Therefore when in the next subsection Parliament gave the Minister power to amend the Schedule, it was in reference to what he is empowered by subsection 1 to do and that is to fix the fees and charges in respect of the bodies listed in the first column of the Schedule. It did not empower the Minister to alter the list in the first column of the Schedule. Such authorization would amount to amending the main Act and that would be contrary to Article 93(2) of the Constitution, for the Minister would be legislating instead of Parliament. Adding to or subtracting from the list in the first column of the Schedule is a pure legislative function. Revising the fees and charges in respect of the bodies listed in the Schedule is an executive act carrying into effect the dictates of the legislation, which as pointed out has the force of law amending the Schedule.</p> <p>This reasoning finds support from the explanatory memorandum to Act 793 which counsel for the defendant quoted in their statement of case. It provides:</p> <p class="rteindent1"><strong><em>‘The authority to prescribe fees and charges in respect of sale of goods, services or licences and other matters is contained in various enactments. This Bill seeks to regulate those fees and charges under one enactment and for budgetary purposes, make it easier for the necessary changes to be made. Although certain fees are imposed by Legislative Instruments, these Legislative Instruments have not been referred to in the Schedule</em></strong><strong>, <em>rather the substantive laws under which the Legislative Instruments were made are stated in the first column of the Schedule. the reason for this is that the delegated authority of Parliament for subsidiary legislation to be made is found in the substantive Act.</em></strong></p> <p class="rteindent1"><strong><em>Under clause 2 of the Bill <u>the authority to determine the fees</u> <u>and charges in the various enactments</u> is being transferred to the Minister responsible for Finance and Economic Planning.’</em></strong></p> <p class="rteindent1"><strong><em>(emphasis supplied)  </em></strong></p> <p>From this memorandum the intention of Parliament is made manifestly clear. It intended that the only given to the Minister responsible for Finance is to amend the Schedule when it fixes the fees and charges in respect of the various wnctments listed in the first column of the Schedule through its delegated power of passing subsidiary legislation.</p> <p>In this connection it is necessary to refer to this court’s decision in the case of MORNAH v. ATTORNEY-GENERAL (2013) SCGLR (Special Edition) 502 which both lawyers in this case relied on. Whereas the plaintiff believes the court in that case had made it clear that a substantive Act cannot be amended by subsidiary legislation, the defendant said this could be done by express authorization. That case dealt with this court’s review jurisdiction which the Rules of Court Committee had amended by subsidiary legislation but the court held it had no such power or authorization to do that. Counsel for the defendant was interested in the point the court made that the power to amend the substantive law could be exercised if it was expressly conferred by the Constitution or other enabling law. That is the true position of the law. The Constitution empowers only Parliament to amend substantive Acts. And the Constitution also enables Parliament to empower another person to perform certain tasks by way of subordinate legislation, for instance to fix fees and charges and thereby effectively amend part of an Act in order to carry into effect or execute the legislative action. That decision did not say that Parliament could on its own empower another person to legislate an amendment to a substantive law. It is strictly limited to subsidiary legislation which in some cases may have the effect of amending part of an Act, notably the Schedule. There is no law whereby Parliament could authorize the Rules of Court Committee to amend the review jurisdiction of this court which has been given by the Constitution. That decision should therefore be understood in context that whatever legislative function any person exercises must be duly authorized by the Constitution or Statute. Whatever it is there must be no infraction of the Constitution in order to render such authorization valid.</p> <p>In the light of the foregoing, the Minister has no power under Act 793 to add to the list. Hence his inclusion of the Office of the Administrator of Stool Lands Act, (Act 481) was a clear breach of Article 93(2) of the Constitution. This is because he had effectively amended sections 1 and 2(1) of Act 793 by subordinate legislation when he was only authorized to amend the Schedule. He has also impliedly taken over the function given to the Minister of Mines under Act 703 through an implied repeal of section 23(1) of the said Act. And indeed such authorization could not even be given by Parliament which is under a duty to perform its task under the Constitution. Consequently whilst L.I. 2291 of 2012, L.I. 2206 of 2013 and L.I. 2216 of 2014 are valid in so far as they seek to fix charges and fees in respect of the bodies listed in the first column of Act 793, they are inconsistent with the letter and spirit of Article 93(2) of the Constitution with regard to the inclusion of the Office of the Administrator of Stool Lands Act, Act 481 and to that extent only null and void. Indeed these LI’s also run counter to section 2 of Act 793 as the Office of the Administrator of Stool Lands is not included in the Schedule thereto. As these LI’s also have the effect of impliedly amending section 23(1) of Act 703 by assuming the power given to the Minister responsible for Mines it is legally wrong. The principle is that that when the new Act, in this case Act 793, contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws becomes fortified on the principle <em>‘expressio unius est exclusio alterius’</em>. In the words of Lord Blackburn in the case of GARNETT v. BRADLEY (1877-78) 3 App. Cas. 944 at 965 “<strong><em>Inasmuch as there are certain statutes enumerated which are repealed, expressio unius est exclusio alterius, and accordingly those statutes and those alone are repealed….” </em></strong>See also HEADLAND v. COSTER and Another (1905) 1 K.B. 219; In re CHANCE (1936) 1 Ch. 266 at 268.</p> <p>Issue 5. Whether or not the power conferred on the Minister for Lands and Natural Resources under section 110(1) of the Minerals and Mining Act, 2006 (Act 703) has been transferred to the Minister of Finance under the Fees and Charges (Miscellaneous Provisions) Act, 2009 (Act 793).</p> <p>From the earlier discussions we can conclude that there has been no such transfer of power. Section 110(1) of Act 703 provides that <strong><em>The Minister may, by legislative instrument, make Regulations for the purpose of giving effect to this Act.</em></strong></p> <p>Briefly stated, a transfer of the power conferred on the Minister of Mines under section 110(1) of Act 703 could only be accomplished through an amendment, express or implied. Act 793 did not purport to amend section 110(1) of Act 703 in any manner especially having regard to the fact that all the functions assigned to the Minister responsible for Mines under Act 703 remain intact. There is nothing said in Act 793 which can even remotely be said to be a re-enactment of section 110(1) of Act 703.</p> <p>Issue 6. Whether or not the failure or omission by the Minister for Lands and Natural Resources to exercise the discretionary power and authority conferred upon him under sections 23 and 110(1) of the Minerals and Mining Act, 2006 (Act 703) to prescribe annual ground rent payable by holders of mineral rights granted by Government over stool lands is conduct which violates Articles 23 and 296(c) of the 1992 Constitution.</p> <p>Article 23 of the 1992 Constitution provides:</p> <p><strong>Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.</strong></p> <p>Article 296(c) has been quoted earlier in this judgment. The Minister responsible for Mines has the right, to the exclusion of every other person, to prescribe annual ground rents for holders of mineral rights granted over stool lands since there is no implied repeal of section 23(1) of Act 703 by section 2 of Act 793. So by Articles 23 and 296 of the Constitution, the Minister responsible for Mines would have failed in his duty for not complying with the provisions of section 110(1) and 23(1) of Act 703.</p> <p>It is observed that parties herein used the Minister for Lands and Natural Resources when making references in Act 703. It may be that currently he is the Minister responsible for Mines, but it is appropriate at all times to refer to the Minister responsible for Mines as the right person to deal with matters under Act 703. That responsibility may be passed on to another Minister by the President as he pleases. Hence as section 111 of the said Act has given the responsibility for matters arising under the Act to the Minister responsible for Mines it should be addressed as such in all matters that pertain to the Act.</p> <p><strong>Conclusion</strong></p> <p>We dismiss relief 1 for the reason that the Administrator’s role in the determination of the fees and charges pertaining to mineral and mining leases granted over stool lands was purely advisory.</p> <p>Relief 2 is dismissed for the reason that the extent of Parliament’s authorization was clear and did not extend beyond the enactments listed in the first column of the Schedule to Act 793.</p> <p>Subject to our decision that the inclusion of the Office of the Administrator of Stool Lands Act, 1994, Act 481 in L.I. 2191 of 2012, L.I. 2206 of 2013 and L.I. 2216 of 2014, is ultra vires, unconstitutional, null and void, relief 3 is dismissed.</p> <p>Relief 4 is dismissed for the reason that as public servants, the Administrator and the staff working in his office are bound by Article 23 of the 1992 Constitution to work with every law in force in the country that relates to their operations or which they are enjoined to apply.</p> <p>For reasons advanced in this decision, reliefs 5, 6. 7 and 8 are granted.</p> <p>The Minister responsible for Mines is hereby ordered to take steps to fix the fees and charges under sections 23 and 110(1) of the Minerals and Mining Act, 2006 (Act 703), including arrears, lest the State and other legitimate beneficiaries should lose revenue that they are entitled to by law.</p> <p class="rtecenter"><strong>(SGD)      A.  A. BENIN</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT     </strong></p> <p class="rtecenter"><strong>(SGD)        V. J. M. DOTSE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)       ANIN YEBOAH</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)        P. BAFFOE-BONNIE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)       N. S. GBADEGBE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)       V. AKOTO-BAMFO (MRS.)</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)         G. PWAMANG</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p><strong><u>COUNSEL</u></strong></p> <p><strong>INNOCENT AKWAYENA FOR THE PLAINTIFF.</strong></p> <p><strong>MRS. DOROTHY AFRIYIE ANSAH (CSA) WITH HER ZENAB AYARIGA (ASA) LED BY DR. DOMINIC AYINE, DEPUTY ATTORNEY GENERAL FOR THE DEFENDANT.</strong></p></span></div></div> </div> </div> Wed, 23 Jun 2021 11:00:05 +0000 Anonymous 2276 at http://ghalii.org Awabego Vrs Akubayela and Another (J4 6 of 2016) [2016] GHASC 23 (23 November 2016); http://ghalii.org/gh/judgment/supreme-court/2016/23 <span class="field field--name-title field--type-string field--label-hidden">Awabego Vrs Akubayela and Another (J4 6 of 2016) [2016] GHASC 23 (23 November 2016);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/398" hreflang="x-default">Supervisory Jurisdiction</a></div> <div class="field__item"><a href="/taxonomy/term/382" hreflang="x-default">Declaratory Relief</a></div> <div class="field__item"><a href="/taxonomy/term/383" hreflang="x-default">African customary law and rights of indigenous peoples</a></div> <div class="field__item"><a href="/taxonomy/term/372" hreflang="x-default">Land use</a></div> <div class="field__item"><a href="/taxonomy/term/369" hreflang="x-default">EL</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 06/23/2021 - 10:59</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>This was a dispute over land ownership and related claims to reversionary interest compensation. Both parties sought orders declaring that they were allodial owners of the land in dispute according to tradition and customs, and that they were entitled to receive the reversionary interest compensation. </p> <p>The court determined whether the allodial title to the land in dispute vested in individual families or in the appellant as the Tindana for and on behalf of the whole community. </p> <p>The court held that the best way of resolving conflicts arising from traditional evidence concerning ownership of land is to test it against recent acts to see which traditional version is supported. The court found that it is widely accepted, among legal writers, scholars and practitioners, that the Tindana is the landlord or landowner. Additionally, the report of the committee to investigate a land dispute between the Tindonsobligo and the Kalbeo people explicitly stated that the Tindana was the allodial owner of land, while the people were usufucts (settler/farmers).</p> <p>The court noted that the defendants Tindana status was not in dispute, and concluded that the appellant was the the allodial owner of Kalbeo land and held it in in trust for community.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.ghalii.org/files/judgments/ghasc/2016/23/2016-ghasc-23.pdf" type="application/pdf; length=207910">2016-ghasc-23.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p class="rtecenter"> </p> <p class="rtecenter"><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p class="rtecenter"><strong>IN THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>ACCRA  </strong></p> <p class="rtecenter"><strong><u>AD-2016</u></strong></p> <p><strong>                                               </strong></p> <p class="rteright"><strong><u>CIVIL APPEAL</u></strong><strong><u> NO: J4/6/2016</u></strong></p> <p class="rteright"><strong>23<sup>RD</sup>  NOVEMBER, 2016</strong></p> <p> </p> <p><strong>YAKUBU  AWABEGO </strong>                              <strong> -    PLAINTIFF/APPELLANT/APPELLANT</strong></p> <p>HEAD OF FAMILY (SUING ON BEHALF OF HIMSELF AND AWURE FAMILY OF KALBEO)</p> <p><strong>VRS</strong></p> <p><strong>TINDANA  AGONGO  AKUBAYELA     -RESPONDENT/ RESPONDENT</strong></p> <p>TINDANA OF TINDONSOBLIGO<strong>            RESPONDENT      </strong></p> <hr /><p class="rtecenter"><strong>JUDGMENT         </strong></p> <hr /><p><strong><u>ATUGUBA, JSC</u></strong>                                                      </p> <p>The Plaintiff/Respondent/Respondent sued the Defendant/Appellant/Appellant claiming the following reliefs:</p> <p class="rteindent1"><strong><em>”1.      Two hundred and six million, thirty-thousand Cedis being freeholders Reversionary Interest Compensation (in respect of a total of 9.72 acres leased plots of land which is part of a larger plot of land measuring 61.924 acres belonging to the Awure Family of Bolgatanga in the Bolgatanga Municipal Assembly and situate at Tamale Road Industrial Area, Bolgatanga and delineated as a plan of land for Bulk Oil Storage Transportation Limited (BOST) shewn edged pink certified by the Regional Surveyor, Upper East region dated 12<sup>th</sup> day of August, 2003, acquired per Executive Instrument E.I. 10 of  2004 paid to the Defendant on or about 5<sup>th</sup> day of January 2007 per Ghana Commercial Bank Cheque No. 0340380 dated 5<sup>th</sup> day of January, 2007 by Land Valuation Board, attached hereto as schedule II).</em></strong></p> <p class="rteindent1"><strong><em>2.        In the alternative, Eighty-Two Million, four Hundred and Twelve thousand Cedis (¢82,412,000.00) being the share of the Awure Family i.e. forty percent (40%) of Two hundred and six million, thirty thousand cedis (¢206,030,000.00) Freeholders Reversionary Interest Compensation in respect of a total of 9.72 acres leased plots of land belonging to the Awure family and situated in Bolgatanga Municipality affected by the acquisition per Executive Instrument E.I. 10 of 2004 paid to the defendant on or about 5<sup>th</sup> day of January, 2007 by Land valuation Board, Bolgatanga under a Memorandum of Understanding (MOU) executed for and on behalf of the Awure Family and the Tindana of Tindonsobligo by representatives of the Plaintiff and the Defendant respectively and dated 7<sup>th</sup> November, 2006 and witnessed by several people.  </em></strong></p> <p class="rteindent1"><strong><em>3.        Declaration that the Awure Family is the only party entitled to claim compensation under Executive Instrument E.I. 10 of 2004.</em></strong></p> <p class="rteindent1"><strong><em>4.        That further proceedings will be stayed if within the time limited for appearance the Defendant pay that amount claimed to the Plaintiff or their lawyer”.</em></strong></p> <p>The Defendant also counterclaimed against the Plaintiff with respect to the same subject matter for:</p> <p class="rteindent1"><strong><em>“1.     Declaration that Defendant in his capacity as the Tindana of Tindonsobligo is the allodial owner of all Tindonsobligo lands including the land declared vested in the state by E.I. 10 of 2004 particularly described by schedule ‘C’ to E. I. 10 and is the proper person to be paid compensation.</em></strong></p> <p class="rteindent1"><strong><em>2.       Declaration that an amount of ¢206,030,000.00 freeholders Reversionary Interest Compensation paid to the Tindana of Tindonsobligo in his capacity as the Allodial Owner (the Ghanaian equivalent of a freeholder of land under larger vested land in the state pursuant to E.I. 10 is not the actual compensation payable for the subject site and that the  Tindana as allodial owner is the proper person to receive such money.</em></strong></p> <p class="rteindent1"><strong><em>3.       Declaration that the Memorandum of Understanding and its terms assented to by representatives of Plaintiff and Defendant on the 29<sup>th</sup> March, 2006 is not an enforceable document and the Defendant is not bound by its terms regarding how much compensation to pay to whom”.</em></strong></p> <p>Or in the alternative;</p> <p class="rteindent1"><strong><em>“         Declaration that even if the said document is enforceable, defendant has the constitutional right to resile from it and to allow the High Court to determine who has a right to compensation and the amount of compensation payable on the basis of evidence adduced at the trial.</em></strong></p> <p class="rteindent1"><strong><em>4.       Declaration that the act of executing the leases of plots Nos. 60 and 63A Tindonsonbligo Light Industrial Area by the Head of Awure family when the land in question is Tindonsobligo land and the misrepresentation by the family of who has the right to grant such land made to the Lands Commission to wrongly give concurrence to the said leases without the knowledge of the Tindana of Tindonsobligo is an act of fraud and which fraud has vitiated the leases as being null and void.</em></strong></p> <p class="rteindent1"><strong><em>5.       An order that the Tindana of Tindonsobligo is the person to be paid compensation for and on behalf of the Tindonsobligo community in respect of land vested in the state by E.I.  10 of 2004</em></strong></p> <p class="rteindent1"><strong><em>6.       An order that the leases covering plots No. 60, 63 and 63A Tindonsobligo Light Industrial Area be expunged from the Register as being null and void.</em></strong></p> <p class="rteindent1"><strong><em>7.       An order that compensation payable to Biocal Enterprise a lesee of two of the fraudulent leases executed by the head of family of Awure family and which compensation has not yet been paid be ordered paid to Defendant”.</em></strong></p> <p>The crux of this appeal is whether the allodial title to lands in Kalbeo in the Bolgatanga Municipal area is vested in individual families or in the Defendant/Appellant/Appellant as the Tindana thereof for and on behalf of the whole community of those lands. The parties are ad idem as to the fact that the Appellant (for short) is the Tindana of Tindonsobligo and also performs the role of Tindana for Kalbeo, where the disputed land is situate.</p> <p>However whereas the appellant contends that as Tindana thereof, the allodial title  to lands in Kalbeo vests in him in trust for the whole community over which he is the Tindana the Respondent’s case is that the appellant performs that role in respect of Kalbeo lands by reason of some oral treaty between the respondent’s ancestors, as founders of Kalbeo and the appellant’s ancestors purely because of the expertise of the latter with regard to the spiritual exercise of sacrificing to shrines for spiritual blessings and protection.</p> <p><strong><u>Recent Acts</u></strong></p> <p>It is a trite principle of Land Law in this country that the best way of resolving conflicts arising from traditional evidence concerning ownership of land is to test it against recent acts to see which traditional version is thereby supported.  <em>See Adjeibi-Kojo v. Bonsie (1957)3 WALR 257, Adjei v Acquah (1991)1 GLR 13, S.C. </em>and <em>Nii Ago Sai v. Nii Kpobi Tetteh Tsuru </em>III [2010] SCGLR 762.</p> <p>In this case there is a plethora of statutory declarations and leases evidencing the allodial title of the appellant as Tindana of Tindonsobligo and concurred in or witnessed by persons including the heads or representatives of the respondent’s family appearing at inter alia, pages 590, 619, 627 – 635, 662 – 668, 669 – 691 of the Record of Proceedings. As pointed out by counsel for the appellant in the appellant’s statement of case dated 15/1/2016:</p> <p class="rteindent1">“In their Consolidated Amended Reply and Reply in Amended Statement of Defence, which appears at pages 126-132 of the record of Proceedings, the Plaintiff/Respondent/Respondent stated as follows:</p> <p class="rteindent2">“The Plaintiff further says that the office of status or role of the Defendant is that of a Tindana and the defendant resides at Tindonsobligo, thus the Defendant is referred to as Tindana of Tindonsobligo but his ritual jurisdiction extends beyond Tindonsobligo to include Kalbeo.  The Plaintiff further says that as Tindana the Defendant’s assent is customarily required in all important social and economic transactions within the defendant’s ritual jurisdiction and the Plaintiff further says that he the Plaintiff and the Awure Family had always sought the Defendant’s customary ritual assent in their social and economic transactions <u>including the alienation of their ancestral land to organizations and to individuals for development.”  </u>[emphasis added].</p> <p class="rteindent1">“The Plaintiff further says that the Plaintiff and the Awure Family will continue to follow this hallowed cultural practice bequeathed to them by their ancestors.  The Plaintiff further says that they have always been honest and transparent with the Lands commission, Bolgatanga and or Land Valuation Board in all their land transactions”.</p> <p><strong><u>Defendant’s Explanations</u></strong></p> <p>In the respondent’s statement of case dated 8/2/2016 he contends thus:</p> <p class="rteindent1">“my Lords, the evidence is that most leases executed in the Bolgatanga Municipality are not prepared by professionals such as lawyers.  In most cases applicants take leases already in existence modify them and submit them to Lands commission for processing.  Also, the Tindana was made a lessor in the leases by the Lands Commission Bolgatanga for the Convenience of the Land Commission.  The Commission did not like the idea of having to deal with individual heads of families and preferred dealing with the Tindana on behalf of the various families”.</p> <p>As regards this plea, one wonders how when the respondent’s family’s rights are affected practically, on the ground, by the operation of a wrongfully formulated document, they cannot bring an action such as they have done in this case for the necessary redress.  This plea is therefore unconvincing.  The case of <em>In re Ashalley Botwe Lands </em>(2003 – 2004)1 SCGLR 420, holding 7 regarding the self serving nature of statutory declarations does not extend to situations in which the injuriously affected person  is a  party to the document even if as a witness.  In any case the aforequoted excerpts from the  Plaintiff/Appellant’s Reply to the Defendant/Respondent’s amended Statement of Defence are deeply rooted in custom and tradition and are manifestly admissions  against the Plaintiff’s interests.</p> <p>The documents in question are therefore acts and declarations against the respondent’s interests and are consequently of high probative value in favour of the appellant’s case</p> <p><strong><u>Text Writers </u></strong></p> <p>The appellant’s contentions regarding his status as the allodial owner of the lands within his Tindanaship are supported by leading and eminent text writers.  Some of these are refereed to in the appellant’s statement of case as follows:</p> <p class="rteindent1">“R.J.H. Pogucki (<strong>Assistant commissioner of Lands)</strong> whose work appears on page 557-558 of the record of proceedings stated that; “In the minutes of proceeding of such courts, such as for example, the Nankani – Kassena Federation Court and the Frafra Federation Court, one always finds the term “Tindana” translated into English as meaning “landlord” or “landowner” <strong>this role of a Tindana is not put in doubt in these courts.”</strong></p> <p>Report on pilot phase of Ascertainment and Codification of Customary Law on Land and Family in Ghana (ACLP), Vol. III, a joint research by <strong>the National House of chiefs and the Law Reform Com mission </strong> published in March 2011.  At page 551 of the Record of Proceedings under the heading <strong>“Hierarchy Of Land Tenure Interests”, </strong>it was stated thus: “<strong>Állodial interest: </strong>based on the view expressed by various respondents during the customary land law research and subsequent enquiries after the validation workshop, the nature of land ownership in the Bolgatanga Traditional Area <strong>is influenced by </strong>the nature of settlement in the area.  The basic principle of settlement as land ownership according to the respondents is  that ‘when a person (and his family) was the first person to occupy and demarcate an expanse of land, that person who is also the head of the family becomes the custodian of the land (Tingadanaa or Tindaana which literally means landowner) including ownership of the trees, water bodies and other resources on it.”</p> <p>At page 553 of the Record of Proceedings captain R. S. Rattary stated:</p> <p class="rteindent1">“The former continued to assert his original title to be custodian and trustee of the land of his people, a claim which few, even of the most arrogant secular chief, ever dared to dispute, even at the present day.  the people belongs to me, the land belongs to the Tindana”, is a statement I have repeatedly heard made.  The new foreign chief and the old tribal Tindana thus come to work hand in hand”.</p> <p>At page 554, Capt. R. S. Rattary further stated that “the Tindana in all his religious and spiritual activities was the exact prototype of an Ashanti chief in his capacity as <em>Asase wura</em> (owner of land), and custodian of the ancestral spirits of the land”.</p> <p>Footnote one at page 553 states:</p> <p class="rteindent1">“An exception to this was the invasion of what is now Eastern Dagomba by the Mamprose chief, Na Nyagea, when many tendana were put to death”.</p> <p>We can again cite the work of R.J.H. Pogucki, <strong>Gold Coast Land Tenure, vol. 1, A Survey of Land Tenure in Customary Law of the Protectorate of the Northern Territories</strong>, published in 1955.  The relevant extract appears at pages 555 to 558 of the Record of Proceedings. </p> <p>In paragraph 22, Pogucki’s work (page 556 of the Record of Proceedings), he succinctly states as follows:-</p> <p class="rteindent1">22)  “All over the Northern Territories groups, which own allodial rights on land are usually represented in their execution by a special official, the Tindana.  This official is always a descendant of the first settler.”</p> <p><strong>The position stated by Pogucki and Rattary is affirmed by the works of renowned scholars, Professors George Benneh and Raymond Benning, titled, Technology Should Seek tradition-studies on traditional Land tenure and Small Holder Farming System in Ghana.  </strong>Proceedings of which are reproduced at pages 559-562 of the record of Proceedings.  Extract found at page 561 of the record of Proceedings is very pertinent.  It states thus:</p> <p>“The most common office in these ‘segmentary societies’ is the representation of the earth god, <em>Tendaana </em> who is usually a descendant of the first settler.  He is regarded as the custodian of the land.  Each <em>Tendaana </em> has his own area within which he sacrifices to each god shrine and exercises his spiritual programmes.  Where the area  is very large, it may be divided into smaller units over which subordinate <em>tendaanas </em> may be appointed.</p> <p>The duties of the <em>Tendaana </em> are generally the same in the segmentary societies.  Apart from his religious functions, which are sacrificing to the earth god, he allocated unclaimed land to other people who came to settle on his territory.”</p> <p>The writers further stated at page 560 thus:</p> <p class="rteindent1">“The associate states in Northern Ghana are <strong>Tellensi, Frafra, Namnam, Kusasi, Builsa, Bimoba </strong> and parts of <strong>konkomba. </strong>Chieftaincy  was introduced to these areas by the new ruling class.  Since the ‘strangers’ were normally in the minority and usually relied on the power and prestige of the ruler of the distant parent state to maintain their positions, no changes were introduced by them to upset the old social order.  Ownership of land is still vested in the original custodian.  As a Kusase informant pointed out chiefs now own the people but Tendana (Tendaana) still own the land”.</p> <p>My Lords, at page 562, the writer stated that:</p> <p class="rteindent1">“Although the British administration appointed chiefs for these societies and attempted to create large political units, there has always been a clear distinction between the duties of a chief and those of a Tendaana.  The traditional rights of the latter over land have by and large remained inspite of the greater prestige which the former enjoys as a spokesman of his people to the government”.</p> <p>All this is amply supported by the most direct and thoroughly researched article of E.N.A. Kotey, then a Senior Lecturer of the Faculty of Law, University of Ghana Legon, in (1993 -95)19 U.G.L.J. 102, titled:</p> <p class="rteindent1">“LAND AND TREE TENURE AND RURAL DEVELOPMENT FORESTRY   </p> <p> IN NORTHERN GHANA.”  At p. 108 the Learned author stated thus:</p> <p class="rteindent1">“In the Northern Region, the tenure systems of the politically more centralized Dagbon, Mamprusi, Nanumba and Gonja recognise that the allodial title to land (the highest and ultimate title to land in the customary system of landholding traditionally vested in a community and managed on its behalf by the traditional authority) is vested in the various skins.  The allodial title to land is in theory vested in the indigenous communities as represented by their paramount skins, like the Ya Na (the Feudal King of the Dagomba, now the paramount chief) or the Nayeri (the Paramount chief of Mamprusi).  Practical management is, however, done by the various sub-skins.  Thus Diare or Savelugu (Dagomba towns) land is managed by the Diare Na or Savelugu Na respectively and not the Ya Na.  Gambaga, Walewale and Langbinsi lands are managed by the  respective Naba (chiefs).</p> <p>Though these politically more centralized ethnic groups have tindemba (earth priests), they do not manage the land on behalf of their communities but minister unto and perform rituals to ensure the productivity of the land.”</p> <p>By contrast he forcefully states at 112 - 115 as follows:</p> <p>“In the Upper East and Upper West Regions, the politically less centralized Lobi-Dagarti, Sissala, Kussasi, Tallensi and Builsa have no skin ownership of land.  <em>The allodial title to land is vested in the various indigenous communities as represented by the various Tindemba.</em>  This finding is  contrary to the view of Ollennu that the allodial title to land in the  Upper East and Upper West regions is held by the skins.  Ollennu relies  for this view on <em>Azantilow, Sandemanab. V. Nayeri ,  </em> <em>Mamprusina &amp; 3 others</em>.  It must however be emphasized that the issue which confronted the court in Azantilow, as Ollennu himself acknowledges, was whether the Sandemanab (Paramount Chief of the Builsa) and  the Nayeri (Paramount Chief of Mamprusi) were the  proper persons to sue or be sued in respect of their peoples’ land.  The case is therefore no authority for the  proposition that in all the ethnic groups of the Upper East and Upper West Regions the chief is the trustee for a community’s land.,  <em>in Azantilow v. Nayeri, </em> the Sandemanab sued on behalf of the Builsa people for a declaration of  title to certain lands occupied by the second, third and fourth defendant chiefs and their people.</p> <p>The defendants opposed the claim on  the ground that the land belonged to the Mamprusi people, whose paramount chief  was the first defendant.  The plaintiff had claimed that the boundary of his land was the White Volta and that the 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> defendants and their peoples who were denying it were in fact related to the Builsa.  The court held that:</p> <p class="rteindent1">“the plaintiff is a person capable of suing in his capacity as tribal head and that the defendants are the proper persons to be used.”</p> <p>It was essentially therefore a jurisdictional matter – a boundary dispute between two ethnic groups, Builsa and Mamprusi.  There was no issue as to the position inter se a Builsa chief and Builsa Tindana.  Ollennu gives the impression that the latter was indeed the issue by stating:</p> <p class="rteindent1">“The question arose as to whether the plaintiff and the defendant, occupants of skins, were the proper persons to prosecute and defend the titles of their respective tribes to land and whether the proper persons to sue and to defend were not the Tindana of Builsa and the Tindana of Mamprusi.”</p> <p>No such issue is discernible from the report.  Indeed such an  issue is incapable of arising as there is in fact no institution like the Tindana of the Builsa or Mamprusi (a Head or Paramount Tindana), there being many tindemba among the Mamprusi and Builsa with no overall superior.  The Court in summarising the evidence, but  before making a decision, stated:</p> <p class="rteindent1">“The evidence of the plaintiff and the first defendant both showed that each could hold a title to land in his capacity as tribal head.  On the defendants’ side support from this came from the first witness who said that as a sub chief he held land under the Head chief of the Mamprusi people, the Nayeri, who is the first defendant.  Further support came from the defendants’ second and third witnesses who were<br /> Tindanena.  Both made it <em>clear in their evidence-in-chief that their position is one of fetish priest and not one which carries title to land with it, although elsewhere in the Northern Territories this may be the case.”</em></p> <p>All that this shows is that <em>as regards the Mamprusi there was evidence by some tindemba, in support of their chiefs, that they did not hold title to land on behalf of their communities and that this was vested in their chiefs.</em>  This is consistent with our finding that among the Mamprusi, who have a state system, it is the chief who holds the land on behalf of the community.  <em>There is nothing in the Report that any such support was offered by the Tindemba from the Builsa. </em> As Woodman indicates:</p> <p class="rteindent1">“The court there [in Azantilow] spoke of chiefs having title to sue but the evidence merely showed that the Tindana claimed no title themselves.  Otherwise the chiefs’ right to sue was simply taken for granted.”</p> <p><em>The Builsa, it has been stated, were a non state society.  Chiefs may have been introduced to some of the Builsa at a later time in their history.</em>  The colonial policy of indirect rule however encouraged  the practice of chieftaincy and raised the Sandemanab to the status of a head chief.  The present Sandemanab  (who has been on the skin for a very long time and was the plaintiff in <em>Azantilow </em>v.<em> Nayeri </em>has judiciously asserted his authority over the whole of the Builsa.  <em>His claim to allodial ownership as opposed to sovereignty (in a jurisdictional non proprietary sense) of all Builsa land however has no basis in the indigenous law.</em></p> <p class="rteindent1"><em>“In the Upper East and Upper West regions therefore the tindemba lineage and family headmen are the key players in land matters.  Generally, the tindemba appear to have control over the land, particularly vacant communal land.  Most agricultural and town lands are, however, in the effective control of lineage and family headmen.</em>  Individual rights in appropriated land are quite pronounced and are inheritable and secure.” (e.s.)</p> <p>All this is further confirmed by Dr. L. K. Agbosu a former Lecturer in Law, Ghana School of law, in his article “Land Administration in Northern Ghana”, in (1980)12 R.G.L. 104 at 10.  In reaching this conclusion we are not unmindful of the caution sounded by this court with regard to text writers’ opinions where factual matters are disputed by the parties in  <em>Hilodjie &amp;  another v. George  [2005 – 2006] SCGLR 974. </em>But where such text writers are distinguished authorities and are consistent on the matters which happen to favour a party’s case, the same can be relied on by a court, see <em>Ameoda v. Pordier</em> (1967)GLR 479 C.A. Most direct  is as stated in the appellant’s aforementioned statement of case thus:</p> <p class="rteindent1">“the respective status of the parties was further confirmed by the <em>Report of the Committee to Investigate a Land Dispute between the Tindonsobligo and the Kalbeo people.  </em>The Report appears at page 1459 of the record of Proceedings.  The following extract from the findings is instructive:</p> <p class="rteindent1">1.    That the Tindana of Tindonsobligo is the allodial owner (original/founder) of the land in dispute among other lands in the area..</p> <p class="rteindent1">2.    That  the people of Kalbeo are usufructs (settler/farmers) who were given land by the  Tindonsobligo Tindana hundreds of years ago.</p> <p class="rteindent1">3.    That the Kalbeo people recognize the Tindana of Tindonsobligo as the allodial owner and have actually co-operated with him in the recent past.</p> <p class="rteindent1">4.     That the Tindana of Tindonsobligo recognizes the title of the Kalbeo people as usufructs on the land in dispute and have co-operated with them in the recent past.</p> <p class="rteindent1">5.      That some owners from Kalbeo jointly executed leases with the Tindana of Tindonsobligo in the recent past.</p> <p class="rteindent1">6.      That both parties have shared compensation (money) paid by SSNIT and BOST thereby indicating their mutual recognition of each other’s separate title.”</p> <p>My Lords, it would interest you to know that the Committee <strong>comprised</strong> of:</p> <p class="rteindent1">1.  District Police Crime Officer, Mr. Patrick</p> <p class="rteindent1">2.  Lawyer Robert Tatar, Convener of the Justice and Security Subcommittee of the Assembly</p> <p class="rteindent1">3.  Nelson Mba, Public Relation  Officer  of the Assembly (Secretary)</p> <p class="rteindent1">4.  The Regional Lands Officer, Mr. Adiaba Stanislaus (Member)</p> <p class="rteindent1">5.  The Town and Country Planning Officer, Mr. Sulley Shittu (Member)</p> <p class="rteindent1">6.  The district commander of the Bureau of National Investigations (BNI), Raymond Abu (Mamber) and</p> <p class="rteindent1">7.  Regional Surveyor, Mr. L. Q. Torsu (Member).</p> <p>There is therefore, no doubt about the respective positions of the parties.”</p> <p><strong><u>Conclusion</u></strong></p> <p>From all the foregoing it is clear that since the respondent admits that the appellant is the Tindanana of Tindonsobligo and performs the functions of Tindana in respect of Kalbeo Lands also which are claimed by the respondent family as theirs, it follows that since a Tindana holds the land of which he is the Tindana in trust for the community of which he is the Tindana, the appellant is the Tindana of Kalbeo also and consequently the allodial owner of Kalbeo land in trust for them.    It follows also that the respondent family can only have usufructuary  title over such of  Kalbeo lands as have been reduced into their possession as customary  free holders thereof, <em>see Saaka v. Dahali</em> (1984-86)2 GLR 774 C.A.    If the Tindana witnesses the payment of compensation in respect of a usufructuary interest, it does not prejudice his allodial title. The reliance by the High Court and  the Court of Appeal on a passage from  History for Senior Secondary School by J. K. Fynn and R,. Addo Fening, first published in 1991 and reprinted in 1993 by the Ministry of Education, Ch. 13 at page 492 thereof does not derogate from the status of a Tindana as owner in the sense of being the custodian of communal land for and on behalf of the community.  That passage is as follows:</p> <p class="rteindent1"><em>“These indigenous peoples did not have states or kingdoms and no central administration to make laws and enforce them.  Such powers rested with the Tindana and enforce them.  Such powers rested with the Tindana or `owner of the land’   T<u>he Tindana, however, never actually owned the land; he was only its custodian. </u>His duties were to lead his people during the annual festivities, to officiate at sacrifices to the local shrine and to pray on behalf of his people in times of danger or disaster.  For this reason, the powers of the Tindana were extensive even though they were based upon respect for punishment.  Tindanas also became quite rich because all lost articles, goods and animals that were found became theirs unless they were claimed by their owners.  They also received the hind legs of animals killed by hunters”(emphasis mine).”</em></p> <p>We therefore allow the appeal to the extent hereafter indicated and set aside the judgments of the High Court and Court of Appeal, though concurrent ones.</p> <p>We dismiss the plaintiff’s action in so far as it is inconsistent with the memorandum of understanding between the parties herein relating to the compensation in respect of the disputed land and allow the counterclaim of the appellant except in so far as it is inconsistent with the said memorandum of understanding.  For the avoidance of doubt we grant relief (1) of the Defendant/Appellant’s counterclaim and dismiss reliefs (2) and (3) thereof and we further state that the parties remain bound by their special Memorandum of Understanding relating to the compensation in respect of the disputed land. </p> <p> </p> <p class="rtecenter"><strong>(SGD)         W.   A.   ATUGUBA</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)         P.   BAFFOE- BONNIE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)        A.   A.  BENIN</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)</strong><strong>        Y.   APPAU</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)         G. PWAMANG</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong><u>COUNSEL:</u></strong></p> <p><strong>KWAME GYAN WITH RAPHAEL AGYAPONG  FOR  THE DEFENDANT   /APPELLANT/APPELLANT.</strong></p> <p><strong>EMILIO KANOMUOH MUSA FOR PLAINTIFF/RESPONDENT /RESPONDENT.</strong></p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-5205ffc3fc745bdffa10be272a9f899a3721d03a54a932b61a3ce8c654164f37"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p class="rtecenter"> </p> <p class="rtecenter"><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p class="rtecenter"><strong>IN THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>ACCRA  </strong></p> <p class="rtecenter"><strong><u>AD-2016</u></strong></p> <p><strong>                                               </strong></p> <p class="rteright"><strong><u>CIVIL APPEAL</u></strong><strong><u> NO: J4/6/2016</u></strong></p> <p class="rteright"><strong>23<sup>RD</sup>  NOVEMBER, 2016</strong></p> <p> </p> <p><strong>YAKUBU  AWABEGO </strong>                              <strong> -    PLAINTIFF/APPELLANT/APPELLANT</strong></p> <p>HEAD OF FAMILY (SUING ON BEHALF OF HIMSELF AND AWURE FAMILY OF KALBEO)</p> <p><strong>VRS</strong></p> <p><strong>TINDANA  AGONGO  AKUBAYELA     -RESPONDENT/ RESPONDENT</strong></p> <p>TINDANA OF TINDONSOBLIGO<strong>            RESPONDENT      </strong></p> <hr /><p class="rtecenter"><strong>JUDGMENT         </strong></p> <hr /><p><strong><u>ATUGUBA, JSC</u></strong>                                                      </p> <p>The Plaintiff/Respondent/Respondent sued the Defendant/Appellant/Appellant claiming the following reliefs:</p> <p class="rteindent1"><strong><em>”1.      Two hundred and six million, thirty-thousand Cedis being freeholders Reversionary Interest Compensation (in respect of a total of 9.72 acres leased plots of land which is part of a larger plot of land measuring 61.924 acres belonging to the Awure Family of Bolgatanga in the Bolgatanga Municipal Assembly and situate at Tamale Road Industrial Area, Bolgatanga and delineated as a plan of land for Bulk Oil Storage Transportation Limited (BOST) shewn edged pink certified by the Regional Surveyor, Upper East region dated 12<sup>th</sup> day of August, 2003, acquired per Executive Instrument E.I. 10 of  2004 paid to the Defendant on or about 5<sup>th</sup> day of January 2007 per Ghana Commercial Bank Cheque No. 0340380 dated 5<sup>th</sup> day of January, 2007 by Land Valuation Board, attached hereto as schedule II).</em></strong></p> <p class="rteindent1"><strong><em>2.        In the alternative, Eighty-Two Million, four Hundred and Twelve thousand Cedis (¢82,412,000.00) being the share of the Awure Family i.e. forty percent (40%) of Two hundred and six million, thirty thousand cedis (¢206,030,000.00) Freeholders Reversionary Interest Compensation in respect of a total of 9.72 acres leased plots of land belonging to the Awure family and situated in Bolgatanga Municipality affected by the acquisition per Executive Instrument E.I. 10 of 2004 paid to the defendant on or about 5<sup>th</sup> day of January, 2007 by Land valuation Board, Bolgatanga under a Memorandum of Understanding (MOU) executed for and on behalf of the Awure Family and the Tindana of Tindonsobligo by representatives of the Plaintiff and the Defendant respectively and dated 7<sup>th</sup> November, 2006 and witnessed by several people.  </em></strong></p> <p class="rteindent1"><strong><em>3.        Declaration that the Awure Family is the only party entitled to claim compensation under Executive Instrument E.I. 10 of 2004.</em></strong></p> <p class="rteindent1"><strong><em>4.        That further proceedings will be stayed if within the time limited for appearance the Defendant pay that amount claimed to the Plaintiff or their lawyer”.</em></strong></p> <p>The Defendant also counterclaimed against the Plaintiff with respect to the same subject matter for:</p> <p class="rteindent1"><strong><em>“1.     Declaration that Defendant in his capacity as the Tindana of Tindonsobligo is the allodial owner of all Tindonsobligo lands including the land declared vested in the state by E.I. 10 of 2004 particularly described by schedule ‘C’ to E. I. 10 and is the proper person to be paid compensation.</em></strong></p> <p class="rteindent1"><strong><em>2.       Declaration that an amount of ¢206,030,000.00 freeholders Reversionary Interest Compensation paid to the Tindana of Tindonsobligo in his capacity as the Allodial Owner (the Ghanaian equivalent of a freeholder of land under larger vested land in the state pursuant to E.I. 10 is not the actual compensation payable for the subject site and that the  Tindana as allodial owner is the proper person to receive such money.</em></strong></p> <p class="rteindent1"><strong><em>3.       Declaration that the Memorandum of Understanding and its terms assented to by representatives of Plaintiff and Defendant on the 29<sup>th</sup> March, 2006 is not an enforceable document and the Defendant is not bound by its terms regarding how much compensation to pay to whom”.</em></strong></p> <p>Or in the alternative;</p> <p class="rteindent1"><strong><em>“         Declaration that even if the said document is enforceable, defendant has the constitutional right to resile from it and to allow the High Court to determine who has a right to compensation and the amount of compensation payable on the basis of evidence adduced at the trial.</em></strong></p> <p class="rteindent1"><strong><em>4.       Declaration that the act of executing the leases of plots Nos. 60 and 63A Tindonsonbligo Light Industrial Area by the Head of Awure family when the land in question is Tindonsobligo land and the misrepresentation by the family of who has the right to grant such land made to the Lands Commission to wrongly give concurrence to the said leases without the knowledge of the Tindana of Tindonsobligo is an act of fraud and which fraud has vitiated the leases as being null and void.</em></strong></p> <p class="rteindent1"><strong><em>5.       An order that the Tindana of Tindonsobligo is the person to be paid compensation for and on behalf of the Tindonsobligo community in respect of land vested in the state by E.I.  10 of 2004</em></strong></p> <p class="rteindent1"><strong><em>6.       An order that the leases covering plots No. 60, 63 and 63A Tindonsobligo Light Industrial Area be expunged from the Register as being null and void.</em></strong></p> <p class="rteindent1"><strong><em>7.       An order that compensation payable to Biocal Enterprise a lesee of two of the fraudulent leases executed by the head of family of Awure family and which compensation has not yet been paid be ordered paid to Defendant”.</em></strong></p> <p>The crux of this appeal is whether the allodial title to lands in Kalbeo in the Bolgatanga Municipal area is vested in individual families or in the Defendant/Appellant/Appellant as the Tindana thereof for and on behalf of the whole community of those lands. The parties are ad idem as to the fact that the Appellant (for short) is the Tindana of Tindonsobligo and also performs the role of Tindana for Kalbeo, where the disputed land is situate.</p> <p>However whereas the appellant contends that as Tindana thereof, the allodial title  to lands in Kalbeo vests in him in trust for the whole community over which he is the Tindana the Respondent’s case is that the appellant performs that role in respect of Kalbeo lands by reason of some oral treaty between the respondent’s ancestors, as founders of Kalbeo and the appellant’s ancestors purely because of the expertise of the latter with regard to the spiritual exercise of sacrificing to shrines for spiritual blessings and protection.</p> <p><strong><u>Recent Acts</u></strong></p> <p>It is a trite principle of Land Law in this country that the best way of resolving conflicts arising from traditional evidence concerning ownership of land is to test it against recent acts to see which traditional version is thereby supported.  <em>See Adjeibi-Kojo v. Bonsie (1957)3 WALR 257, Adjei v Acquah (1991)1 GLR 13, S.C. </em>and <em>Nii Ago Sai v. Nii Kpobi Tetteh Tsuru </em>III [2010] SCGLR 762.</p> <p>In this case there is a plethora of statutory declarations and leases evidencing the allodial title of the appellant as Tindana of Tindonsobligo and concurred in or witnessed by persons including the heads or representatives of the respondent’s family appearing at inter alia, pages 590, 619, 627 – 635, 662 – 668, 669 – 691 of the Record of Proceedings. As pointed out by counsel for the appellant in the appellant’s statement of case dated 15/1/2016:</p> <p class="rteindent1">“In their Consolidated Amended Reply and Reply in Amended Statement of Defence, which appears at pages 126-132 of the record of Proceedings, the Plaintiff/Respondent/Respondent stated as follows:</p> <p class="rteindent2">“The Plaintiff further says that the office of status or role of the Defendant is that of a Tindana and the defendant resides at Tindonsobligo, thus the Defendant is referred to as Tindana of Tindonsobligo but his ritual jurisdiction extends beyond Tindonsobligo to include Kalbeo.  The Plaintiff further says that as Tindana the Defendant’s assent is customarily required in all important social and economic transactions within the defendant’s ritual jurisdiction and the Plaintiff further says that he the Plaintiff and the Awure Family had always sought the Defendant’s customary ritual assent in their social and economic transactions <u>including the alienation of their ancestral land to organizations and to individuals for development.”  </u>[emphasis added].</p> <p class="rteindent1">“The Plaintiff further says that the Plaintiff and the Awure Family will continue to follow this hallowed cultural practice bequeathed to them by their ancestors.  The Plaintiff further says that they have always been honest and transparent with the Lands commission, Bolgatanga and or Land Valuation Board in all their land transactions”.</p> <p><strong><u>Defendant’s Explanations</u></strong></p> <p>In the respondent’s statement of case dated 8/2/2016 he contends thus:</p> <p class="rteindent1">“my Lords, the evidence is that most leases executed in the Bolgatanga Municipality are not prepared by professionals such as lawyers.  In most cases applicants take leases already in existence modify them and submit them to Lands commission for processing.  Also, the Tindana was made a lessor in the leases by the Lands Commission Bolgatanga for the Convenience of the Land Commission.  The Commission did not like the idea of having to deal with individual heads of families and preferred dealing with the Tindana on behalf of the various families”.</p> <p>As regards this plea, one wonders how when the respondent’s family’s rights are affected practically, on the ground, by the operation of a wrongfully formulated document, they cannot bring an action such as they have done in this case for the necessary redress.  This plea is therefore unconvincing.  The case of <em>In re Ashalley Botwe Lands </em>(2003 – 2004)1 SCGLR 420, holding 7 regarding the self serving nature of statutory declarations does not extend to situations in which the injuriously affected person  is a  party to the document even if as a witness.  In any case the aforequoted excerpts from the  Plaintiff/Appellant’s Reply to the Defendant/Respondent’s amended Statement of Defence are deeply rooted in custom and tradition and are manifestly admissions  against the Plaintiff’s interests.</p> <p>The documents in question are therefore acts and declarations against the respondent’s interests and are consequently of high probative value in favour of the appellant’s case</p> <p><strong><u>Text Writers </u></strong></p> <p>The appellant’s contentions regarding his status as the allodial owner of the lands within his Tindanaship are supported by leading and eminent text writers.  Some of these are refereed to in the appellant’s statement of case as follows:</p> <p class="rteindent1">“R.J.H. Pogucki (<strong>Assistant commissioner of Lands)</strong> whose work appears on page 557-558 of the record of proceedings stated that; “In the minutes of proceeding of such courts, such as for example, the Nankani – Kassena Federation Court and the Frafra Federation Court, one always finds the term “Tindana” translated into English as meaning “landlord” or “landowner” <strong>this role of a Tindana is not put in doubt in these courts.”</strong></p> <p>Report on pilot phase of Ascertainment and Codification of Customary Law on Land and Family in Ghana (ACLP), Vol. III, a joint research by <strong>the National House of chiefs and the Law Reform Com mission </strong> published in March 2011.  At page 551 of the Record of Proceedings under the heading <strong>“Hierarchy Of Land Tenure Interests”, </strong>it was stated thus: “<strong>Állodial interest: </strong>based on the view expressed by various respondents during the customary land law research and subsequent enquiries after the validation workshop, the nature of land ownership in the Bolgatanga Traditional Area <strong>is influenced by </strong>the nature of settlement in the area.  The basic principle of settlement as land ownership according to the respondents is  that ‘when a person (and his family) was the first person to occupy and demarcate an expanse of land, that person who is also the head of the family becomes the custodian of the land (Tingadanaa or Tindaana which literally means landowner) including ownership of the trees, water bodies and other resources on it.”</p> <p>At page 553 of the Record of Proceedings captain R. S. Rattary stated:</p> <p class="rteindent1">“The former continued to assert his original title to be custodian and trustee of the land of his people, a claim which few, even of the most arrogant secular chief, ever dared to dispute, even at the present day.  the people belongs to me, the land belongs to the Tindana”, is a statement I have repeatedly heard made.  The new foreign chief and the old tribal Tindana thus come to work hand in hand”.</p> <p>At page 554, Capt. R. S. Rattary further stated that “the Tindana in all his religious and spiritual activities was the exact prototype of an Ashanti chief in his capacity as <em>Asase wura</em> (owner of land), and custodian of the ancestral spirits of the land”.</p> <p>Footnote one at page 553 states:</p> <p class="rteindent1">“An exception to this was the invasion of what is now Eastern Dagomba by the Mamprose chief, Na Nyagea, when many tendana were put to death”.</p> <p>We can again cite the work of R.J.H. Pogucki, <strong>Gold Coast Land Tenure, vol. 1, A Survey of Land Tenure in Customary Law of the Protectorate of the Northern Territories</strong>, published in 1955.  The relevant extract appears at pages 555 to 558 of the Record of Proceedings. </p> <p>In paragraph 22, Pogucki’s work (page 556 of the Record of Proceedings), he succinctly states as follows:-</p> <p class="rteindent1">22)  “All over the Northern Territories groups, which own allodial rights on land are usually represented in their execution by a special official, the Tindana.  This official is always a descendant of the first settler.”</p> <p><strong>The position stated by Pogucki and Rattary is affirmed by the works of renowned scholars, Professors George Benneh and Raymond Benning, titled, Technology Should Seek tradition-studies on traditional Land tenure and Small Holder Farming System in Ghana.  </strong>Proceedings of which are reproduced at pages 559-562 of the record of Proceedings.  Extract found at page 561 of the record of Proceedings is very pertinent.  It states thus:</p> <p>“The most common office in these ‘segmentary societies’ is the representation of the earth god, <em>Tendaana </em> who is usually a descendant of the first settler.  He is regarded as the custodian of the land.  Each <em>Tendaana </em> has his own area within which he sacrifices to each god shrine and exercises his spiritual programmes.  Where the area  is very large, it may be divided into smaller units over which subordinate <em>tendaanas </em> may be appointed.</p> <p>The duties of the <em>Tendaana </em> are generally the same in the segmentary societies.  Apart from his religious functions, which are sacrificing to the earth god, he allocated unclaimed land to other people who came to settle on his territory.”</p> <p>The writers further stated at page 560 thus:</p> <p class="rteindent1">“The associate states in Northern Ghana are <strong>Tellensi, Frafra, Namnam, Kusasi, Builsa, Bimoba </strong> and parts of <strong>konkomba. </strong>Chieftaincy  was introduced to these areas by the new ruling class.  Since the ‘strangers’ were normally in the minority and usually relied on the power and prestige of the ruler of the distant parent state to maintain their positions, no changes were introduced by them to upset the old social order.  Ownership of land is still vested in the original custodian.  As a Kusase informant pointed out chiefs now own the people but Tendana (Tendaana) still own the land”.</p> <p>My Lords, at page 562, the writer stated that:</p> <p class="rteindent1">“Although the British administration appointed chiefs for these societies and attempted to create large political units, there has always been a clear distinction between the duties of a chief and those of a Tendaana.  The traditional rights of the latter over land have by and large remained inspite of the greater prestige which the former enjoys as a spokesman of his people to the government”.</p> <p>All this is amply supported by the most direct and thoroughly researched article of E.N.A. Kotey, then a Senior Lecturer of the Faculty of Law, University of Ghana Legon, in (1993 -95)19 U.G.L.J. 102, titled:</p> <p class="rteindent1">“LAND AND TREE TENURE AND RURAL DEVELOPMENT FORESTRY   </p> <p> IN NORTHERN GHANA.”  At p. 108 the Learned author stated thus:</p> <p class="rteindent1">“In the Northern Region, the tenure systems of the politically more centralized Dagbon, Mamprusi, Nanumba and Gonja recognise that the allodial title to land (the highest and ultimate title to land in the customary system of landholding traditionally vested in a community and managed on its behalf by the traditional authority) is vested in the various skins.  The allodial title to land is in theory vested in the indigenous communities as represented by their paramount skins, like the Ya Na (the Feudal King of the Dagomba, now the paramount chief) or the Nayeri (the Paramount chief of Mamprusi).  Practical management is, however, done by the various sub-skins.  Thus Diare or Savelugu (Dagomba towns) land is managed by the Diare Na or Savelugu Na respectively and not the Ya Na.  Gambaga, Walewale and Langbinsi lands are managed by the  respective Naba (chiefs).</p> <p>Though these politically more centralized ethnic groups have tindemba (earth priests), they do not manage the land on behalf of their communities but minister unto and perform rituals to ensure the productivity of the land.”</p> <p>By contrast he forcefully states at 112 - 115 as follows:</p> <p>“In the Upper East and Upper West Regions, the politically less centralized Lobi-Dagarti, Sissala, Kussasi, Tallensi and Builsa have no skin ownership of land.  <em>The allodial title to land is vested in the various indigenous communities as represented by the various Tindemba.</em>  This finding is  contrary to the view of Ollennu that the allodial title to land in the  Upper East and Upper West regions is held by the skins.  Ollennu relies  for this view on <em>Azantilow, Sandemanab. V. Nayeri ,  </em> <em>Mamprusina &amp; 3 others</em>.  It must however be emphasized that the issue which confronted the court in Azantilow, as Ollennu himself acknowledges, was whether the Sandemanab (Paramount Chief of the Builsa) and  the Nayeri (Paramount Chief of Mamprusi) were the  proper persons to sue or be sued in respect of their peoples’ land.  The case is therefore no authority for the  proposition that in all the ethnic groups of the Upper East and Upper West Regions the chief is the trustee for a community’s land.,  <em>in Azantilow v. Nayeri, </em> the Sandemanab sued on behalf of the Builsa people for a declaration of  title to certain lands occupied by the second, third and fourth defendant chiefs and their people.</p> <p>The defendants opposed the claim on  the ground that the land belonged to the Mamprusi people, whose paramount chief  was the first defendant.  The plaintiff had claimed that the boundary of his land was the White Volta and that the 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> defendants and their peoples who were denying it were in fact related to the Builsa.  The court held that:</p> <p class="rteindent1">“the plaintiff is a person capable of suing in his capacity as tribal head and that the defendants are the proper persons to be used.”</p> <p>It was essentially therefore a jurisdictional matter – a boundary dispute between two ethnic groups, Builsa and Mamprusi.  There was no issue as to the position inter se a Builsa chief and Builsa Tindana.  Ollennu gives the impression that the latter was indeed the issue by stating:</p> <p class="rteindent1">“The question arose as to whether the plaintiff and the defendant, occupants of skins, were the proper persons to prosecute and defend the titles of their respective tribes to land and whether the proper persons to sue and to defend were not the Tindana of Builsa and the Tindana of Mamprusi.”</p> <p>No such issue is discernible from the report.  Indeed such an  issue is incapable of arising as there is in fact no institution like the Tindana of the Builsa or Mamprusi (a Head or Paramount Tindana), there being many tindemba among the Mamprusi and Builsa with no overall superior.  The Court in summarising the evidence, but  before making a decision, stated:</p> <p class="rteindent1">“The evidence of the plaintiff and the first defendant both showed that each could hold a title to land in his capacity as tribal head.  On the defendants’ side support from this came from the first witness who said that as a sub chief he held land under the Head chief of the Mamprusi people, the Nayeri, who is the first defendant.  Further support came from the defendants’ second and third witnesses who were<br /> Tindanena.  Both made it <em>clear in their evidence-in-chief that their position is one of fetish priest and not one which carries title to land with it, although elsewhere in the Northern Territories this may be the case.”</em></p> <p>All that this shows is that <em>as regards the Mamprusi there was evidence by some tindemba, in support of their chiefs, that they did not hold title to land on behalf of their communities and that this was vested in their chiefs.