INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(607, 'GHANA REVENUE AUTHORITY   VRS   SIC INSURANCE COMPANY LTD.', '', '../links/cases/GRA v SIC.pdf', 'Yes', '', '2016', 'High Court', '\r\nJUDGMENT  \r\nThe Plaintiff is a State Agency established by an Act of Parliament with the responsibility to collect tax revenue for and on behalf of the Government of Ghana.  The Defendant, on the other hand, is an insurance company registered under the laws of Ghana. \r\nThe material facts which gave rise to the matter before me are stated in Plaintiff’s statement of claim as corroborated in material aspects by the testimony of Plaintiff’s witness, Mr. Samuel Bentil and supported by the documentary evidence adduced by the Plaintiff in support of its case. It is the testimony of Plaintiff’s witness that he is a Tax Administrator who has been working with the Plaintiff (from the then CEPS) for over twenty-seven (27) years.  He testified that he is currently the Head of the Debt Management Section of the Debt Management, Compliance and Enforcement Unit of the Office of the Commissioner General, Head Office and the facts to which he testified came to his knowledge in connection with his duties as the Head of Debt Management of the Ghana Revenue Authority and its dealings with Novel Commodities Ghana Limited, a Customs Licensed Bonded Warehouse Operator.  \r\nAccording to Plaintiff, as part of the requirement for Novel Commodities Ghana Limited to obtain a licence to engage in the business of bonded warehousing of goods under the Customs, Excise and Preventive Service (Management) Act, 1993, P.N.D.C.L. 330, as amended, it was required by \r\n2  \r\nthe Plaintiff, as condition precedent, to take out a bond guaranteeing payment in full of all revenue that would be lost to the State arising from the non-payment of customs duties, excise duties and all other lawful taxes exigible on the goods warehoused under bond in the licensed premises.  To this end, Novel Commodities Ghana Limited executed a bond for the security of the goods warehoused in its premises for the period of 10th April, 2013 to 9th April, 2014 in the sum of Five Million Ghana Cedis (GH¢5,000, 000.00) with the Defendant. The said warehouse bond was referenced as Bond No. P/102/41/4106/2012/3/Warehouse No. T/287.  A copy of the bond agreement executed between the Defendant and Novel Commodities Ghana Limited was tendered in evidence by the Plaintiff and marked as Exhibit “A”.   \r\nIt is the Plaintiff’s case that per the terms of the bond agreement, Defendant (hereinafter, referred to as “Guarantor/Defendant”), irrevocably and unconditionally guaranteed for and on behalf of Novel Commodities Ghana Limited (hereinafter, referred to as the “Principal Debtor”) to pay in full all revenue lost to the State arising from the non-payment of customs duties and all other lawful taxes exigible on goods warehoused under bond in the licensed premises. Furthermore, under the terms of the bond agreement, Plaintiff was required to notify Defendant of any loss, omission, default or breach or law which may lead to a claim under the bond within one year after the expiration of the bond.   \r\nPlaintiff states that an audit it conducted into the activities of the Principal Debtor in May, 2013 revealed a short fall of Ten Million Seven Hundred and Eighty Three, Four Hundred and Fifty Eight, Fifty-five Pesewas (GH¢10,783,458.55).  According to the evidence of the record, though the stock check exercise was conducted from May 13, 2013 and May 14, 2013, the audit reconciliation actually started from March 28, 2012 to consider all transactions conducted in the warehouse.  Consequent upon this audit exercise, by Exhibit “B”, Plaintiff, therefore, demanded from the Principal Debtor the payment of the shortfall together with a pecuniary penalty to mark the offence and serve as a deterrent, in the total amount of Twenty One Million, Five Hundred and Sixty-six Ghana Cedis, Ten Pesewas (GH¢21,566,917.10). In accordance with the terms of the bond agreement, Plaintiff, by a letter dated 25th February, 2014, made a formal demand on Defendant for payment under the bond for the full amount of the security of GH¢5,000,000.00.    \r\nIt is the case of the Plaintiff that several demands and visits to Defendant to make payment under the bond security has yielded no result.  According to the testimony of Plaintiff’s witness, on 21st October, 2013, the Debt Management, Compliance and Enforcement Unit issued a Final Demand Notice, Exhibit “C”, which was served on the Principal Debtor, but it failed to honour its debt.  By reason of this failure to pay the debt, the Commissioner General. According to the testimony of the witness, on 13th January, 2013 issued a Warrant of Distress against the Principal Debtor authorizing the levying of distress on the property of the company.  The Warrant of Distress is marked in evidence as Exhibit “D”.  \r\n3  \r\nOn the execution of the Warrant of Distress, as stated by the witness, the distress team could not lay hold of any of the property of the Principal Debtor.  It is for this reason that the Plaintiff initiated the necessary steps to realise the bond security.  It is the testimony of Plaintiff’s witness that by a letter dated 25th February, 2014, marked in evidence as Exhibit “E”, Plaintiff wrote to the Defendant demanding payment of the bond sum as required under the bond agreement.  However, the Defendant failed to honour the agreement and also failed to respond to Exhibit “E”.  \r\nThe Plaintiff, therefore contends that from the foregoing, the Defendant has shown by its conduct that unless compelled by the Court, it has no intention whatsoever to pay its just debts under the bond agreement to the detriment of the Plaintiff.  \r\nIn the Plaintiff’s statement of claim, the Plaintiff claims against the Defendant the following reliefs: \r\n    “i. Payment on the bond of GH¢5,000,000.00  ii. Interest on (i) above at the commercial bank rate from the date of notice until date of final payment. iii. Costs.”  \r\nThe evidence of the record establishes that on 9th October, 2014, the Defendant entered appearance through P.E.K Mawuvenu, Esq., Solicitor with the Defendant’s Legal Affairs Department, who on 31st October, 2014, filed a statement of defence to the suit on behalf of Defendant, albeit, out of time.   \r\nThe following issues were set down for trial after pre-trial settlement failed: 1. Whether or not there had occasioned any loss of revenue to Plaintiff as stipulated under the bond executed by the Defendant and Novel Commodities Ghana Limited? 2.  Whether or not Plaintiff notified Defendant of any loss, omission, default or breach as stipulated under the bond executed by the parties? 3. Whether or not Plaintiff made written demand on the Defendant for the revenue loss? 4. Whether or not the Plaintiff is entitled to the payment of the bond security of GH¢5 million under the bond executed by the parties?  \r\nBefore delivering my judgment, it may be necessary to give a brief procedural history of this case. After attempts at court assisted settlement of the case failed at the pre-trial settlement level, the case was referred to this court to conduct the trial.    \r\nIt is noted, that neither the Defendant nor its solicitor appeared in court to contest the trial notwithstanding the fact that the Defendant was served with several hearing notices of the scheduled dates for trial as well as Court’s Notes through its Solicitor, as evidenced by the \r\n4  \r\nnumerous affidavits of service on the record.  In fact, on the one occasion that the Defendant was represented in court, that is, on 15th February, 2016, by one Mr. Ebenezer Edzii, a Legal Assistant, he assured the court that the Defendant did receive the hearing notice for the scheduled hearing.  To assist the Defendant, the court ensured that Counsel for Plaintiff served on the representative, personally and before the court, extra copies of the Plaintiff’s Witness Statement, list of documents intended to be relied on by the Plaintiff during the trial and also the Plaintiff’s pre-trial check list.    \r\nThe court went further to painstakingly explain to the Defendant’s representative of the consequences of the Defendant’s failure to comply with the case management orders entered by the court on 27th November, 2016, including the failure to file its witness statement and pre-trial check list with the court and to serve same on the Plaintiff and further gave the Defendant an extension of time within which to comply.  Once again, the Defendant failed to comply with those orders.  For that reason, the statement of defence filed by the Defendant was struck out by the court on 29th February, 2016 in accordance with Order 32 rule 7A of the High Court (Civil Procedure) Rules, 2004, (CI 47) (as amended) by CI 87.  \r\nIn the circumstance, the only triable issue that is material to the disposition of this suit, in my view, is as to whether or not the Plaintiff is entitled to its reliefs as endorsed on the writ of summons.   The general rule is that where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof, whether it is the plaintiff who asserts a fact or the defendant who makes a counterclaim.  In the case of BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 the court held that the onus of proof in civil cases depends upon the pleadings and the party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. In so holding the court applied the English case of HUYTON-WITHROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.  In the local case of FAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 the court also held that “… [t]he onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led”.  The Supreme Court in the case of ABABIO v. AKWASI III [1994-95] Ghana Bar Report, Part II, 74 also had this to say, “A party whose pleadings raised an issue essential to the success of the case assumed the burden of proving such issue. The burden only shifted to the defendant when the plaintiff had adduced evidence to establish the claim”.   \r\nThe Evidence Act, 1975 (NRCD 323) (hereinafter, “NRCD 323”), encapsulates the foregoing principle in section 14 where it uses the term the “burden of persuasion” and provides that the asserting party must prove each fact of his claim, the existence or non-existence of which is essential to the claim or defence he is asserting. Section 12(1) of NRCD 323 provides a further element to the above stated general rule to the effect that in a civil case, such as the one in question, the burden of persuasion requires proof by a “preponderance of probabilities” defined in section \r\n5  \r\n12(2) as “that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the evidence of a fact is more probable than its non-existence”.     \r\nFrom the foregoing, therefore, it is clear that for the Plaintiff to succeed on its claims that it ought to be granted the right to recover from the Defendant the full amount secured by the bond, it assumes the onus of proving its assertions against the Defendant. Plaintiff is therefore duty bound to establish the requisite degree of belief in my mind by adducing enough evidence to show that the likelihood of the circumstances being alleged in its pleadings is more probable than not.  It is trite learning, after all, that pleadings cannot be substituted for evidence.   Exhibit “A”, which is the bond agreement states in relevant parts as follows:  \r\n“THIS BOND is made between SIC INSURANCE COMPANY LIMITED … (hereinafter called the ‘GUARANTOR’ which expression shall include her successors and assigns) and NOVEL COMMODITIES GHANA LIMITED … (hereinafter called the ‘OPERATOR’ which expression shall include her successors and assigns) in favour of the Commissioner, GHANA REVENUE AUTHORITY (CUSTOMS DIVISION) …  AND WHEREAS the Operator is required by law to secure the revenue (Customs duties and taxes exigible on all goods warehoused under bond in the licensed premises aforesaid ---- AND WHEREAS the Commissioner has directed that the Operator shall give security in the sum of FIVE MILLION GHANA CEDIS (GH¢5,000,000.00) and has hereby approved of GUARANTOR as surety for the OPERATOR and Principal debtor of the Commissioner under section 318 of PNDC Law 330 --- “NOW THIS BOND WITNESSETH AS FOLLOWS:  1. That the GUARANTOR hereby irrevocably and unconditionally guarantees for and on behalf of the OPERATOR to pay in full all revenue lost to the State arising from the nonpayment of Customs duties, excise duties and all other lawful taxes exigible on goods warehoused under bond the said licensed premises. 2. The liability of the GUARANTOR specified in clause 1 of this bond shall in the event of revenue lost be limited to the face value of the bond and that the Guarantor’s liability shall under no circumstances exceed One Hundred percent (100%) of the amount guaranteed. 3. That the Guarantor hereby guarantees further that where any loss of revenue is established whilst the goods still remain under bond in the licensed premises aforesaid all revenue lost shall be paid on receipt of the first written demand without cavil or argument. \r\n6  \r\n4. The Commissioner shall notify the Guarantor of any loss, omission, default or breach of law which may lead to a claim under this bond within one year after the expiry of this Bond……”  \r\nA bond is usually contained in a document given by a third party in support of the obligations of another party, containing a promise to pay money immediately or on a future date.  It thereby provides an assurance or surety to the beneficiary that the contracting party will perform its obligations, and security if it does not.  A restatement of the holding of Lord Denning MR in the English case of EDWARD OWEN ENGINEERING LTD. v. BARCLAYS BANK INTERNATIONAL LTD; CA [1978] 1 All ER 976, would suggest that a contract by a third party effectively guaranteeing obligations to pay on demand within the terms of that contract, irrespective of the rights and wrongs of any dispute between the beneficiary and the principal under the terms of their separate contract, subject only to fraud, may be termed a “performance guarantee”.  \r\nIn order to give effectiveness to the bond agreement, its terms must be construed.  From the excerpts of the clauses of the bond agreement reproduced above, the following terms can be identified: \r\n(i) The Defendant irrevocably and unconditionally guaranteed for and on behalf of Novel Commodities Ghana Limited to pay in full all revenue lost to the State arising from the non-payment of customs duties and all other lawful taxes exigible on goods warehoused under bond in the licensed premises.  \r\n(ii) Plaintiff was required to notify Defendant of any loss, omission, default or breach of law which may lead to a claim under the bond within one year after the expiration of the bond.   \r\n(iii) That upon the proven breach of the principal debtor’s obligations the guarantor guarantees the payment of all revenue lost on receipt of the first written demand without cavil or argument.  \r\n(iv) The liability of the GUARANTOR, in the event of a breach of the principal debtor’s obligations, was limited to the face value of the bond, being, Five Million Ghana Cedis (GH¢5,000,000.00). \r\nThese relevant terms of the bond agreement indicate that the Defendant, referred to as “Guarantor” in the bond agreement, agreed not only to guarantee the performance of the Principal Debtor’s obligations under its contract with the Plaintiff but also agreed further that the performance of the Guarantor’s liability under the agreement would be expressly conditional upon the occurrence of the proven breach by the Principal Debtor of its obligations.  For the Plaintiff to be able to collect \r\n7  \r\non the bond in accordance with its terms, therefore, the express condition of a breach by the Principal Debtor of its obligations thereunder must have occurred.  In the Law of Guarantees, Fourth Edition by Geraldine Andrews and Richard Millet, Sweet and Maxwell 2005 at page 122, this is what the learned authors had to say: \r\n“By far, the most common type of condition precedent to the liability of the surety is an express provision which requires that the creditor should take some specified step, such as giving him notice of the default, making a demand on the surety or on the principal, or suing the principal, before he starts proceedings against the surety. In the absence of such an express provision the creditor may proceed against the surety without prior notice to him or demand against him and without taking any proceedings against the principal.... Express conditions precedent are likely to be strictly construed in accordance with the general approach to constructions of contracts of suretyship.”   \r\nPlaintiff led testimony and evidence to convince the court that the audit it conducted to consider all transactions conducted in the warehouse of the Principal Debtor from March 28, 2012 to May, 2013 revealed a short fall of Ten Million Seven Hundred and Eighty Three, Four Hundred and Fifty Eight, Fifty-five Pesewas (GH¢10,783,458.55), in breach of the Principal Debtor’s obligations under the bond agreement.  See Exhibits “A” and “B”.   \r\nThe question that arises, then, is whether a demand could be made on the Defendant Guarantor to indemnify the Plaintiff against this loss for the full value of the bond in the face of this proven breach of the Principal Debtor’s obligations?  \r\nThe excerpt of Exhibit “A” reproduced above contains a further express provision that for the Defendant Guarantor to discharge its liability to the Plaintiff, Plaintiff was required to make a written demand on the Defendant, notifying Defendant of any loss, omission, default or breach of law which may lead to a claim under the bond within one year after the expiration of the bond.  In other words, the Plaintiff could sue the Defendant to perform its obligations under the bond only after a written demand had been made on the Defendant, and that demand ought to have been done within a year of the Principal Debtor’s breach occurring. Failing to give the requisite notice would therefore lead to a discharge of the Defendant.  See The Law of Guarantees, supra, where the authors state that: “A failure on the part of the creditor to comply with a condition precedent in the guarantee (for example to give notice to a breach or default by the principal) will serve to discharge the surety.” \r\nI am satisfied from the evidence and the testimony before me that the Plaintiff did make a demand on Defendant upon the default of the Principal Debtor in the manner agreed to in the Bond Agreement. Indeed, by the letter dated 25th February, 2014, marked in evidence as Exhibit “E”, the Plaintiff made a formal demand on Defendant for payment under the bond for the full amount of the security of GH¢5,000,000.00.   This formal demand was also made within a year upon the \r\n8  \r\nsaid breach coming to the attention of the Plaintiff as the audit of the Principal Debtor’s activities was concluded in May 2013 and the formal demand notifying the Defendant of the breach was made in February 2014.  Further, I am satisfied that the Plaintiff has adduced sufficient evidence to support a finding that the Defendant failed, refused and neglected to fulfill its obligations in breach of the terms and conditions governing the bond agreement.    \r\nUpon a review of the totality of the evidence before the court, this court finds that Mr. Bentil, the Plaintiff’s witness gave credible testimony on oath before this court and his testimony sufficiently corroborated the Plaintiff’s claims and documents tendered in evidence. In stating thus, I am guided by the holding of the court in the leading case of MAJOLAGBE v. LARBI [1959] GLR 190 which supports the principle that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, that averment can be sufficiently proved by testimony on oath supported by some corroborative evidence.  See further the cases of KLUTSE v. NELSON [1965] GLR, 537, SC and ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA.  Consequently the Plaintiff succeeds on its claims that it ought to be granted the right to recover from the Defendant the full amount secured by the bond,  \r\nThe court finds, however, that the Defendant failed to advance any defence in its behalf to controvert the testimony of the Plaintiff’s witness and/or the documentary evidence of the Plaintiff before this court. Indeed, the statement of defence filed by the Defendant was struck out, the Defendant did not file any evidence in support of its case and finally, the Defendant failed to attend court to cross examine the Plaintiff’s witness.    \r\nThe position of the law on not cross-examining a witness after he has given his evidence in chief, is well settled. In the case of TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882, Ansah JSC referred to the case of TUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969, unreported] digested in 1969 CC, 76, where Ollenu JA stated thus:  \r\n“In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.”   The breach of the Defendant’s obligations under the terms and conditions of the bond agreement thus gave the Plaintiff the right to sue for the recovery of the 100% of the face value of the bond security as claimed.  I therefore find that the Plaintiff has met its burden of proving that it has a right to recover from the Defendant GH¢5,000,000.00 with interest on the said sum at the commercial bank rate from the date of notice until date of final payment as per the reliefs (i) and (ii) endorsed on the writ of summons and the accompanying statement of claim.    \r\n9  \r\nFrom the foregoing, I am satisfied that the Plaintiffs’ action succeeds.  Judgment is entered for Plaintiff in favour of reliefs (i) and (ii) as endorsed on its writ of summons and the statement of claim.  I award costs in the sum of GH¢50,000.00 in favour of the Plaintiff against the Defendant.       \r\n                                                                                                        (Sgd)          \r\n    ……..……………………………………………….. JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION)   \r\nCOUNSEL:      FREEMAN SARBAH, ESQ., OF THE LEGAL DEPARTMENT OF GHANA REVENUE AUTHORITY, HEAD OFFICE, ACCRA, COUNSEL FOR PLAINTIFF PRINCE EMMANUEL MAWUVENU, ESQ., OF THE LEGAL AFFAIRS DEPARTMENT OF SIC INSURANCE COMPANY LIMITED, ACCRA, COUNSEL FOR DEFENDANT  \r\nCASES REFERRED TO:  \r\nBANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 \r\nHUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.   \r\nFAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 \r\nABABIO v. AKWASI III [1994-95] Ghana Bar Report, Part II, 74 \r\nEDWARD OWEN ENGINEERING LTD. v. BARCLAYS BANK INTERNATIONAL LTD; CA [1978] 1 All ER 976 \r\nMAJOLAGBE v. LARBI [1959] GLR 190  \r\nKLUTSE v. NELSON [1965] GLR, 537, SC  \r\nZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. \r\nTAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882 \r\nTUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969, unreported] digested in 1969 CC, 76 ', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'INS/02/2014', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(608, 'GREAT CAPE COMPANY LTD  VRS  1. ATTORNEY-GENERAL & MINISTER FOR JUSTICE    2. MINISTRY OF FINANCE', '', '../links/cases/GREAT CAPE -(JUDGMENT).pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT \r\nPlaintiff, a company registered under the laws of Switzerland and acting through \r\nits lawful attorney, Dr. Nat Tanoh on the 15/05/15 issued a writ out of the Registry \r\nof the court seeking the following reliefs:  \r\na. A declaration that following from the admission of liability by the Attorney \r\nGeneral for and behalf of the Government of Ghana on 18th April, 2001 \r\n\r\nand again on the 8th July, 2014, the Plaintiff is entitled to an amount of \r\nUS$1,117,818.45 (One Million, One Hundred and Seventeen Thousand, \r\nEight Hundred and Eighteen US Dollars and Forty Five Cents) as damages \r\nfor breach of contract and also pursuant to S. 18(1) of the Limitations Act, \r\n1972 (NRCD 54).  \r\nb. A further declaration that the defendants are estopped from in anyway \r\ndenying the liability of the Government of Ghana in the terms as set out in \r\nrelief (a) above.  \r\nc. Interest on (a) until date of final payment.  \r\nd. Costs and such further order(s) as the honourable court may deem fit.  \r\nPLAINTIFF’S CASE \r\nPlaintiff provides the basis of his claim to the reliefs he seeks in a twenty three \r\nparagraph statement of claim that accompanied the issuance of the writ. \r\nPlaintiff avers that it entered into a contract dated 9th May 1978 with the Ghana \r\nNational Procurement Agency (GNPA) for the supply of 200,000 tonnes of \r\ncement clinker to GNPA. And that under the SMC II Government, GNPA wrongly \r\nabrogated the contract on the 23rd November 1978 after rejecting a third shipment \r\nfrom the Plaintiff.  \r\n3 | P a g e  \r\nPlaintiff further states that in 1981 a Committee of Enquiry appointed by the \r\nGovernment of Ghana established the liability of GNPA and that after negotiation \r\nbetween the parties the Plaintiff agreed to accept $400,000.00 in full and final \r\nsettlement of the GNPA’s indebtedness to the Plaintiff on condition that payment \r\nwill be made promptly. \r\nIt is Plaintiff’s case that the 2nd Defendant failed to make the payments as agreed, \r\nand that in 1987 the Solicitor General acting for the 1st Defendant agreed that an \r\ninterest of 8.5% per annum compound interest would accrue on the amount of \r\n$400,000.00.  \r\nPlaintiff then proceeds to states that in 1998, the then Minister of Finance acting \r\non the advice of the then Attorney General paid the amount of $927,000.00 to the \r\nPlaintiff.  \r\nIn February 2001 the Plaintiff petitioned the 1st Defendant for payment to it of a \r\nbalance of the amount due on the ground that there had been a miscalculation of \r\nthe amounts of interests that had accrued on the debt at the time the 2nd Defendant \r\nmade its part payment in 1998.  \r\nIt is the Plaintiff’s case that even though the 1st Defendant in a letter dated the \r\n18th April 2001 agreed through its then Attorney General, Nana Addo Dankwa \r\nAkuffo Addo and directed the 2nd Defendant to pay an outstanding debt of \r\n$1,117,818.45, the 2nd defendant has failed to make such payment. \r\n4 | P a g e  \r\n Plaintiff says that despite several requests to the 1st and 2nd Defendants to make \r\ngood their indebtedness to the Plaintiff, the Defendants have failed to make the \r\npayment but are now denying the liability of the Government of Ghana to the \r\nPlaintiff.  \r\nIt is therefore the Plaintiff’s case that since the 1st and 2nd Defendants had never \r\ndenied the Government of Ghana’s liability and the Plaintiff has at all material \r\ntimes relied on the 1st and 2nd Defendants’ promise to pay the settlement the \r\nDefendants are estopped from now denying their liability to the Plaintiff.  \r\nDEFENDANT’S DEFENCE \r\nDefendants have denied the material averments that form the basis of the claim \r\nof the Plaintiff. Defendants deny having wrongly abrogated the contract. \r\nDefendants say that the Government abrogated the contract because the contract \r\nwas entered into without following the due procedure and without knowledge and \r\nconcurrence of the GNPA Board. According to the Defendants the interest rate of \r\n8.5% agreed to be paid on the $400,000.00 was at a simple interest rate and was \r\nto accrue for a period of six years, that is 1981 to 1987. \r\nDefendants in their statement of defence claim that the letter of the 1st Defendant \r\ndated the 23rd October 1998 stated that the amount of $927,000.00 paid to the \r\nPlaintiff was in full and final settlement of the debt. And that it was after three \r\nwhole years after the Plaintiff had been paid in full that it petitioned the then \r\nGovernment claiming a miscalculation of the amount of interest. That the then \r\n5 | P a g e  \r\nAttorney-General unaware of the full facts of the negotiated settlement directed \r\nthe 2nd Defendant to make further payments to the Plaintiff.   \r\nDefendants claim that whereas they have never denied their liability they have in \r\ngood faith and in reliance on the negotiated settlement between the Government \r\nof Ghana and the Plaintiff paid promptly in 1998 all the amounts agreed on to the \r\nPlaintiff. And that if they did not make any payment in 1987, it was due mainly \r\nto the fact that after the settlement, plaintiff decided to take the matter to an \r\ninternational arbitral forum which delayed the payment and defendants cannot be \r\nheld liable for a delay emanating from Plaintiff’s own conduct. Defendants \r\naccordingly contends, therefore, that  Plaintiff is not entitled to any of its reliefs.  \r\nISSUES FOR TRIAL \r\nAt the close of pleadings, the matter was referred for Pre-Trial Conference. The \r\nsettlement having broken down, the following issues were set down for trial:  \r\n1. Whether or not the Government of Ghana through the Attorney-General \r\n(i.e the 1st Defendant) admitted its liability towards the Plaintiff on the 18th \r\nApril, 2001 and also 8th July, 2014.   \r\n2. Whether or not the Plaintiff is entitled to the payment of $1,117,818.45 for \r\nthe breach of contract by the Government of Ghana and also pursuant to \r\n6 | P a g e  \r\nsection 18(1) of the Limitation Act 1972, (N.R.C.D 54), together with \r\ninterest at the prevailing bank rate until the date of final payment.  \r\n3. Whether or not the Defendants from their conduct are stopped from \r\ndenying the liability of the Government of Ghana towards the Plaintiff.    \r\nAdditional issues filed were subsequently filed by the Attorney General when the \r\ntrial was about to commence in this court and they were:  \r\n1. Whether  or not the Government of Ghana erred in abrogating the contract \r\nbetween the Plaintiff company and the Ghana National Procurement \r\nAgency (GNPA) \r\n2. Whether or not the Plaintiff could have sold the cement rejected by the \r\nGovernment on its arrival at the Tema Harbour to mitigate its losses. \r\n3. Whether or not the Government of Ghana agreed to pay $400,000.00 in \r\nfull and final settlement of the matter in 1981. \r\n4. Whether or not at a negotiated settlement of the matter in 1987 the Plaintiff \r\ncompany and the Government of Ghana agreed that an interest rate of 8.5% \r\non the amount of $400,000.00 would be paid in full and final settlement of \r\nthe claim.  \r\n5. Whether or not it was always understood by the Plaintiff that the interest \r\nrate of 8.5% would be simple interest and whether it was stated at the \r\n7 | P a g e  \r\nnegotiation that the interest rate to be applied would be compound interest.  \r\n6. Whether or not the letter dated 23rd October 1998 by the then Minister of \r\nFinance, stated in paragraph 7 that the amount of $927,000.00 paid to the \r\nPlaintiff was in full and final settlement of the claim. \r\n7. Whether or not the $927,000.00 paid to the Plaintiff company was a \r\nunilateral decision of the Defendants and based on an erroneous calculation \r\n8. Whether or not the Plaintiff acted prudently when it waited for three years \r\nafter it had been paid an amount in full and final settlement of its claim \r\nbefore petitioning the Attorney- General claiming a miscalculation of \r\ninterest. \r\n9. Whether or not the 1st Defendant was aware of the full facts of the \r\nnegotiated settlement which had occurred between his predecessor and the \r\nPlaintiff company, when he instructed the 2nd Defendant to make further \r\npayments to the Plaintiff company. \r\n10. Whether or not the letter date 3rd October 2011 in which the previous \r\nAttorney- General stated that he only had a vague recollection of the matter \r\namounted to fully admitting the import of a letter claimed by the Plaintiffs \r\nto have been written by him in their favour. \r\n11. Whether or not the Government of Ghana has made good its indebtedness \r\nto the Plaintiff company based on the full terms of the negotiated \r\nsettlement. \r\n  \r\n8 | P a g e  \r\nEVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW \r\nThe filing of eleven additional issues by the Attorney General after the pre-trial \r\nJudge, Asiedu J. together with counsel for the parties on both sides have agreed \r\non three issues for determination; was superfluous. Indeed issues 1and 2 of the \r\nadditional issues do not arise at all for determination from the nature of the \r\npleadings and evidence adduced before the court.  \r\nIt is not the province of this court now to resurrect a dead issue as to the propriety \r\nof the abrogation of the contract between GNPA and the plaintiff in 1978 and the \r\nnecessity for the plaintiff to have mitigated his losses by selling the cement as it \r\nis implicit in the first two additional issues. That bridge has long been crossed \r\nand it served no useful purpose for the learned Chief State Attorney, Helen A. \r\nZiwu to have introduced them as an issue for determination. The court will keep \r\nclear of those additional issues and focus on the germane issues to avoid \r\ndistractions and keep the arena of conflict between the parties free from waffle \r\nand gabble. \r\nBe that as it may, the rest of the nine additional issues or so can conveniently be \r\nsubsumed under any of the three main issues for determination and that is how \r\nthe court intends to approach the resolution of the matters in controversy.   \r\nBut first some few guiding rules on burden of proof assumed by the parties in this \r\nsuit as that would be very critical in resolving the issues between the parties. It is \r\n9 | P a g e  \r\na settled principle of evidence that a party making a claim bears both the burden \r\nof producing evidence  and burden of persuasion, the two being components of \r\nthe burden of proof. The burden of persuasion is defined in section 10 of the \r\nEvidence Act, NRCD 323 to mean: \r\n  \r\n“For the purposes of this Decree, the burden of persuasion means the \r\nobligation of a party to establish a requisite degree of belief concerning a \r\nfact in the mind of tribunal of fact or the court \r\n  \r\n(2) the burden of persuasion may require a party  \r\n(a) to raise a reasonable doubt concerning the existence of a fact or  \r\n(b) to establish the existence or non existence of a fact by a \r\npreponderance of the probabilities or proof beyond reasonable doubt”  \r\nThe burden of producing evidence on the other hand is defined in section 11 as \r\nfollows:  \r\n“(1)For the purpose  of this Decree, the burden of producing evidence \r\nmeans the obligation of a party to introduce sufficient evidence to avoid a \r\nruling against him on the issue. \r\n10 | P a g e   \r\n(4) In other circumstances, the burden of producing evidence requires a \r\nparty to produce sufficient evidence so that on all the evidence a \r\nreasonable mind could conclude that the existence of a fact was more \r\nprobable than its non existence”.  \r\nPer section 14 of the Decree, a party has the burden of persuasion as to each fact \r\nthe existence or non-existence of which is essential to the claim or defence that \r\nparty is asserting whiles section 17 governs the allocation of the burden of \r\nproducing evidence. It notes that the burden of producing evidence of a particular \r\nfact is on the party against whom a finding on the fact would be required in the \r\nabsence of further proof and that the burden of producing evidence is initially on \r\nthe party with the burden of persuasion as to the fact.   \r\n  \r\nThe Supreme Court had earlier reiterated this principle in the case of ABABIO v \r\nAKWASI III [1994-95] GBR 774 where the court noted as follows:   \r\n“a party whose pleadings raised an issue essential to the success of his \r\ncase assumed the burden of proving such issue. The burden only shifted to \r\nthe defendant when the plaintiff has adduced evidence to establish the \r\nclaim” \r\nThe plaintiff having made a number of allegations and praying for remedies, how \r\n11 | P a g e  \r\ndid he go about discharging its obligations under the law? As factually, the \r\nplaintiff has the burden to prove and demonstrate that the government was truly \r\nand justly indebted to it in the sum of $US1,117,818.45.  \r\nPlaintiff testified through its lawful attorney, Dr. Nat Tanoh in line with its \r\npleadings and tendered a number of Exhibits from Ex ‘A’ to ‘W’ in an attempt to \r\nprove its claim. Pertinent among the writings or evidence tendered by the \r\nplaintiff’s attorney were Ex ‘D’, a letter from the Attorney General, Marietta \r\nBrew Appiah Oppong to the Ministry of Finance advising against any payment \r\nto Great Cape. Plaintiff contrast this writing with that of Ex ‘H’ from the same \r\nAttorney General where she had earlier advised that the Ministry of Finance pay \r\nplaintiff an outstanding amount of $1,117,818.45.  \r\nAgain Ex ‘M’ being a letter purportedly authored in 2001 by then Attorney \r\nGeneral, Nana Akuffo Addo, requesting the Ministry of Finance to pay the \r\nplaintiff an amount of $1,117,818 is relied on heavily by the plaintiff. The \r\nsubstance and the probative weight to accord to the critical exhibits relied on by \r\nthe parties would soon be made bare by the court.  \r\nDefendants, on the other hand testified through three persons, namely, Nabeela \r\nWahab, a State Attorney, Douglas Kumasi of GNPA and Major (Rtd.) M. S. Tara, \r\nChief Director at the Ministry of Finance. Witness statement was filed on behalf \r\n12 | P a g e  \r\nof one Naab Kunbuor of Ministry of Finance but as same did not avail himself \r\nfor cross examination, his witness statement in the discretion of the court was \r\nexpunged from the record in reliance on section 62 of the Evidence Act, NRCD \r\n323. The defendants also relied on virtually the exhibits tendered by the plaintiff \r\nand it was solely to avoid the danger of duplicitous evidence that the court did \r\nnot allow an exhibit that was already in evidence to be further tendered by the \r\ndefendants. Besides, exhibits 1 to 6 were tendered and admitted on behalf of the \r\ndefendants.  \r\nSo did the plaintiff who bears the burden of proof discharge them during the trial \r\nof this action?  \r\nIt is not in dispute that a contract for the supply of cement clinker was entered \r\ninto between GNPA and the plaintiff in 1978 for the supply of 200,000 tons of \r\ncement clinker and same was abrogated by the government. And it is not in \r\ndispute that a negotiated settlement was reached for the payment of an amount of \r\n$US 400.000 in 1981 and that this amount was not paid till 1998 where the \r\namount had accumulated interest to the tune of $US 944.000 on an interest of \r\n8.5% per annum les $17.000.  \r\nWhat is in dispute is whether the amount of $US927.000.00 paid to the plaintiff \r\nconstituted a final discharge of the government of Ghana’s obligation to the \r\n13 | P a g e  \r\nplaintiff in respect of the contract or there still remained, as plaintiff contends, an \r\noutstanding amount of US1,117,818.45 to be paid to it.  \r\nFrom the records and the evidence at the trial I find two main grounds which \r\nplaintiff posit for its claim and which the court must deal with to determine the \r\npropriety of the claim of the plaintiff.  \r\nThe first is the claim by the plaintiff that the amount of $US400.000 which was \r\nagreed to be due to plaintiff in 1981 and which was not paid promptly was to \r\nattract from 1981 to the date of payment a compound interest rate of 8.5% per \r\nannum and not a simple interest rate as the learned Attorney General seems to \r\nimply in Ex ‘D’. Plaintiff’s attorney makes this fundamental claim in paragraph \r\n4 of his witness statement that interest on the amount of $400.000 was to accrue \r\n8.5% per annum compound interest to the date of payment. And that the payment \r\nof $US927.000 made in 1998 was only part payment of the then amount together \r\nwith the accumulated compound interest rate standing at $US2,044,818.45. \r\nLearned Principal State Attorney confronted the plaintiff’s attorney on his claim \r\nof the application of a compound interest rate to the monies that was paid by the \r\ngovernment in the following exchanges:  \r\nQ: In paragraph 4 of your witness statement you have stated that the Solicitor \r\nGeneral in 1987 agreed that the interest on the sum of $400.000 due to the \r\n14 | P a g e  \r\nplaintiff accrued at 8.5% per annum of compound interest. Is that correct.  \r\nA: Yes My Lord.  \r\nQ: Where in the document does it say the interest is compounded.  \r\nA: It just say in paragraph 4 of interest of 8.5% per annum  \r\nQ: Does it say compound interest?  \r\nA: Not specifically.  \r\nQ: I suggest to you that defendants never agreed to pay to you the compound \r\ninterest of 8.5% on the sum of $400.000  \r\nA: I am not of that view.  \r\nQ: So you still claim that defendants agreed to pay you compound interest?  \r\nA: That compound interest claim will be clearer as proceedings go on. I believed \r\nthat.  \r\n15 | P a g e  \r\nQ: It is not your belief but what it is stated.  \r\nA: Yes as I have stated”. \r\nI do not find the claim of the plaintiff for the application of a compound interest \r\nrate from the exhibits. Plaintiff’s Attorney was unable to point out from the \r\nexhibit when asked to do so and shifted the goal post that the compound interest \r\nwas to be made clearer in the course of proceedings in the court. If anything at all \r\nthere was no clarity that the interest rate of 8.5% agreed to by the parties was to \r\nbe compounded.  \r\nInterest payment is a matter of agreement between parties as it is a policy of the \r\nlaw to give effect to what parties have agreed to in an agreement. Where parties \r\nagrees to a compound interest rate to apply to a transaction that is what a court of \r\nlaw will give meaning to. However, in the absence of an express agreement that \r\na  transaction was to be governed by a compound interest, the presumption of the \r\nlaw is in favour of a simple interest rate. This is clearly captured in Rule 1 of the \r\nCourts (Award of Interest and Post Judgment Interest) Rules, 2005 (C.I 52) which \r\nreads as follows:  \r\n “If the court in a civil cause or matter decides to make an order \r\nfor the payment of a sum of money due to a party in an action, that interest \r\nshall be calculated  \r\n16 | P a g e  \r\n(a) at the bank rate prevailing at the time the order is made \r\n(b) at simple interest \r\nbut where an enactment, instrument or agreement between the parties specifies a \r\nrate of interest which is to be calculated in a particular manner the court shall \r\naward that rate of interest calculated in that manner”.  \r\nThe reason why compound interest is not presumed to govern transactions unless \r\nit is clear is simple. That compound interest is the calculation of the agreed \r\ninterest rate on the principal plus accumulated interest. Interest paid on accrued \r\ninterest plus the principal amount cannot be exacted unless the contract stated so.  \r\nPlaintiff having failed abysmally to prove to the court that the agreement for the \r\npayment of the compensation was to be governed by a compound interest rate, I \r\nfind and hold that the  agreement for the payment of compensation  was governed \r\nby the payment of a simple interest rate and not compound interest rate as plaintiff \r\nwanted the court to believe and I so find and rule accordingly.  \r\nMy position is buttressed by Justice S. A. Brobbey in his work “Practice and \r\nProcedure in the Trial Courts and Tribunals of Ghana” that where a party fails \r\nto lead evidence to demonstrate an agreement for the payment of a compound \r\ninterest his claim must fail. See DIAB v QUANSAH [1974] 1 GLR 101. \r\nIn the address filed on behalf of the plaintiff, learned counsel for the plaintiff \r\nseems to assume that the application of compound interest rate was what was \r\n17 | P a g e  \r\nagreed without pointing out in a single exhibit tendered in court as to how plaintiff \r\narrived at this compound interest rate. That may only be the invention of the \r\nplaintiff but not anything borne out of the record at the trial.   \r\nThis then leads me to the second main ground of contention of the plaintiff for \r\nhis demand for the payment of an amount of $US1,117,818.45 as an outstanding \r\nmonies owed it by the government of Ghana. Plaintiff claim that defendants have \r\nmade admissions of the government’s continuing liability to the plaintiff and \r\nfurther claim that defendants have admitted of as a miscalculation of the interest \r\ncomponent of the monies to be paid. As part of the attempt to prove its claim, \r\nplaintiff rely on Ex ‘M’ and ‘H’ as evidence of that admission of liability by the \r\ngovernment and claim that the defendants per their conduct had made it to believe \r\nthat plaintiff was entitled to the amount of $1,117.818.45 and the court should not \r\nallow the defendants to make a volte face on their open admission of liability.   \r\nThis he does by supporting it with section 26 of the Evidence Act, NRCD 323, \r\nthe doctrine of estoppel by one’s own conduct that had made another person to \r\nbelieve a state of affairs to be true. Ex ‘M’ even though admitted into evidence \r\nneeds a careful scrutiny. It is a letter purportedly authored in April, 2001 by the \r\nthen Attorney General, Nana Akuffo Addo, wherein he notes that based upon a \r\npetition by the plaintiff company that there had been a miscalculation of the \r\ninterest component of the compensation, and recommended further payment of \r\n18 | P a g e  \r\n$1,117,818.45. It is worth noting that the basis of miscalculation that plaintiff \r\nrelies on is that a compound interest had not been used by the government which \r\nI have demonstrated that position of the plaintiff to be untenable and not in accord \r\nwith the law. And it was based on the claim of plaintiff that compound interest \r\nrate ought to have been applied to his compensation, that necessitated Nana Addo \r\nto write Ex ‘M’.  \r\nEx ‘M’ deserves more attention and scrutiny in one or two respects. All the \r\nexhibits and correspondence emanating from the Attorney-General and Ministry \r\nof Justice office is on its letter head. All the correspondence emanating from the \r\nMinistry of Finance is on the letter head of the Ministry of Finance. The only \r\nexception is Ex ‘M’ claimed to have been authored by the then Attorney General. \r\nHow come such an important exhibit is not on the letter head of the Ministry of \r\nJustice and yet is claimed by plaintiff to have been written and signed by Nana \r\nAkuffo Addo at a time he was the Attorney General.  \r\nPlaintiff attempts an answer by producing Ex ‘P’ where Nana Akuffo Addo states \r\nthat he has a vague recollection of the transaction but confirm the signature on Ex \r\n‘M’ as his signature. Ex ‘P’ written in 2011 when Nana Akuffo Addo was not in \r\npublic office is rather on the letter head of the ‘Office of Nana Akuffo Addo’ whiles \r\nEx ‘M’ when Nana Addo was in public office is not on any letter head. Defendants \r\nper Ex ‘2’ had serious questions with Ex ‘M’ and had recommended that the letter \r\nbe sent for forensic examination for a determination of the authenticity of the \r\n19 | P a g e  \r\nsignature. \r\nEx ‘M’ though in evidence, it has always been the rule that admission of a writing \r\nis one thing and its weight is another. In the face of such a crucial document not \r\nbeing on a letter head, and in the face of Ex ‘2’, the defendants were simply \r\nraising an issue regarding the authenticity of Ex ‘M’. One of the best way to have \r\nresolved this was for the plaintiff to have invited the alleged author of Ex ‘M’ to \r\nbe in court to testify as to the authorship of Ex ‘M’ and answer why such a formal \r\nletter, not being an internal memo, but a letter to the Ministry of Finance, was not \r\non a letter head; but not merely to tender Ex ‘P’. Ex ‘P’ only attest to the signature \r\nbut does not answer why Nana Addo did not write the said Ex ‘M’ on the letter \r\nhead of the Ministry of Justice. There seems to be a substantial question regarding \r\nthe genuiness and authenticity of Ex ‘M’. It contravenes the best evidence rule \r\nenunciated by Lord Hendricks in ONYCHUND v BARKER [1745] 1 AIK 21. \r\nThe reasons why this letter was not a letter head had not been explained and the \r\nalleged author was the best person to have explained. Besides not to talk of it \r\nbeing only a photocopy that was produced.  \r\nA court is always imbued with the power and discretion to exclude a document \r\nthat has wrongly been admitted into evidence if at the time of writing the \r\njudgment it is the opinion of the court that a particular document should not have \r\nbeen admitted into evidence. And authenticity is a precondition precedent to \r\nadmissibility of a writing. See section 136 of the Evidence Act, NRCD 323. See \r\nalso the case of JUXON-SMITH v KLM DUTCH AIRLINES [2005-2006] \r\n20 | P a g e  \r\nSCGLR 438; where the Supreme Court affirmed the decision of the Court of \r\nAppeal to exclude four vital documents admitted by the trial Judge as the \r\nprecondition necessary for their admissibility had been violated, thus sinning \r\nagainst section 136 of NRCD 323.  \r\nRather than rule that Ex ‘M’ was wrongly admitted and exclude same, I restrain \r\nmyself from taking that path. Instead, I would place scant probative value or \r\nweight on Ex ‘M’ due to the questions regarding its authenticity that I have raised \r\nsupra. \r\nAgain, Ex ‘H’ where the Attorney General, Marietta Brew Appiah Oppong \r\nrecommended further payment deserves some comment. Ex ‘H’ was heavily \r\nreliant on Ex ‘M’ that Nana Akuffo Addo had recommended further payment and \r\nalso another letter authored by Dr. Obed Asamoah, Ex ‘W’ that government \r\nadmitted its continuing liability to the Plaintiff. The authenticity of Ex ‘M’ has \r\nbeen ruled by the court not to have been established leading the court to place no \r\nweight on Ex ‘M’. Therefore the basis upon which Marietta Brew Appiah \r\nOppong, the Attorney General came to the conclusion in Ex ‘H’ cannot be correct. \r\nIn fact, there is nowhere in any of the documents authored by Dr. Obed Asamoah, \r\nespecially Ex ‘W’ that plaintiff alludes to; that Dr. Obed Asamoah admitted of \r\nany continuing liability of the government to the plaintiff after payment of \r\n$927.000.00. For in Ex ‘F’ Kwame Pepra, the then Finance Minister in making \r\npayment of an amount of $927.000 stated in emphatic terms at paragraph 7 that: \r\n  \r\n21 | P a g e  \r\n‘I have, therefore, considered and approved the amount of US$927.000 [i.e \r\nUS$944.000 less $17.000 (the equivalent of 11.000 pounds) as \r\nrecommended by the Hon Attorney General, for payment to Great Cape \r\nCompany in full and final settlement of the claim’.  \r\n Dr. Obed Asamoah’s letter that Plaintiff had claimed and still insist is one of the \r\nAttorney General’s admission of liability is Ex ‘W’. Dr. Obed Asamoah \r\nconcludes that letter in the following:  \r\n “As a result of the long delay, the interest on the principal sum \r\nhas accumulated over the period (1981-1997) to approximately \r\nUS$544.000.00. This together with the principal sum of US$400.000.00 \r\ncomes up to US$944.000.00 out of which the legal costs incurred by GNPA \r\ncan be deducted. I therefore invite you to accept liability for the sum of \r\nUS$944.000.00 for GNPA and approve payment of the said sum”.  \r\nWhere in this letter, whether express or implied did Dr. Obed Asamoah admit that \r\nthere was a continuing liability of the government after the payment of the sum \r\nstated in that letter for plaintiff to demand further payments. The contrary is rather \r\nevinced by the reading of Ex ‘W’. What more it destroy the foundation of the \r\nclaim of plaintiff’s attorney that interest on the payment made to its principal was \r\nonly calculated up to 1987. \r\n22 | P a g e   \r\nIndeed, the Attorney General subsequently realized her error and rectified same \r\nin Ex ‘D’ when she advised against any further payments to the plaintiff. Learned \r\ncounsel for plaintiff, Andrew Daniels, Esq contend that the letter of Ex ‘M’ \r\nconstitutes a “contract and claim that an acknowledgement of a debt binds the \r\nperson making it and the successors of that ..”. \r\nWith profound respect, I have demonstrated that Ex ‘M’ which I have strained not \r\nto exclude, was based on information that the interest paid to plaintiff should have \r\nbeen compound interest, which in actual fact was not true. A contract can be \r\nvitiated by a number of factors including mistake. \r\n  \r\nBesides the above, plaintiff claim that the decision to pay the US$927.000.00 was \r\na unilateral decision on the part of the government and not as a result of any \r\nnegotiated settlement of the indebtedness of the 1st defendant.  Plaintiff’s attorney \r\nmakes this assertion as part of the contents of paragraph 6 of his witness \r\nstatement. Learned Principal State Attorney confronted Dr. Tanoh regarding this \r\nclaim of a unilateral payment made by the government of Ghana in the following:  \r\nQ: Are you aware that in 1998, the director of Plaintiff’s company wrote to 2nd \r\ndefendant proposing a settlement of 1.3 million dollars. \r\n  \r\nA: Yes I am aware. I was at the meeting \r\n23 | P a g e   \r\nQ: And that was rejected by the 2nd defendant   \r\nA: Yes, unilaterally  \r\nQ: I suggest to you that the debt owed plaintiff had never been two million dollars  \r\nA: The facts do not support this contention  \r\nQ: I further suggest to you that that the payment of US$927.000.00 was not \r\nunilateral  \r\nA: Not correct  \r\nQ: I further suggest to you that it was in response to the proposal for 1.3 million \r\nUS dollars by the director of Plaintiff’s company.  \r\nA: Not correct. It was unilateral.  \r\nEx ‘V’ emanating from Florence Tchaptchet, a director of plaintiff company on \r\n18th June, 1998 pleading with the Ministry of Finance to review upwards a \r\nsettlement amount of US650.000 reached with plaintiff through one Charles \r\n24 | P a g e  \r\nFordwoh, which the plaintiff director noted, his appointment as an Attorney had \r\nbeen revoked. The author then proposed a settlement of US$1.3 million and noted \r\nthat:  \r\n “Our proposal is for a settlement at 1.3 million US dollars in \r\nfull and final satisfaction of all matters between us. We believe that this is \r\nextremely reasonable and hope that this is acceptable to you”.  \r\nA letter of 23rd October, 1998 from Hon Kwame Peprah, then Minister for Finance \r\nsettled it all as seen in Ex ‘F’.  It makes reference to the negotiated settlement \r\nreached with Charles Fordwoh and how a director of plaintiff arrived in Ghana to \r\nnotify them that Fordwoh’s appointment had been revoked and plaintiff had \r\nclaimed the value of losses to be over US$2.000.000 but eventually putting in a \r\nproposal for an amount of US$1.3 million. Eventually the entitlements of plaintiff \r\nwas reached to be US$927.000.00. \r\nIf in 1998, as per Exhibits ‘V’ the plaintiff itself was claiming US$1.3 million and \r\nonly had US$927.000 how could plaintiff again  turn round and claim  that it \r\nshould have been paid US$2,044,818.45 and based on this falsehood bombard \r\nsubsequent Attorney Generals with letters and petitions to make more payments \r\nto it. If the Attorney – General, Hon. Marietta Brew Appiah Oppong had written \r\nEx ‘H’ and plaintiff insist she should be bound by it, the plaintiff ought to realize \r\nthat statements to the effect that Dr. Obed Asamoah had admitted continuous \r\n25 | P a g e  \r\nliability which was made to her, which in fact was not and is not true or correct, \r\nthe learned Attorney General would not have written Ex ‘H’ as she did. And the \r\nattempt of plaintiff to invoke and rely on estoppel by one’s own conduct under \r\nsection 26 of the NRCD 323 must fail. \r\nCurious enough, the amount plaintiff claim against the government seems to be \r\nshooting up all the time. Ex ‘A’ being the power of attorney granted Dr. Nat Tanoh \r\nto put in claim, the amount that plaintiff claim is owed it is not US1,117,818.45 \r\nbut rather $4,123,320.42 the question is why did plaintiff not claim that amount \r\nof $4,123,320.42 as stated in Ex ‘A’ but rather US$1,117.818.45 or was plaintiff  \r\njust waiting after payment of the $1,117,818.45 and then come back to claim more \r\nmaking the liability of the government of Ghana proceed ad infinitum, which \r\nappears to be to be a clear strategy that plaintiff has adopted to milk the state.  \r\nThe evidence of Nabeela Wahab and more especially DW2, Major (Rtd) M. S. \r\nTara threw more light on the state of affairs of the payments made to plaintiff and \r\nhow it represented final settlement to them. Indeed as Dw1 and Dw3 insists that \r\nif plaintiff had been truthful and made all the correspondence available and not \r\nbe selective in the kind of documents it provided the Attorney General, the advice \r\ngiven in Ex ‘H’ would not have been given. And again, if even my finding on the \r\nlack of authenticity of Ex ‘M’ is wrong and assuming that the said Ex ‘M’ is \r\ngenuine, the same conclusion holds that if the plaintiff had been candid to supply \r\nall the necessary documents for Nana Akuffo Addo to have apprise himself the \r\n26 | P a g e  \r\nconclusion would not have been a proposal for further payments. Plaintiff  cannot \r\nbe made by the court to benefit from his own wrong doing.  \r\nThroughout the cross examination of Plaintiff’s Attorney, he failed to impress the \r\ncourt. He was evasive with the questions posed by the State Attorney and \r\nprevaricated in a number of times in answering simple questions. For instance he \r\nwas evasive in answering how he claimed his lawyer lost plaintiff’s documents \r\nand salvaged some later from GNPA and some from other sources. When pressed \r\nhe could not tell which of the documents were from GNPA and those from other \r\nareas. He failed to state when asked which other sources he was referring to. He \r\ncould not show any document that backed his claim to compound interest and \r\nfailed to demonstrate the bases of a claim to US$2,044,818,46. In fact he was \r\nextremely economical with the truth and I find the material aspects of his witness \r\nas demonstrated supra by the findings made to be extremely unreliable.   \r\nTaking inspiration from the words of Ollenu J. A. (as he then was) in the case of \r\nKYIAFE v WONO [1967] GLR 463 that: \r\n  \r\n‘It must be observed that the question of impressiveness or convincingness \r\nare products of credibility and veracity; a court becomes convinced or \r\nunconvinced, impressed or unimpressed with oral evidence according to \r\nthe opinion it forms of the veracity of witnesses” \r\n27 | P a g e  \r\nThe matters he testified to as the basis of his entitlement to a further claim is not \r\nborne out by the evidence on record.  \r\nOn the whole, the plaintiff who bore the burden of proof at the end of the trial, \r\nhis claim remained unproved and unpersuasive. His claim could not hold water. \r\nWhiles the evidence of the defendants showed how plaintiff had attempted to \r\nhoodwink them to make a further payment.  \r\nIn conclusion, Plaintiff’s claim is dismissed in its entirety. I will exercise my \r\ndiscretion and award cost of Ghc50.000.00 in favour of the defendants.   \r\n(Sgd.) \r\nEric K. Baffour, Esq. \r\nJustice of the High Court \r\nRepresentation: \r\nPlaintiff’s Attorney, Dr. Nat Tanoh Present \r\nAndrew Daniels, Esq. for Plaintiff Present \r\nGrace Oppong, Ms, PSA for Defendants Absent  ', 'ERIC K. BAFFOUR, J', 'Civil', '', 'BPC/11/15 ', '', '', '', '0000-00-00', ''),
(609, 'GREAT CAPE COMPANY LTD   VRS   1. HON ATTORNEY GENERAL 2. THE HON. MINISTER, MIN. OF FINANCE  ', '', '../links/cases/GREAT CAPE v AG.pdf', 'Yes', '', '2016', 'High Court', 'RULING  \r\nAt the last adjourned date of 8/3/16 and in the course of the case management conference when the Plaintiff’s counsel sought to tender seven additional documents which were filed on the 15/2/16, the learned Senior State Attorney objected to the admissibility of those documents. All the seven documents are memoranda consisting principally of legal opinions given by State Attorneys ranging from Chief to Assistant States at the Attorney General’s department regarding the present claim of the plaintiff before the court. The objection of learned counsel to the admissibility of the seven documents is a hydra headed legal objections that needs stating ad seriatim. One learned Senior State Attorney contends that by virtue of section 162 and 165 of the Evidence Act, NRCD 323 the documents being sought to be tendered are not coming from proper custody as they ought to be authenticated from the source which they emanate. Second and a much more difficult one is founded on sections 97, 100, 101 and 102 of the Evidence Act which is to the effect that the seven documents that Plaintiff seeks to tender are all privileged from disclosure on the basis of lawyer client privilege as they were given by State Attorneys as lawyers for the State to the head of the Ministry of Justice and therefore such confidential information ought to be \r\n \r\n2 | P a g e  \r\nprotected to uphold the sanctity of frank and free flow of communication between a lawyer and his client, more so when the Attorney General is the principal legal adviser to the government, its branches and institutions.  \r\nI start first with the first leg of the submission that is rooted under sections 162 and 165 of the Evidence Act. The net effect of the provisions cited by the defendant is to the effect that the seven documents are not original as not coming from proper custody. Section 162 states as follows:  \r\n“A copy of a writing is presumed to be genuine if it purports to be a copy of a writing which is authorized by law to be recorded or filed and has in fact been recorded or filed in an office of a public entity or which is a public record, report, statement or data compilation if— \r\n(a) an original or an original record is in an office of a public entity where items of that nature are regularly kept; and \r\n(b) the copy is certified to be correct by the custodian or other person authorized to make the certification, provided that the certification must be authenticated”.  \r\nThe section establishes a presumption of the genuineness of writings in official custody. This is only a rebuttable presumption and it would only operate where there is no real dispute about the genuineness of the writing. Therefore where there is a dispute as to the genuineness of the writing, the burden of persuasion lies on the opponent of the copy sought to be tendered. However, it must be noted that the presumption arises only if the copy of the writing in question is certified and the certificate authenticated. I do not think that the documents sought to be tendered is within the scope of the documents contemplated by section 162 of the Evidence Act, as writings which is authorized by law to be kept or contemplated by the law could be said to be entries in death, birth registry of the State, or marriage registers kept in the Registrar-General’s department, judgments of courts kept in the court register’s office or government archives. Such documents are required to be authenticated to raise the presumption of its genuiness. It seems to me \r\n \r\n3 | P a g e  \r\nthat the objection does not raise questions regarding the genuiness or the existence of the originals in the custody of the defendant.  \r\nIn respect of section 165 regarding the admission of only original copies of documents sought to be tendered; it must be noted that the subsequent section 166 gives a number of grounds upon which a photocopy may be tendered in lieu of the original. And it states as follows:  \r\n166. A duplicate of a writing is admissible to the same extent as an original of that writing, unless— \r\n(a) a genuine question is raised as to the authenticity of the original or the duplicate; or \r\n(b) in the circumstances it would be unfair to admit the duplicate in lieu of the original. \r\nSo where the original is in the custody or control of the opponent then the tendering of a photocopy of the original has not sinned against the rules on admissibility of evidence. The first ground of objection to the admissibility of the seven documents therefore fails. \r\nNow to the second leg of the objection which is rooted and anchored on the lawyer-client privilege. It is trite that under article 88 of the 1992 Constitution of Ghana, the Attorney General is the principal legal adviser to the government and discharges such duties as are imposed on him by the Constitution or referred to him by the government, who is the client. This makes the Attorney General fall within the scope of the definition of a client under section 100 of the Evidence Act as: \r\na "client" is a person, including a public entity, association or body corporate, who directly or through an authorised representative seeks professional legal services from a lawyer; \r\nSee also the decision of Lord Denning in the case of ALFRED CROMPTON AMUSEMENT MACHINES v CUSTOMS & EXCISE COMMISSIONER (NO 2) [1972] 2 Q.B.102 \r\n \r\n4 | P a g e  \r\nThe scope of the privilege has been circumscribed under section 100 (2) as follows:  \r\n“A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication, reasonably related to professional legal services sought by the client, made between the client or a representative of the client and the lawyer or a representative of the lawyer, or between the lawyer and a representative of the lawyer, or between the lawyer or a representative of the lawyer and a lawyer representing another person in a matter of common interest with the client or a representative of such lawyer”. \r\nThis lawyer client privilege discloses a substantive right to keep privileged material confidential not only even in the context of litigation. Privilege extends beyond a mere evidential rule, and has been regarded as a fundamental principle of justice.  At the heart of the privilege is that the client must be sure that what he tells his lawyer in confidence will never be revealed without his consent or whatever advise or opinion the lawyer may proffer will not become a subject of disclosure in the court or any other adjudicatory forum.  Lawyer client privilege is seen not as just a mere ordinary rule of evidence but has been lifted over the years to the pedestal of a fundamental condition on which the administration of justice as a whole rests. See the English case of R v DERBY MAGISTRATE COURT; EX PARTE B [1996] AC 487. The test that is applied and which is relevant point for consideration under our Evidence Act is whether the communication in question was made confidentially for the purpose of legal advice or opinion. All the seven documents are memos that were meant for the attention and consideration of State Attorneys and the Attorney General himself and were not supposed to go beyond the Ministry of Justice. Learned counsel for the Plaintiff claims that section 51 of the Evidence Act should be the dominant principle for consideration. He is gravely mistaken when it comes to a claim of lawyer client privilege. This privilege is absolute, in the sense that once it is \r\n \r\n5 | P a g e  \r\nestablished, it may not be weighed against any other countervailing public interest factor or even how relevant the document is to the suit before the court; the same way when in a criminal case an accused challenges the voluntariness of his statement in a voire dire, which mini trial is not aimed at the truth or otherwise of that statement. See the case of CONLON v CONLONS [1952] 2 ALL 462. The courts have a duty to uphold this hallowed principle of law in order to encourage communication between a lawyer and his client and as long as the communication does not fall within any of the exceptions to the rule as stated under section 101 of the Act, the courts must sustain a claim to any such privilege. I am not unaware that in other common law jurisdictions such as Singapore, where the privileged information gets into the hands of an opponent through fair or foul means the opponent cannot be stopped by a claim of privilege from disclosing it. Ghanaian evidence law does not limit the application of the privilege to that and in that respect our law on lawyer client privilege is wider in scope to the privilege that operates in other jurisdictions. The objection to the admissibility of the seven additional documents filed, all being memoranda meant to be circulated within the Attorney General’s Department are privileged information and as the Attorney General or a person authorized by it has not willingly disclosed that communication to take away that privilege, the claim to that privilege has enough gravitas in law and evidence and same is sustained by the court. The documents will be rejected as inadmissible and marked accordingly. The case management conference continues. \r\n   \r\n          (sgd.) \r\nEric Kyei Baffour, Esq.  Justice of the High Court  \r\n \r\n6 | P a g e  \r\nRepresentations:   \r\nPlaintiff represented by Dr. Nat. Tanoh – present  Defendants – Absent   \r\nDavid Vandyke, Esq., for Plaintiff – present  Grace Oppong, Ms SSA for Defendants – Present    ', 'ERIC K. BAFFOUR, J', 'Civil', '', 'BDC/11/2015', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(610, 'GUARANTY TRUST BANK (GH) LTD  VRS   1. CONTINENTAL COMMODITIES TRADING CO. LTD,   2. MARKET DIRECT LTD., 3. DRY FOODS PROCESSING LTD., 4. SUCATRADE LTD., 5. DAVENPORT DEVELOPERS LTD, 6. FINATRADE HOLDINGS SA   ', '', '../links/cases/GUARANTY TRUST BANK v CONTINENTAL COMMODITIES (NO 20.pdf', 'Yes', '', '2016', 'High Court', 'RULING  \r\nThe plaintiff/applicant prays for an order for the appointment of a receiver/manager whose responsibility will be to take charge of the affairs and running of the day to day business of the defendants with the exception of the 5th defendants. According to the applicant the defendants are truly and justly indebted to it as a result of loans the defendants contracted. And as they owe, the assurance of the recovery of its money will be the appointment of John Fiam – Coblavie to take over the management of these companies to realize the monies owed the plaintiff.  \r\nDefendants have resisted the application for a number of reasons, the main one being that there have been receivers appointed by the court differently constituted, in respect of the stocks of 1st, 2nd and 4th defendants. Indeed there is Exhibit CCTC 3 which defendants attach to their affidavit in opposition showing an order from the court in respect of a matter involving Standard Chartered Bank and 1st \r\n \r\n2  \r\ndefendant/respondent.  \r\nCounsel for applicant has argued that notwithstanding the previous orders made by the court differently constituted, a further order by this court will not in any way conflict with the earlier orders made.  \r\nCounsel further relies on sections 239 and 240 of the Companies Act, Act 179. I have carefully considered the sections in Act 179 that learned counsel for applicant referred me to, nonetheless, the court is of the opinion that in view of the orders of the court in which persons in one form or another have been appointed as receivers over the sales of the defendants except perhaps the 5th defendant, I do not find it just and equitable to appoint a receiver/manager to take over the management of these companies. Such an order has a profound potential to bring the receiver/manager appointed into serious conflict with the receivers previously appointed.  \r\nOn that score, the court will decline the application of the plaintiff/applicant.  \r\nI make no order as to cost.   \r\n       (Sgd.) Eric K. Baffour, Esq. Justice of the High Court  \r\nRepresentation:  Plaintiff/Applicant Represented by Chenize Ikeduba -  Present Defendant – Absent  Nana Akyea Addai, Ms. for Kwabena Adu-Kusi, Esq. for Plaintiff – Present  Aaron Gyaban Mensah, Esq for S. Cudjoe, Esq. for Defendant – Present  ', 'ERIC K. BAFFOUR, J', 'Civil', '', 'CM/0232/2016 ', '', '', '', '0000-00-00', ''),
(617, 'KGMTI  VRS   SERVISTAR-MINWAX W. A. LTD', '', 'links/cases/KGMTI v SERVISTAR-MINWAX (RULING).pdf', 'Yes', '', '2016', 'High Court', 'RULING  \r\nThe Plaintiff/Applicant prays the court for leave to issue subpoena ad testificandum directed at the Commissioner of Customs Division of the Ghana Revenue Authority to appear before the court to testify on the status of certain shipping containers which were consigned by the plaintiff to the defendant for delivery to the port of Tema.  \r\nThough the applicant did not indicate during the case management conference and the on pretrial checklist that he intended to call the Commissioner of Customs or its representative to testify. The reason the applicant proffer is that it has become apparent in the course of the trial that the Commissioner appears as a witness in order for the court to be conversant with the full facts of the case and hence the need for the grant of the leave he seeks for the court to be appraised of the fate of the containers which were seized and auctioned by the Customs Division of the Ghana Revenue Authiritt for accumulated demurrage charges.   \r\nDefendant has ardently opposed the application on the grounds that the applicant has not disclosed any special or exceptional circumstances that warrant the grant of the application. To defendant, pleadings have closed, they have all filed their respective witness statements and plaintiff is on the verge of closing its case. That again, plaintiff never indicated during the pretrial conference that plaintiff will call the Commissioner \r\n \r\n2  \r\nof Customs as a witness in the suit. And as it was not indicated by plaintiff, it shows that the witness plaintiff intended to subpoen had not been seen by plaintiff as a material witness.   \r\nIt is stated under Rule 3D of Order 38 of the High Court (Civil procedure Rules) C.I 47 as amended by the Civil procedure (Amendment) Rules, C.I. 87 that:  \r\n“Where a witness statement for use at the trial is not served in respect of an intended witness within the time specified by the Court, the witness shall not give oral evidence unless the Court grants leave”  \r\nThis rule must be just be juxtaposed against that of section 68 of the Evidence Act, NRCD 323 that:  \r\n“The Court may, on its own motion or at the request of a party, call or recall witnesses”  \r\nWhiles Yarney, Esq has urged the court that the Commissioner’s presence may be necessary to unravel the fate of some of the containers if the aim of the court is to do justice the defendant claim that to call the witness will overreach the defendant.  \r\nIt appears to be that whether under the Evidence Act or the C.I 47 which now allows the taking of witness statement, to call a person to testify who has not given a witness statement is at the discretion of the court. To appreciate the factors that a court may have to take into consideration to allow a witness such as the one plaintiff intends to call to testify will depend on a number of factors.  \r\nOne is whether the issue or matter that the intended witness will be testifying to has suddenly emerged during the course of the trial such that no matter how gifted a lawyer with prescience he would not have discerned that the evidence of that witness will be relevant during the case management conference.  \r\nTwo the necessity to balance the need to avoid undue delay whiles not sacrificing the need to ensure that justice is not slaughtered on the altar of speed. For it must always be borne in mind that what gave birth to the C.I 87 was, among others, to avoid delay \r\n \r\n3  \r\nand surprise to an opponent and ensure that lawyers think through the case they are handling so as not to engage in any accident of lottery as to the witnesses it must call during trial. The applicant knew all long from its pleadings that the Customs Division of the Ghana Revenue Authority had auctioned some of the containers, as he alleges, and the necessity that the Commissioner will be a necessary witness for his case to establish the whereabouts of the containers, could not be said to have suddenly down on counsel. If the court were to needlessly allow such applications, it would defeat the very purpose for the enactment of the amendments to the rules of court and take us back to what used to prevail before C.I 87 came into being.   \r\nAgain, it does not make for prudent management of the cases of a court if such applications are allowed making it virtually unpredictable as to when a court will finish a case and the number of witnesses that a party will call. The Pretrial Check list was for a purpose. Though I admit, that the rules of court are only handmaidens but not a mistress, but if this application were to be allowed, I think, it will overreach the defendant and making meaningless the whole purpose of the case management conference.   \r\nI find no compelling grounds canvassed by the applicant to allow this application and accordingly declined same.    \r\nI make no order as to cost.      \r\n          (Sgd.) Eric K. Baffour, Esq. Justice of the High Court     \r\n \r\n4  \r\nRepresentation  \r\nPlaintiff Absent  Defendant Represented by Henry Manley Spain – Present  Nathan  P. Yarney, Esq for Plaintiff/Applicant – Present  Asare Darko, Esq for Defendant/Respondent – Absent    ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'RPC/230/2014', '', '', '', '0000-00-00', ''),
(618, 'KOMMANDITGESELLSCHAFTMTI,  VERTREIBSGESELLSCHAFT MBH & CO. (KGMTI).     VRS   SERVISTAR MINWAX W.A LTD ', '', 'links/cases/KGMTI.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nPlaintiff, a company registered under the laws of the Republic of Germany, per the endorsement on its amended writ of 12/02/15 claims the following reliefs: \r\na. Recovery of the value of US$276,465.00 on a bill of exchange dated 13th March, 2014 drawn on the Defendant by the Plaintiff and accepted by the Defendant.   b. Recovery of the remainder of the value of US$443,614.50 (after considering relief A above) being the total value of the consignment of frozen meat supplied on C.I.F terms by the Plaintiff to the Defendant, less the amount of US$100,200.00 realised on the resale of part to a third party.  \r\n2 | P a g e  \r\nc. Interest at the prevailing commercial lending rate from the 15th May, 2014 till the date of final payment on the amounts in Reliefs A and B.  \r\nd. Recovery of the amount of US$40,497.50 being charges incurred in recovering possession of containers marked as MWSU9098805, MNBU9007695, and MWCU6663794.  \r\ne. Recovery of the amount of US$44,000.00 being demurrage charges charged against the Plaintiff to date.  \r\nf. An order directed at the Defendant to be liable for all further charges to be levied against the Plaintiff in respect of the transaction in issue, and  \r\ng. Costs, inclusive of the cost of litigation and lawyer’s commission \r\nPLAINTIFF’S CASE \r\nPlaintiff has provided the basis for his claim in the Statement of Claim that accompanied the amended writ on 12/2/15. Plaintiff avers that between 20th November, 2013 and 1st February, 2014 the Plaintiff and the Defendant contracted for the supply of frozen meat products for the value of US$443,614.50.  Plaintiff claims that it performed its obligation under the contracts and duly delivered the aforementioned goods to the port of Tema-Ghana.   \r\nPlaintiff states that on 13th March, 2013 upon agreement with the Defendant, it drew on the Defendant in favor of the Plaintiff a bill of exchange for the amount of US$276, 465.00 to be payable to the Plaintiff  at Fidelity Bank Limited, Ridge Towers, Accra. The bill of exchange so drawn covered seven (7) out of eleven (11) invoices and was due for payment on the 14th April, 2014.  The Plaintiff says that the defendant accepted the bill of exchange and indicated same by its official \r\n3 | P a g e  \r\nstamp and signature of the authorized officer. \r\nPlaintiff further avers that the defendant and its Bank- Fidelity Bank requested an extension of the due date for a further thirty (30) days. Plaintiff by an email accepted to extend the due date from 14th April, 2014 to 15th May 2014 and requested the Defendant to accept the new due date which it did. Plaintiff says that its bankers, Commerzbank received a message from the Defendant’s bankers of its unwillingness to issue a bank guarantee for the payment of the Bill. \r\nPlaintiff makes the case that the production of a bank guarantee for the honouring of the Bill was a condition precedent to the release of the bills of lading relating to the consignment, notwithstanding that the contract was on C.I.F terms. \r\nPlaintiff concludes that the Defendant defaulted and that in order to avoid substantial losses it tracked and secured possession of the containers labeled MWSU9098805, MNBU9007695, and MWCU6663794 and disposed of them to a third party. Plaintiff further avers that the remaining containers have been seized and auctioned off by the Ghana Customs Authority and it has incurred other charges as a result of the Defendant’s default. \r\nDEFENDANT’S CASE \r\nDefendant has denied the essential averments of the Plaintiff. Defendant says that even though the parties had agreed for Plaintiff to supply the defendant with a consignment of frozen poultry products, the said poultry products were never supplied and/or delivered as alleged by the Plaintiff or at all.  \r\nDefendant further avers that the contract between the parties was on terms being net cash against documents, requiring the defendant to pay for the price of the goods only after sighting and receipt of the appropriate shipping documents. Defendant says that the shipping documents were never delivered by the Plaintiff to it, and that on the 21st March, 2014 the Defendant’s bank advised the Defendant \r\n4 | P a g e  \r\nthat the Plaintiff’s remitting bank requested the return of all the documents covering the consignment. \r\nIt is the case of the Defendant that since the Plaintiff never delivered at any material time the shipping documents on the said poultry products the property in the said poultry never passed to the Defendant and thus it assumed no liability to the Plaintiff. Defendant makes the case that even if it accepted the bill of exchange the Defendant was induced to accept the said bill of exchange by the fraud of the Plaintiff. He then proceeds to provide the particulars of the fraud as follows: \r\ni. Falsely and fraudulently representing to the defendant that plaintiff had shipped a consignment of poultry products for the delivery Defendant, whereas it had not in fact so shipped the said products for delivery to the defendant. ii. Falsely and fraudulently representing to the defendant that plaintiff had given out final and irrevocable instructions to its remitting Bank to deliver documents covering the alleged shipment of poultry products to the defendant, whereas no such irrevocable instructions had been given for the delivery of documents covering the alleged shipment of the said poultry products to the defendant.  iii. Falsely and fraudulently representing to the defendant that there would be no counter instructions regarding delivery of documents covering the alleged shipment of the said poultry products to the defendant, when the plaintiff well knew same to be false. iv. Falsely and fraudulently representing to the defendants that plaintiff had full title in the said consignment of poultry products to pass to the defendant whereas plaintiff well knew to be false. v. The plaintiff made the aforesaid representations to the defendant knowing the same to be false, or reckless nor caring whether the same \r\n5 | P a g e  \r\nwere true or false. \r\nDefendant accordingly denies accepting liability to pay for the amount of US$276,465.00 or any part thereof. Plaintiff joined issues with the Defendant in its reply filed and says that, the Plaintiff had discharges its obligation to deliver the consignments.  \r\nISSUES \r\nAt the close of pleadings the matter was referred for pre-trial settlement. The settlement having broken down the following issues were set down for trial: \r\n1. Whether or not the transaction for the supply of frozen meat products was on C.I.F terms. 2. Whether or not the Plaintiff fulfilled its obligations for the delivery of the shipping documents to the defendants. 3. Whether or not the defendant failed to obtain the shipping documents by reason of its inability to discharge its obligation. 4. Whether or not the Plaintiff fraudulently induced the defendant to accept the bill of exchange. 5. Whether or not the defendant is liable for the value of the consignment. 6. Whether or not the Plaintiff is entitled to its reliefs. 7. Any other issue arising from the pleadings. \r\nEVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW \r\nPlaintiff testified through its lawful, Mohammed Sidahmed and its subpoed witness from Fidelity Bank, Suzzane Appau. Among the critical documents tended were the contract documents in the form of Ex ‘B’ series, a bill of exchange drawn in the amount of US$276,465,00 Ex ‘D’ being a request for extension for the of payment, Ex ‘H’ being communication from plaintiff to defendant notifying it of the unwillingness of the bankers of defendant to issue a guarantee for the payment that \r\n6 | P a g e  \r\nwas due on the 15th of May, 2014. Ex ‘L’ series is what plaintiff deem to be as a condition precedent for the release of the bill of lading, that is the provision of a bank guarantee and defendant’s failure to do same.  \r\nOn the other hand defendant testified through its director, Henry Manly Spain and seem not to have tendered any document in support of its resistance of the claim of the plaintiff. Did plaintiff who bore the burden of persuasion and the burden of producing evidence prove his case before the court? First is the issue of whether the contract was on CIF terms and if it was its implications for the contract.  \r\nSection 61 of the Sale of Goods Act, Act 137 provides the scope of an international contract whose terms is C.I.F.  It is loosely interpreted to mean that the price of the goods includes cost, insurance and freight. The essential nature of a C.I.F contract is that the seller does not undertake that the goods shall arrive but agrees that one he will procure and tender to the buyer the conforming shipping documents. Two, he will transfer the property in the goods to the buyer at the due time for such transfer, provided that the goods are in existence. In this respect C.I.F contracts have been referred to as sale of documents relating to the goods and not sale of goods.  \r\nSo in the case of MANBRE SACCHARINE V. CORN PRODUCTS LTD [1919] 1 K.B. 198; Corn Products agreed to sell corn syrup and starch to Manbre Saccharine on CIF terms London. Goods answering the contract were accordingly shipped to the buyers. The ship was sunk by a torpedo mine on 12/3/1917. The sellers tendered the shipping documents relating to the goods on 14/3/1917 but the buyers refused to take them up and pay the price. It was held that the seller may validly tender the documents even though he knows the ship to be lost, that the buyers were bound to do so, and that their refusal to pay amounted to a breach.  \r\nMcCardie J. poses the question whether the seller can tender documents on goods that are lost.  \r\n7 | P a g e  \r\n“I conceive that the essential feature of an ordinary contract of sale of goods rests in the fact that performance of the bargain is to be fulfilled by the delivery of documents and not by the actual physical delivery of the goods by the vendor’’. \r\nIn the Ghanaian case of ZAKOUR v. PILLSBURY MILLS, INC [1961] GLR 401; Supreme Court held that the essential feature of a CIF contract is the delivery of documents and not by actual delivery of the goods.  Among the principal duties imposed by law as spelt out under section 61 of Act 137 on the  seller in a CIF contract are the following: for the seller to ship the goods under section 61(a). The seller ships the goods or buys them afloat and appropriates it to the contract. In C.I.F contract, there is no obligation that the seller delivers the goods personally to the buyer. The seller performs his obligations if he is able to furnish the buyer with the requisite conforming shipping documents. In effect, the seller’s duty to deliver the goods is met when the documents are delivered even if the goods are lost. The second principal feature of a C.I.F contract are that the cost of shipment and insurance are borne by the seller under section 61(b). The seller also at his own expense bears all the cost of the freight and an insurance policy necessary for that type of the goods in question.  \r\nThe third and most important aspect of a CIF contract is for the seller to deliver or tender the shipping documents to the buyer under section 61(c) and 64 of Act 137. This may be a seller’s invoice for the price, a bill of lading and insurance policy. These provides an assurance to the buyer that the goods will arrive and if destroyed or damaged there will be insurance for him. The bill of lading and the insurance policy assures the buyer that the goods shall arrive and even if they do not arrive because they are destroyed or damaged, it assures the buyer that he can claim against the carrier or the insurer as the case may be. If the documents are not in order, the buyer may reject them. However the seller may make fresh and conforming tender if there is time. \r\n8 | P a g e  \r\nThe Supreme Court has held in ROBIN HOOD MILLS LTD AND ANOTHER v FARAH [1963] 1GLR 149 that,  \r\n“In a c.i.f. contract where the seller completely satisfies his part of the contract, that is to say, as soon as  he (i) ships goods of the description contained in the contract, (ii) procures a contract of affreightment which is  reasonable and usual in the trade and procures a bill of lading evidencing the contract of affreightment, (iii) covers the goods with a policy of insurance upon terms current in the particular trade, and (iv) tenders all the relevant documents to the buyer, the incident to risk passes to the buyer upon shipment of the goods.  Thereafter the buyer will be under an obligation to pay even if the goods get lost in transit, or become damaged through any intervening circumstances.” \r\nThe parties may prescribe what specific documents should be tendered by the seller to the buyer and where the contract is silent on this, it would be sufficient for the seller to tender to the buyer the bill of lading, policy of insurance and invoice.  \r\nThe contract may also expressly state that the C.I.F contract is on ‘cash against documents” basis or may be silent on it. This is not fatal to the essential nature of the contract because House of Lords has held in E CLEMENS HORST COMPANY V BIDDEL BROTHERS [1912] AC that under a contract for the sale of goods on C.I.F terms the seller fulfils his obligations by shipping the goods and tendering to the buyer the bill of lading and insurance policy, and the buyer has to pay the agreed price in exchange for those documents, whether the contract does or does not in terms provide that the payment shall be made “against documents”. \r\nFrom the evidence available especially Ex B series are all captioned sales confirmation. On the face of all the three documents making up Ex ‘B’  series delivery terms is stated to be C.I.F. I find and hold that the contract \r\n9 | P a g e  \r\nentered into between the parties was on C.I.F terms and retained the essential features of C.I.F as enumerated supra. \r\nBut did the plaintiff fulfil its obligations under such a C.I.F contract that I have found existed between the parties? The general rule is that performance of a contract must be precise and exact. That is a party performing an obligation under a contract must perform that obligation exactly within the time frame set by the contract and exactly to the standard required by the contract. This rule was applied in RE MOORE & CO AND LANDAUER &CO [1921] 2 KB 519. \r\nThe import for the instant case is that once the Plaintiff as seller under a contract for the sale of goods under C.I.F terms has undertaken to procure shipment of the goods agreed to be sold to the agreed port, to procure and tender to the buyer proper shipping documents covering the goods, the Plaintiff is contractually bound to ship the goods and ensure that the buyer actually receives the proper documents. The parties may agree in the contract that the tender of the documents shall be made to the buyer in person or to an agent or other person on behalf of the buyer.  \r\nWhere under the contract tender of the documents is to be made to the buyer in person, tender of the documents by the seller to any other person other than the buyer is non-performance on the part of the seller because it will amount to a departure from the terms of the contract. Where however, the parties have agreed that document may be tendered to an agent of the buyer or other person on behalf of the buyer, then tender of the documents to such persons is good delivery to the buyer.  \r\nThe question then is this – is ascertaining whether or not a party to a contract has performed his contractual obligation a question of fact or a question of law.  Chitty on Contracts, has opined that when an issue arises as to whether performance is sufficient, the court must first interpret the contract in order to ascertain the nature of the obligation (which is a question of law); the next question is to see whether the \r\n10 | P a g e  \r\nactual performance measures up to that obligation, which is a question of mixed fact and law. \r\nFrom the evidence plaintiff contends that he did not deliver the shipping documents directly to the defendant but rather to the defendant’s bankers being Fidelity Bank Ltd. Ridge Towers. And that defendant had agreed that it would cause its bank to provide in favour of the plaintiff a guarantee for the payment of the amount stated on the bill of exchange before the shipping documents were handed over to the defendant. Indeed in Ex ‘D’ defendant’s bankers write that their client Servistar has accepted the draft with maturity date on 14th April, 2014. And the agent of defendant makes a request to the plaintiff in terms of the following: \r\n“…because the bank is still in possession of the documents and its credit committee is yet to approve the guarantee which is still in circulation. It will be suitable however for MTI to send via swift an extension of payment from 14th April to a further 30 days”. \r\nHere defendant through its agent makes an admission that they were in possession of the documents and what was left was for the provision of the guarantee. In Ex ‘F’ Ivy Manly-Spain is requested to proceed to accept and pick the documents at the bank as soon as possible in order to afford defendant the chance to clear the containers in order to avoid public auction of the containers. Defendant’s representative under cross examination admitted that it nominated Fidelity Bank to receive the documents on its behalf in terms of the following: \r\n“Q: In respect of the transaction between the plaintiff and the defendant, as claimed from paragraph 3 of your witness statement, you do not deny it, is it correct? \r\nA: I have no denial. \r\nQ: How long has the defendant had a relationship with Fidelity Bank. \r\nA: It is about four or five years. I cannot be specific. \r\n11 | P a g e  \r\nQ: But at the time of the commencement of these transactions, that is as at August, 2013, your bankers were Fidelity Bank. \r\nA: That is Correct. \r\nQ: It will stand to reason then that it is the defendant that nominated and instructed Fidelity Bank in respect of this transaction to receive shipping documents on his behalf, is that not so? \r\nA: Yes My Lord” \r\nFrom the above I will accordingly find as a fact and hold that plaintiff performed his duties in compliance with a contract governed by CIF terms by delivering the shipping documents to the defendant who had nominated the Fidelity Bank as its bankers. And as defendant nominated an agent, being Fidelity Bank, with Plaintiff having delivered the shipping documents to the said agent and per the instructions of the defendant, plaintiff can be deemed to have fulfilled its part of the obligations. \r\nCounsel for defendant in his written address contends that plaintiff failed to include insurance policy in the name of the defendant as required by section 61(b) of Act 137. As far as the evidence on record demonstrates, the contract was not fulfilled not because of non-provision of insurance but rather the failure of defendant to raise the bank guarantee with his bankers and any claim of non-provision of insurance policy is an afterthought and the attempt of defendant to raise non-provision of insurance by plaintiff as a material breach by plaintiff will be rejected by the court. \r\nDid the defendant fail to obtain the shipping documents because of its inability to discharge its obligations?  \r\nThe nature of a party’s contractual obligation is deducible from a true and proper construction of the terms of the contract executed by the parties. Where the existing terms of the parties are subsequently altered the alteration operates to discharge the parties from their obligations under the former terms, and the new terms \r\n12 | P a g e  \r\nsuperimpose the previous terms of the contract. The parties then assume obligations under the new terms of the contract as the alteration of the terms evidence the parties’ intention to introduce new terms in place of the old. \r\nConsequently, the question whether or not a party has performed or failed to perform its obligations under the new terms of the contract is answered by assessing if the actual acts carried out measure up to that party’s obligation under the contract.   \r\nPlaintiff had claimed through its attorney that the bill of exchange which is Ex ‘B’ series was sent and accepted by the defendant as it was endorsed by its appointed representative, with a request for extension  of the due date. To plaintiff there was a further plea emanating from defendant through Ivy Manly Spain, one of the directors of defendant. Defendant’s representative, Henry Manly-Spain admitted that Ivy Manly-Spain is a wife and one of the directors of the company and that plaintiff had given a verbal instructions to them to provide a guarantee. This is what transpired in court: \r\n“Q: This email shown in exhibit L2 is an email from Ivy Manly-Spain who you  have also identified as your wife and the director of the defendant. \r\nA: This is right. The request of this Bank guarantee was a verbal agreement between the supplier who offered that we should indicate to the Bank that we will like to have a guarantee to support the goods … all the shipping that are shipped to us, the documents are released to us based on the relationship that we do have with them, we clear the goods and we pay” \r\nQ: You want this court to believe that an international sale of contract on CIF terms, an international supplier will supply your company with goods and hand over shipping documents … without any form of security for payment for the goods, is that what you are telling this court. \r\n13 | P a g e  \r\nA: Yes it is done, the security that you mentioned, to secure or to have security that is why the documents go through the Bank” \r\nAs defendant was making an allegation of a verbal agreement, the onus was on him to prove that claim. It is trite learning regarding parol evidence rule that generally once parties to an agreement have reduced their contract into a written form, the parties will be debarred from adducing extrinsic evidence to contradict what they have written. The exceptions to the parol evidence rule is where the written document was not intended to contain the whole of the agreement between the parties as seen in the case of ALLEN v PINK [1838] 4 M&W 140; two a circumstance where oral evidence may be adduced to prove the existence of a custom as it was in the case of GILLESPIE BROTHERS v CHENEY EGGAR & CO [1896] 2 QBD 59; three where there is evidence to show that a contract is invalid due to misrepresentation, mistake, fraud or non est factum as it was in the case of CAMPBELL DISCOUNT v GALL [1961] QBD 431and four where a party is calling for rectification of the written document as in the case of MANN v NUNN [1874] 30 LT 526.  \r\nDefendant could not prove any of the exceptions before the court. On the other hand Ex L2 being an email from Ivy Manly Spain notes as follows: \r\n“We would like to inform you that due to the current economic situation in Ghana, our company can no longer receive documents on sight basis. We would appreciate if you can release these documents to us on a 30 days period bank to bank guarantee. This means our bank is guaranteeing to pay you on our behalf by 30th day”. \r\nThis Ex ‘L2’, I find to be a communication from defendant that seems to vary the original plan agreed between them that payment would be made upon siting of the bill of exchange to one where the documents would be released 30 days with the \r\n14 | P a g e  \r\nprovision of a bank guarantee. Did the bankers of defendant do that? The answer is no as found in Ex ‘G’ where Fidelity Bank informs plaintiff that: \r\n“Please be advised that we are unable to guarantee for the drawee USD 276,465.00 maturing on the 15- May, 2014”. \r\nIt is this Ex ‘G’ that ignited Ex ‘J’ from plaintiff that it had not received payments and therefore it was terminating the contract. Suzzane Appau, Pw1 from Fidelity bank in her evidence also confirmed that credit approval for defendant did not go through at Fidelity bank and identified Ex ‘G’ as emanating from them. I accordingly find as a fact that the obligation imposed by law on a buyer under CIF terms to pay for the goods upon siting of the shipping documents were not complied with by defendant as plaintiff had released the documents to defendant’s own bankers. \r\nDefendant has alleged fraud and in paragraph 13 of its statement of defence and particularized the fraud to encompass plaintiff representing that it had shipped a consignment of poultry products when in actual fact it had not done so, a representation that plaintiff’s bank had given irrevocable instructions to its bankers to deliver shipping document when no such documents or instructions had been given, falsely and fraudulently representing that plaintiff had full title in the consignment of poultry products to pass to defendant when this was actually not the case etc. Allegation of fraud is not treated lightly by the courts and a great and onerous responsibility is thrust on the shoulders of a party that runs to the court with a cry of fraud.  \r\nFor in the case of REDDAWAY v BOWHAM [1896] AC 199 @ 221 Lord Macnaughten noted on fraud as follows and which was quoted with approval in the case of FOFIE v ZANYO [1992] 2 GLR 475 that:  \r\n15 | P a g e  \r\n “fraud is infinite in variety; sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be modesty itself if it could only afford it. But fraud is fraud all the same, and it is fraud and not the manner of it, which calls for the interposition of the court”  \r\nDefendant on the issue of fraud bears the burden of proof to show that the conduct of plaintiff in the transaction towards him as he had particularized in paragraph 13 of its statement of defence acted dishonestly as fraud is dishonesty in the description of Dr. Twum JSC in the case of BROWN v QUARSHIGAH [20032004] 2 SCGLR 930 @ 946 where the Judge stated as follows:  \r\n‘at common law a charge of fraud is such a terrible thing to bring against a man that it cannot  be maintained in any court unless it is shown that he had a wicked mind… in short fraud is dishonesty’  \r\nThe standard of proof of fraud even in a civil case is one of proof beyond reasonable doubt. Section 13 (1) of the Evidence Act states that:  \r\n‘In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt’.  \r\nDid defendant lead any evidence of fraud in line with the notice of particulars he gave? Defendant’s representative, Henry Manly Spain states in paragraph 11 of his witness statement that he was induced to accept the bill of exchange. I have combed the entire evidence adduced at the trial and I find nothing in support of this bare assertion of having been induced to accept the bill of exchange. On the contrary the \r\n16 | P a g e  \r\nevidence on record shows that the defendant nominated its own Bank to receive the shipping documents and as the guarantee could not be provided the contract had to be abrogated. I find and hold that the claim and allegation of fraud made by defendant was unproved even on a balance of probabilities let alone the criminal standard of prove beyond reasonable doubt. \r\nIt appears that the defendant failed to obtain the shipping documents because of its inability to raise the bank guarantee necessary for him to obtain the shipping documents to enable him clear the containers from the Tema harbour and I find defendant liable for the value of the US$276,465,00 as shown on the face of the bill of the bill of exchange drawn on the defendant by the plaintiff and accepted by the defendant through its authorised agent, the Fidelity Bank. \r\nI think also that plaintiff is entitled to interest on this amount of USD$276,465.00 from the date of 15th of May, 2014 when it became due till date of final payment at the commercial bank rate. \r\nPlaintiff also seeks in relief D and E the recovery of amounts of US$40.497.50 and US$44,000.00 being the cost incurred in recovering possession of the containers and demurrage charges paid respectively. Did the plaintiff at the trial prove this claim of monies spent in recovering possession of containers and was there any evidence on record that demonstrates that plaintiff paid monies in demurrage charges because of the failure of the defendant to obtain the shipping papers to clear the containers. \r\nPlaintiff in his attempt to claim its entitlement to an amount for the value of all the eleven containers totalling US$443,614.50 (after considering relief A) less the three it sold in Lubumbashi, Democratic Republic of Congo for the price of US$100,200.00. Plaintiff’s attorney in his witness statement claimed that the eleven containers were all auctioned by Ghana Customs Authority and managed to retrieve only three of the containers by selling them to mitigate its losses. Ex ‘K’ series was \r\n17 | P a g e  \r\ntendered by plaintiff where the three containers sold in Democratic Republic of Congo with each fetching an amount of 33.400.00 Euros. The total value, therefore, will come to US$100200.00. Plaintiff claims that less the amount of US100.200.00 the total value of the eleven containers and that of Relief A being US$443,614.50 should be borne by the defendant. \r\nThe law is that a party is required to take steps that are reasonable to mitigate losses. Damages awarded are subject to the rule that an innocent party to a contract is under obligation to take reasonable steps to mitigate losses. So in the case of SOCIETE GENERAL DE COMPENSATION v ACKERMAN [1972] 1 GLR 413@432 the Court of Appeal per Anin JA noted as follows: \r\n“what steps a plaintiff in an action for breach of contract should take towards mitigating the damages is a question of fact and not of law…” \r\nI hold and find that the value of the containers being US$443,614.50 which only three were retrieved and sold as seen in Ex ‘K’ to the tune of US$100,200.00, and after the payment of the value of the bill of exchange raised to the tune of US$ 276.465,00 the balance still outstanding on the amount of US$444,614.50 is recoverable by the plaintiff from the defendant and I so find. \r\nNot only that but also plaintiff seeks to recover the cost of demurrage which he attributes to have occurred because of the conduct of defendant that resulted into the containers attracting the demurrage charges. Ex ‘M’ series. Ex ‘M’ has a face value of US$13,640.00, there is Ex ‘M2’ with the value of US$8,682.50, I can also see Ex ‘M4’ with a demurrage charge of US$3,000.00. There is also Ex ‘M3’. It seems to me to be reasonable that plaintiff be made to recover for the cost of these expenses it was made to pay and I so grant it. \r\nInterest that plaintiff also seeks in respect of reliefs A and B are reasonable and l grant same. In the exercise of the discretion of the court I will award cost assessed at 8% of the value of the claim in favour of the Plaintiff. \r\n18 | P a g e     \r\n(Sgd.) Eric K. Baffour, Esq., Justice of the High Court   \r\nRepresentation:   \r\nPlaintiff – absent  Defendant Represented by Henry Manly Spain – present  Nathan Parker Yarney, Esq. for Plaintiff – present Asare Darko, Esq. for Defendant – absent  ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'RPC/230/14', '', '', '', '0000-00-00', '');

INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(614, 'KIJANI RESOURCES GHANA LTD  VRS   1. GHANA CHEMICALS LTD.,  2. JACOB MAWULI SETSOAFIA   ', '', '../links/cases/JUDGEMENT.pdf', 'Yes', '', '', 'High Court', 'JUDGMENT  \r\nThe Plaintiff, a Limited Liability Company incorporated under the laws of Ghana by the endorsement on her Writ of Summons is claiming the following against the Defendants jointly and severally: i. An order for the payment of the sum of Two Million, Seven Hundred and TwentyThousand Ghana Cedis (GH¢2,720,000.00) being the cost of Extra Neutral Alcohol (ENA) supplied to the 1st Defendant by the Plaintiff ii.  Interest on (i) at the prevailing bank rate from 8th January 2016 till date of final payment iii. General damages for breach of contract evidenced by 1st Defendant’s conduct in terms of the sale and purchase agreement between the parties hereto dated the 8th of January, 2014 iv. General damages for fraud evidenced by the 2nd Defendant’s conduct particularized in    paragraph 16. iv. Punitive costs.   \r\nThe Defendants entered appearance to Plaintiff’s writ but failed to file a defence. Default Judgment was therefore entered against them on the 22nd day of December 2015 in respect of \r\n2  \r\nPlaintiffs reliefs (i.) and (ii.) and the matter adjourned for the assessment of damages. Again, on the 24th of February 2016, the Defendants even though having been served duly served with hearing notices for the assessment of damages failed to appear by themselves or by their counsel. This Court therefore proceeded to hear Plaintiffs evidence in proof of its claim for damages.  \r\nGodwin Frazer, Plaintiff’s representative testified on behalf of Plaintiff, he stated that he, as the Commodity Manager of the Plaintiff Company, entered into a sale and purchase contract with the Defendants on the 8th day of January 2016 for the sale of  One Million (1,000,000) litres of Extra Neutral Alcohol (hereafter referred to as ENA) to the Defendants.  The evidence of Plaintiff’s representative was essentially in line with Plaintiff’s pleadings. In proof of Plaintiff’s claim for damages for breach of contract, the witness tendered in evidence as EXHIBIT A the sale and purchase agreement entered into between the Parties to the suit.  Clauses C and D OF EXHIBIT A stipulate that the 1st Defendant, represented by the 2nd Defendant, at the time of execution of the contract had satisfied the condition precedent for obtaining the Plaintiff’s consent to enter into the said contract by securing a guarantee bond for the sum of Two Million, Seven Hundred and Twenty Thousand Ghana Cedis (GH¢2,720,000.00) issued in favour of Plaintiff.  According to Plaintiff’s representative, the guarantee bond was to subsist for a period of 90 days as defined in clause 1 sub clause 1.1 of EXHIBIT A.  However, soon after the Parties executed the contract, the said guarantee bond was withdrawn. Plaintiff avers in paragraph 6 of its Statement of Claim that the Unique Insurance Company by a letter, dated the 17th of January, 2014 cancelled the guarantee bond  but  it is not clear to this court what gave rise to the  cancellation of the said guarantee bond. It is however not in dispute that the Defendants refused to replace the said guarantee bond in flagrant breach of the terms of the agreement.  According to the witness, in view of the Defendants refusal to replace the guarantee bond, Plaintiff cancelled the entire contract but was soon to discover that the 1st Defendant had through its Managing Director forged the signature of the witness and managed to evacuate over time , the entire consignment of ENA worth Two Million Seven Hundred and Twenty Thousand Ghana Cedis (GH¢2,720,000.00), from a customs bonded  warehouse without the knowledge or consent  of Plaintiff and without having made any payments  for same.  Plaintiff’s representative enumerated the losses suffered by plaintiff as a result of the said breach by the defendants to include, “currency loss” of Five Hundred and Twenty Five US Dollars (US$525.00), an amount of One Hundred and Twenty Eight Thousand US Dollars (US$128,000.00) spent on two independent security personnel and Two Hundred and Forty Thousand US Dollars (US$240,000.00) to “follow the transaction and to maintain a presence”.  He also gave the figure of Nine Hundred and Sixty \r\n3  \r\nThousand US Dollars (US$960,000.00) as representing loss of profits by the Plaintiff Company for the period material to the instant suit i.e. the period beginning January 2014 till January 2016.   \r\nIt would appear from the evidence of Plaintiff’s representative that the losses allegedly suffered by Plaintiff as a result of the Defendants breach were clearly calculable and quantifiable losses. In my opinion, these ought to have been specifically pleaded, particularized and proved in support of a claim for special damages if the Plaintiff expected this court to take into account all the specific amounts Plaintiff claims to have lost as a result of the Defendants breach. Be that as it may, the Plaintiffs’ claims before this Court, are for general damages for breach of contract and for general damages for fraud perpetrated on it by the Defendants. I must say, that I do not disregard the fact that general damages are by their very nature at large and that in their assessment, it lies within the discretion of the Court acting (of course,) within laid down principles, to grant an award that is fair and reasonable given the circumstances of each case. However, the Plaintiff would have assisted the Court in the proper exercise of its discretion, if it had provided more cogent evidence as to how those specific amounts were arrived at.  For instance, why was it necessary for the Plaintiff Company to engage the services of two security personnel at a cost of Two Hundred and Eighty Thousand US Dollar (US$280,000.00) when there is evidence on record that the matter had been reported to and was being investigated by the Ghana Police Service?  And what exactly gave rise to the Plaintiff’s total expenditure of Two Hundred and Forty Thousand US Dollars (US$240,000.00) which the witness stated was incurred in a bid to “follow this transaction and to maintain a presence”?  Additionally, what was the basis for the Plaintiff’s computation of loss of profits for the period between January 2014 and January 2016 which it pegs at Nine Hundred and Sixty Thousand US Dollars (US$960,000.00)?  \r\nHaving failed to provide this Court with the necessary details or particulars of the losses it alleges to have been incurred, the pertinent question at this stage is whether or not the Plaintiff should still be entitled an award of damages given the facts and circumstances of this case?   \r\nIn the case of DELMAS AGENCY V FOOD DISTRIBUTORS INTERNATIONAL LTD. 2007 - 2008 SCGLR , the Supreme Court held at page 748 as follows”…general damages is such as the law will presume to be natural or probable consequence of the Defendants acts.it arises by inference of the law and does not need to be proved by evidence.”   \r\nIt follows therefore, that Plaintiff should without further proof be entitled to an award of general damages once it is established that there has been an infringement of a legally enforceable right \r\n4  \r\nby the Defendant.  AS stated earlier on in this judgement, the Defendants though having entered appearance, failed or refused to file a defence.  The evidence of the Plaintiff therefore stands unchallenged and this Court accepts the same.  I accordingly find that Defendants are in breach of the sale and purchase agreement entered in between the Parties on the 8th of January 2014.  On the 22nd day of December, 2015, this Court entered final judgement against the Defendants in favour of Plaintiff for the sum of Two Million, Seven Hundred and Twenty Thousand Ghana Cedis (GH¢2,720,000) being the cost of the ENA supplied to the Defendant by Plaintiff together with interest on the said sum at the prevailing bank rate from the 8th day of January until date of payment. The underlying principle governing the award of interest is to compensate a Plaintiff who, owing to the Defendant’s breach of contract has been deprived of the opportunity to work or trade with his money in order to earn a profit or an income. See the DICTUM OF DENNING MR in the case of HARBUTTS PLASTINE LTD VRS WAYNE TANK &PUMPCO LTD(1970)1AER 225@236. I therefore find that having been awarded interest by this court, Plaintiff has been adequately compensated for what Plaintiffs representative termed “loss of opportunity to conduct business” for the period commencing January 8, 2014 until date of final payment. Plaintiff makes a further claim for damages for breach of contract.  It is trite learning that the primary function of damages is to place the Plaintiff in as good a position (so far as money can do it) as if the matter complained of had never occurred.  I have already indicated the difficulty I face in determining the precise measure of damages to award in view of the inadequacy of the evidence placed before me, regarding the Plaintiff’s losses.  However, the uncontroverted evidence before this court shows the impunity with which the Defendants breached the terms of the contract entered into between the Parties.  \r\nIt is not in dispute that the conduct of the Defendants has caused Plaintiff great   inconvenience, embarrassment and as its representative testified, a disruption of its business dealings on the continent.  This in my opinion, should entitle Plaintiff to substantial damages.  It is the case of Plaintiff that at the time of entering into the contract in the year 2014 the ENA supplied to the Defendant based on the Bank of Ghana exchange rate was worth 1.2 Million US Dollars (US$1,200,000.00) in value. Unfortunately, due to the current depreciation of the cedi against the dollar, the value of the same quantity of ENA has fallen in cedi terms.  Clause G of Exhibit A stipulates that payment for the ENA will be based on the prevailing dollar exchange rate and the vendor (the Plaintiff) is entitled to recover any currency loss that may occur during the guarantee period. Quite clearly, the Plaintiff has been kept out of its money by the Defendants far beyond the 90 day guarantee period and is therefore entitled to damages for the said loss. \r\n5   \r\nIn The Supreme Court case of TEMA OIL REFINERY V AFRICAN AUTOMOBILE {2011} 2SCGLR 907, the Court held that in assessing damages for breach of contract, a Court is not only required to take into consideration the prevailing economic forces but is also required to consider the Defendants conduct and its net effect on the financial fortunes of Plaintiff company.  \r\nThe Plaintiff’s witness fixes the loss in value of the ENA at Five Hundred and Twenty Five Thousand US Dollars (US$525,000) or in this case, its Ghana cedi equivalent. This Court recognizes that Plaintiff’s representative apart from his bare assertions regarding the fall in the value of the cedi against the dollar, failed to furnish evidence to substantiate his claims. This notwithstanding, I am of the view that the steady decline in the value of the Ghana cedi to the dollar over the past two years coupled with the high rate of inflation is a matter in respect of which this Court may take judicial notice in accordance with SECTION 9 of the EVIDENCE ACT, NRCD 323.  Additionally, there is no evidence on record challenging the assertions of the witness. I therefore accept the evidence of Plaintiff’s witness regarding the loss in value of Plaintiff’s money and find that the said loss is attributable to the Defendants’ breach.  Accordingly, I shall take the said loss into account in assessing the quantum of damages payable to Plaintiff.  In computing the amount payable and in the light of the evidence led, I consider it safe for this Court to rely in the Bank of Ghana official web site which in my opinion is a credible source of information on current interest rates. The said official web site fixes the current Bank of Ghana interbank rate of interest at 25% as at March 2016. In view of the fact that Plaintiff has already been awarded interest on the said sum, the Plaintiff, in my view, should be entitled to an award in general damages that will represent a fair and reasonable compensation for  losses suffered other than the loss of profits.  By my computation, the Plaintiff will for the two year period, based on the Bank of Ghana interbank interest rate of 25%, be entitled to a minimum cumulative interest of One Million Three Hundred and Sixty Thousand Ghana Cedis (GH¢1,360,000) which translates into Three Hundred and Fifty Three Thousand US Dollars (US$353,000.00) using the current Bank of Ghana Exchange Rate of $1 to ¢3.85.  In the circumstances, I consider it fair and reasonable to award plaintiff damages of Six Hundred and Sixty Two Thousand, Two Hundred Ghana Cedis (GH¢662,200.00) being the Ghana Cedi equivalent of One Hundred and Seventy Two Thousand US Dollars (US$172,000.00.  This amount represents the difference between the amount of Five Hundred and Twenty Five US Dollars (US$525.00) representing currency loss and the amount of Three Hundred and Fifty Three Thousand US Dollars (US$353,000.00) being the dollar equivalent of the interest awarded on the principal sum.  \r\n6  \r\nIn support of the Plaintiff’s claim for damages for fraud against the Defendants, Plaintiff’s witness tendered in evidence EXHIBIT B a police report purportedly issued in respect of a criminal investigation involving the 2nd Defendant and two other persons who are not Parties to the instant suit. Under SECTION 13 (i) OF THE EVIDENCE ACT NRCD 323, where it is alleged in a civil case that a crime has been committed by a party, the allegation must be proved to the same degree as the onus of proof required in criminal cases.  This means that proof of a crime which is directly in issue requires proof beyond reasonable doubt.  I do not find that EXHIBIT B establishes beyond reasonable doubt that, the 2nd Defendant forged the signature of Gordon Frazer, Plaintiff’s representative.  Indeed, the said exhibit merely concludes that “it is highly probable that Gordon Frazer could not have authored any of the alleged authored signatures”.  No mention is made in EXHIBIT B of a finding that the 2nd Defendant forged the said signature a bid to secure the release to him of the ENA. Infact no mention is made of the ENA at all in the said exhibit.  I am also unable to accept the Plaintiffs assertion that the refusal of the Defendants to replace the guarantee bond necessarily constitutes fraud, when the evidence on record shows that there was a guarantee bond in existence at the time of executing the contract. The Plaintiff did not lead any evidence on what exactly gave rise to the withdrawal or cancellation of the said guarantee bond by the Unique Insurance Company, and in my opinion a refusal by the Defendants to replace the guarantee even though it amounted to a breach of the contractual terms did not necessarily amount to fraud. I do not consider it safe to infer fraud on the part of the Defendants on the basis of the evidence before me. I therefore hold that Plaintiff is not entitled to its claim for damages for fraud.  \r\nAccordingly, I award Plaintiff an amount of Six Hundred and Six Two Thousand, Two Hundred Ghana Cedis (GH¢662,200.00) to be paid by the Defendants as general damages for breach of the contract.  \r\nCosts of GH¢20, 000.00 awarded in favour of Plaintiff against the Defendants jointly and severally.    \r\n           [SGD]           MRS. AKUA SARPOMAA AMOAH               JUSTICE OF THE HIGH COURT  aey/…   ', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'BDC/07/2015', '', '', '', '0000-00-00', ''),
(615, 'KELVIN ATSU WILSON   VRS   1. GLO MOBILE GHANA LTD., 2. UNIBANK CAPITAL (GHANA) LTD., 3. FIRST CAPITAL PLUS BANK LTD  ', '', 'links/cases/KELVIN ATSU WILSON v GLO.pdf', 'Yes', '', '2016', 'High Court', 'RULING   \r\nThe court has been called upon in this application to make a determination as to whether pending the adjudication of the main disputes between the parties, the court ought to restrain the bearer of an unconditional Bank guarantee from having recourse to that security.   Plaintiff/Applicant has moved the court for the grant of an interlocutory injunction praying the court to restrain the 1st Defendant/Respondent from taking steps to realize the Bank guarantee provided on behalf of the Plaintiff/Applicant in favour of the 1st defendant/respondent or an order to restrain the payment of an amount of Ghc994,750.00 as the sum of money that 1st defendant/respondent contends it is entitled to. In that same vein plaintiff also seeks an order to restrain 2nd and 3rd defendant/respondents \r\n \r\n2 | P a g e  \r\nfrom honouring any demand for the payment of the security that would be made by the 1st defendant.   In a rather circumbendibus affidavit, further affidavit and supplementary affidavits in support of this application, the applicant depose that his business, Chafal Communication Ventures, deals in sales, marketing of SIM cards, rechargeable cards, modems and was appointed as a Business associate or dealer by 1st defendant to market its products. Due to his credit performance in the marketing of 1st defendant products, Glo Mobile Ghana inundated him with products for distribution far in excess of what he needed. He did not have space to stock the excess products pushed to him for sale by the 1st defendant whereupon the latter offered to keep them for the applicant.  \r\nAs condition for the offering of the products he was made to approach the 2nd and 3rd defendants to issue a bank guarantee for the due repayment of the monies for the products given him. To applicant whiles his stocks were kept by the 1st defendant, its staff cultivated the habit of stealing some of the products  with one Alabi Bamidele having confessed to the stealing and applicant estimate that about Ghc1,700.000 have been stolen by the staff of 1st defendant. To applicant, he does not owe the 1st defendant the amount of Ghc 994,750.00 due to the pilferage as he has raised issues of fraud and hence the need to restrain the encashment of the bank guarantee.  \r\n1st defendant has resisted this application and in an affidavit in opposition and subsequent supplementary affidavits claim that a dealer may trade on cash basis or credit basis and if a dealer opts for credit trading it is the custom of the 1st defendant may ask the dealer to provide a bank guarantee \r\n \r\n3 | P a g e  \r\nand the dealer may issue postdated cheques to the value of the stocks ordered and hence the bank guarantee provided by the plaintiff. 1st defendant claim that stocks are released to its dealers the moment the postdated cheques are issued and do not keep the goods of customers that they have paid for. Besides, if any stocks were kept at all it was a purely a private arrangement between the plaintiff and the Alabi Bamidele that has nothing to do with the 1st defendant.  \r\nOrder 25 of the High Court, (Civil Procedure) Rules, C. I 47 enjoins the court to grant an application for injunction in all cases in which it appears just or convenient to do so. Has there been enough showing on the face of the affidavits and the documents filed to convince the court that it will be just and convenient for the court to hold in abeyance the calling of the beneficiary the Bank guarantee to his benefit?  \r\nIt is the general rule that the invocation of a Bank guarantee by the beneficiary can be restrained by an injunction. The caveat is that the normal consideration which may apply in granting an injunction will not apply in matters where Bank guarantee or letters of credit are involved. The reason is that Bank guarantee agreement is independent of the main contract. See the case of HAMZEH MALAS & SONS v BRITISH IMEX INDUSTRIES LTD [1958] 2 QBD 127. The courts follow strict approach in granting injunctions against the encashment of Bank guarantee when it appears to be unconditional guarantee.  \r\nIn the case of UP STATE SUGAR CORP v SUMAC INTERNATIONAL LTD. (1997) SCC 568 the Indian Supreme Court had this to say: \r\n \r\n4 | P a g e   \r\n“whenever an irrevocable and unconditional bank guarantee to be paid without demur is invoked, the Bank is bound to honour the guarantee irrespective of any dispute raised by the customer with notable exceptions of fraud and irretrievable injustice”.   The two exceptions were explained further to mean fraud committed in the notice of the bank which would vitiate the very foundation of guarantee; (ii) injustice of the kind which would make it impossible for the guarantor to reimburse himself.  \r\nIn the case of EDWARD OWEN ENGINEERING v BARCLAYS BANK INTERNATIONAL LTD. [1978] 1 Lloyds Rep. 166 which involved a performance bond and a contract between English supplier and a Libyan customer where the English supplier issued a performance bond with the English supplier’s subsequent failure to deliver on the promise, an issue arose as to whether the bond must be paid. The court held per Lord Denning that:  \r\n“A bank which a performance guarantee is made must honour that guarantee according to its terms. It is not concerned in the least with the relations between the supplier and the customer, nor with the question whether the supplier has performed his contracted obligation or not, nor with the question whether the supplier is in default or not. The bank must pay according to its guarantee on demand … without conditions. The only exceptions is when there is fraud of which the bank has notice”  \r\n \r\n5 | P a g e   \r\nThere was even a better rendition of this principle and expansion of the scope of the exceptions that may sway the court to grant an injunction restraining the payment of a bank guarantee in the case of HIMADRI CHEMICALS v COAL TAR REFINING COMPANY (2007) AIR SC 2798 when the court noted that:   \r\n “...the courts should not readily issue injunction to restrain the realization of a Bank Guarantee or a Letter of Credit. So far as the first exception is concerned, i.e. of fraud, one has to satisfy the court that the fraud in connection with the Bank Guarantee or Letter of Credit would vitiate the very foundation of such a Bank Guarantee or Letter of Credit. So far as the second exception is concerned, this court has held ... that it relates to cases where allowing encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned”.  \r\nSee VINITEC ELECTRONICS v HCL INFOSYSTEMS (2008) 1 SCC 544.  \r\nThe question is has the Applicant been able to situate its application within the exception to the general rule that a bank must make good its guarantee when there had been a failure of a party upon whose benefit a guarantee was provided, unless there is an issue of fraud that goes to the root of the issuance of the guarantee and of which the Bank is aware or where there will \r\n \r\n6 | P a g e  \r\nbe an irretrievable harm?  \r\nFor an allegation of fraud to succeed it has been held that it “must be of an egregious nature such as to vitiate the entire underlying transaction”.  See HIMADRA CHEMICALS CASE Supra. And in BOLIVINTER OIL SA v. CHASE MANHATTAN BANK (1984) 1 All ER 351 it was noted that  the exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But the evidence must be clear both as to the fact of fraud and as to the bank’s knowledge.   \r\nThe allegation of fraud made by the Applicant is in respect of what he claims to be an act of theft perpetrated by an employee of the 1st Defendant/Respondent. There is nothing from the affidavit evidence that there was an official arrangement by plaintiff with 1st defendant for the latter to keep stocks that plaintiff had already purchased. And even if there was fraud on the part of one Alabi Bamadele it is not the kind of fraud that is contemplated by the law to vitiate the encashment of bank guarantee. For the fraud must be one committed to the knowledge of the bank. It seems clear that the Applicant cannot find any solace under the first leg of exceptions that an applicant must set out to prove fraud to stop the honouring of the guarantee.   \r\nRegarding the second leg that the courts may stop the honouring of a bank guarantee if it would cause irreparable harm; what the law expects to be an irreparable harm has been said to be an exceptional circumstances which make it impossible for the guarantor to reimburse himself if he ultimately \r\n \r\n7 | P a g e  \r\nsucceeds or better still that the 1st Respondent will not be in a position to pay back the monies it received. The Law Dictionary defines irreparable harm or injury to mean   \r\n “the type of harm which no monetary compensation can cure or put conditions back the way they were”.   \r\nIt connotes a harm that is of irretrievable effect. See AMERICAN CYANAMID v ETHICON [1975] AC 396. There is no evidence from the plaintiff/applicant to the effect that when the 2nd and 3rd Respondents honour the guarantee and plaintiff succeeds in this case the 1st Respondent would not be in a position to refund the monies paid it by the banks. Applicant’s worry is in respect of the sale of his security by the banks after the banks have complied with the terms of the irrevocable guarantees they gave. As long as the harm or injury could adequately be compensated for in terms of damages, whatever harm suffered cannot be said to be an irreparable harm. From the exhibits especially the bank guarantee provided in Ex ‘D3’ it notes that:  \r\n “The obligations of the guarantor under the guarantee shall be absolute and unconditional…”  \r\nWhen a bond in a contract is couched in such terms the courts would not permit applicants to frustrate the operation of such agreements by needless applications such as this one to prevent a beneficiary from having recourse o the security. On the whole the court is satisfied that the case of the Applicant has not been brought within the exception to necessitate the grant of an \r\n \r\n8 | P a g e  \r\ninjunction to restrain the call for the bank guarantee provided by the 2nd and 3rd Defendant/Respondents.   \r\nI accordingly dismiss this application as baseless and lacking merits. I will award cost of Ghc1.000.00 taking into consideration how long this application has stayed in the court with the hands of the 1st defendant tied from having recourse to the security.     \r\n         (Sgd.) Eric K. Baffour, Esq. Justice of the High Court   \r\nRepresentation:  \r\nPlaintiff/Applicant – present  Taiwo Akinyeye Represents the 1st Defendant/Respondent – Present  Wisdom Anothnio, Esq. for Plaintiff/Applicant – Present  Daniel Addo Asiedu, Esq. for 2nd Defendant/Respondent – Present  ', '	ERIC K. BAFFOUR, J', 'Civil', '', 'GJ/407/2016', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(616, 'KEYAUN MACHINERY LTD.   VRS   1. CAO YANG LING,      2. ASU BENEDICTION VENTURES ', '', 'links/cases/KEYUN MACHINERY LTD V 1.pdf', 'Yes', '', '', 'High Court', '\nJUDGEMENT   \nThe Plaintiff is a Limited Liability Company registered under the Laws of Ghana and avers that its core objectives are trading, mining, real estate, machinery and mining. The 1st Defendant is described as a former employee of 1st Plaintiff and the 2nd Defendant as “a company being used by the 1st Defendant to exploit the Plaintiff and divert resources of the Plaintiff.”  It is unclear from the pleadings, what   2nd Defendant’s corporate structure is, but I shall address the said issue later on in this judgment if that becomes necessary.   \nThe Plaintiff’s case is that the 1st Defendant was initially engaged as a clerk at its Anwia Nkwanta branch office but was later promoted to the position of shops Manager in charge of Plaintiff’s stores in Kumasi.  According to Plaintiff, sometime in January, 2015, it noticed the unusual absence of the 1st Defendant from duty.  The 1st Defendant continued to “behave strangely” in spite of the several warnings issued her by Plaintiff.   The Plaintiff therefore set up a monitoring team which upon investigation discovered that the 1st Defendant had since April 2015, hatched a plan to fraudulently divert resources and materials of her employers, the Plaintiff Company, to set up a rival company to compete with the Plaintiff’s business.  The Plaintiff avers that an internal audit of the accounts of 1st \n2  \nDefendant at the Kumasi store revealed that the 1st Defendant had taken advantage of her position to obtain illegitimate income and had between the months of May and July 2015, “fraudulently” remitted to China about Sixty-Five Thousand Ghana Cedis (GH¢65, 000.00) without the Plaintiff’s knowledge.   \nPlaintiff contends that it came to the inescapable conclusion that these monies were stolen from its coffers since the 1st Defendant could not have raised the said amount legitimately in Ghana as her salaries are paid directly into her accounts in China.  Plaintiff charged that, the 1st Defendant conduct constituted “fraudulent breach of trust and an abuse of her position in the company”.  \nThe particulars of fraud as alleged were given as follows:  \nA. As the manager of the Kumasi stores the 1st Defendant opened a secret store where she diverted goods and customers from the Plaintiff’s shops and sold them (SIC} for her personal benefits.  \nb. The 1st Defendant formed the 2nd Defendant with the support of one Israel Asubonteng with the purposes of exploiting the Plaintiff and using the Plaintiff’s resources and funds to order same goods from China for themselves.  \nc. Between May and July 2015, about Sixty-Five Thousand Ghana Cedis (GH¢65, 000.00) of sales belonging to the Plaintiff were not accounted for.          \nThe writ which was issued on the 26th of October 2015 was duly served on the 1st and  2nd Defendants, the same day i.e on the 26th of October , 2015  but they failed to enter appearance to the writ or to file a defence within the time frame stipulated by the rules. This Court therefore upon application by Plaintiff proceeded to hear Plaintiff’s evidence in accordance with Order 13(6) (1)&(2) of the High Court  (Civil Procedure)Rules, CI 47.    Wang Zheng, Plaintiff’s Managing Director testified on behalf of Plaintiff. He stated that   the 1st Defendant is a former employee of Plaintiff who served as manager of one of the Plaintiff’s shops at Anwia Nkwanta in Kumasi. He further described the 2nd Defendant as the 1st Defendant’s partner.  His testimony was essentially in line with his pleadings. The Plaintiff tendered the following exhibits in support of its case: \n3   \nEXHIBIT A- A24- a purported translation of Whats App messages sent by the 1st Defendant to her sister in china and a director of the 2nd Defendant  \nEXHIBIT B- a report on an internal audit conducted for Keyun Machinery Ltd.   \nEXHIBIT C & C1 - a combined transport bill of lading dated the 29th of July, 2015 which appears to name Defendants as consignees of 220 packages of crusher machine parts.  \nAt the close of its case, Plaintiff’s evidence stood unrebutted and unchallenged due to the failure or refusal of the Defendants to appear to defend the action. It is indeed trite learning that unchallenged or uncontroverted evidence will ordinarily lead to a case being resolved against the defaulting Party.      However, before proceeding to weigh up the evidence led by Plaintiff in this Court, I consider it necessary to refer to Plaintiff’s claim against the Defendants.  Plaintiff’s writ is endorsed with the following reliefs among others.  \na) “A declaration that as manager and employee of Plaintiff, the 1st Defendant of (SIC)  could not use resources of the Plaintiff to import goods of the same and similar nature in the name of 2nd Defendant for their personal benefit.  \nb) A declaration that the goods imported from China into Ghana by the Defendants are the property of Plaintiff and same be delivered to Plaintiff.   \nc) An order of perpetual injunction directed at the Defendants, their assigns workmen, agents, etc. form [sic] engaging in the same trade amongst plaintiff’s customers. “  \nFrom the above, it is quite clear that the first two reliefs endorsed on the writ seek declaratory reliefs from this Court.  I observe, given the circumstances of this case, that the Plaintiff after proceeding in accordance with order 10 rule 6 of CI 47, following the failure of the Defendants to enter appearance to Plaintiff’s writ, presently seeks default judgment \n4  \nagainst the said Defendants. Such applications in my view, are governed by order 13 rule 6(1) and (2) of CI 47.  Order 13 (6) rule 1 and 2 of CI 47 state as follows:  \n1) Where the Plaintiff makes against the Defendant a claim that is not of a description mentioned in rules 1 to 4 and the Defendant fails to file a defence to the claim, the Plaintiff may, after the expiration of the period fixed by these rules  for filing a defence, apply to the Court for judgement.  \n2) On hearing of the application, the Court shall give such judgment as the Plaintiff appears entitled to by the statement of claim (emphasis mine)  \nMy understanding of rule (2) above, is that, where a claim is for declaratory relief which, under rule 13 (1 ) of CI 47 falls under  “a claim of a description not  mentioned in rules 1 to 4”, Plaintiff will not be entitled to an automatic grant merely because the evidence is uncontroverted or the case uncontested but that the Court  in such cases will  give judgement as “Plaintiff appears entitled to by the statement of claim”.  In other words, the failure of a Defendant to put up a defence will not relieve the Plaintiff of his duty to adduce cogent evidence to satisfy the Court that he or she is entitled to the reliefs being sought. SEE the case of REPUBLIC V HIGH COURT ACCRA, EXPARTE OSAFO [2011] 2 SCGLR 966.  \nAgainst this backdrop, I now proceed to assess the evidence of the Plaintiff led in this Court. Plaintiffs representative tendered EXHIBIT A series, an alleged English translation of a verbatim transcript of WhatsApp conversations (originally in Chinese) purportedly held between 1st Defendant and her sister in China and another person described by the witness as a director of 2nd Defendant.  This was tendered in support of Plaintiff’s assertion that the 1st Defendant during the period that she served as manager of Plaintiff Company had secretly set up a rival company into which she diverted funds and resources belonging to Plaintiff Company for her personal benefit.   \nIn evaluating the probative value of EXHIBIT A series, I must, for the avoidance of doubt, state firstly, that this Court is in no position to ascertain if the English version of EXHIBIT A series is a true and accurate translation of its attached Chinese version, for, no one was \n5  \ncalled from the GHANA ASSOCIATION OF TRANSLATORS AND INTERPRETERS, the body which purportedly converted the alleged  conversation from Chinese into English, to give evidence in confirmation of this. But even if this Court were to proceed on the assumption that the said translation is accurate, EXHIBIT A series presents this Court with further difficulties. Besides, the fact that the said exhibit does not tell me the year in which the said conversation is supposed to have taken place on WhatsApp, there is nothing in the said exhibit that points me to which of the statements are attributable to the 1st Defendant, her sister in China or to the said director of the 2nd Defendant.  I will presume from the pleadings that Israel Asubonteng is the one being referred to as a director of 2nd Defendant in Plaintiff’s testimony but there is also the mention of a “friend” in EXHIBITS A1, A22 and A24. The evidence led in this Court does not tell me who this ‘friend” is.  I have attempted to wade through the confusion by a careful reading of the entire discourse in EXHIBIT A series but I must confess that my confusion has been further heightened by EXHIBIT A 23, in which this person who I all along assumed to be the 1st Defendant from the discourse, now appears to be informing the selfsame 1st Defendant of the scheduled arrival of 1st Defendants container on the 1st of September. Who said what in the EXHIBIT A series, is therefore anybody’s guess.  I also wish to reiterate at this point, the difficulty I face in assessing the culpability or otherwise of the 2nd Defendant due to the absence of any evidence regarding its corporate structure.  In stating the particulars of fraud alleged against the Defendants, Plaintiff stated in its paragraph 9(b) as follows:   \n“The 1st Defendant formed the 2nd Defendant with the support of one Israel Asubonteng with the purposes of exploiting the Plaintiff and using the Plaintiff’s resources and funds to order same goods from china for themselves.”   \nThere is no evidence before me regarding the formation or corporate structure of the 2nd Defendant and the nature of its objects.  Indeed by the nature of its averment, the Plaintiff was required to lead evidence not merely to establish how and when the 2nd Defendant came into existence but that it was formed by the 1st Defendant for the “purposes of exploiting the Plaintiff”.  However, there is hardly a scintilla of evidence in support of this allegation before this Court.  Mention is made of a director of 2nd Defendant but it is not clear from the pleadings or from its name whether the 2nd Defendant is an entity with separate legal status or not.  I say this because Section 15 of the Companies Act, ACT 179 \n6  \nrequires that the name of a Limited Liability Company ends with the word “limited” to make its true legal status easily ascertainable. The word “ventures” attached to the name of 2nd Defendant does not help the Court in ascertaining this fact.  \nThat said, the issue that faces this Court at this stage, is whether EXHIBIT A series is proof of the Plaintiff’s assertion that the 1st Defendant, using the 2nd Defendant as a conduit, imported goods of the same or similar nature as those traded in by the Plaintiff, with funds and resources she diverted  from Plaintiff Company.  Proceeding on the assumption that the English translation of EXHIBIT A series is correct, I will concede that EXHIBIT A series reveal frantic efforts by an employee to conceal certain clandestine business dealings from an employer.    \nThe following excerpts among others from EXHIBIT A series lead me to this conclusion:   \nEXHIBIT A1 for instance states “yes, I’m here, I dare not to make any call, my boss is monitoring me whether I’m doing the same business”.  \nEXHIBIT A5… “Sister, as you said l also want to try doing business her {SIC} using the advantage I have now”    There is also EXHIBIT A17 which states “I should tell my boss I am quitting the job after the first year before he finds out about my business.”  \nThis Court is in no doubt at all that the above excerpts from EXHIBIT A series clearly expose an employee, presumably, the 1st Defendant, as being secretly engaged in business that rivalled that of her employer and into which she obviously channeled most of her time and energies whilst she continued to receive a salary from Plaintiff.   As I have already stated, the deficiencies in this exhibit make me unable to conclude with any certainty which statements are actually attributable to the 1st Defendant even assuming without obviously admitting that she was one of the participants in the dialogue.  If the above quoted statements amongst other incriminating ones in EXHIBIT A series were made by her, the question that still needs to be answered, is whether this constitutes evidence of diversion of Plaintiff’s funds by the 1st Defendant.  I could agree with the Plaintiff to the extent that, the evidence in EXHIBIT A series, if established will show up the  1st Defendant as  having  \n7  \ndiverted Plaintiff’s time, as a resource into  her private business when the same ought to have been devoted to performing her duties as manager at the Anwia NKwanta shop.  However, is this proof of fraudulent diversion of Plaintiff’s funds and goods?  I do not think so. In his testimony on the 14th day of January 2016, Plaintiff’s representative testified as follows:    “A:  1st Defendant was working for me and was my manager at my regional office.  She had access to my computer and knew everything I was doing. She took advantage of my shop and was selling my products at a reduced cost in another shop and this made all customers move to the other shop… I then invited someone to check my records.  \nQ: when you say someone what do you mean?  \nA:  The products she was selling in the other shop were mine, she inflated the prices and kept the profit for herself.  Then I checked my computer for the records in my shop and realized 1st Defendant was selling my products at a lower rate. “  \nWhat then is the case of the Plaintiff? Is it that the 1st Defendant diverted Plaintiff’s products into her own business where she sold them at a reduced cost so she could solicit Plaintiff’s customers or that she, as manager of Plaintiff’s Anwia Nkwanta shop, inflated the prices of products sold in Plaintiff’s shop in a bid to make illegal profits for herself? In my thinking, it is not clear, from the answers given by Plaintiff’s representative, how the losses complained of arose. Be that as it may, the Plaintiff maintains that the Defendants misappropriated its funds and resources. Plaintiff avers that an internal audit revealed that between the months of May and July 2015, 1st Defendant remitted an amount of about sixty-five thousand Ghana cedis (GH¢65,000.00) to China. It is the Plaintiff’s contention that the said amount was stolen by the 1st Defendant from the coffers of Plaintiff as the 1st Defendant’s salaries were always paid directly into her account in China thereby making it impossible for her to have raised such an amount within this country.  I have taken time to carefully examine EXHIBIT A series and I note that mention is made in EXHIBIT A13 of an amount Sixty-Five Thousand Ghana Cedis (GH¢65,000.00). But there is nothing in the said exhibit which insinuates, even remotely that this amount was stolen from Plaintiff coffers by the 1st Defendant. Curiously, the attachment to EXHIBIT A13 which is supposed to contain the original message talks of Sixty-Five Thousand (65,000.00) coins and not Sixty-Five Thousand Ghana Cedis \n8  \n(GH¢65,000.00). Can it be said that the English version is a true and correct translation of the attached one in Chinese?  The answer is uncertain no matter how one looks at the said exhibit.  This, in my opinion, only serves to further complicate the issues at hand.    \nAccording to Plaintiff, an amount of about Sixty-Five Thousand Ghana Cedis (GH¢65,000.00) was stolen by the 1st Defendant and remitted to China for the purchase and importation of goods similar to those traded in by the Plaintiff..  Now, granting for the purposes of argument, that the 1st Defendant actually transferred the said amount to China for the said purpose, is that in and of itself evidence that the 1st Defendant raised this amount through fraudulent means, to wit by stealing from her employer? Can this Court rule out the possibility of the Defendants having taken a loan? EXHIBITS A6, A9, A19 and A20, in my thinking, suggest attempts at raising monies through various means including   applying for loans. This Court, is nevertheless being invited by Plaintiff, to conclude that the 1st Defendant stole these monies from Plaintiff because she could not have raised the said amount within this country as all her salaries were paid directly into her account in China.  No evidence was led regarding the 1st Defendants monthly income but, the question is, does the fact of the 1st Defendant’s salaries being paid directly into her account in China even if true, warrant such an inference?  To buoy up further, its allegations against the Defendants, Plaintiff tendered in evidence, EXHIBIT B,  an audit report showing a loss of Eighty Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢80,860.00) to Plaintiff Company  I must concede, that even in the absence of direct evidence of fraud or stealing by the 1st Defendant, the cumulative effect of the evidence led, could lead to a definite conclusion that the 1st Defendant is indeed guilty of misappropriation of the funds of Plaintiff.   It is for this reason that I have subjected EXHIBIT B to very meticulous scrutiny.   The said Exhibit, a report issued by SAMUEL ARYEE SERVICES (CHARTERED ACCOUNTANTS &MANAGEMENT CONSULTANTS) is headed REPORT ON INTERNAL AUDIT CONDUCTED FOR KEYUAN MACHINERY LIMITED.   It is the case of the Plaintiff that due to the suspicious conduct of 1st Defendant, it commissioned an internal audit, which revealed a loss of over Eighty Thousand Ghana Cedis (GH¢80,000.00) to the Plaintiff Company. The witness testified that these monies were found to have been misappropriated by 1st Defendant who used same in importing goods from China into this country ultimately for her personal benefit.  I find that the pleadings only disclose an audit having been conducted for the months of May to July, 2015 when a loss of about Sixty-Five Thousand Ghana Cedis (GH¢65,000.00) was \n9  \nuncovered. EXHIBIT B does not specify the said loss of Sixty-Five Thousand Ghana Cedis (GH¢65,000.00) for the said period of May to July 2015 as pleaded but I will surmise that the alleged loss of Eighty Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢80,860.00) stated in EXHIBIT B includes the said amount and covers the said period as it is said to be for the period starting from January to July 2015. As indicated, my examination of the said exhibit has been quite thorough but I find nothing in it connecting the 1st Defendant to the alleged loss of Eighty Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢80,860.00). There is nothing in EXHIBIT B suggesting that it is a report of an internal audit conducted in respect of the Anwia Nkwanta branch of Plaintiff Company or that the said audit related to the books of the 1st Defendant. To my mind, bare evidence of a shortage in the accounts of Plaintiff Company without proof of who actually caused the said shortage does not enable this Court to make a finding of diversion of funds against the 1st Defendant. By the pleadings, the figure of “about Sixty-Five Thousand Ghana Cedis (GH¢65,000.00)” appears to be a close approximation of the amount allegedly misappropriated by the 1st Defendant.  EXHIBIT B however fixes the total loss to Plaintiff Company at Eighty Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢80,860.00).  One wonders who or what swelled the figure up to Eighty Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢80,860.00). One wonders who was responsible for the additional loss of Fifteen Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢15,860.00).   No evidence was led in explanation. Moreover, it is unclear to me from the “findings and conclusions “reached in EXHIBIT B, who exactly is being referred to as “the Manager’ or how the conclusion was reached that “the Manager ……..sold at her own convenience[sic]  prices in other [sic]  to get extra income for herself, hence fraud has set in”.  Indeed reference to “the Manager” in EXHIBIT B could be reference to any other manager of the Plaintiff Company and not necessarily the 1st Defendant.  I am therefore not enthused to attach any weight to the said Exhibit as proof of stealing or fraud against 1st Defendant.   \nHaving found EXHIBITS A and  B insufficient to prove the allegations leveled against the Defendants, I do not think EXHIBITS C and C1 will make any difference to the position taken by this Court.  But I still consider it worth commenting on certain observations made of the said exhibits. EXHIBITS C and C1 are a combined transport bill of lading tendered to prove that the Defendants imported for sale, goods of the same or similar nature as those traded in by the Plaintiff.  At the risk of overburdening this judgment, I wish to state that EXHIBITS C and C1 were only admitted for their circumstantial value and not to prove the \n10  \ntruth of their contents. See Section 165 of the Evidence Act, NRCD 323. The said exhibits appear to be photocopies of an original bill of lading. Plaintiff’s representative testified that he obtained them from the shipping line that shipped in the 1st Defendants goods. No explanation was offered for his failure to produce the original.  There is however something that I find curious about EXHIBIT C. I observe that the top left hand corner of the said exhibit appears obliterated. No explanation was given by the witness for this apparent erasure. I am therefore not persuaded that EXHIBIT C is an accurate reproduction of the original bill of lading as mandated by Section 164 of NRCD 323. This renders the authenticity of the said exhibit rather suspect in my opinion. In any event, I do not consider it necessary dwell unduly on the weight to be attached to this exhibit since it is quite clear from my evaluation so far of the evidence led by Plaintiff that I do not find the Plaintiff”s claims established.   \nAs already pointed out, declaratory reliefs are not automatically granted in default of defence. Consequently, a Court will not grant a declaratory relief unless a plaintiff leads cogent evidence showing that he is entitled to such relief.   Verity CJ in explaining this legal position in the case of EMEGWARA V NWAIMO  [1953] 14 W.A.CA 347.stated as follows:  \n“ It is just as well that it should always be borne in mind that the making of such a declaration is discretionary and in the exercise of the Court’s equitable jurisdiction.  A declaration of title will only be made when the Court is fully assured first as to the precise nature of the title in respect of which the declaration is sought and secondly that there is evidence by which the Court is satisfied that a  title of the nature claimed has been established.”  \nThe applicable law on the burden imposed on a party to prove what that Party asserts is clearly stated in Section 17 of the Evidence Act, NRCD 323 as follows: Section 17 except as otherwise provided by law:  \na) 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. b) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.   \n11  \nThus the SUPREME COURT in the case of OKUDZETO ABLAKWA NO2 V. AG AND ANOTHER emphasized: “… a Party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17(b) which emphasizes on the Party on whom lies the duty to start leading evidence”.  \nBy Sections 10 and 12 of the Evidence Act, NRCD 323, the standard of proof in civil matters is proof on a preponderance of probabilities.  However, as disclosed by the pleadings, at the heart of the Plaintiff’s claim against the Defendants is an allegation of fraud. Plaintiff therefore bore the rather onerous burden, not only to prove its case but to prove same beyond reasonable doubt. This position is clearly stated in Section 13 of NRCD 323 as follows:  \n“In any civil or criminal action the burden of persuasion as to the commission by a Party of a crime which is directly in issue requires proof beyond reasonable doubt”.  \nThis notwithstanding, I consider it worth stating here, that I do not disregard the real likelihood that the facts and circumstances of this case, could arouse in an objective mind a  reasonable suspicion of misconduct on the part of the 1st Defendant.  The Black’s Law Dictionary, 8th Edition defines suspicion as “the apprehension or imagination of the existence of something wrong based only on inconclusive evidence or possibly even  no evidence.”  \nReasonable suspicion is further defined as “a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.”  It is clear from the above definitions, that suspicion, no matter how grave, cannot amount to proof in law.  The decision to dismiss this action therefore, has not been arrived at without some sympathy for Plaintiff but this Court is only permitted to reach a decision based on the evidence placed before it. The Plaintiff in my opinion, presented a poor case and this Court unfortunately cannot come to its aid.  I cannot however conclude this judgment without questioning the propriety of the Plaintiff’s relief (c) which seeks an order perpetually restraining the Defendant, their agents assigns etc. from engaging in the same business amongst Plaintiff’s customers. The general legal position is that any contract in restraint of trade is, (except in very exceptional cases) against public policy and therefore void. SEE THE CASE OF HERBERT MORRIS V SAXELBY [1916]1 AC 688. There is no \n12  \nevidence before this Court that the 1st Defendant agreed with the Plaintiff as part of her contract of employment not to set up a rival business upon leaving Plaintiff’s employ.  It is however very doubtful, even if such an agreement existed, if this Court would have been empowered to make an order  perpetually (emphasis  mine ) restraining the Defendants from engaging in the same trade among Plaintiff’s customers as such an order  will clearly be unenforceable and consequently void.    In conclusion and for the reasons advanced in this judgment the Plaintiff’s action is hereby dismissed. DECISION Action dismissed      \n        (SGD)                     MRS. AKUA SARPOMAA AMOAH               JUSTICE OF THE HIGH COURT   \naey/…   ', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'CM/0013/2015', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(619, 'LANDMARK SECURITY LTD.  VRS   ANGLOGOLD ASHANTI GHANA LTD', '', 'links/cases/LANDMARK SECURITY v ANGLOGOLD ASHANTI.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nPlaintiff claims the following reliefs endorsed on its amended writ as follows:  \r\ni. An order directed at the defendant to pay the amount of One Hundred and Thirty Thousand, One Hundred and Seventy Nine Ghana Cedis, Eleven Pesewas (Ghc130.179.11) as compensation for the termination of the contract to the agreement governing the contract.   ii. Interest on the said amount indicated in (i) above at the prevailing bank rate from 1st September, 2014 till date of final payment.  \r\niii. An order directed at the defendant to pay the plaintiff’s monthly contract rate terminating the contract in lieu of notice to the plaintiff.  \r\niv. Interest on the said monthly contract rate at the prevailing bank rate from the date of termination of the contract till date of final payment.  \r\nv. Damages for breach of contract. \r\n  \r\nvi. Cost including legal fees. \r\n \r\n2   \r\nvii. Any other just/equitable order that the court may deem fit     In the amended statement of claim plaintiff avers that it entered into a contract with the defendant for the provision of private security services at defendant’s offices at Gold house, Kotoka International Airport, PHU Tema, Odorkor Guest House and Windilands Guest house on November 1, 2013 for a duration of two years even though each party had the option to terminate the contract by giving seven days notice.  \r\nPlaintiff then contends that despite the fulfillment of its bargain the defendant without any notice and stated reason, called an officer of the plaintiff’s company on 29th August, 2014 to pull all plaintiff’s security guards on duty out of the premises of the defendant’s properties. Defendant followed it up with a letter on 31st August, 2014 to terminate the contract with effect from 1st of September, 2014. Plaintiff upon receipt wrote to the defendant demanding a compensation of Ghc130.179.11 in what plaintiff claims to be in line with the contract between the two and also industry and business rates at the time of the termination. To plaintiff the defendant has failed to pay the compensation for the termination of the contract. And following the termination the defendant also failed to pay plaintiff the monthly contract rate of USD$12.047.00 in lieu of notice. Hence the reliefs that plaintiff seeks before the court.    \r\nDefendant has denied the claims of the plaintiff and joined issues with the plaintiff on the averments made in the statement of defence. Defendant then proceeded to set out the basis of its action of termination of the contract between the two. To defendant it came to light that one of its employees Frank Parker Amoyaw was a director of Plaintiff’s company and this was a conflict of interest situation. And the said director of Plaintiff’s company failed to disclose this conflict of interest situation to defendant. Besides as the termination was in accordance with the notification of award document as well as the condition of the Tender it had breached no contract. To defendant as far as a breach of conflict of interest is concerned it may terminate without notice and hence plaintiff was not entitled to its claim before the court.  \r\nAs the pretrial conference failed to settle the matter between the parties, the following were agreed upon as the issues for trial: \r\n \r\n3   \r\n1. Whether or not the plaintiff was duly awarded a contract 2. Whether or not the defendant breached the contract between the parties 3. Whether or not plaintiff is entitled to its claim  \r\nANALYSIS OF THE EVIDENCE AND APPLICATION OF THE LAW  \r\nA reading of the pleadings and the evidence of the Plaintiff appears to me that he claims damages or what he terms as “compensation” for what plaintiff alleges to be unlawful termination of a two year contract it had with the defendant for the provision of security services at certain properties of the defendant in Accra. It is a notorious and settled principle of evidence that a party making a claim bears both the burden of producing evidence  and burden of persuasion, the two being components of the burden of proof. The burden of persuasion is defined in section 10 of the Evidence Act to mean:  \r\n“For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of tribunal of fact or the court   (2) the burden of persuasion may require a party  \r\n(a) to raise a reasonable doubt concerning the existence of a fact or  \r\n(b) to establish the existence or non existence of a fact by a preponderance of the probabilities or proof beyond reasonable doubt”  \r\nThe burden of producing evidence on the other hand is defined in section 11 as follows:  \r\n“(1)For the purpose  of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.  \r\n \r\n4  \r\n(4) In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of a fact was more probable than its non existence.  \r\nPer section 14 of the Decree, 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 whiles section 17 governs the allocation of the burden of producing evidence. It notes that the burden of producing evidence of a particular fact is on the party against whom a finding on the fact would be required in the absence of further proof and that the burden of producing evidence is initially on the party with the burden of persuasion as to the fact.    \r\nIn this regard Dr. S. Twum, JSC noted in the case of BAKER-WOODE v NANA FITZ [2007-2008] SCGLR 879 that:   ‘the common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim’   The Supreme Court had earlier reiterated this principle in the case of ABABIO v AKWASI III [1994-95] GBR 774 where the court noted as follows:   \r\n“a party whose pleadings raised an issue essential to the success of his case assumed the burden of proving such issue. The burden only shifted to the defendant when the plaintiff has adduced evidence to establish the claim”  \r\nThe plaintiff having made a number of allegations and praying for remedies, how did he go about discharging its obligations under the law? And how did the defendant rebut any claim made by the plaintiff?   Plaintiff gave evidence through its representative and Chief Operation Officer Nene Narteh Wayo III in line with plaintiff’s pleadings. Plaintiff in pursuance of its objective of proving its claim tendered the following documents at the Case Management Conference: Ex ‘A’ being the notification of award of contract letter, Ex ‘B’ an executive evaluation of the bidders of the contract and the decision to award the \r\n \r\n5  \r\ncontract to the plaintiff. Ex ‘C’ is a letter from defendant’s manager with its attachment.  The Ex ‘D’ is the termination of contract letter, Ex ‘E’ are series of email exchanges between officials of the parties whiles Ex ‘F’ is plaintiff’s response to Ex ‘D’ which terminated the contract. Ex ‘G’ is an invoice by plaintiff for what he deems to be compensation for the termination of the contract whiles ‘H’ and ‘J’ constitutes defendants response and plaintiff’s calculation for arriving at the figure it seeks respectively. Defendant on the other hand tendered through its Administrative Manager, Edward Jonah Aggrey-Fynn; Ex ‘1’, a conflict of interest declaration form signed by Frank Parker Amoyaw, the majority shareholder of plaintiff company who also happened to have been an employee of defendant at the time the contract was awarded to plaintiff company, Ex ‘B’ being a search results from the Registrar General’s department on Plaintiff’s company and finally the letter of defendant that purported to terminate the contract with the plaintiff.  \r\nEx ‘A’ tendered by the Plaintiff’s representative, which is the notification of award of contract seems to form the basis for the resolution of much of the conflict in this case. Defendant’s counsel in cross examining the representative of the plaintiff appears to concur in the significance of Ex ‘A’ in the following:  \r\nQ: Take a look at Ex ‘A’. Apart from Ex ‘A’ which notified you of the award of this contract to you and signed by the defendant, there is no other agreement executed between you and the defendant company in respect of the contract  \r\nA:  Yes, my Lord this is the document that authorized us to mobilize and take over the contract”  \r\nImplicit in the question was an admission by the defendant that per Ex ‘A’ there was an agreement between the parties. Defendant’s representative, Edward Aggrey-Fynn in his witness statement at paragraph 5 notes that “on the 1st of October, 2013 the defendant by a notification of award of contract informed the plaintiff of the award of a contract to provide security services …”  \r\nIt is therefore clear that both parties were ad idem that a contract came into being by virtue of Ex ‘A’. And the rule is that where a party makes an averment and that \r\n \r\n6  \r\naverment is admitted or is not denied then no issue is joined on that matter for determination. See Brobbey J. (as he then was) in HAMMOND v AMUAH [1991] 1 GLR 89. I was therefore surprise to see the first issue for determination being whether or not plaintiff was duly awarded a contract. There seems to be no controversy at all regarding that as no issue was joined either in the pleadings or during trial for that to have been slated as an issue for determination. As both parties were on the same page of the existence of a contract between them I will proceed to determine the crucial issue as to whether plaintiff proved a breach of the contract by the defendant when it terminated same. As a corollary to this issue will also be a determination as to the claim of an amount of Ghc130.179.11 and $US12.047 being claimed by the plaintiff as compensation and monies that ought to be paid in lieu of notice for termination of contract respectively.   \r\nNene Narteh Wayo III in his witness statement gives a glimpse of the claim of a breach of contract by the defendant first in paragraph 6 of the statement that the contract spelt out the mode of termination by each party giving a seven days notice to the other. To Nene Nartey Wayo III the defendant’s Human Resource Manager just called the plaintiff on the 28th of August, 2014 to pull out plaintiff’s security guards from defendant’s offices without having provided the seven days notice. And it was not until three days later that defendant wrote purporting to give the seven days notice when orders had previously been given to the Plaintiff to vacate the premises of the defendant.  \r\nDefendant contest the need to give any notice at all to the plaintiff in view of what it claims to be serious breaches of its ethical issues regarding non disclosure of conflict of interest situation for the 75% majority shareholder of plaintiff’s company in the person of Frank Parker Amoyaw. Plaintiff does not dispute that the said Frank Amoyaw is the majority shareholder and was an employee of the defendant’s company at the time that it won the bid to perform the security services for the defendant. From Ex ‘C’ which was part of the tender package delivered to the bidders, specifically under section C 14 it states as follows:  \r\n“In acceptance of the contract the contractor undertakes to act only on the basis of utmost good faith and trust in the execution thereof. Should the contractor commit an act which may compromise the ethical relationship \r\n \r\n7  \r\nbetween the contractor and the company or which is contrary to the company’s ethics, with which the contractor declares itself fully familiar, then the company shall have the power at its discretion to terminate the contract forthwith”  \r\nExhibit “1” tendered by the defendant is the declaration of conflict of interest form signed by the majority shareholder of the plaintiff. Frank Amoyaw ticked “no” to questions that asked whether he expected any financial reward or interest in a company that is doing or has expressed interest in doing business with the defendant, any company which he has a working relationship with or is a director or is a member or a director or a beneficiary of a company that has expressed interest in doing business with defendant etc. It is true that Frank Amoyaw signed this form on 9th March, 2011 and the contract was awarded on 1st October, 2013 and he could not at the time of signing the conflict of interest form have foreseen that his company was going to bid for a contract two years later. Nonetheless, when the situation arose when his company was bidding for the contract the said Frank Amoyaw was bound to have declared his interest in plaintiff’s company and his failure to do so was not accidental but deliberate as there is evidence on record that Frank Amoyaw had access to confidential information in defendant’s company to assist plaintiff to make its bid successful. One such information is Ex ‘B’ which is executive adjudication and relates to confidential information from the defendant concerning the bidders and how defendant went about choosing plaintiff. How did plaintiff get this information? The answers of Plaintiff’s representative in cross examination show how he was economical with the truth in the following exchanges:  \r\n“Q: Take a look at Ex ‘B’ it was not addressed to you, was it?  \r\nA: No it wasn’t, My Lord  \r\nQ: In fact it is an internal document of the defendant company. Isn’t it  \r\nA: Yes My Lord  \r\nQ: I am putting it you that such an internal document could only have come to your knowledge with the assistance of an employee of defendant  \r\n \r\n8  \r\nA: Yes My Lord  \r\nQ: I am further putting it to you that defendant company will not send such confidential document with information about your fellow bidders to you  \r\nA: My Lord this document was sent to us through our email  \r\nQ: I am further putting it to you that you are privy to such internal document because your majority shareholder Frank Amoyaw was at the time an employee of the defendant company.  \r\nA: Frank Amoyaw is my younger brother and at the time an employee of AGA but never part of the tender committee. Besides he was stationed at Obuasi”  \r\nThe plaintiff never produced the email that had Ex ‘B’ as the attachment and the inference drawn by counsel for the defendant cannot be far from the truth that Ex ‘B’ got into the custody of plaintiff through the instrumentality of the majority shareholder of plaintiff. As a matter of law defendant as an employer of plaintiff was not even bound to give any reasons at all for the termination of the contract provided it complied with the procedure set out by the parties through their terms of engagement. See the cases of BANNERMAN-MENSON v GHANA EMPLOYERS ASSOCIATION [1996-97] SCGLR 417; WILLIAM AMPIAH v GHANA COCOA MARKETING COMPANY (Unreported) H1/43/12 dated 21st March, 2013.  From the evidence on record as reflected in the analysis above I find as a fact that save for the number of days notice, defendant did not breach a term of the agreement when it terminated the contract. The only matter worth considering will be whether the defendant complied with the requisite days notice that ought to be provided in Ex ‘A’.  When defendant caused plaintiff to withdraw all his workmen from defendant’s sites and its attention was drawn to the lack of notice not given, defendant purported to provide the notice on 31st August, 2013 per Ex ‘D’. This was a clear admission that defendant was bound to provide the necessary notice of termination and the contention of counsel for defendant that it had the right to terminate without notice when it has to do with conflict of interest cannot be right. Ex ‘D’ was written to plaintiff three clear days after it had stopped plaintiff from carrying on with the work. The plaintiff had provided services for virtually the entire month of August, 2014 and I think was \r\n \r\n9  \r\nentitled to be paid for the month in lieu of the requisite days notice not having been adequately provided. The court can find guidance in termination of such nature under sections 15 and 17 of the Labour Act, Act 651, even though this is not a labour issue before the court. Those sections set out matters of notices of termination of employment and the requisite payments that ought to be made.   \r\nTaking some guidance also from sections of the Labour Act, Act 651 I find that for failing to give the seven days notice to the plaintiff and as the contract was payable on monthly basis the defendant is liable to pay to the plaintiff an amount of $US 12,047 being the monthly payment payable to the plaintiff for the provision of security services to the defendant.    What then of the claim of Ghc130.179.11 being claimed by the plaintiff. Having found that there was nothing unlawful about the termination of the two year contract save the non provision of adequate notice of seven days for the termination of the contract, the claim for Ghc130.179.11 as compensation should ipso facto be dismissed. Nonetheless, I cannot simply dismiss it without touching on some fundamental legal issues that this claim of plaintiff raises for the consideration of the court. The basis of the claim of this amount according to Nene Wayoe III is as a result of non provision of notice for termination and a payment that is in line with industry practice.  \r\nPlaintiff admits that the only document that defines the terms of the parties was Exhibit ‘A’ and yet plaintiff proceeds to make the demand for Ghc130.179.11 as if Ex A’ makes provision for such payment. Counsel for defendant rightly exposed this as misconceived in the following:  \r\n“Q: You have told this court that the only document defendant executed for you was the award of contract notification  \r\nA: Yes My Lord  \r\nQ: Does this Award of Contract Notification entitle you to submit such an invoice  \r\nA: Yes My Lord \r\n \r\n10   \r\nQ: Take a look at Ex ‘A’ which is the award of Notification. Can you please point to the part that entitles you to send that invoice.  \r\nA: My Lord there is no point in this letter indicating that but we believe we had a running contract with the defendant company and that it was wrongfully terminated and that is why we put in those claims  \r\nQ: I put it to you that the agreement between the parties did not entitle you to make to any compensation  \r\nA: My Lord we believe we are entitled to compensation”.  \r\nIt is trite learning regarding parol evidence rule that generally once parties to an agreement have reduced their contract into a written form, the parties will be debarred from adducing extrinsic evidence to contradict what they have written. Going through Ex ‘A’, I am unable to find anywhere that makes plaintiff entitled to the whooping amount that he demands. Indeed plaintiff’s representative could not find anything from the document except to resort to his own beliefs and views of what he fantasizes to be entitled to from the defendant. The exceptions to the parol evidence rule is where the written document was not intended to contain the whole of the agreement between the parties as seen in the case of ALLEN v PINK [1838] 4 M&W 140; two circumstance where oral evidence may be adduced to prove the existence of a custom as it was in the case of GILLESPIE BROTHERS v CHENEY EGGAR & CO [1896] 2 QBD 59; three where there is evidence to show that a contract is invalid due to misrepresentation, mistake, fraud or non est factum as it was in the case of CAMPBELL DISCOUNT v GALL [1961] QBD 431and four where a party is calling for rectification of the written document as in the case of MANN v NUNN [1874] 30 LT 526.  \r\nWhich of the exception did plaintiff found his claim? I find none as he advanced none before the court. And it is not the duty of the court to embark upon any journey of discovery into uncharted waters. After all the court is not Christopher Columbus or better still Don Diego D’zambuja to set sail on a mission to discover furthermost territories of evidence and law to bolster the floundering claims of a party. The claim \r\n \r\n11  \r\nfor the Ghc130,179.11 had never been part of the terms of the contract. The express terms of the contract does not admit of the claim of the plaintiff. Neither are there any implied terms by virtue of a statute or custom or common law.   \r\nAnd even if it had been by virtue of the tender documents as plaintiff sought to convey, plaintiff would still not be entitled to any such an amount as it is founded upon a termination of the contract that constitutes a breach or flies in the face of the agreement. And I find none of such here.  \r\nPlaintiff has also mounted a strong claim that the termination was unlawful due to the fact that the letter in the form of Ex ‘3’ was signed by a person not authorized by the express terms of the agreement between them to sign such letter of termination. Ex ‘3’ was signed by Anthony Adetse, Human Resource and Administration Manager of defendant. It is true that Ex ‘C’ the tender document which was provided plaintiff at the time of bidding for the contract demands that such letter be signed under clause 15: 5 by the Senior Vice President of defendant. Comparing this Ex ‘C’ with ‘A’ which awarded the contract to the plaintiff, Ex ‘A’ did not restrict the persons that were entitled to sign the termination letter. In any event the  court has found that Ex ‘3’ sent to the plaintiff three days after the termination was procedurally flawed and is on that basis that the court finds the claim for $US12,047 well made out. That will not in any way lead to the establishment of the claim of Ghc130,179.11.   \r\nFrom the above, the court will dismiss the claim of the plaintiff in its relief (i) as unproven. So also is relief (ii) as there cannot be an interest on an unproven claim. The relief (iii) would be granted for the payment of $US 12,047 or its cedi by the defendant to the plaintiff. I am however unable to grant relief (iv) for the payment of interest on the said amount for the following reasons: Per Ex ‘3’ written on 31st December, 2013 the defendant indicated that a cheque will be made available for collection by plaintiff. Edward Aggrey – Fynn under cross examination again noted that defendant made a cheque available for payment to plaintiff for lack of notice but plaintiff failed to collect the cheque. This claim was not contradicted by the plaintiff and I find as a fact. Interest in law is paid as a price for the use of one’s money. Interest payment may arise by agreement between the parties, by the usage of the trade as developed by the lex mercatoria in Europe in the middle \r\n \r\n12  \r\nages, damages awarded by the court or by the provisions of a statute. However, in this instance where the defendant had made available a cheque for collection and plaintiff refused to collect it believing that it was entitled to a greater amount, then defendant cannot be asked or be called upon by the court to pay a price in the form of interest for monies it had made available for collection. That relief sought for interest on the $12,047 is hereby refused   \r\nThe claim for damages is also dismissed. In the exercise of the discretion of the court in the award of cost; I am not unmindful that save for the award of $US12,047or its cedi equivalent in favour of plaintiff, his entire claim has been dismissed by the court, I will award cost of Ghc 4.000.00 in favour of the plaintiff.      \r\n          (Sgd.) Eric K. Baffour, Esq. Justice of the High Court   ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'RPC/84/2015', '', '', '', '0000-00-00', ''),
(620, 'MAHMOUND’S JEWELLERY LTD. VRS G. T. BANK (GH) LTD ', '', 'links/cases/MAHMOUNDS JEWELRY v G.T. BANK.pdf', 'Yes', '', '2016', 'High Court', 'RULING This is a motion by the Applicant, Guaranty Trust Bank, seeking an order for the dismissal of the suit and the subsequent judgment obtained and in the alternative applicant prays for the following reliefs: i. An order setting aside the service of the entry of judgment on the applicant. ii. An order to stay the execution of the default judgment entered against the defendant pending the determination of this application. iii. An order setting aside the service of the writ and statement of claim on the applicant/interested party. iv. An order to restrain the plaintiff from executing the judgment against the applicant. In an affidavit deposed to in support of the application by one Miss Chineze Ikeduba, 2 she claims that the processes in this suit has wrongly been served on the applicant who is not a party to the suit and that the applicant is completely different from the defendant to this suit. Besides, that there is no company in Ghana by name as G.T. Bank (GH) Ltd, the defendant in this suit. As there is no such company in Ghana it was not proper for the processes to be served on the applicant. This has vehemently been opposed by the Plaintiff/Respondent contending that the applicant is only interested in hiding under the veil of incorporation to perpetuate fraud not only on the Plaintiff but on the public as whole. This is because the defendant has always held itself out to the general public under the trade name and logo as G.T Bank. And the applicant herein is the same as the Defendant that has been sued as the two are not two different entities. In a reply by way of a supplementary affidavit filed in support of the application the applicant admit that the GT Bank that is usually found in a square in the background on its documents as a logo is a registered trade mark of the applicant and was entitled to use that trade mark to promote its business. And that the applicant has always dealt with the plaintiff in its capacity as Guaranty Trust Bank and not G.T Bank. There is no gainsaying as contended by the applicant that a void judgment ought to be set aside by a court ex debito justitiae. As noted by Akuffo –Addo JSC (as he then) in the well-known case of MOSI v BEGYINA [1963] 1GLR 337that: “Where a judgment or an order is void either because it is given or made without jurisdiction or because it is not warranted by any law or rule or procedure, the party affected is entitled ex debito justitiae to have it set aside, and the court or a judge is under a legal obligation to set it aside, either suo motu or on the application of the party affected. No judicial discretion arises here. The power of the court or a judge to set aside any such judgment or order is derived from the inherent jurisdiction of the court to set aside its own void orders and it is irrespective of any expressed power of review vested in the court or a judge; and the constitution of the court is for this purpose immaterial. Further, there is no time limit in which the party affected by a void order or judgment may apply to have it set aside”. 3 See also AMOABIMAA v BADU (1957) 2 W. A. L. R. 214; REPUBLIC v HIGH v COURT, ACCRA, EX PARTE ABBAN [1992-93] GBR 702. The question for my determination would be whether the institution of the action against G.T Bank instead of Guaranty Trust Bank and the service of all the processes on Guaranty Trust Bank with subsequent judgment obtained can be said to be nullity and therefore void. Going through the application and the affidavit filed in support, the applicant has exhibited its certificate of incorporation and known to the Registrar of Companies as Guaranty Trust Bank Ghana Ltd. The applicant also admit that the name G.T Bank with a yellow background that appears on most of its documents is its registered and recognized trade mark. And ought not be sued in its trade mark name but in its name registered name . I perfectly agree that it is correct that a party ought to be sued in its name but no other name. Nonetheless the applicant was duly served with the writ and statement of claim and yet choose only to return the writ with a covering letter that it is not G.T Bank but Guaranty Trust Bank. It would have appeared to the applicant when it returned those processes that it recognized and knew the plaintiff. Again it recognized that the substance of the claim of the plaintiff was not totally strange to the applicant. It was these recognitions of a dispute between the applicant and plaintiff that ignited the action of the applicant in Suit No. CM/0265/16 before my sister Jennifer Dodoo (Mrs.). I think the rules of procedure amply lay out the course of action opened to a party who in circumstances upon service of writ think that it has not properly been sued or been served or that it was not a proper party to the action. For Order 9 Rule 8 of the High Court (Civil Procedure) Rules, C.I 47 states as follows: Application to set aside writ 8. A defendant may at any time before filing appearance, or, if the defendant has filed a conditional appearance, within fourteen days after filing appearance, apply to the Court for an order to (a) set aside the writ or service of the writ: 4 (b) declare that the writ or notice of it has not been served on the defendant ; or (c) discharge any order that gives leave to serve the notice on the defendant outside the country. Throwing light on the provision supra in the case of REPUBLIC v HIGH COURT; ACCRA, EX PARTE ARYEETEY, [2002-2003] SCGLR 537 the Supreme Court noted as follows: “ A conditional appearance was to enable a defendant who intended to object to the issue or service of a writ or notice of a writ on him, or the jurisdiction of the court, to apply to the court to set aside the writ or notice of the writ or the service thereof on him. Such an application might encompass any irregularity or defect in the issue or service of the writ, or notice of the writ…” It is the opinion of the court that when the applicant realized that in terms of substance there was an answer it needed to provide to the plaintiff for the action but only that its incorporated name was not G.T Bank but Guaranty Trust Bank; then under that circumstance it was not opened to the applicant to return the processes to the Registrar with a covering letter. The course opened to them was to have entered appearance under protest (conditional appearance) or not to enter appearance at all but seek directly by way of motion to set aside the writ or service of same on it. I am fortified in this position by the case of REPUBLIC v THE DISTRICT MAGISTRATE, PRESTEA; EX PARTE NKANI [1992] 2 GLR 386 where issue of service of processes on the applicant was made but he refused to attend court leading to a judgment being obtained against him. The basis for not responding to the summons by the applicant was that his name had wrongly been stated even though he was pointed out by the plaintiff to the bailiff as the defendant. The Magistrate suo moto amended his name leading to this incarceration when summons to show cause was filed. After his release he brought an application for certiorari. In dismissing his action the learned High Court Judge, Adjabeng J. (as he then was) noted as follows: “since the applicant admitted that the person interested pointed him out to the 5 bailiff as the one he had sued before he was served with the process and furthermore, the Courts Ordinance, Cap 4 (1951 Rev.), Sched. II made a certificate of service on the writ of summons prima facie proof of service, that was evidence that the writ had been properly served. In the circumstances, if the applicant had only been wrongly described in the writ of summons the proper thing for him to have done was to have gone to court and had the name amended. Accordingly, the trial magistrate was right in proceeding to hear the suit and giving judgment in the absence of the applicant; and subsequently correcting the name when the misdescription came to his knowledge” The applicant knew perfectly that if it had exercised that option, the court would have not set aside the writ but call for amendment of the name of the defendant to correctly reflect the applicant herein and therefore choose to behave like the proverbial ostrich keeping its head in the sand and deliberately being oblivious of the titanic battle going on around him. It is curious to find that what he should have done is among one of the alternative supplications he is making before the court and that is for the court: “to set aside the service of the writ of summons and statement of claim”. If the applicant was entitled to ask the court for such a relief why then did he wait for so long in not responding to the writ by taking action. This was with intent to stultify the whole process on a pure arid technical ground that it is not G.T. Bank hoping to gain some advantage. If that is the case, then one cannot say that the judgment in respect of some of the reliefs plaintiff sought before the court was a void judgment within the terms noted by the Supreme Court in MOSI v BEGYINA supra. This court was imbued with jurisdiction to the determination upon attachment of due service of the processes on the defendant by an official of the court that the defendant upon service has obstinately and deliberately not entered and filed a defence to the action and hence the judgment that was obtained. I will accordingly refuse to set aside the judgment as it was made within the exercise of the jurisdiction of the court and the court was duly satisfied that the defendant was served. After all the services were effected on not the non-existent entity applicant claim but on Guaranty Trust Bank, the applicant herein. 6 I will rather order the plaintiff to amendment the name of the defendant in the writ, statement of claim and the entry of judgment filed to reflect the correct name of the defendant but decline the invitation to set aside all those processes. I am guided by Order 16 Rule 5(3) of the High Court (Civil Procedure) Rules, C. I 47 that: “An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued” That indeed was the subject of the decision in a 6-1 majority in the case of HANNA ASSI (NO 2) v GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD. [2007-2008] 1 SCGLR 16 that a court may at any time as the court think just, amend any error or defect in any proceedings. Indeed G.T Bank on the writ as defendant was a genuine mistake for Guaranty Trust Bank and the conduct of Guaranty Trust Bank in taking the processes served and returning to the Registrar when he should have sought for correction has been done, suo periculo (at its own peril), and save for the order for plaintiff to amend the name of the defendant, and proceed with its execution processes, the application is dismissed as unmeritorious. I will award cost of Gh¢ 1.000.00 in favour of the Plaintiff/Respondent. (Sgd.) Eric K. Baffour, Esq. Justice of the High Court 7 Representations: Plaintiff represented by Abdul Kadil – Present Applicant, Eustale Bast-Plange – Present Jonathan Sarblah, Esq. for Plaintiff – Present Kwbena Adu-Kusi, Esq. for Applicant – present ', 'ERIC K. BAFFOUR, J', 'Civil', '', 'CM/0206/2016', '', '', '', '2016-06-16', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(621, 'DOROTHY ANIM  VRS   SIC INSURANCE COMPANY LTD', '', 'links/cases/MERCY DOROTHY ANIM VS SIC INSURANCE COMPANY.pdf', 'Yes', '', '2016', 'High Court', 'JUDGEMENT  \r\nThe Plaintiff herein was until the 11th day of December 2006, in the employment of Defendant Company as a Chief Clerk stationed at Kumasi.  In the month of October that same year, a three Member Committee was constituted by the Defendant Company to investigate allegations of diversion of direct businesses at the Kumasi area office.  At the end of the preliminary investigations by the three-member committee, an interim report was submitted by the said committee to a five Member Disciplinary Committee, charged with the conduct of hearings involving persons suspected to have been involved in the said malpractice.  Plaintiff happened to be one of the persons implicated in the said report.  After appearing before the said Committee for interrogation, Plaintiff was by a letter dated the 11th day of December, 2006 summarily dismissed from the employment of the Defendant on grounds of gross misconduct.  Plaintiff avers in her Amended Statement of Claim filed on the 9th \r\n2  \r\nday of March, 2015, that upon receipt of her dismissal letter, she followed up to the head office of the Defendant Company where she was handed a copy of the final report of the Committee.  According to her, the said report revealed that her dismissal was based on some allegations leveled against her by one Afari Bediako who she was neither given the opportunity to meet nor cross-examine at the Committee hearing.  Plaintiff thus petitioned Defendant against her dismissal but the Defendant Company wrote back affirming its decision.  \r\nIn the event, Plaintiff filed the present writ on the 5th day of July, 2012, claiming the following against the Defendant: a) A declaration that the dismissal of Plaintiff by the Defendant on the 11th of December 2006 is wrongful. b) Salaries and allowances due Plaintiff from December 2006 to date of judgement with interest thereon. c) Damages for wrongful dismissal. e) Costs.  \r\nThe Defendant on the other hand, vehemently denies that Plaintiff is entitled to the said reliefs.  By its Statement of Defence filed on the 26th of July 2012, the Defendant denies that the committee was in breach of its stipulated methodology in hearing the Plaintiff and maintains that the Plaintiff was given every opportunity to be heard by the Disciplinary Committee duly constituted, before its arrival at the decision to dismiss her summarily for gross misconduct and abuse of office.  \r\nAt the close of pleadings, issues filed by both Parties were settled for determination at the trial.  Some of the said issues are clearly intertwined and therefore do not require being dealt with separately.  In my opinion the issues relevant for the resolution of this matter are as follows:  \r\n1) Whether or not the Plaintiff’s dismissal was in breach of the Disciplinary Committee’s method of hearing and investigating staff. 2) Whether the plaintiff was dismissed on grounds of proven misconduct, 3) Whether or not the plaintiff is entitled to the reliefs endorsed on the writ of   summons and statement of claim, 4) Any other issues raised by the pleadings.  \r\n3  \r\nI propose to deal with issues 1 and 2 together since to my mind the two are intertwined. The first and I believe the most fundamental issue that calls for resolution in this suit is, whether or not the hearing and investigation of the charges leveled against Plaintiff, were in breach of the Disciplinary Committee’s stated methodology thereby rendering her summary dismissal wrongful.  Before proceeding to determine the said issue however, I consider it necessary at this point, to summarize the oral testimony of Plaintiff.  