</em>  This is consistent with our finding that among the Mamprusi, who have a state system, it is the chief who holds the land on behalf of the community.  <em>There is nothing in the Report that any such support was offered by the Tindemba from the Builsa. </em> As Woodman indicates:</p> <p class="rteindent1">“The court there [in Azantilow] spoke of chiefs having title to sue but the evidence merely showed that the Tindana claimed no title themselves.  Otherwise the chiefs’ right to sue was simply taken for granted.”</p> <p><em>The Builsa, it has been stated, were a non state society.  Chiefs may have been introduced to some of the Builsa at a later time in their history.</em>  The colonial policy of indirect rule however encouraged  the practice of chieftaincy and raised the Sandemanab to the status of a head chief.  The present Sandemanab  (who has been on the skin for a very long time and was the plaintiff in <em>Azantilow </em>v.<em> Nayeri </em>has judiciously asserted his authority over the whole of the Builsa.  <em>His claim to allodial ownership as opposed to sovereignty (in a jurisdictional non proprietary sense) of all Builsa land however has no basis in the indigenous law.</em></p> <p class="rteindent1"><em>“In the Upper East and Upper West regions therefore the tindemba lineage and family headmen are the key players in land matters.  Generally, the tindemba appear to have control over the land, particularly vacant communal land.  Most agricultural and town lands are, however, in the effective control of lineage and family headmen.</em>  Individual rights in appropriated land are quite pronounced and are inheritable and secure.” (e.s.)</p> <p>All this is further confirmed by Dr. L. K. Agbosu a former Lecturer in Law, Ghana School of law, in his article “Land Administration in Northern Ghana”, in (1980)12 R.G.L. 104 at 10.  In reaching this conclusion we are not unmindful of the caution sounded by this court with regard to text writers’ opinions where factual matters are disputed by the parties in  <em>Hilodjie &amp;  another v. George  [2005 – 2006] SCGLR 974. </em>But where such text writers are distinguished authorities and are consistent on the matters which happen to favour a party’s case, the same can be relied on by a court, see <em>Ameoda v. Pordier</em> (1967)GLR 479 C.A. Most direct  is as stated in the appellant’s aforementioned statement of case thus:</p> <p class="rteindent1">“the respective status of the parties was further confirmed by the <em>Report of the Committee to Investigate a Land Dispute between the Tindonsobligo and the Kalbeo people.  </em>The Report appears at page 1459 of the record of Proceedings.  The following extract from the findings is instructive:</p> <p class="rteindent1">1.    That the Tindana of Tindonsobligo is the allodial owner (original/founder) of the land in dispute among other lands in the area..</p> <p class="rteindent1">2.    That  the people of Kalbeo are usufructs (settler/farmers) who were given land by the  Tindonsobligo Tindana hundreds of years ago.</p> <p class="rteindent1">3.    That the Kalbeo people recognize the Tindana of Tindonsobligo as the allodial owner and have actually co-operated with him in the recent past.</p> <p class="rteindent1">4.     That the Tindana of Tindonsobligo recognizes the title of the Kalbeo people as usufructs on the land in dispute and have co-operated with them in the recent past.</p> <p class="rteindent1">5.      That some owners from Kalbeo jointly executed leases with the Tindana of Tindonsobligo in the recent past.</p> <p class="rteindent1">6.      That both parties have shared compensation (money) paid by SSNIT and BOST thereby indicating their mutual recognition of each other’s separate title.”</p> <p>My Lords, it would interest you to know that the Committee <strong>comprised</strong> of:</p> <p class="rteindent1">1.  District Police Crime Officer, Mr. Patrick</p> <p class="rteindent1">2.  Lawyer Robert Tatar, Convener of the Justice and Security Subcommittee of the Assembly</p> <p class="rteindent1">3.  Nelson Mba, Public Relation  Officer  of the Assembly (Secretary)</p> <p class="rteindent1">4.  The Regional Lands Officer, Mr. Adiaba Stanislaus (Member)</p> <p class="rteindent1">5.  The Town and Country Planning Officer, Mr. Sulley Shittu (Member)</p> <p class="rteindent1">6.  The district commander of the Bureau of National Investigations (BNI), Raymond Abu (Mamber) and</p> <p class="rteindent1">7.  Regional Surveyor, Mr. L. Q. Torsu (Member).</p> <p>There is therefore, no doubt about the respective positions of the parties.”</p> <p><strong><u>Conclusion</u></strong></p> <p>From all the foregoing it is clear that since the respondent admits that the appellant is the Tindanana of Tindonsobligo and performs the functions of Tindana in respect of Kalbeo Lands also which are claimed by the respondent family as theirs, it follows that since a Tindana holds the land of which he is the Tindana in trust for the community of which he is the Tindana, the appellant is the Tindana of Kalbeo also and consequently the allodial owner of Kalbeo land in trust for them.    It follows also that the respondent family can only have usufructuary  title over such of  Kalbeo lands as have been reduced into their possession as customary  free holders thereof, <em>see Saaka v. Dahali</em> (1984-86)2 GLR 774 C.A.    If the Tindana witnesses the payment of compensation in respect of a usufructuary interest, it does not prejudice his allodial title. The reliance by the High Court and  the Court of Appeal on a passage from  History for Senior Secondary School by J. K. Fynn and R,. Addo Fening, first published in 1991 and reprinted in 1993 by the Ministry of Education, Ch. 13 at page 492 thereof does not derogate from the status of a Tindana as owner in the sense of being the custodian of communal land for and on behalf of the community.  That passage is as follows:</p> <p class="rteindent1"><em>“These indigenous peoples did not have states or kingdoms and no central administration to make laws and enforce them.  Such powers rested with the Tindana and enforce them.  Such powers rested with the Tindana or `owner of the land’   T<u>he Tindana, however, never actually owned the land; he was only its custodian. </u>His duties were to lead his people during the annual festivities, to officiate at sacrifices to the local shrine and to pray on behalf of his people in times of danger or disaster.  For this reason, the powers of the Tindana were extensive even though they were based upon respect for punishment.  Tindanas also became quite rich because all lost articles, goods and animals that were found became theirs unless they were claimed by their owners.  They also received the hind legs of animals killed by hunters”(emphasis mine).”</em></p> <p>We therefore allow the appeal to the extent hereafter indicated and set aside the judgments of the High Court and Court of Appeal, though concurrent ones.</p> <p>We dismiss the plaintiff’s action in so far as it is inconsistent with the memorandum of understanding between the parties herein relating to the compensation in respect of the disputed land and allow the counterclaim of the appellant except in so far as it is inconsistent with the said memorandum of understanding.  For the avoidance of doubt we grant relief (1) of the Defendant/Appellant’s counterclaim and dismiss reliefs (2) and (3) thereof and we further state that the parties remain bound by their special Memorandum of Understanding relating to the compensation in respect of the disputed land. </p> <p> </p> <p class="rtecenter"><strong>(SGD)         W.   A.   ATUGUBA</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)         P.   BAFFOE- BONNIE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)        A.   A.  BENIN</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)</strong><strong>        Y.   APPAU</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"> </p> <p class="rtecenter"><strong>(SGD)         G. PWAMANG</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong><u>COUNSEL:</u></strong></p> <p><strong>KWAME GYAN WITH RAPHAEL AGYAPONG  FOR  THE DEFENDANT   /APPELLANT/APPELLANT.</strong></p> <p><strong>EMILIO KANOMUOH MUSA FOR PLAINTIFF/RESPONDENT /RESPONDENT.</strong></p></span></div></div> </div> </div> Wed, 23 Jun 2021 10:59:20 +0000 Anonymous 2232 at http://ghalii.org Affenyi and Others Vrs Abosso Goldfields Ltd (J4 9 of 2017) [2018] GHASC 15 (08 March 2018); http://ghalii.org/gh/judgment/supreme-court/2018/15 <span class="field field--name-title field--type-string field--label-hidden">Affenyi and Others Vrs Abosso Goldfields Ltd (J4 9 of 2017) [2018] GHASC 15 (08 March 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/369" hreflang="x-default">EL</a></div> <div class="field__item"><a href="/taxonomy/term/385" hreflang="x-default">Minerals</a></div> <div class="field__item"><a href="/taxonomy/term/386" hreflang="x-default">oil and gas</a></div> <div class="field__item"><a href="/taxonomy/term/405" hreflang="x-default">Environmental duties</a></div> <div class="field__item"><a href="/taxonomy/term/406" hreflang="x-default">Judicial Review</a></div> <div class="field__item"><a href="/taxonomy/term/388" hreflang="x-default">Public interest in environment</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 06/23/2021 - 10:57</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>This was an appeal against the validity of an order to the Land Valuation Board to assess the compensation payable in respect of buildings and farms belonging to inhabitants of an old village.</p> <p>The facts of this case were that the appellant, a mining company, requested the respondents and other inhabitants of a village, which adjoined its mining area, to vacate the village and paid them compensation for their buildings, which were later demolished. Section 71 of the Minerals and Mining Act, 1986, provided for compensation for disturbances to owners and occupiers of lands affected by mineral operations. The appellant argued that this compensation was limited to areas within the mineral operations and that these areas were not land designated within its mining lease.</p> <p>The Supreme Court considered the lawfulness of the board’s decision to award further compensation under s71 of the act. It found that since the mining operations of the appellant affected the owners or occupiers of land they were entitled to statutory compensation. The court stated that whereas compensation for the buildings of the respondents was settled by agreement with the appellants, as permitted under s71(3) of the act, compensation for the disturbance of their farming activities at the old village was mandatory under the act.</p> <p>The court, however, stated that the lower courts came to the right conclusion but their reasons were not sound in law. Accordingly, the appeal was dismissed but the reasons were substituted for the Supreme Court’s decision.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.ghalii.org/files/judgments/ghasc/2018/15/2018-ghasc-15.pdf" type="application/pdf; length=91271">2018-ghasc-15.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> </p> <p><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE SUPREME COURT</strong></p> <p><strong>ACCRA – A.D. 2018</strong></p> <p>                                                                                                             </p> <p>                             <strong>CORAM:      ATUGUBA, JSC (PRESIDING)</strong></p> <p><strong>                                                ANSAH, JSC</strong></p> <p><strong>                                                YEBOAH, JSC</strong></p> <p><strong>                                                APPAU, JSC</strong></p> <p><strong>                                                PWAMANG, JSC </strong></p> <p><strong>CIVIL APPEAL</strong></p> <p><strong>NO. J4/09/2017</strong></p> <p> </p> <p><strong>8TH MARCH, 2018</strong><strong> </strong></p> <p> </p> <p>NICHOLAS AFFENYI &amp; 76 ORS      ……    PLAINTIFFS/RESPONDENTS/RESPONDENTS</p> <p> </p> <p>VRS</p> <p> </p> <p>ABOSSO GOLDFIELDS LIMITED     ……   DEFENDANT/APPELLANT/APPELLANT</p> <p> </p> <p><strong>JUDGMENT</strong></p> <p> </p> <p><strong>PWAMANG, JSC:-</strong></p> <p>In this final appeal the main contention of the appellant is that upon a proper construction of Section 71(1) of the Minerals and Mining Act, 1986 (PNDCL 153) it had no statutory obligation to pay compensation in respect of  buildings at Kyekyewere and farms at the old village since Kyekyewere and the old village were not within the land designated in its mining lease.</p> <p><strong>Section 71 of PNDCL 153 is as follows;</strong></p> <p><strong>(1) The owner or occupier of any land subject to a mineral right may apply to the holder of the right for compensation for any disturbance of the rights of such owner and for any damage done to the surface of the land, buildings, works or improvements or to livestock, crops or trees in the area of such mineral operations.</strong></p> <p><strong>(2) An application for compensation under subsection (1) of this section shall be copied to the Secretary and the Land Valuation Board.</strong></p> <p><strong>(3) The amount of compensation payable under subsection (1) of this section shall, subject to the approval of the Land Valuation Board, be determined by agreement between the parties concerned and if the parties are unable to reach an agreement as to the amount of compensation, the matter shall be referred to the Secretary who shall in consultation with the Land Valuation Board determine the compensation payable. </strong></p> <p>However, the facts of this case are that the appellant, for the convenience of its operations on the land designated in its mining  lease, requested the respondents and other inhabitants of Kyekyewere which adjoins its mining area to vacate the village. After they vacated respondents' dwellings at Kyekyewere were demolished by the appellant. Therefore, the vacation of Kyekyewere was as a direct consequence of the mineral  operations of the appellant. The plain purpose of Section 71 of PNDCL 153 was to ensure that prompt and adequate compensation was paid for disturbances to owners and occupiers of lands affected by mineral  operations. The appellant seeks to place a restricted construction on Section 71(1) of the Act because of the opening phrase; " <strong>The owner or occupier of any land subject to a mineral right may apply..."</strong>  but in construing the provision recourse ought to be had to its concluding part which is; “… buildings, works or improvements or to livestock, crops or trees in the <strong>area of such mineral operations.”</strong> In our view, the provision does not necessarily limit statutory compensation claims to owners or occupiers of land designated in a mineral lease.</p> <p>In the interpretations section of the Act, Section 84, “mining area” is defined as "the land designated as the mining area in a lease" so if the legislature had intended to limit the compensation payments to  lands  designated in a mineral lease it would have used the words "mining area" or similar words instead of the more general words "area of such mineral operations". It is a canon of interpretation that statutes are to be construed as a whole and within the context of the purpose intended to be achieved by the statute.   We would therefore purposively construe “land subject to a mineral right" in Section 71(1) of the Act broadly to include other lands in the area directly affected by the operations of the holder of a mineral right besides the land designated in the mineral lease. </p> <p>Consequently, since the operations of the appellant affected Kyekyewere, owners or occupiers of land there were entitled to statutory compensation. What this means is that whereas compensation for the buildings of the respondents was settled by agreement with the appellants, and this is permitted under s.71(3) of the Act, compensation for the disturbance of their farming activities at the old village, which was as a result of their relocation,   was outstanding. In the circumstances, such compensation was payable to the respondents and, in the absence of agreement, it was lawful to order the Land Valuation Board to assess the compensation payable for loss of the farms of the respondents.</p> <p>From the above exposition of the true import of Section 71(1) of the Act, it becomes apparent that the parties before coming to court conducted themselves on the basis of an erroneous understanding of the law but it is the duty of a court to enforce the law notwithstanding the wrong opinions of the parties if even they are mutual.</p> <p>The High Court and the Court of Appeal came to the right conclusion in the case but their reasons are not sound in law as Counsel for the appellant  rightly submitted.  We therefore set aside those reasons and substitute the reasons explained above as the basis for the judgment in favour of the respondents.</p> <p>Before we retire this delivery, we wish to express agreement with Counsel for the appellant that the reliance by the Respondent on the provisions of the Minerals and Mining Act, 2006 (Act.703) is misconceived. The activities that gave rise to this action took place before the passage of Act 703. That statute having been passed after the coming into force of the Constitution, 1992, it could not operate retroactively on account of Article 107(b) of the Constitution.</p> <p>In conclusion, the appeal is dismissed and the judgment of the Court of Appeal upheld but on different grounds.</p> <p> </p> <p><strong>G. PWAMANG</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>ATUGUBA, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p> </p> <p><strong>                W. A. ATUGUBA</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>ANSAH, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p> </p> <p><strong>                  J. ANSAH</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>YEBOAH, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p> </p> <p><strong>              ANIN YEBOAH</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p> </p> <p><strong>APPAU, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p> </p> <p><strong>                  Y. APPAU                   (JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong>COUNSEL</strong></p> <p>SALLY HAYFRON BOATEN FOR THE DEFENDANT/APPELLANT/APPELLANT.</p> <p>ALEXANDER KODWO ABBAN WITH HIM ALFRED PAPAAPA DAKWA FOR THE PLAINTIFFS/RESPONDENTS/RESPONDENTS.</p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-f68ef0056455cecd66f83d3af4c1fab1499c3a438ad7b8ba3c6c5af51493363f"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> </p> <p><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE SUPREME COURT</strong></p> <p><strong>ACCRA – A.D. 2018</strong></p> <p>                                                                                                             </p> <p>                             <strong>CORAM:      ATUGUBA, JSC (PRESIDING)</strong></p> <p><strong>                                                ANSAH, JSC</strong></p> <p><strong>                                                YEBOAH, JSC</strong></p> <p><strong>                                                APPAU, JSC</strong></p> <p><strong>                                                PWAMANG, JSC </strong></p> <p><strong>CIVIL APPEAL</strong></p> <p><strong>NO. J4/09/2017</strong></p> <p> </p> <p><strong>8TH MARCH, 2018</strong><strong> </strong></p> <p> </p> <p>NICHOLAS AFFENYI &amp; 76 ORS      ……    PLAINTIFFS/RESPONDENTS/RESPONDENTS</p> <p> </p> <p>VRS</p> <p> </p> <p>ABOSSO GOLDFIELDS LIMITED     ……   DEFENDANT/APPELLANT/APPELLANT</p> <p> </p> <p><strong>JUDGMENT</strong></p> <p> </p> <p><strong>PWAMANG, JSC:-</strong></p> <p>In this final appeal the main contention of the appellant is that upon a proper construction of Section 71(1) of the Minerals and Mining Act, 1986 (PNDCL 153) it had no statutory obligation to pay compensation in respect of  buildings at Kyekyewere and farms at the old village since Kyekyewere and the old village were not within the land designated in its mining lease.</p> <p><strong>Section 71 of PNDCL 153 is as follows;</strong></p> <p><strong>(1) The owner or occupier of any land subject to a mineral right may apply to the holder of the right for compensation for any disturbance of the rights of such owner and for any damage done to the surface of the land, buildings, works or improvements or to livestock, crops or trees in the area of such mineral operations.</strong></p> <p><strong>(2) An application for compensation under subsection (1) of this section shall be copied to the Secretary and the Land Valuation Board.</strong></p> <p><strong>(3) The amount of compensation payable under subsection (1) of this section shall, subject to the approval of the Land Valuation Board, be determined by agreement between the parties concerned and if the parties are unable to reach an agreement as to the amount of compensation, the matter shall be referred to the Secretary who shall in consultation with the Land Valuation Board determine the compensation payable. </strong></p> <p>However, the facts of this case are that the appellant, for the convenience of its operations on the land designated in its mining  lease, requested the respondents and other inhabitants of Kyekyewere which adjoins its mining area to vacate the village. After they vacated respondents' dwellings at Kyekyewere were demolished by the appellant. Therefore, the vacation of Kyekyewere was as a direct consequence of the mineral  operations of the appellant. The plain purpose of Section 71 of PNDCL 153 was to ensure that prompt and adequate compensation was paid for disturbances to owners and occupiers of lands affected by mineral  operations. The appellant seeks to place a restricted construction on Section 71(1) of the Act because of the opening phrase; " <strong>The owner or occupier of any land subject to a mineral right may apply..."</strong>  but in construing the provision recourse ought to be had to its concluding part which is; “… buildings, works or improvements or to livestock, crops or trees in the <strong>area of such mineral operations.”</strong> In our view, the provision does not necessarily limit statutory compensation claims to owners or occupiers of land designated in a mineral lease.</p> <p>In the interpretations section of the Act, Section 84, “mining area” is defined as "the land designated as the mining area in a lease" so if the legislature had intended to limit the compensation payments to  lands  designated in a mineral lease it would have used the words "mining area" or similar words instead of the more general words "area of such mineral operations". It is a canon of interpretation that statutes are to be construed as a whole and within the context of the purpose intended to be achieved by the statute.   We would therefore purposively construe “land subject to a mineral right" in Section 71(1) of the Act broadly to include other lands in the area directly affected by the operations of the holder of a mineral right besides the land designated in the mineral lease. </p> <p>Consequently, since the operations of the appellant affected Kyekyewere, owners or occupiers of land there were entitled to statutory compensation. What this means is that whereas compensation for the buildings of the respondents was settled by agreement with the appellants, and this is permitted under s.71(3) of the Act, compensation for the disturbance of their farming activities at the old village, which was as a result of their relocation,   was outstanding. In the circumstances, such compensation was payable to the respondents and, in the absence of agreement, it was lawful to order the Land Valuation Board to assess the compensation payable for loss of the farms of the respondents.</p> <p>From the above exposition of the true import of Section 71(1) of the Act, it becomes apparent that the parties before coming to court conducted themselves on the basis of an erroneous understanding of the law but it is the duty of a court to enforce the law notwithstanding the wrong opinions of the parties if even they are mutual.</p> <p>The High Court and the Court of Appeal came to the right conclusion in the case but their reasons are not sound in law as Counsel for the appellant  rightly submitted.  We therefore set aside those reasons and substitute the reasons explained above as the basis for the judgment in favour of the respondents.</p> <p>Before we retire this delivery, we wish to express agreement with Counsel for the appellant that the reliance by the Respondent on the provisions of the Minerals and Mining Act, 2006 (Act.703) is misconceived. The activities that gave rise to this action took place before the passage of Act 703. That statute having been passed after the coming into force of the Constitution, 1992, it could not operate retroactively on account of Article 107(b) of the Constitution.</p> <p>In conclusion, the appeal is dismissed and the judgment of the Court of Appeal upheld but on different grounds.</p> <p> </p> <p><strong>G. PWAMANG</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>ATUGUBA, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p> </p> <p><strong>                W. A. ATUGUBA</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>ANSAH, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p> </p> <p><strong>                  J. ANSAH</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>YEBOAH, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p> </p> <p><strong>              ANIN YEBOAH</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p> </p> <p><strong>APPAU, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p> </p> <p><strong>                  Y. APPAU                   (JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong>COUNSEL</strong></p> <p>SALLY HAYFRON BOATEN FOR THE DEFENDANT/APPELLANT/APPELLANT.</p> <p>ALEXANDER KODWO ABBAN WITH HIM ALFRED PAPAAPA DAKWA FOR THE PLAINTIFFS/RESPONDENTS/RESPONDENTS.</p> <p> </p></span></div></div> </div> </div> Wed, 23 Jun 2021 10:57:06 +0000 Anonymous 2098 at http://ghalii.org Fenu and Others Vrs Attorney General and Others (J4 40 of 2018) [2018] GHASC 78 (17 October 2018); http://ghalii.org/gh/judgment/supreme-court/2018/78 <span class="field field--name-title field--type-string field--label-hidden">Fenu and Others Vrs Attorney General and Others (J4 40 of 2018) [2018] GHASC 78 (17 October 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/369" hreflang="x-default">EL</a></div> <div class="field__item"><a href="/taxonomy/term/378" hreflang="x-default">Attribution of Costs</a></div> <div class="field__item"><a href="/taxonomy/term/371" hreflang="x-default">Injunction</a></div> <div class="field__item"><a href="/taxonomy/term/401" hreflang="x-default">Use of coastal and marine areas</a></div> <div class="field__item"><a href="/taxonomy/term/372" hreflang="x-default">Land use</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 06/23/2021 - 10:55</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>The court considered an appeal against the decision of the Court of Appeal, staying the proceedings of the High Court. </p> <p>The origin of the appeal was an application for a mandatory injunction, against the respondent, for disturbing the “natural calm flow” of the Volta River, into the sea, while executing their contractual obligations (marine reclamation). The Respondent appealed 3 interlocutory applications in the High Court, which appeals were still pending. </p> <p>The stay was granted to the respondents following an application for judgment to be entered against them.</p> <p>The appellant raised six grounds of appeal, however the court held that the determination of one main issue would dispose of the appeal. Thus, the court had to determine whether the Court of Appeal erred in granting the stay of proceedings. </p> <p>The court noted that all the interlocutory orders were on appeal before the Court of Appeal. The court found that the court of appeal was right to halt the proceedings, since the determination of the interlocutory orders could have a serious effect on the case before the High Court.</p> <p>It was further noted that an order staying proceedings is interlocutory, and discretionary and should not be interfered with unless it might result in serious injustice. The court found that the appellant failed to demonstrate that the discretion exercised would result to injustice.</p> <p>Accordingly, the appeal was dismissed.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.ghalii.org/files/judgments/ghasc/2018/78/2018-ghasc-78.pdf" type="application/pdf; length=95257">2018-ghasc-78.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE SUPREME COURT</strong></p> <p><strong>ACCRA – A.D. 2018</strong></p> <p>                                                                                                             </p> <p>                             <strong>CORAM:      ADINYIRA (MRS), JSC (PRESIDING)</strong></p> <p><strong>                                                YEBOAH, JSC</strong></p> <p><strong>                                                BAFFOE-BONNIE, JSC</strong></p> <p><strong>                                                APPAU, JSC</strong></p> <p><strong>                                                PWAMANG, JSC</strong></p> <p><strong>                                                                                                         CIVIL  APPEAL</strong></p> <p><strong>                                                                                                         NO. J4/40/2018</strong></p> <p> </p> <p><strong>                                                                                                      17TH OCTOBER, 2018</strong>                                                                        </p> <p> </p> <ol><li>ZIKPUITOR AKPATSU FENU</li> <li>BENJAMIN ATSU</li> <li>EDWARD MARSHAL KOBLAH PENU</li> <li>KAREEM ABU</li> <li>ALEXANDER PONS PETRO            ……..       PLAINTIFFS/RESPONDENTS/APPELLANTS</li> </ol><p> </p> <p> </p> <p>     VRS</p> <p> </p> <p> </p> <ol><li>THE ATTORNEY GENERAL</li> <li>MINISTRY OF WATER RESOURCES                           </li> <li>DREDGING INTERNATIONAL LTD.   …..     3RD DEFENDANT/APPELLANT/RESPONDENT   </li> <li>ENVIRONMENTAL PROTECTION AGENCY     </li> </ol><p>                                                                         </p> <p> </p> <p>JUDGMENT</p> <p> </p> <p><strong>YEBOAH, JSC:-</strong> This appeal before this court is from the judgment of the Court of Appeal, Koforidua which stayed the proceedings of the High Court, Ho.</p> <p> </p> <p>The case did not proceed to trial on the merits and therefore the facts for the determination of this interlocutory appeal are captured only from the pleadings, the affidavits of parties and the courts’ records before us as an appellate court.</p> <p> </p> <p>The respondent herein and three other defendants (who appeared not to contest the matter), were sued by the appellant before the High Court, Ho.  The respondent is a foreign firm engaged in marine reclamation and was engaged by the Government of Ghana to undertake the salvaging of coastlines at Ada and other areas in the Volta Region to prevent further erosion of the coastline.  The respondent, executed the contract and in course of so doing, the appellants sued them at the Ho, High Court on 11/08/2014.  The basis of the claim was that the execution of the contract had resulted in substantial damage to their properties and affected an island known as Gamewu Island rendering it inhabitable.  The respondent therefore claimed damages for the loss of properties and sought other reliefs to restrain the respondent.  As said earlier, the 1st, 2nd and 4th defendants did not enter any appearance and the respondent herein who was at the material time physically on the site entered appearance and contested the action. As expected, the respondent denied any damage caused by his activities.  The appellant sought and order of mandatory injunction against the respondent on the grounds that the “natural calm flow” of the Volta River into the sea had been disturbed by the activities of the respondent.</p> <p> </p> <p>After hearing the interlocutory application the trial court made far-reaching consequential order directing the 2nd and 3rd defendants to act within forty days to dredge sand and to protect with groins the partly submerged island and the main land.  A further order was made directing the respondent to pay into court Gh₵8, 000.000.00 as security for its presence in Ghana, which order the respondent appealed.  The appellant further applied for an order directing the respondent to file “the full and complete authentic page by page Ada Coastal Protection Works contract documents and other related documents regarding insurance, contingency, environmental guarantee to the project financing Bank”.  This interlocutory order was opposed by the respondent and after it was granted respondent again appealed against it.  As these far-reaching orders were not being complied with, the appellant applied to have the statement of defence of the respondent struck out for judgment to be accordingly entered against the respondent.  It is against this order that the respondent applied for stay of proceedings at the Court of Appeal, Koforidua and same was granted on 26/04/2016.</p> <p> </p> <p>The appellants feeling aggrieved by the stay ordered by the Court of Appeal, Koforidua has appealed to us on a number of grounds.</p> <p><strong>GROUNDS OF APPEAL                              </strong></p> <ol><li>The ruling is against the weight of the evidence</li> <li>The holding that the 3rd defendant/appellant/applicants grounds of appeal against the High Court order for Discovery , alleging that: <ol><li>“The Ada Coastal Protection Contract documents ordered to be produced are not necessary to dispose fairly of the cause or matter or to save cost”</li> <li>“The respondent was not a party to the Ada Coastal Protection Works neither are the terms of the contract relevant to the matters in dispute”</li> <li> “The Ada Coastal Protection Contract Documents ordered to be produced are cumbersome, bulky and large, covering various matters including technical drawings, elevations, specifications, insurance, contingency, environmental issues, project financing and many other matters that will complicate and protract a fair disposal of the action”</li> <li>“Reproducing the Ada Coastal Protection Contract documents will impose unnecessary financial burden on the 3rd defendant.</li> </ol></li> </ol><p>Are arguable points of law for staying the entire proceedings in the suit at the High Court is a wrongful exercise of judicial discretion and not supported by law or the facts.</p> <ol><li>The Court of Appeal holding that the 3rd defendant/appellants refusal to make discoveries by the High Court is a special circumstance to stay the entire proceedings in the pending suit is not supported by <ol><li>Law</li> <li>The facts</li> </ol></li> <li>The Court of Appeal staying the entire proceedings in the suit without considering the stage the appeal against the order for discovery which has been cause with non-compliance is wrongful of judicial discretion.</li> <li>The Court of Appeal’s ruling staying the entire proceedings in the pending suit without paying due regard to the stage of the appeal which has been caught by non-compliance is wrong in law and a nullity.</li> <li>The ruling staying the entire proceedings in the suit is a wrongful exercise of discretion which  has resulted in gross miscarriage of justice to the respondents/appellants</li> <li>Further grounds of appeal will be filed upon receipt of the appeal records.</li> </ol><p> </p> <p>The respondent has raised objection to the ground 1 of the grounds of appeal which seeks to criticize the judgment on the basis that it is against the weight of evidence and the invitation by the appellant for this court to conduct a fresh enquiry or rehear the entire application for the stay of proceedings.</p> <p>                </p> <p>The omnibus ground is usually common in cases in which evidence was led and the trial court was enjoined to evaluate the evidence on record and make its findings of facts in appropriate cases.  In cases in which no evidence was led but the order which has been appealed against is interlocutory, such ground of appeal are not canvased at all.  This has been settled long ago by this court in three notable cases; ASAMOAH v MARFO [2011] 2 SCGLR 832, REPUBLIC v CONDUAH; EX PARTE AABA substituted by ASMAH [2013 – 2014] SSCLR 1032 and RE SUHYEN STOOL; WIREDU &amp; OBENEWAA v AGYEI &amp; ORS [2005 – 206] SCGLR.</p> <p> </p> <p>We think this ground is clearly misconceived and same is hereby strucked out as there were no disputed factual matters which called for findings by the lower court which merely determined the application for stay of proceedings on affidavit evidence which was not in controversy.</p> <p> </p> <p>Learned counsel for the respondent has seriously criticized the formulation of ground 2 of the grounds of appeal on the grounds that it offends Rule 6(4) of CI 16. Counsel is of the view that the ground is verbose, narrative and impeding comprehension.  We have given same thought to the argument raised against this ground, however, given the nature of this case, we have decided to consider the ground of appeal regardless of the fact that the framing of same falls short of the procedural standard of this highest court.  We accordingly do so to advance substantial justice in this appeal.  Our only serious objection to the ground is the fact that the learned counsel for the appellant has quoted a passage and attributed same to the learned justices of the Court of Appeal.  We do not find this statement to have been made by the Court of Appeal in the ruling of 26/04/2016 which is on appeal before us.  Indeed the court’s ruling was tense but this does not take away the reasons for the grant of the application.  For a fuller record we reproduce the order on appeal:</p> <p> </p> <p>“we have considered the entire application and we are of the considered opinion that the 3rd defendant has raised an arguable point which could have an impact on the decision by the trial High Court, looking at the exceptional circumstances of the case and the grounds of appeal raised in the Notice of Appeal, we shall stay proceedings of the substantive matter pending before the High Court, Ho until the interlocutory appeal filed on 6th November, 2015 is heard. There will be no order as to costs”</p> <p> </p> <p>No where in the proceedings of the court dated 26/04/2016 were the above statement quoted as a ground of appeal was stated by the court on record.  We find this ground as clearly misleading and proceed to dismiss same as unmeritorious.  The appeal before us is against the order staying proceedings by the Court of Appeal.  It is not a second appeal for us to reopen the entire matter under the guise of rehearing.  On record, the High court judge did not grant any order for stay of proceedings which any of the parties appealed to this court as a court of first instance in determining the application for stay of proceedings and no more.</p> <p> </p> <p>Another complaint against the ruling which appeared in the ground 2 of the Notice of Appeal is an invitation by the appellant “to conduct a fresh inquiry or rehear the entire application for stay of proceedings pending the interlocutory appeal which has brought the suit at the trial High Court to an abrupt end and same to the conclusion as to whether or not on all the available evidence put before the Court of Appeal Koforidua …”</p> <p> </p> <p>We think counsel, with due respect, is not appreciating the procedure and principles governing stay of proceedings.  A stay of proceedings pending in a court of law is procedurally derived from three sources: the courts’ inherent jurisdiction, the rules of court (if any, is provided by statute) and the provisions of a particular statute e.g. in arbitration statutes.  It is an application made usually to the court where proceedings are actively pending.  See Re: Artistic Colour Printing Co. [1880] 14 chD.502. In his authoritative book, Atkins Encyclopedia of Court Forms in Civil Proceedings (Second Edition, volume 37 page 189 said of stay of proceedings as follows:</p> <p> </p> <p>“A stay of proceedings arises when under an order of the court proceedings which have been pending in that court are brought to a halt at the stage which they have reached, so that while the stay is in operation the parties are precluded from taking any further step in the proceedings” [emphasis ours]</p> <p> </p> <p>It is a discretionary remedy granted by the court in very exceptional circumstances after having taken all relevant matters into consideration. See REPUBLIC v COMMITTEE OF INQUIRY (R.T. BROSCOE (GHANA) LTD); EX PARTE R.T.BRISCOE (GHANA) LTD. [1976] IGLR 166 CA and SELDON v DAVIDSON [1968] IWLR 1038, CA. and GARRET v GARRETT [1991] 2 GLR 366 CA. Learned counsel for the appellants complaint that the order for Discovery and Security for appearance should be reconsidered by this court, is with due respect misconceived.  As an appellate court, we could only intervene in the exercise of that discretion in limited circumstances as has been settled on authority.  See OWUSU v OWUSU-ANSAH [2007-2008] 2 SCGLR 870, CRENSTIL v CRENSTIL [1962 2 GLR 171 SC and BLUNT v BLUNT [1943] AC 517, HL.</p> <p> </p> <p>In the same Atkin’s Encyclopedia of Court Forms in Civil Proceedings (second Edition, Volume 37, at page 195 the learned author proceeds to discuss appeals on orders staying proceedings as follows:</p> <p>“An order staying proceedings will be treated as interlocutory order… moreover, the making of the order to stay proceedings is discretionary and the Court of Appeal will not in general interfere with the exercise of the discretion by the judge except where serious injustice might otherwise result” [ emphasis ours]</p> <p>See HADMOR PRODUCTIONS LTD v HAMILTON [1983] I AC 191 HL.</p> <p> </p> <p>It was the duty of the appellants in this appellate court, to demonstrate that the discretion exercised for the grant of the stay of proceedings by the Court of Appeal was made on wrong or inadequate materials or that it acted under a misapprehension of fact by giving weight to irrelevant or unproved matter as it ignored relevant matters which ought to have been taken into consideration thereby leading the Court of Appeal to erroneously deciding the application against the appellants.  We have given sufficient time to discuss in detail the grounds for the grant of the application by the Court of Appeal and we have found that even though the ruling appears to be terse, there was nothing wrong with the order made given the circumstance of the case before it.</p> <p> </p> <p>Another point raised as a ground of appeal was the fact that the Court of Appeal granted the order to stay the whole proceedings at the High Court.  It appeared in the submissions of counsel for the appellant that no cogent reasons was offered in support of the ground of appeal. The order made was temporarily to halt proceedings and in practice could be removed by an order of the court which granted the stay.  See COOPER v WILLIAMS [1963] 2 QB567.</p> <p> </p> <p>As we have pointed out above, that, the discretion is exclusively vested in the Court of Appeal which was seized with the matter, as a court of first instance.  It must be made clear that there were about three interlocutory applications that were appealed against in a case at the High Court in which, from the record of proceedings pleadings had not even closed.  It appears that virtually all the interlocutory orders made by the learned High Court judge adverse to the respondent herein are on appeal before the Court of Appeal.  The Court of Appeal could therefore not be faulted for the grant of the application to halt all the proceedings given the fact that the determination of all the interlocutory orders were on appeal could probably have serious effect on the case before the High Court, Ho.</p> <p> </p> <p>We have come to this conclusion without seeking to make any pronouncements which may prejudice the determination of any of the appeals pending at the Court of Appeal even though from the submissions of counsel for the appellants in would appear that he was inviting this court to do so from a close reading of the submissions and the grounds of appeal filed.  We are of the considered opinion that the determination for the few grounds of appeal should suffice to dispose of this appeal.</p> <p>We accordingly proceed to dismiss this appeal as without merits.</p> <p> </p> <p> </p> <p> </p> <p><strong>      ANIN YEBOAH</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p> </p> <p><strong>ADINYIRA (MRS), JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Yeboah, JSC.</p> <p> </p> <p> </p> <p><strong>          S. O. A. ADINYIRA (MRS)</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>BAFFOE-BONNIE, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Yeboah, JSC.</p> <p> </p> <p> </p> <p> </p> <p><strong>              P. BAFFOE-BONNIE</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>APPAU, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Yeboah, JSC.</p> <p> </p> <p> </p> <p><strong>                     Y. APPAU</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>PWAMANG, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Yeboah, JSC.</p> <p> </p> <p> </p> <p><strong>              G. PWAMANG</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>COUNSEL</strong></p> <p>EDWARD MARSHALL KOBLAH PENU FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS.</p> <p>S KWAMI TETTEH FOR THE 3RD DEFENDANT/APPELLANT/RESPONDENT.</p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-5afd0bec16f70aa7f39b7ff67e7c20ec15cc76619f83e8108318d0c3f395e140"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE SUPREME COURT</strong></p> <p><strong>ACCRA – A.D. 2018</strong></p> <p>                                                                                                             </p> <p>                             <strong>CORAM:      ADINYIRA (MRS), JSC (PRESIDING)</strong></p> <p><strong>                                                YEBOAH, JSC</strong></p> <p><strong>                                                BAFFOE-BONNIE, JSC</strong></p> <p><strong>                                                APPAU, JSC</strong></p> <p><strong>                                                PWAMANG, JSC</strong></p> <p><strong>                                                                                                         CIVIL  APPEAL</strong></p> <p><strong>                                                                                                         NO. J4/40/2018</strong></p> <p> </p> <p><strong>                                                                                                      17TH OCTOBER, 2018</strong>                                                                        </p> <p> </p> <ol><li>ZIKPUITOR AKPATSU FENU</li> <li>BENJAMIN ATSU</li> <li>EDWARD MARSHAL KOBLAH PENU</li> <li>KAREEM ABU</li> <li>ALEXANDER PONS PETRO            ……..       PLAINTIFFS/RESPONDENTS/APPELLANTS</li> </ol><p> </p> <p> </p> <p>     VRS</p> <p> </p> <p> </p> <ol><li>THE ATTORNEY GENERAL</li> <li>MINISTRY OF WATER RESOURCES                           </li> <li>DREDGING INTERNATIONAL LTD.   …..     3RD DEFENDANT/APPELLANT/RESPONDENT   </li> <li>ENVIRONMENTAL PROTECTION AGENCY     </li> </ol><p>                                                                         </p> <p> </p> <p>JUDGMENT</p> <p> </p> <p><strong>YEBOAH, JSC:-</strong> This appeal before this court is from the judgment of the Court of Appeal, Koforidua which stayed the proceedings of the High Court, Ho.</p> <p> </p> <p>The case did not proceed to trial on the merits and therefore the facts for the determination of this interlocutory appeal are captured only from the pleadings, the affidavits of parties and the courts’ records before us as an appellate court.</p> <p> </p> <p>The respondent herein and three other defendants (who appeared not to contest the matter), were sued by the appellant before the High Court, Ho.  The respondent is a foreign firm engaged in marine reclamation and was engaged by the Government of Ghana to undertake the salvaging of coastlines at Ada and other areas in the Volta Region to prevent further erosion of the coastline.  The respondent, executed the contract and in course of so doing, the appellants sued them at the Ho, High Court on 11/08/2014.  The basis of the claim was that the execution of the contract had resulted in substantial damage to their properties and affected an island known as Gamewu Island rendering it inhabitable.  The respondent therefore claimed damages for the loss of properties and sought other reliefs to restrain the respondent.  As said earlier, the 1st, 2nd and 4th defendants did not enter any appearance and the respondent herein who was at the material time physically on the site entered appearance and contested the action. As expected, the respondent denied any damage caused by his activities.  The appellant sought and order of mandatory injunction against the respondent on the grounds that the “natural calm flow” of the Volta River into the sea had been disturbed by the activities of the respondent.</p> <p> </p> <p>After hearing the interlocutory application the trial court made far-reaching consequential order directing the 2nd and 3rd defendants to act within forty days to dredge sand and to protect with groins the partly submerged island and the main land.  A further order was made directing the respondent to pay into court Gh₵8, 000.000.00 as security for its presence in Ghana, which order the respondent appealed.  The appellant further applied for an order directing the respondent to file “the full and complete authentic page by page Ada Coastal Protection Works contract documents and other related documents regarding insurance, contingency, environmental guarantee to the project financing Bank”.  This interlocutory order was opposed by the respondent and after it was granted respondent again appealed against it.  As these far-reaching orders were not being complied with, the appellant applied to have the statement of defence of the respondent struck out for judgment to be accordingly entered against the respondent.  It is against this order that the respondent applied for stay of proceedings at the Court of Appeal, Koforidua and same was granted on 26/04/2016.</p> <p> </p> <p>The appellants feeling aggrieved by the stay ordered by the Court of Appeal, Koforidua has appealed to us on a number of grounds.</p> <p><strong>GROUNDS OF APPEAL                              </strong></p> <ol><li>The ruling is against the weight of the evidence</li> <li>The holding that the 3rd defendant/appellant/applicants grounds of appeal against the High Court order for Discovery , alleging that: <ol><li>“The Ada Coastal Protection Contract documents ordered to be produced are not necessary to dispose fairly of the cause or matter or to save cost”</li> <li>“The respondent was not a party to the Ada Coastal Protection Works neither are the terms of the contract relevant to the matters in dispute”</li> <li> “The Ada Coastal Protection Contract Documents ordered to be produced are cumbersome, bulky and large, covering various matters including technical drawings, elevations, specifications, insurance, contingency, environmental issues, project financing and many other matters that will complicate and protract a fair disposal of the action”</li> <li>“Reproducing the Ada Coastal Protection Contract documents will impose unnecessary financial burden on the 3rd defendant.</li> </ol></li> </ol><p>Are arguable points of law for staying the entire proceedings in the suit at the High Court is a wrongful exercise of judicial discretion and not supported by law or the facts.</p> <ol><li>The Court of Appeal holding that the 3rd defendant/appellants refusal to make discoveries by the High Court is a special circumstance to stay the entire proceedings in the pending suit is not supported by <ol><li>Law</li> <li>The facts</li> </ol></li> <li>The Court of Appeal staying the entire proceedings in the suit without considering the stage the appeal against the order for discovery which has been cause with non-compliance is wrongful of judicial discretion.</li> <li>The Court of Appeal’s ruling staying the entire proceedings in the pending suit without paying due regard to the stage of the appeal which has been caught by non-compliance is wrong in law and a nullity.</li> <li>The ruling staying the entire proceedings in the suit is a wrongful exercise of discretion which  has resulted in gross miscarriage of justice to the respondents/appellants</li> <li>Further grounds of appeal will be filed upon receipt of the appeal records.</li> </ol><p> </p> <p>The respondent has raised objection to the ground 1 of the grounds of appeal which seeks to criticize the judgment on the basis that it is against the weight of evidence and the invitation by the appellant for this court to conduct a fresh enquiry or rehear the entire application for the stay of proceedings.</p> <p>                </p> <p>The omnibus ground is usually common in cases in which evidence was led and the trial court was enjoined to evaluate the evidence on record and make its findings of facts in appropriate cases.  In cases in which no evidence was led but the order which has been appealed against is interlocutory, such ground of appeal are not canvased at all.  This has been settled long ago by this court in three notable cases; ASAMOAH v MARFO [2011] 2 SCGLR 832, REPUBLIC v CONDUAH; EX PARTE AABA substituted by ASMAH [2013 – 2014] SSCLR 1032 and RE SUHYEN STOOL; WIREDU &amp; OBENEWAA v AGYEI &amp; ORS [2005 – 206] SCGLR.</p> <p> </p> <p>We think this ground is clearly misconceived and same is hereby strucked out as there were no disputed factual matters which called for findings by the lower court which merely determined the application for stay of proceedings on affidavit evidence which was not in controversy.</p> <p> </p> <p>Learned counsel for the respondent has seriously criticized the formulation of ground 2 of the grounds of appeal on the grounds that it offends Rule 6(4) of CI 16. Counsel is of the view that the ground is verbose, narrative and impeding comprehension.  We have given same thought to the argument raised against this ground, however, given the nature of this case, we have decided to consider the ground of appeal regardless of the fact that the framing of same falls short of the procedural standard of this highest court.  We accordingly do so to advance substantial justice in this appeal.  Our only serious objection to the ground is the fact that the learned counsel for the appellant has quoted a passage and attributed same to the learned justices of the Court of Appeal.  We do not find this statement to have been made by the Court of Appeal in the ruling of 26/04/2016 which is on appeal before us.  Indeed the court’s ruling was tense but this does not take away the reasons for the grant of the application.  For a fuller record we reproduce the order on appeal:</p> <p> </p> <p>“we have considered the entire application and we are of the considered opinion that the 3rd defendant has raised an arguable point which could have an impact on the decision by the trial High Court, looking at the exceptional circumstances of the case and the grounds of appeal raised in the Notice of Appeal, we shall stay proceedings of the substantive matter pending before the High Court, Ho until the interlocutory appeal filed on 6th November, 2015 is heard. There will be no order as to costs”</p> <p> </p> <p>No where in the proceedings of the court dated 26/04/2016 were the above statement quoted as a ground of appeal was stated by the court on record.  We find this ground as clearly misleading and proceed to dismiss same as unmeritorious.  The appeal before us is against the order staying proceedings by the Court of Appeal.  It is not a second appeal for us to reopen the entire matter under the guise of rehearing.  On record, the High court judge did not grant any order for stay of proceedings which any of the parties appealed to this court as a court of first instance in determining the application for stay of proceedings and no more.</p> <p> </p> <p>Another complaint against the ruling which appeared in the ground 2 of the Notice of Appeal is an invitation by the appellant “to conduct a fresh inquiry or rehear the entire application for stay of proceedings pending the interlocutory appeal which has brought the suit at the trial High Court to an abrupt end and same to the conclusion as to whether or not on all the available evidence put before the Court of Appeal Koforidua …”</p> <p> </p> <p>We think counsel, with due respect, is not appreciating the procedure and principles governing stay of proceedings.  A stay of proceedings pending in a court of law is procedurally derived from three sources: the courts’ inherent jurisdiction, the rules of court (if any, is provided by statute) and the provisions of a particular statute e.g. in arbitration statutes.  It is an application made usually to the court where proceedings are actively pending.  See Re: Artistic Colour Printing Co. [1880] 14 chD.502. In his authoritative book, Atkins Encyclopedia of Court Forms in Civil Proceedings (Second Edition, volume 37 page 189 said of stay of proceedings as follows:</p> <p> </p> <p>“A stay of proceedings arises when under an order of the court proceedings which have been pending in that court are brought to a halt at the stage which they have reached, so that while the stay is in operation the parties are precluded from taking any further step in the proceedings” [emphasis ours]</p> <p> </p> <p>It is a discretionary remedy granted by the court in very exceptional circumstances after having taken all relevant matters into consideration. See REPUBLIC v COMMITTEE OF INQUIRY (R.T. BROSCOE (GHANA) LTD); EX PARTE R.T.BRISCOE (GHANA) LTD. [1976] IGLR 166 CA and SELDON v DAVIDSON [1968] IWLR 1038, CA. and GARRET v GARRETT [1991] 2 GLR 366 CA. Learned counsel for the appellants complaint that the order for Discovery and Security for appearance should be reconsidered by this court, is with due respect misconceived.  As an appellate court, we could only intervene in the exercise of that discretion in limited circumstances as has been settled on authority.  See OWUSU v OWUSU-ANSAH [2007-2008] 2 SCGLR 870, CRENSTIL v CRENSTIL [1962 2 GLR 171 SC and BLUNT v BLUNT [1943] AC 517, HL.</p> <p> </p> <p>In the same Atkin’s Encyclopedia of Court Forms in Civil Proceedings (second Edition, Volume 37, at page 195 the learned author proceeds to discuss appeals on orders staying proceedings as follows:</p> <p>“An order staying proceedings will be treated as interlocutory order… moreover, the making of the order to stay proceedings is discretionary and the Court of Appeal will not in general interfere with the exercise of the discretion by the judge except where serious injustice might otherwise result” [ emphasis ours]</p> <p>See HADMOR PRODUCTIONS LTD v HAMILTON [1983] I AC 191 HL.</p> <p> </p> <p>It was the duty of the appellants in this appellate court, to demonstrate that the discretion exercised for the grant of the stay of proceedings by the Court of Appeal was made on wrong or inadequate materials or that it acted under a misapprehension of fact by giving weight to irrelevant or unproved matter as it ignored relevant matters which ought to have been taken into consideration thereby leading the Court of Appeal to erroneously deciding the application against the appellants.  We have given sufficient time to discuss in detail the grounds for the grant of the application by the Court of Appeal and we have found that even though the ruling appears to be terse, there was nothing wrong with the order made given the circumstance of the case before it.</p> <p> </p> <p>Another point raised as a ground of appeal was the fact that the Court of Appeal granted the order to stay the whole proceedings at the High Court.  It appeared in the submissions of counsel for the appellant that no cogent reasons was offered in support of the ground of appeal. The order made was temporarily to halt proceedings and in practice could be removed by an order of the court which granted the stay.  See COOPER v WILLIAMS [1963] 2 QB567.</p> <p> </p> <p>As we have pointed out above, that, the discretion is exclusively vested in the Court of Appeal which was seized with the matter, as a court of first instance.  It must be made clear that there were about three interlocutory applications that were appealed against in a case at the High Court in which, from the record of proceedings pleadings had not even closed.  It appears that virtually all the interlocutory orders made by the learned High Court judge adverse to the respondent herein are on appeal before the Court of Appeal.  The Court of Appeal could therefore not be faulted for the grant of the application to halt all the proceedings given the fact that the determination of all the interlocutory orders were on appeal could probably have serious effect on the case before the High Court, Ho.</p> <p> </p> <p>We have come to this conclusion without seeking to make any pronouncements which may prejudice the determination of any of the appeals pending at the Court of Appeal even though from the submissions of counsel for the appellants in would appear that he was inviting this court to do so from a close reading of the submissions and the grounds of appeal filed.  We are of the considered opinion that the determination for the few grounds of appeal should suffice to dispose of this appeal.</p> <p>We accordingly proceed to dismiss this appeal as without merits.</p> <p> </p> <p> </p> <p> </p> <p><strong>      ANIN YEBOAH</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p> </p> <p><strong>ADINYIRA (MRS), JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Yeboah, JSC.</p> <p> </p> <p> </p> <p><strong>          S. O. A. ADINYIRA (MRS)</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>BAFFOE-BONNIE, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Yeboah, JSC.</p> <p> </p> <p> </p> <p> </p> <p><strong>              P. BAFFOE-BONNIE</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>APPAU, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Yeboah, JSC.</p> <p> </p> <p> </p> <p><strong>                     Y. APPAU</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>PWAMANG, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Yeboah, JSC.</p> <p> </p> <p> </p> <p><strong>              G. PWAMANG</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>COUNSEL</strong></p> <p>EDWARD MARSHALL KOBLAH PENU FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS.</p> <p>S KWAMI TETTEH FOR THE 3RD DEFENDANT/APPELLANT/RESPONDENT.</p> <p> </p></span></div></div> </div> </div> Wed, 23 Jun 2021 10:55:44 +0000 Anonymous 1986 at http://ghalii.org The Attorney General Vrs Balkan Energy Ghana Ltd and Others (J6 1 of 2012) [2012] GHASC 35 (16 May 2012); http://ghalii.org/gh/judgment/supreme-court/2012/35 <span class="field field--name-title field--type-string field--label-hidden">The Attorney General Vrs Balkan Energy Ghana Ltd and Others (J6 1 of 2012) [2012] GHASC 35 (16 May 2012);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/369" hreflang="x-default">EL</a></div> <div class="field__item"><a href="/taxonomy/term/389" hreflang="x-default">Government Contracting</a></div> <div class="field__item"><a href="/taxonomy/term/399" hreflang="x-default">Constitutional Interpretation</a></div> <div class="field__item"><a href="/taxonomy/term/400" hreflang="x-default">Energy</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 06/23/2021 - 10:54</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>The matter arose from a power purchase agreement entered into by the Government of Ghana and the first defendant for the rehabilitation of a power barge.</p> <p>The court considered whether the agreement constituted an international business transaction, within the meaning of Article 181(5) of the Constitution. </p> <p>The court held that a business transaction is “international” within the context of article 181(5) where the nature of the business which is the subject-matter of the transaction is international, in the sense of having a significant foreign element, or the parties to the transaction (other than the Government) have a foreign nationality or reside in different countries or, in the case of companies, the place of their central management and control is outside Ghana. Accordingly, the court held that the agreement constituted an international business transaction within the meaning of Article 181(5) of the Constitution.</p> <p>The court considered whether or not the arbitration provisions of the agreement constituted an international business transaction within the meaning of article 181(5) of the Constitution. An international commercial arbitration is not by itself an autonomous transaction commercial in nature which pertains to or impacts on the wealth and resources of the country and is, therefore, difficult to conceive of as a transaction independent from the transaction that generated the dispute it is required to resolve. </p> <p>Accordingly, the court found that the arbitration provisions did not constitute an international business transaction within the meaning of article 181(5) of the Constitution.</p> <p>The case was remitted to the High Court to apply this court’s interpretation of article 181(5) in the proceedings before it.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.ghalii.org/files/judgments/ghasc/2012/35/2012-ghasc-35.pdf" type="application/pdf; length=798715">2012-ghasc-35.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p>            <strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE SUPREME COURT OF GHANA</strong></p> <p><strong>ACCRA AD. 2012</strong></p> <p> </p> <p> </p> <p><strong>CORAM:  ATUGUBA AG. CJ (PRESIDING)</strong></p> <p><strong>DR. DATE-BAH, JSC </strong></p> <p><strong>ANSAH, JSC</strong></p> <p><strong>ADINYIRA (MRS), JSC </strong></p> <p><strong>YEBOAH,JSC</strong></p> <p><strong>GBADEGBE,JSC</strong></p> <p><strong>BAMFO,(MRS) JSC</strong></p> <p> </p> <p>                                   </p> <p> </p> <p><strong>THE ATTORNEY GENERAL                                PLAINTIFF                                                  </strong></p> <p><strong>               VRS.</strong></p> <p><strong>1. BALKAN ENERGY GHANA LTD                                    </strong></p> <p><strong>2. BALKAN ENERGY LLC                    </strong></p> <p><strong>3. MR. PHILIP DAVID ELDERS                                DEFENDANTS</strong></p> <p>          </p> <p> </p> <p> </p> <p><strong>J U D G M E N T</strong></p> <p><strong>OPINION ON A REFERENCE </strong></p> <p> </p> <p><strong>DR. DATE-BAH JSC:</strong></p> <p>The task of this Court in this case is to interpret the phrase or term “international business or economic transaction to which the Government is a party” as it is used in article 181(5) of the 1992 Constitution.  The responsibility to interpret this phrase has arisen as a result of this Court deciding to refer to itself constitutional issues that had arisen in proceedings before the High Court (Commercial Division).  The learned High Court judge refused an application from the plaintiff to refer the said constitutional issues to this court.  The plaintiff accordingly invoked our supervisory jurisdiction to quash the decision of the learned High Court judge not to refer the issues to this Court.  This Court, in a unanimous ruling delivered on 2nd November, 2011, quashed the decision of the High Court judge not to refer the constitutional issues.  To avoid a multiplicity of suits and to save time, this Court decided to exercise the powers of the High Court, which it has under Article 129(4) of the Constitution, to refer the following questions to this Court:</p> <ol><li>“Whether or not the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution.</li> <li> Whether or not the arbitration provisions contained in clause 22.2 of the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution”.</li> </ol><p>The reference itself is, of course, made under article 130(2) of the Constitution.  Article 130 provides as follows:</p> <p>“(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in -</p> <p>(a) all matters relating to the enforcement or interpretation of this Constitution; and</p> <p>(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.</p> <p>(2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.”</p> <p>Article 181 of the Constitution, within which the phrase to be interpreted is located, reads in part, as follows:-</p> <p>“(1)     Parliament may, by a resolution supported by the votes of a majority of all the members of Parliament, authorise the Government to enter into an agreement for the granting of a loan out of any public fund or public account.</p> <p>(2)       An agreement entered into under clause (1) of this article shall be laid before Parliament and shall not come into operation unless it is approved by a resolution of Parliament.</p> <p>(3)       No loan shall be raised by the Government on behalf of itself or any other public institution or authority otherwise than by or under the authority of an Act of Parliament.</p> <p>(4)       ....</p> <p>(5)       This article, shall with the necessary modifications by Parliament apply to an international business or economic transaction to which the Government is a party as it applies to a loan....”</p> <p> </p> <p><strong>The Facts</strong></p> <p>The factual context within which the Court’s task of interpretation is to be carried out is as follows:  the third defendant, Mr. Phillip David Elders, a businessman resident in Texas, USA, identified a business opportunity in Ghana and persuaded the owner of the second defendant to invest in it.  The business opportunity was as follows: the Government of Ghana wanted to generate electricity urgently from a power barge located in its Western Region.  The barge needed rehabilitation and the Government wanted to negotiate with a private investor to achieve this and bring its generating capacity urgently on stream.  With a view to achieving this, Balkan Energy LLC, the second defendant, entered into a Memorandum of Understanding (“MOU”) with the Government of Ghana on 16th May 2007.  Because of advice that was given to the third defendant relating to the statutory licensing requirements in Ghana for power generation, the investors in the business opportunity decided to incorporate the first defendant in Ghana and to make it the party to a Power Purchase Agreement, the interpretation of a provision in which constitutes the subject matter of the reference to this Court.  Accordingly, on 27th July 2007, Balkan Energy (Ghana) Limited, the first defendant, which had been incorporated in Ghana 11 days previously, entered into a Power Purchase Agreement (“PPA”) with the Government of Ghana.  Subsequently, a dispute arose between the parties to this PPA.  The Government of Ghana claimed that the second and third defendants had misrepresented to it that they could make the power barge operational within 90 working days and that it was on the basis of this misrepresentation that it had entered into the MOU and the PPA.  However, this had not happened.</p> <p>The dispute led to the first defendant initiating, by a Notice of Arbitration dated 23rd December 2010, arbitration proceedings against the Government of Ghana under the auspices of the Permanent Court of Arbitration at the Hague, the Netherlands.  At these proceedings, the Ghana Government raised the point that the PPA needed Parliamentary approval under article 181(5) of the 1992 Constitution, but that this approval had not been sought and therefore the PPA was invalid, as having been executed in breach of a constitutional provision.  The Government of Ghana argued before the arbitration tribunal that non-compliance with the constitutional provision made the PPA invalid, including its arbitration clause, and consequently the arbitral tribunal had no jurisdiction over the dispute before it.  However, the arbitral tribunal held that it had jurisdiction, but expressed a willingness to take account of this Court’s interpretation of the constitutional provision in question.</p> <p>The Attorney-General, the principal legal adviser to the Government of Ghana and the nominal party expected to represent the State in litigation before the Ghanaian courts, in June 2010, issued a Writ of Summons in the Commercial Division of the High Court, Accra, claiming a declaration that the PPA is an international business transaction that needed Parliamentary approval and was unenforceable because it did not have such approval.  The plaintiff also claimed that the arbitration agreement contained in clause 22.2 of the PPA was an international business transaction and was also in breach of article 181(5) and therefore unenforceable.</p> <p>After the institution of the suit, the plaintiff applied to the High Court to refer to this Court for interpretation the two questions already set out in this Opinion, which for ease of reference are repeated below:</p> <ol><li>“Whether or not the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution.</li> <li> Whether or not the arbitration provisions contained in clause 22.2 of the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution.”</li> </ol><p>When the High Court refused to do so, the plaintiff applied to this Court to exercise its supervisory jurisdiction over the High Court to quash the decision of the High Court.  As already indicated in this Opinion, this Court in its Ruling of 2nd November, 2011 did indeed quash the decision of the learned High Court judge and referred the two questions set out above to this court.  Furthermore, before the oral argument on the two questions before this Court, the Court requested counsel for the parties to address in their Statements of Case the following issues which are relevant for the determination of the two principal questions posed above:</p> <ol><li>The definition of an international business transaction within the meaning and context of Article 181(5) of the Constitution</li> <li>Can a Government of Ghana contract with a Ghanaian legal person or entity ever be an international business transaction?</li> <li>If so, how are we to distinguish an international business transaction of a Ghanaian legal person from its other contracts with the Government of Ghana?  Are you able to formulate any clear indices or criteria?</li> </ol><p>         </p> <p>In determining these issues, we have been greatly assisted by the painstaking Statements of Case filed by the Plaintiff and the Defendants.  On the 1st March 2012, Zenith Bank Ltd applied to this Court to be joined to this suit as an interested party.  Although its application was dismissed, it was granted leave to file an <em>amicus curiae</em> Statement of Case, which it duly filed on 9th March, 2012.  This Statement of Case is largely an endorsement of the Defendants’ Statement of Case.</p> <p> </p> <p><strong>The Plaintiff’s arguments</strong></p> <p> </p> <p>The plaintiff contends that two main criteria may be used, either alone or in conjunction, to define the term “international”, in the context of an international business or economic transaction.  The first criterion relies on the <em>nature of the business or economic transaction</em>.  On the other hand, the second focuses attention on the <em>parties</em>:  what is their nationality or habitual place of residence or, in the case of a corporate entity, the seat of its central control and management.</p> <p><em>International nature of the business or economic transaction</em></p> <p>The plaintiff cites, by way of analogy, practice in the field of international arbitration by which the nature of the dispute between the parties has been used to decide whether the mechanism for its resolution can be described as an international arbitration.  The plaintiff points out that the International Chamber of Commerce (“ICC”), which established its Court of Arbitration in Paris in 1923, was quick to adopt the <em>nature of the dispute</em> as its criterion for deciding whether or not a commercial arbitration was an international arbitration under its rules.  He draws attention to the fact that since 1927 the ICC rules have defined international arbitration to encompass disputes which contain a foreign element, even if the parties are citizens of the same country.  He cites ICC Rules, Article 1.1 which defines the function of the Court of Arbitration of the ICC as being “to provide for the settlement by arbitration of business disputes of an international character in accordance with these Rules.”  In para. 22 of his Statement of Case, the plaintiff states, in relation to the ICC, that:</p> <p>“It is prepared to give a wide interpretation to the term “international” so as to encompass arbitrations involving any foreign element.  If, for example, the subsidiary of a foreign company doing business in a state was incorporated in that state (as would often be the case) any arbitration between the company and the state concerned would be classified as international under the ICC Rules.”</p> <p><em>Nationality of the parties as indicative of the international nature of the business or economic transaction</em></p> <p>As already mentioned, the second alternative criterion proposed by the plaintiff is that which focuses on the parties.  He illustrates this approach by citing the European Convention on International Commercial Arbitration of 1961, which states its scope as follows (in Article I):</p> <p>“This Convention shall apply:</p> <ol><li>To arbitration agreements concluded for the purpose of settling disputes arising from international trade between physical or legal persons having, when concluding the agreement, their habitual place of residence or their seat in different Contracting States;</li> <li>To arbitral procedures and awards based on agreements referred to in 1(a) above.”</li> </ol><p>He further illustrates the “parties” approach by reference to the statutory scheme embodied in the English Arbitration Act, 1996.  He quotes a summary of this scheme from Redfern &amp; Hunter, The Law and Practice of International Commercial Arbitration (1986) as follows:</p> <p>“A domestic arbitration agreement is an agreement which does not provide, expressly or by implication, for arbitration outside the U.K. and to which there was no foreign party at the time when the agreement was made.  A foreign party in this sense is an individual who is a national of, or habitually resident in, any state other than the U.K.; or a corporate entity incorporated outside the U.K. or whose central control and management is exercised outside the U.K.  It is sometimes suggested that this definition means that, for an arbitration to be domestic, both parties must be of British nationality.  This is not correct.  Nationality is one, albeit important, criterion used in the definition.  However, where an individual Is concerned, that individual’s habitual place of residence is also taken into account.  More importantly, where a corporate entity is concerned, the criterion is not simply its place of registration or incorporation – but that of the place in which its central management and control is exercised.”</p> <p>After praying in aid of his argument, other statutes on arbitration from Singapore and Ghana, the plaintiff concludes his submission as follows:</p> <p>“The Applicant accordingly submits that the foregoing analysis of the nationalities of the parties as indicative of the nature of a domestic or international business or arbitral transaction shows that Ghanaian legal persons are at liberty to enter into either domestic or international business (including arbitral transactions) with the Government of Ghana.  The Applicant has already argued and will contend further in this statement of case that the structure and substance of Article 181(5) of the Constitution does not proscribe such transactions between a Ghanaian legal person and the Government of Ghana.  Furthermore, nothing in the structure, scheme and substance of the Arbitration Act, 1961 or the current Alternative Dispute Resolution Act, 2010 proscribes a Ghanaian  legal person from entering into international business or arbitral transactions with the Government of Ghana.”</p> <p>In his quest to cast light on the meaning of international business transaction, the plaintiff conducts a review of the literature on international business.  He states that international business is an important professional and academic discipline and deals with the special features of business activities that cross national boundaries.  He explains that international business activities may be through foreign direct investments or portfolio investments.</p> <p>Drawing on the materials assembled in his Statement of Case, the plaintiff concludes as follows:</p> <p>“41. We have sought to use the nature of the business or commercial transactions and the nationalities of the parties to business or commercial transactions as criteria for drawing a distinction between international business or commercial or economic transactions and purely domestic business or trade transactions.  This is by no means always a clear-cut distinction in its application as naturally inevitable penumbra cases run into each other and have to be decided upon the peculiar facts of the case.  We have also tried a review of the literature on international business as a field of study to show how international business and economic transactions may be characterized, categorized and formed for purposes of modern international trade as distinct from domestic trade.</p> <p>42.  The foregoing exposition and analysis demonstrates that there are several circumstances in which the Government of Ghana may enter into international business or economic transactions with Ghanaian physical or legal entities.  They also demonstrate that like any natural or physical science or social science phenomenon penumbra cases make it difficult to conclusively formulate in advance any clear indices or criteria for distinguishing penumbra international business transactions from domestic business transactions.”</p> <p> </p> <p>Plaintiff’s response to the first issue referred to this Court</p> <p>The plaintiff next proceeds to apply this understanding, discussed above, to the first issue referred for interpretation.  In doing this, he stresses the fact that the first defendant is a wholly foreign-owned Ghanaian entity whose central control and management is outside Ghana.  In support of this fact, he adduces the following evidence on the record:</p> <ol><li>The first defendant was incorporated only eleven days before the execution of the PPA;</li> <li>The first defendant is wholly owned by Balkan Energy Limited, a company incorporated in the United Kingdom.  Balkan Energy Limited is in turn wholly owned by Syntek West, a company incorporated in the United States of America;</li> <li>Syntek West is wholly owned by Gene Phillips, a national of the United States of America; and</li> <li>The managing-director of Balkan Energy (Ghana) Limited, the first defendant, is Philip David Elders, the 3rd defendant, who is resident in the United States of America.</li> </ol><p>He also identifies certain salient provisions in the PPA which, in his view, demonstrate that it is an international business transaction.  In this connection, he lists the following clauses in the PPA:</p> <ol><li>“2.6  GoG shall promptly facilitate the acquisition of all Government approvals for the duty-free importation and transportation of equipment to the site, and for operating permits, licenses and approvals for the Project, and for visas and work permits for foreign personnel and for full compliance with all local and other regulations and GoG hereby guarantees that BEC shall have the exclusive right to generate electricity from the site subject to meeting the Milestone in Schedule 3.”</li> <li>Clause 12.1 provides that all sums payable to Balkan Energy (Ghana) Limited “shall be payable in US dollars.”</li> <li>Clause 15.4 provides that the Government of Ghana “shall indemnify and hold harmless BEC (and its officers and employees) from and against all damages, losses and reasonable expenses suffered or paid by BEC as a result of any and all claims for the personal injury, death or property damage to third parties ... and resulting from any act or omission of GoG or its agents or employees.”</li> <li>“22.2  If any dispute arises out of or in relation to this Agreement and if such matter cannot be settled through direct discussions of the Parties, the matter shall be referred to binding arbitration at the Permanent Court of Arbitration, Peace Palace, Carnegieplein 2, 2517 KJ in the Hague, The Netherlands.  Unless the Parties to this Agreement agree otherwise, the arbitrator shall not have power to award nor shall he/she award any punitive or consequential damages (however denominated), Each side shall pay its own attorneys fees and costs no matter which side prevails and each Party shall share equally in the cost of any mediation or arbitration.  Applications may be made to such court for judicial recognition of the award and/or an order of enforcement as the case may be.  Arbitration shall be governed by and conducted in accordance with UNCITRAL rules.”</li> <li>“24.  To the extent that GOG may in any jurisdiction claim for itself or its assets or revenues immunity from suit, execution, attachment (whether in aid of execution, before judgment or otherwise) or other process and to the extent that any such jurisdiction there may be attributed to the GOG or its assets or revenue such immunity (whether or not claimed) GOG agrees not to claim and irrevocably waives such immunity to the full extent permitted by the laws of such jurisdiction.”</li> <li>“29.2  GOG represents and warrants that:</li> </ol><p>‘(g)  No Taxes.  There is no Tax other than stamp duty at a nominal rate imposed on or in connection with:</p> <ol><li> the execution, delivery or performance of this Agreement;</li> <li>the enforcement of any of this Agreement; or</li> <li>  on any payment to be made to the BEC under this Agreement.  In connection with Letters of Credit, no Government Authority shall impose any reserve, special deposit, deposit insurance or assessment affecting BEC.</li> </ol><p>No Foreign Exchange Controls.  There are no foreign exchange or other restrictions in effect in the Republic of Ghana adversely affecting the ability or right of GoG to acquire and to remit to BEC foreign currency to pay and satisfy GoG’s obligations under this agreement.”</p> <p> </p> <p>Whilst the plaintiff notes that in <em>Attorney-General v Faroe Atlantic Co. Ltd.</em> [2005-2006] SCGLR 271 this Court interpreted an international business or economic transaction to include a business transaction between the Government of Ghana and a company incorporated abroad, he contends that there is no provision in the Constitution which proscribes Ghanaian companies from entering into international business or economic transactions with the Government of Ghana.  He therefore concludes that on the facts of this case the PPA is an international business transaction.  He supports his conclusion with the following argument, in paragraphs  57 and 58 of his Statement of Case:</p> <p>“57.    It is further submitted that it cannot be the case that the only factor that must be taken into account in determining whether or not a particular business or economic transaction to which the Government is party is international is the place of incorporation of the counterparty.  It is submitted that the transaction as a whole and its characteristics must be looked at in making this determination.  Characteristics that expose the Government to obligations or liabilities in other jurisdictions or subject to the laws of other jurisdictions give a transaction its internationality and must be taken into account.  These characteristics are gleaned from the provisions of the agreement between the parties and include the provisions already referred to in these submissions as the salient provisions of the PPA which demonstrate at face value that the PPA is a non-domestic business transaction.  These features include those provisions that require contact by the Government and its assets with other jurisdictions (such as the choice of forum).</p> <p>58.      It is also submitted that the nationality of the counterparty and its sponsors are relevant.  To require Parliamentary approval in respect of a company incorporated outside Ghana but not to require it where the company merely incorporates an entity in Ghana effectively for form’s sake is, with respect, to subvert the constitutional provision and its substantive objective of promoting checks and balances between the executive and the legislature in relation to the substance of certain types of transactions.”</p> <p>Moreover, the plaintiff points out that there are a few English cases which establish that the nationality of a company is not determined necessarily or solely by the place of incorporation of the company, citing <em>Daimler Co. Ltd. V Continental Tyre and Rubber Co. (Great Britain) Ltd.</em> [1916] 2 AC 307, <em>R v LCC, ex p. London and Provincial Electric Theatres Ltd. </em>[1915] 2 KB 466 and <em>Re F.G. (Films) Ltd.</em> [1953] 1 All ER 615.  He also cites the dictum of Akuffo JSC in <em>Morkor v Kuma (No. 1)</em> [1999-2000] 1 GLR 721 at 733 where she says:</p> <p>“Notwithstanding the effect of a company’s incorporation, in some cases the court will ‘pierce the corporate veil’ in order to enable it to do justice by treating a particular company, for the purpose of the litigation before it, as identical with the person or persons who control it.  This will be done not only where there is fraud or improper conduct, but in all cases where the character of the company, or the nature of the persons who control it is a relevant feature.  In such cases the court will go behind the mere status of the company as a separate legal entity distinct from its shareholders, and will consider who are the persons, as shareholders or even as agents, directing and controlling the activities of the company.”</p> <p>The plaintiff accordingly urges that in the light of the facts that the first defendant is wholly-owned by a foreign entity; formed at the direction of that foreign entity for the purpose of entering into a contract with the Government; managed by the same officers as manage its foreign parent; and the contract was to be performed by foreign contractors retained by the company, rather than by domestic employees or contractors, this is a case where the formal separate legal personality of the first defendant is rendered insignificant and irrelevant.</p> <p>The plaintiff concludes his submission on the first issue referred to this court by summarizing the factors which make the PPA an international business transaction.  He lists these as:</p> <ol><li>The purported place of incorporation and residence of the project sponsor, Balkan Energy LLC</li> <li>The place of incorporation, ownership and residence of the sole shareholder of the Ghana company</li> <li>The management, ownership and control of the first defendant</li> <li>Fees payable to the first defendant under the PPA are required to be paid in foreign currency and therefore bound to be a charge on Ghana’s foreign currency receipts</li> <li>The indemnity provisions of the PPA potentially apply to foreign persons</li> <li>The relevance of the Ghana-UK Bilateral Investment Treaty by virtue of who is the sole shareholder of the 1st Interested Party</li> <li>The provisions of the PPA regarding international arbitration and waiver of jurisdiction.</li> </ol><p>The plaintiff’s conclusion is thus that:</p> <p>“If all the above factors can be disregarded simply by incorporating a company in Ghana, article 181(5) would be rendered practically nugatory.  The better interpretation is that the mere fact that the legal entity with whom the Government has entered into a transaction is incorporated in Ghana does not, by itself, mean that the transaction is not an international business one within the meaning of article 181(5).  The constitution of the parties, the provisions of the transaction and its elements must all be looked at in determining whether or not the transaction is an international business one.”</p> <p> </p> <p>Plaintiff’s response to the second issue referred to this court</p> <p>The plaintiff contends that the arbitration agreement contained in the PPA constitutes an international business transaction within the meaning of article 181(5) of the Constitution.  Because there are authorities which hold that an arbitration agreement is separate, distinct and severable from the agreement in which it is embodied, except where the primary contract is null and void <em>ab initio</em>, the plaintiff finds it necessary to argue that in addition to, and regardless of the PPA as a whole, the agreement to go to international arbitration which is contained in clause 22.2 of the PPA itself constitutes an international business agreement which requires Parliamentary approval.  This is thus the plaintiff’s answer to the second issue referred to this Court for authoritative interpretation.</p> <p>Obviously the plaintiff’s general discussion, already set out above, on what constitutes an international business or economic transaction applies to this second issue as well.  Regarding the unconstitutionality of the arbitration clause, the plaintiff makes the following argument in paragraph 18 of his Statement of Case:</p> <p>“The question of a possible breach of article 181(5) of the Constitution was raised after the Balkan Group had submitted this dispute to arbitration on 23 December 2009 pursuant to the arbitration clause contained in the PPA.  This is a fundamental constitutional question because should this Court hold that the PPA to which the Government of Ghana was a party is an international business or economic transaction which was never operative because it had not been laid before and approved by Parliament the consequence will be that the whole transaction between the parties was null and void ab initio in accordance with article 1(2) of the Constitution.  The further consequence which will usually flow as a matter of course from an unconstitutional PPA is that the arbitration clause contained in such a null and void ab initio agreement could never have also become operative and grounded a cause of action in an international arbitration expressly stated to be governed by the laws of Ghana (See <em>Heyman v Darwins Ltd.</em> [1942] AC 356 at 370-371; and Article II(3) of the New York Convention).  This position is consistent with the decision of this Court in <em>Attorney-General v Faroe Atlantic Co. Ltd. </em>[2005-6] SCGLR 271 in which this Court, not only declared the PPA as null, void and without effect, but also ordered the foreign company to refund the monies it had been unconstitutionally paid pursuant to that contract.  It would appear absurd if an international arbitral tribunal could thereafter have assumed jurisdiction, adjudicated an alleged dispute and made a binding award based on Ghanaian law.  As the Applicant’s application for judicial review already indicated, the 1st Interested Party <em>(sic, but more correctly the first defendant)</em> has commenced international commercial arbitral proceedings against the Applicant and the arbitral tribunal has purported to assume jurisdiction while expressing a willingness to take account of the authoritative determination of this Court should the decision be made before it concludes its work.  It is in this context that the second question posed for this reference becomes relevant to deal with the assumption of jurisdiction by the arbitral tribunal which, in our submission, is based upon the erroneous premise that a PPA declared by this Court to be null and void ab initio in terms of Articles 1(2) and 181(5) of the Constiution can still be survived by the arbitration clause contained therein to ground jurisdiction in an arbitral tribunal to decide upon its jurisdiction and settle a dispute.”</p> <p>This extended quotation from the plaintiff’s Statement of Case explains why the second issue is before this Court for interpretation.</p> <p> </p> <p><strong>The defendants’ arguments</strong></p> <p>To the excellent submissions made by the Honourable Attorney-General in his Statement of Case, the defendants also filed a well-argued and detailed riposte in their Statement of Case.  The first point that the defendants make is to question whether article 181(5) requires Parliamentary approval of international business or economic transactions to which the Government is a party.  They argue that the text of article 181(5) needs to be interpreted to establish whether the “necessary modifications” referred to in it are a condition precedent to the effectiveness of the article.  They suggest that, without those modifications, article 181(5) does not come into effect or has effect only to the extent that it authorizes Parliament to undertake the required modification.  They urge, in paragraph 33 of their Statement of Case, that:</p> <p>“My Lords, it would appear that even a consideration as to what amounts to “an international business or economic transaction” would fall within Parliament’s legislative determination under Article 181(5).  It would also appear to be within Parliament’s constitutional remit to decide how and by which procedure such agreements would be authorized and/or approved, and whether some of such agreements would not require any parliamentary action at all.”</p> <p>In <em>Attorney-General v Faroe Atlantic Co. Ltd. </em>[2005-6] SCGLR 271, Date-Bah JSC  said (at p. 297):</p> <p>“Even though clause 5 of article 181 enjoins Parliament to make the necessary modifications to article 181, I do not interpret clause 5 as rendering that clause ineffective until the Parliamentary modifications to article 181 have been made.  Such statutory modifications are, to my mind, intended to assist the clarity of clause 5 in the context of article 181, but the clause has effect even before Parliament carries out its task.”</p> <p> </p> <p>The defendants take note of this interpretation, but nevertheless raise the following issues in their paragraph 34:</p> <p> </p> <p>“Some questions that are unanswered are as follows: (i) what is that effect? And (ii) do the different procedures in Article 181(1)-(2) on the one hand and Article 181(3)-(4) on the other hand apply automatically to all <em>international business or economic transactions</em> in the absence of the <em>necessary modifications </em>by Parliament, or will only apply after Parliament has made the authorised modifications?”</p> <p>The defendants then go on to propose a 3-stage test for determining whether article 181(5) applies.  They say (at paragraph 37):</p> <p>“Be that as it may, My Lords, we respectfully propose the following 3-stage test with respect to the application of Article 181(5):</p> <ol><li>Is the activity or venture a “transaction” to which the Government is a party?</li> <li>If so, is it “business or economic” in nature?</li> <li>If so, is it “international” in nature?”</li> </ol><p>They maintain that it is only if all three questions are answered in the affirmative that Article 181(5) would apply.</p> <p>In relation to what is a transaction, the defendants note that the word “transaction” is not defined in the Constitution.  They refer to the definition in Black’s Law Dictionary (4th Ed.) of transaction as an “act of transacting or conducting any business; negotiation; management; proceeding; that which is done; an affair.”  They also quote that same Dictionary as referring to “something which has taken place whereby a cause of action has arisen.  It must therefore consist of an act or agreement, or several acts or agreements, or several acts or agreements having some connection with each other, in which more than one person is concerned, and by which the legal relations of such persons between themselves is altered.”  The defendants state that parties to a transaction may choose to reduce their agreements into a contract and insert an “Entire Agreement” clause into the contract so that the contract and its terms would constitute the relevant transaction between the parties.  They point out that the PPA has in its article 27 such an “Entire Agreement” clause in the following terms:</p> <p>“This Agreement, including the Schedules hereto contains all the understandings and agreements of whatsoever kind and nature with respect to the subject matter of this Agreement and the rights, interests, understandings, agreements and obligations of the parties relating thereto …All prior written or oral undertakings, offers or other communications of every kind concerning the subject matter hereof are hereby abrogated and withdrawn and shall not affect or modify any of the terms or obligations set forth in this Agreement.”</p> <p>The defendants, therefore, contend, based on the considerations set out above, that the relevant “transactions” to be construed are those contained in the PPA.  They stress that article 181(5) makes it clear that its provisions apply only to a transaction to which the Government is a party.  They argue, accordingly, that once the Government is not a party or privy to any other agreements, understandings or arrangement that the other party to the transaction may enter into with any other persons, the nature of those other agreements, understandings or arrangements will not affect the nature of the original transaction to which the Government is a party.</p> <p>As to what is a business or economic transaction, the defendants again note that neither “business” nor “economic” is defined in the Constitution.  They refer to the definition of “business” in Black’s Law Dictionary as:  “A commercial enterprise carried out for profit, a particular occupation or employment habitually engaged in for livelihood or gain” and to its definition in the Chambers English Dictionary as:  ”dealings, commercial activity: a commercial or industrial concern.”  They further state that though Black’s Law Dictionary does not directly define the term “economic”, its various uses of the term indicate that it refers to “the management or administration of the wealth and resources of a community, city, state, or country.”  Similarly, they report that the Chambers English Dictionary says an activity is “economic” if it relates or pertains  to the management of a household; the administration of the material resources of an individual, community, or country.”  The defendants therefore conclude in paragraph 49 of their Statement of Case that:</p> <p>“Therefore, where a transaction is commercial in nature, or pertains to or impacts on the wealth and resources of the country, it would be a “business or economic transaction” and a subject of interest in any examination of Article 181(5).”</p> <p>The defendants also analyse the meaning of “international” in the provision under discussion.  Again, they note that the Constitution does not define the word.  They point out, however, that the word is used in contradistinction to the word “national” in Articles 21(1)(e), 36(9) and 37(5) and that it is used to describe the relationship between Ghana and other nations in Articles 40 and 73.  They then examine provisions in the 1980 United Nations Convention on Contracts for the International Sale of Goods, the 1956 Convention on the Contract for the International Carriage of Goods by Road, the 1944 Convention on International Civil Aviation and the 1929 Convention for the Unification of Certain Rules Relating to International Carriage by Air from which they conclude that a transaction may be considered international if:</p> <ol><li>It is between two or more countries;</li> <li>Involves parties who are nationals of or resident in two different countries, and/or</li> <li>It involves crossing national borders.</li> </ol><p>They then submit that the transaction between the Government and the first defendant does not meet any of the criteria listed above and is therefore not international.</p> <p>The defendants oppose the plaintiff’s argument that this Court should lift the veil of the first defendant’s incorporation in Ghana.  They cite the words of Sanborn J in <em>United States v Milwaukee Refrigerator Transit Co. </em>142 Fed. 247, 225 that:</p> <p>“If any general rule can be laid down, in the present state of authority, it is that a corporation will be looked upon as a legal entity as a general rule, until sufficient reason to the contrary appears:  but, when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons.”</p> <p>The defendants rely on this statement of the law to contend that the concept of the lifting of the veil of incorporation is applied by the courts only where the facts proved show some misuse of the corporate entity, or there is the need to lift the veil in order to do justice.  They also cite the Ghanaian case relied on by the plaintiff in this connection, namely, <em>Morkor v Kumah (No. 1) </em>[1999-2000] 1 GLR 721.</p> <p>The defendants contend that the plaintiff has not been able to show any illegal, fraudulent or unfair purpose for the incorporation of the first defendant.  Accordingly, the concept of lifting the veil of incorporation should not be applied to it.  In paragraph 64 of their Statement of Case, the defendants make the following submission:</p> <p>“Our humble submission is that incorporating the 1st Defendant as a private limited liability company just before the execution of the PPA was in compliance with the Energy Commission Act.  The incorporation was an act of obedience to Ghana law, not some last minute device to evade parliamentary approval, as the Plaintiff which was an active party to all the events leading up to the execution of the PPA (and with full actual knowledge of all the surrounding circumstances), belatedly and erroneously seeks to suggest.  The only way to lawfully implement the provisions of the anticipated transaction was to incorporate a company in Ghana.”</p> <p>The defendants go on to assert that for the plaintiff to succeed in persuading this court to disregard the obvious residence of the first defendant in Ghana, the onus rests upon it to prove in which way the real business of the first defendant is carried on outside Ghana.  They insist that there is no evidence that the real business and central management and control of the first defendant is anywhere else but in Ghana.</p> <p>In relation to the third criterion for testing internationality set out above, the defendants point out that a complete and careful review of the PPA demonstrates that the transaction does not cross any national border.  They say (in paragraph 79):</p> <p>“My Lords, that is why out of the 34 clauses of, and 11 Schedules to, the PPA (involving numerous aspects of the transaction), as well as the Lease Agreement “Attachment”, the Plaintiff embarks on a selective exercise in ‘hunting and pecking’ at the PPA, and then contends that this Honourable Court should consider only one clause and five other sub-clauses of the entire PPA (namely 2.6, 12.1, 15.4, 22.2, 24 and 29.2(g)), and hold that on these bases, the PPA is an international transaction.  In effect the Plaintiff is urging your Lordships to decide that the PPA  is an international transaction by ignoring every other clause in the PPA, but these that it has identified.  Yet the Plaintiff simply cites these clauses without demonstrating in what way or manner these involve the crossing of national borders, thereby making the PPA an international transaction. ..”</p> <p>Finally, the defendants respond to the plaintiff’s argument that the arbitration agreement between the parties contained in clause 22.2 is, in and of itself, an international business or economic transaction which requires Parliamentary approval under article 181(5).  Their position, expressed in paragraph 93 of their Statement of Case, is that:</p> <p>“Our respectful submission in response is that even if this Honourable Court was to hold that the arbitration agreement was ‘international’ in nature, the agreement is not a “business or economic transaction”.  This takes it out of the scope and bounds of Article 181(5).”</p> <p>The defendants pray in aid of their position the definitions of “arbitration” and “arbitration agreement” respectively, contained in section 135 of the Alternative Dispute Resolution Act, 2010 (Act 798), which are as follows:  “the voluntary submission of a dispute to one or more impartial persons for a final or binding determination of a dispute” and “an agreement to submit to arbitration present or future dispute.”  They also refer to the definition of “arbitration” in Halsbury’s Laws of England, 4th Edition, Re-issue (1991) at paragraph 601 in the following terms:</p> <p>“the process by which a dispute or difference between two or more parties as to their mutual legal rights and liabilities is referred to and determined judicially and with binding effect by the application of law by one or more persons (the arbitral tribunal) instead of by a court of law.”</p> <p>They submit that it is quite clear from these definitions that an arbitration agreement is nothing more than parties to an agreement determining beforehand how their disputes arising from that agreement are to be settled by some quasi-judicial or administrative process.  Thus the process of arbitration does not of itself encompass any business or economic dealings. The defendants further argue that because an arbitration agreement is autonomous, separate and severable from the main contract in which it is embodied, it does not derive its nature from the main contract.  Accordingly, even if the PPA were held to be an international business transaction, that would not, in the view of the defendants, define the nature of the arbitration agreement under clause 22.2 as an international business transaction.</p> <p>Thus the excellent arguments of the Attorney – General (Honourable Martin Amidu at the time of the argument) are countered by equally outstanding and carefully considered submissions by the defendants.  The court’s deliberations have been much facilitated by the thoughtful submissions made by both sides to this suit.</p> <p><strong>The arguments of the <em>amicus curiae</em></strong></p> <p>In addition to the arguments of the parties summarized above, a Statement of Case was filed on behalf of Zenith Bank (Ghana) Ltd.  The bank had applied to be joined to the suit as an interested party, but this court dismissed the application, but rather granted it leave to file a Statement of Case, as an <em>amicus curiae.</em>  The <em>amicus curiae</em> indicated in its Statement of Case that it associated itself with the submissions made in the Statement of Case of the Defendants. It asserted that it was strange to suggest that any economic or business transaction ordinarily entered into by a Ghanaian legal person or entity could be considered or treated as an international business transaction.</p> <p>The averment of the <em>amicus</em> <em>curiae</em> was that after<em> a</em>n irrevocable letter of credit had been issued to the first defendant by the Bank of Ghana and this had been accepted by the <em>amicus curiae</em> as collateral for a loan transaction with the first defendant, the Bank of Ghana had declined to honour the letter of credit because of the dispute between the Government and the first defendant on the validity of the PPA.  It accordingly threw its weight behind the case of the defendants.</p> <p> </p> <p> </p> <p><strong>Our Interpretation</strong></p> <p>The phrase “international business or economic transaction to which the Government is a party”, if purposively construed, should not lead necessarily to the result that only agreements between entities resident abroad and the Ghana Government can be embraced within the meaning of the term.  Given the complexity of contemporary international business transactions, there will be transactions of such a clear international nature that they should come within any reasonable definition of an international business transaction, but which may have been concluded with the Ghana Government by an entity resident in Ghana.  In such a situation, our view is that the substance, rather than the form, should prevail.  What we have just said begs the question of what “international” means.  In this connection, we think that there is the need to combine both the <em>nature of the business or economic transaction </em>criterion and the <em>parties</em> criterion proposed by the plaintiff in his submission, in order to formulate a test for determining what transactions come within the ambit of article 181(5) of the 1992 Constitution.</p> <p>However, the complication which arises if a transaction between a Ghanaian company and the Ghana Government is purposively construed to be an international business transaction is the need to formulate a clear criterion for distinguishing such a transaction from other transactions (with foreign connections) between the Government and Ghanaian companies.  On the other hand, If an international business transaction within the ambit of article 181(5) is defined exclusively as one between an entity resident abroad and the Ghana Government, one has a ready rule of thumb for determining at least one dimension of what agreements come within the scope of article 181(5).  If this mechanical rule is departed from, then one has to confront the task of defining a criterion or criteria for distinguishing between transactions entered into with entities resident in Ghana where such transactions are nonetheless to be regarded as international and other transactions that are to be regarded as non-international.  In spite of the entailed implication of choosing complexity over simplicity, we think that this court has to accept that substance should rule, rather than form, and thus grasp the nettle.</p> <p>Once this Court adopts the approach of substance over form, the following passage from the defendants’ Statement of Case (paragraphs 121, 122 and 123) becomes poignantly relevant:</p> <p>“121. My Lords, therein lies, and with utmost respect to the Plaintiff, the inherent contradictions of its arguments before this Honourable Court.  Taken to the extreme, the Plaintiff would be contending that even though British Airways is registered as an external company in Ghana, the Government of Ghana cannot purchase a ticket from that airline for the President or any public official to travel on the airline’s plane, unless there has been specific parliamentary approval of the ticket purchase.  What is worse, even the purchase of a ticket to fly a Government official from Accra to Kumasi would be an “international business transaction” if the local airline has foreign shareholders.</p> <p>122.   By way of further hypothetical illustration, if the Government was to enter into a contract with a Ghanaian individual for the supply of paper to the Government, and that individual supplies the paper but has to sue to recover unpaid monies, the Government could, on account of the supplier having imported the paper into Ghana, come to the Supreme Court for a determination that the contract to supply paper to the Government was an “international business or economic transaction” that required parliamentary approval, and that in the absence of that approval, the contract was invalid.  It would also mean, Your Lordships, that every contract that the Government enters into for the supply of vehicles is an “international economic or business transaction” because it is a notorious fact that nearly all the cars plying our roads are imported.</p> <p>123.   My Lords, it was to avoid such untenable and flawed posture and arguments that the framers of the Constitution, under Article 181(5) left the matter to Parliament without even attempting to define the phrase “international business and economic transaction”, thereby leaving Parliament to decide what it considers as an “international business and economic transaction” and how to apply Article 181 to such matters, by way of the necessary statutory modifications.  Without those legislative modifications that the Constitution mandates, the ‘assumed’ interpretation of Article 181(5) that parliamentary approval is required for such transactions (even when the other party is a Ghanaian) would lead to absurd results.  As things stand, the Government chooses which financial obligations to honour, and which it would run to court to challenge on account of the Government’s own position that parliamentary approval was not required.”</p> <p>This argument that, without the legislative modifications that the Constitution mandates under article 181(5), the provision is inoperative and cannot be enforced is erroneous and the defendants are precluded by <em>stare decisis</em> from re-opening that issue.  We have already referred to the passage in <em>Attorney-General v Faroe Atlantic Co. Ltd. </em>[2005-6] SCGLR 271, where the Supreme Court held that even before Parliament acts on the modifications to article 181(5) it is enforceable.   That position is supported, not only by authority, but also by principle.  The framers could hardly have intended that Parliament should be able to stultify their purpose of achieving transparency in the Executive’s international business deals through simple inaction.   Such an interpretation of article 181(5) would be unreasonable and not in tune with the purpose of the provision.</p> <p>However, the examples given by the defendants in the passage quoted above demonstrate the need to articulate a criterion for distinguishing between the international business transactions intended to be scrutinized, and approved, by Parliament and those which are not.  For, clearly it would be impractical for Parliament to scrutinize and approve every single business transaction with international ramifications entered into by the Executive.  The hypothetical examples given in the defendants’ Statement of Case quoted above constitute a <em>reductio ad absurdum</em> of one perception of the principle embodied in article 181(5).  In our view, to give effect to the framers’ purpose, there is need to imply into article 181(5) an understanding that only <strong><em>major</em></strong> international business or economic transactions are to be subject to its provisions.  We do, however, agree with the defendants that Parliament needs to exercise its legislative power in relation to article 181(5) in order to clarify which transactions are to be viewed as major.</p> <p>The interpretation that the international business or economic transactions that come within the ambit of article 181(5) should be limited to only major ones is a purposive one.  It will be recalled that this Court, speaking through me, in <em>Asare v Attorney-General</em> [2003-2004] SCGLR 823, pointed out that there is a distinction between the objective and the subjective purposes of a constitution or statute.  The court there said (at p. 834):</p> <p>“The subjective purpose of a constitution or statute is the actual intent that the authors of it, namely, the framers of the constitution or the legislature, respectively, had at the time of the making of the constitution or the statute.  The objective purpose is not what the author actually intended but rather what a hypothetical reasonable author would have intended, given the context of the underlying legal system, history and values etc. of the society for which he is making law.  This objective purpose will thus usually be interpreted to include the realisation, through the given legal text, of the fundamental or core values of the legal system.”</p> <p>One of the values of the 1992 Constitution is the promotion of probity and accountability.  In the Proposals for a Draft Constitution of Ghana prepared by the Committee of Experts appointed in 1992 under PNDC Law 252 to draft the proposals that were placed before the Consultative Assembly that formulated the 1992 Constitution, the Committee makes the following important point in the General Introduction to its Proposals (paragraph 6 on p. 5):</p> <p>“With respect to the developments within the past 10 years, the guiding principle was that the essential attributes of institutions which are compatible with a constitutional order should be retained, subject to modifications as are appropriate.  The committee feels that in this regard accent should be on substance not form.  Thus, for example, the social or political values of accountability and probity and fidelity to the public interest should survive the inauguration of the constitution….”</p> <p>This passage shows that the values of probity and accountability were among those that informed the Committee’s decision-making in the framing of its proposals.  These values clearly have a relevance to article 181(5).  The sunlight of Parliamentary scrutiny of major transactions entered into by the Executive is likely to be a powerful spur to probity in such transactions.  That is why it is unlikely that the framers would have intended to give to Parliament the veto power implied in the defendants’ interpretation of article 181(5).  The purposive interpretation we have given to this provision is therefore in accord with our reading of its objective purpose. Indeed, the framers’ commitment to probity and accountability as a value of the Constitution is reflected in one of the Preambles to the Constitution, which reads as follows:  “AND IN SOLEMN declaration and affirmation of our commitment to: Freedom, Justice, Probity and Accountability;…”. On the other hand, the framers could not have intended the obvious and foreseeable paralysis from overload in Parliament that would ensue from interpreting the provision as covering every single business or economic transaction with an international dimension.  The implication into article 181(5) of the attribute of being “major” before a transaction enters into its ambit would thus seem to us to be necessary and reasonable and within the spirit of the provision.  </p> <p>Because of the practical consequences of determining that a transaction comes within the scope of article 181(5), an interpretation of the provision needs to result in practical guidance to the Executive, Parliament and parties to transactions with government to enable them to apply the constitutional vision of the framers.  It is therefore imperative that Parliament takes up early the challenge of framing the modifications to article 181 needed to give greater certainty and clarity as to what categories of international business or economic transactions to which the Government is a party come within the ambit of article 181(5).  In the interim, a certification by the Attorney-General that an international business transaction to which the Government is a party is “major” or not should be accorded great weight by the courts, although it cannot be conclusive.  We are here, of course, referring to the Attorney-General’s certification before a dispute has arisen between the Government and any party.</p> <p>The formulation of this criterion of the implicit need for an international business agreement to be “major” before it comes within the ambit of article 181(5) goes some way to resolving what the plaintiff referred to in his Statement of Case as penumbra cases.  In real life, there will be difficult borderline cases whose status within or outside article 181(5) will need to be determined.</p> <p>Apart from implying the attribute “major”, as outlined above, this Court needs to interpret “international” in the context of article 181(5) appropriately in order to deal with issues such the <em>reductio ad absurdum</em> hypotheticals posed by the defendants above.  What then is the meaning of “international” in this context?  We think that a business transaction is “international” within the context of article 181(5) where the nature of the business which is the subject-matter of the transaction is international in the sense of having a significant foreign element or the parties to the transaction (other than the Government) have a foreign nationality or reside in different countries or, in the case of companies, the place of their central management and control is outside Ghana.</p> <p>The word “significant” is used in the above definition to denote the fact that the foreign elements or contacts that lead to a judgment of internationality in relation to a transaction have to be subjected to a qualitative assessment before reaching that judgment.  The significance is in relation to the purpose of article 181(5).  Thus, for instance, the example given in the defendant’s Statement of Case “ that every contract that the Government enters into for the supply of vehicles is an “international economic or business transaction” because “it is a notorious fact that nearly all the cars plying our roads are imported” would not necessarily be correct because the fact only of the importation of the vehicles would not be significant enough in relation to the purpose of article 181(5) to justify the transaction being characterized as an international business transaction.  The sale of cars domestically to the government would not be an international trade transaction, in spite of the incidental fact that the cars sold were imported.  The fact of their importation, when qualitatively assessed by a court, may well result in a decision by the court that their importation is not a significant foreign element in the transaction in question.  This qualitative assessment is important in separating business transactions which are international within the meaning of article 181(5) from those that are not.  The defendants’ hypotheticals are only a sample of many other transactions which could  literally be brought under the semantic umbrella of an “international business transaction”, but which should not be so construed for the purposes of article 181(5).  Examples would be documentary letters of credit and contracts for the international sale of ordinary goods or for the carriage of goods by sea.  In our view, the framers did not have in their contemplation, subjectively or objectively, transactions of this nature:  that is, transactions of ordinary commerce.</p> <p>As to the meaning of business, we are willing to accept the defendants’ interpretation of it that “where a transaction is commercial in nature, or pertains to or impacts on the wealth and resources of the country, it would be a “business or economic transaction” and a subject of interest in any examination of Article 181(5).”</p> <p>The conceptual discussion thus far as to what international business or economic transactions come within the ambit of article 181(5) has been without prejudice to a determination, on the actual facts of the present case, of whether or not the PPA in issue here was required to be submitted to Parliament.  Our next task, therefore, is to examine some of the specificities of the PPA in order to decide whether it is an international business or economic agreement to which the Government is a party within the meaning of article 181(5).  Our general impression, upon reading the submissions of the parties, is that the overall transaction involved here was a foreign investment by a US investor in a power generation project to supply power to the Ghana Government and that the Government was a party to this transaction. We are viewing the transaction in the round, without resorting technically to the piercing of the corporate veil doctrine.  We interpret “transaction” in this context as meaning a series of agreements or acts united by their purpose of attaining the project objective of the parties to it. We will now set out the circumstances which support this impression and whether a transaction of this nature comes within the ambit of article 181(5).</p> <p>The PPA between the Government and the first defendant was the result of negotiations between a foreign investor (the third defendant acting on behalf of owner of the second defendant) and the Government.  This is a significant foreign element in the transaction.  Secondly, the first defendant, though a Ghanaian company, is wholly-owned by a foreign entity, incorporated in the United Kingdom.  Thirdly, the managing director of the first defendant is a foreigner, the third defendant, and control of the management of the first defendant is in foreign hands.  Fourthly, the PPA contains a clause providing for international commercial arbitration.  Lastly, there were other clauses in the PPA which are usually associated with foreign investment transactions, such as the waiver of sovereign immunity clause and the following clause set out in the plaintiff’s Statement of Case:</p> <p>“29.2  GOG represents and warrants that:</p> <p>‘(g)  No Taxes.  There is no Tax other than stamp duty at a nominal rate imposed on or in connection with:</p> <ol><li>the execution, delivery or performance of this Agreement;</li> <li>the enforcement of any of this Agreement; or</li> <li>  on any payment to be made to the BEC under this Agreement.  In connection with Letters of Credit, no Government Authority shall impose any reserve, special deposit, deposit insurance or assessment affecting BEC.</li> </ol><p>No Foreign Exchange Controls.  There are no foreign exchange or other restrictions in effect in the Republic of Ghana adversely affecting the ability or right of GoG to acquire and to remit to BEC foreign currency to pay and satisfy GoG’s obligations under this agreement.”</p> <p> </p> <p>All these circumstances cumulatively lead us to the conclusion that the answer to the first question referred to this Court is that the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution.</p> <p>On  the other hand, the answer to the second issue referred is that the arbitration provisions contained in clause 22.2 of the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited does not constitute an international business transaction within the meaning of Article 181(5) of the Constitution.  This is because applying the interpretation of article 181(5) arrived at above, it is clear that the international arbitration provision cannot, in and of itself, constitute an international business or economic transaction.  An international commercial arbitration is not by itself an autonomous transaction commercial in nature which pertains to or impacts on the wealth and resources of the country.  An international commercial arbitration draws its life from the transaction whose dispute-resolution it deals with.  We therefore have difficulty in conceiving of it as a transaction separate and independent from the transaction that has generated the dispute it is required to resolve.</p> <p>The case is accordingly remitted to the High Court for this Court’s interpretation of article 181(5) of the 1992 Constitution to be applied in the proceedings before it.</p> <p>We would like to end this opinion by repeating our request to Parliament to enact a Bill indicating what modifications it wishes to make to article 181(5) of the Constitution.  This step would bring greater certainty and clarity to the law.</p> <p> </p> <p> </p> <p><strong>                                        (SGD)         DR.  S.  K.  DATE-BAH</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong>                                         (SGD)        W.  A.  ATUGUBA</strong></p> <p><strong>                                                            ACTING CHIEF JUSTICE </strong></p> <p> </p> <p><strong>                                           (SGD)      J.  ANSAH</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COUR</strong></p> <p> </p> <p><strong>                                     (SGD)        S.  O.  A.  ADINYIRA (MRS)</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong>                                          (SGD)      ANIN  YEBOAH</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong>                                        (SGD)        N.   S.   GBADEGBE</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong>                                         (SGD)        V.  AKOTO – BAMFO [MRS.]</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COURT</strong></p> <p><strong>COUNSEL:</strong></p> <p><strong>HON. BENJAMIN  KUMBUOR, ATTORNEY-GENERAL ( WITH HIM MRS. GRACE EWOOL ) FOR THE PLAINTIFF </strong></p> <p><strong>ACE ANKOMAH FOR THE DEFENDANTS.</strong></p> <p><strong>NANA ATO DADZIE AS AMICUS CURIAE.