In her testimony before this Court, Plaintiff stated that she was engaged by the Defendant Company, formally known as the State Insurance Corporation in 1982 as a junior typist. By dint of hard work, examinations and promotions, she rose to the position of Chief Clerk.  Plaintiff tendered without objection, Exhibits C, C1 and C2, being assessment advice as evidence of this fact. According to her, as Chief Clerk her job entailed doing normal clerical work, underwriting policies and receiving customers. She added that she also doubled as a staff agent when in 1990, management of Defendant Company introduced the staff agency policy to enable the Defendant Company get more business.  As a staff agent she brought to the Defendant Company, businesses from big companies such as Kinapharma.  This staff agency policy was however abolished in the year 2004. Plaintiff prided herself on having worked for 24 years without query or suspension. To press home this point, she tendered in evidence Exhibit D, a certificate of merit awarded her for being the best performer in the Kumasi office.  In the year 2006 however, she was summarily dismissed by a letter, tendered without objection as Exhibit B, on a charge of diversion of direct business.  It is the thrust of Plaintiff’s case that the Defendant Company, in breach of its laid down methodology for the conduct of the said hearing failed to afford her the opportunity to meet, confront or to challenge the evidence of one Afari Bediako, the one upon whose allegations, the Defendant based her dismissal. She stressed that it was only after she was given a copy of the Committee’s report, which she tendered as Exhibit E, that she discovered the true basis for her dismissal.  The Defendant does not deny Plaintiff’s allegation that she was never allowed to confront or cross examine her accuser but maintains that by Clause 3(iv) of Exhibit E, no controversy had arisen to warrant a crossexamination of the said Afari Bediako by the Plaintiff.  To further buttress this stance, it is urged on this Court by the Defendant, that once the Plaintiff admitted to introducing the agent Afari bediako to the client, that amounted to an admission of the \r\n4  \r\ncharge of having diverted direct business and therefore there was no need to call the said Afari Bediako to be cross examined by the Plaintiff.   \r\nIt was held in the case of BANK FOR WEST AFRICA LTD V ACKUN (1963)1 GLR @ 176-182 that the onus of proof in civil cases depends upon the pleadings. The Party who in his or her pleadings raises an issue essential to the success of their case assumes the burden of proof.  Proof in civil cases is by a preponderance of probabilities; which means the obligation of a Party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court and the burden of persuasion may require a Party to establish the existence or non-existence of a fact by a preponderance of probabilities (See ODAMETEY V CLOCUH (198990)1GLR14 AND SECTION10 OF NRCD 323).  Unless and until it is shifted, a Party has the burden of persuasion as to each fact, the existence or non-existence of which is essential to a claim or defence that Party is asserting. The onus is thus on the Plaintiff to prove her claim.  \r\nPlaintiff contends, that after she had been duly informed of who her accusers were, she requested an opportunity to meet and to cross examine both persons but the Committee only called one of them for questioning by the Plaintiff and failed or refused to call the other.  This failure notwithstanding, it was the evidence of the witness that Plaintiff was not permitted to confront or to cross-examine that the Committee based its findings on, to summarily dismiss her.  Exhibit E is headed “FINAL REPORT OF COMMITTEE APPOINTED TO INVESTIGATE DIVERSION OF DIRECT BUSINESS IN KUMASI AREA OFFICE”.  \r\nOn page 1 of the said Exhibit, it is explained in Paragraph 3 that the same is a report of a five-man Disciplinary Committee set up by the Deputy Managing Director, (F&A), following the presentation of an initial report by a three-man investigative team.  This Court was not given the benefit of sighting the interim report of this threeman investigative team. In any event, the five–man Committee, though named a Disciplinary Committee, was by the heading of Exhibit E an investigative body.  \r\nNow, it is well settled, that Committees of Inquiry, like the present one set up by the Defendant Company are “masters” of their own procedure and need not follow strict formal procedure “akin to Court room proceedings” see THE CASE OF REPUBLIC \r\n5  \r\nV GHANA RAILWAY CORPORATION (1981) GLR 752, this principle however, as I understand it, is subject to the overriding requirement for procedural fairness. As fact finding bodies, their functions are judicial in character and indeed In the English case of IN RE PERGAMON PRESS(1970) 3 AER  535 @ 539, LORD DENNING MR  in  reference  to  such committees  had this to  say “They may, if they think  fit , make findings of fact which are very damaging to those whom they name, they may accuse some, they may condemn others, they may ruin reputations or careers, their report may lead to  judicial proceedings, it may expose persons to criminal prosecutions or to civil actions.” The law therefore, demands the strict observance by such Committees of the basic rules of natural justice. The rules of natural justice require that a Party be given a full and fair hearing. This involves giving a Party adequate notice of the case they have to meet and a genuine opportunity to state their case and to controvert allegations made against them if need be. I am supported in this reasoning by Court of Appeal decision in the case of DARKWA V THE REPUBLIC (1981) 241.  \r\nIt is quite evident from exhibit E that the committee set up by the Defendant Company, was fully aware of their duty to observe the rules of natural justice in their quest to ascertain the truth.   This fact is borne out by Clause 2 Sub clause 2 as well as clauses 3(iii) and 3(iv) respectively of Exhibit E. Clause 2, which spells out the terms of reference of the said Committee states in Sub clause 2 as follows:   \r\n“To conduct hearings and to determine the level of involvement of the persons named in the document and any others whose names will appear in the cause of the disciplinary hearing…”  \r\nSub clauses (iii) and (iv) respectively of Clause 3 headed methodology also stipulate:  “iii. Those who have been implicated in the report were given the opportunity to determine their culpability or otherwise by giving them a hearing. iv. Wherever any controversy or issue arises, individuals involved are made to cross examine each other in order to determine the truth or otherwise of the allegations.”   \r\nClearly, the bounden duty imposed on any fact-finding body to ascertain the truth of an allegation, before making a finding was not lost on this committee. The crucial \r\n6  \r\nquestion to ask at this stage, is therefore, whether a controversy arose within the meaning of paragraph 3(iv) as regards the charges leveled against the Plaintiff.  The Committees proceedings relating to the Plaintiff can be found on pages 7, 22, 24 and 34 of Exhibit E. The report states on page 7 as follows:  \r\n“She also has two cases of diverted business which she did not submit for pardon. When the agent involved on the KAT $ CO policy, Mr Afari Bediako was interviewed, it became clear that Miss Mercy Anim has placed his name on the business as agent. The agent stated emphatically that he is just being used as a conduit. He only collects commission and gives it to Mercy who gives him only part of  it…”.  \r\nOn page 22 the report states further”She claimed her brother formerly of Provident Insurance Company but now at Unique Insurance introduced the client to her and that the client indicated that since he was a very busy person, he needed an agent to be servicing his business. She admitted that she introduced Afari Bediako as agent to the client”.   The report again states on page 34 under the caption AFARI YEBOAH ON KAT $ Co. that  ‘He submitted that Mercy informed him that KAT & Co was her major client so she intends passing over the business to SIC and to use him as an agent. She therefore introduced the man to him as an agent. However when the commission was received, he handed all the money to Mercy who gave him some. He confirmed that Mercy took him to the man for him to be appointed as agent”.  I must say, that I am fully aware that there is a wealth of legal authority in support of the proposition that failure to allow a person to confront or to cross-examine his or her accuser in an administrative inquiry may not necessarily amount to a breach of the rules of natural justice. I however note, that in all such cases, including the revolutionary case of CEYLON UNIVERSITY V FERNANDO 1WLR 223, where a hearing was held to be fair though witnesses were heard in the absence  of the Defendant, the Defendants were duly  given adequate information on the charges leveled against them.  Counsel for Defendant relies on the Supreme Court case of LAGUDA V GHANA COMMERCIAL BANK to buttress his point that failure to allow Plaintiff to cross-examine Afari Bediako did not necessarily amount to a breach of the Audi alterem patem rule.  What Counsel however failed to advert his mind to, \r\n7  \r\nis the Court’s holding that “a core idea implicit in the natural justice principle of audi alterem patem was simply that a party ought to have reasonable notice of the case he has to meet and ought to be given the opportunity to make his statement in explanation of any question and answer any arguments put forward against it”.  It seems clear from the above reasoning that a Party is entitled to being furnished adequate information on the charges leveled against him or her to enable the said Party state their case fully either in acceptance or rebuttal of the said allegations. In her testimony in this Court on the 25th day of February, 2015, Plaintiff stated as follows: “I was given the chance to cross examine Eva Opoku but as for Afari Bediako, the Committee said I am earning illegal commission which I said no”. What was the nature of these illegal commissions and how was Plaintiff earning these?  In ascertaining what actually transpired at the hearing, this Court must look no further than to the contents of Exhibit E.  I have taken time to carefully examine Exhibit E and do not find anywhere in the said Exhibit that, the Plaintiff was made fully aware of the allegations of Afari Bediako.  Specifically, his claims of having been appointed and used as a conduit by Plaintiff, as a result of which he always handed over Commissions paid to him by the Defendant, to her for sharing. I am unable to tell how or why the Commission came to the foregone conclusion that Afari Bediako”s allegations were true.   \r\nA paraphrased transcript of the hearing granted the Plaintiff can be found on page 22 of exhibit E.  In my view, a verbatim transcription of the said proceedings would have been more helpful to this Court in ascertaining what actually transpired at the hearing. In any event, it is quite evident from the said record that Plaintiff was never afforded the opportunity to contradict or explain the grave charges leveled against her by the said witness. The Defendant vehemently denies Plaintiff’s claims that she requested the opportunity to cross-examine the witness, but even assuming that, this was actually the case, did the said failure on the part of the Plaintiff relieve the Committee of its duty to do what was fair and reasonable in the circumstances? Did it not behove the Committee, to ensure that these allegations were substantiated in line with the rules of natural justice as well as its own terms of reference and laid down methodology?  Why did the Committee deem it necessary to call in Plaintiff to “confirm” allegations made by one Eva Opoku? (see page 24) but not Afari Bediako? Did the Plaintiff ever admit to being guilty of the charges leveled by Afari Bediako?  \r\n8  \r\nIn the case of DARKWA V THE REPUBLIC (SUPRA), the Court stressed the need for Committees of Inquiry to take every reasonable step to ascertain the truth before arriving at findings that could result in “prosecution in Court, dismissal, retirement removal or reduction in rank”. The Defendant contends that there was no need to ascertain the veracity of Afari Bediako’s allegations, Plaintiff having admitted to introducing him to the client, KAT & Co but the question is, could the mere admission by Plaintiff that she introduced Afari Bediako to KAT & Co upon request resolve the entire controversy surrounding  allegations that his appointment was a sham, something the client KAT & Co knew nothing about or more importantly, the allegation that  the Plaintiff was the ultimate beneficiary of Commissions paid by the Defendant Company to the said agent?  I think not!   \r\nIn my opinion, a real controversy had arisen, which made it imperative for Plaintiff to be afforded the opportunity to confront her accuser, the better to draw the Committee’s attention to the strengths in her case and the weaknesses in that of her accuser if any. This, needless to say, the Committee was required to do in line with Clauses 3(iii) and (iv) of its laid down methodology.   \r\nIn the absence of any evidence before this Court that Defendant complied with the above requirements, I find that the Disciplinary Committee set up by the Defendant Company failed to follow its stipulated methodology in the investigation of charges leveled against the Plaintiff.  \r\nI now turn to the issue of whether Plaintiff was dismissed on grounds of proven misconduct.  By a letter dated the 11th of December 2006, tendered by the Plaintiff as Exhibit B, the Plaintiff was informed of her summary dismissal from the services of Defendant Company, on grounds of gross misconduct. As stated in, the said Exhibit, this decision by the Defendant was based on the findings of the Committee set up to investigate Plaintiffs alleged involvement in the diversion of direct business.  I therefore consider it necessary in resolving this issue, to ascertain what exactly amounts to diversion of direct business by an employee in insurance practice.   \r\nCounsel for Defendant in his address filed on the 19th day of February 2016, stated as follows, “Diversion of direct business entailed the employee, without the authorization or consent of the client, contriving with certain persons to place their names on the clients transaction file as though such persons were appointed \r\n9  \r\n“agent” of the client…….in essence the client is unaware of the transaction since he did not appoint the agent.”   \r\nOn page 22 of Exhibit E, the Committee, in reference to the Plaintiff’s evidence stated as follows: “She claimed that her brother formerly of Provident Insurance Company introduced the client to her and that the client indicated to her that he was a very busy person and needed an agent to be servicing his businesses. She admitted she introduced Afari Bediako as agent to the client.”  It appears to me, that the Defendant makes heavy weather of the said admission by Plaintiff as evidence of misconduct on her part..  Indeed, the Defendant’s witness had this to say under crossexamination:  \r\nQ: Why did you not make any enquiries from KAT & Co?  \r\nA:  We did not because no controversy had arisen. The Plaintiff told the Committee she led the agent to the client and the agent admitted she led the agent to the client.  \r\nNow, the Plaintiff’s case as I understand it, is that she introduced the said Afari Bediako to the client upon request. This, to my mind and in the absence of any evidence to the contrary, cannot amount to an admission by the Plaintiff of having diverted direct business within the definition of the said offence given by the Defendant.  Additionally, there is no evidence before this Court that suggests even remotely, that merely introducing an agent to a client, upon the request of that client for an agent, amounts to diversion of direct business.  Infact, this Court notes from page 23 of Exhibit E that the Committee found that the agent for Kinapharma had also been appointed by the said company on the recommendation of Plaintiff. Why then, did the Committee not find the charge of diversion of direct business proven in that case?  I actually note a basic contradiction in the case of the Defendant.  In one breath, the Committee, found on page 7 of Exhibit E, that the Plaintiff was responsible for placing the agent’s name on the client’s business (obviously without the clients knowledge or consent}, then, in the same breath, it confirmed on page 22 and more particularly, on page 34 of the same Exhibit that “Mercy took him to the man for him to be appointed as agent”.  If the Committee found for a fact that, Plaintiff introduced the agent to the client, after which he was appointed as agent by \r\n10  \r\nthe client, how can it then be reasonably argued that it was Plaintiff who placed the name of the agent on the client’s books without the client’s knowledge?  Flowing from the above, I am not impressed by the Defendant’s belated attempt to question the authenticity of Exhibit H, the letter, said to have been written by the Managing Director of KAT & Co. Defendant’s witness stated as follows under cross-examination; Q: KAT and Co wrote a letter to the Defendant. A: Yes. Q: When was Exhibit H written? A: 20th February, 2004 Q: Did the Defendant work on this letter A: Yes.  \r\nThe witness also states in his evidence- in- chief as follows: “When Afari Bediako was invited he indicated to us that they had no knowledge about that business in question and that the Plaintiff led him to see the proprietor of Kat and Co for him the agent to be made an agent for Kat and Co and a letter was given to that effect”.  By the Defendants own showing, Exhibit H was not only written by the client but  was also accepted and worked on by the Defendant though it bore no letter head and pre-dated the abolishing of the staff agency policy. I am therefore not attracted to the Defendant’s present claim that the said exhibit is of doubtful validity.   \r\nIt is the case of the Defendant that Plaintiff was summarily dismissed in accordance with Sections 5(6) and 5(7) of Exhibit 1, the Collective Bargaining Agreement entered into between the Defendant and the Union of Industry, Commerce and Finance Workers (UNICOF).   \r\n In the case of OPARE YEBOAH V BARCLAYS BANK GHANA LTD 2011 1SCGLR 330, the Supreme Court at page 348, affirmed the time honored proposition that procedures outlined in contracts of employment, such as the Collective Bargaining Agreement must be followed to give a summary dismissal validity.  \r\nSection 5(6) OF Exhibit 1, headed SUMMARY DISMISSAL states as follows: The company reserves the right to dismiss any employee for proven gross misconduct.   \r\n11  \r\nClearly the operative word here is proven.  The onus thus lay on the Defendant to prove that the alleged misconduct was proven before it arrived at a decision to summarily dismiss Plaintiff.  Under the said section, for an employee to suffer the ultimate sanction of summary dismissal, guilt will have to be proved or established. In order to establish guilt, an employee ought to “be permitted to challenge the very allegations made against him (or her in this case) and to have had the right to call evidence in support of his (or her) contentions”. SEE DARKWA V THE REPUBLIC (SUPRA). This, to my mind, will only be possible if the said employee is granted the opportunity to be heard fully.    \r\nIn view of the Court’s thinking, which I believe, has been adequately expressed earlier on in this judgment, I do not deem it necessary to reiterate the reasons why I do not find the charges leveled against the Plaintiff proven.  \r\n I do agree with Counsel for the Defendant that Exhibit 2, a query served on Plaintiff, clearly impinges on her credibility, given her claims that she served the Defendants for 24 years without blemish.  This fact, however does not, in any way detract from the legal duty imposed on the Defendant to have ensured that Plaintiff’s guilt was established before she was condemned. I must say that the presence of the Union Members at the Committee sitting did not necessarily guarantee a fair hearing or prove that Plaintiff was afforded one.  \r\nI accordingly, find that the procedure stipulated in Exhibit 1 was not complied by the Defendant in Plaintiff’s case. The summary dismissal of Plaintiff on grounds of proven misconduct therefore cannot stand and I declare the same wrongful. Having declared the Plaintiff’s dismissal wrongful as prayed for in relief (a) of her writ, I proceed to deal with reliefs (b) and (c).  Plaintiff prays for an order for the payment of all salaries and allowances due her from December 2006 to date of judgment with interest thereon. The rationale behind this prayer appears to me to be, that, if the dismissal was wrongful, then the Plaintiff was in law, never dismissed and remained an employee of the Defendant for which reason she is entitled to all salaries and other allowances due her up to date. This, to my mind is tantamount to asking for payment of salary arrears with other entitlements in lieu of reinstatement. It however remains the common law that, the  remedy available to an employee who has been wrongfully dismissed or terminated is an action for damages, unless of course, there is a public \r\n12  \r\nlaw element which requires otherwise.  It was held in the case of ASHUN V ACCRA BREWERY LTD [2009] SCGLR 81 that “the principle, in the absence of any contrary statutory or contractual provision, the measure of damages for wrongful termination of employment… was compensation based on the employee’s current salary and conditions of service for a reasonable period within which the aggrieved party was expected to find alternative employment…the measure of damages was the quantum of what the aggrieved party would have earned from his employment during such reasonable period, determinable by the court after which such employee should have found alternative employment. The quantum was subject to the mitigation of damages’’.   \r\nThough no evidence was led by the Parties in this regard, It is well settled that the position of the Ghanaian Courts is that a dismissed employee is expected to have found alternative employment within 2 years of such dismissal SEE THE SUPREME COURT CASE OF NARTEY TOKOLI V VOLTA ALUMINIUM COLTD (NO. 2), 89-90  2 GLR  341.  I therefore order that Plaintiff be paid a sum equal to her total salary for 18 months plus all other benefits and allowances due her as at 11th December, 2006. I also award costs of GH¢10,000 in favour of Plaintiff.  In conclusion, judgement is entered in favour of Plaintiff as follows: i. It is hereby declared that the summary dismissal of Plaintiff by a letter dated the 11th   of December 2006 was wrongful. ii. Plaintiff is awarded 18 months’ salary as damages for wrongful dismissal iii. Interest on the said sum awarded as damages from date of judgment till date of final payment iv. Costs of 10,000 awarded in favour of Plaintiff against the Defendant.    \r\n         [SGD]  MRS. AKUA SARPOMAA AMOAH    JUSTICE OF THE HIGH COURT aey/    ', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'BMSC/880/2012', '', '', '', '2016-04-07', ''),
(622, 'MERIDIAN MICROFINANCE LTD.  VS.  1. SCOTTISH BOOKS & STATIONERY, 2. EMMANUEL KWEKU GYATENG', '', 'links/cases/MERIDIAN MICROFINANCE LTD. VRS SCOTISH BOOKS AND STATIONARY.docx.pdf', 'Yes', '', '2016', 'High Court', 'BY COURT \r\nThe terms of settlement filed on the 2nd day of March, 2016 and duly executed by the parties to the suit and their respective Counsel are hereby adopted as the judgment of this Court.  \r\n                                                                          [SGD]             MRS. AKUA SARPOMAA AMOAH JUSTICE OF THE HIGH COURT  aey/ ', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'RPC/74/15 ', '', '', '', '2016-03-02', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(623, 'MIRFIELD PROPERTIES LTD.   VRS   1. BOARD OF DIRECTORS OF STARWIN, 2. I.C. SECURITIES (GH) LTD. 3. DANNEX LTD. ', '', 'links/cases/MIRFIELD P. v BOARD OF STARWIN.pdf', 'Yes', '', '2016', 'High Court', 'CONSOLIDATED JUDGMENT  \nThe appellate jurisdiction of the High Court has been invoked in the two appeals to determine the correctness of the decision of the Administrative Hearing Committee (AHC) under the Securities Industry Act, Act 333 whose decision was approved by the Securities and Exchange Commission (Commission); in respect of renounceable rights offering or rights issue by Starwin Products Ltd (SPL). Based on the rights offering Dannex Ltd. became the new majority shareholder with 75% shares in SPL. Following the approval of the decision by the Commission two separate appeals were launched before the High Court. The first appeal which was initially before the Financial Division of the High Court was by four directors of SPL against I. C. Securities, the transaction advisers and Dannex Ltd. who will be directly affected by this decision.  The second appeal by the appellant in suit number ACC/16/2015, who until the rights offering was the majority shareholder was launched before the Commercial division. An order was made consolidating the two appeals by the honourable lady Chief Justice more so when guided by Order 31 rule 2 of the High Court (Civil Procedure Rules) of 2004, (CI 47) by which it is provided:  \n“Where two or more causes or matters are pending in the same Court and it appears to the Court (a) That some common question of law or fact arises in both or all of them, or (b) That the rights to relief claimed are in respect of or arise out of the same transaction or series of transactions or (c) That for some other reason it is desirable to make an order under this rule……” \nThe common questions of law or facts from the two appeals for \n \n3 | P a g e  \ndetermination by the court are: a. whether or not I. C Securities usurped the powers of the shareholders and the directors of SPL in the allotment of shares to Dannex Ltd. and the other persons who took up shares and two, whether or not the Regulation 9 of SPL had been violated in the process of the allotment of shares.  \nThe appellant in suit no. ACC/16/2015 aggrieved and dissatisfied with the decision of the Commission and its hearing Committee seeks the following reliefs: i. That the decision is against the weight of evidence ii. The administrative Hearing Committee misdirected itself in respect of the issue as to whether or not I. C. Securities (Ghana) Ltd usurped the powers of the Directors of Starwin Products Ltd when it referred and based its decision on paragraph 1.7 of the Offer Prospectus when the said paragraph referred to the process of priority allotment and not who had the power to allot. iii. Ad ministrative Hearing Committee (AHC) erred in law when it held that Regulation 9 of Starwin Products Ltd had not been violated and when on a true and proper interpretation of the Company regulations and the offer Prospectus, the renounceable rights issue was to be carried out subject to the provisions of the company regulations of Starwin Products Ltd iv. Add\n \n4 | P a g e  \ntional grounds of appeal will be filed upon receipt of record of proceedings The court is unaware of any further grounds of appeal subsequent to the receipt of the record of proceedings before the (AHC) that were filed by the appellant – Mirfield Properties Ltd.  \nThe following reliefs have also been sought in suit no SEC/AHC/001/15: a. The AHC of the Securities and Exchange Commission erred in law by holding that the 1st respondent [I.C. Securities (Gh) Ltd] did not usurp the powers of the Board of directors of Starwin Products Ltd and its shareholders when the 1st respondent unilaterally allotted extra shares to the 2nd respondent [Dannex Ltd]. b. AH C of the Securities and Exchange Commission misdirected itself in law by holding that the resolutions passed by the shareholders of SPL on 19th June, 2013 for the rights issue was in compliance with Regulations 9 of SPL and therefore same had not been violated.  \nIt is now a hackneyed principle so notorious in respect of appeals that appeal is by way of rehearing and an appellate court ought to place itself in the same position as if it was the trial court, and in this instance the court ought to behave as if it was the AHC. See the following cases: the dictum of Dotse JSC in the case of TORBUI DZOKUI 11 v ATISE ADZAMLI (unreported) J4/36/2015 delivered on 9TH DEC 2015; TUAKWA v BOSOM [2001-200] SCGLR  ASSIBEY v GBOMITTAH & ANOR [2012] 2 SCGLR 800; FOSUA & ANOR v ADU POKU MENSAH[2009] SCGLR 310.  \n \n5 | P a g e  \nNonetheless the remit of how an appellate court should go about exercising its appellate function was sounded in the case of BONNEY v BONNEY [1992-93] 2 GBR 779, when the Supreme Court noted as follows:   \n"...The argument that an appeal is by way of rehearing and therefore the appellate court was entitled to make its own mind on the facts and draw inferences from them might well be so but an appeal court ought not under any circumstances interfere with findings of fact by the trial judge except where they were clearly shown to be wrong, or that the judge did not take all the circumstances and evidence into account, or had misapprehended some evidence or had drawn wrong inferences without any evidence in support or had not taken proper advantage of his having seen or heard in support of  the witnesses".   \n  And in respect of this appeal, the trial court, mutatis mutandis, will be the AHC of the Securities and Exchange Commission. To better appreciate and deal with the two germane grounds of appeal by all the appellants in this consolidated suits it will be useful to recount the background that has ignited this appeal before this court:  \nPer an annual general meeting (AGM) of shareholders of SPL held on the 19th of June 2013 the members present unanimously passed a resolution authorising the directors of SPL to issue additional shares through a renounceable rights offer to raise up to Ghc10 million in accordance with the regulations of SPL, the Companies Act, Act 179 with the prior approval of the Ghana Stock Exchange (GSE). From the minutes of the AGM it is also on record that another resolution was passed wherein the shareholders approved and authorised the directors to offer any shares that are not taken up by the shareholders under the renounceable rights issue to prospective investors as the directors deem fit. Flowing from the resolutions passed by the shareholders, the directors of SPL engaged I.C Securities as transaction advisers to help it undertake the renounceable rights issue. An Offer Circular issued by I. C Securities which spelt the terms and procedure for the renounceable rights issue and allotment of shares was approved by the directors of the company in a Resolution passed on the 21st of May, 2014 \n \n6 | P a g e  \nwhen it fully endorsed the Offer Circular issued by I.C Securities.  \nThere were two separate challenges regarding the meetings and processes undertaken in the allotment of shares but they were all dismissed by the High Court. A subsequent complaint lodged before the Director General of the SEC was similarly dismissed as unmeritorious. Aggrieved by the opinion of the Director – General the appellants invoked their rights under the PNDCL 333 and requested for a hearing before the AHC set under the said law. The AHC dismissed the three grounds of complaint filed before it as it found that I. C Securities did not usurp the powers of the Board of Directors of SPL in the rights issue process, neither did I. C Securities breach or violate Regulation 9 of the Regulations of SPL nor did the AHC find any evidence in support of the averments of the appellants regarding a charge of insider trading in the allotment of shares. Piqued by the said ruling the appellants have exercised their right of appeal conferred by the law in launching these appeals before the High Court, which appeals have duly been consolidated.  \nI cannot proceed to examine the substance of the appeal, without determining a point of law raised by the learned counsel for Dannex Ltd. that this appeal ought to be dismissed in limine for being brought out of time. According to the submission of counsel the appeal in Suit No SEC/AHC/001/15 was filed on the 19th of August against the ruling of the AHC of SEC which to him the appeal must be brought within one month of the delivery of the decision of the quasi-judicial body.   \nIt is provided for under sections 8F and 8G of the Securities Industry Act, PNDCL 333 as inserted by the Securities Industry (Amendment) Act, Act 590 that:  \n(1) Every decision of the Hearings Committee on any matter submitted to it for determination shall be referred to the Commission. \n \n7 | P a g e  \n(2) The Commission upon receipt of the decision may— (a) approve of the decision; (b)  remit the issue to the Hearings Committee for further consideration; or (c)  modify the decision.[As inserted by Securities Industry (Amendment) Act, 2000 (Act 590) s.9] \nSection 8G—Appeals from Decision of Hearings Committee. A person dissatisfied with a decision of the Hearings Committee under this Part confirmed by the Commission may appeal to the High Court. [As inserted by Securities Industry (Amendment) Act, 2000 (Act 590) s. 9].   It is my understanding of the law that there is no inherent right in a litigant to appeal as appeal is a creature of statute. See IN RE YENDI SKIN DISPUTE; YAKUBU II v ABDULLAI [1984-86] 2 GLR 226; NYE v NYE [1967] GLR 76. Indeed in the case of FRIMPONG Vs. POKU [1963] 2 GLR 1 the Supreme Court speaking through Akufo Addo JSC (as he then was) described appeal as follows: - “A right of appeal is always conferred by statute, and when the statute conferring the right lays down conditions precedent to the vesting of that right in a litigant.  It is essential that those conditions must be strictly performed otherwise the right does not become vested.”  \nBut where the statute quota supra did not specify the period within which such an appeal should be launched; can one authoritatively claim that it is the practice that such appeals ought to be brought within a period of one month? Order 54 Rule 2(1) of the High Court (Civil Procedure) Rules, C. I 47 spells out a thirty day period within which appeal against a decision of the Tax Commissioner could be filed before the High Court. This with respect, cannot be stretched to be a general rule of practice for all appeals \n \n8 | P a g e  \nemanating from quasi-judicial bodies to be brought within one month. For instance, appeals emanating from Adjudication Committee of the Land Title Registration Law, 1986, PNDCL 152 provides a period of three months to appeal against any decision to the High Court under Rule 7 of Order 53 of the High Court (Civil Procedure) Rules, CI 47. By this it is apparent that there is even no uniform rule as to the time specified for appeals from quasi- judicial bodies. As section 8G of Act 333 failed to spell out the period within which appeals must be filed, I think that in such circumstance the appeal ought to be brought within what would be termed as a reasonable time. Reasonableness may depend on the circumstance of the case. Here the filing of an appeal a little over two months cannot be said to be unreasonable and is well within time for the consideration of the appeal on its merit. Filing of an appeal within three months or seeking leave within three months after the expiration of the first three months in bringing an appeal may well be the acceptable practice in the absence of a specific time period stated by the law. The preliminary objection is accordingly dismissed.  \nIn evaluating the substance of the grounds of appeal; the court will examine the two main grounds which the appellants argued in their written submissions to the court as well as their viva voce submissions.  \nThere was no additional grounds filed as indicated in Mirfield’s fourth ground of appeal and seems not to have touched on the first ground of appeal that the decision of AHC was against the weight of evidence; nonetheless, it is trite as held in the case of DJIN vs. MUSAH BAAKO[2007-2008]1 SCGLR 686, that when a ground of appeal is couched in such an omnibus manner the appellant is simply inviting the court to review the entire record of appeal to ascertain whether the evidence adduced before the trial tribunal was properly considered. This court will therefore review the evidence on record and satisfy itself as to whether the decision of the AHC was right or not as part of the determination of the substantive two main grounds of appeal.   I start with ground B of appeal as stated by Mirfiled as follows:  \n \n9 | P a g e  \n“The AHC misdirected itself in respect of the issue as to whether or not the IC Securities (Gh) Ltd usurped the powers of the Directors of SPL when it referred to and based its decision on paragraph 1:7 of the offer prospectus when the said paragraph referred to the process or priority of allotment and not who had the power to allot”   \nIn arguing this ground of appeal both appellants in the two consolidated suits have urged the court to construe the documents in accordance with the acceptable principles of interpretation or construction of a statute or document by embarking on a journey to discover the intent of the makers of the document. There is no gainsaying in this invitation by the appellants to the court that the better way of constructing instruments is to interpret it as whole in a journey of discovering the intent of the makers of the instruments. Indeed Chitty on Contract at note 18 of page 611 states as follows:  \n “it is true of construction that the sense and meaning of the parties in any particular part of an instrument may be collected ex ante cedentibus et consequentibus: every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done”.  \nOne can say that in interpreting a Judge ought to view the document as a whole and it is out of this holistic appreciation that the necessary connections and inferences could be drawn from the various parts, provisions, clauses, words, phrases etc in an attempt to discover the intent and purpose of the makers of the documents. This has been echoed time and again and in the words of Viscount Simmonds that:  \n “the elementary rule must be observed that no one should profess to understand any part of  ... any document before he had read it as a whole”.   \nSee ATTORNEY GENERAL v AUGUSTUS OF HANOVER [1957] AC 436; see also OSEI v GHANAIAN AUSTRILIAN GOLDFILEDS LTD \n \n10 | P a g e  \n[2003-2004] SCGLR 69. The rule of how to proceed has amply been set out as rightly pointed out by Counsel for Mirfield, Owusu Gyan, Esq in the case of BINEY v BINEY [1974] 1 GLR 318. And in embarking on this exercise any construction that makes the meaning of the document unreasonable, absurd, unintelligible, incongruous or that may tend to create undue hardship for the parties and third parties may be said not to be closer to the intention and purpose of the makers of the document as in the view of Hart and Sachs,   \n“an author of a document must be presumed by the Judge to be a reasonable person”.  \nHaving fully accepted this invitation to interpret as a whole I first proceed with the resolution that authorised the renounceable right issue by the shareholders on the 19th of June, 2013. The two main resolutions were:  \na. To authorise the directors to raise additional shares through a renounceable right issue to raise up to Ten Million Ghana Cedis (Ghc 10,000.000.00) in accordance with the Regulations of the Company, the Companies Act, Act 179 and other relevant laws and Regulations and subject to the prior approval of the Ghana Stock Exchange.  \nTo authorise the directors to offer any shares that are not taken up by the shareholders under the renounceable right issue to prospective investors as the directors may deem fit.  \nIn order to carry out the mandate provided the directors as per the resolutions of the shareholders of SPL supra, engaged I. C Securities as transaction advisers and sponsoring broker. The terms of engagement encompassed a lot more even beyond the seventeen areas of assistance that were listed. For it states:  \n “During the terms of this engagement in connection with the rights offering, we shall provide the Company certain services and assistance customarily provided by financial \n \n11 | P a g e  \nadvisers and sponsoring brokers in connection with structuring and execution of rights offerings in Ghana, including but not necessarily limited to ...”  \nIt then proceeded to lists areas of assistance which in a way was not exhaustive. Among these were structuring and pricing of the transaction in conjunction with SPL, organisation and co-ordination of the road shows, where necessary, advise and assistance in the allocation of shares, in conjunction with SPL etc. Towards the fulfilment of its mandate I.C Securities issued the Offer Prospectus. Before dealing with the contents of the Offer Circular and interpret it as a whole it is worthwhile to note that the Board of Directors per its meeting on 21st May, 2014 passed four resolutions, two of which are germane for the determination of this issue:  \n “Subject to the approval of the SEC, the Offer Circular prepared by the professional advisors in respect of the renounceable right issue is hereby approved and   \n The management of the Company is authorised to take all steps, including Board approved appointment of all necessary professional advisers to ensure compliance with all applicable legal and other requirements for the renounceable right issue and additional listing”.  \nIt cannot be controverted that the Offer Circular or the Prospectus issued by I.C Securities had the unanimous endorsement of the SPL. There are two clauses in the Offer Circular that needs careful examination and these are clause 1:7 and    7:1. The Clause 1:7 on allotment states as follows:  \n“Allotment:  \nThe allotment of shares to applicants will be:  \na. First to satisfy all duly completed applications from Qualifying shareholders and their renounces as \n \n12 | P a g e  \npertains to qualifying shareholders’ rights in the offer; and  \nb. To satisfy all duly completed applications from qualifying shareholders and renounces for extra, pro rating where necessary.  \nTo the extent that applications for extra shares received are more than the available number of unsubscribed rights under the offer, the directors of the company will allot fewer extra shares than applied for. The company and its Advisors will allocate the extra shares on a pro rata basis to existing shareholders.  Moreover, if qualifying shareholders and renouncees do not fully subscribe to the new shares being offered, the company and its advisers will allot the unsubscribed shares to new investors”.  \nFrom clause 1:7 it is clear that the allotment of shares per the formulae spelt out and endorsed by the directors themselves, I. C Securities was accepted as partner in the allotment process of shares. Nonetheless guided by the caveat set out supra that one cannot claim to understand a document unless read as whole it is necessary that clause 1:7 is read together with clause 7:1 that details the procedure of the allotment of the shares. There is the scheme of qualifying shareholders subscribing to their rights under the offer, two qualifying shareholders subscribing  for their rights and applying for extra shares outside what such a shareholder would be entitled to under the offer, three a qualifying shareholder partially subscribing to his rights under the offer making it possible for the directors to allot the remaining shares as they deem fit, four a shareholders subscribing partly to their rights and renouncing their  unsubscribed rights in favour of a qualifying third party. The final option available was for a qualifying shareholder not to take any action by failing to apply for shares or make payment and in such a situation the directors were empowered “to allot such unsubscribed rights as the directors deem fit”.  \nSo much weight had been placed on this phrase by the appellants that it could only mean one thing the exclusive right of the directors to allot the \n \n13 | P a g e  \nshares and no other entity. I cannot acquit myself in resolving this issue without taking time to make bear the law on invitation to the public with respect to rights issue. There appears to me from the Companies Act, Act 179, that generally there are two invitations to the public known to the law. That is general invitation and restricted invitation. If the invitation meet the criteria set down under section 266 of Act 179 then it is an invitation to the public. Section 266 of the Companies Act states as follows:  \n‘(1) For the purposes of this Code an invitation shall be deemed to be made to the public if an offer or invitation to make an offer is, \n(a) published, advertised or disseminated in Ghana by newspaper, broadcasting, cinematograph, or any other means whatsoever; \n(b) made to or circulated among any persons whether selected as members or debentureholders of the company concerned or as clients of the persons making or circulating the invitation or in any other manner; \n(c) made to any one or more persons upon the terms that the persons to whom it is made may renounce or assign the benefit thereof or of any shares or debentures to be obtained thereunder in favour of any other person; \n(d) made to any one or more persons to acquire any shares or debentures dealt in upon any stock exchange or in respect of which the invitation states that application has been or will be made for permission to deal in those shares or debentures upon any stock exchange: Provided that,  \n(a) nothing herein contained shall be taken as requiring any invitation to be treated as made to the public if it can properly be regarded in all the circumstances as being a domestic concern of the persons making and receiving it; \n(b) an invitation made by or on behalf of a private company exclusively to its existing shareholders and debentureholders, not being greater in number than is prescribed by subsection (3) of section 9 of this Code, and its existing employees shall not be deemed to be an invitation to the public unless the invitation is of the type referred to in paragraph (c) or (d) of this subsection’. \n \n14 | P a g e  \n  The invitation could mean, among others, offer for subscription, invitation to the public to make an offer, placement of the companies securities with a financial adviser with intent to sell them by the adviser, renounceable rights issue, non renounceable rights issue etc. where does the present offer of SPL fall? There is little controversy that this was a rights issue which meant that SPL was to offer the new shares to existing shareholders in proportion to their existing shareholdings. As the existing shareholders had the option to dispose their shares to even non securities holders, the rights issue was a veritable renounceable rights issue. First by means of a pre-emption rights by the members (that is members invited to subscribe for new shares in proportion to their existing shareholding) failing which there will then be an open rights offer. When it is an open rights issue it simply means securities that still remains after shareholders have exercised their pre-emption rights and some of the shareholders did not fully exercise their rights, leaving some securities still not allotted, an existing shareholder is perfectly entitled to acquire these surplus securities. From the resolutions passed by the shareholders on the 19th of June, 2013 that is what they precisely they meant. And in that respect where existing shareholders fail to take up their rights and it moves to an open rights offer, it has the potential to alter the preexisting proportion of shareholding as even members of the public have the right to hold shares. This then set the stage for determination as to the usurpation of the powers of the directors by I. C Securities in the allotment of shares. The presence of I. C. Securities in the whole transaction became possible by virtue of the resolution of 21st May, 2014 and the terms of engagement of I. C. Securities. In a nutshell, the renounceable rights offer was to be undertaken through what is termed in the securities industry as placing.   Placing was not done through a bought deal. Going through the document that engaged I.C. Securities as transaction adviser it was to be done in what is termed in the industry, as the best endeavour deal (though it is not stated on the face of the document); that is for the transaction adviser to act as an agent of SPL to use its best endeavour to have shareholders and subsequently members of the public to take up shares. So the issue was to be undertaken through flotation by the transaction adviser. And where the rights \n \n15 | P a g e  \nissue is done through such an intermediary, within the terms of section 267 of Act 179, it is deemed to be the act of the company. Gower’s Report, commentary to section 267 of Act 179, specifically paragraph 10 at page 192 notes that if the flotation is done, then the invitation is deemed to be made by the company as well as the issuing house and the company and its officers are accordingly liable.   \nI have taken this road of being pedagogical in this judgment with intent to dissolve doubts and illuminate the path of a purely technical area of law that seldom confronts the courts. With the greatest respect to the views of the appellants, I think it would not be a holistic appreciation of the entire documents of the Offer Circular, the role of transaction advisers who play the best endeavour deal role, the Companies Act, The Securities Industry Act, Act 333; if the interpretation as to who could allot shares was solely to rest on just clause 7:1(f). Such an appreciation is pedantic and patchy. To narrowly limit the power of allotment of shares to only the directors without taking into consideration Clause 1:7 and the role of such intermediaries in the industry misses the point.   