</strong></p> <p> </p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-35f545a03e67e03b3fb20ee80f946e52b0e1fe1ca33d0acf61cdb20249b6cf1a"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p>            <strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE SUPREME COURT OF GHANA</strong></p> <p><strong>ACCRA AD. 2012</strong></p> <p> </p> <p> </p> <p><strong>CORAM:  ATUGUBA AG. CJ (PRESIDING)</strong></p> <p><strong>DR. DATE-BAH, JSC </strong></p> <p><strong>ANSAH, JSC</strong></p> <p><strong>ADINYIRA (MRS), JSC </strong></p> <p><strong>YEBOAH,JSC</strong></p> <p><strong>GBADEGBE,JSC</strong></p> <p><strong>BAMFO,(MRS) JSC</strong></p> <p> </p> <p>                                   </p> <p> </p> <p><strong>THE ATTORNEY GENERAL                                PLAINTIFF                                                  </strong></p> <p><strong>               VRS.</strong></p> <p><strong>1. BALKAN ENERGY GHANA LTD                                    </strong></p> <p><strong>2. BALKAN ENERGY LLC                    </strong></p> <p><strong>3. MR. PHILIP DAVID ELDERS                                DEFENDANTS</strong></p> <p>          </p> <p> </p> <p> </p> <p><strong>J U D G M E N T</strong></p> <p><strong>OPINION ON A REFERENCE </strong></p> <p> </p> <p><strong>DR. DATE-BAH JSC:</strong></p> <p>The task of this Court in this case is to interpret the phrase or term “international business or economic transaction to which the Government is a party” as it is used in article 181(5) of the 1992 Constitution.  The responsibility to interpret this phrase has arisen as a result of this Court deciding to refer to itself constitutional issues that had arisen in proceedings before the High Court (Commercial Division).  The learned High Court judge refused an application from the plaintiff to refer the said constitutional issues to this court.  The plaintiff accordingly invoked our supervisory jurisdiction to quash the decision of the learned High Court judge not to refer the issues to this Court.  This Court, in a unanimous ruling delivered on 2nd November, 2011, quashed the decision of the High Court judge not to refer the constitutional issues.  To avoid a multiplicity of suits and to save time, this Court decided to exercise the powers of the High Court, which it has under Article 129(4) of the Constitution, to refer the following questions to this Court:</p> <ol><li>“Whether or not the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution.</li> <li> Whether or not the arbitration provisions contained in clause 22.2 of the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution”.</li> </ol><p>The reference itself is, of course, made under article 130(2) of the Constitution.  Article 130 provides as follows:</p> <p>“(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in -</p> <p>(a) all matters relating to the enforcement or interpretation of this Constitution; and</p> <p>(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.</p> <p>(2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.”</p> <p>Article 181 of the Constitution, within which the phrase to be interpreted is located, reads in part, as follows:-</p> <p>“(1)     Parliament may, by a resolution supported by the votes of a majority of all the members of Parliament, authorise the Government to enter into an agreement for the granting of a loan out of any public fund or public account.</p> <p>(2)       An agreement entered into under clause (1) of this article shall be laid before Parliament and shall not come into operation unless it is approved by a resolution of Parliament.</p> <p>(3)       No loan shall be raised by the Government on behalf of itself or any other public institution or authority otherwise than by or under the authority of an Act of Parliament.</p> <p>(4)       ....</p> <p>(5)       This article, shall with the necessary modifications by Parliament apply to an international business or economic transaction to which the Government is a party as it applies to a loan....”</p> <p> </p> <p><strong>The Facts</strong></p> <p>The factual context within which the Court’s task of interpretation is to be carried out is as follows:  the third defendant, Mr. Phillip David Elders, a businessman resident in Texas, USA, identified a business opportunity in Ghana and persuaded the owner of the second defendant to invest in it.  The business opportunity was as follows: the Government of Ghana wanted to generate electricity urgently from a power barge located in its Western Region.  The barge needed rehabilitation and the Government wanted to negotiate with a private investor to achieve this and bring its generating capacity urgently on stream.  With a view to achieving this, Balkan Energy LLC, the second defendant, entered into a Memorandum of Understanding (“MOU”) with the Government of Ghana on 16th May 2007.  Because of advice that was given to the third defendant relating to the statutory licensing requirements in Ghana for power generation, the investors in the business opportunity decided to incorporate the first defendant in Ghana and to make it the party to a Power Purchase Agreement, the interpretation of a provision in which constitutes the subject matter of the reference to this Court.  Accordingly, on 27th July 2007, Balkan Energy (Ghana) Limited, the first defendant, which had been incorporated in Ghana 11 days previously, entered into a Power Purchase Agreement (“PPA”) with the Government of Ghana.  Subsequently, a dispute arose between the parties to this PPA.  The Government of Ghana claimed that the second and third defendants had misrepresented to it that they could make the power barge operational within 90 working days and that it was on the basis of this misrepresentation that it had entered into the MOU and the PPA.  However, this had not happened.</p> <p>The dispute led to the first defendant initiating, by a Notice of Arbitration dated 23rd December 2010, arbitration proceedings against the Government of Ghana under the auspices of the Permanent Court of Arbitration at the Hague, the Netherlands.  At these proceedings, the Ghana Government raised the point that the PPA needed Parliamentary approval under article 181(5) of the 1992 Constitution, but that this approval had not been sought and therefore the PPA was invalid, as having been executed in breach of a constitutional provision.  The Government of Ghana argued before the arbitration tribunal that non-compliance with the constitutional provision made the PPA invalid, including its arbitration clause, and consequently the arbitral tribunal had no jurisdiction over the dispute before it.  However, the arbitral tribunal held that it had jurisdiction, but expressed a willingness to take account of this Court’s interpretation of the constitutional provision in question.</p> <p>The Attorney-General, the principal legal adviser to the Government of Ghana and the nominal party expected to represent the State in litigation before the Ghanaian courts, in June 2010, issued a Writ of Summons in the Commercial Division of the High Court, Accra, claiming a declaration that the PPA is an international business transaction that needed Parliamentary approval and was unenforceable because it did not have such approval.  The plaintiff also claimed that the arbitration agreement contained in clause 22.2 of the PPA was an international business transaction and was also in breach of article 181(5) and therefore unenforceable.</p> <p>After the institution of the suit, the plaintiff applied to the High Court to refer to this Court for interpretation the two questions already set out in this Opinion, which for ease of reference are repeated below:</p> <ol><li>“Whether or not the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution.</li> <li> Whether or not the arbitration provisions contained in clause 22.2 of the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution.”</li> </ol><p>When the High Court refused to do so, the plaintiff applied to this Court to exercise its supervisory jurisdiction over the High Court to quash the decision of the High Court.  As already indicated in this Opinion, this Court in its Ruling of 2nd November, 2011 did indeed quash the decision of the learned High Court judge and referred the two questions set out above to this court.  Furthermore, before the oral argument on the two questions before this Court, the Court requested counsel for the parties to address in their Statements of Case the following issues which are relevant for the determination of the two principal questions posed above:</p> <ol><li>The definition of an international business transaction within the meaning and context of Article 181(5) of the Constitution</li> <li>Can a Government of Ghana contract with a Ghanaian legal person or entity ever be an international business transaction?</li> <li>If so, how are we to distinguish an international business transaction of a Ghanaian legal person from its other contracts with the Government of Ghana?  Are you able to formulate any clear indices or criteria?</li> </ol><p>         </p> <p>In determining these issues, we have been greatly assisted by the painstaking Statements of Case filed by the Plaintiff and the Defendants.  On the 1st March 2012, Zenith Bank Ltd applied to this Court to be joined to this suit as an interested party.  Although its application was dismissed, it was granted leave to file an <em>amicus curiae</em> Statement of Case, which it duly filed on 9th March, 2012.  This Statement of Case is largely an endorsement of the Defendants’ Statement of Case.</p> <p> </p> <p><strong>The Plaintiff’s arguments</strong></p> <p> </p> <p>The plaintiff contends that two main criteria may be used, either alone or in conjunction, to define the term “international”, in the context of an international business or economic transaction.  The first criterion relies on the <em>nature of the business or economic transaction</em>.  On the other hand, the second focuses attention on the <em>parties</em>:  what is their nationality or habitual place of residence or, in the case of a corporate entity, the seat of its central control and management.</p> <p><em>International nature of the business or economic transaction</em></p> <p>The plaintiff cites, by way of analogy, practice in the field of international arbitration by which the nature of the dispute between the parties has been used to decide whether the mechanism for its resolution can be described as an international arbitration.  The plaintiff points out that the International Chamber of Commerce (“ICC”), which established its Court of Arbitration in Paris in 1923, was quick to adopt the <em>nature of the dispute</em> as its criterion for deciding whether or not a commercial arbitration was an international arbitration under its rules.  He draws attention to the fact that since 1927 the ICC rules have defined international arbitration to encompass disputes which contain a foreign element, even if the parties are citizens of the same country.  He cites ICC Rules, Article 1.1 which defines the function of the Court of Arbitration of the ICC as being “to provide for the settlement by arbitration of business disputes of an international character in accordance with these Rules.”  In para. 22 of his Statement of Case, the plaintiff states, in relation to the ICC, that:</p> <p>“It is prepared to give a wide interpretation to the term “international” so as to encompass arbitrations involving any foreign element.  If, for example, the subsidiary of a foreign company doing business in a state was incorporated in that state (as would often be the case) any arbitration between the company and the state concerned would be classified as international under the ICC Rules.”</p> <p><em>Nationality of the parties as indicative of the international nature of the business or economic transaction</em></p> <p>As already mentioned, the second alternative criterion proposed by the plaintiff is that which focuses on the parties.  He illustrates this approach by citing the European Convention on International Commercial Arbitration of 1961, which states its scope as follows (in Article I):</p> <p>“This Convention shall apply:</p> <ol><li>To arbitration agreements concluded for the purpose of settling disputes arising from international trade between physical or legal persons having, when concluding the agreement, their habitual place of residence or their seat in different Contracting States;</li> <li>To arbitral procedures and awards based on agreements referred to in 1(a) above.”</li> </ol><p>He further illustrates the “parties” approach by reference to the statutory scheme embodied in the English Arbitration Act, 1996.  He quotes a summary of this scheme from Redfern &amp; Hunter, The Law and Practice of International Commercial Arbitration (1986) as follows:</p> <p>“A domestic arbitration agreement is an agreement which does not provide, expressly or by implication, for arbitration outside the U.K. and to which there was no foreign party at the time when the agreement was made.  A foreign party in this sense is an individual who is a national of, or habitually resident in, any state other than the U.K.; or a corporate entity incorporated outside the U.K. or whose central control and management is exercised outside the U.K.  It is sometimes suggested that this definition means that, for an arbitration to be domestic, both parties must be of British nationality.  This is not correct.  Nationality is one, albeit important, criterion used in the definition.  However, where an individual Is concerned, that individual’s habitual place of residence is also taken into account.  More importantly, where a corporate entity is concerned, the criterion is not simply its place of registration or incorporation – but that of the place in which its central management and control is exercised.”</p> <p>After praying in aid of his argument, other statutes on arbitration from Singapore and Ghana, the plaintiff concludes his submission as follows:</p> <p>“The Applicant accordingly submits that the foregoing analysis of the nationalities of the parties as indicative of the nature of a domestic or international business or arbitral transaction shows that Ghanaian legal persons are at liberty to enter into either domestic or international business (including arbitral transactions) with the Government of Ghana.  The Applicant has already argued and will contend further in this statement of case that the structure and substance of Article 181(5) of the Constitution does not proscribe such transactions between a Ghanaian legal person and the Government of Ghana.  Furthermore, nothing in the structure, scheme and substance of the Arbitration Act, 1961 or the current Alternative Dispute Resolution Act, 2010 proscribes a Ghanaian  legal person from entering into international business or arbitral transactions with the Government of Ghana.”</p> <p>In his quest to cast light on the meaning of international business transaction, the plaintiff conducts a review of the literature on international business.  He states that international business is an important professional and academic discipline and deals with the special features of business activities that cross national boundaries.  He explains that international business activities may be through foreign direct investments or portfolio investments.</p> <p>Drawing on the materials assembled in his Statement of Case, the plaintiff concludes as follows:</p> <p>“41. We have sought to use the nature of the business or commercial transactions and the nationalities of the parties to business or commercial transactions as criteria for drawing a distinction between international business or commercial or economic transactions and purely domestic business or trade transactions.  This is by no means always a clear-cut distinction in its application as naturally inevitable penumbra cases run into each other and have to be decided upon the peculiar facts of the case.  We have also tried a review of the literature on international business as a field of study to show how international business and economic transactions may be characterized, categorized and formed for purposes of modern international trade as distinct from domestic trade.</p> <p>42.  The foregoing exposition and analysis demonstrates that there are several circumstances in which the Government of Ghana may enter into international business or economic transactions with Ghanaian physical or legal entities.  They also demonstrate that like any natural or physical science or social science phenomenon penumbra cases make it difficult to conclusively formulate in advance any clear indices or criteria for distinguishing penumbra international business transactions from domestic business transactions.”</p> <p> </p> <p>Plaintiff’s response to the first issue referred to this Court</p> <p>The plaintiff next proceeds to apply this understanding, discussed above, to the first issue referred for interpretation.  In doing this, he stresses the fact that the first defendant is a wholly foreign-owned Ghanaian entity whose central control and management is outside Ghana.  In support of this fact, he adduces the following evidence on the record:</p> <ol><li>The first defendant was incorporated only eleven days before the execution of the PPA;</li> <li>The first defendant is wholly owned by Balkan Energy Limited, a company incorporated in the United Kingdom.  Balkan Energy Limited is in turn wholly owned by Syntek West, a company incorporated in the United States of America;</li> <li>Syntek West is wholly owned by Gene Phillips, a national of the United States of America; and</li> <li>The managing-director of Balkan Energy (Ghana) Limited, the first defendant, is Philip David Elders, the 3rd defendant, who is resident in the United States of America.</li> </ol><p>He also identifies certain salient provisions in the PPA which, in his view, demonstrate that it is an international business transaction.  In this connection, he lists the following clauses in the PPA:</p> <ol><li>“2.6  GoG shall promptly facilitate the acquisition of all Government approvals for the duty-free importation and transportation of equipment to the site, and for operating permits, licenses and approvals for the Project, and for visas and work permits for foreign personnel and for full compliance with all local and other regulations and GoG hereby guarantees that BEC shall have the exclusive right to generate electricity from the site subject to meeting the Milestone in Schedule 3.”</li> <li>Clause 12.1 provides that all sums payable to Balkan Energy (Ghana) Limited “shall be payable in US dollars.”</li> <li>Clause 15.4 provides that the Government of Ghana “shall indemnify and hold harmless BEC (and its officers and employees) from and against all damages, losses and reasonable expenses suffered or paid by BEC as a result of any and all claims for the personal injury, death or property damage to third parties ... and resulting from any act or omission of GoG or its agents or employees.”</li> <li>“22.2  If any dispute arises out of or in relation to this Agreement and if such matter cannot be settled through direct discussions of the Parties, the matter shall be referred to binding arbitration at the Permanent Court of Arbitration, Peace Palace, Carnegieplein 2, 2517 KJ in the Hague, The Netherlands.  Unless the Parties to this Agreement agree otherwise, the arbitrator shall not have power to award nor shall he/she award any punitive or consequential damages (however denominated), Each side shall pay its own attorneys fees and costs no matter which side prevails and each Party shall share equally in the cost of any mediation or arbitration.  Applications may be made to such court for judicial recognition of the award and/or an order of enforcement as the case may be.  Arbitration shall be governed by and conducted in accordance with UNCITRAL rules.”</li> <li>“24.  To the extent that GOG may in any jurisdiction claim for itself or its assets or revenues immunity from suit, execution, attachment (whether in aid of execution, before judgment or otherwise) or other process and to the extent that any such jurisdiction there may be attributed to the GOG or its assets or revenue such immunity (whether or not claimed) GOG agrees not to claim and irrevocably waives such immunity to the full extent permitted by the laws of such jurisdiction.”</li> <li>“29.2  GOG represents and warrants that:</li> </ol><p>‘(g)  No Taxes.  There is no Tax other than stamp duty at a nominal rate imposed on or in connection with:</p> <ol><li> the execution, delivery or performance of this Agreement;</li> <li>the enforcement of any of this Agreement; or</li> <li>  on any payment to be made to the BEC under this Agreement.  In connection with Letters of Credit, no Government Authority shall impose any reserve, special deposit, deposit insurance or assessment affecting BEC.</li> </ol><p>No Foreign Exchange Controls.  There are no foreign exchange or other restrictions in effect in the Republic of Ghana adversely affecting the ability or right of GoG to acquire and to remit to BEC foreign currency to pay and satisfy GoG’s obligations under this agreement.”</p> <p> </p> <p>Whilst the plaintiff notes that in <em>Attorney-General v Faroe Atlantic Co. Ltd.</em> [2005-2006] SCGLR 271 this Court interpreted an international business or economic transaction to include a business transaction between the Government of Ghana and a company incorporated abroad, he contends that there is no provision in the Constitution which proscribes Ghanaian companies from entering into international business or economic transactions with the Government of Ghana.  He therefore concludes that on the facts of this case the PPA is an international business transaction.  He supports his conclusion with the following argument, in paragraphs  57 and 58 of his Statement of Case:</p> <p>“57.    It is further submitted that it cannot be the case that the only factor that must be taken into account in determining whether or not a particular business or economic transaction to which the Government is party is international is the place of incorporation of the counterparty.  It is submitted that the transaction as a whole and its characteristics must be looked at in making this determination.  Characteristics that expose the Government to obligations or liabilities in other jurisdictions or subject to the laws of other jurisdictions give a transaction its internationality and must be taken into account.  These characteristics are gleaned from the provisions of the agreement between the parties and include the provisions already referred to in these submissions as the salient provisions of the PPA which demonstrate at face value that the PPA is a non-domestic business transaction.  These features include those provisions that require contact by the Government and its assets with other jurisdictions (such as the choice of forum).</p> <p>58.      It is also submitted that the nationality of the counterparty and its sponsors are relevant.  To require Parliamentary approval in respect of a company incorporated outside Ghana but not to require it where the company merely incorporates an entity in Ghana effectively for form’s sake is, with respect, to subvert the constitutional provision and its substantive objective of promoting checks and balances between the executive and the legislature in relation to the substance of certain types of transactions.”</p> <p>Moreover, the plaintiff points out that there are a few English cases which establish that the nationality of a company is not determined necessarily or solely by the place of incorporation of the company, citing <em>Daimler Co. Ltd. V Continental Tyre and Rubber Co. (Great Britain) Ltd.</em> [1916] 2 AC 307, <em>R v LCC, ex p. London and Provincial Electric Theatres Ltd. </em>[1915] 2 KB 466 and <em>Re F.G. (Films) Ltd.</em> [1953] 1 All ER 615.  He also cites the dictum of Akuffo JSC in <em>Morkor v Kuma (No. 1)</em> [1999-2000] 1 GLR 721 at 733 where she says:</p> <p>“Notwithstanding the effect of a company’s incorporation, in some cases the court will ‘pierce the corporate veil’ in order to enable it to do justice by treating a particular company, for the purpose of the litigation before it, as identical with the person or persons who control it.  This will be done not only where there is fraud or improper conduct, but in all cases where the character of the company, or the nature of the persons who control it is a relevant feature.  In such cases the court will go behind the mere status of the company as a separate legal entity distinct from its shareholders, and will consider who are the persons, as shareholders or even as agents, directing and controlling the activities of the company.”</p> <p>The plaintiff accordingly urges that in the light of the facts that the first defendant is wholly-owned by a foreign entity; formed at the direction of that foreign entity for the purpose of entering into a contract with the Government; managed by the same officers as manage its foreign parent; and the contract was to be performed by foreign contractors retained by the company, rather than by domestic employees or contractors, this is a case where the formal separate legal personality of the first defendant is rendered insignificant and irrelevant.</p> <p>The plaintiff concludes his submission on the first issue referred to this court by summarizing the factors which make the PPA an international business transaction.  He lists these as:</p> <ol><li>The purported place of incorporation and residence of the project sponsor, Balkan Energy LLC</li> <li>The place of incorporation, ownership and residence of the sole shareholder of the Ghana company</li> <li>The management, ownership and control of the first defendant</li> <li>Fees payable to the first defendant under the PPA are required to be paid in foreign currency and therefore bound to be a charge on Ghana’s foreign currency receipts</li> <li>The indemnity provisions of the PPA potentially apply to foreign persons</li> <li>The relevance of the Ghana-UK Bilateral Investment Treaty by virtue of who is the sole shareholder of the 1st Interested Party</li> <li>The provisions of the PPA regarding international arbitration and waiver of jurisdiction.</li> </ol><p>The plaintiff’s conclusion is thus that:</p> <p>“If all the above factors can be disregarded simply by incorporating a company in Ghana, article 181(5) would be rendered practically nugatory.  The better interpretation is that the mere fact that the legal entity with whom the Government has entered into a transaction is incorporated in Ghana does not, by itself, mean that the transaction is not an international business one within the meaning of article 181(5).  The constitution of the parties, the provisions of the transaction and its elements must all be looked at in determining whether or not the transaction is an international business one.”</p> <p> </p> <p>Plaintiff’s response to the second issue referred to this court</p> <p>The plaintiff contends that the arbitration agreement contained in the PPA constitutes an international business transaction within the meaning of article 181(5) of the Constitution.  Because there are authorities which hold that an arbitration agreement is separate, distinct and severable from the agreement in which it is embodied, except where the primary contract is null and void <em>ab initio</em>, the plaintiff finds it necessary to argue that in addition to, and regardless of the PPA as a whole, the agreement to go to international arbitration which is contained in clause 22.2 of the PPA itself constitutes an international business agreement which requires Parliamentary approval.  This is thus the plaintiff’s answer to the second issue referred to this Court for authoritative interpretation.</p> <p>Obviously the plaintiff’s general discussion, already set out above, on what constitutes an international business or economic transaction applies to this second issue as well.  Regarding the unconstitutionality of the arbitration clause, the plaintiff makes the following argument in paragraph 18 of his Statement of Case:</p> <p>“The question of a possible breach of article 181(5) of the Constitution was raised after the Balkan Group had submitted this dispute to arbitration on 23 December 2009 pursuant to the arbitration clause contained in the PPA.  This is a fundamental constitutional question because should this Court hold that the PPA to which the Government of Ghana was a party is an international business or economic transaction which was never operative because it had not been laid before and approved by Parliament the consequence will be that the whole transaction between the parties was null and void ab initio in accordance with article 1(2) of the Constitution.  The further consequence which will usually flow as a matter of course from an unconstitutional PPA is that the arbitration clause contained in such a null and void ab initio agreement could never have also become operative and grounded a cause of action in an international arbitration expressly stated to be governed by the laws of Ghana (See <em>Heyman v Darwins Ltd.</em> [1942] AC 356 at 370-371; and Article II(3) of the New York Convention).  This position is consistent with the decision of this Court in <em>Attorney-General v Faroe Atlantic Co. Ltd. </em>[2005-6] SCGLR 271 in which this Court, not only declared the PPA as null, void and without effect, but also ordered the foreign company to refund the monies it had been unconstitutionally paid pursuant to that contract.  It would appear absurd if an international arbitral tribunal could thereafter have assumed jurisdiction, adjudicated an alleged dispute and made a binding award based on Ghanaian law.  As the Applicant’s application for judicial review already indicated, the 1st Interested Party <em>(sic, but more correctly the first defendant)</em> has commenced international commercial arbitral proceedings against the Applicant and the arbitral tribunal has purported to assume jurisdiction while expressing a willingness to take account of the authoritative determination of this Court should the decision be made before it concludes its work.  It is in this context that the second question posed for this reference becomes relevant to deal with the assumption of jurisdiction by the arbitral tribunal which, in our submission, is based upon the erroneous premise that a PPA declared by this Court to be null and void ab initio in terms of Articles 1(2) and 181(5) of the Constiution can still be survived by the arbitration clause contained therein to ground jurisdiction in an arbitral tribunal to decide upon its jurisdiction and settle a dispute.”</p> <p>This extended quotation from the plaintiff’s Statement of Case explains why the second issue is before this Court for interpretation.</p> <p> </p> <p><strong>The defendants’ arguments</strong></p> <p>To the excellent submissions made by the Honourable Attorney-General in his Statement of Case, the defendants also filed a well-argued and detailed riposte in their Statement of Case.  The first point that the defendants make is to question whether article 181(5) requires Parliamentary approval of international business or economic transactions to which the Government is a party.  They argue that the text of article 181(5) needs to be interpreted to establish whether the “necessary modifications” referred to in it are a condition precedent to the effectiveness of the article.  They suggest that, without those modifications, article 181(5) does not come into effect or has effect only to the extent that it authorizes Parliament to undertake the required modification.  They urge, in paragraph 33 of their Statement of Case, that:</p> <p>“My Lords, it would appear that even a consideration as to what amounts to “an international business or economic transaction” would fall within Parliament’s legislative determination under Article 181(5).  It would also appear to be within Parliament’s constitutional remit to decide how and by which procedure such agreements would be authorized and/or approved, and whether some of such agreements would not require any parliamentary action at all.”</p> <p>In <em>Attorney-General v Faroe Atlantic Co. Ltd. </em>[2005-6] SCGLR 271, Date-Bah JSC  said (at p. 297):</p> <p>“Even though clause 5 of article 181 enjoins Parliament to make the necessary modifications to article 181, I do not interpret clause 5 as rendering that clause ineffective until the Parliamentary modifications to article 181 have been made.  Such statutory modifications are, to my mind, intended to assist the clarity of clause 5 in the context of article 181, but the clause has effect even before Parliament carries out its task.”</p> <p> </p> <p>The defendants take note of this interpretation, but nevertheless raise the following issues in their paragraph 34:</p> <p> </p> <p>“Some questions that are unanswered are as follows: (i) what is that effect? And (ii) do the different procedures in Article 181(1)-(2) on the one hand and Article 181(3)-(4) on the other hand apply automatically to all <em>international business or economic transactions</em> in the absence of the <em>necessary modifications </em>by Parliament, or will only apply after Parliament has made the authorised modifications?”</p> <p>The defendants then go on to propose a 3-stage test for determining whether article 181(5) applies.  They say (at paragraph 37):</p> <p>“Be that as it may, My Lords, we respectfully propose the following 3-stage test with respect to the application of Article 181(5):</p> <ol><li>Is the activity or venture a “transaction” to which the Government is a party?</li> <li>If so, is it “business or economic” in nature?</li> <li>If so, is it “international” in nature?”</li> </ol><p>They maintain that it is only if all three questions are answered in the affirmative that Article 181(5) would apply.</p> <p>In relation to what is a transaction, the defendants note that the word “transaction” is not defined in the Constitution.  They refer to the definition in Black’s Law Dictionary (4th Ed.) of transaction as an “act of transacting or conducting any business; negotiation; management; proceeding; that which is done; an affair.”  They also quote that same Dictionary as referring to “something which has taken place whereby a cause of action has arisen.  It must therefore consist of an act or agreement, or several acts or agreements, or several acts or agreements having some connection with each other, in which more than one person is concerned, and by which the legal relations of such persons between themselves is altered.”  The defendants state that parties to a transaction may choose to reduce their agreements into a contract and insert an “Entire Agreement” clause into the contract so that the contract and its terms would constitute the relevant transaction between the parties.  They point out that the PPA has in its article 27 such an “Entire Agreement” clause in the following terms:</p> <p>“This Agreement, including the Schedules hereto contains all the understandings and agreements of whatsoever kind and nature with respect to the subject matter of this Agreement and the rights, interests, understandings, agreements and obligations of the parties relating thereto …All prior written or oral undertakings, offers or other communications of every kind concerning the subject matter hereof are hereby abrogated and withdrawn and shall not affect or modify any of the terms or obligations set forth in this Agreement.”</p> <p>The defendants, therefore, contend, based on the considerations set out above, that the relevant “transactions” to be construed are those contained in the PPA.  They stress that article 181(5) makes it clear that its provisions apply only to a transaction to which the Government is a party.  They argue, accordingly, that once the Government is not a party or privy to any other agreements, understandings or arrangement that the other party to the transaction may enter into with any other persons, the nature of those other agreements, understandings or arrangements will not affect the nature of the original transaction to which the Government is a party.</p> <p>As to what is a business or economic transaction, the defendants again note that neither “business” nor “economic” is defined in the Constitution.  They refer to the definition of “business” in Black’s Law Dictionary as:  “A commercial enterprise carried out for profit, a particular occupation or employment habitually engaged in for livelihood or gain” and to its definition in the Chambers English Dictionary as:  ”dealings, commercial activity: a commercial or industrial concern.”  They further state that though Black’s Law Dictionary does not directly define the term “economic”, its various uses of the term indicate that it refers to “the management or administration of the wealth and resources of a community, city, state, or country.”  Similarly, they report that the Chambers English Dictionary says an activity is “economic” if it relates or pertains  to the management of a household; the administration of the material resources of an individual, community, or country.”  The defendants therefore conclude in paragraph 49 of their Statement of Case that:</p> <p>“Therefore, where a transaction is commercial in nature, or pertains to or impacts on the wealth and resources of the country, it would be a “business or economic transaction” and a subject of interest in any examination of Article 181(5).”</p> <p>The defendants also analyse the meaning of “international” in the provision under discussion.  Again, they note that the Constitution does not define the word.  They point out, however, that the word is used in contradistinction to the word “national” in Articles 21(1)(e), 36(9) and 37(5) and that it is used to describe the relationship between Ghana and other nations in Articles 40 and 73.  They then examine provisions in the 1980 United Nations Convention on Contracts for the International Sale of Goods, the 1956 Convention on the Contract for the International Carriage of Goods by Road, the 1944 Convention on International Civil Aviation and the 1929 Convention for the Unification of Certain Rules Relating to International Carriage by Air from which they conclude that a transaction may be considered international if:</p> <ol><li>It is between two or more countries;</li> <li>Involves parties who are nationals of or resident in two different countries, and/or</li> <li>It involves crossing national borders.</li> </ol><p>They then submit that the transaction between the Government and the first defendant does not meet any of the criteria listed above and is therefore not international.</p> <p>The defendants oppose the plaintiff’s argument that this Court should lift the veil of the first defendant’s incorporation in Ghana.  They cite the words of Sanborn J in <em>United States v Milwaukee Refrigerator Transit Co. </em>142 Fed. 247, 225 that:</p> <p>“If any general rule can be laid down, in the present state of authority, it is that a corporation will be looked upon as a legal entity as a general rule, until sufficient reason to the contrary appears:  but, when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons.”</p> <p>The defendants rely on this statement of the law to contend that the concept of the lifting of the veil of incorporation is applied by the courts only where the facts proved show some misuse of the corporate entity, or there is the need to lift the veil in order to do justice.  They also cite the Ghanaian case relied on by the plaintiff in this connection, namely, <em>Morkor v Kumah (No. 1) </em>[1999-2000] 1 GLR 721.</p> <p>The defendants contend that the plaintiff has not been able to show any illegal, fraudulent or unfair purpose for the incorporation of the first defendant.  Accordingly, the concept of lifting the veil of incorporation should not be applied to it.  In paragraph 64 of their Statement of Case, the defendants make the following submission:</p> <p>“Our humble submission is that incorporating the 1st Defendant as a private limited liability company just before the execution of the PPA was in compliance with the Energy Commission Act.  The incorporation was an act of obedience to Ghana law, not some last minute device to evade parliamentary approval, as the Plaintiff which was an active party to all the events leading up to the execution of the PPA (and with full actual knowledge of all the surrounding circumstances), belatedly and erroneously seeks to suggest.  The only way to lawfully implement the provisions of the anticipated transaction was to incorporate a company in Ghana.”</p> <p>The defendants go on to assert that for the plaintiff to succeed in persuading this court to disregard the obvious residence of the first defendant in Ghana, the onus rests upon it to prove in which way the real business of the first defendant is carried on outside Ghana.  They insist that there is no evidence that the real business and central management and control of the first defendant is anywhere else but in Ghana.</p> <p>In relation to the third criterion for testing internationality set out above, the defendants point out that a complete and careful review of the PPA demonstrates that the transaction does not cross any national border.  They say (in paragraph 79):</p> <p>“My Lords, that is why out of the 34 clauses of, and 11 Schedules to, the PPA (involving numerous aspects of the transaction), as well as the Lease Agreement “Attachment”, the Plaintiff embarks on a selective exercise in ‘hunting and pecking’ at the PPA, and then contends that this Honourable Court should consider only one clause and five other sub-clauses of the entire PPA (namely 2.6, 12.1, 15.4, 22.2, 24 and 29.2(g)), and hold that on these bases, the PPA is an international transaction.  In effect the Plaintiff is urging your Lordships to decide that the PPA  is an international transaction by ignoring every other clause in the PPA, but these that it has identified.  Yet the Plaintiff simply cites these clauses without demonstrating in what way or manner these involve the crossing of national borders, thereby making the PPA an international transaction. ..”</p> <p>Finally, the defendants respond to the plaintiff’s argument that the arbitration agreement between the parties contained in clause 22.2 is, in and of itself, an international business or economic transaction which requires Parliamentary approval under article 181(5).  Their position, expressed in paragraph 93 of their Statement of Case, is that:</p> <p>“Our respectful submission in response is that even if this Honourable Court was to hold that the arbitration agreement was ‘international’ in nature, the agreement is not a “business or economic transaction”.  This takes it out of the scope and bounds of Article 181(5).”</p> <p>The defendants pray in aid of their position the definitions of “arbitration” and “arbitration agreement” respectively, contained in section 135 of the Alternative Dispute Resolution Act, 2010 (Act 798), which are as follows:  “the voluntary submission of a dispute to one or more impartial persons for a final or binding determination of a dispute” and “an agreement to submit to arbitration present or future dispute.”  They also refer to the definition of “arbitration” in Halsbury’s Laws of England, 4th Edition, Re-issue (1991) at paragraph 601 in the following terms:</p> <p>“the process by which a dispute or difference between two or more parties as to their mutual legal rights and liabilities is referred to and determined judicially and with binding effect by the application of law by one or more persons (the arbitral tribunal) instead of by a court of law.”</p> <p>They submit that it is quite clear from these definitions that an arbitration agreement is nothing more than parties to an agreement determining beforehand how their disputes arising from that agreement are to be settled by some quasi-judicial or administrative process.  Thus the process of arbitration does not of itself encompass any business or economic dealings. The defendants further argue that because an arbitration agreement is autonomous, separate and severable from the main contract in which it is embodied, it does not derive its nature from the main contract.  Accordingly, even if the PPA were held to be an international business transaction, that would not, in the view of the defendants, define the nature of the arbitration agreement under clause 22.2 as an international business transaction.</p> <p>Thus the excellent arguments of the Attorney – General (Honourable Martin Amidu at the time of the argument) are countered by equally outstanding and carefully considered submissions by the defendants.  The court’s deliberations have been much facilitated by the thoughtful submissions made by both sides to this suit.</p> <p><strong>The arguments of the <em>amicus curiae</em></strong></p> <p>In addition to the arguments of the parties summarized above, a Statement of Case was filed on behalf of Zenith Bank (Ghana) Ltd.  The bank had applied to be joined to the suit as an interested party, but this court dismissed the application, but rather granted it leave to file a Statement of Case, as an <em>amicus curiae.</em>  The <em>amicus curiae</em> indicated in its Statement of Case that it associated itself with the submissions made in the Statement of Case of the Defendants. It asserted that it was strange to suggest that any economic or business transaction ordinarily entered into by a Ghanaian legal person or entity could be considered or treated as an international business transaction.</p> <p>The averment of the <em>amicus</em> <em>curiae</em> was that after<em> a</em>n irrevocable letter of credit had been issued to the first defendant by the Bank of Ghana and this had been accepted by the <em>amicus curiae</em> as collateral for a loan transaction with the first defendant, the Bank of Ghana had declined to honour the letter of credit because of the dispute between the Government and the first defendant on the validity of the PPA.  It accordingly threw its weight behind the case of the defendants.</p> <p> </p> <p> </p> <p><strong>Our Interpretation</strong></p> <p>The phrase “international business or economic transaction to which the Government is a party”, if purposively construed, should not lead necessarily to the result that only agreements between entities resident abroad and the Ghana Government can be embraced within the meaning of the term.  Given the complexity of contemporary international business transactions, there will be transactions of such a clear international nature that they should come within any reasonable definition of an international business transaction, but which may have been concluded with the Ghana Government by an entity resident in Ghana.  In such a situation, our view is that the substance, rather than the form, should prevail.  What we have just said begs the question of what “international” means.  In this connection, we think that there is the need to combine both the <em>nature of the business or economic transaction </em>criterion and the <em>parties</em> criterion proposed by the plaintiff in his submission, in order to formulate a test for determining what transactions come within the ambit of article 181(5) of the 1992 Constitution.</p> <p>However, the complication which arises if a transaction between a Ghanaian company and the Ghana Government is purposively construed to be an international business transaction is the need to formulate a clear criterion for distinguishing such a transaction from other transactions (with foreign connections) between the Government and Ghanaian companies.  On the other hand, If an international business transaction within the ambit of article 181(5) is defined exclusively as one between an entity resident abroad and the Ghana Government, one has a ready rule of thumb for determining at least one dimension of what agreements come within the scope of article 181(5).  If this mechanical rule is departed from, then one has to confront the task of defining a criterion or criteria for distinguishing between transactions entered into with entities resident in Ghana where such transactions are nonetheless to be regarded as international and other transactions that are to be regarded as non-international.  In spite of the entailed implication of choosing complexity over simplicity, we think that this court has to accept that substance should rule, rather than form, and thus grasp the nettle.</p> <p>Once this Court adopts the approach of substance over form, the following passage from the defendants’ Statement of Case (paragraphs 121, 122 and 123) becomes poignantly relevant:</p> <p>“121. My Lords, therein lies, and with utmost respect to the Plaintiff, the inherent contradictions of its arguments before this Honourable Court.  Taken to the extreme, the Plaintiff would be contending that even though British Airways is registered as an external company in Ghana, the Government of Ghana cannot purchase a ticket from that airline for the President or any public official to travel on the airline’s plane, unless there has been specific parliamentary approval of the ticket purchase.  What is worse, even the purchase of a ticket to fly a Government official from Accra to Kumasi would be an “international business transaction” if the local airline has foreign shareholders.</p> <p>122.   By way of further hypothetical illustration, if the Government was to enter into a contract with a Ghanaian individual for the supply of paper to the Government, and that individual supplies the paper but has to sue to recover unpaid monies, the Government could, on account of the supplier having imported the paper into Ghana, come to the Supreme Court for a determination that the contract to supply paper to the Government was an “international business or economic transaction” that required parliamentary approval, and that in the absence of that approval, the contract was invalid.  It would also mean, Your Lordships, that every contract that the Government enters into for the supply of vehicles is an “international economic or business transaction” because it is a notorious fact that nearly all the cars plying our roads are imported.</p> <p>123.   My Lords, it was to avoid such untenable and flawed posture and arguments that the framers of the Constitution, under Article 181(5) left the matter to Parliament without even attempting to define the phrase “international business and economic transaction”, thereby leaving Parliament to decide what it considers as an “international business and economic transaction” and how to apply Article 181 to such matters, by way of the necessary statutory modifications.  Without those legislative modifications that the Constitution mandates, the ‘assumed’ interpretation of Article 181(5) that parliamentary approval is required for such transactions (even when the other party is a Ghanaian) would lead to absurd results.  As things stand, the Government chooses which financial obligations to honour, and which it would run to court to challenge on account of the Government’s own position that parliamentary approval was not required.”</p> <p>This argument that, without the legislative modifications that the Constitution mandates under article 181(5), the provision is inoperative and cannot be enforced is erroneous and the defendants are precluded by <em>stare decisis</em> from re-opening that issue.  We have already referred to the passage in <em>Attorney-General v Faroe Atlantic Co. Ltd. </em>[2005-6] SCGLR 271, where the Supreme Court held that even before Parliament acts on the modifications to article 181(5) it is enforceable.   That position is supported, not only by authority, but also by principle.  The framers could hardly have intended that Parliament should be able to stultify their purpose of achieving transparency in the Executive’s international business deals through simple inaction.   Such an interpretation of article 181(5) would be unreasonable and not in tune with the purpose of the provision.</p> <p>However, the examples given by the defendants in the passage quoted above demonstrate the need to articulate a criterion for distinguishing between the international business transactions intended to be scrutinized, and approved, by Parliament and those which are not.  For, clearly it would be impractical for Parliament to scrutinize and approve every single business transaction with international ramifications entered into by the Executive.  The hypothetical examples given in the defendants’ Statement of Case quoted above constitute a <em>reductio ad absurdum</em> of one perception of the principle embodied in article 181(5).  In our view, to give effect to the framers’ purpose, there is need to imply into article 181(5) an understanding that only <strong><em>major</em></strong> international business or economic transactions are to be subject to its provisions.  We do, however, agree with the defendants that Parliament needs to exercise its legislative power in relation to article 181(5) in order to clarify which transactions are to be viewed as major.</p> <p>The interpretation that the international business or economic transactions that come within the ambit of article 181(5) should be limited to only major ones is a purposive one.  It will be recalled that this Court, speaking through me, in <em>Asare v Attorney-General</em> [2003-2004] SCGLR 823, pointed out that there is a distinction between the objective and the subjective purposes of a constitution or statute.  The court there said (at p. 834):</p> <p>“The subjective purpose of a constitution or statute is the actual intent that the authors of it, namely, the framers of the constitution or the legislature, respectively, had at the time of the making of the constitution or the statute.  The objective purpose is not what the author actually intended but rather what a hypothetical reasonable author would have intended, given the context of the underlying legal system, history and values etc. of the society for which he is making law.  This objective purpose will thus usually be interpreted to include the realisation, through the given legal text, of the fundamental or core values of the legal system.”</p> <p>One of the values of the 1992 Constitution is the promotion of probity and accountability.  In the Proposals for a Draft Constitution of Ghana prepared by the Committee of Experts appointed in 1992 under PNDC Law 252 to draft the proposals that were placed before the Consultative Assembly that formulated the 1992 Constitution, the Committee makes the following important point in the General Introduction to its Proposals (paragraph 6 on p. 5):</p> <p>“With respect to the developments within the past 10 years, the guiding principle was that the essential attributes of institutions which are compatible with a constitutional order should be retained, subject to modifications as are appropriate.  The committee feels that in this regard accent should be on substance not form.  Thus, for example, the social or political values of accountability and probity and fidelity to the public interest should survive the inauguration of the constitution….”</p> <p>This passage shows that the values of probity and accountability were among those that informed the Committee’s decision-making in the framing of its proposals.  These values clearly have a relevance to article 181(5).  The sunlight of Parliamentary scrutiny of major transactions entered into by the Executive is likely to be a powerful spur to probity in such transactions.  That is why it is unlikely that the framers would have intended to give to Parliament the veto power implied in the defendants’ interpretation of article 181(5).  The purposive interpretation we have given to this provision is therefore in accord with our reading of its objective purpose. Indeed, the framers’ commitment to probity and accountability as a value of the Constitution is reflected in one of the Preambles to the Constitution, which reads as follows:  “AND IN SOLEMN declaration and affirmation of our commitment to: Freedom, Justice, Probity and Accountability;…”. On the other hand, the framers could not have intended the obvious and foreseeable paralysis from overload in Parliament that would ensue from interpreting the provision as covering every single business or economic transaction with an international dimension.  The implication into article 181(5) of the attribute of being “major” before a transaction enters into its ambit would thus seem to us to be necessary and reasonable and within the spirit of the provision.  </p> <p>Because of the practical consequences of determining that a transaction comes within the scope of article 181(5), an interpretation of the provision needs to result in practical guidance to the Executive, Parliament and parties to transactions with government to enable them to apply the constitutional vision of the framers.  It is therefore imperative that Parliament takes up early the challenge of framing the modifications to article 181 needed to give greater certainty and clarity as to what categories of international business or economic transactions to which the Government is a party come within the ambit of article 181(5).  In the interim, a certification by the Attorney-General that an international business transaction to which the Government is a party is “major” or not should be accorded great weight by the courts, although it cannot be conclusive.  We are here, of course, referring to the Attorney-General’s certification before a dispute has arisen between the Government and any party.</p> <p>The formulation of this criterion of the implicit need for an international business agreement to be “major” before it comes within the ambit of article 181(5) goes some way to resolving what the plaintiff referred to in his Statement of Case as penumbra cases.  In real life, there will be difficult borderline cases whose status within or outside article 181(5) will need to be determined.</p> <p>Apart from implying the attribute “major”, as outlined above, this Court needs to interpret “international” in the context of article 181(5) appropriately in order to deal with issues such the <em>reductio ad absurdum</em> hypotheticals posed by the defendants above.  What then is the meaning of “international” in this context?  We think that a business transaction is “international” within the context of article 181(5) where the nature of the business which is the subject-matter of the transaction is international in the sense of having a significant foreign element or the parties to the transaction (other than the Government) have a foreign nationality or reside in different countries or, in the case of companies, the place of their central management and control is outside Ghana.</p> <p>The word “significant” is used in the above definition to denote the fact that the foreign elements or contacts that lead to a judgment of internationality in relation to a transaction have to be subjected to a qualitative assessment before reaching that judgment.  The significance is in relation to the purpose of article 181(5).  Thus, for instance, the example given in the defendant’s Statement of Case “ that every contract that the Government enters into for the supply of vehicles is an “international economic or business transaction” because “it is a notorious fact that nearly all the cars plying our roads are imported” would not necessarily be correct because the fact only of the importation of the vehicles would not be significant enough in relation to the purpose of article 181(5) to justify the transaction being characterized as an international business transaction.  The sale of cars domestically to the government would not be an international trade transaction, in spite of the incidental fact that the cars sold were imported.  The fact of their importation, when qualitatively assessed by a court, may well result in a decision by the court that their importation is not a significant foreign element in the transaction in question.  This qualitative assessment is important in separating business transactions which are international within the meaning of article 181(5) from those that are not.  The defendants’ hypotheticals are only a sample of many other transactions which could  literally be brought under the semantic umbrella of an “international business transaction”, but which should not be so construed for the purposes of article 181(5).  Examples would be documentary letters of credit and contracts for the international sale of ordinary goods or for the carriage of goods by sea.  In our view, the framers did not have in their contemplation, subjectively or objectively, transactions of this nature:  that is, transactions of ordinary commerce.</p> <p>As to the meaning of business, we are willing to accept the defendants’ interpretation of it that “where a transaction is commercial in nature, or pertains to or impacts on the wealth and resources of the country, it would be a “business or economic transaction” and a subject of interest in any examination of Article 181(5).”</p> <p>The conceptual discussion thus far as to what international business or economic transactions come within the ambit of article 181(5) has been without prejudice to a determination, on the actual facts of the present case, of whether or not the PPA in issue here was required to be submitted to Parliament.  Our next task, therefore, is to examine some of the specificities of the PPA in order to decide whether it is an international business or economic agreement to which the Government is a party within the meaning of article 181(5).  Our general impression, upon reading the submissions of the parties, is that the overall transaction involved here was a foreign investment by a US investor in a power generation project to supply power to the Ghana Government and that the Government was a party to this transaction. We are viewing the transaction in the round, without resorting technically to the piercing of the corporate veil doctrine.  We interpret “transaction” in this context as meaning a series of agreements or acts united by their purpose of attaining the project objective of the parties to it. We will now set out the circumstances which support this impression and whether a transaction of this nature comes within the ambit of article 181(5).</p> <p>The PPA between the Government and the first defendant was the result of negotiations between a foreign investor (the third defendant acting on behalf of owner of the second defendant) and the Government.  This is a significant foreign element in the transaction.  Secondly, the first defendant, though a Ghanaian company, is wholly-owned by a foreign entity, incorporated in the United Kingdom.  Thirdly, the managing director of the first defendant is a foreigner, the third defendant, and control of the management of the first defendant is in foreign hands.  Fourthly, the PPA contains a clause providing for international commercial arbitration.  Lastly, there were other clauses in the PPA which are usually associated with foreign investment transactions, such as the waiver of sovereign immunity clause and the following clause set out in the plaintiff’s Statement of Case:</p> <p>“29.2  GOG represents and warrants that:</p> <p>‘(g)  No Taxes.  There is no Tax other than stamp duty at a nominal rate imposed on or in connection with:</p> <ol><li>the execution, delivery or performance of this Agreement;</li> <li>the enforcement of any of this Agreement; or</li> <li>  on any payment to be made to the BEC under this Agreement.  In connection with Letters of Credit, no Government Authority shall impose any reserve, special deposit, deposit insurance or assessment affecting BEC.</li> </ol><p>No Foreign Exchange Controls.  There are no foreign exchange or other restrictions in effect in the Republic of Ghana adversely affecting the ability or right of GoG to acquire and to remit to BEC foreign currency to pay and satisfy GoG’s obligations under this agreement.”</p> <p> </p> <p>All these circumstances cumulatively lead us to the conclusion that the answer to the first question referred to this Court is that the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution.</p> <p>On  the other hand, the answer to the second issue referred is that the arbitration provisions contained in clause 22.2 of the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited does not constitute an international business transaction within the meaning of Article 181(5) of the Constitution.  This is because applying the interpretation of article 181(5) arrived at above, it is clear that the international arbitration provision cannot, in and of itself, constitute an international business or economic transaction.  An international commercial arbitration is not by itself an autonomous transaction commercial in nature which pertains to or impacts on the wealth and resources of the country.  An international commercial arbitration draws its life from the transaction whose dispute-resolution it deals with.  We therefore have difficulty in conceiving of it as a transaction separate and independent from the transaction that has generated the dispute it is required to resolve.</p> <p>The case is accordingly remitted to the High Court for this Court’s interpretation of article 181(5) of the 1992 Constitution to be applied in the proceedings before it.</p> <p>We would like to end this opinion by repeating our request to Parliament to enact a Bill indicating what modifications it wishes to make to article 181(5) of the Constitution.  This step would bring greater certainty and clarity to the law.</p> <p> </p> <p> </p> <p><strong>                                        (SGD)         DR.  S.  K.  DATE-BAH</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong>                                         (SGD)        W.  A.  ATUGUBA</strong></p> <p><strong>                                                            ACTING CHIEF JUSTICE </strong></p> <p> </p> <p><strong>                                           (SGD)      J.  ANSAH</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COUR</strong></p> <p> </p> <p><strong>                                     (SGD)        S.  O.  A.  ADINYIRA (MRS)</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong>                                          (SGD)      ANIN  YEBOAH</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong>                                        (SGD)        N.   S.   GBADEGBE</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong>                                         (SGD)        V.  AKOTO – BAMFO [MRS.]</strong></p> <p><strong>                                                            JUSTICE OF THE SUPREME COURT</strong></p> <p><strong>COUNSEL:</strong></p> <p><strong>HON. BENJAMIN  KUMBUOR, ATTORNEY-GENERAL ( WITH HIM MRS. GRACE EWOOL ) FOR THE PLAINTIFF </strong></p> <p><strong>ACE ANKOMAH FOR THE DEFENDANTS.</strong></p> <p><strong>NANA ATO DADZIE AS AMICUS CURIAE.</strong></p> <p> </p> <p> </p></span></div></div> </div> </div> Wed, 23 Jun 2021 10:54:13 +0000 Anonymous 1884 at http://ghalii.org Ahadzi and Another Vrs Sowah and Other (J4 33 of 2018) [2019] GHASC 16 (21 March 2019); http://ghalii.org/gh/judgment/supreme-court/2019/16 <span class="field field--name-title field--type-string field--label-hidden">Ahadzi and Another Vrs Sowah and Other (J4 33 of 2018) [2019] GHASC 16 (21 March 2019);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/369" hreflang="x-default">EL</a></div> <div class="field__item"><a href="/taxonomy/term/398" hreflang="x-default">Supervisory Jurisdiction</a></div> <div class="field__item"><a href="/taxonomy/term/372" hreflang="x-default">Land use</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 06/23/2021 - 10:53</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>This case concerned a long standing land dispute. The appellants herein appealed against the judgement by the Court of Appeal that reversed the judgement by the High Court was which went in favour of the appellants.</p> <p>The appellants claim to the land was based on purchase from a third party. In support of their case, they presented a land certificate. The defendants contended that the land claimed by plaintiffs fell within their domain, so they counter claimed for a declaration of title. </p> <p>The High Court found that the respondents failed to produce sufficient evidence to prove that the land was rightfully theirs, as per the requirements of s11 of the Evidence Act of 1975. The appellants, however, proved their case.</p> <p>The Court of Appeal reversed the High Court judgement, on the sole ground of a 1992 judgement that declared that the land belonged to the defendants.</p> <p>The Supreme Court, therefore, had to reconsider the evidence and finally settle the dispute. The court found that a close reading of the 1992 judgement casts doubt on the correctness of the Court of Appeal’s position. It found that the 1992 judgement did not actually concern the land in question and that the Court of Appeal, therefore, erred in its finding. Further, upon review of the evidence, the court found that the balance of probabilities favored the appellants. </p> <p>Accordingly, it restored the first judgement, with an adjustment to the amount of general damages.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.ghalii.org/files/judgments/ghasc/2019/16/2019-ghasc-16.pdf" type="application/pdf; length=88189">2019-ghasc-16.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong> IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE SUPREME COURT</strong></p> <p><strong>ACCRA – A.D. 2019</strong></p> <p> </p> <p><strong>                            CORAM:       BAFFOE-BONNIE, JSC (PRESIDING)</strong></p> <p><strong>                                                  GBADEGBE,  JSC</strong></p> <p><strong>                                                   PWAMANG, JSC</strong></p> <p><strong>                                                   DORDZIE, JSC</strong></p> <p><strong>                                                   KOTEY, JSC                                          </strong></p> <p><strong>                                                                                  CIVIL APPEAL</strong></p> <p><strong>                                                                                  NO. J4/33/2018</strong></p> <p> </p> <p><strong>                                                                                  21ST MARCH, 2019</strong></p> <p>1.     MRS AGNES AHADZI</p> <p>2.     PIONEER MALL LTD                 ……..          PLAINTIFFS/REPONDENTS/APPELLANTS</p> <p> </p> <p>VRS</p> <p> </p> <p>1.    BOYE SOWAH</p> <p>(SUBST. BY SAMUEL NORTEY)</p> <p>2.    NII NORTEY ADJEIFIO</p> <p>3.    NUUMO ADJEI KWANKO II     ……..        DEFENDANTS/APPELLANTS/RESPONDENTS</p> <p> </p> <p>JUDGMENT</p> <p> </p> <p><strong>PWAMANG, JSC:-</strong></p> <p>This is an appeal against the judgment of the Court of Appeal dated 4th June, 2015 wherein the Court of Appeal reversed the judgment of the High Court dated 4th July, 2011which went in favour of the plaintiffs/respondents/appellants. In this judgment we shall refer to the parties by their descriptions as in the trial court.</p> <p><strong>BACKGROUND OF THE CASE. </strong></p> <p>The case was commenced in 2000 and concerns a parcel of land at Okpoi-Gonno  in Accra. In the course of the litigation 1st defendant died and was substituted and 2nd defendant too died but he was not substituted. 3rd defendant was originally not a party to the suit but he applied and was joined. The plaintiffs’ claim to the land in dispute was based on purchase form Bortei Alabi family of Nungua who acquired it by customary grant from the Nungua Stool, had it documented in 1991 and registered under the Land Title Registration Act, 1986 (PNDCL 152) with Land Certificate No GA 9043 dated 16th March 1994. Upon the transfer of the land 2nd plaintiff was issued a Land Certificate No GA 13523 dated 22/3/1999. In their statements of defence the defendants contended that the land claimed by plaintiffs fell within land of Kle Musum Quarter/Tsie We Family of  Teshie so they counter claimed for declaration of title. The 1st and 2nd defendants were sued because, according to the plaintiffs, they sold part of their land to persons who started to build on it and 3rd defendant was joined to the suit for the reason that he alleged to be the head of Tsie We family. However, this alleged capacity of 3rd defendant was vigorously challenged by the 1st and 2nd defendants who were members of that family.</p> <p>The substantive  issues set down for trial in the High Court were;</p> <p><strong>i)              </strong><strong>Whether or not the plaintiffs are bona fide grantees of the land by virtue of Land Certificates Nos. GA 9043 and GA 13523,</strong></p> <p>ii)             <strong> Whether or not the land in dispute forms part of Kle Musum Quarter land at Teshie, </strong></p> <p>iii)            <strong>Whether or not 3rd defendant’s title has priority over plaintiffs and their grantor , and </strong></p> <p>iv)            <strong>Whether or not the plaintiffs’ registration is fraudulent. </strong></p> <p>A director of 2nd plaintiff gave evidence on behalf of the plaintiffs, tendered their land certificates and called two witnesses who testified in support of their case. The substitute for 1st defendant testified and relied on a number of documents and judgments tendered in evidence but did not call any witness. 3rd defendant gave a power of attorney to one Samuel Nii Adjei Duah to testify on his behalf but he too did not call any witness.</p> <p>In his judgment, the High Court Judge held that 3rd defendant had no capacity to represent Tsie We family and dismissed his case but 3rd defendant did not appeal. The appeal which went before the Court of Appeal was filed by 1st defendant against the judgment of the High Court granting plaintiffs their reliefs. That notwithstanding, the 3rd defendant has filed a statement of case in this second and final appeal. Clearly, he cannot be heard as the appeal is against the decision of the Court of Appeal to which he was not a party. See <strong>Anang Sowah v Adams [2009] SCGLR 111.</strong> We notice that the plaintiffs misled the 3rd defendant by stating in their Notice of Appeal that he stood to be affected by the appeal and included his name for service but the Court of Appeal did not make any order either in favour of or against the 3rd defendant which may be varied in this appeal. Furthermore, since he did not challenge the High Court decision that he has no capacity in the case it means he was not a proper party to the case to begin with and is not entitled to be heard. In the circumstances we shall disregard his statement of case.</p> <p><strong>THE HIGH COURT JUDGMENT</strong></p> <p>After the High Court dismissed the case of the 3rd defendant the trial judge considered the evidence led by defendant’s on the one hand and the plaintiffs and their witnesses on the other hand and at page 351 of the record he observed as follows;</p> <p><strong>“The substitute’s evidence was empty and shorn of all the vital corroborative corollary that ought to ground any relief in terms of ownership of family land. Please see Ollennu’s Principles of Customary Land Law2nd Edition page 141-142.</strong></p> <p><strong>Mr John Aidoo Lawyer for the plaintiff made the following comment in his written submissions as regard the evidence of the substitute. He said;</strong></p> <p><strong>‘Not only did he fail to indicate the precise extent of his land by way of dimensions or other people he shares boundary with. Even worse was his inability to particularly show any connection between the said exhibits tendered by him and the disputed land’.</strong></p> <p><strong>The substitute, to put it mildly, was just mechanical in his evidence.”</strong></p> <p>Then at page 352 the trial judge concluded as follows’</p> <p><strong>“The 1st defendant failed to produce any evidence that would be considered sufficient (sic) so that a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. See Evidence Act, 1975 (sic) NRCD 323 at Section 11 thereof.</strong></p> <p><strong>The standard of proof required of a party in ownership of land suits is very well settled. Specifically under Section 11(1) and (4) and 12(1) &amp; (2) of the Evidence Act. The burden of persuasion requires proof by preponderance of the probabilities. So that a party like the plaintiff in this case who is asserting title to land must do so to the degree of certainty of belief in the mind of the court (sic) of facts by which this court must be convinced of the existence of those facts as being more probable than otherwise.</strong></p> <p><em><strong>I am convinced that the plaintiffs by their testimony have proved their case by the preponderance of the probabilities and are entitled to their reliefs. The plaintiffs have earned this view of the court quite aside from the fact that the defendants proved no match under the circumstances of the case. The plaintiffs set out to discharge the burden on them by the testimony of the 2nd plaintiff and other credible witnesses.”</strong> </em></p> <p>The trial judge thereafter examined the evidence in detail and stated that he was impressed by the testimony of plaintiff and his witnesses as against the defendants.</p> <p><strong>COURT OF APPEAL JUDGMENT</strong></p> <p>The main ground upon which the Court of Appeal reversed the finding of the trial judge on the evidence is captured at page 426 of the record in the following words;</p> <p><em><strong>“Had the trial court properly evaluated the evidence, the plaintiffs ought to have lost the case on the sole ground that by the 1992 High Court judgment exhibit 9 the land belongs to the KLE MUSUM QUARTER of Teshie to which the defendants’ family belongs”.</strong> </em></p> <p>The Court of Appeal in their judgment indicated other grounds for their decision but those issues appeared to be premised on the assumption that Exhibit ‘9’ was conclusive that the land in dispute in this case belongs to Kle Musum quarter of Teshie. They initially observed that, having regard to the documents relied upon by the parties, the trial judge ought to have <em>suo moto</em>  ordered a superimposition of the maps tendered in evidence or visited the land to obtain a clear picture of the area but then they held that since the land in dispute was clear the case could nevertheless be determined. At page 423 they said that;</p> <p><strong>“Fortunately, the fact that the parties are <em>ad idem</em> that the land is at Okpoi Gonno makes a resolution of the fundamental issue possible. Our duty now is to shift (sic) through and determine from the evidence on record including the several documents and judgments that were tendered whether, as contended by the appellant, there has ever been a binding decision on the ownership of Okpoi Gonno.”</strong></p> <p>That the parties were <em>ad idem</em> as to the land in dispute is further confirmed by the fact that in the course of the trial the 1st defendant amended his counterclaim and prayed for declaration of title to the exact land described by the plaintiffs which is shown on the map in the Land Certificate No 9043.</p> <p>As stated earlier, the Court of Appeal saw Exhibit ‘9’ as the binding judgment on ownership of Okpoi Gonno lands. Exhibit ‘9’ is a judgment of the High Court presided over by Omari Sasu J dated 20th February, 1992 in Suit No L993/81 between Adjei Onanko II, who sued for land said to be at Okpoi Gonno on behalf of Kle Musum Quarter of Teshie, against one Ibrahim Mensah Komieteh also of Teshie who claimed that the Teshie Stool granted the land to his father. It appears that there was no appeal after the judgment. The Court of Appeal claimed that Omari Sasu J <strong>“held that the equitable and beneficial interest or title in the land in dispute <em>described as being at Okpoi Gonno</em> (sic) is vested in Kle Musum quarter”.</strong></p> <p><strong>APPEAL TO SUPREME COURT</strong></p> <p>In their Notice of Appeal in this court the plaintiffs stated only one ground of appeal namely; the judgment is against the weight of the evidence adduced at the trial. Though it was indicated in the notice of appeal that further grounds of appeal would be filed upon receipt of the record, none have been filed. Where an appeal is filed against a judgment on the ground that it is against the weight of the evidence, the appellate court is required to comb through the whole record of appeal and determine for itself if, having regard to the relevant law in the case and the evidence, the court from which the appeal has been brought was justified in its findings and conclusions. See <strong>Tuakwa v Bosom [2001-2002] SCGLR 61. </strong></p> <p>Plaintiffs at paragraph 18.0 of their statement of case argued that; <strong>“Though he (respondent) relied on various judgments, he did not show that the judgments he had covered the land of the plaintiffs.” </strong>This submission goes to the heart of the judgment of the Court of Appeal since, according to them, Exhibit ‘9’ covered the land in dispute. However, we have discovered that a close reading of Exhibit ‘9’ casts a serious doubt on the correctness of that fundamental statement in the judgment of the Court of Appeal, namely; that Omari Sasu J held that equitable and beneficial interests in Okpoi-Gonno lands belongs to Kle Musum quarter of Teshie. Permit us to quote Omari Sasu J at length from pages 128 to 129 of volume 2 of the record;</p> <p><em>“It must be observed here that it is not the whole of defendant’s land which is in dispute. What is in dispute is the area coloured green in exhibit ‘C’. This area in dispute is roughly between 1/3 and ½ of the total land of defendant. This court in the course of the trial visited with the parties and their respective counsel Okpoi-Gonno, the land in dispute, ANETE’s village and crossed the Accra-Tema motorway to ADJIRINGAO.</em></p> <p><strong><em>From what was seen, OKPOI GONN VILLAGE where defendant lives is completely outside the area in dispute.</em></strong><em> Even though defendant maintained that since the village was founded by his late father his descendants have continued to live at the original OKPOI GONN, defendant’s witness ODOI KWAME (DW1) said defendant is not living at the original site of OKPOI GONN. <strong>Be the true position as it may, what was observed during the visit is that the only human habitation or human activity this court found within the area in dispute which is coloured green in Exh C was the village of ANETE.</strong> This man claims he was granted his settlement by the plaintiff quarter. Apart from ANETE’s settlement which is within the land in dispute there were no farms or settlements within the land in dispute. I accordingly find as a fact and hold that defendant is not in possession and occupation of the land in dispute.” </em></p> <p>Omari Sasu J concluded his judgment thus; <em>“What is left is equitable or beneficial interest or tile. This I declare is vested in plaintiff’s KLE MUSUM QUARTER in respect of the land in dispute, which land is coloured green in Exh C.”</em></p> <p>By “the land in dispute” Omari Sasu J was obviously referring to his description of it upon the visit which excluded Okpoi Gonno. What is clear to us from the above quoted passages is that the land in dispute in the suit in Exhibit ‘9’ did not include OKPOI GONNO and the judgment that was delivered did not declare Kle Musum quarter to be owners of Okpoi Gonno lands. The second point of note is that, irrespective of the manner Kle Musum quarter described the land they claimed in their statement of claim in that suit, the map they tendered which was superimposed on the map of Ibrahim Mensah Komieteh did not extend to cover Okpoi Gonno where Ibrahim Mensah Komieteh was living at the time of the case. These facts which were personally observed by the High Court judge and stated in his judgment are binding against defendants since they relied on Exhibit ‘9’ in this case.  It is revealing that the defendants decided to tender Exhibit ‘9’ without the accompanying composite plan referred to in the judgment which showed the extent of land Kle Musum quarter claimed in that suit. In any event, since in that case the claim of Kle Musum did not extend to Okpoi Gonno, if defendants had tendered the composite plan which was the basis of the judgment in Exhibit ‘9’ the question here would have been why has their claim now been extended to Okpoi Gonno which they did not claim in the 1981 suit? Therefore, the Court of Appeal, with due regards, fell in error when they held that in Exhibit ‘9’ the High Court held that Okpoi Gonno lands belong to Kle Musum quarter. On the contrary, Exhibit ‘9’ would act as estoppel against Kle Musum quarter from laying claim to Okpoi Gonno lands since in the earlier suit they did not claim those lands. Consequently, we reverse that finding of the Court of Appeal and take the view that by Exhibit “9” Okpoi Gonno lands are not part of Kle Musum quarter lands.</p> <p>The Court of Appeal by stating that Exhibit ‘9’ was a judgment binding on the parties in the current case treated it as <em>res judicata</em> but in law a party who seeks to rely on <em>res judicata</em> is required to plead and prove the elements of the <em>res judicata</em>. In the case of <strong>In Re Sekyedumase Stool Affairs; Nyame v Kesse alias Konto [1998-99]SCGLR 476,</strong> Acquah, JSC (as he then was) at pages 478 to 479 of the Report said as follows;</p> <p><em>“The plea of res judicata really encompasses three types of estoppel: cause of action estoppel, issue estoppel in the strict sense and issue estoppel in the wider sense. In summary, cause of action estoppel should properly be confined to cases where the cause of action and the parties (or their privies) are the same in both current and previous proceedings. In contrast, issue estoppel arises where such a defence is not available because the causes of action are not the same in both proceedings. Instead it operates where issues, whether factual or legal, have either already been determined <strong>in previous proceedings between the parties</strong> (issue estoppel in the strict sense) or where issues should have been litigated in previous proceedings but, owing to “negligence, inadvertence, or even accident,” they were not brought before the court (issue estoppel in the wider sense), otherwise known as the principle in Henderson v Henderson (1843) 3 Hare 100; See also In re Yendi Skin Affairs; Andani v Abudulai [1981] GLR 866. CA. The rationale underlying this last estoppel is to encourage parties to bring forward their whole case so as to avoid a succession of related actions”</em></p> <p>So the three conditions for invoking issue estoppel are that;</p> <p>1.    The same issue must have been decided in the earlier case;</p> <p>2.    The judicial decision in the earlier case must have been final; and</p> <p>3.    The parties in the current case must be the same parties in the earlier case or their privies;</p> <p>See also the House of Lords case of <strong>Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 2) [1976] AC 853.</strong></p> <p>In the instant case, <em>res judicata</em> would not apply because, first of all, the subject matter of the previous judgment did not cover Okpoi Gonno land which is the issue the Court of Appeal sought to determine in this case. Secondly, the plaintiffs and their grantors were neither parties in the earlier case nor are they privies of Ibrahim Mensah Kometeh who claimed he got the land from the Teshie Stool. This analysis applies in respect of the other judgments that the defendants  tendered and relied upon at the trial. They failed to prove that the subject matter decided upon and the parties in any of those cases were the same as in the present case.</p> <p>We have observed that the Court of Appeal, being under the impression that Exhibit “9” held that Okpoi Gonno lands are part of Kle Musum lands, stated in their judgment that if the plaintiffs had conducted a search before acquiring the land they sued for it would have come to their attention that Kle Musum Quarter registered a declaration at the Lands Commission in 1965 claiming ownership of the land in dispute in this case. In the first place, as has been submitted by the plaintiffs in this appeal, which we are in agreement with, there was no evidence before the court to the effect that the land in dispute in this case was within Kle Musum quarter land so that claim by the Court of Appeal was, with the greatest respect, misconceived. It was the defendants who as their main defence alleged that plaintiffs’ land was part of Kle Musum quarter land covered by series of judgments and the 1965 Declaration but that was denied by the plaintiffs wherefore it was set down at the application for directions as an issue for determination at the trial. Under those circumstances, the burden of proof of  that issue was upon defendants to introduce sufficient evidence to avoid a ruling by the court against them. Sections 11(1), 14 and 17 of the Evidence Act, 1975 (NRCD 323) provide;</p> <p><strong>11. Burden of producing evidence defined </strong></p> <p><strong> (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.</strong></p> <p><strong>“17. Allocation of burden of producing evidence </strong></p> <p><strong> Except as otherwise provided by law, </strong></p> <p><strong> (a) the burden of producing evidence of a particular fact is on the party against whom a finding  on that fact would be required in the absence of further proof; </strong></p> <p><strong>14. Allocation of burden of persuasion </strong></p> <p><strong> Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.</strong></p> <p>The combined effect of sections 11(1), 14 and 17 of NRCD 323 is that if a party, such as the defendant in this case, fails to discharge the burdens of producing evidence and persuasion in respect of any issue of fact which are upon him, the court is obligated to find against him on that issue. In the case of <strong>Total Ghana Ltd v Thompson [2011] 1 SCGLR 458</strong> this court, speaking through Anin Yeboah, JSC, said as follows at page 463 of the report;</p> <p><em>“We think that by its conduct of neither calling the police alleged to have investigated the complaint against the plaintiff nor the person who had allegedly made statements that had implicated the plaintiff, the defendants may be said to have admitted plaintiff’s claim that the allegations made against him were untrue. In the particular context of this case, in our thinking, an obligation on the part of defendant company to credible evidence to the trial court that would render the allegation on which its suspension of plaintiff was based, more probable than the version of a denial by plaintiff. By the operation of the relevant sections of the Evidence Act, 1975 (NRCD 323), relating to the burden of producing evidence, in particular, sections 11(4) and 14 of the Act, the defendant left the trial court with no option than coming to the conclusion that the allegation made against the plaintiff that had informed his suspension was untrue.”</em></p> <p>In the above case, though Total Ghana Ltd was the defendant, it carried the burden of proof on the averments they made in their defence regarding the grounds for dismissal of the plaintiff. They tendered only the police investigation report without calling the investigator to testify, which the Supreme Court held did not amount to sufficient proof. In similar vein, the defendants in the instant case tendered a number of judgments and the 1965 Declaration by Kle Musum quarter without proof that the plaintiffs’ land was covered by these documents. As that issue was specifically set down for trial at the application for directions, this court, as an appellate court, is required to review the evidence on record and determine the case guided by the allocation of the respective burdens as was done in <strong>Total Ghana Ltd v Thompson</strong> (supra). In the light of our comments on Exhibit “9” and the other documents tendered by defendants, we are of the opinion that defendants failed to prove that the land in dispute is part of Kle Musum quarter lands referred to in the 1965 declaration.</p> <p>Besides the failure of defendants to prove that plaintiffs land is covered by the 1965 Declaration, we have noticed that the probative value of that declaration by itself alone as proof of title of Kle Musum quarter to the land covered by it has been rejected by the Court of Appeal and the Supreme Court in some of the judgments tendered by the defendants themselves in this case. The map attached to the 1965 declaration tendered as Exhibit “7” can be found at page 104 of the record and the settlement of OTINSHI is therein indicated to be within the land declared by Kle Musum quarter as its land. Exhibit ‘3’ tendered by the defendants is a judgment dated 17th November, 2000 delivered by Asare Korang J in a case filed by Dr Theodore Adjei Osae and Another in which they claimed against Kle Musum quarter for declaration of title to Otinshie lands. That decision of the High Court in favour of the plaintiffs and against Kle Musum quarter was affirmed by the Supreme Court which judgment dated 7th May, 2008 can be found at page 308 of volume 1 of the record. In that case Kle Musum quarter relied on the 1965 declaration among other grounds to claim ownership of Otinshie lands but that was rejected by the court in the following terms;</p> <p><strong>“Exhibit B was also tendered in the suit entitled Nii Adjei Obadzen II versus Nii Adjei Onanka II, Court of Appeal 11th May 1982 (unreported), where the observation was made that the said exhibit was a self serving document unsupported by any allodial owner and unilaterally prepared.</strong></p> <p><strong>I have myself observed already that the decision to order the survey in 1961 of Kle Musum lands beyond the railway line was unilateral and unsupported by law or custom. The Statutory Declaration, Exhibit B, cannot therefore be regarded as carrying any weight or influence as far as Kle Musum quarter lands are concerned. </strong></p> <p><strong>Assuming Exhibit B was at any time published, the publication had no legal significance because as Dr Odame Larbi (D1W6) said, the decision that Statutory Declarations be given wide publication was an administrative and not a legal decision.”</strong></p> <p>The finding of the Court of Appeal referred to by Asare Korang J and his own finding, which has been affirmed by the Supreme Court, is to the effect that the 1965 Declaration of Kle Musum quarter was, like all statutory declarations claiming ownership of land, a self-serving document. See also the cases of <strong>In Re Ashalley Botwe Lands [2003-2004] SCGLR 420 and Mondial Venner (Gh) Ltd v Amuah Gyebu XV [2011] 1 SCGLR 466.</strong> The Court of Appeal in the instant case were bound by their previous decision and that of the Supreme Court on the status of the Kle Musum Declaration of 1965 and ought not to have relied on the comments of a High Court and accorded the Kle Musum Declaration special status.</p> <p>Haven discounted the several documents tendered by the defendants, we are left with the testimonies of the parties, the documents of the plaintiffs which were in respect of the particular land in dispute in this case, and the evidence of the witnesses called by the plaintiffs. The plaintiffs’ tendered their grantors’ document of title showing that as far back as 1991 the Bortei Alabi family documented a grant of the land acquired in accordance with customary practices from the Nungua Stool. They had the land surveyed by the Director of Surveys as part of their application to register the land under the Land Title Registration Law and in 1994 they were issued with Land Title Certificate. Two witnesses from the Nungua Stool testified in support of the grant to the Bortei Alabi family. From the evidence on record, it was in 2000 that the defendants entered the land through persons they had sold portions to and that  sparked off this litigation. The defendants had no description of the actual land in dispute and had to rely on plaintiff’s document to describe the land they counter claimed for. At the start of the case the plaintiffs applied and were granted on order of interim injunction restraining the defendants and their grantees from developing the land pending the final determination of the suit. The defendants ignored the order of interim injunction wherefore the plaintiffs applied for their attachment for contempt of court. The court even went as far as making an order for the arrest of defendants’ workmen. In the 1st defendant’s statement of case he sought to rely on the structures built during this period in the teeth of the litigation and in violation of the court’s orders as acts of possession that should enure to the advantage of defendants. Such developments cannot have priority over  plaintiffs grantors dealing with the land which on the evidence on the  record was as far back as 1991, nine years earlier. See <strong>Ankrah v Ofori [1963] 2GLR 403.</strong></p> <p>We have evaluated the whole of the evidence of the plaintiffs as against that of the defendants and are of the view that since in the Declaration of Kle Musum quarter they stated that they originally purchased the land from the Nungua Stool and the plaintiffs trace their grant from the Nungua Stool, the failure by defendants to lead any evidence to prove that the disputed land is part of the area originally purchased from the Nungua Stool undermined their claim as they acknowledged the ownership of the Nungus Stool. See the case of <strong>Apapam Stool v Ataa (1957) 1 WALR 117.</strong> Therefore, considering the relative strengths of the rival cases, that of the plaintiffs who claim a purchase from the admitted owners looks more probable and ought to have been preferred by the Court of Appeal. The decision to reverse the trial court was in the circumstances unreasonable.</p> <p>The Court of Appeal in their judgment made an issue of the discrepancy in the size of the land as stated in the lease between the Nugua Stool and Bortei Alabi family and what is recorded in the 2nd plaintiff’s Land Certificate. The former document had 13.80 acres and the later 11.398 acres. The appellants in their statement of case argued that since the acreage in the certificate is smaller than that in the lease there ought not to be any problem. The respondent did not make any submissions in this appeal on this aspect of the case but suffice it to say that by section 36 of PNDCL 152, the Registrar of Lands may require the Director of Surveys to survey land for the purposes of the Land Title Registration Act. We have taken notice of the fact that the Director of Surveys signed the map in the Land Certificate tendered by the plaintiffs. As for the attachment of the lease of Bortei Alabi family to the certificate of 2nd plaintiff that has been explained in the body of the certificate and the Memorials. The interest registered for 2nd plaintiff is the unexpired term of the lease of Bortei Alabi family and the interest is subject to the terms and covenants of that lease, hence its attachment. Besides, the interest of the Bortei Alabi family was acquired under customary law and a document only adds to such customary interest but cannot derogate from it. See <strong>Ankrah v Ofori &amp; Ors [1974] 1 GLR 185 C.A. </strong></p> <p>The appellants have argued before us that the registration of their interest in the land makes their title indefeasible except it is proved that the registration was made by mistake or fraud. That was the import of the first issue that was set down for determination in the trial. This is what the statute provides;</p> <p><strong>“Effect of Registration  </strong></p> <p><strong> 43. Indefeasibility of registration </strong></p> <p><strong> (1) Subject to subsections (2), (3) and (4) of this section and to section 48, the rights of a registered proprietor of land whether acquired on first registration or acquired subsequently for valuable consideration or by an order of a Court, are indefeasible and shall be held by the proprietor together with the privileges and appurtenances attaching to the land free from any other interests and claims. </strong></p> <p><strong>(2) The rights of a proprietor are subject to the interests or any other encumbrances and conditions shown in the land register. </strong></p> <p><strong>(3) This section does not relieve a proprietor from a duty or an obligation to which the proprietor is otherwise a trustee. </strong></p> <p><strong>(4) The registration of a person as the proprietor of land or an interest in land does not confer on that person a right to minerals not already vested in that person.”</strong></p> <p>As was stated with authority by Atuguba, JSC in the case of <strong>Republic v High Court (Fast Track Division); Ex parte National Lottery Authority (Ghana Lotto Operators Association &amp; Others Interested Parties) [2009] SCGLR 390</strong> at page 397;</p> <p><em>“ It is communis opinion among lawyers that the courts are servants of the legislature. Consequently, any act of a court that is contrary to a statute such as Act 722, s 58 (1)-(3) is, unless otherwise expressly or impliedly provided, a nullity…..Consequently, the courts have been bound to hold that the courts’ own law, the common law as defined in article 11(2) of the 1992 Constitution, must give way to statute.”</em></p> <p>So, to the extent that defendants did not prove any of the exceptions above and mistake or fraud, the attacks on the plaintiff’s certificate ought to have failed. The 1st defendant in his statement of case argued at paragraphs 30 to 35 thereof on an allegation of fraud against the grantors of plaintiff in relation to the signature of the Gborbu Wulomo, one of the head grantors, on their lease which is inserted in plaintiff’s Land Certificate. But that issue about the alleged forgery of the signature of the Gborbu Wulomo was investigated by the police and plaintiffs grantors were prosecuted before the Greater Accra Regional Tribunal sitting at Tema which, by its judgment dated 13th February, 2002 tendered as Exhibit ‘J’ in the trial court, acquitted them of the charges. In our opinion, that rested that charge. Besides, that case was made in 2000 whereas the plaintiff’s certificate is dated 22nd April, 1999 and there is no evidence that he became aware of even the allegation before the acquisition.</p> <p>In the conclusion of his statement of case 1st defendant, submitted that the overwhelming evidence on record supported the judgment of the Court of Appeal. We disagree with that submission and have already in this opinion explained the reasons for our position that the judgment of the Court of Appeal is not supported by the evidence on record. In the result, we find merit in the appeal and accordingly allow same. We set aside the judgment of the Court of Appeal dated 4th June, 2015 and restore the judgment of the High Court dated 4th July, 2011 with a slight modification. The trial judge awarded plaintiffs general damages of GHC50,000.00 at the time taking into consideration the length of time they had been prevented from developing their land together with their foreign partners. Today is about eight years on since the High Court gave its judgment and taking that into account we award the plaintiffs general damages of GHC80,000.00.</p> <p><em>             <strong>G. PWAMANG </strong></em></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><a name="_Hlk536045335" id="_Hlk536045335"><strong> BAFFOE-BONNIE, JSC:-</strong></a></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>                                                                     P. BAFFOE-BONNIE</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong>GBADEGBE, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>                                                                       N. S. GBADEGBE</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>DORDZIE (MRS.), JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>A.   </strong><strong>M. A. DORDZIE (MRS.)</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong>KOTEY, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>                 PROF. N. A. KOTEY</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p> </p> <p><strong>COUNSEL</strong></p> <p>KWABENA ANKAMAH OFEI-BADU FOR THE PLAINTIFS/RESPONDENTS/APPELLANTS.</p> <p>OSAFO BUABENG FOR THE 1ST DEFENDANT/APPELLANT/RESPONDENT.</p> <p><em>FOSU GYEABOUR FOR THE 3RD DEFENDANT/APPELLANT/RESPONDENT.</em></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-0ed162041e9b195cff35c97190a52d4ee18d86566557ab55b211edd2b2701d01"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong> IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE SUPREME COURT</strong></p> <p><strong>ACCRA – A.D. 2019</strong></p> <p> </p> <p><strong>                            CORAM:       BAFFOE-BONNIE, JSC (PRESIDING)</strong></p> <p><strong>                                                  GBADEGBE,  JSC</strong></p> <p><strong>                                                   PWAMANG, JSC</strong></p> <p><strong>                                                   DORDZIE, JSC</strong></p> <p><strong>                                                   KOTEY, JSC                                          </strong></p> <p><strong>                                                                                  CIVIL APPEAL</strong></p> <p><strong>                                                                                  NO. J4/33/2018</strong></p> <p> </p> <p><strong>                                                                                  21ST MARCH, 2019</strong></p> <p>1.     MRS AGNES AHADZI</p> <p>2.     PIONEER MALL LTD                 ……..          PLAINTIFFS/REPONDENTS/APPELLANTS</p> <p> </p> <p>VRS</p> <p> </p> <p>1.    BOYE SOWAH</p> <p>(SUBST. BY SAMUEL NORTEY)</p> <p>2.    NII NORTEY ADJEIFIO</p> <p>3.    NUUMO ADJEI KWANKO II     ……..        DEFENDANTS/APPELLANTS/RESPONDENTS</p> <p> </p> <p>JUDGMENT</p> <p> </p> <p><strong>PWAMANG, JSC:-</strong></p> <p>This is an appeal against the judgment of the Court of Appeal dated 4th June, 2015 wherein the Court of Appeal reversed the judgment of the High Court dated 4th July, 2011which went in favour of the plaintiffs/respondents/appellants. In this judgment we shall refer to the parties by their descriptions as in the trial court.</p> <p><strong>BACKGROUND OF THE CASE. </strong></p> <p>The case was commenced in 2000 and concerns a parcel of land at Okpoi-Gonno  in Accra. In the course of the litigation 1st defendant died and was substituted and 2nd defendant too died but he was not substituted. 3rd defendant was originally not a party to the suit but he applied and was joined. The plaintiffs’ claim to the land in dispute was based on purchase form Bortei Alabi family of Nungua who acquired it by customary grant from the Nungua Stool, had it documented in 1991 and registered under the Land Title Registration Act, 1986 (PNDCL 152) with Land Certificate No GA 9043 dated 16th March 1994. Upon the transfer of the land 2nd plaintiff was issued a Land Certificate No GA 13523 dated 22/3/1999. In their statements of defence the defendants contended that the land claimed by plaintiffs fell within land of Kle Musum Quarter/Tsie We Family of  Teshie so they counter claimed for declaration of title. The 1st and 2nd defendants were sued because, according to the plaintiffs, they sold part of their land to persons who started to build on it and 3rd defendant was joined to the suit for the reason that he alleged to be the head of Tsie We family. However, this alleged capacity of 3rd defendant was vigorously challenged by the 1st and 2nd defendants who were members of that family.</p> <p>The substantive  issues set down for trial in the High Court were;</p> <p><strong>i)              </strong><strong>Whether or not the plaintiffs are bona fide grantees of the land by virtue of Land Certificates Nos. GA 9043 and GA 13523,</strong></p> <p>ii)             <strong> Whether or not the land in dispute forms part of Kle Musum Quarter land at Teshie, </strong></p> <p>iii)            <strong>Whether or not 3rd defendant’s title has priority over plaintiffs and their grantor , and </strong></p> <p>iv)            <strong>Whether or not the plaintiffs’ registration is fraudulent. </strong></p> <p>A director of 2nd plaintiff gave evidence on behalf of the plaintiffs, tendered their land certificates and called two witnesses who testified in support of their case. The substitute for 1st defendant testified and relied on a number of documents and judgments tendered in evidence but did not call any witness. 3rd defendant gave a power of attorney to one Samuel Nii Adjei Duah to testify on his behalf but he too did not call any witness.</p> <p>In his judgment, the High Court Judge held that 3rd defendant had no capacity to represent Tsie We family and dismissed his case but 3rd defendant did not appeal. The appeal which went before the Court of Appeal was filed by 1st defendant against the judgment of the High Court granting plaintiffs their reliefs. That notwithstanding, the 3rd defendant has filed a statement of case in this second and final appeal. Clearly, he cannot be heard as the appeal is against the decision of the Court of Appeal to which he was not a party. See <strong>Anang Sowah v Adams [2009] SCGLR 111.</strong> We notice that the plaintiffs misled the 3rd defendant by stating in their Notice of Appeal that he stood to be affected by the appeal and included his name for service but the Court of Appeal did not make any order either in favour of or against the 3rd defendant which may be varied in this appeal. Furthermore, since he did not challenge the High Court decision that he has no capacity in the case it means he was not a proper party to the case to begin with and is not entitled to be heard. In the circumstances we shall disregard his statement of case.</p> <p><strong>THE HIGH COURT JUDGMENT</strong></p> <p>After the High Court dismissed the case of the 3rd defendant the trial judge considered the evidence led by defendant’s on the one hand and the plaintiffs and their witnesses on the other hand and at page 351 of the record he observed as follows;</p> <p><strong>“The substitute’s evidence was empty and shorn of all the vital corroborative corollary that ought to ground any relief in terms of ownership of family land. Please see Ollennu’s Principles of Customary Land Law2nd Edition page 141-142.</strong></p> <p><strong>Mr John Aidoo Lawyer for the plaintiff made the following comment in his written submissions as regard the evidence of the substitute. He said;</strong></p> <p><strong>‘Not only did he fail to indicate the precise extent of his land by way of dimensions or other people he shares boundary with. Even worse was his inability to particularly show any connection between the said exhibits tendered by him and the disputed land’.</strong></p> <p><strong>The substitute, to put it mildly, was just mechanical in his evidence.”</strong></p> <p>Then at page 352 the trial judge concluded as follows’</p> <p><strong>“The 1st defendant failed to produce any evidence that would be considered sufficient (sic) so that a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. See Evidence Act, 1975 (sic) NRCD 323 at Section 11 thereof.</strong></p> <p><strong>The standard of proof required of a party in ownership of land suits is very well settled. Specifically under Section 11(1) and (4) and 12(1) &amp; (2) of the Evidence Act. The burden of persuasion requires proof by preponderance of the probabilities. So that a party like the plaintiff in this case who is asserting title to land must do so to the degree of certainty of belief in the mind of the court (sic) of facts by which this court must be convinced of the existence of those facts as being more probable than otherwise.</strong></p> <p><em><strong>I am convinced that the plaintiffs by their testimony have proved their case by the preponderance of the probabilities and are entitled to their reliefs. The plaintiffs have earned this view of the court quite aside from the fact that the defendants proved no match under the circumstances of the case. The plaintiffs set out to discharge the burden on them by the testimony of the 2nd plaintiff and other credible witnesses.”</strong> </em></p> <p>The trial judge thereafter examined the evidence in detail and stated that he was impressed by the testimony of plaintiff and his witnesses as against the defendants.</p> <p><strong>COURT OF APPEAL JUDGMENT</strong></p> <p>The main ground upon which the Court of Appeal reversed the finding of the trial judge on the evidence is captured at page 426 of the record in the following words;</p> <p><em><strong>“Had the trial court properly evaluated the evidence, the plaintiffs ought to have lost the case on the sole ground that by the 1992 High Court judgment exhibit 9 the land belongs to the KLE MUSUM QUARTER of Teshie to which the defendants’ family belongs”.</strong> </em></p> <p>The Court of Appeal in their judgment indicated other grounds for their decision but those issues appeared to be premised on the assumption that Exhibit ‘9’ was conclusive that the land in dispute in this case belongs to Kle Musum quarter of Teshie. They initially observed that, having regard to the documents relied upon by the parties, the trial judge ought to have <em>suo moto</em>  ordered a superimposition of the maps tendered in evidence or visited the land to obtain a clear picture of the area but then they held that since the land in dispute was clear the case could nevertheless be determined. At page 423 they said that;</p> <p><strong>“Fortunately, the fact that the parties are <em>ad idem</em> that the land is at Okpoi Gonno makes a resolution of the fundamental issue possible. Our duty now is to shift (sic) through and determine from the evidence on record including the several documents and judgments that were tendered whether, as contended by the appellant, there has ever been a binding decision on the ownership of Okpoi Gonno.”</strong></p> <p>That the parties were <em>ad idem</em> as to the land in dispute is further confirmed by the fact that in the course of the trial the 1st defendant amended his counterclaim and prayed for declaration of title to the exact land described by the plaintiffs which is shown on the map in the Land Certificate No 9043.</p> <p>As stated earlier, the Court of Appeal saw Exhibit ‘9’ as the binding judgment on ownership of Okpoi Gonno lands. Exhibit ‘9’ is a judgment of the High Court presided over by Omari Sasu J dated 20th February, 1992 in Suit No L993/81 between Adjei Onanko II, who sued for land said to be at Okpoi Gonno on behalf of Kle Musum Quarter of Teshie, against one Ibrahim Mensah Komieteh also of Teshie who claimed that the Teshie Stool granted the land to his father. It appears that there was no appeal after the judgment. The Court of Appeal claimed that Omari Sasu J <strong>“held that the equitable and beneficial interest or title in the land in dispute <em>described as being at Okpoi Gonno</em> (sic) is vested in Kle Musum quarter”.</strong></p> <p><strong>APPEAL TO SUPREME COURT</strong></p> <p>In their Notice of Appeal in this court the plaintiffs stated only one ground of appeal namely; the judgment is against the weight of the evidence adduced at the trial. Though it was indicated in the notice of appeal that further grounds of appeal would be filed upon receipt of the record, none have been filed. Where an appeal is filed against a judgment on the ground that it is against the weight of the evidence, the appellate court is required to comb through the whole record of appeal and determine for itself if, having regard to the relevant law in the case and the evidence, the court from which the appeal has been brought was justified in its findings and conclusions. See <strong>Tuakwa v Bosom [2001-2002] SCGLR 61. </strong></p> <p>Plaintiffs at paragraph 18.0 of their statement of case argued that; <strong>“Though he (respondent) relied on various judgments, he did not show that the judgments he had covered the land of the plaintiffs.” </strong>This submission goes to the heart of the judgment of the Court of Appeal since, according to them, Exhibit ‘9’ covered the land in dispute. However, we have discovered that a close reading of Exhibit ‘9’ casts a serious doubt on the correctness of that fundamental statement in the judgment of the Court of Appeal, namely; that Omari Sasu J held that equitable and beneficial interests in Okpoi-Gonno lands belongs to Kle Musum quarter of Teshie. Permit us to quote Omari Sasu J at length from pages 128 to 129 of volume 2 of the record;</p> <p><em>“It must be observed here that it is not the whole of defendant’s land which is in dispute. What is in dispute is the area coloured green in exhibit ‘C’. This area in dispute is roughly between 1/3 and ½ of the total land of defendant. This court in the course of the trial visited with the parties and their respective counsel Okpoi-Gonno, the land in dispute, ANETE’s village and crossed the Accra-Tema motorway to ADJIRINGAO.</em></p> <p><strong><em>From what was seen, OKPOI GONN VILLAGE where defendant lives is completely outside the area in dispute.</em></strong><em> Even though defendant maintained that since the village was founded by his late father his descendants have continued to live at the original OKPOI GONN, defendant’s witness ODOI KWAME (DW1) said defendant is not living at the original site of OKPOI GONN. <strong>Be the true position as it may, what was observed during the visit is that the only human habitation or human activity this court found within the area in dispute which is coloured green in Exh C was the village of ANETE.</strong> This man claims he was granted his settlement by the plaintiff quarter. Apart from ANETE’s settlement which is within the land in dispute there were no farms or settlements within the land in dispute. I accordingly find as a fact and hold that defendant is not in possession and occupation of the land in dispute.” </em></p> <p>Omari Sasu J concluded his judgment thus; <em>“What is left is equitable or beneficial interest or tile. This I declare is vested in plaintiff’s KLE MUSUM QUARTER in respect of the land in dispute, which land is coloured green in Exh C.”</em></p> <p>By “the land in dispute” Omari Sasu J was obviously referring to his description of it upon the visit which excluded Okpoi Gonno. What is clear to us from the above quoted passages is that the land in dispute in the suit in Exhibit ‘9’ did not include OKPOI GONNO and the judgment that was delivered did not declare Kle Musum quarter to be owners of Okpoi Gonno lands. The second point of note is that, irrespective of the manner Kle Musum quarter described the land they claimed in their statement of claim in that suit, the map they tendered which was superimposed on the map of Ibrahim Mensah Komieteh did not extend to cover Okpoi Gonno where Ibrahim Mensah Komieteh was living at the time of the case. These facts which were personally observed by the High Court judge and stated in his judgment are binding against defendants since they relied on Exhibit ‘9’ in this case.  It is revealing that the defendants decided to tender Exhibit ‘9’ without the accompanying composite plan referred to in the judgment which showed the extent of land Kle Musum quarter claimed in that suit. In any event, since in that case the claim of Kle Musum did not extend to Okpoi Gonno, if defendants had tendered the composite plan which was the basis of the judgment in Exhibit ‘9’ the question here would have been why has their claim now been extended to Okpoi Gonno which they did not claim in the 1981 suit? Therefore, the Court of Appeal, with due regards, fell in error when they held that in Exhibit ‘9’ the High Court held that Okpoi Gonno lands belong to Kle Musum quarter. On the contrary, Exhibit ‘9’ would act as estoppel against Kle Musum quarter from laying claim to Okpoi Gonno lands since in the earlier suit they did not claim those lands. Consequently, we reverse that finding of the Court of Appeal and take the view that by Exhibit “9” Okpoi Gonno lands are not part of Kle Musum quarter lands.</p> <p>The Court of Appeal by stating that Exhibit ‘9’ was a judgment binding on the parties in the current case treated it as <em>res judicata</em> but in law a party who seeks to rely on <em>res judicata</em> is required to plead and prove the elements of the <em>res judicata</em>. In the case of <strong>In Re Sekyedumase Stool Affairs; Nyame v Kesse alias Konto [1998-99]SCGLR 476,</strong> Acquah, JSC (as he then was) at pages 478 to 479 of the Report said as follows;</p> <p><em>“The plea of res judicata really encompasses three types of estoppel: cause of action estoppel, issue estoppel in the strict sense and issue estoppel in the wider sense. In summary, cause of action estoppel should properly be confined to cases where the cause of action and the parties (or their privies) are the same in both current and previous proceedings. In contrast, issue estoppel arises where such a defence is not available because the causes of action are not the same in both proceedings. Instead it operates where issues, whether factual or legal, have either already been determined <strong>in previous proceedings between the parties</strong> (issue estoppel in the strict sense) or where issues should have been litigated in previous proceedings but, owing to “negligence, inadvertence, or even accident,” they were not brought before the court (issue estoppel in the wider sense), otherwise known as the principle in Henderson v Henderson (1843) 3 Hare 100; See also In re Yendi Skin Affairs; Andani v Abudulai [1981] GLR 866. CA. The rationale underlying this last estoppel is to encourage parties to bring forward their whole case so as to avoid a succession of related actions”</em></p> <p>So the three conditions for invoking issue estoppel are that;</p> <p>1.    The same issue must have been decided in the earlier case;</p> <p>2.    The judicial decision in the earlier case must have been final; and</p> <p>3.    The parties in the current case must be the same parties in the earlier case or their privies;</p> <p>See also the House of Lords case of <strong>Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 2) [1976] AC 853.</strong></p> <p>In the instant case, <em>res judicata</em> would not apply because, first of all, the subject matter of the previous judgment did not cover Okpoi Gonno land which is the issue the Court of Appeal sought to determine in this case. Secondly, the plaintiffs and their grantors were neither parties in the earlier case nor are they privies of Ibrahim Mensah Kometeh who claimed he got the land from the Teshie Stool. This analysis applies in respect of the other judgments that the defendants  tendered and relied upon at the trial. They failed to prove that the subject matter decided upon and the parties in any of those cases were the same as in the present case.</p> <p>We have observed that the Court of Appeal, being under the impression that Exhibit “9” held that Okpoi Gonno lands are part of Kle Musum lands, stated in their judgment that if the plaintiffs had conducted a search before acquiring the land they sued for it would have come to their attention that Kle Musum Quarter registered a declaration at the Lands Commission in 1965 claiming ownership of the land in dispute in this case. In the first place, as has been submitted by the plaintiffs in this appeal, which we are in agreement with, there was no evidence before the court to the effect that the land in dispute in this case was within Kle Musum quarter land so that claim by the Court of Appeal was, with the greatest respect, misconceived. It was the defendants who as their main defence alleged that plaintiffs’ land was part of Kle Musum quarter land covered by series of judgments and the 1965 Declaration but that was denied by the plaintiffs wherefore it was set down at the application for directions as an issue for determination at the trial. Under those circumstances, the burden of proof of  that issue was upon defendants to introduce sufficient evidence to avoid a ruling by the court against them. Sections 11(1), 14 and 17 of the Evidence Act, 1975 (NRCD 323) provide;</p> <p><strong>11. Burden of producing evidence defined </strong></p> <p><strong> (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.</strong></p> <p><strong>“17. Allocation of burden of producing evidence </strong></p> <p><strong> Except as otherwise provided by law, </strong></p> <p><strong> (a) the burden of producing evidence of a particular fact is on the party against whom a finding  on that fact would be required in the absence of further proof; </strong></p> <p><strong>14. Allocation of burden of persuasion </strong></p> <p><strong> Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.</strong></p> <p>The combined effect of sections 11(1), 14 and 17 of NRCD 323 is that if a party, such as the defendant in this case, fails to discharge the burdens of producing evidence and persuasion in respect of any issue of fact which are upon him, the court is obligated to find against him on that issue. In the case of <strong>Total Ghana Ltd v Thompson [2011] 1 SCGLR 458</strong> this court, speaking through Anin Yeboah, JSC, said as follows at page 463 of the report;</p> <p><em>“We think that by its conduct of neither calling the police alleged to have investigated the complaint against the plaintiff nor the person who had allegedly made statements that had implicated the plaintiff, the defendants may be said to have admitted plaintiff’s claim that the allegations made against him were untrue. In the particular context of this case, in our thinking, an obligation on the part of defendant company to credible evidence to the trial court that would render the allegation on which its suspension of plaintiff was based, more probable than the version of a denial by plaintiff. By the operation of the relevant sections of the Evidence Act, 1975 (NRCD 323), relating to the burden of producing evidence, in particular, sections 11(4) and 14 of the Act, the defendant left the trial court with no option than coming to the conclusion that the allegation made against the plaintiff that had informed his suspension was untrue.”</em></p> <p>In the above case, though Total Ghana Ltd was the defendant, it carried the burden of proof on the averments they made in their defence regarding the grounds for dismissal of the plaintiff. They tendered only the police investigation report without calling the investigator to testify, which the Supreme Court held did not amount to sufficient proof. In similar vein, the defendants in the instant case tendered a number of judgments and the 1965 Declaration by Kle Musum quarter without proof that the plaintiffs’ land was covered by these documents. As that issue was specifically set down for trial at the application for directions, this court, as an appellate court, is required to review the evidence on record and determine the case guided by the allocation of the respective burdens as was done in <strong>Total Ghana Ltd v Thompson</strong> (supra). In the light of our comments on Exhibit “9” and the other documents tendered by defendants, we are of the opinion that defendants failed to prove that the land in dispute is part of Kle Musum quarter lands referred to in the 1965 declaration.</p> <p>Besides the failure of defendants to prove that plaintiffs land is covered by the 1965 Declaration, we have noticed that the probative value of that declaration by itself alone as proof of title of Kle Musum quarter to the land covered by it has been rejected by the Court of Appeal and the Supreme Court in some of the judgments tendered by the defendants themselves in this case. The map attached to the 1965 declaration tendered as Exhibit “7” can be found at page 104 of the record and the settlement of OTINSHI is therein indicated to be within the land declared by Kle Musum quarter as its land. Exhibit ‘3’ tendered by the defendants is a judgment dated 17th November, 2000 delivered by Asare Korang J in a case filed by Dr Theodore Adjei Osae and Another in which they claimed against Kle Musum quarter for declaration of title to Otinshie lands. That decision of the High Court in favour of the plaintiffs and against Kle Musum quarter was affirmed by the Supreme Court which judgment dated 7th May, 2008 can be found at page 308 of volume 1 of the record. In that case Kle Musum quarter relied on the 1965 declaration among other grounds to claim ownership of Otinshie lands but that was rejected by the court in the following terms;</p> <p><strong>“Exhibit B was also tendered in the suit entitled Nii Adjei Obadzen II versus Nii Adjei Onanka II, Court of Appeal 11th May 1982 (unreported), where the observation was made that the said exhibit was a self serving document unsupported by any allodial owner and unilaterally prepared.</strong></p> <p><strong>I have myself observed already that the decision to order the survey in 1961 of Kle Musum lands beyond the railway line was unilateral and unsupported by law or custom. The Statutory Declaration, Exhibit B, cannot therefore be regarded as carrying any weight or influence as far as Kle Musum quarter lands are concerned. </strong></p> <p><strong>Assuming Exhibit B was at any time published, the publication had no legal significance because as Dr Odame Larbi (D1W6) said, the decision that Statutory Declarations be given wide publication was an administrative and not a legal decision.”</strong></p> <p>The finding of the Court of Appeal referred to by Asare Korang J and his own finding, which has been affirmed by the Supreme Court, is to the effect that the 1965 Declaration of Kle Musum quarter was, like all statutory declarations claiming ownership of land, a self-serving document. See also the cases of <strong>In Re Ashalley Botwe Lands [2003-2004] SCGLR 420 and Mondial Venner (Gh) Ltd v Amuah Gyebu XV [2011] 1 SCGLR 466.</strong> The Court of Appeal in the instant case were bound by their previous decision and that of the Supreme Court on the status of the Kle Musum Declaration of 1965 and ought not to have relied on the comments of a High Court and accorded the Kle Musum Declaration special status.</p> <p>Haven discounted the several documents tendered by the defendants, we are left with the testimonies of the parties, the documents of the plaintiffs which were in respect of the particular land in dispute in this case, and the evidence of the witnesses called by the plaintiffs. The plaintiffs’ tendered their grantors’ document of title showing that as far back as 1991 the Bortei Alabi family documented a grant of the land acquired in accordance with customary practices from the Nungua Stool. They had the land surveyed by the Director of Surveys as part of their application to register the land under the Land Title Registration Law and in 1994 they were issued with Land Title Certificate. Two witnesses from the Nungua Stool testified in support of the grant to the Bortei Alabi family. From the evidence on record, it was in 2000 that the defendants entered the land through persons they had sold portions to and that  sparked off this litigation. The defendants had no description of the actual land in dispute and had to rely on plaintiff’s document to describe the land they counter claimed for. At the start of the case the plaintiffs applied and were granted on order of interim injunction restraining the defendants and their grantees from developing the land pending the final determination of the suit. The defendants ignored the order of interim injunction wherefore the plaintiffs applied for their attachment for contempt of court. The court even went as far as making an order for the arrest of defendants’ workmen. In the 1st defendant’s statement of case he sought to rely on the structures built during this period in the teeth of the litigation and in violation of the court’s orders as acts of possession that should enure to the advantage of defendants. Such developments cannot have priority over  plaintiffs grantors dealing with the land which on the evidence on the  record was as far back as 1991, nine years earlier. See <strong>Ankrah v Ofori [1963] 2GLR 403.</strong></p> <p>We have evaluated the whole of the evidence of the plaintiffs as against that of the defendants and are of the view that since in the Declaration of Kle Musum quarter they stated that they originally purchased the land from the Nungua Stool and the plaintiffs trace their grant from the Nungua Stool, the failure by defendants to lead any evidence to prove that the disputed land is part of the area originally purchased from the Nungua Stool undermined their claim as they acknowledged the ownership of the Nungus Stool. See the case of <strong>Apapam Stool v Ataa (1957) 1 WALR 117.</strong> Therefore, considering the relative strengths of the rival cases, that of the plaintiffs who claim a purchase from the admitted owners looks more probable and ought to have been preferred by the Court of Appeal. The decision to reverse the trial court was in the circumstances unreasonable.