Indeed per the terms of engagement referred to supra, I. C. Securities were to  have powers of allotment with the directors more so when regard is had to the reference of I.C Securities who were invited to provide the kind of ‘services and assistance customarily provided by financial advisors and sponsoring brokers’. Some of the services and assistance customarily provided by such financial advisers is what I have taken pains to detail supra.  \nThe submissions as to the meaning of allotment is apt when the flotation has to do more with an offer for subscription or invitation to the public to make an offer or application for shares and debentures or forms to be completed upon deposit of money, generally associated with unrestricted invitation to the public but not necessarily when the flotation has to do with renounceable rights issue or non-renounceable right issue or the placing of the companies securities with a financial intermediary or broker with a view to selling them in a restricted invitation to the public. \n \n16 | P a g e   \nAgain recourse must be had to section 137(1) of the Companies Act, Act 179 which states as follows:  \n “A company shall act through its members in general meeting or board of directors or through officers or agents appointed by, or under authority derived from the members in general meetings or the board of directors”.  \nIf I.C. Securities had so acted in the allotment of shares based on their appointment as transaction advisers to be allotters of shares with the directors, then one cannot say that such advisers had usurped the powers of allotment of shares by the directors. I could have rested the disposal of the first main ground of appeal here; nonetheless, ex abundanti cautela, I think a clearer appreciation of the law of agency will throw a searching light and further lay this matter to rest.   \nBOWSTEAD AND REYNOLDS on Agency defines agency as   \n “a fiduciary relationship which exist between two persons, one of whom expressly or impliedly consents that the other should act on his behalf so as to affect his relations with third parties, and the other of who similarly consents so to act or so acts”.   \nIn the case of POLE v LEASK [1863] 33 LJ Ch 155; Lord Cranworth said of agency relationship as:   \n‘‘no one can become the agent of another person except by the will of that person. His will may be manifested in writing orally or simply by placing another in a situation in which according to ordinary rules of law, or perhaps it would be more correct to say, according to ordinary usage’s of mankind, that other is understood to represent and act for \n \n17 | P a g e  \nthe person who has so placed him; but in every case it is only by the will of the employer that an agency can be created’’.  \nIn the Ghanaian case of THE STATE v ASANTEHENE’S DIVISIONAL COURT; EXPARTE KUSADA [1963] GLR 238; Korsah CJ defined agency as:   ‘‘where one has so acted as from his conduct to lead another to believe that he has appointed someone to act as his agent, and knows that other person is about to act on that other person’s behalf, then unless he interposes, he will, in general be estopped from disputing the agency, though in fact no agency really existed’’.  \nThere are a number of ways agency can come into play including express or implied authority given by the principal to the agent to act. It is also trite that agency could also come into play by virtue of the agent doing what is customary or usual in a particular trade or business. Agency may also be operational by virtue of ratification by the principal and also by the operation of agency by estoppel under section 26 of the Evidence Act NRCD 323. See the case of WATTEAU v FENWICK [1893] 1 Q.B. 346 at 348; in respect of agency by an agent doing what is customary for the fulfilment of his mandate in a particular trade or business. In this case Wills J. said the principal is liable for all acts of the agent which are within the authority usually confided to an agent of that character. See also HELYHUTCHINSON v BRAYHEAD LTD.[1968] 1 Q.B. 573; BAAH LTD v SALEH BROTHERS [1971] 1 G.L.R. 119;  \n \n18 | P a g e  \nWhatever allotment of shares done by I. C Securities had not been done in any naked usurpation of the powers of the directors of SPL as I.C. Securities had a clear mandate to undertake that exercise either by operation of section of 26 of the Evidence Act, or an act that is customary within the trade of brokers and financial advisers in rights offering. The ruling of AHC of SEC on this ground is hereby affirmed as right. I C Securities did not exceed their mandate nor sin against their mandate as transaction advisers. That ground of appeal alleging the usurpation by I. C Securities of the powers of the directors in the allotment of shares is dismissed as unmeritorious.  \nNow to the ground of appeal that alleges a breach of the Regulations of the SPL. This is how Mirfield put it:  \n“The Administrative Hearing Committee erred in law when it held that Regulation 9 of the Starwin Products Limited had not been violated when on a true and proper legal interpretation of the Company Regulations and the Offer Prospectus, the renounceable rights issue was to be carried out subject to the provisions of the company’s Regulations of Starwin Products Limited”  \nThe Regulation 9 of SPL simply states that:  \n“The Company shall not issue shares to transfer controlling interest without the prior approval of shareholders at a general meeting”.  \nIt has been the case of all the appellants both at the AHC of the SEC and before this court that when it was realised that allotment of shares to Dannex \n \n19 | P a g e  \nLtd. would result in a transfer of controlling interest in SPL, there ought to have been a reversal of the directors to the shareholders for an approval to be given before any attempt at seeking to transfer the shares to Dannex Ltd. was done. In its ruling the AHC found no merits in this contention by the appellants when it held, inter alia, that:  \n“...the shareholders in this meeting knew that rights issue may lead to a change in the shareholding structure of SPL and yet approved that the rights issue should proceed. Indeed the essence of the rights issue is to allow existing shareholders the opportunity of maintaining their current shareholding. It is therefore implied that when shareholders renounce their rights and same are acquired by others, their shareholding necessarily will change and they have to live with the consequences of the dilution of their shares. This is a basic principle in Company Law ... the argument put up by the Complainants that IC Securities should have reverted to the directors when it realised that Dannex was going to acquire controlling interest is untenable. This is because under Regulation 9 of SPL, it is the shareholders and not the directors that have authority to sanction any controlling interest which the shareholders granted on the 19th of June, 2013 assuming without admitting that the argument of the Complainant is right...”  \nAppellants gravely disagree with this ruling contending that the Resolutions passed by the shareholders never supported the conclusion reached by AHC that the shareholders resolutions passed constituted the prior approval that Regulation 9 of SPL demands. Indeed Tony Forson, Esq. in a supplementary \n \n20 | P a g e  \nwritten submissions filed on the 18th of December, 2015 at page 8 notes that   \n“the resolutions authorising the rights issue whereby existing shareholders were to take up shares in proportion to their shareholding cannot amount to conclusive evidence of the shareholders approving the issue of share to  transfer controlling interest to any party”.  \nI glean from this ground of appeal and the submissions made in respect of it that it is the claim of the appellants that the resolutions passed by the shareholders authorising the renounceable rights issue never implied or expressed or contemplated that the renounceable rights issue could result in a transfer of controlling interest in SPL and if the rights offer stood in danger of transferring a controlling interest then, there ought to have been a reversal to the shareholders to approve same.  \nIs that the case?  \nI agree that Regulations of a Company constitute a contract under seal as stated under section 21 of Act 179 and any violation must not at all be countenanced by the court. As indeed noted by the Supreme Court in the case of P.S. INVESTMENT LTD v CEREDEC & OTHERS [2012] SCGLR 611 and also LUGUTERAH v NORTEHRN ENGINEERING CO. LTD [1978] GLR 477.  \nIt is misconceived for one to think that the resolution by the shareholders only authorised existing shareholders to take up shares in proportion to their \n \n21 | P a g e  \nshareholding. Prospective investors had the chance to take up shares that were not taken up by existing shareholders. And any existing shareholder who intended to increase its shares also had the chance to take more shares. The options that were available to shareholders have all been spelt out under Clause 7:1 of the Offer Circular which has been fully set out supra. The Prospectus was fully accepted. Sure if each existing shareholder was only to opt for shares in proportion to his shares then there would be no change in the percentage of shares owned. Nonetheless, there were various possibilities or scenario available which had the potential to tip the scale of the shareholding structure of SPL.  \nStatements made in a Prospectus which is not correct invites heavy criminal and civil sanctions. For if anything stated in a Prospectus was not well meaning and the company did not intend to comply with it, all persons making the invitation as well as the officers of the company are liable to criminal prosecution and stand in danger of incarceration to a maximum of two years in jail under section 265(2) of Act 179.  \nAre some of the directors who have joined forces to launch this appeal saying that the Prospectus which they passed a resolution approving and in whose terms implied that shares could potentially land in the hands of persons who could have a controlling interest, was not sincerely approved? And are they prepared for the attendant criminal consequences of being jailed for misleading the public?  \nI have noted supra that where rights offer move from a pre-emption rights when members of a company fail to take up their rights to an open rights \n \n22 | P a g e  \noffer, as it was in this case, where some of the securities holders did not take up their full rights, it is a notorious fact that existing shareholders who are desirous of acquiring more shares are entitled to acquire the surplus securities. When this is done it has the potential of changing the pre-existing shareholding structure of the company. This is a matter of law and when the shareholders passed the resolution as couched in the terms they did, even if they did not understand it that way, which is not the case anyway, it is trite that ‘ignorantia juris haud non excusat’ –  and the shareholders cannot be excused for their lack of knowledge of the law.  \nI must confess I fail to understand how shareholders have passed resolution authorising a renounceable rights issue and when that rights issue has been done, and has led to a change in structure of share holding, the grievance is that at a point that the shareholding structure would change, the directors ought to have reverted to the shareholders again to approve the allotment of shares to Dannex Ltd. This position, with profound respect, is not a reflection of the rules and implications of renounceable rights offer within the scope of the resolutions passed by the shareholders. Interestingly enough the appellants have no problem with the other persons that have obtained shares in the company as long as they do not have the controlling interest.   \nIt would have been superfluous for any reversal or deferral to the shareholders for another approval of the shares purchased by Dannex Ltd. when they had unequivocally approved the renounceable rights issue. AHC of SEC was again spot on in this decision.  \nI find no good grounds to disturb the ruling of the AHC of the SEC, the \n \n23 | P a g e  \nconsolidated appeal is dismissed in its entirety and the decision of AHC is hereby affirmed.  \nIn the exercise of the discretion of the court I will award cost of GHc40.000.00 against each of the two appellants in the two consolidated suits. The Ghc80.000.00 should equally be shared between the three Respondents: that is the Board of Directors of Starwin, I. C. Securities and Dannex Ltd.     \n            (Sgd.) Eric K. Baffour, Esq. Justice of the High Court ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'ACC/16/2015 ', '', '', '', '2016-06-15', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(624, '1. MOHAMMED ABDULLAH BAYERE, 2. NII OKPELLOR JACOB ABLORH MENSAH    VRS   SALEM INVESTMENT ', '', 'links/cases/MOHAMMED BAYERE.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nPlaintiff in his writ issued on 27/10/09 prayed for the reliefs set out on the endorsement. I do not find it useful to recount them as same had been dismissed by the court. To give a clearer picture of the counter claim of the defendant a summary of the statement of claim of the plaintiff, which though has been struck, out will suffice.  \r\nThe Okpelor Din Sowah family is deemed to be the owners of a large track of land at Ashalley Botwe and in the amended statement of claim that accompanied the writ the 2nd plaintiff avers that by virtue of a power of attorney he became the lawful attorney of the Okpelor Sowah Din family lands at Nmai Dzorn. And that the lands in dispute are all part of the larger tract of land belonging to the family. The land acquired by the 1st plaintiff from the Okpelor Sowah Din family through the family’s lawful attorney, the 2nd plaintiff by virtue of a leasehold granted by the 2nd plaintiff acting by virtue of the power of attorney with the consent of the principal members of the family.  \r\nThe defendant company has wholly denied the claim of the plaintiffs and have instead counterclaim for the following reliefs:  \r\n \r\n2 | P a g e  \r\n1. Declaration of title to all that piece or parcel of land.  \r\n2. An order of perpetual injunction restraining the plaintiffs their assigns, servants privies and any persons howsoever claiming through the plaintiffs any interest whatsoever in the land from having anything to do with the said land.  \r\nThe defendant then set out the basis of his opposition to the claim in the statement of defence and the counterclaim. Defendant claims that if there ever existed any power of attorney at all same was revoked by the donor of the power and 2nd plaintiff could not have purported to have acted on any such power. And therefore 1st plaintiff could not have had any valid grant of the land. Again defendant denied 1st plaintiff ever coming into possession of the land.  Defendant then proceeded to set out how he became the owner of the land by means of an initial purchase from one Lydia Abbey of Nungua in 1997, who traces her root of title to the Nungua Wulomo. He then went into possession and started an estate development. Defendant further notes that he had the land registered and was issued with a land certificate. Subsequently, 2nd plaintiff approached him to perform custom to the Okpelor Din Sowah family as it had a matter in court with Ebenezer Kotei and defendant was already in possession of the land. And after the Supreme Court decided the matter he went to see the head of the Okpelor Din Sowah family to attorn tenancy to him as the owners of the land. The then head of family executed a leasehold agreement over a parcel of land measuring 57.067 acres the boundaries of which he provides in paragraph 5 of his counterclaim. Defendant contends that 2nd plaintiff was stopped from alienating lands he knew was already in the possession of the defendant as he was bound by the lawful acts of his predecessors in title. Again defendant set up the statute of limitation as a defence that he had been on the land for thirteen years, the 2nd plaintiff could not purport to exercise any right of ownership. Defendant claim to have a valid title certificate which gives him indefeasible title to the land in dispute.   \r\nEight issues and ten additional issues were settled for determination at the application for directions stage. And these were:  \r\n \r\n3 | P a g e  \r\n1. Whether or not the 1st plaintiff is the owner of the parcel of   land in dispute.  \r\n2. Whether or not the 2nd plaintiff being a member of the Okpelor Din Sowah family of Teshie has the authority from the family owners of the land to grant same to the 1st plaintiff. 3. Whether or not the said grant to 1st plaintiff is a valid grant from the Okpelor Din family the absolute owners of the land 4. Whether the Okpelor Din Sowah family are the owners of the land by virtue of the Supreme Court decision in the case Ashalley Botwe Lands, Adjetey Agbosu v Kotey. 5. Whether or not the defendant has any valid title to the disputed land at all 6. Whether defendant acquired the land from a source (Lydia Abbey) any title to the land in dispute at all 7. Whether Eugene Odametey Sowah from 2002 to the date of the purported grant which is a second grant had any power to still grant the Nmai Dzorn lands to anyone after giving power of attorney to Nii Okpelor Ablorh Jacob Mensah to exclusively alienate Nmai Dzorn land belonging to the family 8. Whether or not the plaintiff are entitled to their claim 9. Whether or not the power of attorney granted 2nd plaintiff to administer the Okpelor Din Sowah lands was effective and valid 10. Whether or not 2nd plaintiff gave due notice  of the power of attorney 11. Whether or not the purported transfer by the 2nd plaintiff to the 1st plaintiff was valid or transferred any interest at all to the 1st plaintiff. 12. Whether or not the defendant is the proper person to be sued in the instant proceedings 13. Whether defendant’s title is void ab initio 14. Whether or not the defendant obtained an indefeasible \r\n \r\n4 | P a g e  \r\nland title certificate which constitutes notice to the whole world 15. Whether or not the defendant was affected by the judgment of the Supreme Court 16. Whether or not the defendant attorned tenancy to the plaintiff’s predecessor in title 17. Whether or not the defendant has been in possession of the lands for more than 12 years 18. Whether or not the plaintiff is stopped from challenging defendant’s title  \r\nBACKGROUND  Trial in this case commenced on the 6th of February, 2014 until this matter was transferred to this court by the exercise of the power of transfer of the honourable Chief Justice under section 104 of the Courts Act, Act 459 . Since then the court has caused several hearing notices to be issued and served on the counsel for plaintiffs to appear for the matter to be dealt with. For instance on the 14th of March, 2016 there is a hearing notice which was served on KSan Law firm to appear before the  court on 20th of April, 2016. The lawyers for plaintiff failed to appear. As the lawyers for Plaintiff failed to appear on the 17th of March, 2016, the court, guided by the principles established in the case of ADOMAKO ANANE v NANA OWUSU AGYEMANG (UNREPORTED) J4/42/2013 delivered on 26th February, 2014 exercised its discretion not to adopt the proceedings but to commence the trial de novo. As the plaintiffs failed to appear and the court was ready to commence the trial, it proceeded under Order 36 of the High Court (Civil Procedure) Rules, C. I. 47 and dismissed the claim of the plaintiffs. The court accordingly adjourned to the 20th of April, 2016 for the defendant to prove his counter claim and further ordered the defendant/counterclaimant to cause a hearing notice to be issued for service on the plaintiffs’ counsel. There is an affidavit of service of the process on K-Santo appear before the court on the 20th of April, 2016. Again, the plaintiffs having failed to appear the court had no choice than to proceed with the trial of the counter claim of the defendant.     \r\n \r\n5 | P a g e  \r\nEVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW The defendant’s representative in the person of its managing director, William Adjei Koduah mounted the box on the 20th of April, 2016 and related how the defendant became the owner of the 56 acre land at Ashalley Botwe. He tendered evidence of title to the land of the acquisition in 1997 from Lydia Addy as Ex ‘A’, land documents granted to the defendant by one John Laryea as Ex ‘B’ and what he calls further supplementary documents as Ex ‘C’. He subsequently attorned tenancy to the Nii Okpelor Din Sowah family before and after the judgment in the case of IN RE ASHALLEY BOTWE LANDS. He made payments to the Din Sowah family of an amount in the sum of Ghc20.000 receipts of which he tendered in evidence as Ex ‘D’ series. Though the Plaintiffs failed to appear and their claim was dismissed that nonetheless does not relieve the defendant/counterclaimant of his duty to prove his title to the land in dispute with clear and cogent evidence before the court.  \r\nA defendant/counterclaimant action is for all intent and purposes an action on its own and is supposed to be tested to verify if the counterclaimant proved his claim before the court. See the following cases JASS CO. LTD v APPAU [2009] SCGLR 269 at 271; OPANIN KWASI ASAMOAH v. KWADWO APPIAH [2003-04] SCGLR 226 at 246; FOSUHENE v. OWUSU [2011] 32 GMJ 163. Defendant/counterclaimant tendered in all the necessary documents of transfer and title certificate which shows that the defendant has indefeasible title to the 56 acres of land at Nmai Dzorn. Indeed his evidence stood unchallenged.   \r\nI also take note of section 43 of the Land Title Registration Law, PNDCL 152 that makes the rights of a registered proprietor of land indefeasible and held with all privileges free from all interest and claims. Plaintiffs were afforded ample opportunity to be in court to cross examine the defendant/counterclaimant but failed to avail themselves before the court. The principle of law is that when a party makes an assertion under oath and his opponent fails or does not cross examine him on that claim, then that issue is deemed admitted by the opponent. For the Supreme Court in the case of TAKORADI FLOUR MILLS v SAMIR [2005-2006] SCGLR 882 notes as \r\n \r\n6 | P a g e  \r\nfollows:  \r\n “the law is well settled that where the evidence led by a party is not challenged by his opponent in cross examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court”  \r\nSee alsoR v. BIRCHAM [1972] CLR 430; R v FENLON [1980] 71 CAR 307. IN RE JOHNSON [DECEASED] DONKOR v PREMPEH [1975] 2 GLR 182   Relying on the above principles of law there had been no challenge whatsoever to the evidence of defendant counterclaimant even though the plaintiffs were offered the opportunity. I find and hold that defendant/counterclaimant proved its counterclaim to the standard set by the law. Again it has been held in the case of SAMUEL MENSAH v. CHRISTOPHER KWABLALIGBIDI [2014] 77 GMJ 157 at 164 by Ofoe JA that:  “The law is that in an action for declaration of title to land, the plaintiff must prove on the preponderance of probabilities his acquisition either by purchase or traditional evidence, or clear or positive acts of unchallenged and sustained possession or substantial user of the disputed land.”  \r\nThe defendant/counterclaimant did just that. The court accordingly grants all the reliefs that the defendant seeks in his counterclaim.  I award cost of Ghc10.000.00 in favour of the defendant/counterclaimant.                \r\n          (Sgd.) Eric K. Baffour, Esq. Justice of the High Court ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'IRL/64/10', '', '', '', '2016-04-29', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(625, 'MRS. NANA AMA TWUMASI  VS.   1. BRENYA AKOSUA TWUMASI 2. ARNOLD RICHARD TWUMASI', '', 'links/cases/MRS NANA AMA TWUMASI VRS  BRENYA A. TWUMASI.pdf', 'Yes', '', '2016', 'High Court', ' \r\nJUDGEMENT   By her amended statement of claim, filed on the 4th of March, 2013, the Plaintiff has sued the Defendants in this Court for the following:  \r\n1.   A declaration that the Plaintiff is a surviving spouse of the late Professor Patrick   Twumasi  \r\nb) An order joining the Plaintiff to the administrators to cater for her interest and/or that of her children with the late Professor Patrick Twumasi. c) A declaration that Plaintiff contributed towards the development of House No C683/26 on Kinshasa Road, East Legon Accra and is therefore entitled to a share in the said house. d) An order directing that 50% of the interest in House No. C683/26 on Kinshasa Road, East Legon, Accra be settled in favour of the Plaintiff. e) A declaration that House No 51, Adjirigano Road, on Plot No. 232, East Legon Extension is the personal property of the Plaintiff and does not form part of the property of the late Professor Patrick Twumasi. \r\n2   \r\nThe facts in support of Plaintiff’s case are that she is the surviving spouse of the late Professor Patrick Twumasi (hereafter referred to as the late Professor), the Parties, having married under customary law in the year 1983 and then subsequently under the ordinance in 1987.  She averred that the late Professor who died on the 5th of May, 2007 was survived by her, as his spouse and six children.  It is Plaintiff’s case that the first two children, who are Defendants to the present suit applied for and were granted Letters of Administration by this Court on the 10th of February, 2010 through one Karikari Boateng who acted as Attorney for the Defendants. She contends that the said Karikari Boateng lacked capacity to so act and also, that the Defendants who are ordinarily resident outside the jurisdiction are not well placed to administer the estate economically and expeditiously. Plaintiff lamented that her personal interests and that of her three children, the last of them whom was a minor at the time the action was instituted, would not be adequately protected given the choice of Administrators.  According to her, she is a joint owner of House No. C683/26, on 28 Kinshasa Road, East Legon, (hereafter referred to as the Kinshasa house) by reason of her contributions to the construction of the said house.  She averred that she contributed to the construction of the said house with income derived from her baby sitting job abroad.  She alleges that she assisted in paying off a mortgage facility of Eighty Thousand Cedis (&#572;80,000.00) taken to finish the block works and also financed the furnishing of the said house. This house, she maintains, served as the matrimonial home which she continued to live in even after the death of the late Professor until his customary successor forced her out with death threats.  \r\nAs regards House No 51, Adjirigano Road, Plot No 232, East Legon Extension,(hereafter referred to as Adjirigano House) the Plaintiff asserts the said house is her personal property built solely out of her own resources and without assistance from anyone either in cash or in kind. This, she averred, is substantiated by the fact that all documents covering the land and the house are in her name.  \r\nThe Defendants on their part, deny the claims of the Plaintiff. They contend that the Plaintiff’s marriage to the late Professor is void and was contracted by fraud. The particulars of fraud given include the following:  \r\na) The Plaintiff was aware that at all times, the late Prof Twumasi was married to   Mrs. Maria Theresa Twumasi under the ordinance on the 10th day of July, 1956 at the time she met him. \r\n3  \r\nb) The Plaintiff was fully aware that the marriage between the late Professor Twumasi and Maria Theresa Twumasi subsisted during her adulterous affair with the late Prof Twumasi. c) In the years of 1983 and 1987 when the Plaintiff claims she was married customarily and under the ordinance, the marriage between the late Prof Twumasi and the late Mrs. Maria Theresa Twumasi subsisted. e) By reason of the monogamous marriage contracted between the late Prof. Twumasi, any marriage contracted before the death of Mrs. Maria Twumasi is bigamous in law, null and void.   \r\nDefendants contend that the late Professor’s wife left Ghana to care for her ailing and aged parents and not because of the collapse of her marriage to the late Professor.  They charge that the Plaintiff being a concubine, has no stake in the Estate of the late Professor even though her children do. They vehemently deny that Plaintiff has an interest in any of the houses in dispute as she did not make any contributions to the acquisition of same. Defendants allege that the Kinshasa house was constructed by the late Professor with a housing loan obtained from the University of Ghana and with the assistance of   Maria Ann Therisa who they described as his only wife.  They vehemently denied the Plaintiff’s claims that she was engaged in employment of any sort during the period she cohabited with the late Professor and aver that the fact that she remained unemployed during that period was admitted by the Plaintiff herself in her tribute to the late Professor.  They assert that the late Professor having earned a decent income as a University Professor, Consultant to the WHO and Ambassador to Zimbabwe among other well-paying jobs was more than capable of building  both the Kinshasa house and the Adjirigano house which they described as “luxurious” without any financial assistance from Plaintiff.  The Plaintiff’s allegation that the customary successor threatened to kill her was also denied by the Defendants.   At the close of pleadings, a number of issues were set down for trial.  I however agree with Counsel for Plaintiff that the issues relevant to the determination of the present suit are:  1. Whether or not Plaintiff’s purported ordinance marriage to the late Professor Patrick Twumasi is valid. 2. Whether or not the Plaintiff has an interest in House No. C683/26 on 28 Kinshasa Road, East Legon, Accra \r\n4  \r\n3. Whether or not House No 51 Adjirigano is the personal property of Professor Tsumasi and therefore forms part of his estate. 4. Whether or not Plaintiff and/or her children by the late Professor Patrick Twumasi is/are entitled to be joined as Administrators of the Estate of the late Professor Patrick Twumasi.   \r\nIn her testimony before this Court, Plaintiff stated that she was married to the late Professor customarily in 1983.  She asserts that subsequently, the Parties were married under the ordinance at the St Thomas Aquinas Church, University of Ghana, Legon. In proof of this, Plaintiff tendered in evidence EXHIBIT A, a marriage certificate dated the 26th day of December, 1987.  It is the case of Plaintiff that, prior to her marriage to the late Professor, he informed her that he had been previously married to a Dutch woman with whom he had four children but that the marriage had been dissolved.  She contends that her marriage to the late Professor was no secret both to his family and to his former wife.  She says they all recognized her as the wife and referred to her as Mrs. Nana Amma Twumasi. To prop up this assertion, Plaintiff tendered EXHIBITS F and G being the obituary notice issued upon the death of a son of the late Professor. In the said Exhibits, Plaintiff is described as his wife whereas his first wife, Maria Anna Theresa is described “the mother of the deceased.” EXHIBITS J and J1, letters addressed to Mrs. Maria Twumasi and dated the 14th day of August, 1965 and the 1st day of February, 1968 respectively were also tendered by Plaintiff to show that Maria Anna Therisa Sleegers had not always used her maiden name. Plaintiff’s point is that Maria Anna Therisa reverted to using her maiden name ‘Sleegers” because her marriage to the late Professor had been dissolved.  EXHIBITS B, C, D and E were also tendered as evidence that the late Professor’s family recognized Plaintiff as his widow. Plaintiff therefore urges on this Court to hold, based on the foregoing, that the Defendants cannot deny the validity of her marriage to the late Professor.   \r\nFrom the evidence led in this Court, I am in no doubt at all, that both the late Professor and his family recognized Plaintiff as a wife. I am even driven to conclude from the conduct of the first woman he married, the late Maria Anna Therisa, that, even if her marriage to the late Professor had not been formally dissolved at the time of his purported marriage to the Plaintiff, she did indeed recognize or condone the alleged bigamous marriage of the late Professor to the Plaintiff.  Although Defendants allege that she had on occasion protested against the relationship between the late \r\n5  \r\nProfessor and Plaintiff, no cogent evidence was led in this Court to substantiate this allegation. On the contrary, EXHIBITS F and G attest to the fact that the late Maria Anna Theresa knew and accepted Plaintiff’s status as the wife of the late Professor. Whether or not this was borne out of frustration or the mistaken belief that time and distance and had resulted in a dissolution of her marriage to the late Professor is unclear.   \r\nIt is noted that at Common law, a valid marriage will be presumed even where a couple, though not formally married, consent to live together and present themselves as husband and wife in the eyes of the whole world and are recognized as such.   \r\nPlaintiff says that she and the late Professor were first married under customary law and then subsequently under the ordinance.  Even though no satisfactory evidence was led in this Court to show that the customary marriage actually took place, exhibit A is evidence that the Plaintiff and the late Professor entered into an ordinance marriage on the 26th of December, 1987 at the Catholic Chapel, Mensah Sarbah Hall, Legon, in the presence of witnesses. In Ghana a marriage is presumed valid only upon proof of two conditions.  Firstly, that the celebration of the marriage actually took place and secondly that it was in the presence of witnesses.  See Section 31 of the Evidence Act, Act, 323.   \r\nUnder the said section, a marriage which has been celebrated before witnesses is presumed valid.  The authenticity of EXHIBIT A remains unchallenged. I therefore do not think that the fact that none of the members of the late Professor’s family attended, even if true, changes the fact that the said ceremony took place. I also do not know of any law that makes it a condition precedent for a person to be formally invited to the celebration of a marriage before such a person can attest to the celebration of same.  The issue of whether or not the wife of DW1 was invited to the said celebration is therefore, in my opinion, of no consequence to determining the validity or otherwise of the marriage contracted between the late Professor and the Plaintiff.  Having mounted a challenge to the Plaintiff’s claim of being the surviving spouse of the late Professor, the onus fell on the Defendants to prove that the marriage contracted between Plaintiff and the late Professor was invalid and therefore not deserving of recognition.   \r\n6  \r\nDW1, tendered in evidence EXHIBIT 1, the marriage certificate evidencing the marriage contracted between the late Professor and Maria Anna Therisa Sleegers on the 10th day of July 1956. The Plaintiff, for her part, does not challenge the authenticity of EXHIBIT 1 or deny that the said marriage took place. Indeed on the 14th day of January, 2015, she testified in this Court (differently constituted), as follows: “……when my husband proposed to marry me, he told me that once he married a Dutch woman but the marriage was dissolved”.   \r\nFlowing from the above, the fact of the late Professor having contracted a prior valid, monogamous marriage at the time he met the Plaintiff was not in dispute. This fact having been established, the evidentiary burden now shifted onto the Plaintiff to prove that the marriage between the late Professor and Maria Ann Theresa Sleegers had been dissolved at the time of her ordinance marriage to the late Professor in 1987. This, to my mind, is an issue which required positive proof and not one to be inferred from the conduct of the Parties.  In the case of ABABIO AND AKWASI III [1994-95] 1GBR 774, the Supreme Court had this to say at page 777: “The general principle of law is that it is the duty of a Plaintiff to prove his case, ie he must prove what he alleges. In other words, it is the Party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he looses on that particular issue.”    \r\nThough I have already found that the Plaintiff during the lifetime of the late Professor was held out and recognized as his wife, the position of the law, which is well – settled, is that a marriage contracted under the Marriage Ordinance (Cap 127) when either Party is already lawfully married to another either customarily or under the ordinance is null and void. Indeed Section 13(4) of the Matrimonial Causes Act, Act 367, emphasizes this legal position by stating that “Nothing in the section shall be construed as validating a marriage which is by law void but with respect to which a decree of nullity has not been granted.” This means that a void marriage remains void whether or not so declared by a Court of competent jurisdiction.  Thus in the case of   GENFI V GENFI,  SOWAH J as he then was, had no difficulty  declaring that a marriage, solemnized under the Marriage Ordinance, Cap 127 was null and void due \r\n7  \r\nto a prior existing customary marriage between Petitioner and another woman. Also, of significance are Sections 262 and 263 of the Criminal Offences Act, Act 29, which makes it an offence for a person to contract another marriage during the subsistence of prior valid monogamous marriage between him or her and another person. The above authorities demonstrate the inflexibility of this legal principle and reveals the evidentiary hurdle Plaintiff was required to surmount in order to establish that she was a lawful wife of the late Professor.  Quite clearly, in the light of the above mentioned authorities, any view that the Plaintiff, the late Professor, his family or his wife Maria Anna Therisa held of the Plaintiff’s status did not or could not have changed the true legal position.   \r\nIn the face of EXHIBITS 1 and 7 tendered in proof of a subsisting marriage between the late Professor and the late Maria Anna Theresa, who was alive at the time of his purported marriage to Plaintiff, a burden was cast on Plaintiff to lead cogent and credible evidence in proof of her claim that the said marriage had been dissolved. What I garner from the evidence of Plaintiff, is an invitation to this Court to infer from the circumstances of this case, that there was no valid marriage subsisting at the time she married the late Professor. I do not think this is a matter in which a dissolution should be inferred. The dissolution of an ordinance marriage in my opinion, is capable of positive proof. This proof, the Plaintiff failed to offer. The Plaintiff’s bare assertion that the late Professor told her the marriage had been dissolved will not suffice, for even if he did, where is the evidence that he was telling her the truth?  \r\nI am therefore quite unable to find that the marriage contracted between Plaintiff and the late Professor was valid in law. On the evidence, this Court can only describe the status of Plaintiff as that of a concubine, for, though she permanently cohabited with the late Professor, the said relationship was “without the benefit of marriage”. See definition of “concubine” in the BLACKS LAW DICTIONARY {8TH EDITION}  I accordingly hold that Plaintiff is not a surviving spouse of the late Professor.   \r\nThe next issue to examine is whether Plaintiff has an interest in the Kinshasa house.  The Plaintiff claims a share in the said house on the basis that she contributed towards the development and completion of the house with income from her baby sitting job abroad.  Now, before I proceed any further to evaluate the evidence led by the Plaintiff in support of this assertion, I consider it necessary to point out the well-established legal \r\n8  \r\nprinciple that a claim against a dead person should be viewed with the utmost suspicion and examined critically by a Court or tribunal of fact before it accepts same as the truth. As held in the case of AMANKWAH V NSIAH (1994-95) GBR PT II @ 758, the general standard of proof on a balance of probabilities required in civil matters will not suffice in such cases. This is because the deceased against whom the claim is made will not be in the position to state his side of the story to enable the Court ascertain the veracity or otherwise of the claims being made against him or her.  In the case of AMANKWAH V NSIAH (supra) BROBBEY, JA as he then was, in explaining the policy reasons behind the principle regarding evidence against dead persons, had this to say at page 763 “...A person who chooses to make claims does so after the protagonist is dead because he may be presumed to be aware that if the protagonist were alive he would be able readily to produce evidence to disprove those claims. He chooses to make the claim after his death because it is his intention to smother or conceal the truth by his own belief that the only person to challenge him effectively is in the grave. This, to my mind, is the main reason why almost all authorities on the issue emphasize that such claims should be viewed with utmost suspicion.”  See also the cases of MOSES V ANANE [1989-90]2 GLR 140 and the Supreme Court case of FENUKU AND JOHN TEYE [2001-2002] SCGLR 985  \r\nIn assessing the evidence of the Plaintiff therefore, this Court will be guided by this well-received principle.    \r\nThe Plaintiff gave the following responses under cross-examination; Q. The Kinshasa house, you made no input in the construction A. That is not true  Q. Prof took a loan from the university to put up the house, A. I said he took 50,000 to construct the building  Q. He used his salary as Professor and Ambassador to put up the house. A. Prof further took 80,000 to develop the property. The property was not fully developed and as a result of our travels on sabbatical we combined resources to develop the property which became my matrimonial home till he was appointed ambassador.  \r\nHaving regard to my earlier finding that the Plaintiff was not in law a spouse of the late Professor, I think it is quite clear that the Kinshasa house cannot be described as a \r\n9  \r\nmatrimonial home, for, a matrimonial home is supposed to be property occupied by a husband and wife as their ordinary place of residence. The Plaintiff, having been found not to have been lawfully married to the late Professor can therefore not describe the said house as her matrimonial home. In any event, Plaintiff claims a share of the Kinshasa house not by virtue of her purported marriage to the late Professor but because she is supposed to have contributed to the acquisition of same. She avers in her paragraphs 8 and 9 of her amended statement of claim, that it was she who financed the tiling, wardrobing and other furnishing of the Kinshasa house. She alleges that she was able to do so from income derived from her baby sitting job abroad. This allegation has been vehemently denied by the Defendants. It is trite that, it is the Plaintiff who bears the burden of producing sufficient evidence on her claims to avoid a ruling being made against her on the issue. See sections 11(1) and (4) of the Evidence Act, Act 323.  In the case of KLAH v PHOENIX INSURANCE (2012)2GLR 1139, the Supreme Court, emphasized the duty imposed on a Plaintiff to lead evidence in proof of matters alleged in his or her pleadings .The Court at page 1150 stated as follows “..since a Party’s pleadings constitute allegations as opposed to evidence: where an averment is positively denied, as in the matter under consideration, it is incumbent on the party asserting those averments, to substantiate them by leading evidence thereon.”  \r\nI find from the record that no evidence was led to substantiate the Plaintiff’s claims. It is quite clear from the evidence on record that the late Professor during his lifetime treated the Kinshasa house as his personal property and did not consider the Plaintiff or any other person as part owner of same. EXHIBITS 5 and 6 are ample evidence of this fact. The said Exhibits show that the late Professor, in his capacity as landlord, in the years of 2003 and 2004 respectively, let out the said property to two different persons without any reference to Plaintiff.  In 2004, it was the late Professor who solely took the decision to extend the tenancy for another year as indicated in EXHIBIT 5. The Plaintiff neither disputes the authenticity of EXHIBITS 5 and 6 nor denies that the said house was rented out by the Professor in his capacity as landlord. Nowhere in these agreements did Plaintiff feature as joint- owner of the said property. Neither is there any evidence on record that the Plaintiff during the lifetime of the late Professor ever breathed a word of being part owner of the said house by virtue of her alleged contributions.  Quite clearly, the late Professor did not recognize her as such. Given the fact that the late Professor, treated and used the Kinshasa house as his personal property without any objection from Plaintiff,   Plaintiff carried the onerous \r\n10  \r\nburden of leading compelling evidence to oust any presumption that the late Professor was its sole owner.  This, she woefully failed to do in my opinion. On the contrary, Plaintiff on the 20th of February, 2015, testified as follows in her evidence-in -chief …. “After the completion of the widowhood rights, Yaw Tsumasi ordered me to quit his brother’s house, my late husband’s house at 28 Kinshasa Road”.  Again, under cross-examination she was asked; Q. You moved him when he was terminally ill and he died. A. He wanted to die in his own house.   \r\nBy the Plaintiff’s own showing, the Kinshasa house was the late Professor’s “own house” and not one of which she was part owner as alleged.   \r\nThe Plaintiff contends that it was income derived from her baby sitting job abroad that she contributed towards the development of the said house. It is interesting to note however, that not a jot or scintilla of evidence was led by the Plaintiff to establish this allegation. As held in the celebrated case of MAJOLAGBE V LARBI, 1GLR 190 @ 192, “… Proof in law is the establishment of a fact by proper legal means…when a party makes an averment capable of proof in some positive way…and the averment is denied, he does not prove it by merely going into the witness box to repeat his averments on oath.”   \r\nNow, bearing in mind the fact that Plaintiff had herself admitted in her EXHIBIT E that she, at the request of the late Professor, had given up her teaching job to focus on the family, I am compelled to take a jaundiced view of Plaintiff’s claims that she worked as a baby sitter during her sojourn abroad. Even if she did, I do not see how this Court in the light of her failure to adduce sufficient evidence in support of her claims of having contributed to the acquisition of the Kinshasa house, can grant her  prayer for a declaration that she is entitled to a  50% share of the said  house. The inescapable conclusion I come to is that the Plaintiff failed to produce such evidence because she had none.   I therefore hold that the Plaintiff is not entitled to a share of the Kinshasa house as the same was acquired solely out of the resources of the late Professor without any contribution from Plaintiff.  \r\nI now turn to the vexed issue of ownership of the Adjirigano house which has been described as “the mansion” in this Court. However, before proceeding to address the said issue, I will pause here to examine the probative value of EXHIBITS 3 and 4, \r\n11  \r\ntendered by DW3, a lawyer by profession and one who testified to his close relationship with the late Professor.  This is because I am of the view that determining the probative value of the said Exhibits will greatly assist the Court in making any findings regarding the ownership of the Adjirigano house. Let me however stress that, this Court is very alive to the fact that the said Exhibits are of no legal force and effect as far as the testamentary dispositions made therein are concerned, for, the purported Will has not been duly executed in accordance with Section 2 of the Wills Act, Act 360.   \r\nDW3 testified that the contents of EXHIBIT 3 were the hand written instructions given him by the late Professor during his lifetime for the preparation of his Will which he accordingly did, as evidenced by EXHIBIT 4. The Plaintiff on the other hand vehemently denies that EXHIBIT 3 was authored by the late Professor. It is her case that the writing in the said exhibit is unfamiliar to her.  I am in no doubt at all that the Plaintiff, having had a close and intimate relationship with the late Professor for well over 20 years should be able to recognize his writing when she sees it.  Plaintiff does not dispute the fact that DW3 who was related to the late Professor also had a close personal and professional relationship with him. Indeed, his testimony that it was he who prepared EXHIBIT 5 on behalf of the late Professor was not challenged by Plaintiff. This, to my mind, makes it highly probable that he also would have had occasion to see the late Professor’s handwriting.    DW3 insists, that there is no doubt that EXHIBIT 3 was written by the late Professor and truly represented the intentions of the latter though the same was not executed. In view of the conflicting claims, I believe my task at this stage is to ascertain, based on the evidence before me, whether the late Professor was indeed the author of EXHIBIT 3.   It is trite learning that a Court is entitled to examine documents in cases of disputed handwriting in order to draw its own inferences and to come to its conclusions. In the case of FENUKU v JOHN TEYE (supra), where there was a dispute relating to the signature of a deceased, the Court was of the opinion that the issue could be resolved by examining the disputed signatures and comparing them with those admitted by the opponent to be genuine. Fortified by this authority and several others such as the STATE V LAWMAN [1961] GLR [PT II] 698, I have taken time to critically examine EXHIBIT 3.  I have gone on to carefully compare this Exhibit with EXHIBITS 2, 2A 2B and 2C. These are Exhibits which Plaintiff by implication concedes are genuine due to her reliance on them as proof of her status as \r\n12  \r\na wife. Upon such critical examination, I find that it can hardly be argued with any persuasiveness that EXHIBIT 3 was not written by the late Professor. Although the characters in EXHIBIT 3 appear smaller, the similarity between the writing in EXHIBITS 3 and EXHIBITS 2(A) to (C) is so striking and readily noticeable even to the untrained eye, that I find the Plaintiff’s claim that the said writing is unfamiliar to her, rather hard to believe. As Plaintiff stated in her EXHIBIT E, having served as the late Professor’s “Chamber Dictionary” by constantly reading through his writings before the same were published, she, in my opinion ought to have had no difficulty recognizing the writing in EXHIBIT 3, as that of the late Professor. I am inclined to think that Plaintiff is not being candid with this Court when she says the handwriting in EXHIBIT 3 is unfamiliar to her and therefore not that of the late Professor. I am in no doubt that EXHIBIT 3 was written by the late Professor and accordingly find that it was he wrote same.   \r\nIt however bears repeating that this finding does not in any way lend validity to EXHIBIT 4 which has not been executed in accordance with the relevant statute. There indeed is no question regarding the fact that the late Professor died intestate.  \r\nHaving come to this conclusion, I now proceed to deal with whether the Adjirigano house forms part of the Estate of the late Professor or is the self-acquired property of the Plaintiff.  \r\nIn doing so, I remain mindful of the salutary principle laid down in the AMANKWA case (supra) regarding how the Court is to view claims made against the dead.  \r\nTo my mind, the Plaintiff, given the circumstances of this case, carried the same if not a heavier burden of proving her claim to the Adjirigano house strictly and beyond a mere balance of probabilities as she was required to do, in the case of the Kinshasa house.   \r\nThe Plaintiff asserts ownership to the Adjirigano house. In a bid to establish her financial status and ability to acquire the said Property without financial assistance from any quarters, she tendered in evidence EXHIBITS T series and U series. EXHIBITS Q, S and V series and W series were also tendered in proof of Plaintiff’s ownership of the said property. The Plaintiff testified as follows on the 27th of January, 2015  \r\n13   \r\n“Plot No 232, 51 Adjirigano is mine and I put up a house on it. When my husband was appointed a High Commissioner to Zimbabwe, I established a Kente business and other items. Out of these, I raised funds to build my house. I purchased materials from East Legon and other places.”  \r\nShe stated further under cross-examination,  “..When we went to Zimbabwe, I traded in Africa wear, boubou, kente and engaged with my fellow ambassador wives. I engaged in that trade, the business flourished and the Ghana community patronized my wares, the trade was international, in a bad month I was collecting Five Thousand US Dollars (US$5000.00) as from 1994 1998. A good month I collect about Eleven Thousand (11,000.00) From Zimbabwe, I brought other items, pot puree and dogs for sale.”    From the above testimony, Plaintiff paints a picture of having established herself as an entrepreneur of high repute between the years of 1994 – 1998. I gather from the record that this is about the period within which the Adjirigano house was constructed. According to her, this business thrived until the late Professor was made Presidential Advisor to the then President Rawlings. I find that Plaintiff failed to explain how the said appointment resulted in the collapse of her business. Be that as it may, Plaintiff described her kente business as international.  In fact, from her evidence, not only did she trade in kente, but she also dealt in landscaping, pot pourri, and even in dogs. Having done business on such a large scale during the period in issue, one would have expected these matters to have been pleaded by the Plaintiff, especially since the kente business is supposed to have been her main source of income, for the construction of the Adjirigano house. Curiously however, this fact was not pleaded. In THE CASE OF WHITAKER V NANAKA BRUCE AND ANOR,  [1994-95] GBR, 784, BROBBEY JA (as he then was) at page 787, in conceding that material facts could not be clearly distinguished from material evidence, was of the view that, what was required, was for the Plaintiff  to give “reasonable information” to the Defendant in the pleadings. Sharing in this view, I believe that Plaintiff, having deemed it necessary to mention that she earned income as a baby sitter which she allegedly contributed towards the construction of the Kinsasha  house, ought to have disclosed the source from which she financed the construction of the Adjirigano house in her pleadings especially since she appears to place a lot of premium on the same. By her failure to do so, Plaintiff’s evidence about the kente, landscaping and dog \r\n14  \r\nbusiness, etc can best be described as an “out of the blue” story.  This, from the record, only popped up when she mounted the witness box. Although, no objection was raised to this piece of evidence, it still induces in me the feeling that the story was an afterthought made up in an attempt to overreach the Defendants. I am therefore not impressed by it.  \r\nIn her evidence in this Court, Plaintiff gave a long list of customers who patronized her wares. No evidence, oral or documentary was provided to corroborate the Plaintiff’s assertions.  Due to the “international” nature of the Plaintiff’s business, one would have also expected her to provide documentary evidence such as bank statements, invoices, sales receipts, income tax returns, evidence of exports etc in support of her case.  No such documentary evidence was produced in this Court.  I do not think EXHIBIT U series is sufficient proof that Plaintiff was engaged in kente business from which she derived such huge income. After all, mere evidence of purchase of kente cloth does not necessarily prove that Plaintiff sold and earned income from same. The Plaintiff failed to link the evidence of these purchases to her alleged earnings. Indeed the said kente cloth, granting that they were truly purchased, could have been for any other purpose, the Court cannot for instance, rule out the possibility that the said purchases, even if truly made, were on another persons behalf. EXHIBIT U series are therefore, in my opinion of very little or no any probative value as far the Plaintiff’s claim of having engaged in such lucrative business is concerned.  \r\nPlaintiff also tendered in evidence EXHIBIT S and Q, the indenture and receipt respectively allegedly issued her by the grantors of the land, on which the Adjirigano house is situate. EXHIBIT S is dated the 27th day of October, 2010.  According to Plaintiff, upon her purchase of the land in 1991, she was issued with EXHIBIT Q, Subsequently, in 1993 she was given an indenture. This indenture, according to her, was later recalled by her grantors on grounds that they needed to replace it with new one to reflect a Supreme Court decision given in 2008, declaring them owners of the said land. According to her, it is then that her grantors issued EXHIBIT S, a new indenture to her. Both Plaintiff and PW1, a representative of the alleged grantor were unable to produce copies of the original indenture. I must say I find it rather strange that there is no trace of such an important document. PW1 alleged that they had destroyed all the old indentures because they had no place to keep them. I consider this excuse given by PW1 rather weak but I have no good reason to disbelieve him. It \r\n15  \r\nis however surprising that, Plaintiff would return such an all-important document without keeping a copy. From the record, Plaintiff, a teacher by profession and a woman of considerable intelligence appears to fully appreciate the importance of record keeping. The Exhibits tendered by her in this Court will attest to this fact. Plaintiff was able to produce EXHIBIT Q, said to have been issued in 1991. EXHIBIT T series and U series, all bearing dates ranging from 1994 – 1997 were also tendered. It is even interesting to note that Plaintiff managed to produce letters written and addressed to the late Professor’s wife Maria Anna, which date as far back as 1965, and tendered as EXHIBITS J and J1 in proof of her case. The Plaintiff’s assertion that she does not have a copy of the original indenture sounds unconvincing to me. It indeed makes me wonder if Plaintiff was just imprudent in not keeping a copy of the old indenture or whether she failed to produce it because she did not have one bearing her name as the original Lessee.  \r\nIt is to be noted, that contrary to the evidence of Plaintiff that the original indenture was given to her in 1993, PW1 testified that it was given to Plaintiff in 1991. Though this inconsistency in my honest opinion is quite immaterial, certain observations I have made of EXHIBIT S cause me to question its validity. The Oath of Proof attesting to the due execution of EXHIBIT S by the Lessors is dated the 24th of September, 2014. On the other hand, apart from the interlineations which give me cause for concern, the stamp evidencing receipt of the indenture by Land Valuation Division for stamping is dated 18 /9 /2012  and 20/9/12 respectively.  By this, what Plaintiff seems to be telling this Court is that the stamping of EXHIBIT S pre-dated the swearing of Oath proving its due execution by Plaintiff’s grantors. This, in the normal course of events should not be the case.  Since no evidence was led by Plaintiff in explanation of this inconsistency, I am impelled to conclude that EXHIBIT S is of doubtful validity.  \r\nThat said, it remains to be pointed out that proof of ownership of the land does not amount to proof ownership of the house. In the AMANKWAH case (supra).  BROBBEY JA, reiterating this principle, at page 760 referred to the Supreme Court case of KWAME AND SERWA [1993-94]1GLR 429 where it was held that; “Ownership of the house should be proved distinctly from ownership of the land on which it is situated and further that the ownership of the land and the house could be decreed in favour of different people.”    \r\n16  \r\nIt was further held in the same case that “Proof of ownership of the house should be by inter alia evidence of actual construction and other acts of ownership after its completion”.  \r\n Thus assuming without necessarily admitting, that the Plaintiff has by EXHIBITS S and Q succeeded in establishing title to the land in question, this does not put the issue regarding her ownership of the said house beyond dispute.  By relief (e) of her writ of summons, the Plaintiff’s prayer is for “a declaration that house NO 51, Adjirigano Road on plot 232, East Legon Extension is the personal property of Plaintiff and does not form part of the estate of Estate of the late Professor Patrick Twumasi.”   \r\nOn the face of the pleadings, ownership of the land on which the said house is situate is not in issue. I will therefore in line with the reasoning of the Court in the AMANKWAH case (supra) confine myself to the determination of who owns the said house.   \r\nEXHIBIT T series have been tendered by Plaintiff as proof of purchase of building materials. I note that some of the exhibits like EXHIBITS T6 and T7 do not state the cost of the materials purchased. No explanation was given for this omission.  According to Plaintiff she only had a ‘few’ receipts to show to the Court. Again, as owner of the house, no explanation was offered for her failure to produce most, even if not all the receipts issued for the building materials she allegedly purchased. This Court notes further that, none of the artisans or workmen she is supposed to have employed to undertake the said construction were called to corroborate her claims.  Having constructed the said property wholly out of her own resources, I would have expected her to lead clear and cogent evidence to establish this assertion, by for example, producing a building permit. No such evidence was tendered.    As already stated in this judgement, it would be most unsafe for this Court to rely solely on the uncorroborated evidence of Plaintiff as proof of her ownership of the said house, when the late Professor is not here to deny or admit the said allegations.  Not surprisingly, the Defendants vehemently deny the claims of Plaintiff. DW2 was one witness who testified on behalf of defendants. He said, that the late Professor was his uncle and insisted that the said house was acquired solely by the late Professor without any financial contribution whatsoever from Plaintiff. To substantiate his contentions, he testified to the various distinguished positions held by the late \r\n17  \r\nProfessor during his life time. These included having served as Ghana’s Ambassador to Zimbabwe, Consultant to WHO and a Lecturer at the University of Ghana. This piece of evidence of DW2 is indeed corroborated by the Plaintiff herself. Plaintiff in her affidavit sworn to on the 23rd day of August, 2010 in support of her application for interlocutory injunction describes the late Professor as “a noted Sociologist, academician and diplomat.”  DW2 contended that having served in these distinguished positions, his uncle had the wherewithal to construct the said house and did indeed construct same without any financial help from the Plaintiff. He tendered in evidence EXHIBITS 2A, 2B and 2C to bolster his assertions. In considering the probative value of the said exhibits, it is significant to note that Plaintiff does not challenge their authenticity.  I actually observe as already stated, that Counsel for Plaintiff relied on references made in those letters by the late Professor to Plaintiff as his wife to buttress the Plaintiff’s claims of being his surviving spouse. It is also worthy of note, that it is not the case of either Party that the late Professor owned any other building or buildings elsewhere.  This leads me to conclude that any reference “my old and new house” by the late Professor amounts to reference no other properties but those in dispute. A reading of EXHIBITS 2 – 2D confirm to me that the late Professor put DW2 in charge of his properties during the period that he and Plaintiff travelled round the world. In EXHIBIT 2D, he states “please continue to look after the house”.  Again in EXHIBIT 2B, he pleads with DW2 to “continue to check as always if everything is ok at my old and new houses”.  Contrary to the view held by Counsel for Plaintiff, I do not think the inability of the witness to provide evidence of remittances for construction is proof that he did not supervise the construction of the house in the light of these compelling pieces of evidence found in EXHIBIT 2 series.   \r\n I also find that EXHIBIT 2B dated the 9th day of October, 1995, corroborates the evidence of DW2 that the Plaintiff was never engaged in any gainful employment during the period in issue. He testified that Plaintiff had to approach him for financial assistance at some point. The first paragraph of the said exhibit reads “…my wife arrived safely yesterday……I am always grateful for the role you continue to play for us. I managed to send her just before she left Ghana, $2000 thus her inability to see you again. Now, it remains Duke Papas cement …. Please endeavor to go there and maintain that I will remit him soon.”  \r\n18  \r\nWhat I glean from the above, is a confirmation of the evidence of DW2 that Plaintiff fell into some financial difficulty during the period that the said house was under construction. I believe that this was the reason why the late Professor found it necessary to send her $2000 during her stay in Ghana at the time.  The contradiction between the picture painted by Plaintiff of her financial standing as at 1995 and the reality as evidenced by EXHIBIT 2B is quite obvious. The natural question is, if Plaintiff was truly the wealthy business woman she claims she was at the time, why was it necessary for the late Professor to send her  $2000 during her stay here and why was she unable to pay for ‘Duke Papa’s cement’ before leaving Ghana? Quite apart from the fact that the said Exhibit reveals Plaintiff’s total reliance on the late Professor for her upkeep, it also demonstrates that the said construction was funded solely from his resources.  I am further strengthened in this view by EXHIBIT W series. These were tendered by Plaintiff to prove that she took loans from the bank to complete the Adjirigano house. I must say firstly, that apart from the fact that the evidence on record shows that the said house was completed and actually occupied by the late Professor on his return from Zimbabwe in the late 90’s, there is no evidence that the said loan even if taken by Plaintiff  was used to complete or develop the said house. EXHIBIT W series relates to a loan taken in 2008 which was after the death of the late Professor. In my view if EXHIBIT W series prove anything at all, it is the fact that Plaintiff could not have built the Adjirigano house. This is because, as the evidence shows, it is only after the late Professor’s death that Plaintiff took up a job following which she applied for a loan of Ten Thousand Ghana Cedis (GH&#572;10,000.00). EXHIBIT W series do not specify which “PROJECT” the loan was taken for. But even if it was taken to complete the said house, it is rather curious that this only became necessary after the death of the Professor.  \r\nThe only inference this Court can draw from this state of affairs is that Plaintiff found herself in dire straits following the loss of her only source of livelihood. In other words, the late Professor who “made sure (she) never had cause to regret her decision” to give up her teaching career was no more.   \r\nAs earlier observed, apart from the assertions of Plaintiff which I consider unsubstantiated, there is absolutely no evidence of before this Court that Plaintiff ever worked during the period that the late Professor was alive. It is therefore little wonder that the late Professor in EXHIBIT 3 expressed the real fear that “my present wife will find it difficult to look after the children…”  I find that all the surrounding facts \r\n19  \r\nand circumstances of this case tend to corroborate the Defendants’ position that Plaintiff is not the owner of the Adjirigano house as she was not financially capable of putting up same.  \r\n Also instructive is the evidence of DW4, a contractor who was engaged to work on the said house.  Although the witness appeared to have a hazy recollection of the actual work he did, I am persuaded by the nature of his evidence that he was being truthful. DW4 testified that it was the late Professor who engaged him to construct the said house. He stated that he had occasion to purchase building materials sometimes with the Plaintiff and sometimes with the late Professor. Though he did not challenge this assertion, Counsel for Plaintiff sought to contend under cross-examination, that DW4 was not in the position to know who provided monies for the said purchases. I must agree with Counsel on that score but this, in my view, is a case in which the facts speak for themselves. In the face of the lack of evidence that Plaintiff was employed at the time the said house was constructed, the said monies could have come from no other person than the late Professor. The evidence of Defendants to that effect, as well as the Plaintiff’s own admission in EXHIBIT E , her tribute to the late Professor, is ample evidence of this fact. Put against this admission, the fact that certain documents like EXHIBITS T and V series, bear the name of Plaintiff does not advance her case in anyway. Indeed this can be explained away by the evidence on record showing that it was Plaintiff who supervised construction of the house on behalf of the late Professor any time she visited Ghana from Zimbabwe. This fact is buttressed by EXHIBIT 2 where the late Professor states in the first paragraph that “my wife is in Ghana to put finishing touches to my new house” (emphasis mine). I do not disregard the real likelihood for couples to pool their resources together for the joint acquisition of property.  But that is not the contention of Plaintiff in this case. Plaintiff asserts that the Adjrigano house is her self-acquired property to which the late Professor made absolutely no contribution. The onus of proving this therefore lay on Plaintiff.  This onus, in my opinion she dismally failed to discharge. Plaintiff’s evidence unfortunately, does not meet the standard set by the AMANKWAH case (supra). Consequently, I find that Plaintiff has failed to satisfactorily prove that the Adjiriganor house is her personal property and thus does not form part of the estate of the late Professor. This Court does not disregard the fact that even in a valid Will, any inclusion of property which should not form part of the Estate of a Testator may be challenged and deleted therefrom. However, there is ample evidence before me that both the Kinshasa house and the Adjirigano house were acquired by the late Professor \r\n20  \r\nthrough his “own hard work and discipline” as he asserts in EXHIBIT 3 and I so hold.  \r\nOn the issue of whether or not Plaintiff and or her children are entitled to join the Defendants as Administrators of the Estate of the late Professor, I think it is quite clear from my analysis of the case so far, that the late Professor died without a surviving spouse. It also appears to me that even though Plaintiff on her pleadings sought to challenge the capacity of Defendants attorney, this claim was not pursued. Plaintiff by her reliefs does not seek a revocation of the grant but for an order joining her and /or her children to the Administrators of the Estate of the late Professor Under Order 66 Rule 13 of The High Court (Civil Procedure) Rules, CI 47, the children of the deceased rank first in order of priority, in the absence of a surviving spouse. The fact that the late Professor recognized Plaintiff’s children as his own is not in dispute. The question that remains to be answered however, is whether the present Administrators truly represent the interest of the children of Plaintiff.  Section 79(2) of the Administration of Estates Act, Act 63 as amended by Section 5 of the Administration of Estates Amendment Law (PNDC l13) enjoins the Court in granting Letters of Administration, to have regard to all persons interested in the Estate of the deceased. Ordinarily, the Defendants, as children of the late Professor would be deemed to represent the interest of all the deceased’s children, including the children of Plaintiff, since they are in the same class under the Intestate Succession Act, (PNDCL 111)   This Court cannot however close its eyes to the real likelihood that the relationship between the Defendants and the Plaintiff’s children will not be cordial for obvious reasons.  As held by LUTTERODT J in the case of IN RE ARMAH (Decd), ARMAH V ARMAH [1991] 1GLR 140 the Court should not only be interested in a mere administration but a smooth one.  Happily, on the evidence, all the children of Plaintiff have now attained majority. I will therefore order that one child of the Plaintiff together with the Administrator General be joined to the Defendants as co-Administrators to administer the Estate of the late Professor in accordance with The Intestate Succession Law, 1985, (PNDC 111).  It is my hope that the presence of a neutral in the person of the Administrator General will have a moderating effect on the strained relationship existing between the disputants for a smooth, economical and expeditious administration of the said Estate.  \r\nIn the result Plaintiff’s reliefs a) c) d) and e) are hereby dismissed.  Plaintiff’s relief b) is however granted subject to the orders of this Court as stipulated in this Judgement. \r\n21  \r\n Given the facts and circumstances of this case, I will make no order as to costs.   \r\n                                                                                                [SGD]       AKUA SARPOMAA AMOAH (MRS.)           JUSTICE OF THE HIGH COURT  \r\nAey/….          ', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'BFA/107/10', '', '', '', '2016-07-29', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(626, 'MADAM ADZO TORBIZO VRS. 1. LOUIS ANANI 2. ROBERT QUARSHIE 3. LOUIS QUARCOO 4. JANET MAMIE ADAMTEY ', '', 'links/cases/MRS. GEORGINA OSEI ASAMOAH - JUDGMENT.docx.pdf', 'Yes', '', '2015', 'High Court', 'JUDGMENT  \r\nBY COURT: By the Plaintiffs amended Writ of Summons filed on 19th May 2014 the following reliefs were claimed.  \r\na) A declaration that house Number B314/18, Bubiashie is jointly owned by the Plaintiff and the 1st defendant. b) An Order restraining the 1st, 2nd and 3rd defendants or their agents from disposing off the property known as house number B314/18 Bubiashie, Accra. c) An Order restraining the 4th Defendant from purchasing the property known as House Number B314/18, Bubiashie Accra, from 1st, 2nd and 3rd Defendants or their agents or privies.   \r\nP a g e | 2  \r\nIn the statement of claim that accompanied the writ, the plaintiff pleaded that she is the wife of the 1st Defendant and that they had been married for about 50 years under Ghana Customary Law and had eight (8) children.  That she the Plaintiff assisted the 1st Defendant to complete House Number B314/15 Bubiashie, and had lived in the said house as the matrimonial home.  The Plaintiffs pleading stated further that the 1st Defendant being a citizen to Togo has since 2011 left Ghana to settle in his country, the Republic of Togo and Authorized the 2nd and 3rd defendants to sell off the house in issue. In furtherance to the threat to sell the house the 1st, 2nd and 3rd Defendants wrote to her by their Solicitor and asked her to vacate from the house. That should the house be sold, she would be rendered homeless. The defence of the 1st, 2nd and 3rd Defendants is that the Plaintiff is the wife of the 1st Defendant, who was eighty-four in 2013 when the defence was filed.  He also admitted that he is a Togolease, but was born in Ghana.  That he is now partially resident at Dabala and Togo and that when he was leaving Accra he asked the Plaintiff to join him, but she refused.  That 1st Defendant pleaded further that he moved because of the ill treatment meted out to him by the Plaintiff and her children  who sometimes beat him up and even refuse to give him food. The 1st Defendant pleaded further that all the eight children he had with the Plaintiff are of age and therefore he is under no obligation to provide them with accommodation.  The 1st Defendant denied that he jointly acquired the house with the Plaintiff, and pleaded specifically that he built the house before he married the Plaintiff.  The 1st, 2nd and 3rd Defendants pleaded further that the house had already been sold since the 1st Defendant has relocated, and the house has ceased to be a matrimonial home.  The Plaintiff should join her husband if she considers herself as the wife of the 1st defendant especially as the 1st defendant has asked her to join him.  The 1st defendant pleaded further that he disposed off the Bubiashie house to use the accrued income to rehabilitate his houses at Dabala and Togo. The 1st Defendant Counter-claimed as follows: a) Declaration that the house in question is the self acquired property of the 1st Defendant. b) Declaration that once the 1st Defendant has relocated, the house ceases to be a matrimonial home. c) An Order requiring Plaintiff and her children and tenants claiming through them to vacate the premises and give vacant possession to the purchaser. The 4th Defendant also filed a defence and pleaded that she is a bonafide purchaser for value without notice.  She then Counter-claimed as follows: \r\nP a g e | 3  \r\na) Declaration that the landed property numbered B314/18 situate at Bubiashie Accra is the self-acquired property of the 1st Defendant b) Declaration that landed property numbered B314/18 situate at Bubiashie Accra is not the matrimonial home of the Plaintiff and 1st Defendant by virtue of the Plaintiffs permanent relocation from the said property. c) An Order requiring the Plaintiff, her children and tenants to vacate the said property and give vacant possession to the 4th Defendant. At the close of the Pleadings the following issues were set down for determination. a) Whether or not the Plaintiff is the lawful wife of the 1st defendant. b) Whether or not House Number B314/18 Bubiashie is a matrimonial home. c) Whether or not the 1st Defendant, the deserted husband can sell the matrimonial home and throw out the plaintiff. d) Whether or not the Plaintiff has right and share in the matrimonial home  e) Whether or not the Plaintiff is entitled to her claim f) Whether or not the building in question  is the self acquired property of the 1st defendant. g) Whether or not the 1st defendant has given the 2nd and 3rd defendants authority to sell the said house. h) Whether or not the 1st Defendant left the house as a result of ill treatment by the Plaintiff. i) Whether or not the 1st Defendants have as a result of the Power Attorney sold the house out. j) Whether or not the purported sale by the 2nd and 3rd Defendants to the 4th Defendant is null and void. k) Whether or not the 4th Defendant is entitled to an Order to compel the Plaintiff and her Children to vacate House Number 314/18 Bubiashie Accra for the occupation of the 4th Defendant After hearing the evidence of the parties, and going through the pleadings, some of the issues set down for resolution cannot be said to be contested issues at all. There is no dispute between the Plaintiff and the 1st Defendant.  The evidence of the Plaintiff and that of the 1st, 2nd and 3rd Defendants establish the fact that until the 1st Defendant left the house in dispute, that house was the matrimonial home of the Plaintiff and the 1st Defendant. Issues ‘C’ is however a bane of contention between the parties.  The Plaintiffs evidence is that when she married, she was sent to this house.  She met another wife of the 1st  \r\nP a g e | 4  \r\nDefendant in the house.  There was a quarrel between the Plaintiff and her rival.  She therefore left the house and rented a room elsewhere.  Her husband, the 1st defendant begged her and she went back to the in dispute. The 1st Defendants evidence is that he built the house to completion before she married the plaintiff.  That his other wives were staying in the house.  That because of jealousy he the 1st Defendant decided to rent a room for the Plaintiff outside the house.  Counsel for the Plaintiff admitted that at the time that the Plaintiff was married to other wives of the 1st defendant were living on the land, but in constructed zinc house.  The defendant however denied this and insisted that he had completed the house before he married the plaintiff.  From Plaintiffs own evidence, the Cross examination of the 1st Defendant by the Plaintiffs counsel plus the evidence of 2nd Defendant, who said he was, 23 years old before his father married the plaintiff, I hold that house number B314/18 Bubiashie had been acquired by the 1st Defendant before the Plaintiff was married. The Plaintiffs evidence is that she assisted the 1st Defendant to improve the house to its present state.  The 1st Defendant before Plaintiff was married. The Plaintiffs evidence is that she assisted the 1st Defendant to improve the house to its present state.  The 1st Defendant denied this, but assuming that the Plaintiff even assisted in improving the house, would this assistance turn the house to a joint property, especially as the 1st Defendant had many wives at that time. Until the 1992 constitution came into force, the customary rule or law was that “If a married woman assist her husband to acquire property, that property will not be a joint property of the married couples, but remains the property of the man. This was one of the decisions in the case of Adjabeng vrs. Kwabla (1960) GLR 32 where Ollunna J. as he then was held at page 41 as follows: “By customary law, where a Son or a ward works with his father or guardian and out of the proceeds of that joint labour the father or guardian acquired property, the Son or ward does not become joint owner of that property with the father or guardian…………… Similarly by customary law where a Son or a ward assists his father or guardian with money and the father or guardian uses that money, or that money together with other monies of his own, to acquire property, the Son or ward does not become joint owner with the father, or guardian of the property so acquired.  Then in Abebreseh Vrs. Kaah and others(1976)2 GLR 46, Sarkodee J. referred to the dictum of Ollennu J. in Adjabeng Vrs. Kwabla, and held at page 52 as follows: ‘That rule referring to the dictum of Ollennu above quoted) takes its root from a fundamental principle of the customary law that a Son or a wife is a dependent of a husband and that family life requires, indeed it is a responsibility, that a Son should assist  \r\nP a g e | 5  \r\nhis father and wife should work with or for her husband and the property acquired with such assistance is the individual property of the man. The above statement is also contained in the Judgment of Ollenu J. as he then was in Quartey Vrs. Martey (1959) GLR 377 at page 380. However I am aware that the Courts have moved away from the customary law principle above stated and leaned toward declaring property acquired by married couples during the pendency of their marriage as joint property.  This was the conclusion in Abebrese Vrs. Kaah (supra) Achiampong Vrs. Achiampong (1982-83)2 GLR1017 C.A. and Quartson vrs. Quartson (2012)2SC GLR 1077. In this case, however the evidence is that the house had been completed before the Plaintiff was married and met some wives in the house.  The house in dispute is therefore the self acquired property of the 1st defendant.  The only interest of the Plaintiff is the right to reside in it as her matrimonial home. The next issue to be resolved is should this house continue to be the matrimonial home of the Plaintiff, even though her husband has relocated to his hometown in Togo The 1st defendants case is that he is advanced in age but his wife being the Plaintiff and his adult children by the Plaintiff, with whom he was sick for about 3 years and the Plaintiff who lived in the same house but in separate rooms never asked of him, nor cared for him. The 2nd Defendant gave evidence that “his father told him about the ill treatment being meted out to him by the Plaintiff.  The 3rd defendant gave evidence that he used to visit his father regularly when he was in Accra.  On one of his visits, he entered his room and noticed that there was a stench.  The 1st defendant was then sleeping on one of his chairs in the sitting room.  He woked him up and noticed that he had defecated and urinated in the room.  Where he, the 3rd defendant inquired as to why he was in that condition, the 1st defendant told him that he had virtually been abandoned. At that time, the Plaintiff and some of her children were staying in the house with their wives. He the 3rd defendant arraigned for an outsider to come and clean up the place.  Counsel for the Plaintiff did not Cross examine the 3rd defendant on his evidence on the state that he met his father, the 1st defendant.  Since this evidence was not challenged, it meant the Plaintiff accepts that the evidence is true as held in Fori Vrs. Ayirebi and others (1966) GLR 627 holding 6 and in Hammond Vrs. Aminah and Another (1991) 1 GLR 89.  Strictly speaking since the house is the self acquired property of the 1st defendant, he does not need consent or permission of the Plaintiff to sell.  However since that house had become the matrimonial home of the Plaintiff and other wives of the 1st defendant, the 1st defendant is under an obligation to give the Plaintiff a new matrimonial  \r\nP a g e | 6  \r\nhome. The 1st defendants case is that for a very long time, the Plaintiff had deserted him, though the Plaintiff lived in a separate room in the same house with the 1st defendant.  According to the 1st Defendant as well as the 2nd and 3rd defendants, when the 1st defendant decided to relocate to Togo his home country he informed the Plaintiff and asked her to go with him, but the Plaintiff declined.  Having declined to go to Togo with the 1st defendant it does not lye in the mouth of Plaintiff to say that as a wife of the 1st defendant, she has the right to live in this house, so it cannot be sold without her consent.  Even if the 1st defendant were to remain in Ghana, with the Plaintiff being his wife, the 1st defendant could still sell the house since it is his own house.  The 1st defendant can change the matrimonial home by renting a place. In this case, the evidence shows that the 1st defendant has accommodation in Togoville, in Togo and intend to use part of the proceeds from the sale of the house in dispute, to renovate the house in Togo.  The import of this evidence is that the 1st defendant has relocated his matrimonial home to Togoville, in the Republic of Togo.  As a wife of the 1st Defendant the Plaintiff can live in this new matrimonial home in Togoville. The house in dispute is therefore no longer the matrimonial home of the Plaintiff and 1st defendant. The 1st defendant and the 2nd and 3rd defendants led evidence to the effect that the Plaintiff and her children who lived in the house in dispute are not responsible.  Apart from the fact that they did not take care of the 1st Defendant, they even misused the income from the house in dispute and did not account to 1st defendant.  Even though a child has no legal obligation to take care of his or her father, there is a moral obligation for a child to take care of his or her parents when such parents are sick or advanced in age. In the same manner a parent has no legal obligation to provide accommodation to his adult children.  Since there is no evidence before me that some of the children of the Plaintiff with the 1st defendants are infants, the Plaintiff can not prevent the sale of the house on the grounds that she and the children who lived in the house will be rendered homeless. I therefore hold that the sale of the house, which is said to have been concluded, is proper” If the Plaintiff intend to continue with her marriage to the 1st defendant then she should be ready to move to Togo to live with her husband. In a similar case, the facts of which are as in this suit, a man with two wives in    Takoradi decided to go back to his hometown in Saltpond when he was retired as a result of ill health.  The 2nd wife, who also hailed from saltpond as the man, refuse to relocate with him.  The man then sold his estate house that had been provided for the 2nd wife. The purchaser thereafter instituted ejection proceedings in the district court, Takoradi.            \r\nP a g e | 7  \r\nThe 2nd wife put up a defence that since she was a lawful wife of the seller of the house and the house had been sold without her knowledge and consent, the sale is null and void. The district court, gave Judgment for the purchase.  The wife appealed to the High Court Sekondi.  The high Court reversed the Judgment of the District Court on the grounds that since the appellant was a lawful wife of the seller of the house, and the house being her matrimonial home, her husband could not sell the house without the consent of his wife. The purchaser went on appeal against the Judgment of the High Court which was presided over by Essilfie Bondzie J. as he then was to the court of appeal. In the Court of Appeal the case had the following particulars Civil Appeal N0 16/92 Grace Koomson & Anor. ……………….. Defendants/Appellant/Respondents  Vrs. Grrace Kodjo and Anr. ……………….. Plaintiffs/Respondents/Appellants On 28th day of April 1994, the Court of appeal presided over by G.L. Lamptey E.D.K.  Adjabeng and A.A. Forster gave judgment for the Plaintiffs, Respondents Appellants in the following ward. Judgment read.  The appeal is allowed.  The judgment of the High Court dated 7th August 1889 is set aside.  The judgment of the District Court Grade 1 is hereby affirmed. ORDERS:- If the costs awarded in the High Court had been paid the same should be refunded.  The orders made by the District Court Grade 1 are hereby affirmed we make no order as to costs in this Court” I have tried to secure a copy of the full Judgment, but to no avail except what ha been above stated.  Relating above decided case with the one before me,  it is my holdings that the sale of the house Number B314/18 Bubiashie, which was written as Bubuashie is proper. The 4th defendant gave evidence that when she decided to purchase the house, she visited the said house on two occasions and spoke to the Plaintiff alone, and the Plaintiff is alleged to have confirmed that the house belonged to the 1st defendant and that the Plaintiff was the wife of the 1st defendant.  On the 2nd occasion, the 4th Defendant spoke to the Plaintiff and one of his Sons, and they confirmed that the house belonged to the 1st defendant, and that he wanted to sell. The 4th Defendant was not Cross Examined on this evidence.  Since the Plaintiff and her Son know that the 1st defendant intended selling the house and the 4th Defendant had expressed interest in buying the said house and the Plaintiff and her Son have been staying in the house as licensees of the 1st defendant, their license was revoked on the  \r\nP a g e | 8  \r\nsale of the said house.  There is also evidence before the court that in June 2012 the Plaintiff was informed by a letter that the Plaintiff should vacate from the house.  One may ask, since the Plaintiff was then married to the 1st defendant, why was the Plaintiff asked to vacate?  The answer may be found in the evidence of the defendants.  According to the 1st Defendant he went to live in Togoville about four years ago.  This evidence was given on 14th May 2015.  If four years is taken from 2015, it meant the 1st Defendant left Ghana in 2011.  Again the 1st defendant gave evidence that he and the Plaintiff stopped as husband and wife a long time ago.  Since the 1st Defendant had moved to Togoville and want money to renovate the house in Togo so that the Plaintiff and her children may have a place to stay should they go to Togo, the 1st Defendant had the right to eject his wife from his house. The Plaintiff having been asked to vacate from the house as far back as June 2012, the 4th Defendant who has stepped into the position of the 1st defendant can take recovery of possession of the house that she has purchased. Before the Plaintiff ended her evidence in Chief, the Plaintiff said “my lord, I am the 1st defendants wife and he says we should vacate from the house that is why I came to Court” Since I have held that house Numbered B314/18 Bubiashie is the self acquired property of the 1st Defendant, and the 1st defendant has moved his matrimonial home to Togoville, in the Republic of the Togo, and has invited the Plaintiff to Togoville, the 1st defendants sale of the said house number B314/18 Bubuashie to the 4th Defendant is proper. I therefore dismiss the Plaintiffs reliefs and enter judgment for the 1st and 4th defendants as follows: a) House Number B314/18 Bubiashie, Accra was until its sale, the self acquired property of the 1st defendant. b) That with the relocation of the 1st defendant from house number B314/18 Bubiashie that house has ceased to be the Plaintiffs matrimonial home. c) The Plaintiff and all her children and tenants claiming through the Plaintiff and any of her children are to vacate the premises and give vacant possession to the 4th Defendant, the Purchaser. No Order as to cost.         (SGD)        JUSTICE S. H. OCRAN          JUSTICE OF THE HIGH COURT  \r\nP a g e | 9    ', 'S. H. OCRAN, J', 'Civil', '', 'FAL/994/13', '', '', '', '2015-12-22', ''),