</p> <p>The Court of Appeal in their judgment made an issue of the discrepancy in the size of the land as stated in the lease between the Nugua Stool and Bortei Alabi family and what is recorded in the 2nd plaintiff’s Land Certificate. The former document had 13.80 acres and the later 11.398 acres. The appellants in their statement of case argued that since the acreage in the certificate is smaller than that in the lease there ought not to be any problem. The respondent did not make any submissions in this appeal on this aspect of the case but suffice it to say that by section 36 of PNDCL 152, the Registrar of Lands may require the Director of Surveys to survey land for the purposes of the Land Title Registration Act. We have taken notice of the fact that the Director of Surveys signed the map in the Land Certificate tendered by the plaintiffs. As for the attachment of the lease of Bortei Alabi family to the certificate of 2nd plaintiff that has been explained in the body of the certificate and the Memorials. The interest registered for 2nd plaintiff is the unexpired term of the lease of Bortei Alabi family and the interest is subject to the terms and covenants of that lease, hence its attachment. Besides, the interest of the Bortei Alabi family was acquired under customary law and a document only adds to such customary interest but cannot derogate from it. See <strong>Ankrah v Ofori &amp; Ors [1974] 1 GLR 185 C.A. </strong></p> <p>The appellants have argued before us that the registration of their interest in the land makes their title indefeasible except it is proved that the registration was made by mistake or fraud. That was the import of the first issue that was set down for determination in the trial. This is what the statute provides;</p> <p><strong>“Effect of Registration  </strong></p> <p><strong> 43. Indefeasibility of registration </strong></p> <p><strong> (1) Subject to subsections (2), (3) and (4) of this section and to section 48, the rights of a registered proprietor of land whether acquired on first registration or acquired subsequently for valuable consideration or by an order of a Court, are indefeasible and shall be held by the proprietor together with the privileges and appurtenances attaching to the land free from any other interests and claims. </strong></p> <p><strong>(2) The rights of a proprietor are subject to the interests or any other encumbrances and conditions shown in the land register. </strong></p> <p><strong>(3) This section does not relieve a proprietor from a duty or an obligation to which the proprietor is otherwise a trustee. </strong></p> <p><strong>(4) The registration of a person as the proprietor of land or an interest in land does not confer on that person a right to minerals not already vested in that person.”</strong></p> <p>As was stated with authority by Atuguba, JSC in the case of <strong>Republic v High Court (Fast Track Division); Ex parte National Lottery Authority (Ghana Lotto Operators Association &amp; Others Interested Parties) [2009] SCGLR 390</strong> at page 397;</p> <p><em>“ It is communis opinion among lawyers that the courts are servants of the legislature. Consequently, any act of a court that is contrary to a statute such as Act 722, s 58 (1)-(3) is, unless otherwise expressly or impliedly provided, a nullity…..Consequently, the courts have been bound to hold that the courts’ own law, the common law as defined in article 11(2) of the 1992 Constitution, must give way to statute.”</em></p> <p>So, to the extent that defendants did not prove any of the exceptions above and mistake or fraud, the attacks on the plaintiff’s certificate ought to have failed. The 1st defendant in his statement of case argued at paragraphs 30 to 35 thereof on an allegation of fraud against the grantors of plaintiff in relation to the signature of the Gborbu Wulomo, one of the head grantors, on their lease which is inserted in plaintiff’s Land Certificate. But that issue about the alleged forgery of the signature of the Gborbu Wulomo was investigated by the police and plaintiffs grantors were prosecuted before the Greater Accra Regional Tribunal sitting at Tema which, by its judgment dated 13th February, 2002 tendered as Exhibit ‘J’ in the trial court, acquitted them of the charges. In our opinion, that rested that charge. Besides, that case was made in 2000 whereas the plaintiff’s certificate is dated 22nd April, 1999 and there is no evidence that he became aware of even the allegation before the acquisition.</p> <p>In the conclusion of his statement of case 1st defendant, submitted that the overwhelming evidence on record supported the judgment of the Court of Appeal. We disagree with that submission and have already in this opinion explained the reasons for our position that the judgment of the Court of Appeal is not supported by the evidence on record. In the result, we find merit in the appeal and accordingly allow same. We set aside the judgment of the Court of Appeal dated 4th June, 2015 and restore the judgment of the High Court dated 4th July, 2011 with a slight modification. The trial judge awarded plaintiffs general damages of GHC50,000.00 at the time taking into consideration the length of time they had been prevented from developing their land together with their foreign partners. Today is about eight years on since the High Court gave its judgment and taking that into account we award the plaintiffs general damages of GHC80,000.00.</p> <p><em>             <strong>G. PWAMANG </strong></em></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><a name="_Hlk536045335" id="_Hlk536045335"><strong> BAFFOE-BONNIE, JSC:-</strong></a></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>                                                                     P. BAFFOE-BONNIE</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong>GBADEGBE, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>                                                                       N. S. GBADEGBE</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>DORDZIE (MRS.), JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>A.   </strong><strong>M. A. DORDZIE (MRS.)</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong>KOTEY, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Pwamang, JSC.</p> <p> </p> <p><strong>                                                                 </strong></p> <p><strong>                 PROF. N. A. KOTEY</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p> </p> <p><strong>COUNSEL</strong></p> <p>KWABENA ANKAMAH OFEI-BADU FOR THE PLAINTIFS/RESPONDENTS/APPELLANTS.</p> <p>OSAFO BUABENG FOR THE 1ST DEFENDANT/APPELLANT/RESPONDENT.</p> <p><em>FOSU GYEABOUR FOR THE 3RD DEFENDANT/APPELLANT/RESPONDENT.</em></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p></span></div></div> </div> </div> Wed, 23 Jun 2021 10:53:55 +0000 Anonymous 1862 at http://ghalii.org Tema Oil Refinery Vrs African Automobile Ltd (213 of 2009) [2010] GHACA 1 (11 March 2010); http://ghalii.org/gh/judgment/court-appeal/2010/1 <span class="field field--name-title field--type-string field--label-hidden">Tema Oil Refinery Vrs African Automobile Ltd (213 of 2009) [2010] GHACA 1 (11 March 2010);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/369" hreflang="x-default">EL</a></div> <div class="field__item"><a href="/taxonomy/term/385" hreflang="x-default">Minerals</a></div> <div class="field__item"><a href="/taxonomy/term/386" hreflang="x-default">oil and gas</a></div> <div class="field__item"><a href="/taxonomy/term/387" hreflang="x-default">Transnational and international dispute resolution</a></div> <div class="field__item"><a href="/taxonomy/term/388" hreflang="x-default">Public interest in environment</a></div> <div class="field__item"><a href="/taxonomy/term/378" hreflang="x-default">Attribution of Costs</a></div> <div class="field__item"><a href="/taxonomy/term/389" hreflang="x-default">Government Contracting</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 06/23/2021 - 10:48</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>In this Court of Appeal case, the court determined who breached the contract of oil supply between the appellant and the respondent. The contract ran into a deadlock after three deliveries of the product when the appellants refused to accept one of the respondents’ deliveries upon presentation. The reason given for the resultant stalemate was that the product was not of the specification ordered.<br /> The court below had penalised the appellant for unnecessarily breaching a contract. The appellant felt aggrieved and appealed to seek an overturn of the trial court’s judgment entered in favour of the respondents.</p> <p>The Court of Appeal thus determined if there was a variation in the contract, when did that occur and also what did the variation entail.</p> <p>In response, the Court of Appeal held that there was nothing on record to persuade the court that the respondent product was not of the specification ordered. The court thus maintained the decision of the court below. However, the Court of Appeal noted that the cost granted in the court below was exorbitant. In the end, the court dismissed the appellant case, but the costs awarded in the court below was accordingly varied. </p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.ghalii.org/files/judgments/ghaca/2010/1/2010-ghaca-1.pdf" type="application/pdf; length=800433">2010-ghaca-1.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p>IN THE SUPERIOR COURT OF JUDICATURE</p> <p>IN THE COURT OF APPEAL</p> <p>ACCRA.</p> <p> </p> <p>Coram: J.B.Akamba, JA                  Presiding</p> <p>            Yaw Appau,            Justice of Appeal</p> <p>           Victor Dotse Ofoe, Justice of Appeal.</p> <p>H1/213/2009</p> <p>11TH MARCH 2010</p> <p> </p> <p>   Tema Oil Refinery                              Defendant/Appellant</p> <p>   Vrs. </p> <p>African Automobile Ltd                                       Plaintiff/Respondent                 </p> <p> </p> <p>-------------------------------------------------------------------------------------------------------------</p> <p>JUDGMENT</p> <p>-------------------------------------------------------------------------------------------------------------</p> <p> </p> <p>J.B.AKAMBA, J.A: The defendant/appellant (simply the appellant) is an Oil Refinery company based in Tema. Sometime in 2002, appellant invited tenders for the supply of one million, six hundred thousand litres (1,600,000 Lt) of “<em>marine mix”</em>.  The contract bid price was expressed in euros. Two suppliers won the contract - the plaintiff/respondents (simply respondent/s) and GOIL Limited. The respondent was awarded a contract to supply six hundred thousand (600,000) litres marine mix at a unit price of euro 1.63 of the tender whilst GOIL was to supply the remainder.</p> <p> </p> <p>The appellant issued a Purchase Order No.400041120P on 22nd August 2002 (see Exhibit “A”) to the respondent to confirm the contract.  It is apparent from the records that after three deliveries of the product, the contract run into a deadlock.  This occurred when the appellants refused to accept one of the respondents’ deliveries upon presentation.  The reason given for the resultant stalemate was that the product was not of the specification ordered.  The appellants said they were actually reacting to “<em>numerous complaints countrywide on products supplied in December 2003 which had caused outboard motors to malfunction”.  </em>Exhibit 19 is a report tendered by the appellant in support of the “<em>alleged contaminated premix fuel”</em> dated 26th May 2009 .  Attached to the exhibit 19 is a list of fifteen deliveries of premix to various landing beaches on the South West Coast of Ghana.  On the list were the Oil Marketing Companies which were responsible for those landings.  These companies were GOIL, GLORY, STAR, OANDO and AGAPEY.  Indeed out of 27 location landings listed, fifteen (15) were by GOIL company and the remainder shared amongst the remaining four companies above mentioned.  None of the offending deliveries was traced to the appellants (Tema Oil Refinery (TOR) directly nor the respondent.  Following the refusal to accept the 4th consignment on 21st June 2004 the appellants set up a committee to investigate the allegation of non compliance with specification of the marine mix.  The committee mandated an independent expert – Tema Lube Oil Ltd (TLOL) - to test samples of the engine oil supplied by the respondent and report. The test report confirmed the sample oil to be good quality SAE 30 grade engine oil which is ashless, detergent and with a moderate alkaline reserve and conforms to the National Marine Manufacturers Association’s (NMMA) specifications known as TCW2 and may be recommended for production of premix fuel for use in outboard motor engines.  The Independent expert (TLOL) wrote a second report which was more conclusive on the same sample on the same 8th September 2004 (Exhibit B) in which it recommended the oil for production of premix fuel for use in out board motor engines.</p> <p> </p> <p>Further tests were undertaken which also yielded positive results as confirmed by exhibit 22 issued on 11th November 2004. As a result of the satisfactory tests, deliveries of marine mix to the appellants (TOR) were resumed as per exhibit “C”.  Significantly, the exhibit “C” in its second paragraph introduced a new element when it stated that it had however become necessary for TOR “<em>to vary the specifications for the</em> <em>marine mix</em>” and by a copy of this letter “<em>Dr. Ali Abugre (D.M.D Engineering and Production) of TOR is requested to provide you with the revised specifications for the marine mix”.</em> It is obvious from the above quotation from exhibit C that the decision to vary the specifications was the unilateral initiation of the appellants. Respondents in accordance with this new development submitted samples of their next delivery in accordance with the revised specifications for testing. The results were positive as evidenced in exhibit D.  Consequently respondents were informed to supply 354,000 litres of the product which is the balance outstanding.  The resultant product when delivered by the respondents was once more turned down by the appellants.</p> <p> </p> <p>Following from these developments, the respondent issued two letters alleging and claiming losses occasioned by the appellant’s refusal to receive the remainder of order 40004112 OP (exhibit A). The respondent presented a claim of 660,120 euros as “<em>lost revenue on TOR order for marine mix”. </em>The apparent result of these letters was a meeting attended by both parties on 16th December 2005 the outcome of which is purported to be conveyed in exhibit J. The respondents’ reaction to exhibit J is conveyed in exhibit K in which they deny both the accuracy of the contents of exhibit J and the sincerity of the appellants in the deal actually arrived at.</p> <p> </p> <p>Certainly the quibbles that followed after the 16/12/2005 meeting did not extend to the supply of the 49,200 litres packed in 240 drums of the marine mix which was obviously part of order No 400041120P as the same was promptly paid for at the rate of euro 1.63 per litre. The contention related rather to the subsequent changes. The resultant divergent positions evidenced in correspondences exchanged by the parties following the 16th December 2005 meeting attests to a lack of consensus as to what was actually agreed between them.</p> <p> </p> <p>It is against this background of disagreements between the parties that the respondents as plaintiffs issued a writ against the appellants herein as defendants seeking an order for recovery of an outstanding  sum of Euro 144, 424.83 or its cedi equivalent due them for the supply of marine mix to the appellants; interest on the above sum from 31st October 2006 to date of final payment; damages for breach of contract; mandatory order for defendant (appellant) to furnish plaintiff (respondent) with a new delivery schedule  on the balance of deliveries; any other reliefs; costs including solicitor’s fees.</p> <p>The defendant/appellant denied the plaintiff’s claims and counterclaimed for a declaration that the contractual relationship between the parties was redefined and substituted by the terms of agreement reached on 16/12/05; a declaration that plaintiff is in breach of the agreement of 16/12/05; declaration that the prices quoted on the invoices described, do not flow from the common agreement arrived between them in December 2005; declaration that plaintiff could not make any supplies in total disregard of the purchase order of 10/05/06 and that plaintiff knew it was bound to be paid the price stated  in the said order when it did supply upon receipt of the order; declaration that defendant had fully paid for products submitted by plaintiffs as per waybills; declaration that the 50,000 litres marine mix products supplied by plaintiff does not meet the specification standard of defendant; an order that plaintiff  takes back the said 50,000 litres from the stores of defendant  company or in the alternative that same be destroyed and cost recovered from defendant; general damages for breach of contract; general and specific damages for avoidable litigation and costs.</p> <p> </p> <p>In this court the appellant is seeking an overturn of the trial court’s judgment entered in favour of the respondents. The notice of appeal filed on 5th September 2008 listed a prolixity of fourteen (14) so called grounds of appeal. Strictly speaking only one of the fourteen conforms to rule 8 of CI 19 as amended by CI 21. The relevant ground is that which alleges that the judgment is against the weight of evidence. In resolving that sole ground however I may consider the other thirteen particulars as and when appropriate as particulars of misdirection to be dealt with. </p> <p> </p> <p>Whenever an allegation is made before an appellate court that the judgment is against the weight of evidence, the court is obliged to examine the totality of evidence on the record of appeal and come to its own conclusion as to the admitted and disputed facts. See Akufo Addo vs Catheline (1992) 1 GLR 377; Boafo v Boafo (2005-2006) SCGLR 705 @ 715.</p> <p> </p> <p>I propose to consider items D, E and F under the omnibus ground. The combined effect of these three complaints of misdirection is whether or not the parties had compromised the original contract or as in the words of the appellant, ‘settled’ on their original contract? If there was a settlement whether the plaintiff voluntarily waived any purported right to sue on the alleged termination or repudiation of the 2002 contract?  To my mind the proper description of the concept sought to be highlighted is one of variation or modification of the contract in the light of prevailing circumstances. Crucial to the resolution of this impasse is the import of the deliberations that took place on 16/12/05.  Did the outcome of the meeting of 16/12/05 result in a variation of the contract? The trial judge’s finding was that <em>“there was no agreement to substitute the terms of order 40004112OP with any other terms”.</em> The reason given for the above conclusion was that “<em>the outcomes and alleged agreements reached were hotly contested by both sides in writing and left each other in no doubt that they had not changed the original contract with any new terms”</em>. What can be seen was that the appellant (defendant) left the meeting believing that they had agreed to change the price of order 40004112 OP to GOIL’s price and to change the specifications to one that would be ‘<em>communicated’</em> later. The respondent (plaintiff) on the other hand, believed that the meeting rather affirmed their entitlement to compensation for the delays in accepting their deliveries through the 2006 order. Respondent further understood the requirement to supply at GOIL price as qualified to mean only when “<em>it is not lower than its own price</em>”.</p> <p> </p> <p>In business undertakings it is sometimes inevitable for changes in the result of the contract to occur or vary over time necessitating another look at the contract requirements. While some variations may be common or inherent in a system, others may be special which are caused by changes in the circumstances or environment. In general a contract in writing cannot be altered by the promisee without the consent of the promisor but a contract may be modified with the consent of the parties, whether the contract be by word of mouth, in writing or under seal. Where a variation which is inconsistent with the terms of the contract is made by consent, this amounts to a new agreement which supersedes the original contract; but an alteration, which consists merely in filling in details which were agreed upon before the contract was signed, or in correcting a mistake which was made in reducing the contract into writing, only expresses more accurately the original intention of the parties, and does not amount to a new agreement or affect the liability under the contract. (See Halsbury’s Laws of England Vol 8 Pt 5 Sect 1.)</p> <p> </p> <p>Was there a variation of the contract between the parties? If there was a variation, when did that occur and also what did the variation entail? The trial judge came to a conclusion concerning the meeting that took place on 16/12/05. This is how she articulated it: “<em>it is my clear finding that the meeting of 16th December 2005 did not lead to an agreement to redefine and substitute order 40004112 OP with any new terms. Agreement is formed from consensus and the exhibits evaluated show that there was no consensus to change the terms of agreement in order 40004112 OP after the meeting. Neither did it lead to an agreement to vary the order/contract because the parties were not at all idem on the specific points that could have varied the terms of the contract.”</em> My own reading of the record of appeal leads me to the conclusion that the trial judge’s evaluation of the evidence before her and the conclusion arrived at and quoted above was well founded. The numerous internal inconsistencies and conflicts in the appellant’s presentation during the trial inevitably lent credence to the trial judge’s finding on this claim. As this court stated in the case of Obeng vs. Bempomaa, (1992-1993) GBR 1027, CA, inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. There were conflicting stances between the DW2 on one side and the DW3 and DW 1 on the other on the crucial point as to whether or not there was agreement emerging from the meeting of 16/12/2005. For his part,  Kofi Kodua Sarpong DW2 (at page 176, lines 7 to 8 and 24 to page 177 lines 1 – 2 of the record of appeal) in his answers to questions under cross examination made it clear that the parties had not reached agreement at the said meeting. It was for that reason that DW2 decided to convene a further meeting between the parties. This led to the meeting on 1st March 2006 after which the DW2 said, they (appellants) requested the respondents to confirm the understanding reached. When the respondents failed to respond to the request, witness wrote a letter in May in which he stated the new volume, new specifications and the new price as well as a purchase order. There was no response to the two letters, exhibits 4 and 6 which are the same as exhibits S and T respectively that witness (DW2) wrote to respondents. Nevertheless the appellants on 7th January 2006 issued exhibit U authorizing the payment of Euro 76,186.20 in favour of respondent as payment for 240 drums of marine mix as per order 40004112 OP.  The 240 drums are the same as 49,200 litres of marine mix. The above assertions by DW2’s are in contrast to those made by both the company secretary DW3 and DW1 Dr Abugri.  Under cross examination DW1 was emphatic that the series of meetings that they had which were in common with that of 16/12/05 to resolve issues including pricing resulted in both parties agreeing on the GOIL price. Of course from the trend of the deliberations, it is obvious that DW2’s version of the narrative which supports the position stated by the respondents was more credible than the positions advanced by both DW 3 and DW 1 hence the trial judge’s preference thereof. This conforms to the provision of s.11 of the Evidence Act 323.</p> <p> </p> <p>Another significant point of divergence was the reason why the appellants sought a change in the specifications of marine mix. Granted that the parties are at liberty to seek an alteration or change in the supply specifications, given changes in circumstances or the environment, both parties must appreciate the exigency and given the opportunity to adjust or address the issue and consent thereto. In the instant case, the appellants claimed that the respondents had included an ‘<em>addictive</em>’ (sic) to their original marine mix specification which resulted in protestations by the end users. As observed earlier in this judgment, of all the deliveries of marine mix to the south west coast of Ghana by various oil marketing companies, none was traced directly to the appellant (TOR) to whom the respondents supplied their product. This is quite significant for the purpose of apportioning blame as can be gleaned from answers given by DW 1 during the trial.  Under cross examination, the DW1 insisted that by their analysis, emulsion was formed from the plaintiff’s (respondent’s) marine mix. The witness did not tender any test proof of this assertion nor did the appellants provide any during trial. The witness mentioned the addictive (sic) contained in the GOIL supply as XTP-33 but could not provide any for that alleged to be contained in the respondent’s product. (See pages 152 – 153 of the ROA). The only analyst results tendered were those of the independent analysts which do not support the appellants’ claims.  The issue of additives to the specifications is a matter capable of scientific proof and so cannot be left to speculation or peradventure. Yet, the appellant valiantly peddled it as the reason for seeking a variation of the supply contract.  Besides, if the issue was traced to an <em>additive</em>, the response would not be for an entire change in specification as to a demand for the removal of the <em>additive. </em>Thus the assertion by Mohammed Hijazi in his evidence in chief (see page 33 Line 17 of the ROA) that “<em>if there is a change then it is TOR telling us about the variation of the specification and not that the product is different from what we supply”</em> is the truth.</p> <p> </p> <p>The respondents exhibited a great deal of composure and resilience in the unfolding events and agreed to subject their products for tests upon tests by the independent expert (TLOL) which all proved positive. The respondents by their own showing acceded to the appellant’s new demand for the supply to conform to new specifications which they (appellants) unilaterally demanded based upon a spurious claim that the previous supplies contained an additive which was not borne out by the tests. It is thus obvious that by acceding to the new specifications the respondents had consented to the variation of the contract but limited only to the issue of the specifications. The case of Sowah vs BHC (1982-83) GLR1324 @ 1346 is authority for the proposition that in Ghana parties can enter into a parol contact to supplement a contract under seal. Also the Contracts Act 1960 (Act 25) by its section 11 dispenses with the need for writing to make a contract valid or enforceable. It provides:</p> <p><em>“11. Subject to the provisions of any enactment, and to the provisions of this Act, no contract whether made before or after the commencement of this Act, shall be void or unenforceable by reason only that it is not in writing or that there is no memorandum or note thereof in writing.”</em></p> <p>The emerging trend or conclusion from the deliberations between the parties is that the respondents did agree to provide the new specification demanded by the appellant but this was before the meeting on16/12/2005. At page 33 of the ROA the Plaintiff states:</p> <p><em>“Q. Now when this product variation occurred did you comply with this?</em></p> <ol><li><em>Yes my Lord.</em></li> </ol><p><em>Q. How did you comply with it?</em></p> <p><em>A. We were given the specification and we supplied samples to TOR, a new sample to test and confirm that this new sample conforms to the specification, that is the new specification, and TOR confirmed that the sample is to their specification.”</em></p> <p> </p> <p>As to how the appellant confirmed that the sample conformed to their new specification the witness referred to exhibit D issued on 14th October 2005 by the appellant to the respondent. In the said exhibit D the appellant expressed their satisfaction about the sample and also informed the respondent to supply 354,000 litres marine mix being the balance left to be supplied. When the respondent resumed the supply in compliance with exhibit D the same was again rejected. It is evident from the ROA that there were disagreements within the confines of the appellant company as to who was in control of events surrounding the execution of this contract given the level of the countermanding of decisions. Nevertheless, given this position, it is quite clear that the change in specification was not a product of the meeting on 16/12/2005. The change in specification was agreed between the parties about two months earlier (14/10/2005) as attested by exhibit D. Those changes were circumscribed under the 2002 order. In spite of these changes there still were outstanding quibbles and disagreements and this necessitated the meeting on 16/12/2005. Those issues primarily had to do with a more far reaching variation of the order and the contract price. On these, the meeting of 16/12/2005 did not find consensus hence there was no agreement to vary the contract as a whole as rightly found by the trial judge. As the trial judge demonstrated, which we endorse, neither the tape recording nor the exhibit S show that the parties had agreed to redefine and substitute the terms of the original 2002 contract except for the specifications. At best what was conveyed in exhibits S and T was an offer requiring an acceptance to concretize into an agreement but which offer terms were unclear and uncertain. For the issue of what was the GOIL price was uncertain. Did it refer to the GOIL price calculated at 12,251 old cedis which translated into 1.71 euros at the time of the initial bidding or the 10,890 cedis suggested on 1/3/2006 or to other figures and if so what were they? As a result, since there was no settlement there could also not be a waiver of any right to sue on any termination or repudiation of the 2002 contract. The appeal on this ground therefore fails and is dismissed.</p> <p> </p> <p>The next ground of appeal relates to the reliefs granted by the trial court as being unwarranted in law. The first of these reliefs under attack is the award of euro 230,000.00 as special damages when no special damages were particularized in the pleadings. The trial High Court entered the following reliefs in favour of the respondent:</p> <ol><li><em>114,424.83 euros or its selling rate in cedis as outstanding payments for the supplied marine mix and drums with interest from 31st October 2006 to date of payment.</em></li> <li><em>71,394 euros as loss of profit on the 146,000 litres of oil that plaintiff was prevented from supplying with interest from March 2006,</em></li> <li><em>Special damages of 230,000 euros as costs that should reasonably have been in contemplation of defendant when it prevented the performance of this contract. Interest on this sum runs from date of judgment.</em></li> <li><em>General damages of 500,000 euros.</em></li> <li><em>Defendant is also ordered to pay plaintiff’s legal cost which is set at 30,000 euros. Court costs is set at cedis GHc 3,000.</em></li> </ol><p> </p> <p>The trial judge had rightly in my mind summed up the events culminating in the conclusion that the respondents were entitled to damages. Firstly the parties did not arrive at any conclusion to adopt a new contract or redefine exhibit A in their meeting on 16/12/2005 and 1st March 2006. The efforts to push exhibit S, T and 3 as new terms of agreement at an imprecise price beyond referring to it as ‘GOIL’ price was not accepted by the respondent. Even if the meetings held on 16/12/2005 and 1/03/2006 were ostensibly regarded as negotiations for settlement the results of those meetings would not be binding until accepted by both parties which is not the case in this appeal. (See Regional Maritime Academy vs Amaning &amp; Ors (2005-2006) SCGLR 717).</p> <p>The appellant could not invalidate exhibit A simply by repudiating it and presenting a new agreement in exhibit 3 which was not accepted by the respondent in any manner. The respondent demonstrated their rejection of exhibit S, T and 3 by continuing to act on exhibit A which they were entitled to do. The respondents continued delivery of consignments after the issue of exhibit 3 could not be taken as acceptance of exhibit 3 in the light of their clear indication that the deliveries were based on exhibit A. This state of affairs clearly placed a burden on the appellants to continue its performance or repudiate the exhibit A for good reason. Since the appellant failed to prove any breach of contract by the respondent in their performance under exhibit A they (appellant) had no good reason to repudiate same. In the circumstance the appellant was obliged to either perform exhibit A or be liable in damages for breach of contract. The appellants had received two deliveries under exhibit A for which only part payment was effected leaving a balance on account of euro 110,104.83(See exhibits G, L &amp; R). The court accordingly entered judgment for the outstanding sum in favor of respondent. The court also entered judgment for the sum of euro 4,320 damages for the 540 drums in which the marine mix was delivered bringing the total sum to euro 114,424.83. The appeal does concern itself with this grant in favour of the respondent.</p> <p>The appellant’s main attack is on reliefs’ b, c and d granted by the trial judge.</p> <p> </p> <p>Grant of Compensation in lieu of Specific Performance in relief (b) above.</p> <p> </p> <p>The appellant contends that the trial court exceeded its jurisdiction and was in patent breach of natural justice by ordering the payment of euro 71,394 to respondent in a purported substitution of their claim for <em>‘mandatory order directed at defendant to furnish plaintiff with a new delivery schedule on the balance of deliveries’</em>. Exhibit D written by the appellant confirms that as at 14th October 2005 the respondent had a balance of 354,000 litres of marine mix outstanding from the contract volume of 600,000 litres awarded (See exhibit A). It is not matter of mere conjecture that the respondent sought the relief of an order of the court for a ‘<em>mandatory order directed at defendant to furnish plaintiff with a new delivery schedule on the balance of deliveries’</em>. The appellant had provided very good reasons for seeking the relief. At page 55 of the ROA lines 6 to 25 and page 56 line 1 to 4 the following dialogue provides the reasons:</p> <p><em>“Q. You are telling or praying this court to make a mandatory order to order the defendant to give you new delivery to enable you deliver the balance?</em></p> <p><em>A. yes my Lord, because we are still holding stock to balance of which has been produced to their specification.</em></p> <p><em>Q. And will the contract price as at 2002 now be relevant to the balance of the product?</em></p> <p><em>A. It is not, world oil price have gone up.</em></p> <p><em>Q. The contract price still stands.</em></p> <p><em>A. Yes my Lord and the world price have gone up with several folds, the product is stock maintenance and storage interest.</em></p> <p><em>Q. You have sum up your total loss in exhibit H?</em></p> <p><em>A. Yes my Lord at the time of July 2005 and because we are not going to increase the price to match the current world price we maintain the other price but levy the interest and other cost and expenses, we are adding interest and other charges and cost. We have been suffering on daily basis and the total amount now owed is greater than the amount claimed here, the amount we claimed here as at July 2005.” </em></p> <p> </p> <p>In the light of the above evidence by the plaintiff (respondent) in support of the relief for a mandatory order by the court to enable them deliver the outstanding balance of 146,000 litres marine mix, why did the trial court find it an appropriate occasion to grant a different relief as it did? The respondent’s answer is pregnant with the suggestion that the marine mix to honour the whole contract is being held in stock awaiting delivery. With this understanding, what becomes of that stock in the light of the trial court’s order for the payment of the compensation? A number of authorities have been cited to support the position that a court has power to award reliefs not expressly claimed and to justify the trial court’s substitution of a different relief than that claimed. The following cases were cited to us namely:</p> <ol><li>Butt vs Chapel Hill Properties Limited &amp; Anor (2003-2004) SCGLR SC 636 @ 638 , holden (2) per Dr. Date Bah JSC.</li> <li>Hanna Assi (No 2) v Gihoc Refrigeration &amp; Household Products Ltd (No 2) (2007-2008) SCGLR 16</li> <li>Republic vs High Court, Kumasi Ex parte Boateng, SCGLR (2007-2008) 404, holden 2.</li> </ol><p> </p> <p>The above cited authorities support the principle that a court is entitled to apply the law to the facts of the case even if the parties were unaware of it. Beyond that they are certainly inappropriate to the present facts. In the present case the respondent who is mindful of the fact that it had stocked the products demanded under the contract is seeking an order of the court for the rescheduling of the delivery dates to enable him deliver. This is certainly in the nature of specific performance and the trial court having found as a fact that exhibit A is still binding and active; it laid within its power to grant same. There is a plethora of authorities to the effect that it is a travesty of justice if judgment is given against a party on a ground on which he did not have notice from the writ of summons or as in some cases from a counterclaim. This principle was applied in the following cases: Oloto v Williams (1944) 10 WACA 23; Dam v Addo (1962) 2 GLR 200; In re Okine (Decd);Dodoo &amp; Anor vs Okine &amp; Ors (2003-2004) SCGLR 582 @ 618. On the authorities referred above I find the reasons advanced by the trial court in substituting its own relief for that claimed by the respondent unjustified. I will in the circumstance grant this relief and set aside the award of euro 71,394 as compensation. In place of the relief set aside above, I hereby order the appellant to arrange to take delivery, first, of the outstanding balance of 146,000 litres marine mix which was rejected upon delivery, within three months of this judgment at the contract price spelt out in exhibit A i.e. euro 1.63 per litre with interest from March 2006 when the delivery was turned down to date of payment. The appellant is equally ordered to take delivery of the remaining balance of 108,000 litres within the same period and on the same terms i.e. at euro 1.63 per litre with interest from March 2006 to the date of payment. </p> <p> </p> <p>Award of Special and General Damages.</p> <p> </p> <p>The respondent asked for damages for breach of contract. They were instead awarded both general and special damages when the latter was not asked for.</p> <p>The position of the law regards special damages is that as the name indicates they are special and must be claimed with such particularity that the defendants know, not only the amount of loss or damage alleged to be suffered but also how that amount is made up or calculated. Any monetary loss suffered by the applicant up to the date of trial must be pleaded, particularised and proved or else it cannot be recovered. In the case of Stroms Bruks Aktie Bolag v Hutchison [1905] AC 515 at 525 – 526, HL (SC) Lord Macnaghten stated that: <em>“Special damages’…are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character, and, therefore, they must be claimed specially and proved strictly.” </em>(See also Andreas Bschor GMBH &amp; Co vs B.W.C. Ltd C.A 3rd April 2008, reported in (2008) 4 GMJ, 203). I found nothing in the pleadings and/or evidence at the trial in proof of any special damages to warrant the grant of this special relief against the appellants. In the premises I set aside the special damages of euro 230,000 awarded against the appellant as unproven.</p> <p> </p> <p>As regards the award of euro 500,000 general damages against the appellant, the appellant has not demonstrated to this court why this should not stand. When this suit begun, each party presented itself as the victim of high handedness, callousness and what have you, at the instance of the other. At the close of the trial it became abundantly clear that the appellant rather than the respondents could not acquit itself of blameworthiness for all the obstacles and impediments in carrying out the contract. The appellants created as many excuses as there were deliveries by the respondents and each time the latter tried to accommodate them until they could no longer bear them. The resultant unjustified refusal to accept supplies under the contact from the respondent created the discomfort of finding places to store these products. Of course these difficulties so created, more by the neglect of appellants than the suppliers, were within their contemplation being long time operators in the oil business. If businesses in this country are to run in the fashion exhibited particularly by the appellants, no private company either indigenous or foreign would be attracted to do business. It is quite evident that but the frustrating tactics arising out of the internal indiscipline exhibited or employed by the appellants, the whole contract would have been carried out by now. There is thus abundant evidence to warrant an award of substantial damages. Accordingly I will set aside the sum of euro 500,000 and substitute an award of euro 350,000 as substantial damages against the appellants.</p> <p> </p> <p>Legal and Court Costs.</p> <p> </p> <p>The trial court awarded what it called legal cost of euro 30,000 as well as court cost of GHC 3,000 against the appellants. I wonder what the basis for the award of the legal costs and in euros is. Did the respondent engage counsel from the euro zone to do the case? Or is it the case that the Ghana cedi is no longer the sovereign currency of this country? I can understand the parties fashioning out their contract in a unit of currency other than the cedi when the product to be supplied is produced outside this country. But for a situation wherein counsel are engaged in Ghana to provide legal service in Ghana I fail to understand why the court would award legal costs in a currency other than the cedi.  Order 74 of CI 47 regulates the award of costs. The award of costs is at the discretion of the court but, like every discretion, it is to be exercised in accordance with due process of law. This means an exercise of such discretion shall not be arbitrary, capricious or biased either by resentment or personal dislike. (See article 296 of Constitution 1992.) The trial judge gave no reason for the award of the legal cost in euros and the court costs. The court simply stated the following: <em>“Defendant is also ordered to pay plaintiff’s legal cost, which is set (sic) 30,000 euros. Court costs is set at cedis GHC 3,000 after looking at the court filing fees and the 30 or so times the parties had to come to court. All sums ordered to be paid in euros may be paid at the euro selling price of the cedi.”</em></p> <p> </p> <p>It is significant to point out that an award of costs is designed to compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made and provide reasonable remuneration for the lawyer of that party for work done by the lawyer. The court in assessing the amount of costs to be awarded may have regard also to the amount of expenses, including travelling expenses reasonably incurred by the party or his lawyer or both in relation to the proceedings; the amount of court fees paid by the party or his lawyer in relation to the proceeding; the length and complexity of the proceeding; the conduct of the parties and their lawyers during the proceedings and any previous order as to costs made in the proceedings.(See Order 74 rule 2 of CI 47). These provisions require that trial judges put in some efforts in the assessment of costs by stating the factors they consider in fixing a sum deemed appropriate if they are not to be unsettled on appeal. Counsel did not file any record of the work done and the fees attached as well as the basis for those figures to guide the court.</p> <p> </p> <p>This of course left the court with no option than to state that <em>‘the plaintiff’s cost is fixed at euro 30,000’</em> which appears rather arbitrary and not measurable to the legal requirement for the exercise of discretion by a judge. The factors that went into fixing the costs at such a high figure and the choice of currency have all not been deemed essential and so have not been stated. In appropriate cases costs may be ordered to be taxed by the court. What measure of tax shall be imposed if the costs are awarded in different currencies each with different par values? I find no justification for the costs awarded and same is accordingly set aside. From the record of appeal there were twenty two trial days and nineteen days when various processes were taken before the court. There is no record of the filing fees paid to guide this court besides what the trial judge stated when awarding the cedi component of the costs.  Bearing in mind the number of trial days and the measure of effort put in as gleaned from these records I assess the total costs inclusive of a reasonable lawyer’s fees at (GH¢ 6,000) six thousand Ghana cedis in favour of the respondents.</p> <p> </p> <p>Costs in this court will be assessed at (GH¢ 4,000) four thousand Ghana cedis          having in mind the level of industry put into this appeal by both counsel in which the main ground of appeal is dismissed and the reliefs partially substituted.</p> <p> </p> <p> </p> <p> </p> <p>J.B.Akamba</p> <p>Justice of Appeal</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>YAW APPAU, J. A.</strong></p> <p>I have read beforehand the judgment of my able senior colleague, Akamba, J.A. and I agree with him in toto that the appeal be dismissed subject to the variation orders made therein with regard to the award of damages and plaintiff/respondent’s legal cost.  I have nothing useful to add.</p> <p> </p> <p> </p> <p>                                                                                                                                        Yaw Appau</p> <p>                                                                                                                               Justice of Appeal</p> <p> </p> <p> </p> <p> </p> <p>I agree                                                                                                                   Victor Dotse Ofoe</p> <p>                                                                                                                               Justice of Appeal</p> <p> </p> <p><strong>COUNSEL</strong></p> <p>Mr. Adjabeng Akrasi for Defendants/Appellants.</p> <p>Mr Addo Atuah for the Plaintiff/Respondents.</p> <p>  </p> <p> </p> <p> </p> <p> </p> <p>      </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-8dc0c0326f38b945439f93663553ccc9addc0696a25d7d3c237c1e634333fbc3"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p>IN THE SUPERIOR COURT OF JUDICATURE</p> <p>IN THE COURT OF APPEAL</p> <p>ACCRA.</p> <p> </p> <p>Coram: J.B.Akamba, JA                  Presiding</p> <p>            Yaw Appau,            Justice of Appeal</p> <p>           Victor Dotse Ofoe, Justice of Appeal.</p> <p>H1/213/2009</p> <p>11TH MARCH 2010</p> <p> </p> <p>   Tema Oil Refinery                              Defendant/Appellant</p> <p>   Vrs. </p> <p>African Automobile Ltd                                       Plaintiff/Respondent                 </p> <p> </p> <p>-------------------------------------------------------------------------------------------------------------</p> <p>JUDGMENT</p> <p>-------------------------------------------------------------------------------------------------------------</p> <p> </p> <p>J.B.AKAMBA, J.A: The defendant/appellant (simply the appellant) is an Oil Refinery company based in Tema. Sometime in 2002, appellant invited tenders for the supply of one million, six hundred thousand litres (1,600,000 Lt) of “<em>marine mix”</em>.  The contract bid price was expressed in euros. Two suppliers won the contract - the plaintiff/respondents (simply respondent/s) and GOIL Limited. The respondent was awarded a contract to supply six hundred thousand (600,000) litres marine mix at a unit price of euro 1.63 of the tender whilst GOIL was to supply the remainder.</p> <p> </p> <p>The appellant issued a Purchase Order No.400041120P on 22nd August 2002 (see Exhibit “A”) to the respondent to confirm the contract.  It is apparent from the records that after three deliveries of the product, the contract run into a deadlock.  This occurred when the appellants refused to accept one of the respondents’ deliveries upon presentation.  The reason given for the resultant stalemate was that the product was not of the specification ordered.  The appellants said they were actually reacting to “<em>numerous complaints countrywide on products supplied in December 2003 which had caused outboard motors to malfunction”.  </em>Exhibit 19 is a report tendered by the appellant in support of the “<em>alleged contaminated premix fuel”</em> dated 26th May 2009 .  Attached to the exhibit 19 is a list of fifteen deliveries of premix to various landing beaches on the South West Coast of Ghana.  On the list were the Oil Marketing Companies which were responsible for those landings.  These companies were GOIL, GLORY, STAR, OANDO and AGAPEY.  Indeed out of 27 location landings listed, fifteen (15) were by GOIL company and the remainder shared amongst the remaining four companies above mentioned.  None of the offending deliveries was traced to the appellants (Tema Oil Refinery (TOR) directly nor the respondent.  Following the refusal to accept the 4th consignment on 21st June 2004 the appellants set up a committee to investigate the allegation of non compliance with specification of the marine mix.  The committee mandated an independent expert – Tema Lube Oil Ltd (TLOL) - to test samples of the engine oil supplied by the respondent and report. The test report confirmed the sample oil to be good quality SAE 30 grade engine oil which is ashless, detergent and with a moderate alkaline reserve and conforms to the National Marine Manufacturers Association’s (NMMA) specifications known as TCW2 and may be recommended for production of premix fuel for use in outboard motor engines.  The Independent expert (TLOL) wrote a second report which was more conclusive on the same sample on the same 8th September 2004 (Exhibit B) in which it recommended the oil for production of premix fuel for use in out board motor engines.</p> <p> </p> <p>Further tests were undertaken which also yielded positive results as confirmed by exhibit 22 issued on 11th November 2004. As a result of the satisfactory tests, deliveries of marine mix to the appellants (TOR) were resumed as per exhibit “C”.  Significantly, the exhibit “C” in its second paragraph introduced a new element when it stated that it had however become necessary for TOR “<em>to vary the specifications for the</em> <em>marine mix</em>” and by a copy of this letter “<em>Dr. Ali Abugre (D.M.D Engineering and Production) of TOR is requested to provide you with the revised specifications for the marine mix”.</em> It is obvious from the above quotation from exhibit C that the decision to vary the specifications was the unilateral initiation of the appellants. Respondents in accordance with this new development submitted samples of their next delivery in accordance with the revised specifications for testing. The results were positive as evidenced in exhibit D.  Consequently respondents were informed to supply 354,000 litres of the product which is the balance outstanding.  The resultant product when delivered by the respondents was once more turned down by the appellants.</p> <p> </p> <p>Following from these developments, the respondent issued two letters alleging and claiming losses occasioned by the appellant’s refusal to receive the remainder of order 40004112 OP (exhibit A). The respondent presented a claim of 660,120 euros as “<em>lost revenue on TOR order for marine mix”. </em>The apparent result of these letters was a meeting attended by both parties on 16th December 2005 the outcome of which is purported to be conveyed in exhibit J. The respondents’ reaction to exhibit J is conveyed in exhibit K in which they deny both the accuracy of the contents of exhibit J and the sincerity of the appellants in the deal actually arrived at.</p> <p> </p> <p>Certainly the quibbles that followed after the 16/12/2005 meeting did not extend to the supply of the 49,200 litres packed in 240 drums of the marine mix which was obviously part of order No 400041120P as the same was promptly paid for at the rate of euro 1.63 per litre. The contention related rather to the subsequent changes. The resultant divergent positions evidenced in correspondences exchanged by the parties following the 16th December 2005 meeting attests to a lack of consensus as to what was actually agreed between them.</p> <p> </p> <p>It is against this background of disagreements between the parties that the respondents as plaintiffs issued a writ against the appellants herein as defendants seeking an order for recovery of an outstanding  sum of Euro 144, 424.83 or its cedi equivalent due them for the supply of marine mix to the appellants; interest on the above sum from 31st October 2006 to date of final payment; damages for breach of contract; mandatory order for defendant (appellant) to furnish plaintiff (respondent) with a new delivery schedule  on the balance of deliveries; any other reliefs; costs including solicitor’s fees.</p> <p>The defendant/appellant denied the plaintiff’s claims and counterclaimed for a declaration that the contractual relationship between the parties was redefined and substituted by the terms of agreement reached on 16/12/05; a declaration that plaintiff is in breach of the agreement of 16/12/05; declaration that the prices quoted on the invoices described, do not flow from the common agreement arrived between them in December 2005; declaration that plaintiff could not make any supplies in total disregard of the purchase order of 10/05/06 and that plaintiff knew it was bound to be paid the price stated  in the said order when it did supply upon receipt of the order; declaration that defendant had fully paid for products submitted by plaintiffs as per waybills; declaration that the 50,000 litres marine mix products supplied by plaintiff does not meet the specification standard of defendant; an order that plaintiff  takes back the said 50,000 litres from the stores of defendant  company or in the alternative that same be destroyed and cost recovered from defendant; general damages for breach of contract; general and specific damages for avoidable litigation and costs.</p> <p> </p> <p>In this court the appellant is seeking an overturn of the trial court’s judgment entered in favour of the respondents. The notice of appeal filed on 5th September 2008 listed a prolixity of fourteen (14) so called grounds of appeal. Strictly speaking only one of the fourteen conforms to rule 8 of CI 19 as amended by CI 21. The relevant ground is that which alleges that the judgment is against the weight of evidence. In resolving that sole ground however I may consider the other thirteen particulars as and when appropriate as particulars of misdirection to be dealt with. </p> <p> </p> <p>Whenever an allegation is made before an appellate court that the judgment is against the weight of evidence, the court is obliged to examine the totality of evidence on the record of appeal and come to its own conclusion as to the admitted and disputed facts. See Akufo Addo vs Catheline (1992) 1 GLR 377; Boafo v Boafo (2005-2006) SCGLR 705 @ 715.</p> <p> </p> <p>I propose to consider items D, E and F under the omnibus ground. The combined effect of these three complaints of misdirection is whether or not the parties had compromised the original contract or as in the words of the appellant, ‘settled’ on their original contract? If there was a settlement whether the plaintiff voluntarily waived any purported right to sue on the alleged termination or repudiation of the 2002 contract?  To my mind the proper description of the concept sought to be highlighted is one of variation or modification of the contract in the light of prevailing circumstances. Crucial to the resolution of this impasse is the import of the deliberations that took place on 16/12/05.  Did the outcome of the meeting of 16/12/05 result in a variation of the contract? The trial judge’s finding was that <em>“there was no agreement to substitute the terms of order 40004112OP with any other terms”.</em> The reason given for the above conclusion was that “<em>the outcomes and alleged agreements reached were hotly contested by both sides in writing and left each other in no doubt that they had not changed the original contract with any new terms”</em>. What can be seen was that the appellant (defendant) left the meeting believing that they had agreed to change the price of order 40004112 OP to GOIL’s price and to change the specifications to one that would be ‘<em>communicated’</em> later. The respondent (plaintiff) on the other hand, believed that the meeting rather affirmed their entitlement to compensation for the delays in accepting their deliveries through the 2006 order. Respondent further understood the requirement to supply at GOIL price as qualified to mean only when “<em>it is not lower than its own price</em>”.</p> <p> </p> <p>In business undertakings it is sometimes inevitable for changes in the result of the contract to occur or vary over time necessitating another look at the contract requirements. While some variations may be common or inherent in a system, others may be special which are caused by changes in the circumstances or environment. In general a contract in writing cannot be altered by the promisee without the consent of the promisor but a contract may be modified with the consent of the parties, whether the contract be by word of mouth, in writing or under seal. Where a variation which is inconsistent with the terms of the contract is made by consent, this amounts to a new agreement which supersedes the original contract; but an alteration, which consists merely in filling in details which were agreed upon before the contract was signed, or in correcting a mistake which was made in reducing the contract into writing, only expresses more accurately the original intention of the parties, and does not amount to a new agreement or affect the liability under the contract. (See Halsbury’s Laws of England Vol 8 Pt 5 Sect 1.)</p> <p> </p> <p>Was there a variation of the contract between the parties? If there was a variation, when did that occur and also what did the variation entail? The trial judge came to a conclusion concerning the meeting that took place on 16/12/05. This is how she articulated it: “<em>it is my clear finding that the meeting of 16th December 2005 did not lead to an agreement to redefine and substitute order 40004112 OP with any new terms. Agreement is formed from consensus and the exhibits evaluated show that there was no consensus to change the terms of agreement in order 40004112 OP after the meeting. Neither did it lead to an agreement to vary the order/contract because the parties were not at all idem on the specific points that could have varied the terms of the contract.”</em> My own reading of the record of appeal leads me to the conclusion that the trial judge’s evaluation of the evidence before her and the conclusion arrived at and quoted above was well founded. The numerous internal inconsistencies and conflicts in the appellant’s presentation during the trial inevitably lent credence to the trial judge’s finding on this claim. As this court stated in the case of Obeng vs. Bempomaa, (1992-1993) GBR 1027, CA, inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. There were conflicting stances between the DW2 on one side and the DW3 and DW 1 on the other on the crucial point as to whether or not there was agreement emerging from the meeting of 16/12/2005. For his part,  Kofi Kodua Sarpong DW2 (at page 176, lines 7 to 8 and 24 to page 177 lines 1 – 2 of the record of appeal) in his answers to questions under cross examination made it clear that the parties had not reached agreement at the said meeting. It was for that reason that DW2 decided to convene a further meeting between the parties. This led to the meeting on 1st March 2006 after which the DW2 said, they (appellants) requested the respondents to confirm the understanding reached. When the respondents failed to respond to the request, witness wrote a letter in May in which he stated the new volume, new specifications and the new price as well as a purchase order. There was no response to the two letters, exhibits 4 and 6 which are the same as exhibits S and T respectively that witness (DW2) wrote to respondents. Nevertheless the appellants on 7th January 2006 issued exhibit U authorizing the payment of Euro 76,186.20 in favour of respondent as payment for 240 drums of marine mix as per order 40004112 OP.  The 240 drums are the same as 49,200 litres of marine mix. The above assertions by DW2’s are in contrast to those made by both the company secretary DW3 and DW1 Dr Abugri.  Under cross examination DW1 was emphatic that the series of meetings that they had which were in common with that of 16/12/05 to resolve issues including pricing resulted in both parties agreeing on the GOIL price. Of course from the trend of the deliberations, it is obvious that DW2’s version of the narrative which supports the position stated by the respondents was more credible than the positions advanced by both DW 3 and DW 1 hence the trial judge’s preference thereof. This conforms to the provision of s.11 of the Evidence Act 323.</p> <p> </p> <p>Another significant point of divergence was the reason why the appellants sought a change in the specifications of marine mix. Granted that the parties are at liberty to seek an alteration or change in the supply specifications, given changes in circumstances or the environment, both parties must appreciate the exigency and given the opportunity to adjust or address the issue and consent thereto. In the instant case, the appellants claimed that the respondents had included an ‘<em>addictive</em>’ (sic) to their original marine mix specification which resulted in protestations by the end users. As observed earlier in this judgment, of all the deliveries of marine mix to the south west coast of Ghana by various oil marketing companies, none was traced directly to the appellant (TOR) to whom the respondents supplied their product. This is quite significant for the purpose of apportioning blame as can be gleaned from answers given by DW 1 during the trial.  Under cross examination, the DW1 insisted that by their analysis, emulsion was formed from the plaintiff’s (respondent’s) marine mix. The witness did not tender any test proof of this assertion nor did the appellants provide any during trial. The witness mentioned the addictive (sic) contained in the GOIL supply as XTP-33 but could not provide any for that alleged to be contained in the respondent’s product. (See pages 152 – 153 of the ROA). The only analyst results tendered were those of the independent analysts which do not support the appellants’ claims.  The issue of additives to the specifications is a matter capable of scientific proof and so cannot be left to speculation or peradventure. Yet, the appellant valiantly peddled it as the reason for seeking a variation of the supply contract.  Besides, if the issue was traced to an <em>additive</em>, the response would not be for an entire change in specification as to a demand for the removal of the <em>additive. </em>Thus the assertion by Mohammed Hijazi in his evidence in chief (see page 33 Line 17 of the ROA) that “<em>if there is a change then it is TOR telling us about the variation of the specification and not that the product is different from what we supply”</em> is the truth.</p> <p> </p> <p>The respondents exhibited a great deal of composure and resilience in the unfolding events and agreed to subject their products for tests upon tests by the independent expert (TLOL) which all proved positive. The respondents by their own showing acceded to the appellant’s new demand for the supply to conform to new specifications which they (appellants) unilaterally demanded based upon a spurious claim that the previous supplies contained an additive which was not borne out by the tests. It is thus obvious that by acceding to the new specifications the respondents had consented to the variation of the contract but limited only to the issue of the specifications. The case of Sowah vs BHC (1982-83) GLR1324 @ 1346 is authority for the proposition that in Ghana parties can enter into a parol contact to supplement a contract under seal. Also the Contracts Act 1960 (Act 25) by its section 11 dispenses with the need for writing to make a contract valid or enforceable. It provides:</p> <p><em>“11. Subject to the provisions of any enactment, and to the provisions of this Act, no contract whether made before or after the commencement of this Act, shall be void or unenforceable by reason only that it is not in writing or that there is no memorandum or note thereof in writing.”</em></p> <p>The emerging trend or conclusion from the deliberations between the parties is that the respondents did agree to provide the new specification demanded by the appellant but this was before the meeting on16/12/2005. At page 33 of the ROA the Plaintiff states:</p> <p><em>“Q. Now when this product variation occurred did you comply with this?</em></p> <ol><li><em>Yes my Lord.</em></li> </ol><p><em>Q. How did you comply with it?</em></p> <p><em>A. We were given the specification and we supplied samples to TOR, a new sample to test and confirm that this new sample conforms to the specification, that is the new specification, and TOR confirmed that the sample is to their specification.”</em></p> <p> </p> <p>As to how the appellant confirmed that the sample conformed to their new specification the witness referred to exhibit D issued on 14th October 2005 by the appellant to the respondent. In the said exhibit D the appellant expressed their satisfaction about the sample and also informed the respondent to supply 354,000 litres marine mix being the balance left to be supplied. When the respondent resumed the supply in compliance with exhibit D the same was again rejected. It is evident from the ROA that there were disagreements within the confines of the appellant company as to who was in control of events surrounding the execution of this contract given the level of the countermanding of decisions. Nevertheless, given this position, it is quite clear that the change in specification was not a product of the meeting on 16/12/2005. The change in specification was agreed between the parties about two months earlier (14/10/2005) as attested by exhibit D. Those changes were circumscribed under the 2002 order. In spite of these changes there still were outstanding quibbles and disagreements and this necessitated the meeting on 16/12/2005. Those issues primarily had to do with a more far reaching variation of the order and the contract price. On these, the meeting of 16/12/2005 did not find consensus hence there was no agreement to vary the contract as a whole as rightly found by the trial judge. As the trial judge demonstrated, which we endorse, neither the tape recording nor the exhibit S show that the parties had agreed to redefine and substitute the terms of the original 2002 contract except for the specifications. At best what was conveyed in exhibits S and T was an offer requiring an acceptance to concretize into an agreement but which offer terms were unclear and uncertain. For the issue of what was the GOIL price was uncertain. Did it refer to the GOIL price calculated at 12,251 old cedis which translated into 1.71 euros at the time of the initial bidding or the 10,890 cedis suggested on 1/3/2006 or to other figures and if so what were they? As a result, since there was no settlement there could also not be a waiver of any right to sue on any termination or repudiation of the 2002 contract. The appeal on this ground therefore fails and is dismissed.</p> <p> </p> <p>The next ground of appeal relates to the reliefs granted by the trial court as being unwarranted in law. The first of these reliefs under attack is the award of euro 230,000.00 as special damages when no special damages were particularized in the pleadings. The trial High Court entered the following reliefs in favour of the respondent:</p> <ol><li><em>114,424.83 euros or its selling rate in cedis as outstanding payments for the supplied marine mix and drums with interest from 31st October 2006 to date of payment.</em></li> <li><em>71,394 euros as loss of profit on the 146,000 litres of oil that plaintiff was prevented from supplying with interest from March 2006,</em></li> <li><em>Special damages of 230,000 euros as costs that should reasonably have been in contemplation of defendant when it prevented the performance of this contract. Interest on this sum runs from date of judgment.</em></li> <li><em>General damages of 500,000 euros.</em></li> <li><em>Defendant is also ordered to pay plaintiff’s legal cost which is set at 30,000 euros. Court costs is set at cedis GHc 3,000.</em></li> </ol><p> </p> <p>The trial judge had rightly in my mind summed up the events culminating in the conclusion that the respondents were entitled to damages. Firstly the parties did not arrive at any conclusion to adopt a new contract or redefine exhibit A in their meeting on 16/12/2005 and 1st March 2006. The efforts to push exhibit S, T and 3 as new terms of agreement at an imprecise price beyond referring to it as ‘GOIL’ price was not accepted by the respondent. Even if the meetings held on 16/12/2005 and 1/03/2006 were ostensibly regarded as negotiations for settlement the results of those meetings would not be binding until accepted by both parties which is not the case in this appeal. (See Regional Maritime Academy vs Amaning &amp; Ors (2005-2006) SCGLR 717).</p> <p>The appellant could not invalidate exhibit A simply by repudiating it and presenting a new agreement in exhibit 3 which was not accepted by the respondent in any manner. The respondent demonstrated their rejection of exhibit S, T and 3 by continuing to act on exhibit A which they were entitled to do. The respondents continued delivery of consignments after the issue of exhibit 3 could not be taken as acceptance of exhibit 3 in the light of their clear indication that the deliveries were based on exhibit A. This state of affairs clearly placed a burden on the appellants to continue its performance or repudiate the exhibit A for good reason. Since the appellant failed to prove any breach of contract by the respondent in their performance under exhibit A they (appellant) had no good reason to repudiate same. In the circumstance the appellant was obliged to either perform exhibit A or be liable in damages for breach of contract. The appellants had received two deliveries under exhibit A for which only part payment was effected leaving a balance on account of euro 110,104.83(See exhibits G, L &amp; R). The court accordingly entered judgment for the outstanding sum in favor of respondent. The court also entered judgment for the sum of euro 4,320 damages for the 540 drums in which the marine mix was delivered bringing the total sum to euro 114,424.83. The appeal does concern itself with this grant in favour of the respondent.</p> <p>The appellant’s main attack is on reliefs’ b, c and d granted by the trial judge.</p> <p> </p> <p>Grant of Compensation in lieu of Specific Performance in relief (b) above.</p> <p> </p> <p>The appellant contends that the trial court exceeded its jurisdiction and was in patent breach of natural justice by ordering the payment of euro 71,394 to respondent in a purported substitution of their claim for <em>‘mandatory order directed at defendant to furnish plaintiff with a new delivery schedule on the balance of deliveries’</em>. Exhibit D written by the appellant confirms that as at 14th October 2005 the respondent had a balance of 354,000 litres of marine mix outstanding from the contract volume of 600,000 litres awarded (See exhibit A). It is not matter of mere conjecture that the respondent sought the relief of an order of the court for a ‘<em>mandatory order directed at defendant to furnish plaintiff with a new delivery schedule on the balance of deliveries’</em>. The appellant had provided very good reasons for seeking the relief. At page 55 of the ROA lines 6 to 25 and page 56 line 1 to 4 the following dialogue provides the reasons:</p> <p><em>“Q. You are telling or praying this court to make a mandatory order to order the defendant to give you new delivery to enable you deliver the balance?</em></p> <p><em>A. yes my Lord, because we are still holding stock to balance of which has been produced to their specification.</em></p> <p><em>Q. And will the contract price as at 2002 now be relevant to the balance of the product?</em></p> <p><em>A. It is not, world oil price have gone up.</em></p> <p><em>Q. The contract price still stands.</em></p> <p><em>A. Yes my Lord and the world price have gone up with several folds, the product is stock maintenance and storage interest.</em></p> <p><em>Q. You have sum up your total loss in exhibit H?</em></p> <p><em>A. Yes my Lord at the time of July 2005 and because we are not going to increase the price to match the current world price we maintain the other price but levy the interest and other cost and expenses, we are adding interest and other charges and cost. We have been suffering on daily basis and the total amount now owed is greater than the amount claimed here, the amount we claimed here as at July 2005.” </em></p> <p> </p> <p>In the light of the above evidence by the plaintiff (respondent) in support of the relief for a mandatory order by the court to enable them deliver the outstanding balance of 146,000 litres marine mix, why did the trial court find it an appropriate occasion to grant a different relief as it did? The respondent’s answer is pregnant with the suggestion that the marine mix to honour the whole contract is being held in stock awaiting delivery. With this understanding, what becomes of that stock in the light of the trial court’s order for the payment of the compensation? A number of authorities have been cited to support the position that a court has power to award reliefs not expressly claimed and to justify the trial court’s substitution of a different relief than that claimed. The following cases were cited to us namely:</p> <ol><li>Butt vs Chapel Hill Properties Limited &amp; Anor (2003-2004) SCGLR SC 636 @ 638 , holden (2) per Dr. Date Bah JSC.</li> <li>Hanna Assi (No 2) v Gihoc Refrigeration &amp; Household Products Ltd (No 2) (2007-2008) SCGLR 16</li> <li>Republic vs High Court, Kumasi Ex parte Boateng, SCGLR (2007-2008) 404, holden 2.</li> </ol><p> </p> <p>The above cited authorities support the principle that a court is entitled to apply the law to the facts of the case even if the parties were unaware of it. Beyond that they are certainly inappropriate to the present facts. In the present case the respondent who is mindful of the fact that it had stocked the products demanded under the contract is seeking an order of the court for the rescheduling of the delivery dates to enable him deliver. This is certainly in the nature of specific performance and the trial court having found as a fact that exhibit A is still binding and active; it laid within its power to grant same. There is a plethora of authorities to the effect that it is a travesty of justice if judgment is given against a party on a ground on which he did not have notice from the writ of summons or as in some cases from a counterclaim. This principle was applied in the following cases: Oloto v Williams (1944) 10 WACA 23; Dam v Addo (1962) 2 GLR 200; In re Okine (Decd);Dodoo &amp; Anor vs Okine &amp; Ors (2003-2004) SCGLR 582 @ 618. On the authorities referred above I find the reasons advanced by the trial court in substituting its own relief for that claimed by the respondent unjustified. I will in the circumstance grant this relief and set aside the award of euro 71,394 as compensation. In place of the relief set aside above, I hereby order the appellant to arrange to take delivery, first, of the outstanding balance of 146,000 litres marine mix which was rejected upon delivery, within three months of this judgment at the contract price spelt out in exhibit A i.e. euro 1.63 per litre with interest from March 2006 when the delivery was turned down to date of payment. The appellant is equally ordered to take delivery of the remaining balance of 108,000 litres within the same period and on the same terms i.e. at euro 1.63 per litre with interest from March 2006 to the date of payment. </p> <p> </p> <p>Award of Special and General Damages.</p> <p> </p> <p>The respondent asked for damages for breach of contract. They were instead awarded both general and special damages when the latter was not asked for.</p> <p>The position of the law regards special damages is that as the name indicates they are special and must be claimed with such particularity that the defendants know, not only the amount of loss or damage alleged to be suffered but also how that amount is made up or calculated. Any monetary loss suffered by the applicant up to the date of trial must be pleaded, particularised and proved or else it cannot be recovered. In the case of Stroms Bruks Aktie Bolag v Hutchison [1905] AC 515 at 525 – 526, HL (SC) Lord Macnaghten stated that: <em>“Special damages’…are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character, and, therefore, they must be claimed specially and proved strictly.” </em>(See also Andreas Bschor GMBH &amp; Co vs B.W.C. Ltd C.A 3rd April 2008, reported in (2008) 4 GMJ, 203). I found nothing in the pleadings and/or evidence at the trial in proof of any special damages to warrant the grant of this special relief against the appellants. In the premises I set aside the special damages of euro 230,000 awarded against the appellant as unproven.</p> <p> </p> <p>As regards the award of euro 500,000 general damages against the appellant, the appellant has not demonstrated to this court why this should not stand. When this suit begun, each party presented itself as the victim of high handedness, callousness and what have you, at the instance of the other. At the close of the trial it became abundantly clear that the appellant rather than the respondents could not acquit itself of blameworthiness for all the obstacles and impediments in carrying out the contract. The appellants created as many excuses as there were deliveries by the respondents and each time the latter tried to accommodate them until they could no longer bear them. The resultant unjustified refusal to accept supplies under the contact from the respondent created the discomfort of finding places to store these products. Of course these difficulties so created, more by the neglect of appellants than the suppliers, were within their contemplation being long time operators in the oil business. If businesses in this country are to run in the fashion exhibited particularly by the appellants, no private company either indigenous or foreign would be attracted to do business. It is quite evident that but the frustrating tactics arising out of the internal indiscipline exhibited or employed by the appellants, the whole contract would have been carried out by now. There is thus abundant evidence to warrant an award of substantial damages. Accordingly I will set aside the sum of euro 500,000 and substitute an award of euro 350,000 as substantial damages against the appellants.</p> <p> </p> <p>Legal and Court Costs.</p> <p> </p> <p>The trial court awarded what it called legal cost of euro 30,000 as well as court cost of GHC 3,000 against the appellants. I wonder what the basis for the award of the legal costs and in euros is. Did the respondent engage counsel from the euro zone to do the case? Or is it the case that the Ghana cedi is no longer the sovereign currency of this country? I can understand the parties fashioning out their contract in a unit of currency other than the cedi when the product to be supplied is produced outside this country. But for a situation wherein counsel are engaged in Ghana to provide legal service in Ghana I fail to understand why the court would award legal costs in a currency other than the cedi.  Order 74 of CI 47 regulates the award of costs. The award of costs is at the discretion of the court but, like every discretion, it is to be exercised in accordance with due process of law. This means an exercise of such discretion shall not be arbitrary, capricious or biased either by resentment or personal dislike. (See article 296 of Constitution 1992.) The trial judge gave no reason for the award of the legal cost in euros and the court costs. The court simply stated the following: <em>“Defendant is also ordered to pay plaintiff’s legal cost, which is set (sic) 30,000 euros. Court costs is set at cedis GHC 3,000 after looking at the court filing fees and the 30 or so times the parties had to come to court. All sums ordered to be paid in euros may be paid at the euro selling price of the cedi.”</em></p> <p> </p> <p>It is significant to point out that an award of costs is designed to compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made and provide reasonable remuneration for the lawyer of that party for work done by the lawyer. The court in assessing the amount of costs to be awarded may have regard also to the amount of expenses, including travelling expenses reasonably incurred by the party or his lawyer or both in relation to the proceedings; the amount of court fees paid by the party or his lawyer in relation to the proceeding; the length and complexity of the proceeding; the conduct of the parties and their lawyers during the proceedings and any previous order as to costs made in the proceedings.(See Order 74 rule 2 of CI 47). These provisions require that trial judges put in some efforts in the assessment of costs by stating the factors they consider in fixing a sum deemed appropriate if they are not to be unsettled on appeal. Counsel did not file any record of the work done and the fees attached as well as the basis for those figures to guide the court.</p> <p> </p> <p>This of course left the court with no option than to state that <em>‘the plaintiff’s cost is fixed at euro 30,000’</em> which appears rather arbitrary and not measurable to the legal requirement for the exercise of discretion by a judge. The factors that went into fixing the costs at such a high figure and the choice of currency have all not been deemed essential and so have not been stated. In appropriate cases costs may be ordered to be taxed by the court. What measure of tax shall be imposed if the costs are awarded in different currencies each with different par values? I find no justification for the costs awarded and same is accordingly set aside. From the record of appeal there were twenty two trial days and nineteen days when various processes were taken before the court. There is no record of the filing fees paid to guide this court besides what the trial judge stated when awarding the cedi component of the costs.  Bearing in mind the number of trial days and the measure of effort put in as gleaned from these records I assess the total costs inclusive of a reasonable lawyer’s fees at (GH¢ 6,000) six thousand Ghana cedis in favour of the respondents.</p> <p> </p> <p>Costs in this court will be assessed at (GH¢ 4,000) four thousand Ghana cedis          having in mind the level of industry put into this appeal by both counsel in which the main ground of appeal is dismissed and the reliefs partially substituted.</p> <p> </p> <p> </p> <p> </p> <p>J.B.Akamba</p> <p>Justice of Appeal</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>YAW APPAU, J. A.</strong></p> <p>I have read beforehand the judgment of my able senior colleague, Akamba, J.A. and I agree with him in toto that the appeal be dismissed subject to the variation orders made therein with regard to the award of damages and plaintiff/respondent’s legal cost.  I have nothing useful to add.</p> <p> </p> <p> </p> <p>                                                                                                                                        Yaw Appau</p> <p>                                                                                                                               Justice of Appeal</p> <p> </p> <p> </p> <p> </p> <p>I agree                                                                                                                   Victor Dotse Ofoe</p> <p>                                                                                                                               Justice of Appeal</p> <p> </p> <p><strong>COUNSEL</strong></p> <p>Mr. Adjabeng Akrasi for Defendants/Appellants.</p> <p>Mr Addo Atuah for the Plaintiff/Respondents.</p> <p>  </p> <p> </p> <p> </p> <p> </p> <p>      </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p></span></div></div> </div> </div> Wed, 23 Jun 2021 10:48:45 +0000 Anonymous 1684 at http://ghalii.org Narrow Fishing and Trading Company Vrs Quansah and Others (37 of 2003) [2006] GHACA 8 (19 July 2006); http://ghalii.org/gh/judgment/court-appeal/2006/8 <span class="field field--name-title field--type-string field--label-hidden">Narrow Fishing and Trading Company Vrs Quansah and Others (37 of 2003) [2006] GHACA 8 (19 July 2006);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/369" hreflang="x-default">EL</a></div> <div class="field__item"><a href="/taxonomy/term/384" hreflang="x-default">Abuse of Process</a></div> <div class="field__item"><a href="/taxonomy/term/381" hreflang="x-default">Marine species and fisheries</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 06/23/2021 - 10:48</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>The matter concerned the importation of fish, whereby letters of credit were opened at the appellant bank, by the 1st defendant on behalf of the respondent for the importation, which the respondent had sought to cancel.</p> <p>The court considered the relationships between the parties and found that the opening of the letters of credit created a relationship between the bank, and the respondent, and also imposed on the appellant an obligation to ensure the rights of the respondent were protected. The court found that the appellant failed to do so and resultantly could not escape liability. </p> <p>The court held that where a duty exists, it must be faithfully observed, since breach thereof would result in damages. The duty owed to the respondent was established with the opening of the letters of credit. This created an obligation on the part of the appellant to keep to the clear terms, under which the letters of credit were to operate. Accordingly, the court found that it was the appellant’s duty to ensure that the terms thereunder were kept. </p> <p>The court held that where, in a commercial transaction or a contractual relationship, a party signs a disclaimer, then that party by virtue of the disclaimer avoids liability for breach. The court found that the appellant bank, by implication, withdrew their earlier instructions, through their acceptance of the explanations given by the correspondent bank ,and that fact amounted in effect, to not giving any instructions at all. </p> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE COUR OF APPEAL  -  ACCRA</strong></p> <p> </p> <p><strong>CORAM  -  OWUSU ANSAH, JA [PRESIDING]</strong></p> <p><strong>                                                   OSEI, JA</strong></p> <p><strong>                                                   QUAYE, JA</strong></p> <p> </p> <p><strong>CIVIL APPEAL NUMBER</strong></p> <p><strong>C.A 37/2003</strong></p> <p><strong>19TH JULY, 2006</strong></p> <p> </p> <p> </p> <p><strong>NARROW  FISHING &amp; TRADING COMPANY  …   PLAINTIFF/RESPONDENT</strong></p> <p> </p> <p><strong>                     V   E    R    S    U    S</strong></p> <p> </p> <p><strong>(1)  JAMES RICHARD QUANSAH</strong></p> <p><strong>                                                  …   DEFENDANTS                          </strong></p> <p><strong>(2)  SAVIOUR WOODWORKS LTD.        </strong></p> <p> </p> <p><strong>(3)  NATIONAL INVESTMENT BANK LTD.  … 3RD DEFENDANT/APPELLANT     </strong></p> <p><strong>                  --------------------------------------------------------------------------</strong></p> <p><strong>                                           J  U  D  G  M  E  N  T</strong></p> <p><strong>                   -------------------------------------------------------------------------</strong></p> <p> </p> <p><strong>QUAYE, J.A. - </strong>The appeal herein is from the judgment of the High Court, Accra, delivered on 27th July 2000.  The action in the trial court was initiated by the plaintiff (now respondent in this judgment) to seek relief from the three defendants therein.  At the trial, evidence was offered by the plaintiff/respondent to support the action.</p> <p>On the side of the defendants only the 3rd defendant bank sought to resist the claim of the plaintiff.</p> <p>            The trial ended in favour of the plaintiff/respondent as the defence of the 3rd defendant did not find favour with the trial court.  The action of the plaintiff against the 1st and the 2nd defendants was dismissed.  The present appeal is therefore between the 3rd defendant (herein appellant) and the plaintiff (respondent).</p> <p>            The respondent entered into an agreement on 3rd December 1993 for the importation of (one thousand) 1,000 metric tonnes of fresh frozen fish: mackerel, from a United Kingdom based company trading under the name of World Scope Limited.  The said importation was to cost US $455,000.00 out of which the respondent was required to  deposit twenty per cent the total cost.  That worked up to ¢64,000.000.00  (sixty four million cedis) only.  The payment of the twenty per centum deposit of ¢64 million was supported with a guarantee by the 1st defendant who, as the managing director of the 2nd defendant company, undertook to be bound to due performance of the contract between the respondent and World Scope Limited.  Under the said contract, the fish was to be delivered to the respondent on or before the 30th December, 1993, and the respondent was to complete the purchase within thirty days after receipt of the said consignment of imported mackerel.  In spite of the undertaking on the part of the 1st and 2nd defendants they failed to pay the money to World Scope Limited hence the fish was not supplied by them to the respondent.   </p> <p>            After this initial failure the 1st defendant who spoke and acted as if he held a lien, and could exercise absolute control of, and determine and/or dictate how the deposit of  ¢64,000,000.00 was to be used, took the reluctant respondent to Mauritania for fish, and when that second attempt failed, he lastly decided to buy the fish from a company by the name Hyundai International Trading Corporation c.c. of the Republic of South Africa.  The 1st defendant informed the respondent that he had negotiated for the supply to the respondent the quantity of 2,000 metric tones of fresh frozen horse mackerel at the cost of US$1.110,000.  This third attempt was to be supported by the initial deposit already made by the respondent.</p> <p>            Recurrently, the respondent, after the failure of the World Scope contract, and the subsequent attempt to import fish from Mauritania, demanded the refund of the ¢64 million deposit from the 1st defendant but the latter showed no inclination to part with same.</p> <p>In respect of the Hyundai agreement, the 1st defendant prevailed upon the respondent that he would use the ¢64 million deposit to open Letters of Credit for the plaintiff, and further, that his bankers, the appellant herein, would then effectuate the importation of  the 2,000 metric tonnes of fish.  In furtherance of this assurance, the 1st defendant informed the respondent that he, the 1st defendant, had opened Letters of Credit (LC) at the appellant bank.  He therefore gave to the respondent an Import Declaration Form (IDF) which the latter executed by appending his signature.</p> <p>            It is material at this stage to state that the respondent was not a customer of the appellant bank.  Rather, it was the 2nd defendant who operated accounts thereat.  Under this situation the 1st defendant contacted his bankers, the appellants, for the opening of an LC on 30th January 1994 on behalf of the respondent in favour of the supplier/exporter Hyundai International Trading Corporation c.c. of South Africa.</p> <p>The fact that the respondent did not previously know about the Hyundai Corporation whilst the 1st defendant knew them gives credence to, and further authenticates the respondent’s averments.  It is quite obvious therefore that the 1st defendant was firmly rooted in the pilot’s seat in so far as the transaction and arrangements relating to the respondent’s importation of fish went.</p> <p>            It turned out however that misunderstandings and mistrust welled up between the respondent and the 1st defendant, and when it came to a head, the respondent attempted to jump into the driver’s seat in order to ensure that the project did not boomerang.</p> <p>            The respondent saw the LC for the first time after one Mr. Otuahene of the appellant/bank had given it to him upon the direction of the 1st defendant.  That was in February 1994.  In March the 1st defendant informed respondent that he had received a telex from Hyundai which indicated that only 90 metric tonnes of fresh frozen fish would be arriving, and not the promised or expected 2,000 metric tonnes of horse mackerel as appeared on the IDF.  This fact put the respondent on his guard to retract.  He therefore called on the 1st defendant and the appellant herein to cancel the LC and refund the deposit of US$50,000 to him.  Apparently, the 1st defendant had previously refunded US$3,500 through one Madam Odey, the financier of the respondent.  The respondent’s misgivings and protestations at this time were justified by the Ghanaian customs regulations that forbade the issuance of clearing licence for imports of fish that fell below 500 metric tones minimum.   From the evidence so far it becomes apparent that the 1st defendant did not merely occupy the central position in the triumvirate comprising the  respondent, the appellant and the suppliers, but that indeed, it was he who committed the unwilling respondent to the appellant and the suppliers.  The respondent did not at anytime enter into or exchange correspondence with the correspondent bank or vice versa.  As matters stand at present however, the part played by the 1st and 2nd defendants who are not parties in this appeal, appears finally determined by the trial court, and any misgivings that I might entertain on the dismissal of the action against them would have no bearing on this appeal.  We therefore have to leave the sleeping dogs to enjoy their rest.</p> <p>            The case involving the appellants started with the opening of the LC by 1st defendant on behalf of the respondent in favour of the suppliers, Hyundai International Trading Corporation c.c. and the appointment by the appellant unilaterally, of the Midland Bank as the advising or correspondent bank with regard to the LC, for the respondent in favour of Hyundai as beneficiary.</p> <p>            When the respondent gained knowledge about the tonnage of fish that Hyundai were exporting to him, he wrote to the appellant to request the cancellation of the L/C.   </p> <p>The latter replied by stating the legal position for the information of the respondent that the L/C, being irrevocable, could only be cancelled with the consent of the beneficiary.  The respondent, both before and after the expiry of the L/C on 29th April 1994 seized, on every opportunity to press home his demand that the L/C be cancelled.  Before 29th April 1994, the appellant stuck to the position that until the L/C had expired, the consent of the beneficiary was sine qua non for its cancellation. </p> <p>            After the expiry of the L/C the respondent did not relent in his demand for cancellation.  With this clearly stated intention or desire, of the respondent, what legal conditions would inform the continued refusal or inability of the appellant to cancel the L/C after its expiration.  On 10th May 1994, about eleven days after the expiration of the L/C and in response to the respondent’s repeated request that the L/C be cancelled, the appellants wrote inter alia as follows:</p> <p>                        “We refer to your letter of 4th May, 1994, requesting us to cancel</p> <p>                         the above mentioned L/C due to non-performance on the part of</p> <p>                         the supplier Messrs Hyundai International Trading Corporation</p> <p>                         of South Africa.</p> <p>                        “We have been in contact with our correspondent Bank, Midland</p> <p>                         Bank plc. and they have informed us that documents conforming</p> <p>                         to the terms and conditions of the L/C have been submitted by the</p> <p>                         Supplier and for which payment has been effected.  The said</p> <p>                         documents have been dispatched to us by courier and we shall</p> <p>                         be in touch with you for the release of these documents to enable</p> <p>                         you clear the goods concerned as soon as we receive them……”</p> <p>            After the above, the appellants again wrote on 16th May 1994 to the respondent that</p> <p>                      “…….We have received documents in respect of the above-mentioned</p> <p>                     from the advising bank with the following discrepancies……”</p> <p>affecting, or apparent, on the face of the bill of lading, and the SGS (General Superintendence company) clean report of findings.   The letter ended with a request to the respondent to commit himself on paper indicating his acceptance of the discrepancies.  As would be expected from his conduct so far, the respondent rejected the discrepancies and repeated his demand for the cancellation of the L/C by letter dated 17th May 1994.  The position was reiterated by the respondent in another correspondence dated 8th June 1994.</p> <p>            The interaction between the respondent and the appellant was not only documentary.  Officers of the appellant Bank who dealt with the respondent in their normal course of duty on behalf of the appellant included one Mr. Otuahene from whom the respondent obtained a copy of the L/C.  Mrs. Holdbrooke Smith who was head of the appellant bank’s foreign Operations Department, and in that capacity wrote and/or signed almost all the letters that were exchanged with the respondent relevant to this case; Mr. Zaglo who gave to the respondent on behalf of the appellant what purported to be official documents in the nature of bill of lading; Mr. Ofosu and the Managing Director of the appellant bank.  What purported to be bill of lading (tendered into evidence as the Exhibit R series) led the respondent on a wild goose chase.  The documents suggested that the fish consignment had been loaded on a ship, better identified as Tropic Lines.  Upon inquiry, from the agents, Delwas Shipping Lines, the respondent drew a blank.  He was told that the vessel, Tropic Lines had ceased to operate about a year, before the enquiry; that the statement by Mr. Zaglo, or his wife, of the appellants office, that the ship had already entered the territorial waters of Ghana was false; that they had been given a yellow bill of lading instead of blue, and that the documents that the appellants gave to the respondent were fake.  As if to vindicate the respondent, the suppliers on 21st June 1994 faxed the following message to the respondent.  Inter alia, it stated</p> <p>                        “…….To date we have been unable to load the small order of 90</p> <p>                          MT due to this small capacity…….</p> <p>                          ………Presently we cannot confirm the shipment dates but will</p> <p>                          do so as soon as it is confirmed.</p> <p>                          Once again, apologies for any misunderstanding but we are not to</p> <p>                          blame”</p> <p>            At the end of the trial, the learned trial judge found against the appellant on the basis that no compliant documents were presented to the Bank by the suppliers before the expiration of the L/C on 29th April 1994; that after the expiration of the L/C the respondent clearly instructed the appellant to cancel the L/C and that the payment of the US $50,000.000 to the supplier was wrong. </p> <p>            In arriving at the above conclusions the learned trial judge took time to examine the evidence under various heads including claim for US $50,000.00; the alleged discrepancies; the expiration of the L/C; and the failure of the appellant to cancel the L/C.</p> <p>            This appeal was stated to have been “lodged to prevent a situation where the National Investment Bank Limited will be made a scape-goat for the inefficiencies of the Respondent and its friends, the 1st and 2nd Defendants.</p> <p>            Counsel for the appellant discussed the law on negligence and urged upon us that the material issue upon which to determine the conduct of the parties, particularly, the appellant is the issue of careless behaviour.  The appellants maintain that their conduct in the whole transaction measured up to the standard and scope of the law.  After laying this foundation by way of introduction, counsel for the appellant cited the International Chamber of Commerce Uniform Customs and Practices for Documentary Credits 1993 Revision, ICC Publication No. 500 to be the relevant and applicable law, under the provisions of which their conduct should be tested.  On this basis learned counsel for the appellant faulted the reliance by the trial court on the decisions in the two cases <strong>EQUITABLE TRUST CO of NEW YORK VRS. DAWSON PARTNERS LIMITED</strong> {1927} 27 LLL. Rep. 49 and <strong>J.H. RAYNER AND OILS SEEDS TRADING CO.</strong> <strong>LIMITED VRS. NAMBROS BANK LIMITED</strong> {1942}A LL er 694 as being in error.   </p> <p>The above form the general introduction to learned counsel’s submission.</p> <p>            The 1st ground of appeal is that the judgment is wrong and cannot be supported having regard to the evidence led in the trial.  I will take this ground and additional grounds 1 &amp; 2 together in this judgment.  The rule is that where the whole judgment is put in issue, as suggested by these grounds of appeal, it is the appellate court’s duty to decide upon the facts and applicable law whether the trial court applied proper legal standards and whether there was reasonable support for its evaluation of factual questions.  The conclusions drawn by the trial court then become subject to broad review and will be reversed if they are found to be incorrect.  See <strong>LE CLAIR VRS TOWN OF</strong> <strong>NORWELL</strong> 430 Mass 328 at 331 (1999).</p> <p>            Counsel for the appellant took issue with the findings of the trial court with regard to discrepancies and the expiration of the L/C.  In dealing with the issue of discrepancies, counsel asserted that the appellant was satisfied that there were no discrepancies.  The respondent was also convinced that there was none, hence he accepted the documents, albeit he later returned them after the space of two weeks.  He submitted that there were no discrepancies but even if there were, the appellant cannot be held liable.   He also cited article 15 of UCP 500 in support.  Counsel furthermore submitted that the doctrine of strict compliance which formed the basis of the conclusions of the learned trial judge is inapplicable in this case because it is in direct conflict with the UCP 500.  He finally submitted on this subject that the correspondent bank is agent of the respondent, not the appellant.</p> <p>            Certainly, very interesting and far reaching legal and factual issues have been raised in the above submissions.  I therefore deem it my duty to scrutinize and analyse them to test their ability to sustain.  In the first place the learned counsel for appellant cannot deny that there is a duty relationship between them and the respondent; and also between the appellant and the advising bank.   Where a duty exists, it must be faithfully observed since breach thereof would, subject to the existence of other requirements, result in damages.  The duty owed to the respondent was established with the opening of the L/C.  This created an obligation on the part of the appellant to keep to the clear terms under which the L/C was to operate.  It was therefore their duty, which they owed to the respondent, to ensure that the terms thereunder were kept.  Being aware of the duty created which must be brought to fruition, the appellants sua sponte linked up with the Midland Bank to perform the duty that had to be discharged.  That duty, required under UCP 500, strict compliance with the terms and conditions imposed.  For a few illustrations, a look may be taken at articles 2(iii); 9(a), (b), 13(b) and (c); 14(b) just to mention a few.  Article 2 (iii) is in the following terms:       </p> <p>                        “(iii)  authourises another bank to negotiate, against stipulated</p> <p>                                 documents provided that the terms and conditions of the                                                                          </p> <p>                                 Credit are complied with</p> <p>                              Article 9(a) states “(a) An irrevocable credit constitutes a</p> <p>                              definite undertaking of the Issuing Bank, provided that the</p> <p>                              stipulated documents are presented to the Nominated Bank</p> <p>                              or to the Issuing Bank and that the terms and conditions of the Credit</p> <p>                              are complied with. (emphasis mine)</p> <p>           It is my humble submission of fact that the phrase requiring compliance is recurrent substantially throughout UCP 500.  The only difference perhaps is the omission of the word “strict.”  The absence of the adjective “strict,” however does not, in my quiet consideration, derogate from the import of the message envisaged, or for that matter, the mischief sought to be addressed.  It is therefore my respectful view that the position taken by the appellant that the doctrine of strict compliance is in direct conflict with UCO 500 cannot be supported.</p> <p>            This brings me to the question of the relationships between the parties.   The first one, as I have already pointed out is the duty created between the respondent and the appellant, the latter taking it upon themselves to process the L/C.  The other is that between the two banks.  The advising bank is agent for the issuing bank to the extent that one compliments the other to ensure that the relevant documents are passed in compliance with the conditions.  The advising bank cannot commit the money without authorization of the issuing bank.  This position is illustrated by the notification that issued from the advising bank to the issuing bank (the appellants) when they detected the discrepancies.  The issuing bank carried out its duty by notifying the respondent and waiting for his answer or reaction and then communicating same unto the correspondent bank.  The chain of command is clear.  Agency has been stated in simple terms to be the relationship which exists between two persons, one of whom expressly or impliedly consents that the other should represent him or act on his behalf, and the other of whom similarly consents to represent the former or so to act.  (See Bowstead on Agency page 1).  For their part, the authors of Blacks Law Dictionary Sixth Edition defined “agency” at page 62 to be “a relationship between two persons, by agreement or otherwise; where one (the agent) may act on behalf of the other (the principal) and bind the principal by words and actions.  Relation in which one person acts for or represents another by latter’s authority….”  Inferentially the appointment of the Midland Bank as the correspondent Bank by the appellant Bank created a relationship of agency between them.  Article 7 of UCP 500 when construed by the ordinary meaning of the words, seems to endorse the above reasoning.  Where the advising bank was appointed by the issuing bank without prior consent of the respondent, and where throughout the whole transaction there was no evidence of any direct communication or correspondence between the purchaser and the correspondent bank,  then to submit or conclude that the correspondent bank is agent of the purchaser and not the issuing bank, is to say the least, far fetched and legally unacceptable. If there was any doubt still lingering in minds, that issue was firmly put to rest by the illustration given on page 31 of Bowstead on Agency that “where a letter of credit is opened, the instructing bank and the confirming bank are in the positions, at any rate in some respects, of principal and agent respectively”  as held in <strong>BANK MELLI IRAN</strong> <strong>VRS. BACLAYS BANK {1951} 2 TLR 1057</strong> and also in <strong>BENJAMIN’S SALE OF</strong> <strong>GOODS {1974}</strong> paragraph 2082.  With due deference I do not think UCP 500 holds a different or conflicting position as regards the parties.  In modern practice it may be stated cursorily that once a letter of credit is properly issued, the customer has no right to modify it or revoke it; the beneficiary is entitled to the full benefits of the stipulations in the L/C and that the issuing bank would be liable in damages if it violates the terms of credit; the L/C is construed strictly and ambiguities are applied against the writer.</p> <p>Where therefore the L/C is clear in its terms and not ambiguous, it behoves the issuing bank to interpret and apply it strictly as under UCP 500.  Where the contents of the shipping documents issued by the supplier to the correspondent bank is even slightly different from the actual words of the L/C then in that case a discrepancy arises.</p> <p>In order to determine what constitutes discrepancy the decided authority cited by the learned trial judge is relevant and it may be examined among others.</p> <p>            The case of <strong>J.A.RAYNER &amp; CO LTD. AND OILSEEDS TRADING CO,</strong> <strong>LTD. VRS. HAMBROS BANK, LTD.</strong> [1942].  All ER 694 needs being taken a second look at.  In that case the description of the imported goods was stated in the L/C.  When later the bill of lading was issued, it was found to contain a slight variation in the description of the goods from what appeared in the L/C.  As a matter of fact the bill of lading contained words of description which could easily and satisfactorily identify the consignment.  That fact notwithstanding, the bill of lading, instead of keeping strictly to the description “coromanded groundnuts in bags” added or used another name “machine shelled groundnut kernels,” a name which could generally interchange with “Coromanded groundnuts in bags.”  The court however accepted that the description was discrepant.  In the instant appeal, the letters of credit which was tendered in the trial court as exhibit 3D3 stated its conditions in clear language.  Inter alia, it required notification to be made in the names of National Investment Bank and Narrow Fishing Co. Ltd.  Furthermore, it required the freight receipt to be issued and signed by the carrier or their accredited agents.  The latest shipping date and the expiry date were stated to be 8th April 1994 and 29th April 1994 respectively.  When the bill of lading was served on the correspondent Bank, that bank detected discrepancies which they forwarded to the appellants (the issuing bank) and the latter further forwarded it to the respondent.  At this stage it was clear that all of the correspondent bank, the issuing bank and the respondent were ad idem that the documents were discrepant.  Accordingly the appellant by a letter of 30th March 1994 wrote to the respondent.  The letter exhibit 3 D 6 was appropriately headed <strong>“DISCREPANCIES IN SHIPPING DOCUMENTS PRESENTED UNDER</strong> <strong>YOUR L/C NO…….”</strong>  The letter went on to itemize seven identified discrepancies.  The discrepant document was rejected by the respondent, by letter dated 19th April 1994 exhibit 3 D 7.  By fax dated 20th April 1994 the appellant informed the correspondent bank of the respondent’s rejection of the discrepancies.  If the documents were not discrepant what must have prompted and informed the chain reaction of the two banks and the respondent.  Obviously the perception of discrepancies was not a mere cry of wolf when there was none.  A discrepancy simply means a difference between two things which ought to be identical.  Assuming there were no discrepancies, neither the appellant nor the correspondent bank is justified to fault the respondent on the issue after they, by their representations had made him to believe that they existed.  Where the documents that were held to be discrepant were neither changed nor amended, the appellant has a high mountain to climb in order to explain away their shift of position to the satisfaction of the court.  I can glean no such explanation from the evidence on record.  I would even go further to state that where the purchaser had rejected the document and thereafter what was previously thought to be discrepant was no longer found to be so, the correspondent bank was under duty not to assume powers to pass them.  Once the chain had started, the correspondent bank ought to have gone over the process and sought the mandate or clearance of the respondent through the appellant to pay the supplier.  For the fact that the appellant failed to ensure the strict compliance with the documents, the duty of care they owed the respondent was breached.  It is sad to remark that the appellants appeared to have turned themselves into a rubber stamp to endorse whatever the correspondent bank put forward without question and thereby opened themselves up to be manipulated by the correspondent bank.  Generally, the law frowns on a party who attempts to take advantage  of, or benefit from his own wrong.  It is highly deprecated as seen from the wide range of decided cases such as <strong>SCHANDORF VRS. ZEINI &amp; ANOR. [1976] 2</strong> <strong>GLR 418 CA.; DJOMOA VRS. AMARGYEI [1961] 1 GLR 170 SC.</strong>  From the foregoing, the least said about the collection of the discrepant documents by the respondent, the better.  Suffice it however to observe that the respondent, as soon as he found that the documents which he was made to sign for and collect were not in accord with the contract, he immediately returned them.  His signing and collecting of them was not a voluntary act.  When he went to the appellants he was merely asked to sign and collect them without anyone telling him the contents and effect of his action.  I do therefore reject the submission of counsel for the appellant on that issue.</p> <p>            The appellants submissions on the question of the expiry of the L/C are that even if the correspondent bank lied in saying that they received compliant documents before the expiry date, they, the appellants cannot be held liable, and further that they satisfactorily and conscientiously conducted themselves and discharged their mandate according to the level of expectation.  I should concede that the appellants duly kept up correspondence as expected, and that for their vacillation and lack of forthrightness to identify and stick to the proper level and ethics of their profession and failure to insit           on having the conditions of the L/C complied with, they would have put themselves above board.   Upon the expiration of the L/C, it ceased any longer to be extant.  I believe neither the correspondent bank nor the appellant had power to resuscitate it by themselves, the more so since the respondent had repeatedly demanded cancellation thereof, and the appellant had indicated to him that his demand could not be met while the credit had  not yet expired and the beneficiary had not given their consent for cancellation. </p> <p>The opening of the L/C in favour of the respondent created a relationship between the bank and the respondent and also imposed on the appellant an obligation to protect and ensure the rights of the respondent.  This the appellant, not merely failed to do, they instead slept on their rights or condoned the usurpation of rights by the correspondent bank to treat the credit as still alive or extend its life.  Appellant therefore, in my judgment cannot escape liability.  Where the issuing bank puts on a garment of insensitivity to the genuine plight of the applicant and fails to cancel the credit, or insist on canceling it when it was due, the consequences of their failure cannot be whittled away by the number of letters or faxes they write or send.  The several letters the appellants wrote did not achieve the purported result and when they capitulated by accepting the so-called compliant documents several days after the expiration of the L/C the correspondent bank read in between the lines, saw the weakness or non-professional conduct of the appellants and took advantage accordingly.  The appellants attempt to urge the contrary upon us fails.  The appellate court will not set aside findings of fact of the trial judge unless they are clearly erroneous.  The appeal, on these grounds of the judgment not being supported by the evidence adduced at the trial fails and is accordingly dismissed.</p> <p>            At the pain of repetition I now revert to the question of discrepancy in order to address the complaint formulated in additional ground (2) alleging that the trial judge failed to consider the appellant’s defence.  Learned counsel’s view was that if the trial court had put the shipping documents against the claims of discrepancy, it would have been realized that there were no discrepancies at all.  I have already observed above that the conduct of the appellant vis a visa the alleged discrepancies estops them from contending otherwise.  The appellants by their letter exhibit 3 D 15 of 16th May 1994 itemised to the respondent what they, the appellants perceived to be the discrepancies.  It is a fact upon the evidence that the bill of lading, for instance, mentioned Saviour Woodwork Industry, P.O. Box 13918 Accra, Ghana, Fax No. 229013 Tel. No. 227883 as the company to be notified instead of National Investment Bank A/C Narrow Fishing company Ltd.  I do not accept, upon the evidence, that the learned trial judge merely jumped to the conclusion that there were discrepancies when in actual fact there were none.  I hereby dismiss this ground for reasons already given above.</p> <p>            Article 18 of the UCP 500 is in the following terms:</p> <p>            “18 DISCLAIMER FOR ACTS OF AN INSTRUCTED PARTY</p> <p>            (a)  banks utilizing the services of another bank or other banks for  </p> <p>                  the purpose of giving effect to the instructions of the Applicant do</p> <p>                  so for the account and at the risk of such Applicant.</p> <p>            (b)  Banks assume no liability or responsibility should the instructions</p> <p>                   they transmit not be carried out, even if they have themselves taken</p> <p>                   the initiative in the choice of such other bank(s)…..”</p> <p>            It was based on the above provision that appellant formulated ground 3 of the appeal and claimed that the learned trial judge had misdirected himself in faulting the appellant for paying the US $50,000 of the respondent’s money to Hyundai International Trading Corporation c.c.  The appellant’s contention here is that in so far as they, dutifully notified the respondent of the perceived discrepancies and they had furthermore communicated the respondent’s refusal to accept the discrepancies to the correspondent bank, the trial court’s finding against the appellant was not justified.  Where, in a commercial transaction or a contractual relationship a party enters a disclaimer, then that party by virtue of the disclaimer avoids liability for breach.  See the leading case of <strong>HEDLEY BYRNE &amp; CO. Ltd. Vrs. HELLER &amp; PARTNORS LTD. HL (964) AL 465</strong> and also <strong>SMITH VRS. ERIC BUSH; HARRIS &amp; ANOR. VRS. WYRE FOREST DISTRICT COUNCIL &amp; ANOR. (1989) 2 ALL ER 614.  </strong>For a party to take advantage of a disclaimer notice however, I am of the humble view that the disclaimer must in the first place be known by the party against whom it is intended to be applied or invoked, and that party must have accepted that condition expressly or by implication.  This view becomes prominent when it is considered along side the fact that there was no direct contact between the appellant and the respondent before the L/C was issued and that UCP 500 did not seem to have been brought to the notice of the respondent at the time that the L/C was opened upon the instructions of the 1st defendant, and in the absence of the respondent.  Secondly, banking laws and practices are common knowledge, and in the bossom of banking practitioners and not the ordinary unsuspecting member of the public.  Where there is no evidence that a contract was made with the respondent in which both parties acted and accepted the disclaimer, I shudder to think that the appellate bank can effectively unvoke the provision of disclaimer against the respondent.  Parties to a contract must know, understand and accept every term of the contract.  In the instant case, I am of the view that the appellant cannot hide under Article 18 of the UCP 500 for the further reason that they failed to issue an unequivocable instruction to the correspondent bank.  The evidence shows that after they had informed the correspondent bank of the respondent’s failure to accept the discrepancies, and had gone further to instruct the correspondent bank to cancel the credit, the appellant’s woefully vacillated.  Instead of standing firmly and committed to the decision to cancel the L/C, the appellants accepted the explanation from the correspondent bank that</p> <p>(a)  there were no discrepancies, and</p> <p>(b)  that they had received compliant documents prior to the expiration</p> <p>       of the L/C on 29th April 1994.</p> <p>            In view of the above scenario, can the appellant correctly say that they issued instructions to the correspondent bank to cancel the L/C and that the latter bank failed to comply.</p> <p>            What, it may be asked, were the instructions given by the appellant that the correspondent bank failed to honour.  The simple answer is that the appellant bank impliedly withdrew their earlier instructions, by their acceptance of the explanations given by the correspondent bank and that fact amounted in effect, to not giving any instructions at all.  Article 18 of UCP 500 will operate only where valid instructions were given and were not carried out.  The provision, with respect does not avail the appellants.</p> <p>Equally the submissions against the award of interest, based on Art 18 of UCP 500 is dismissed.</p> <p>            I will now proceed to the last ground of appeal, touching on the award of costs.</p> <p>It is common knowledge that the award of costs is at the discretion of the trial judge and his exercise of discretion will not be disturbed except where it is shown that it was exercised on improper legal considerations.  In the present appeal, counsel failed to justify this ground of appeal. He failed to show in what way the costs are seen to be excessive and also did not attempt even in the least to question the trial judge’s exercise of discretion much more to impugn it.  The essence of discretionary authority is the power to choose within a range of acceptable options, whether or not courts might reach differing or even opposite conclusions on the same record.  The failure of appellant to point out any element of indiscretion in the trial court’s award of US$7,000.00 as costs renders us virtually impotent to embark upon any exercise of review.</p> <p>            In totality, the appeal fails and it is accordingly dismissed.</p> <p> </p> <p> </p> <p> </p> <p><strong>                                                                                    G.M. QUAYE</strong></p> <p><strong>                                                                               JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p> </p> <p>I agree.<strong>                                                                  P.K. OWUSU ANSAH</strong></p> <p><strong>                                                                              JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p>I also agree.     <strong>                                                            J.A. OSEI</strong></p> <p><strong>                                                                            JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p><strong>COUNSEL  -  MR. MICHEAL AMAFU-DEI FOR THE 3RD DEFENDANT/</strong></p> <p><strong>                        APPELLANT.</strong></p> <p> </p> <p><strong>                         MR. C.B.K. ZWENNES FOR THE PLAINTIFF/RESPONDENT.</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>~eb~</strong></p> <p> </p> <p>                       </p> <p>           </p> <p> </p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-f1096fe5b1fae96b18ebef2f4ae819ecc7048b998dd75996ea4264f4ab861e4f"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE COUR OF APPEAL  -  ACCRA</strong></p> <p> </p> <p><strong>CORAM  -  OWUSU ANSAH, JA [PRESIDING]</strong></p> <p><strong>                                                   OSEI, JA</strong></p> <p><strong>                                                   QUAYE, JA</strong></p> <p> </p> <p><strong>CIVIL APPEAL NUMBER</strong></p> <p><strong>C.A 37/2003</strong></p> <p><strong>19TH JULY, 2006</strong></p> <p> </p> <p> </p> <p><strong>NARROW  FISHING &amp; TRADING COMPANY  …   PLAINTIFF/RESPONDENT</strong></p> <p> </p> <p><strong>                     V   E    R    S    U    S</strong></p> <p> </p> <p><strong>(1)  JAMES RICHARD QUANSAH</strong></p> <p><strong>                                                  …   DEFENDANTS                          </strong></p> <p><strong>(2)  SAVIOUR WOODWORKS LTD.        </strong></p> <p> </p> <p><strong>(3)  NATIONAL INVESTMENT BANK LTD.  … 3RD DEFENDANT/APPELLANT     </strong></p> <p><strong>                  --------------------------------------------------------------------------</strong></p> <p><strong>                                           J  U  D  G  M  E  N  T</strong></p> <p><strong>                   -------------------------------------------------------------------------</strong></p> <p> </p> <p><strong>QUAYE, J.A. - </strong>The appeal herein is from the judgment of the High Court, Accra, delivered on 27th July 2000.  The action in the trial court was initiated by the plaintiff (now respondent in this judgment) to seek relief from the three defendants therein.  At the trial, evidence was offered by the plaintiff/respondent to support the action.</p> <p>On the side of the defendants only the 3rd defendant bank sought to resist the claim of the plaintiff.</p> <p>            The trial ended in favour of the plaintiff/respondent as the defence of the 3rd defendant did not find favour with the trial court.  The action of the plaintiff against the 1st and the 2nd defendants was dismissed.  The present appeal is therefore between the 3rd defendant (herein appellant) and the plaintiff (respondent).</p> <p>            The respondent entered into an agreement on 3rd December 1993 for the importation of (one thousand) 1,000 metric tonnes of fresh frozen fish: mackerel, from a United Kingdom based company trading under the name of World Scope Limited.  The said importation was to cost US $455,000.00 out of which the respondent was required to  deposit twenty per cent the total cost.  That worked up to ¢64,000.000.00  (sixty four million cedis) only.  The payment of the twenty per centum deposit of ¢64 million was supported with a guarantee by the 1st defendant who, as the managing director of the 2nd defendant company, undertook to be bound to due performance of the contract between the respondent and World Scope Limited.  Under the said contract, the fish was to be delivered to the respondent on or before the 30th December, 1993, and the respondent was to complete the purchase within thirty days after receipt of the said consignment of imported mackerel.  In spite of the undertaking on the part of the 1st and 2nd defendants they failed to pay the money to World Scope Limited hence the fish was not supplied by them to the respondent.   </p> <p>            After this initial failure the 1st defendant who spoke and acted as if he held a lien, and could exercise absolute control of, and determine and/or dictate how the deposit of  ¢64,000,000.00 was to be used, took the reluctant respondent to Mauritania for fish, and when that second attempt failed, he lastly decided to buy the fish from a company by the name Hyundai International Trading Corporation c.c. of the Republic of South Africa.  The 1st defendant informed the respondent that he had negotiated for the supply to the respondent the quantity of 2,000 metric tones of fresh frozen horse mackerel at the cost of US$1.110,000.  This third attempt was to be supported by the initial deposit already made by the respondent.</p> <p>            Recurrently, the respondent, after the failure of the World Scope contract, and the subsequent attempt to import fish from Mauritania, demanded the refund of the ¢64 million deposit from the 1st defendant but the latter showed no inclination to part with same.</p> <p>In respect of the Hyundai agreement, the 1st defendant prevailed upon the respondent that he would use the ¢64 million deposit to open Letters of Credit for the plaintiff, and further, that his bankers, the appellant herein, would then effectuate the importation of  the 2,000 metric tonnes of fish.  In furtherance of this assurance, the 1st defendant informed the respondent that he, the 1st defendant, had opened Letters of Credit (LC) at the appellant bank.  He therefore gave to the respondent an Import Declaration Form (IDF) which the latter executed by appending his signature.</p> <p>            It is material at this stage to state that the respondent was not a customer of the appellant bank.  Rather, it was the 2nd defendant who operated accounts thereat.  Under this situation the 1st defendant contacted his bankers, the appellants, for the opening of an LC on 30th January 1994 on behalf of the respondent in favour of the supplier/exporter Hyundai International Trading Corporation c.c. of South Africa.</p> <p>The fact that the respondent did not previously know about the Hyundai Corporation whilst the 1st defendant knew them gives credence to, and further authenticates the respondent’s averments.  It is quite obvious therefore that the 1st defendant was firmly rooted in the pilot’s seat in so far as the transaction and arrangements relating to the respondent’s importation of fish went.</p> <p>            It turned out however that misunderstandings and mistrust welled up between the respondent and the 1st defendant, and when it came to a head, the respondent attempted to jump into the driver’s seat in order to ensure that the project did not boomerang.</p> <p>            The respondent saw the LC for the first time after one Mr. Otuahene of the appellant/bank had given it to him upon the direction of the 1st defendant.  That was in February 1994.  In March the 1st defendant informed respondent that he had received a telex from Hyundai which indicated that only 90 metric tonnes of fresh frozen fish would be arriving, and not the promised or expected 2,000 metric tonnes of horse mackerel as appeared on the IDF.  This fact put the respondent on his guard to retract.  He therefore called on the 1st defendant and the appellant herein to cancel the LC and refund the deposit of US$50,000 to him.  Apparently, the 1st defendant had previously refunded US$3,500 through one Madam Odey, the financier of the respondent.  The respondent’s misgivings and protestations at this time were justified by the Ghanaian customs regulations that forbade the issuance of clearing licence for imports of fish that fell below 500 metric tones minimum.   From the evidence so far it becomes apparent that the 1st defendant did not merely occupy the central position in the triumvirate comprising the  respondent, the appellant and the suppliers, but that indeed, it was he who committed the unwilling respondent to the appellant and the suppliers.  The respondent did not at anytime enter into or exchange correspondence with the correspondent bank or vice versa.  As matters stand at present however, the part played by the 1st and 2nd defendants who are not parties in this appeal, appears finally determined by the trial court, and any misgivings that I might entertain on the dismissal of the action against them would have no bearing on this appeal.  We therefore have to leave the sleeping dogs to enjoy their rest.</p> <p>            The case involving the appellants started with the opening of the LC by 1st defendant on behalf of the respondent in favour of the suppliers, Hyundai International Trading Corporation c.c. and the appointment by the appellant unilaterally, of the Midland Bank as the advising or correspondent bank with regard to the LC, for the respondent in favour of Hyundai as beneficiary.</p> <p>            When the respondent gained knowledge about the tonnage of fish that Hyundai were exporting to him, he wrote to the appellant to request the cancellation of the L/C.   </p> <p>The latter replied by stating the legal position for the information of the respondent that the L/C, being irrevocable, could only be cancelled with the consent of the beneficiary.  The respondent, both before and after the expiry of the L/C on 29th April 1994 seized, on every opportunity to press home his demand that the L/C be cancelled.  Before 29th April 1994, the appellant stuck to the position that until the L/C had expired, the consent of the beneficiary was sine qua non for its cancellation. </p> <p>            After the expiry of the L/C the respondent did not relent in his demand for cancellation.  With this clearly stated intention or desire, of the respondent, what legal conditions would inform the continued refusal or inability of the appellant to cancel the L/C after its expiration.  On 10th May 1994, about eleven days after the expiration of the L/C and in response to the respondent’s repeated request that the L/C be cancelled, the appellants wrote inter alia as follows:</p> <p>                        “We refer to your letter of 4th May, 1994, requesting us to cancel</p> <p>                         the above mentioned L/C due to non-performance on the part of</p> <p>                         the supplier Messrs Hyundai International Trading Corporation</p> <p>                         of South Africa.</p> <p>                        “We have been in contact with our correspondent Bank, Midland</p> <p>                         Bank plc. and they have informed us that documents conforming</p> <p>                         to the terms and conditions of the L/C have been submitted by the</p> <p>                         Supplier and for which payment has been effected.  The said</p> <p>                         documents have been dispatched to us by courier and we shall</p> <p>                         be in touch with you for the release of these documents to enable</p> <p>                         you clear the goods concerned as soon as we receive them……”</p> <p>            After the above, the appellants again wrote on 16th May 1994 to the respondent that</p> <p>                      “…….We have received documents in respect of the above-mentioned</p> <p>                     from the advising bank with the following discrepancies……”</p> <p>affecting, or apparent, on the face of the bill of lading, and the SGS (General Superintendence company) clean report of findings.   The letter ended with a request to the respondent to commit himself on paper indicating his acceptance of the discrepancies.  As would be expected from his conduct so far, the respondent rejected the discrepancies and repeated his demand for the cancellation of the L/C by letter dated 17th May 1994.  The position was reiterated by the respondent in another correspondence dated 8th June 1994.</p> <p>            The interaction between the respondent and the appellant was not only documentary.  Officers of the appellant Bank who dealt with the respondent in their normal course of duty on behalf of the appellant included one Mr. Otuahene from whom the respondent obtained a copy of the L/C.  Mrs. Holdbrooke Smith who was head of the appellant bank’s foreign Operations Department, and in that capacity wrote and/or signed almost all the letters that were exchanged with the respondent relevant to this case; Mr. Zaglo who gave to the respondent on behalf of the appellant what purported to be official documents in the nature of bill of lading; Mr. Ofosu and the Managing Director of the appellant bank.  What purported to be bill of lading (tendered into evidence as the Exhibit R series) led the respondent on a wild goose chase.  The documents suggested that the fish consignment had been loaded on a ship, better identified as Tropic Lines.  Upon inquiry, from the agents, Delwas Shipping Lines, the respondent drew a blank.  He was told that the vessel, Tropic Lines had ceased to operate about a year, before the enquiry; that the statement by Mr. Zaglo, or his wife, of the appellants office, that the ship had already entered the territorial waters of Ghana was false; that they had been given a yellow bill of lading instead of blue, and that the documents that the appellants gave to the respondent were fake.  As if to vindicate the respondent, the suppliers on 21st June 1994 faxed the following message to the respondent.  Inter alia, it stated</p> <p>                        “…….To date we have been unable to load the small order of 90</p> <p>                          MT due to this small capacity…….</p> <p>                          ………Presently we cannot confirm the shipment dates but will</p> <p>                          do so as soon as it is confirmed.</p> <p>                          Once again, apologies for any misunderstanding but we are not to</p> <p>                          blame”</p> <p>            At the end of the trial, the learned trial judge found against the appellant on the basis that no compliant documents were presented to the Bank by the suppliers before the expiration of the L/C on 29th April 1994; that after the expiration of the L/C the respondent clearly instructed the appellant to cancel the L/C and that the payment of the US $50,000.000 to the supplier was wrong. </p> <p>            In arriving at the above conclusions the learned trial judge took time to examine the evidence under various heads including claim for US $50,000.00; the alleged discrepancies; the expiration of the L/C; and the failure of the appellant to cancel the L/C.</p> <p>            This appeal was stated to have been “lodged to prevent a situation where the National Investment Bank Limited will be made a scape-goat for the inefficiencies of the Respondent and its friends, the 1st and 2nd Defendants.</p> <p>            Counsel for the appellant discussed the law on negligence and urged upon us that the material issue upon which to determine the conduct of the parties, particularly, the appellant is the issue of careless behaviour.  The appellants maintain that their conduct in the whole transaction measured up to the standard and scope of the law.  After laying this foundation by way of introduction, counsel for the appellant cited the International Chamber of Commerce Uniform Customs and Practices for Documentary Credits 1993 Revision, ICC Publication No. 500 to be the relevant and applicable law, under the provisions of which their conduct should be tested.  On this basis learned counsel for the appellant faulted the reliance by the trial court on the decisions in the two cases <strong>EQUITABLE TRUST CO of NEW YORK VRS. DAWSON PARTNERS LIMITED</strong> {1927} 27 LLL. Rep. 49 and <strong>J.H. RAYNER AND OILS SEEDS TRADING CO.</strong> <strong>LIMITED VRS. NAMBROS BANK LIMITED</strong> {1942}A LL er 694 as being in error.   </p> <p>The above form the general introduction to learned counsel’s submission.</p> <p>            The 1st ground of appeal is that the judgment is wrong and cannot be supported having regard to the evidence led in the trial.  I will take this ground and additional grounds 1 &amp; 2 together in this judgment.  The rule is that where the whole judgment is put in issue, as suggested by these grounds of appeal, it is the appellate court’s duty to decide upon the facts and applicable law whether the trial court applied proper legal standards and whether there was reasonable support for its evaluation of factual questions.  The conclusions drawn by the trial court then become subject to broad review and will be reversed if they are found to be incorrect.  See <strong>LE CLAIR VRS TOWN OF</strong> <strong>NORWELL</strong> 430 Mass 328 at 331 (1999).</p> <p>            Counsel for the appellant took issue with the findings of the trial court with regard to discrepancies and the expiration of the L/C.  In dealing with the issue of discrepancies, counsel asserted that the appellant was satisfied that there were no discrepancies.  The respondent was also convinced that there was none, hence he accepted the documents, albeit he later returned them after the space of two weeks.  He submitted that there were no discrepancies but even if there were, the appellant cannot be held liable.   He also cited article 15 of UCP 500 in support.  Counsel furthermore submitted that the doctrine of strict compliance which formed the basis of the conclusions of the learned trial judge is inapplicable in this case because it is in direct conflict with the UCP 500.  He finally submitted on this subject that the correspondent bank is agent of the respondent, not the appellant.</p> <p>            Certainly, very interesting and far reaching legal and factual issues have been raised in the above submissions.  I therefore deem it my duty to scrutinize and analyse them to test their ability to sustain.  In the first place the learned counsel for appellant cannot deny that there is a duty relationship between them and the respondent; and also between the appellant and the advising bank.   Where a duty exists, it must be faithfully observed since breach thereof would, subject to the existence of other requirements, result in damages.  The duty owed to the respondent was established with the opening of the L/C.  This created an obligation on the part of the appellant to keep to the clear terms under which the L/C was to operate.  It was therefore their duty, which they owed to the respondent, to ensure that the terms thereunder were kept.  Being aware of the duty created which must be brought to fruition, the appellants sua sponte linked up with the Midland Bank to perform the duty that had to be discharged.  That duty, required under UCP 500, strict compliance with the terms and conditions imposed.  For a few illustrations, a look may be taken at articles 2(iii); 9(a), (b), 13(b) and (c); 14(b) just to mention a few.  Article 2 (iii) is in the following terms:       </p> <p>                        “(iii)  authourises another bank to negotiate, against stipulated</p> <p>                                 documents provided that the terms and conditions of the                                                                          </p> <p>                                 Credit are complied with</p> <p>                              Article 9(a) states “(a) An irrevocable credit constitutes a</p> <p>                              definite undertaking of the Issuing Bank, provided that the</p> <p>                              stipulated documents are presented to the Nominated Bank</p> <p>                              or to the Issuing Bank and that the terms and conditions of the Credit</p> <p>                              are complied with. (emphasis mine)</p> <p>           It is my humble submission of fact that the phrase requiring compliance is recurrent substantially throughout UCP 500.  The only difference perhaps is the omission of the word “strict.”  The absence of the adjective “strict,” however does not, in my quiet consideration, derogate from the import of the message envisaged, or for that matter, the mischief sought to be addressed.  It is therefore my respectful view that the position taken by the appellant that the doctrine of strict compliance is in direct conflict with UCO 500 cannot be supported.</p> <p>            This brings me to the question of the relationships between the parties.   The first one, as I have already pointed out is the duty created between the respondent and the appellant, the latter taking it upon themselves to process the L/C.  The other is that between the two banks.  The advising bank is agent for the issuing bank to the extent that one compliments the other to ensure that the relevant documents are passed in compliance with the conditions.  The advising bank cannot commit the money without authorization of the issuing bank.  This position is illustrated by the notification that issued from the advising bank to the issuing bank (the appellants) when they detected the discrepancies.  The issuing bank carried out its duty by notifying the respondent and waiting for his answer or reaction and then communicating same unto the correspondent bank.  The chain of command is clear.  Agency has been stated in simple terms to be the relationship which exists between two persons, one of whom expressly or impliedly consents that the other should represent him or act on his behalf, and the other of whom similarly consents to represent the former or so to act.  (See Bowstead on Agency page 1).  For their part, the authors of Blacks Law Dictionary Sixth Edition defined “agency” at page 62 to be “a relationship between two persons, by agreement or otherwise; where one (the agent) may act on behalf of the other (the principal) and bind the principal by words and actions.  Relation in which one person acts for or represents another by latter’s authority….”  Inferentially the appointment of the Midland Bank as the correspondent Bank by the appellant Bank created a relationship of agency between them.  Article 7 of UCP 500 when construed by the ordinary meaning of the words, seems to endorse the above reasoning.  Where the advising bank was appointed by the issuing bank without prior consent of the respondent, and where throughout the whole transaction there was no evidence of any direct communication or correspondence between the purchaser and the correspondent bank,  then to submit or conclude that the correspondent bank is agent of the purchaser and not the issuing bank, is to say the least, far fetched and legally unacceptable. If there was any doubt still lingering in minds, that issue was firmly put to rest by the illustration given on page 31 of Bowstead on Agency that “where a letter of credit is opened, the instructing bank and the confirming bank are in the positions, at any rate in some respects, of principal and agent respectively”  as held in <strong>BANK MELLI IRAN</strong> <strong>VRS. BACLAYS BANK {1951} 2 TLR 1057</strong> and also in <strong>BENJAMIN’S SALE OF</strong> <strong>GOODS {1974}</strong> paragraph 2082.  With due deference I do not think UCP 500 holds a different or conflicting position as regards the parties.  In modern practice it may be stated cursorily that once a letter of credit is properly issued, the customer has no right to modify it or revoke it; the beneficiary is entitled to the full benefits of the stipulations in the L/C and that the issuing bank would be liable in damages if it violates the terms of credit; the L/C is construed strictly and ambiguities are applied against the writer.</p> <p>Where therefore the L/C is clear in its terms and not ambiguous, it behoves the issuing bank to interpret and apply it strictly as under UCP 500.  Where the contents of the shipping documents issued by the supplier to the correspondent bank is even slightly different from the actual words of the L/C then in that case a discrepancy arises.</p> <p>In order to determine what constitutes discrepancy the decided authority cited by the learned trial judge is relevant and it may be examined among others.</p> <p>            The case of <strong>J.A.RAYNER &amp; CO LTD. AND OILSEEDS TRADING CO,</strong> <strong>LTD. VRS. HAMBROS BANK, LTD.</strong> [1942].  All ER 694 needs being taken a second look at.  In that case the description of the imported goods was stated in the L/C.  When later the bill of lading was issued, it was found to contain a slight variation in the description of the goods from what appeared in the L/C.  As a matter of fact the bill of lading contained words of description which could easily and satisfactorily identify the consignment.  That fact notwithstanding, the bill of lading, instead of keeping strictly to the description “coromanded groundnuts in bags” added or used another name “machine shelled groundnut kernels,” a name which could generally interchange with “Coromanded groundnuts in bags.”  The court however accepted that the description was discrepant.  In the instant appeal, the letters of credit which was tendered in the trial court as exhibit 3D3 stated its conditions in clear language.  Inter alia, it required notification to be made in the names of National Investment Bank and Narrow Fishing Co. Ltd.  Furthermore, it required the freight receipt to be issued and signed by the carrier or their accredited agents.  The latest shipping date and the expiry date were stated to be 8th April 1994 and 29th April 1994 respectively.  When the bill of lading was served on the correspondent Bank, that bank detected discrepancies which they forwarded to the appellants (the issuing bank) and the latter further forwarded it to the respondent.  At this stage it was clear that all of the correspondent bank, the issuing bank and the respondent were ad idem that the documents were discrepant.  Accordingly the appellant by a letter of 30th March 1994 wrote to the respondent.  The letter exhibit 3 D 6 was appropriately headed <strong>“DISCREPANCIES IN SHIPPING DOCUMENTS PRESENTED UNDER</strong> <strong>YOUR L/C NO…….”</strong>  The letter went on to itemize seven identified discrepancies.  The discrepant document was rejected by the respondent, by letter dated 19th April 1994 exhibit 3 D 7.  By fax dated 20th April 1994 the appellant informed the correspondent bank of the respondent’s rejection of the discrepancies.  If the documents were not discrepant what must have prompted and informed the chain reaction of the two banks and the respondent.  Obviously the perception of discrepancies was not a mere cry of wolf when there was none.  A discrepancy simply means a difference between two things which ought to be identical.  Assuming there were no discrepancies, neither the appellant nor the correspondent bank is justified to fault the respondent on the issue after they, by their representations had made him to believe that they existed.  Where the documents that were held to be discrepant were neither changed nor amended, the appellant has a high mountain to climb in order to explain away their shift of position to the satisfaction of the court.  I can glean no such explanation from the evidence on record.  I would even go further to state that where the purchaser had rejected the document and thereafter what was previously thought to be discrepant was no longer found to be so, the correspondent bank was under duty not to assume powers to pass them.  Once the chain had started, the correspondent bank ought to have gone over the process and sought the mandate or clearance of the respondent through the appellant to pay the supplier.  For the fact that the appellant failed to ensure the strict compliance with the documents, the duty of care they owed the respondent was breached.  It is sad to remark that the appellants appeared to have turned themselves into a rubber stamp to endorse whatever the correspondent bank put forward without question and thereby opened themselves up to be manipulated by the correspondent bank.  Generally, the law frowns on a party who attempts to take advantage  of, or benefit from his own wrong.  It is highly deprecated as seen from the wide range of decided cases such as <strong>SCHANDORF VRS. ZEINI &amp; ANOR. [1976] 2</strong> <strong>GLR 418 CA.; DJOMOA VRS. AMARGYEI [1961] 1 GLR 170 SC.</strong>  From the foregoing, the least said about the collection of the discrepant documents by the respondent, the better.  Suffice it however to observe that the respondent, as soon as he found that the documents which he was made to sign for and collect were not in accord with the contract, he immediately returned them.  His signing and collecting of them was not a voluntary act.  When he went to the appellants he was merely asked to sign and collect them without anyone telling him the contents and effect of his action.  I do therefore reject the submission of counsel for the appellant on that issue.</p> <p>            The appellants submissions on the question of the expiry of the L/C are that even if the correspondent bank lied in saying that they received compliant documents before the expiry date, they, the appellants cannot be held liable, and further that they satisfactorily and conscientiously conducted themselves and discharged their mandate according to the level of expectation.  I should concede that the appellants duly kept up correspondence as expected, and that for their vacillation and lack of forthrightness to identify and stick to the proper level and ethics of their profession and failure to insit           on having the conditions of the L/C complied with, they would have put themselves above board.   Upon the expiration of the L/C, it ceased any longer to be extant.  I believe neither the correspondent bank nor the appellant had power to resuscitate it by themselves, the more so since the respondent had repeatedly demanded cancellation thereof, and the appellant had indicated to him that his demand could not be met while the credit had  not yet expired and the beneficiary had not given their consent for cancellation. </p> <p>The opening of the L/C in favour of the respondent created a relationship between the bank and the respondent and also imposed on the appellant an obligation to protect and ensure the rights of the respondent.  This the appellant, not merely failed to do, they instead slept on their rights or condoned the usurpation of rights by the correspondent bank to treat the credit as still alive or extend its life.  Appellant therefore, in my judgment cannot escape liability.  Where the issuing bank puts on a garment of insensitivity to the genuine plight of the applicant and fails to cancel the credit, or insist on canceling it when it was due, the consequences of their failure cannot be whittled away by the number of letters or faxes they write or send.  The several letters the appellants wrote did not achieve the purported result and when they capitulated by accepting the so-called compliant documents several days after the expiration of the L/C the correspondent bank read in between the lines, saw the weakness or non-professional conduct of the appellants and took advantage accordingly.  The appellants attempt to urge the contrary upon us fails.  The appellate court will not set aside findings of fact of the trial judge unless they are clearly erroneous.  The appeal, on these grounds of the judgment not being supported by the evidence adduced at the trial fails and is accordingly dismissed.</p> <p>            At the pain of repetition I now revert to the question of discrepancy in order to address the complaint formulated in additional ground (2) alleging that the trial judge failed to consider the appellant’s defence.  Learned counsel’s view was that if the trial court had put the shipping documents against the claims of discrepancy, it would have been realized that there were no discrepancies at all.  I have already observed above that the conduct of the appellant vis a visa the alleged discrepancies estops them from contending otherwise.  The appellants by their letter exhibit 3 D 15 of 16th May 1994 itemised to the respondent what they, the appellants perceived to be the discrepancies.  It is a fact upon the evidence that the bill of lading, for instance, mentioned Saviour Woodwork Industry, P.O. Box 13918 Accra, Ghana, Fax No. 229013 Tel. No. 227883 as the company to be notified instead of National Investment Bank A/C Narrow Fishing company Ltd.  I do not accept, upon the evidence, that the learned trial judge merely jumped to the conclusion that there were discrepancies when in actual fact there were none.  I hereby dismiss this ground for reasons already given above.</p> <p>            Article 18 of the UCP 500 is in the following terms:</p> <p>            “18 DISCLAIMER FOR ACTS OF AN INSTRUCTED PARTY</p> <p>            (a)  banks utilizing the services of another bank or other banks for  </p> <p>                  the purpose of giving effect to the instructions of the Applicant do</p> <p>                  so for the account and at the risk of such Applicant.</p> <p>            (b)  Banks assume no liability or responsibility should the instructions</p> <p>                   they transmit not be carried out, even if they have themselves taken</p> <p>                   the initiative in the choice of such other bank(s)…..”</p> <p>            It was based on the above provision that appellant formulated ground 3 of the appeal and claimed that the learned trial judge had misdirected himself in faulting the appellant for paying the US $50,000 of the respondent’s money to Hyundai International Trading Corporation c.c.  The appellant’s contention here is that in so far as they, dutifully notified the respondent of the perceived discrepancies and they had furthermore communicated the respondent’s refusal to accept the discrepancies to the correspondent bank, the trial court’s finding against the appellant was not justified.  Where, in a commercial transaction or a contractual relationship a party enters a disclaimer, then that party by virtue of the disclaimer avoids liability for breach.  See the leading case of <strong>HEDLEY BYRNE &amp; CO. Ltd. Vrs. HELLER &amp; PARTNORS LTD. HL (964) AL 465</strong> and also <strong>SMITH VRS. ERIC BUSH; HARRIS &amp; ANOR. VRS. WYRE FOREST DISTRICT COUNCIL &amp; ANOR. (1989) 2 ALL ER 614.  </strong>For a party to take advantage of a disclaimer notice however, I am of the humble view that the disclaimer must in the first place be known by the party against whom it is intended to be applied or invoked, and that party must have accepted that condition expressly or by implication.  This view becomes prominent when it is considered along side the fact that there was no direct contact between the appellant and the respondent before the L/C was issued and that UCP 500 did not seem to have been brought to the notice of the respondent at the time that the L/C was opened upon the instructions of the 1st defendant, and in the absence of the respondent.  Secondly, banking laws and practices are common knowledge, and in the bossom of banking practitioners and not the ordinary unsuspecting member of the public.  Where there is no evidence that a contract was made with the respondent in which both parties acted and accepted the disclaimer, I shudder to think that the appellate bank can effectively unvoke the provision of disclaimer against the respondent.  Parties to a contract must know, understand and accept every term of the contract.  In the instant case, I am of the view that the appellant cannot hide under Article 18 of the UCP 500 for the further reason that they failed to issue an unequivocable instruction to the correspondent bank.  The evidence shows that after they had informed the correspondent bank of the respondent’s failure to accept the discrepancies, and had gone further to instruct the correspondent bank to cancel the credit, the appellant’s woefully vacillated.  Instead of standing firmly and committed to the decision to cancel the L/C, the appellants accepted the explanation from the correspondent bank that</p> <p>(a)  there were no discrepancies, and</p> <p>(b)  that they had received compliant documents prior to the expiration</p> <p>       of the L/C on 29th April 1994.</p> <p>            In view of the above scenario, can the appellant correctly say that they issued instructions to the correspondent bank to cancel the L/C and that the latter bank failed to comply.</p> <p>            What, it may be asked, were the instructions given by the appellant that the correspondent bank failed to honour.  The simple answer is that the appellant bank impliedly withdrew their earlier instructions, by their acceptance of the explanations given by the correspondent bank and that fact amounted in effect, to not giving any instructions at all.  Article 18 of UCP 500 will operate only where valid instructions were given and were not carried out.  The provision, with respect does not avail the appellants.</p> <p>Equally the submissions against the award of interest, based on Art 18 of UCP 500 is dismissed.</p> <p>            I will now proceed to the last ground of appeal, touching on the award of costs.</p> <p>It is common knowledge that the award of costs is at the discretion of the trial judge and his exercise of discretion will not be disturbed except where it is shown that it was exercised on improper legal considerations.  In the present appeal, counsel failed to justify this ground of appeal. He failed to show in what way the costs are seen to be excessive and also did not attempt even in the least to question the trial judge’s exercise of discretion much more to impugn it.  The essence of discretionary authority is the power to choose within a range of acceptable options, whether or not courts might reach differing or even opposite conclusions on the same record.  The failure of appellant to point out any element of indiscretion in the trial court’s award of US$7,000.00 as costs renders us virtually impotent to embark upon any exercise of review.</p> <p>            In totality, the appeal fails and it is accordingly dismissed.</p> <p> </p> <p> </p> <p> </p> <p><strong>                                                                                    G.M. QUAYE</strong></p> <p><strong>                                                                               JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p> </p> <p>I agree.<strong>                                                                  P.K. OWUSU ANSAH</strong></p> <p><strong>                                                                              JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p>I also agree.     <strong>                                                            J.A. OSEI</strong></p> <p><strong>                                                                            JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p><strong>COUNSEL  -  MR. MICHEAL AMAFU-DEI FOR THE 3RD DEFENDANT/</strong></p> <p><strong>                        APPELLANT.</strong></p> <p> </p> <p><strong>                         MR. C.B.K. ZWENNES FOR THE PLAINTIFF/RESPONDENT.</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>~eb~</strong></p> <p> </p> <p>                       </p> <p>           </p> <p> </p> <p> </p></span></div></div> </div> </div> Wed, 23 Jun 2021 10:48:41 +0000 Anonymous 1677 at http://ghalii.org Konglo and Another Vrs James and Others (144 of 2005) [2006] GHACA 15 (10 March 2006); http://ghalii.org/gh/judgment/court-appeal/2006/15 <span class="field field--name-title field--type-string field--label-hidden">Konglo and Another Vrs James and Others (144 of 2005) [2006] GHACA 15 (10 March 2006);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/375" hreflang="x-default">Appeals and reviews</a></div> <div class="field__item"><a href="/taxonomy/term/382" hreflang="x-default">Declaratory Relief</a></div> <div class="field__item"><a href="/taxonomy/term/371" hreflang="x-default">Injunction</a></div> <div class="field__item"><a href="/taxonomy/term/373" hreflang="x-default">Plants</a></div> <div class="field__item"><a href="/taxonomy/term/374" hreflang="x-default">forests and forestry (flora)</a></div> <div class="field__item"><a href="/taxonomy/term/383" hreflang="x-default">African customary law and rights of indigenous peoples</a></div> <div class="field__item"><a href="/taxonomy/term/369" hreflang="x-default">EL</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 06/23/2021 - 10:48</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>The court considered an appeal against the judgment of the court below declaring the defendant a tenant, alternatively a licensee of the plaintiff, as well as determining the 2nd defendant’s misgivings concerning the costs awarded against him.  </p> <p>The defendant argued that the land devolved on the chief but was subject to use by both parties’ families. The second defendant was joined as a co-defendant, alleging that the land was founded by his ancestor and that he and his predecessors had been in undisputed possession. </p> <p>The defendants argued that the judgment was granted erroneously as the trial judge failed to correctly define the boundaries between the parties’ land.  </p> <p>The court found that the trial court had adequately defined the boundaries between the parties’ land and that the first defendant’s ancestor and his people had lived on the land for over 300 years. Thus, although the plaintiffs are the land owners, the defendants are in possession and their possessionary rights should not be disturbed by an injunction. </p> <p>The court found that in a case that has been on the list for 25 years, costs of ¢1,200,000.00 against 1st Defendant and ¢950,000.00 against 2nd Defendant awarded by the Court in my view is stretching judicial generosity to it limit. I am unable to review the costs mulcted against the Defendants. The appeal by the 2nd Defendant/appellant fails as well as that of the Plaintiff/appellant. In the circumstances the judgment of the lower Court is affirmed.  </p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.ghalii.org/files/judgments/ghaca/2006/15/2006-ghaca-15.pdf" type="application/pdf; length=328673">2006-ghaca-15.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE COURT OF APPEAL – ACCRA,</strong></p> <p> </p> <p> </p> <p><strong>CORAM  -  ARYEETEY, JA [PRESIDING]</strong></p> <p><strong>                    ANIM, JA</strong></p> <p><strong>                    APALOO, JA</strong></p> <p> </p> <p>H1/144/05</p> <p><strong>10TH MARCH, 2006</strong></p> <p> </p> <p>AWUKU KONGLO  BOKOR            }    …  PLAINTIFF/APPELLANT</p> <p><strong>THOMAS KWAKU AMESIMEKU  }</strong></p> <p><strong>                 </strong></p> <p><strong>                 V E R S U S</strong></p> <p><strong>MANKRALO JAMES ASAFO  (Dec.)   …   1ST DEFENDANT/RESPONDENT</strong></p> <p><strong>(Sub. by AMEGEDZRO ASAFO (Dec.)  …   2nd DEFENDANT/APPELLANT</strong></p> <p><strong>(Sub. by MANKRALO BRENTUO ASAFO IV </strong></p> <p><strong>              ----------------------------------------------------------------------</strong></p> <p><strong>                                           J  U  D  G  M  E  N  T</strong></p> <p><strong>              ----------------------------------------------------------------------</strong></p> <p> </p> <p><strong>APALOO, JA  -  </strong>This appeal emanates from the judgment of the High Court Ho, dated 15th November 1996.  The Court was presided by his Lordship G.K. Acquah then a Supreme Court Judge sitting as additional High Court Judge.</p> <p>          The trial judge entered judgment for the Plaintiff against the 1st Defendant for a declaration that the Plaintiff is the owner of the Bokor land.  While dismissing 1st Defendant’s counter-claim the trial Judge refused Plaintiff’s reliefs for damages and perpetual injunction against the 1st Defendant.</p> <p>           The Plaintiff had sought by his writ the following reliefs.</p> <p>           (a)  A declaration that the Defendant was a mere tenant or alternatively a</p> <p>                 licensee of the Plaintiff in respect of the land in dispute.</p> <p>           (b)  Damages for trespass.</p> <p>           (c)  Perpetual injunction restraining the Defendant’s Afloto family, their servants,</p> <p>                 agents etc. from further felling the Bokor family’s oil palms or making any</p> <p>                 fresh cultivation of the said parcel of land without the consent in writing of</p> <p>                 the Plaintiff.</p> <p>          By his defence the 1st Defendant stated among others that the land the subject matter of the claim devolved on the Mankralo or chief but subject to user by both Plaintiff and Defendant’s families respectively.  1st Defendant added that the palm trees felled by him were his bona fide property.</p> <p>The 2nd Defendant who joined the suit as Co-defendant by a statement of defence averred particularly by his paragraphs 3, 4 and 5 as follows:-</p> <p>        (3)  The Co-defendant says that the land in dispute, which is known as Dzawor</p> <p>               land was founded by his great ancestor by the name Tsrienye.</p> <p>         (4)  The Co-defendant says that the Dzawoe land is bounded as follows:</p> <p>   On one side by the Gevier tribal land.  On one side by the Plaintiff, on one side             by the Defendant and on one side by the property of the Co-defendant.</p> <p>        (5)  The Co-defendant says that both he and his predecessors have been in</p> <p>               undisputed possession of the said Dzawoe land and have exercised and</p> <p>               continue to exercise overt acts of ownership over same without let or hindrance.</p> <p>          Two appeals were filed for determination.  The first by 2nd Defendant/Appellant and the second by the Plaintiff/Appellant.  The first appeal attacked the judgment affecting the 2nd Defendant and his claims to the Dzawoe land.  His grounds were that the judgment was against the weight of evidence and that the trial judge failed to correctly define the boundaries established between the Plaintiff’s Bokor land and the 2nd Defendant’s Dzawoe land as clearly set out in the case.</p> <p>          The Plaintiff/Appellant complained that</p> <p>          (a) “So much of the judgment as found that the 1st Defendant’s predecessors has</p> <p>                 (sic) consistently accepted that the land was for Bokor.”  And</p> <p>          (b)  the refusal of the learned trial Judge to award the Plaintiff damages on the</p> <p>ground that the Plaintiff failed to establish that the felling of the palm trees occurred on the Plaintiff’s exclusive domain on the land.</p> <p>(c)  the failure of the trial judge to exercise his discretionary power under Rule 32</p> <p>                of L1. 128 for the purposes of a complete adjudication of all material points of</p> <p>                difference between the Plaintiff and Defendant.</p> <p>         The grounds of appeal of the Plaintiff/Appellant repeated particulars contained in his complaints against the judgment with details thereof.</p> <p>         The case for the Plaintiff was that 500 acre land in dispute was given to his ancestor Bokor by a Gevier clan man called Gbettor as payment in kind in return for a loan.  Defendant’s case was that Gbettor gave the land to Bokor and Afloto together as brothers.  Bokor was the Plaintiff’s ancestor and Afloto was the ancestor of the 1st Defendant.  The 2nd Defendant claimed the land in dispute as his family land and referred to it as Dzawoe lands.  He pleaded a number of judgments as having demarcated the boundary between his land and that of the Plaintiff.</p> <p>        In his submissions to this Court the 2nd Defendant agreed entirely with the trial Judge when he made the following findings of fact.  That the 2nd Defendant disputes the western boundary of the Plaintiff’s land and that the area in dispute covers 41.7 acres.  That the 2nd Defendant and the Plaintiff accepted that their western boundary was settled in 1916 in the judgment titled Adjei Letsa Vrs. Dagadu Djame &amp; Anor Exhibit DC1.  That the boundary stated in Exhibit CD1 was later confirmed in 1940 by a decision in Adjei Letsa Vrs. Peter Konglo Exhibit F.  That the land to the west of Dzogadze road belonged to Adjei Letsa the 2nd Defendant’s predecessor while the land to the eastern part of Dzogadze road was the property of Peter Konglo the Plaintiff. </p> <p>         These findings were wholly acceptable to the 2nd Defendant but he complains nevertheless that the Plaintiff and 2nd Defendant are faced with the question of what is the correct boundary between their lands.</p> <p>         In my view the answer to this question has been clearly stated in the judgment.  This is what the trial Judge said concerning the boundary.</p> <p>“Looking at their respective versions of the boundary, it is clear                                                that the difference between the Plaintiff and the 2nd Defendant                                          starts from Atitekoe going northwards.  For whereas from this                            Atitekoe the Plaintiff’s boundary moves a little westwards up to                           Oduwti and goes by the old Dzogadze road, up to the place of                          Evuti, the 2nd Defendant’s boundary goes straight ahead from                  Atitekoe through a rock and continues northwards by the Azanukope</p> <p>                 road up to an Adidoti.”</p> <p>        To confirm the position in respect of this conclusion reached by the trial Judge, he went further to state that:</p> <p>“Now the 1916 judgment that is Exhibit CD1 is admitted by                               both Plaintiff and           the 2nd Defendant as having laid down the                  correct boundary between their lands.  And it is further admitted                  by both of them that the boundary set down in this 1916               judgment  had been accepted and confirmed in two later</p> <p>                               suits that is Exhibits F and C.”</p> <p>            It is my considered opinion that the trial Judge adequately considered the issue relating to the boundary between the Plaintiff and the 2nd Defendant and his conclusions cannot be faulted.                                                                                                                         </p> <p>          In respect to 2nd Defendant’s ground two of his appeal, I have come to the conclusion that having regard to the evidence on record and particularly the Court plan Exhibit CE1 the trial Judge came to the right conclusion contrary to 2nd Defendants assertion that the trial Judge failed correctly to define the boundaries established between the Plaintiff’s Bokor land and the 2nd Defendant’s Dzawe land.  His finding of fact that the disputed area covering 41.7 acres shaded yellow in Exhibit CE1 is the western boundary of Bokor land as settled in the 1916 judgment was based on evidence.  Concerning this ground this was the conclusion of the trial Judge.</p> <p>“And since the Plaintiff’s version of the boundary goes by this           Dzogadze road, I accept his version as being in consonance with                      the boundary settled in the 1916 judgment as later confirmed in                Exhibits ‘C’ and ‘F.’  I am therefore satisfied that the western               boundary of Bokor land is as demarcated by the Plaintiff and            indicated on Exhibit CE1.”</p> <p>            2nd Defendant/Appellant’s misgivings concerning the costs awarded against him will be considered later in this judgment.  I shall however proceed to deal with ground one of the Plaintiff/Appellant’s appeal.</p> <p>            The historical evidence was clear that Plaintiff ancestor Bokor received 1st Defendant’s ancestor Asafo as his guest but did not settle Asafo within any demarcated boundaries on the land in dispute.  Asafo and his people lived side by side with Bokor and his people on the land in dispute without any boundaries drawn between the two families for over 300 years.</p> <p>            The trial Judge made the following finding of fact which to my mind is pertinent to ground one of the Plaintiff/Appellant’s case.</p> <p>….. “Although the 1st Defendant and his Afloto family are not                members of Bokor family and consequently are not owners of                        Bokor land, there is overwhelming evidence that they were permitted              by Bokor to live and eat on the land.  The Plaintiff in his evidence              before me said that when Asafo and his son Dekunor and his wife                 were brought to Bokor, the latter.</p> <p>          “Granted land to them and they built their houses, made farms of corn, cassava</p> <p>            and other crops.”  The trial Judge added that</p> <p>            “Since that time, Asafo and his descendants, the 1st Defendant, had been on the</p> <p>             Land.  The Plaintiff lead no evidence, and there is none before me, to the effect</p> <p>             that Asafo and his relations were asked to pay tolls or tribute or had indeed been</p> <p>             paying any such tolls.  They were simply granted permission to make use of the</p> <p>             land.  It is only where they deny or fail to recognize the title of their overlords the</p> <p>             Bokors, that they render themselves liable to be thrown out.”</p> <p>       This conclusion reached by the trial judge has not been attacked or questioned.  Arising out of this finding the trial judge concluded further that:</p> <p>“Since there is overwhelming evidence that both Plaintiffs                                and 1st Defendants have been eating anywhere on the land and since                 the Plaintiff failed to establish that the palm trees were taken from their exclusive domain on the land, I will refuse the claim for damages and perpetual injunction.”</p> <p>I have no doubt in my mind that the conclusion reached by the trial judge is sound in law.                                                                   </p> <p>          The award of damages for trespass must be grounded on a finding of fact that the Defendant has indeed committed the tort of trespass.  The evidence on record does not in any manner disclose that the 2nd Defendant or his ancestors were trespassers.  They were and are on Bokor land with the leave and license of the ancestors of the Plaintiff. Indeed</p> <p>the question of trespass was raised before the trial judge for his consideration and by the record I do not perceive any element of trespass to warrant the award of damages for that tort.  But most importantly the trial judge having found as a fact that the felled palm trees were not taken from the exclusive domain of the Plaintiff’s land, my view is that an award of damages in the circumstances cannot be justified.</p> <p> As to the refusal of the trial judge to grant the relief of perpetual injunction against the 1st Defendant and his people the perculiar circumstances of this case must be revisited.</p> <p>          Will it be consciouable for an equitable relief of this nature to be granted to the Plaintiff after having lived together with the 1st Defendant and his people for 300 years or more.  It is noted forcefully that the ancestors of the 1st Defendant, as found by the trial judge, were permitted and allowed to live and eat on the land.  They were not required to pay any levies or tolls.  The purpose of a perpetual injunction is to prevent permanently the infringement of those rights adjudicated upon and to obviate the necessity of bringing fresh action for later infringements of those rights.  See Directors of <strong>Imperial Gas Light Coke Co. Vrs. Broadbent [1859] 7 HL Cas 600.  </strong>The rights of the Plaintiff determined by the Court is simple and straight forward; the Plaintiffs are the land owners but the Defendants are in possession.  These possessionary rights by the Defendants maintained over 300 years should not be disturbed by an injunction.  In my view it is rather too late by years to disturb such a possessionary right.</p> <p>            In a case that has been on the list for 25 years, costs of ¢1,200,000.00 against 1st Defendant and ¢950,000.00 against 2nd Defendant awarded by the Court in my view is streatching judicial generosity to it limit.  I am unable to review the costs mulcted against the Defendants.  The appeal by the 2nd Defendant/appellant fails as well as that of the Plaintiff/appellant.  In the circumstances the judgment of the lower Court is affirmed.</p> <p> </p> <p> </p> <p><strong>                                                                                                R.K. APALOO</strong></p> <p><strong>                                                                                            JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p> </p> <p>I agree.                                                                                      <strong>B.T. ARYEETEY</strong></p> <p><strong>                                                                                               JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p> </p> <p>I also agree.                                                                                 <strong>S.Y. ANIM</strong></p> <p><strong>                                                                                             </strong><strong>JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p><strong>Lawyers  -  Mr. W.A.N. Bossman for Plaintiff/appellant.</strong></p> <p>                    </p> <p><strong>                    Mr. Alfred Agbesi for 1st Defendant/Respondent.</strong></p> <p> </p> <p><strong>                     Mr. Charles Hayibor for 2nd Defendant/Respondent.</strong></p> <p> </p> <p><strong>~eb~</strong></p> <p>                                   </p> <p> </p> <p>                                                                                                  </p> <p> </p> <p> </p> <p> </p> <p>           </p> <p>      </p> <p>                     </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-fb5e62e3162ce23041a3969a147eb86ace9efc395609dd0b9657ba2916fed3ef"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE COURT OF APPEAL – ACCRA,</strong></p> <p> </p> <p> </p> <p><strong>CORAM  -  ARYEETEY, JA [PRESIDING]</strong></p> <p><strong>                    ANIM, JA</strong></p> <p><strong>                    APALOO, JA</strong></p> <p> </p> <p>H1/144/05</p> <p><strong>10TH MARCH, 2006</strong></p> <p> </p> <p>AWUKU KONGLO  BOKOR            }    …  PLAINTIFF/APPELLANT</p> <p><strong>THOMAS KWAKU AMESIMEKU  }</strong></p> <p><strong>                 </strong></p> <p><strong>                 V E R S U S</strong></p> <p><strong>MANKRALO JAMES ASAFO  (Dec.)   …   1ST DEFENDANT/RESPONDENT</strong></p> <p><strong>(Sub. by AMEGEDZRO ASAFO (Dec.)  …   2nd DEFENDANT/APPELLANT</strong></p> <p><strong>(Sub. by MANKRALO BRENTUO ASAFO IV </strong></p> <p><strong>              ----------------------------------------------------------------------</strong></p> <p><strong>                                           J  U  D  G  M  E  N  T</strong></p> <p><strong>              ----------------------------------------------------------------------</strong></p> <p> </p> <p><strong>APALOO, JA  -  </strong>This appeal emanates from the judgment of the High Court Ho, dated 15th November 1996.  The Court was presided by his Lordship G.K. Acquah then a Supreme Court Judge sitting as additional High Court Judge.</p> <p>          The trial judge entered judgment for the Plaintiff against the 1st Defendant for a declaration that the Plaintiff is the owner of the Bokor land.  While dismissing 1st Defendant’s counter-claim the trial Judge refused Plaintiff’s reliefs for damages and perpetual injunction against the 1st Defendant.</p> <p>           The Plaintiff had sought by his writ the following reliefs.</p> <p>           (a)  A declaration that the Defendant was a mere tenant or alternatively a</p> <p>                 licensee of the Plaintiff in respect of the land in dispute.</p> <p>           (b)  Damages for trespass.</p> <p>           (c)  Perpetual injunction restraining the Defendant’s Afloto family, their servants,</p> <p>                 agents etc. from further felling the Bokor family’s oil palms or making any</p> <p>                 fresh cultivation of the said parcel of land without the consent in writing of</p> <p>                 the Plaintiff.</p> <p>          By his defence the 1st Defendant stated among others that the land the subject matter of the claim devolved on the Mankralo or chief but subject to user by both Plaintiff and Defendant’s families respectively.  1st Defendant added that the palm trees felled by him were his bona fide property.</p> <p>The 2nd Defendant who joined the suit as Co-defendant by a statement of defence averred particularly by his paragraphs 3, 4 and 5 as follows:-</p> <p>        (3)  The Co-defendant says that the land in dispute, which is known as Dzawor</p> <p>               land was founded by his great ancestor by the name Tsrienye.</p> <p>         (4)  The Co-defendant says that the Dzawoe land is bounded as follows:</p> <p>   On one side by the Gevier tribal land.  On one side by the Plaintiff, on one side             by the Defendant and on one side by the property of the Co-defendant.</p> <p>        (5)  The Co-defendant says that both he and his predecessors have been in</p> <p>               undisputed possession of the said Dzawoe land and have exercised and</p> <p>               continue to exercise overt acts of ownership over same without let or hindrance.</p> <p>          Two appeals were filed for determination.  The first by 2nd Defendant/Appellant and the second by the Plaintiff/Appellant.  The first appeal attacked the judgment affecting the 2nd Defendant and his claims to the Dzawoe land.  His grounds were that the judgment was against the weight of evidence and that the trial judge failed to correctly define the boundaries established between the Plaintiff’s Bokor land and the 2nd Defendant’s Dzawoe land as clearly set out in the case.</p> <p>          The Plaintiff/Appellant complained that</p> <p>          (a) “So much of the judgment as found that the 1st Defendant’s predecessors has</p> <p>                 (sic) consistently accepted that the land was for Bokor.”  And</p> <p>          (b)  the refusal of the learned trial Judge to award the Plaintiff damages on the</p> <p>ground that the Plaintiff failed to establish that the felling of the palm trees occurred on the Plaintiff’s exclusive domain on the land.</p> <p>(c)  the failure of the trial judge to exercise his discretionary power under Rule 32</p> <p>                of L1. 128 for the purposes of a complete adjudication of all material points of</p> <p>                difference between the Plaintiff and Defendant.</p> <p>         The grounds of appeal of the Plaintiff/Appellant repeated particulars contained in his complaints against the judgment with details thereof.</p> <p>         The case for the Plaintiff was that 500 acre land in dispute was given to his ancestor Bokor by a Gevier clan man called Gbettor as payment in kind in return for a loan.  Defendant’s case was that Gbettor gave the land to Bokor and Afloto together as brothers.  Bokor was the Plaintiff’s ancestor and Afloto was the ancestor of the 1st Defendant.  The 2nd Defendant claimed the land in dispute as his family land and referred to it as Dzawoe lands.  He pleaded a number of judgments as having demarcated the boundary between his land and that of the Plaintiff.</p> <p>        In his submissions to this Court the 2nd Defendant agreed entirely with the trial Judge when he made the following findings of fact.  That the 2nd Defendant disputes the western boundary of the Plaintiff’s land and that the area in dispute covers 41.7 acres.  That the 2nd Defendant and the Plaintiff accepted that their western boundary was settled in 1916 in the judgment titled Adjei Letsa Vrs. Dagadu Djame &amp; Anor Exhibit DC1.  That the boundary stated in Exhibit CD1 was later confirmed in 1940 by a decision in Adjei Letsa Vrs. Peter Konglo Exhibit F.  That the land to the west of Dzogadze road belonged to Adjei Letsa the 2nd Defendant’s predecessor while the land to the eastern part of Dzogadze road was the property of Peter Konglo the Plaintiff. </p> <p>         These findings were wholly acceptable to the 2nd Defendant but he complains nevertheless that the Plaintiff and 2nd Defendant are faced with the question of what is the correct boundary between their lands.</p> <p>         In my view the answer to this question has been clearly stated in the judgment.  This is what the trial Judge said concerning the boundary.</p> <p>“Looking at their respective versions of the boundary, it is clear                                                that the difference between the Plaintiff and the 2nd Defendant                                          starts from Atitekoe going northwards.  For whereas from this                            Atitekoe the Plaintiff’s boundary moves a little westwards up to                           Oduwti and goes by the old Dzogadze road, up to the place of                          Evuti, the 2nd Defendant’s boundary goes straight ahead from                  Atitekoe through a rock and continues northwards by the Azanukope</p> <p>                 road up to an Adidoti.”</p> <p>        To confirm the position in respect of this conclusion reached by the trial Judge, he went further to state that:</p> <p>“Now the 1916 judgment that is Exhibit CD1 is admitted by                               both Plaintiff and           the 2nd Defendant as having laid down the                  correct boundary between their lands.  And it is further admitted                  by both of them that the boundary set down in this 1916               judgment  had been accepted and confirmed in two later</p> <p>                               suits that is Exhibits F and C.”</p> <p>            It is my considered opinion that the trial Judge adequately considered the issue relating to the boundary between the Plaintiff and the 2nd Defendant and his conclusions cannot be faulted.                                                                                                                         </p> <p>          In respect to 2nd Defendant’s ground two of his appeal, I have come to the conclusion that having regard to the evidence on record and particularly the Court plan Exhibit CE1 the trial Judge came to the right conclusion contrary to 2nd Defendants assertion that the trial Judge failed correctly to define the boundaries established between the Plaintiff’s Bokor land and the 2nd Defendant’s Dzawe land.  His finding of fact that the disputed area covering 41.7 acres shaded yellow in Exhibit CE1 is the western boundary of Bokor land as settled in the 1916 judgment was based on evidence.  Concerning this ground this was the conclusion of the trial Judge.</p> <p>“And since the Plaintiff’s version of the boundary goes by this           Dzogadze road, I accept his version as being in consonance with                      the boundary settled in the 1916 judgment as later confirmed in                Exhibits ‘C’ and ‘F.’  I am therefore satisfied that the western               boundary of Bokor land is as demarcated by the Plaintiff and            indicated on Exhibit CE1.”</p> <p>            2nd Defendant/Appellant’s misgivings concerning the costs awarded against him will be considered later in this judgment.  I shall however proceed to deal with ground one of the Plaintiff/Appellant’s appeal.</p> <p>            The historical evidence was clear that Plaintiff ancestor Bokor received 1st Defendant’s ancestor Asafo as his guest but did not settle Asafo within any demarcated boundaries on the land in dispute.  Asafo and his people lived side by side with Bokor and his people on the land in dispute without any boundaries drawn between the two families for over 300 years.</p> <p>            The trial Judge made the following finding of fact which to my mind is pertinent to ground one of the Plaintiff/Appellant’s case.</p> <p>….. “Although the 1st Defendant and his Afloto family are not                members of Bokor family and consequently are not owners of                        Bokor land, there is overwhelming evidence that they were permitted              by Bokor to live and eat on the land.  The Plaintiff in his evidence              before me said that when Asafo and his son Dekunor and his wife                 were brought to Bokor, the latter.</p> <p>          “Granted land to them and they built their houses, made farms of corn, cassava</p> <p>            and other crops.”  The trial Judge added that</p> <p>            “Since that time, Asafo and his descendants, the 1st Defendant, had been on the</p> <p>             Land.  The Plaintiff lead no evidence, and there is none before me, to the effect</p> <p>             that Asafo and his relations were asked to pay tolls or tribute or had indeed been</p> <p>             paying any such tolls.  They were simply granted permission to make use of the</p> <p>             land.  It is only where they deny or fail to recognize the title of their overlords the</p> <p>             Bokors, that they render themselves liable to be thrown out.”</p> <p>       This conclusion reached by the trial judge has not been attacked or questioned.  Arising out of this finding the trial judge concluded further that:</p> <p>“Since there is overwhelming evidence that both Plaintiffs                                and 1st Defendants have been eating anywhere on the land and since                 the Plaintiff failed to establish that the palm trees were taken from their exclusive domain on the land, I will refuse the claim for damages and perpetual injunction.”</p> <p>I have no doubt in my mind that the conclusion reached by the trial judge is sound in law.                                                                   </p> <p>          The award of damages for trespass must be grounded on a finding of fact that the Defendant has indeed committed the tort of trespass.  The evidence on record does not in any manner disclose that the 2nd Defendant or his ancestors were trespassers.  They were and are on Bokor land with the leave and license of the ancestors of the Plaintiff. Indeed</p> <p>the question of trespass was raised before the trial judge for his consideration and by the record I do not perceive any element of trespass to warrant the award of damages for that tort.  But most importantly the trial judge having found as a fact that the felled palm trees were not taken from the exclusive domain of the Plaintiff’s land, my view is that an award of damages in the circumstances cannot be justified.</p> <p> As to the refusal of the trial judge to grant the relief of perpetual injunction against the 1st Defendant and his people the perculiar circumstances of this case must be revisited.</p> <p>          Will it be consciouable for an equitable relief of this nature to be granted to the Plaintiff after having lived together with the 1st Defendant and his people for 300 years or more.  It is noted forcefully that the ancestors of the 1st Defendant, as found by the trial judge, were permitted and allowed to live and eat on the land.  They were not required to pay any levies or tolls.  The purpose of a perpetual injunction is to prevent permanently the infringement of those rights adjudicated upon and to obviate the necessity of bringing fresh action for later infringements of those rights.  See Directors of <strong>Imperial Gas Light Coke Co. Vrs. Broadbent [1859] 7 HL Cas 600.  </strong>The rights of the Plaintiff determined by the Court is simple and straight forward; the Plaintiffs are the land owners but the Defendants are in possession.  These possessionary rights by the Defendants maintained over 300 years should not be disturbed by an injunction.  In my view it is rather too late by years to disturb such a possessionary right.</p> <p>            In a case that has been on the list for 25 years, costs of ¢1,200,000.00 against 1st Defendant and ¢950,000.00 against 2nd Defendant awarded by the Court in my view is streatching judicial generosity to it limit.  I am unable to review the costs mulcted against the Defendants.  The appeal by the 2nd Defendant/appellant fails as well as that of the Plaintiff/appellant.  In the circumstances the judgment of the lower Court is affirmed.</p> <p> </p> <p> </p> <p><strong>                                                                                                R.K. APALOO</strong></p> <p><strong>                                                                                            JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p> </p> <p>I agree.                                                                                      <strong>B.T. ARYEETEY</strong></p> <p><strong>                                                                                               JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p> </p> <p>I also agree.                                                                                 <strong>S.Y. ANIM</strong></p> <p><strong>                                                                                             </strong><strong>JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p><strong>Lawyers  -  Mr. W.A.N. Bossman for Plaintiff/appellant.</strong></p> <p>                    </p> <p><strong>                    Mr. Alfred Agbesi for 1st Defendant/Respondent.</strong></p> <p> </p> <p><strong>                     Mr. Charles Hayibor for 2nd Defendant/Respondent.</strong></p> <p> </p> <p><strong>~eb~</strong></p> <p>                                   </p> <p> </p> <p>                                                                                                  </p> <p> </p> <p> </p> <p> </p> <p>           </p> <p>      </p> <p>                     </p></span></div></div> </div> </div> Wed, 23 Jun 2021 10:48:15 +0000 Anonymous 1647 at http://ghalii.org