(627, 'N.D.K FINANCIAL SERVICES LTD VRS ANDRE KWAME GYENFIE', '', 'links/cases/NDK FINANCIAL SERVICES.pdf', 'Yes', '', '2016', 'High Court', '   \nJUDGMENT  \nPlaintiff in a writ issued claims against the Defendant the following endorsement:   \na. The sum of GHC 5,238,403.46 (Five Million Two Hundred and Thirty Eight Thousand Four Hundred and Three Ghana Cedi Nineteen Pesewas) being the outstanding debt in respect of the loans granted to the Defendant. b. Interest at the monthly rate of 4.25 % per month from the 1st August 2015 till date of final payment. c. The sum of GHC 130,960.08 (One Hundred and Thirty Thousand Nine Hundred and Sixty Ghana Cedis Eight Pesewas). d. Cost and Attorney’s fees being 10% of the sum owed. e. Judicial sale of the Defendant’s landed properties which are mortgaged and which properties are described in paragraphs 10 and 11 of the Statement of Claim  \n2 | P a g e  \nPLAINTIFF’S CASE The basis for the demand of the reliefs endorsed on the writ is captured in the statement of claim that accompanied the writ. Plaintiff avers that the Defendant applied to it for a credit facility of US$800,000.00 to enable Defendant acquire a residential property at Airport Hills. Plaintiff states that it approved the application and granted to the Defendant an amount of GHC2,320,000 (Two Million Three Hundred And Twenty Thousand Ghana Cedi) being the Cedi equivalent of US$800,000 at the then prevailing rate of GHC2.90 to a dollar.   \nPlaintiff further avers that Defendant applied for an additional credit facility of GHC50,000 (Fifty Thousand Ghana Cedi) to enable the Defendant register his interest in a commercial property situate at Spintex Road. Plaintiff states that it approved the loan by granting the additional facility of GHC 50,000 to the Defendant.  Plaintiff further says that by a letter dated the 25th September, 2014  Defendant applied, for a third time, for an additional loan which the Plaintiff approved, and that pursuant to the approval the Plaintiff granted the amount of  Ghc 660,000 (Six Hundred and Sixty Thousand Ghana Cedi).  Plaintiff asserts that all the loans were granted at a monthly interest rate of 4.25% and were to be repaid within three months of the grant of each facility. Plaintiff says that the loan agreements under which the loans were granted contained a term that upon default the Defendant would pay a flat penalty rate of 2.5% on the balance outstanding in addition to the agreed interest. Plaintiff avers that the Defendant mortgaged two landed properties to it to secure the repayment of the loan; that by a letter dated the 25th day of April, 2014 Defendant executed a mortgage over No.510, Buena Vista Road Airport Hills, Accra, and also mortgaged House No.76 Spintex Road, Accra. Plaintiff says that by a Power of Attorney dated the 10th day of October 2014, the Defendant constituted the Plaintiff as his attorney to deal with the Lands \n3 | P a g e  \nCommission and take delivery of title documents to the property until Defendant performed its financial obligations to the Plaintiff. Plaintiff makes the case that despite persistent demands and notices to the Defendant, Defendant has failed to pay off the debt it owes to it and that in the circumstance the Plaintiff was entitled to the reliefs and also to sell the mortgaged properties.  \nDEFENDANT’S CASE  Defendant has denied the averments of the Plaintiff which forms the basis of the claim. Defendant asserts vehemently that the agreement between him and the Plaintiff was that the Plaintiff would finance the purchase and cost of documentation of House No. 510, Buena Vista Airport Hills, Accra and that Plaintiff would be reimbursed after the sale of Defendant’s property situate at  Plot No. 55 Spintex Road, Accra. Defendant states that the agreement reached was that the reimbursement of the Plaintiff would be subject to the sale of Plot No. 55 Spintex Road. Defendant states that as a result, by a power of attorney, he gave power to the Plaintiff to collect title deeds on the Defendant’s property. Defendant contends that the sale of the house has delayed because the documentation has not been completed for the sale to be effected. It is the Defendant’s case that the entire loan facility has been frustrated by the delay in the documentation process as the delay has stultified the sale of the property the proceeds of which, per their agreement, was to be used to reimburse the Plaintiff.  Defendant contends that the Plaintiff instituted this action in bad faith as it is the Plaintiff who has breached their agreement. Defendant, therefore, counterclaims for the following reliefs:  \ni. A declaration that the Plaintiff has breached the agreement entered \n4 | P a g e  \nbetween the parties to govern the reimbursement of Plaintiff after the sale of Plot No.55 Spintex Road, Accra including the factory by the commencement of this action.  \nii. Damages for breach of oral agreement.  \niii. Damages for acting in bad faith.  \niv. Costs on full indemnity basis  \nPre-trial settlement between the parties having broken down, the following issues were slated for trial:  \n1. Whether or not the parties agreed that the Plaintiff would finance the purchase and cost of documentation of the Plaintiff’s house. 2. Whether or not the parties agreed that the Defendant would reimburse the Plaintiff after the sale of the Defendant’s property on the Spintex Road. 3. Whether or not the parties agreed that the reimbursement for the sale of the Defendant’s airport property would be subject to the sale of the Defendant’s warehouse. 4. Whether or not the loan has been frustrated by the delay in the documentation that would lead to the sale of the Defendant’s property on the Spintex Road. 5. Whether or not the Defendant is entitled to his counterclaim. 6. Whether or not the Plaintiff is entitled to its claim. 7. Any other issues arising from the pleadings.  \nEVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW As there is a claim and a counter claim both parties have obligations to prove their claims and counter claims on the balance of probabilities. The dictum of \n5 | P a g e  \nBrobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS [2003 – 2004] SCGLR 420 is very instructive that:  \n “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…”  \nSee also the following recent cases: HENRY DOE SAMLAFO V. GREDA &ANOR. [2010] 26 GMJ 94, CA, MAC DAN V. GABRIEL GBORBLESHIE [2015] 85 GMJ 90 at 113; MARIAN OBENG MINTAH v. FRANCIS AMPENYIN, Civil Appeal No. J4/18/2013, dated 25th March 2015, SC (Unreported) In respect of the counter claim it is to be viewed with the same scale of measurement as if defendant was the plaintiff. As far back as the case of AMON v BOBBETT (1889) 22 QBD 543 where Browne LJ noted that:  \n “a counter claim is to be viewed and to be treated for all purposes for which justice requires it to be so treated as an independent action”.  \nDotse JSC came to the same conclusion on counter claim actions in the case of JASS CO. LTD v APPAU [2009] SCGLR 269 at 271 that:   ‘whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant’  \nIn the case of NII ODOI KWAO ASUMANG& 2 ORS. V. WILLIAM SOWAH CHARWAY& 14 ORS. [2014] 75 GMJ 108, CA at p. 135 held:    \n6 | P a g e  \n“It is trite law that a party who counterclaims becomes plaintiff as far as that counterclaim is concerned. The burden of persuasion shifts unto that defendant to establish that claim as if he was a plaintiff.”  \nAlso, in NOTEY V. AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION [2014] 77 GMJ 1 at 40, it was held:    \n“Without any doubt a defendant who files a counterclaim assumes the same burden as the plaintiff in the substantive action if he/she is to succeed. This is because a counterclaim is distinct and separate claim on its own which must also be proved according to the same standard of proof prescribed by sections 11 and 14 of the Evidence Act (1975).”  \nAkamba JSC in J.K.KPOGO V. F.K. FIADZORGBE, Civil Appeal No. J4/9/2012, dated 6thMay, 2015 (Unreported) held:    \n“It is trite that a counterclaim is a separate action in which the counterclaimant assumes the burden to establish that his burden is true.”   \nSee also:  OPANIN KWASI ASAMOAH V. KWADWO APPEA [2003-04] SCGLR 226 at 246; FOSUHENE v. OWUSU [2011] 32 GMJ 163; JOSEPH AKONU BAFFOE v LAWRENCE BUAKU, SC J4/6/2012  \nHow did plaintiff prove its claim and the defendant its counterclaim?  \nThe plaintiff during trial testified through its representative, Joy Edem Menka and consistent with its averments in the statement of claim tendered the following crucial exhibits before the court. Exhibits ‘B’ and ‘C’ that deals with the first loan of US$800.000.00. Exhibits ‘F’ and ‘G’ regarding the second facility of Ghc50.000. The third and final facility in the amount of Ghc660.000 \n7 | P a g e  \nis covered by Ex ‘J’ and ‘K’. The defendant on the other hand testified in person and also subpoed the CEO of plaintiff – Oko Nii Kwei Djanie. Defendant tendered Exhibits ‘1’ to ‘4’, which included, among others, valuation report of a property defendant intended to surrender and a power of attorney he executed in favour of the plaintiff institution.   \nFrom the evidence adduced at the trial, it seems to me that there are three loan contracts involved between the parties. The first is the 25th, April 2014 in the amount of US$800.000.00. The second is covered by Ex ‘E’ and ‘F’ and the amount involved is Ghc50.000. The third and final loan transaction is captured in Ex ‘J’ and ‘K’ with the loan advanced being Ghc660.000.00. All the three loans had an interest rate of 4.25% per month compound and calculated on a thirty day per month basis. All these material facts are not controverted at all by the defendant and in the cross examination of Joy Edem Menka by counsel for the defendant, there was no slightest attempt at all to deny this amount that is owed in the following:  \n“Q: Now by your writ of summons and statement of claim, you are claiming the sum of Ghc5,238,403.46 being outstanding debt in respect of the loan granted to the defendant. Is that correct?   A: That is correct as at the time of filing.  \nQ: Now as at 31st July, 2015 as contained in Exhibit ‘M’ the principal amount plus interest amounted to Ghc 5,238,403.54 is that correct?  \nA: That is correct”  \nI will find as a fact that these three loan transactions exist between the parties \n8 | P a g e  \nwith a total amount of Ghc5,238,403. 46 (Five Million Two Hundred and Thirty Eight Thousand Four Hundred and Three Ghana cedis Nineteen Pesewas) and as the monies outstanding on the loans. If the amount owed on these three loans stands as at the time of filing of the writ to be Gh5,238.403.46 the question is has the defendant paid those monies?  \nA look at the loans shows that the three months duration period as the lifespan of the loans have long lapsed. Defendant makes a categorical admission in court that he had not paid the money when he was confronted in the following:  \n“Q: Please take a look at the exhibits, and you will know very well that at all material times you made contract with the plaintiff.  \nA: I agree My Lord.  \nQ: And in all these facilities you bound yourself to pay within three months.  \nA: Yes My Lord”  \nSo there is no doubt from the evidence on record that defendant is indebted to the plaintiff in the amount to the tune of Ghc5,238,403.46 and that the time for repayment has long elapsed. However, I could glean from the defence that defendant is putting up a defence of admission and avoidance. As he claims that indeed he took the loans but the repayment was agreed to be conditioned upon the sale of his property at Spintex known as Plot No 55, Accra. And as the sale of the Plot No 55 is not yet sold due to issues regarding documentation, the contract has been frustrated and he ought to be discharged from any further performance of his obligations under the contract.  \n9 | P a g e  \nThis issue of frustration together with the third issue regarding whether the parties agreed that defendant was to repay the loans from the sale of Plot 55 on the Spintex Road appears to be the two germane issues that will determine the success or failure of this action by the plaintiff and also whether defendant would be entitled to his counterclaim.  \nIt is clear, therefore, on the claim or allegation of frustration of the contract that defendant bears the burden of producing the evidence on that score. As it has been held in the case of ABABIO v AKWASI III [1994-95] GBR 774 the Supreme Court echoed the rules as follows:   “a party whose pleadings raised an issue essential to the success of his case assumed the burden of proving such issue. The burden only shifted to the Defendant when the Plaintiff has adduced evidence to establish the claim”  \nSections 10 and 11 of the evidence Act, NRCD 323 is clear on the respective burden of proof and of persuasion that is borne by parties to a suit. Did the defendant prove the claim of the contract having been frustrated?  \nDefendant maintained the claim of the frustration of the contract in his witness statement and when the defendant came under cross examination he still stood his ground in the following exchanges:  \nQ: I further put it to you that your evidence that the loan contract had been frustrated by delay in the documentation process are also untrue  \nA: I disagree vehemently.  \nQ: I further put it to you that the failure to dispose off your property does not in any take away your obligation to pay the plaintiff the amount you owe  \n10 | P a g e  \nA: I do not agree with that statement. I told My Lord that we were happy to settle this debt, we have three proposals which he has rejected. And if we are strictly to go by the terms of the agreement and the spirit of the agreement, he has to wait for the property to be disposed off. And I don’t see why he came to court, My Lord”  \nThe terms of the agreement that defendant refers to are Ex ‘B’, page 3 captioned ‘Source of Repayment’. It states that “proceeds from the sale of property located at Spintex Road”, in Ex “C” at page 2 under clause 11.2 the source of repayment is repeated as proceeds from the sale of property located at Spintex Road. Again in Ex ‘F’, ‘G’, ‘J’ and ‘K’ the same source of repayment is repeated. As a matter of fact the sale of the property has not materialised because of the non-completion of the registration process at the Lands Commission. Does that amount to frustration of the three loan contracts entered between the parties as to discharge defendant from any performance of his obligations under the contracts?  \nA party in contract is bound by the terms of the contract that he has voluntarily entered into unless there are vitiating factors to the contract. A contract that has validly been entered into may be discharged by a number of factors including frustration. Any unforeseen contingency that occurs after the contract had been entered into that makes the performance of the contract physically impossible or radically change the nature of the obligations of the parties can be said to be frustration. So in the case of TAYLOR v CALDWELL [1863] 3 B&S 826 which  involved a contract for the hiring of  a music hall for performance but before the contract could be performed, the hall was burnt down. The court held that the performance of the contract had become impossible as the parties did not anticipate the occurrence of such an event. Any occurrence that seems to fundamentally alter the obligations of the parties to the contract will suffice. A \n11 | P a g e  \nbetter definition was given in the case of DAVIES CONTRACTORS v FAREHAM U.D.C [1956] A.C. 696 as follows:  \n“frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract…”.   It has been noted that hardship, inconvenience or material or financial loss cannot be relied upon as having called into operation frustration of a contract. The frustrated event must affect the subject matter of the contract or the fundamental obligation created by it and the event must render the contractual obligation radically different from what was originally undertaken. See DAVIES CONTRACTORS supra. MARITME NATIONAL FISH LTD v OCEAN TRAWLERS LTD [1935] A.C 524; JOSEPH CONSTANTINE STEAMSHIP v IMPERIAL SMELTING CORPORATION [1942] A.C. 154.  \nAcquah JSC (as he then was) in the case of BARCLAYS BANK LTD v SAKARI [1996-97] SCGLR 639 emphasised the common principle as follows:  \n“under the common law frustration occurred where an external event of some kind which was not the responsibility of either party rendered further performance of a contract impossible or radically different from what had been contracted for. No valid finding of frustration could therefore be made without the court construing the contract to determine the nature of the obligation created on the parties—the obligation if unfulfilled by a party would entitle the other to sue for a breach of it— because on the authorities the unexpected event should affect the subject \n12 | P a g e  \nmatter of the contract or the fundamental obligation created by the contract and not just any term of the contract”.  \nThe consequences of a frustrated contract has been spelt out in sections 1-3 of the Contracts Act, 1960, Act 25. That when a contract is frustrated the parties are discharged from further performance of their obligations under the contract.  \nHaving exhaustively set out the law on frustration the question is whether the claim of defendant that the non-sale of his property on the Spintex Road due to the lack of perfection of his title will constitute frustration. A careful reading of the Ex ‘B’, ‘C’, ‘E’, ‘F’ ‘G’, ‘J’ and ‘K’ that states that the source of repayment of the loans was the sale of the property at Spintex Road will show that the contracts did not state that the sale of property No 55 Spintex Road was to be a condition precedent for the performance of the obligations of the defendant. Ex ‘4’ which is the power of attorney that defendant granted to plaintiff attest to this fact. In clause 2 it states among others that:  \n“The said NDK Financial Services is hereby empowered to exercise and act for and in my name in all the following acts and things, that is to say:  \n2. To keep and processed title deeds or documents until all my financial obligations towards NDK Financial Services have been fulfilled”.  \nFrom the above quoted portion of Ex ‘4’, the title to the property was to be kept until all the financial obligations of defendant had been fully discharged. This position is reinforced by the default clauses in all the agreements which included diversion or misapplication of all or part of the facility granted, nonpayment of the principal and/or interest charges, commission and fees, dishonouring of a cheque, breach of a term or condition of the agreement etc. \n13 | P a g e  \nThe sale of the Plot 55 Spintex Road property and its application to the service the loans, I find as a matter of fact and law, was only to ensure a preclusion of the proceeds of the sale being used for any other purpose other than to service the loans. And it does not mean that defendant was not to look for other sources of funds in the event of not getting a buyer to buy his property not to repay the loans he took from plaintiff. The claim, therefore, by defendant of the contracts having been frustrated or any other event that has made performance of his obligation under the contracts impossible is completely untrue and I dismiss such allegation as weak, unconvincing, namby-pamby and unproven.  \nFrom the evidence on record the first loan was secured by the plaintiff with a mortgaged property. That is a property situate at No 510 Buena Vista Road – Airport, Accra. That is captured in Ex ‘D’, which is a mortgage agreement between the parties wherein parcel No 510 at Airport Hills Residential Area was used as security for the repayment of the amount of US$800.000.00. There is no evidence that the subsequent loans of Ghc50.000 and the last loan of Ghc660.000 charged any immovable property for the repayment of the last two loans. And Ex ‘D’ cannot be extended to cover the last two loans.  \nPlaintiff in relief e seeks an order of judicial sale of the property under Ex ‘D’ which was used as security for the due repayment of the loans. Indeed section 18 of the Mortgages Act, NRCD 98, a mortgagee may upon the failure of performance of an act secured by the mortgage property may apply to the court for judicial sale of the mortgage property. The court will, however, allow the sale of the mortgage property based upon satisfaction as to the existence of the ground for the grant of such an application. The question is has the plaintiff satisfied the necessary pre-condition for the grant of an application for the judicial sale of the property? \n14 | P a g e  \nTo answer this question must necessitate an appreciation of the preconditions that must be satisfied. Section 3 of NRCD 98 states as follows: \n“Section 3—Mortgages Evidenced by Writing. \n(1) No mortgage shall be enforceable unless— \n(a) it is evidenced by a writing signed by the mortgagor or by his agent authorised in writing to sign on his behalf; or \n(b) it is excused from the necessity of a writing by the operation of the rules of equity including the rules relating to fraud, duress, hardship, unconscionability and part performance; or \n(c) it is excused from the necessity of a writing by any enactment, in the case of a customary law transaction. \n(2) Every writing evidencing a mortgage shall be deemed to be an instrument which may be registered in accordance with the Land Registry Act, 1962 (Act 122). Exhibit ‘D’ is a mortgage instrument and satisfy the requirement of writing. The section 3 also calls for registration of a mortgage instrument under the Lands Registry Act, Act 122 particularly section 24(1) in order to make such an instrument enforceable. The need for such registration has been emphasised in a number of cases. Beginning with the case of ASARE v BROBBEY [1971] 2 GLR 331 which held in a case where the mortgage deed was not registered that, that the document was ineffective and invalid to confer the rights and obligations stipulated in the mortgage deed. Similar conclusion reached in the case of AMEFINU v ODAMETEY [1977] 2 GLR 135 that by virtue of section 24(1) of Act 122, an unregistered instrument had no validity or legal effect. See also NTEM v ANKWANDAH [1977] 2 GLR ; AMUZU v OKLIKAH [199798] 1 GLR 141; AYITEY v MANTEY [1984-86] GLR 552; USSHER v DARKO [1977] 1 GLR 476.  \nOn the face of Ex ‘D’ it appears not to be stamped in accordance with the Stamp \n15 | P a g e  \nAct let alone having been registered under Act 122. I will accordingly hold that the mortgage deed is invalid and ineffective for now for the court to order judicial sale of the property which was the subject of the mortgage agreement. If registration is done at a later date then that will be a different story.  \nPlaintiff seems to have made a case to entitled to its reliefs a, b, c and d except e which the court finds that plaintiff is not entitled to. On the other hand defendant did not prove his entitlement to any of the reliefs he seeks in his counterclaim. I find no breach of any agreement on the part of plaintiff that defendant alludes to in his first relief of his counterclaim. Defendant also ask for damages for a breach of an oral agreement. The oral agreement he claimed he entered into with the plaintiff is one for plaintiff to reimburse itself after the sale of his property to defray the loans.  \nIt is trite learning regarding parol evidence rule that generally once parties to an agreement have reduced their contract into a written form, the parties will be debarred from adducing extrinsic evidence to contradict what they have written. The exceptions to the parol evidence rule is where the written document was not intended to contain the whole of the agreement between the parties as seen in the case of ALLEN v PINK [1838] 4 M&W 140; two, circumstance where oral evidence may be adduced to prove the existence of a custom as it was in the case of GILLESPIE BROTHERS v CHENEY EGGAR & CO [1896] 2 QBD 59; three, where there is evidence to show that a contract is invalid due to misrepresentation, mistake, fraud or non est factum as it was in the case of CAMPBELL DISCOUNT v GALL [1961] QBD 431and four, where a party is calling for rectification of the written document as in the case of MANN v NUNN [1874] 30 LT 526. Defendant could not prove any parol agreement entered into with plaintiff that varied the terms of the written contracts between and neither them could \n16 | P a g e  \ndefendant bring its claim within any of the exceptions to the parol evidence rule. The counterclaim of defendant is dismissed in its entirety.   \nI will exercise my discretion and award cost of eight percent of the claim of the plaintiff.     \n     (Sgd.) Eric K. Baffour, Esq. Justice of the High Court  \nRepresentation:  \nPlaintiff Represented by Edem Menka Present Defendant Absent Louis Quarteng-Mensah holding the brief of Naa Dei Amartey for Plaintiff – Present  Nash Adjei for Sammy Crabbe, Esq for Defendant   ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'BFS/193/15', '', '', '', '2016-11-11', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(628, 'NOWFIL S. LABA VRS   1. WISSAN AID LABA  2. LATEX FORM RUBBER PRODUCTS LIMITED', '', 'links/cases/NOWFILL S. LABA  13-7-16.pdf', 'Yes', '', '2016', 'High Court', 'R U L I N G \r\nThe third in the trilogy of applications for committal for contempt has been \r\nbedevilled with two weightier preliminary legal points of law by Sory, Esq. The \r\nnet effect of the two legal objections raised is for the action of Nowfill Laba citing \r\nthe five respondents for contempt to be dismissed in limini without even the \r\nbenefit of hearing the substantive submissions for the committal proceedings.  \r\nThe first ground of the legal objection is that the application for contempt is \r\nincompetent in so far as the affidavit in support of the contempt application is \r\nirregular. Counsel contends that the contempt application launched under Order \r\n50 of the High Court (Civil procedure) Rules, C. I 47 is not an interlocutory \r\napplication but a substantive one and as long as it is a substantive application, the \r\ndeponent of such an application must be the applicant who may depose to matters \r\nwithin his personal knowledge, information and belief. This he contends that rule \r\n8 of Order 20 of C.I 47 does not allow applications that are not in the nature of \r\nbeing interlocutory for the deponent to be some other person other than the \r\napplicant. \r\nThe second leg of his preliminary objection is rooted under Order 43 Rule 5(1)(b) \r\nand (cc) of C. I. 47. Counsel then further argues that as Nowfill Laba complains \r\nof a violation of an order of the court, the said person in terms of Order 41 of C.I \r\n47 ought to have drawn and entered the order of the court by the filing of the entry \r\nof the order failing which the order of the court is incapable of enforcement.  \r\n3 | P a g e  \r\nThese two preliminary legal points raises formidable questions of law for the \r\nconsideration of the court. \r\nI intend to proceed with the second leg of the submission of learned counsel. I \r\npose the question as an aid to help me in dealing with the second submission as \r\nto whether or not for a person to mount a contempt application founded upon an \r\nalleged order of the court that has been violated if it is necessary or it is a \r\nprecondition for such order to have been entered in a form of the filing of entry \r\nof judgment before a contempt application can be grounded in court? \r\nOrder 43 Rule 5(1) and (cc) states as follows: \r\n “5. (1) Where \r\n(a) … \r\n(b) a person disobeys a judgment or order requiring the person to abstain from doing an act.  \r\nThe judgment or order may subject to these Rules may be enforced by one or more of the following means \r\n(cc) an order of committal against that person or, where that person is a body corporate, against any director or other officer”. \r\nBy this provision supra, counsel contends that the application for contempt is a \r\nform of execution of a judgment or order of a court within Order 43 rule 5 and \r\nought to comply with Order 41 Rule 3 which also notes that in the case of any \r\njudgment, a form for the entry of judgment as prescribed in Forms 17 to l7F in \r\nthe Schedule, shall as far as practicable be used. \r\n4 | P a g e  \r\nAttractive though the submission appears, I am not enamoured and the reasons of \r\nthe court are as follows: it has always been the rule both under C.I 47 and the old \r\nrules LN 140A that as far as contempt applications are concerned what is \r\nnecessary for the applicant to demonstrate is that there had been an order of the \r\ncourt, that the respondent was aware, which the order the required him to do or \r\nrefrain from doing an act. I wish to refer to cases both decided under LN 140A \r\nand C. I 47 to illustrate this position. \r\nIn REPUBLIC v HIGH COURT, ACCRA, EXPARTE LARYEA [1997-98] 2 \r\nGLR 1002, decided under LN 140A, it was noted that a person commits contempt \r\nif he wilfully disobeys an order of the court to do an act or refrain from doing an \r\nact. Service of the order of the court is deemed to be even superfluous only if the \r\nrespondent is aware of the order of the court. So in HELLAND vs. \r\nALEXANDRA [1966] GLR 758, Edusei, J (as he then was) held thus: \r\n“actual service of a court’s order or the party alleged to have obeyed it was not essential if it was shown that he might have  known or knew of the order”.  \r\nIn the case of KONADU AGYEMANG RAWLINGS v K. BAAKO [1998] 2 GLR 491 it was the view of the Court of Appeal, per Essilfie-Bondzie and Sarpong JJA that:  \r\n“service of a court order on a party alleged to have disobeyed it was not very essential; if it was shown that he might have known of the order..” \r\n5 | P a g e  \r\nIf one may think that the requirement for knowledge of the order of the court, \r\nwithout more was sufficient to be cited for contempt was no longer a good law \r\nbecause they were decided under LN 140A, that may not be a good argument to \r\ncanvass, as mere knowledge of the order of the court without more being \r\nsufficient for being cited for contempt  has been maintained in cases decided  \r\nunder C.I 47. The Court of Appeal in REPUBLIC v OTUMFOUR BAIDOO \r\nBONSU XV; EX PARTE OSAHENE KATAKYIE BUSUMAKURA 111 \r\n(unreported) Suit No H1/205/08 dated 22/07/2010 wherein Appau JA (as he then \r\nwas) noted as follows: \r\n“It is trite law that in dealing with the offence of contempt of court…, the \r\napplicant is expected to establish or prove certain essential elements or \r\nprerequisites that constitute the offence. First, the applicant is required to \r\nprove that there is a judgment or an order requiring the contemnor to do \r\nor abstain from doing something. Second, it must be shown or \r\ndemonstrated that the contemnor knew precisely what he was expected to \r\ndo or abstain from doing. Thirdly it must be shown that the contemnor \r\nfailed to comply with the terms of the judgment or order or that he had put \r\nup a conduct that was intended to undermine the authority of the court and \r\nfourthly, it must be established that the disobedience or failure to comply \r\nwith the judgment or order of the court was wilful” \r\n6 | P a g e  \r\nThis decision under C.I 47 reiterates the essential requirements to be proved in a  \r\ncontempt application stated in REPUBLIC v NUMAPAU, EX PARTE \r\nAMEYAW II;  [1999-2000] 1 GLR 183 which does not place any further yoke \r\nof requiring such an order to be entered in the form of entry of order. As long as \r\nthe order is drawn up and brought to the knowledge of the person sought to be \r\ncited the statutory precondition is satisfied. On that basis the second leg of the \r\npreliminary objection is dismissed as not meritorious. \r\nNow to the first leg of the submission: I concede that it is now trite that contempt \r\napplication is not an interlocutory one but a substantive application in itself. Wood \r\nCJ emphasized this point in REPUBLIC v HIGH COURT; ACCRA; EX \r\nPARTE YALLEY [2007-2008] SCGLR 512 that: \r\n“the position of contempt application is even plainer, it being a substantive \r\nmatter standing on its own as a separate cause or matter…”  \r\nSee also IN RE APPENTENG (DECD); REPUBLIC v HIGH COURT; \r\nACCRA (COMMERCIAL DIVISION), EX PARTE APPENTENG [2010] \r\nSCGLR 327. \r\nHaving found that contempt application is a substantive matter on its own the \r\nquestion then is can an affidavit in such a case be sworn to by a deponent who \r\ndeposes to matters that are hearsay? For the deponent to the substantive \r\napplication is one Felix Antwi, a law clerk in the law firm Menka-Premo & Co \r\n7 | P a g e  \r\nwhose depositions are largely of matters that he claims have come to his \r\nknowledge through Nowfill Laba, the applicant. As to whether in such \r\nsubstantive application the applicant can proceed on such hearsay depositions is \r\nanswered by Order 20 Rule 8 which states as follows: \r\n“ 8. (1) An affidavit shall contain only facts that the deponent can prove, unless any provision of these Rules provides that it may contain a statement of information or belief or both. \r\n(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain a statement of information or belief or both with the source of the information and the grounds of the belief”. \r\nSory, Esq is right in claiming that if the application of Nowfill Laba was an \r\ninterlocutory one, then the depositions made is permissible but being in the nature \r\nas it is in terms of being substantive application Order 20 Rule 8(2) do not permit \r\nthe approach to the depositions made. The decision of MAHAMA v MOSHIE \r\n[1984-86] 2 GLR 798 is a case in point where the Court of Appeal held that the \r\ndepositions of counsel was hearsay and as the application was not interlocutory, \r\nit was improper. \r\nHaving so found that the affidavit in support of the application is irregular should \r\nthe court then strike out the affidavit and dismiss the substantive contempt in \r\nlimini? Order 81 Rule 1 provides that non-compliance with the rules of court shall \r\nnot render proceedings a nullity and this has been interpreted that virtually all \r\nirregularities are curable except jurisdictional matters, breach of statute or the \r\nConstitution. See DATE BAH JSC in REPUBLIC v HIGH COURT, EX \r\n8 | P a g e  \r\nPARTE ALLGATE CO. LTD (AMALGAMATED BANK LTD) \r\nINTERESTEED PARTY [2007-2008]SCGKR 1041; REPUBLIC v HIGH \r\nCOURT, KOFORIDUA EX PARTE DR. KOFI ASARE (BABA JAMAL & \r\nOTHERS INTERESTED PARTIES)[2009] SCGLR 460. \r\nNonetheless, having made this point that all irregularities are curable save for jurisdictional matters, non-compliance with a statute or a constitutional provision, it is curious to note that the same Order 81 under rule 2 empowers a party to mount an application to set aside for irregularity any proceedings, any step taken in the proceedings or any document, judgment or order in it upon stated grounds.  \r\nI glean, therefore, that a discretion is vested in the court, anytime there is a proven irregularity to set aside proceedings for failure to comply with the rules of court. The Order 81 does not only end at rule 1 and rule 2 is intended to have effect. See the unreported decision of Marful Sau JA sitting as an additional High Court Judge in GHANA COMMERCIAL BANK v FARMERS SERVICES CO LTD. Suit No WBC/1/05 (Commercial Division). \r\n In the exercise of my discretion I take cognizance of the quasi criminal nature of the substantive application which is intended to punish the alleged contemnors for violations of the court order. Being as it is, I think then that the rights of persons ought not to be jeopardized on the basis of application mounted on an irregular and defective affidavit. \r\nI will accordingly strike out the affidavit in support of the substantive application as incompetent and having done so what it means is that the application for committal for contempt is mounted without any supporting affidavit which itself is fatal and contrary to order 50 Rule 1(3).  \r\n9 | P a g e  \r\nIn the end the application of learned counsel, Sory, Esq succeeds on the basis of the submission that the contempt application is founded on irregular affidavit.  \r\nThe substantive application is accordingly dismissed in limini. \r\nIn the further exercise of my discretion, I make no order as to cost.   \r\n(Sgd.) \r\nEric K. Baffour, Esq \r\nJustice of the High Court  \r\nREPRESENTATIONS:  \r\n1st Respondent represented by K. Tawiah Sasu present 5th Respondent – present  Minkah-Premo, Esq with Sophia Korkor, Ms for Applicant - Present  Sarpong Odame, Esq for Kimathi Kuenyehia, Esq for 2nd – 5th Respondent – Present  Thaddeus Sory, Esq for 1st Respondent – present    ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'MISC/0064/2016', '', '', '', '2016-07-13', ''),
(629, 'NOWFIL S. LABA VRS   1. WISSAN AID LABA  2. LATEX FORM RUBBER PRODUCTS LIMITED', '', 'links/cases/NOWFILL S. LABA.pdf', 'Yes', '', '2016', 'High Court', '1  \r\nIN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT  OF JUSTICE (COMMERCIAL DIVISION), ACCRA, HELD  ON TUESDAY  THE 5TH DAY OF JULY, 2016 BEFORE HIS LORDSHIP, ERIC KYEI BAFFOUR, ESQ., JUSTICE OF THE HIGH COURT     SUIT NO: MISC/0061/2016  \r\nIN THE MATTER OF THE BODIES CORPORATE (OFFICAL LIQUIDATIONS) ACT, 1963 (ACT 180)  \r\nAND  \r\nIN THE MATTER OF AN APPLICATION UNDER SECTION 4 FOR JUST AND EQUITABLE WINDING UP OF LATEX FORM RUBBER PRODUCTS LIMITED   \r\nNOWFIL S. LABA H/NO. 5, 1ST RANGOON CLOSE     -  APPLICANT  ACCRA  \r\nVRS  \r\n1. WISSAN AID LABA      -  RESPONDENT NO.6 SHIPPI CLOSE PLOT NO. 167 EAST CANTOMENTS, ACCRA  \r\n2. LATEX FORM RUBBER PRODUCTS LIMITED  -  RESPONDENT ACCRA  \r\nAND  \r\nIN THE MATTER OF AN APPLICATION FOR ORDERS COMMITTING THE RESPONDENTS FOR CONTEMPT PURSUANT TO ORDER 50 OF C.I 47  \r\nTHE REPUBLIC  \r\nVRS  \r\nNOWFIL S. LABA H/NO. 5, 1ST RANGOON CLOSE    -  1ST RESPONDENT ACCRA    \r\nRICHARD LABA      -  2ND RESPONDENT  H/NO. 16 NORTH LABONE,  H/NO. 5,1ST RANGOON CLOSE, ACCRA   \r\nEX-PARTE:            WISSAM AID LABA \r\n2   \r\nRULING  \r\nThis is the second in a trilogy of applications seeking orders of the court for committal for contempt. The first was before Asiedu J. where on the 17th of June, 2016 the respondents were committed for contempt. The applicant again seeks another order for committal for contempt of the respondents in what he terms as conduct on the part of the respondents that has brought the administration of justice into disrepute. The third application is also before me wherein the respondents herein have also cited the applicant and others for contempt.  \r\nIn an application mounted by the 1st Respondent on the 8th of September, 2015 in suit No MISC/68/15 against A.S. Laba, deceased, and who was subsequently substituted by an order of the court, though, Nowfill Laba, the 1st respondent herein vehemently dispute this claim, the 1st respondent sought for an order for what he terms as a just and equitable winding up of Latex Foam Company.  \r\nThe court, differently constituted subsequently granted an application for injunction for the maintenance of the status quo pending the determination of the substantive suit for the winding up of the company in terms of the following:   \r\n1. Making any disposition of the shares in the Company to any other party pending the commencement of winding up 2. Taking any actions, steps or passing any resolution terminating the 1st respondent [A. S. Laba] as chairman of the Board of directors or the applicant or the applicant as managing Director of the company 3. Taking any actions, steps or passing any resolution disposing of any property or undertaking of the Company save the stock in trade and such incidentals as required in the ordinary course of business of the Company. \r\n3  \r\n4. Taking any actions, steps or passing any resolution interfering with the role, functions as played by the 1st Respondent and the Applicant respectively in the ordinary course of business of the Company. 5. Changing any signature mandates or any of the Bank accounts of the Company 6. Louis Abi Habib will be restrained from assuming from assthe office of directorship and holding himself out as a director of the Company 7. Wissam Laba will be restrained from assuming the office of directorship and holding himself out as a director of the Company 8. Neither party can exercise any of the collective powers of the Board of Directors to the exclusion of the other.  \r\n2nd Respondent was appointed by the 1st respondent subsequent to this injunctive relief granted by the court presided over by Jennifer Dodoo J. (Mrs.) as a director of the Company. And that 2nd Respondent consented to be so appointed such. That indeed formed the basis of the first application for committal for contempt where Asiedu J. committed the Respondents for contempt holding that “the conduct of the respondents was a clear and deliberate breach of the order of the court and consequently contemptuous of the court”.  \r\nThe Applicant still not appeased and satisfied by the conviction of the Respondents for contempt has hurled them before this court complaining that the 2nd Respondent fully aware during the pendency of the application for contempt before Asiedu J. was still illegally acting as a Director of the Company. And that among some of the acts was a letter 2nd Respondent has signed questioning the Company Secretary’s authority in obeying the orders of the court.  \r\nRespondents claim that no order had been breached as whatever actions taken by 1st Respondent was in compliance with section 180 of the Companies Act, Act \r\n4  \r\n179 in order to ensure that the directors of the Company did not at any particular point in time fall below two.  \r\nWhat then is the law on contempt of court?   \r\nThe scope of contempt had been set out in the case of REPUBLIC v HIGH COURT; EX PARTE LARYEA MENSAH [1997-98] 2 GLR 1002 as follows:  \r\n“a person commits contempt and might be committed for contempt to prison for wilfully disobeying an order of a court requiring him to do any act other than the payment of money or to obtain from doing some act. The order sough to be enforced should however be unambiguous and had to be clearly understood by the parties concerned, for the court would only punish as contempt a wilful breach of a clear court order requiring obedience to its performance”.  \r\nThe above description of contempt does not cover the whole spectrum of contempt as disobedience to even a void or voidable orders of the court could amount to contempt as void orders of a Superior Court are binding until set aside by a court of competent jurisdiction. See the case of REPUBLIC v HIGH COURT, ACCRA; EXPARTE AFODA [2000-2002] SCGLR 768 wherein their Lordship noted as follows:  \r\n“… the fact that an order of or considered void or erroneous should not give a party who is affected by the order, or to whom the process is directed, the slightest encouragement to disobey it, and when cited for contempt, only to turn round to justify the said disobedience by the fact that the order ought not to have been made or the process issued in the first place. The proper thing is to obey or sue for a declaration to that effect or apply to \r\n5  \r\nhave it set aside”.  \r\nClearly then, Asiedu J. has correctly found the Respondents to be in contempt of court and sentenced them to the payment of a fine as way of purging themselves of their contemptuous conduct. Having so found the respondents for contempt what again is it that the respondents are accused of to have done to amount to another cause for contempt proceedings?  \r\nKuenyehia, Esq. claim that during the pendency of the application before Asiedu J. the 2nd Respondent action of authoring Ex W10, a letter amount to another act of contempt and that the application which was before Asiedu J. was not an injunction; nonetheless its effect was to operate as an injunction to restrain the Respondents. Besides the accusations levelled against the 1st respondent before Asiedu J. what other thing is he accused of doing again to amount to another charge of contempt? I was shown nothing. Learned counsel for applicants claim that by the time the letter authored by 2nd respondent came into his custody they had already argued the application and were awaiting the ruling of Commercial Court 1 and hence the need to file another contempt application.  \r\nIt is trite that contempt being a quasi-criminal offence attracts all the rules that are similarly applied to criminal trials. And it is trite that in criminal trials an accused ought not to be given repetitive doses of criminal trials. Taylor J. (as he then was) emphasised this fact in the case of LUCIEN v REPUBLIC [1977] 1 GLR 351  where a dismissed School teacher was tried, convicted for stealing school properties including books and clock. He had earlier been convicted in relation to other items of the school. On appeal against the second conviction, Taylor J. deprecated such behaviour on the part of prosecution as oppressive in the following words:  \r\n6  \r\n“It was oppressive in a case (such as in the instant case) where all the crimes could be dealt with together, for a person suspected of crimes to be subjected to repeated criminal trials. It would be proper in the circumstances of the case to take other charges into consideration and impose one composite sentence so as to obviate the necessity of incessantly prosecuting the appellant… on obtaining conviction, the court with the concurrence of the appellant would be asked to take the outstanding charges into consideration. This is the way to handle such cases…”  \r\nIn the civil law rule as correctly pointed out by Menka Premo, Esq is known as the rule in HENDERSON v HENDERSON wherein Wigram Vc (1843) Hare 114 stated it as follows      “ where a given matter becomes the subject matter of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires a party to the litigation to bring forward the whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest but which was not brought forward only because they have from negligence, inadvertence or even accident omitted part of their case”.  \r\nSee also the judgment of Amissah JA in the case of FOLI & ANOR v ATTA [1976] 1 GLR 194-203 where the court held among others that this specie of estoppel covered not only matters which were dealt with in the previous judgement but also those as well which ought to have been brought up then but which were not.  \r\nIt is the opinion of the court that the claim of the Applicant of further acts of contempt by 2nd Respondent could have conveniently been brought to the attention of Asiedu J. before or even after delivery of his ruling and that could have been taken into consideration in the appropriate sentence to exact against the 2nd Respondent. Or in the alternative after the conviction, the better course was for the Applicant to have withdrawn this application if he had already filed it. As noted supra, I am even unable to identify the specific complaint against the \r\n7  \r\n1st Respondent in this application after his conviction before Justice Asiedu.  \r\nFrom the above I find this second application for committal for contempt superfluous and needless and cannot subject the Respondents to repetitive convictions as that will be oppressive. Save for a caveat I will issue that flowing from the conviction of Asiedu J. they ought not to behave in such way as to demonstrate that they have purged themselves of the contempt, I find them not guilty and dismiss this application.  \r\nI will make no order as to cost.      \r\n             (Sgd.) Eric K. Baffour, Esq. Justice of the High Court  ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'MISC/0061/2016', '', '', '', '2016-07-05', ''),
(630, 'NTHC LTD  VRS   GHANA COCOA BOARD ', '', 'links/cases/NTHC v GHANA COCOA BOARD (JUDGMENT).pdf', 'Yes', '', '2016', 'High Court', '\r\nJUDGMENT  \r\nPlaintiff, a guarantor of a loan advanced by the defendant to a company by name Dio Jean Ltd. for the purchase and delivery of cocoa for the 2012/13 cocoa season, birthed this writ out of the Registry of the court on the 9th of January, 2015 claiming the following reliefs:   i. A declaration that the arrangement between defendant and Dio Jean Co Ltd which led to an outstanding debt of GHc830.000.00 plus interest of Ghc132.800.00 carried forward from the 2011/12 season illegally deducted from the cocoa delivered by Dio Jean Co. Ltd during the 2012/13 season, is an unlawful and unethical business practice.  \r\nii. A declaration that the decision by defendant to illegally deduct the outstanding \r\n \r\n2  \r\ndebt of Ghc830.000.00 plus interest of Ghc 132.800.00 carried forward from       the 2011/12 season is unilateral, capricious and arbitrary, in so far as it did not relate to the guarantee issued by plaintiff for the 2012/13 season.  \r\niii. An order directed at the defendant for the immediate refund of the aggregate      sum of Nine Hundred and Sixty-Two Thousand, Eight Hundred Ghana Cedis.  \r\niv. Interest on the amount of GHc962.800.00 at the prevailing bank rate and/or    commercial lending rate of interest from 16/10/12 continuing till date of final    payment.  \r\nv. Cost.   \r\nPLAINTIFF’S STATEMENT OF CLAIM  Plaintiff provides the basis of his claim to the reliefs in a ten paragraph statement of claim that accompanied the filing of the writ. Plaintiff claims that defendant extended credit facilities to the tune of ten million Ghana Cedis for the purchase of cocoa to Dio Jean Ltd, a licensed cocoa buyer for the 2012/13 cocoa season. As part of the conditions for the grant of the loan it was required to provide a guarantee for the due repayment of the debt of Dio Jean Ltd in the event that Dio Jean Ltd failed to deliver cocoa to the tune of the amount provided it by defendant.  \r\nPlaintiff further avers that it did provide an unconditional guarantee defendant requested for from Dio Jean Ltd. Subsequently, Dio Jean Ltd failed to make cocoa deliveries to the level of monies advanced to it prompting defendant to call on the guarantee Plaintiff provided. Plaintiff again claim that it paid an amount of Ghc1.990.581.80 to defendant but later realized that the monies it paid; an amount of \r\n \r\n3  \r\nGhc830.000 plus its interest of Ghc132.800 being component of Ghc 1.990.581.80 was as a result of illegal and unethical business practices between defendant and Dio Jean. And that this amount of Ghc830.000 together with its interest did not emanate from the debt that arose out of 2012/13 cocoa season but a previous debt that had been carried forward. To plaintiff this was not within the scope of the guarantee it provided and hence its claim for a refund of the aggregate sum of Ghc 962.800.00 from the defendant.  \r\nDEFENDANT’S DEFENCE Defendant has resisted the claim of Plaintiff contending that plaintiff’s story had previously been raised in previous meetings with defendant and had been discounted. And after those issues had been dismissed by defendant that plaintiff went ahead to pay the monies it had undertaken to pay to defendant and what plaintiff is alleging is rehash of what it had said before.. Defendant further deny of any collusion or arrangement with Dio Jean to roll over any debt of Dio Jean into 2012/13 cocoa season.  \r\nISSUES FOR TRIAL With the pre-trial conference failing to resolve the matter between the two parties the following were agreed as issues set down for determination:  \r\n1. Whether or not an outstanding debt of Ghc830.000.00 plus interest of Ghc 132.800.00 from seed fund guaranteed by plaintiff for the 2012/13 cocoa season was carried forward from the 2011/12 cocoa season and illegally deducted by defendants from cocoa delivered by Dio Jean Ltd during the 2012/13 season.  \r\n \r\n4  \r\n2. Whether or not Plaintiff was aware of the arrangement between defendant and Dio Jean Ltd as to the said illegal deductions.  \r\n3. Whether or not plaintiff is stopped from maintaining the present action in the face of the judgment in Suit no. AC 726/14 entitled Ghana Cocoa Board v NTHC Ltd.  \r\n4. Any other issues arising out of the pleadings   EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW  \r\nThe court in exercise of its powers vested in it under Order 33 Rule 3 of the High Court (Civil Procedure) Rules, C.I 47 slated the third issue as to whether or not a previous default judgment obtained in Suit No. AC 726/14 operated as a res judicata or not for preliminary trial. The court in its ruling delivered on the 19th January, 2016 held that the default judgment obtained would not operate as res judicata as the present action of the plaintiff was not within the scope of the issues that became the subject of the judgment in the earlier suit between the parties. (See my ruling on the 19th January, 2016.  \r\nWhat is left for determination in this suit is the first two main issues as to whether any illegal and unethical business practices between defendant and Dio Jean led to a rollover of an amount of Ghc 968.000 from 2011/12 season and if so whether the plaintiff was aware.  \r\nBut first some few guiding rules on burden of proof assumed by the parties in this suit as that would be very critical in resolving the issues between the parties. It is a \r\n \r\n5  \r\nnotorious and settled principle of evidence that a party making a claim bears both the burden of producing evidence  and burden of persuasion, the two being components of the burden of proof. The burden of persuasion is defined in section 10 of the Evidence Act, NRCD 323 to mean:   “For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of tribunal of fact or the court   (2) the burden of persuasion may require a party  \r\n(a) to raise a reasonable doubt concerning the existence of a fact or  \r\n(b) to establish the existence or non existence of a fact by a preponderance of the probabilities or proof beyond reasonable doubt”  \r\nThe burden of producing evidence on the other hand is defined in section 11 as follows:  \r\n“(1)For the purpose  of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.  \r\n(4) In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of a fact was more probable than its non existence”.  \r\n \r\n6  \r\nPer section 14 of the Decree, 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 whiles section 17 governs the allocation of the burden of producing evidence. It notes that the burden of producing evidence of a particular fact is on the party against whom a finding on the fact would be required in the absence of further proof and that the burden of producing evidence is initially on the party with the burden of persuasion as to the fact.    \r\nIn this regard Dr. S. Twum, JSC noted in the case of BAKER-WOODE v NANA FITZ [2007-2008] SCGLR 879 that:   ‘the common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim’   The Supreme Court had earlier reiterated this principle in the case of ABABIO v AKWASI III [1994-95] GBR 774 where the court noted as follows:   \r\n“a party whose pleadings raised an issue essential to the success of his case assumed the burden of proving such issue. The burden only shifted to the defendant when the plaintiff has adduced evidence to establish the claim”  \r\nThe plaintiff having made a number of allegations and praying for remedies, how did he go about discharging its obligations under the law? As factually, the plaintiff has the burden to prove and demonstrate that an amount of Ghc 830.000.00 together with interest was not incurred within 2012/13 cocoa season but a previous one. And how did the defendant rebut any claim made by the plaintiff? \r\n \r\n7   \r\nPlaintiff testified by calling its Legal Officer, Augusta Andrews who testified and tendered the following documents on behalf of the plaintiff: an unconditional guarantee provided by plaintiff as Ex ‘A’, the payment made by plaintiff to defendant after judgment was obtained as Ex ‘B’, a letter written to defendant to demand a refund of what plaintiff claims are monies that were illegally and unethically it was made to pay and finally a follow up letter written by the Solicitors of the plaintiff to defendant to again demand the payment of the monies. Whiles the defendant testified through its Accounts Manager, Daniel Gyabaa and also tendered exhibits 1 to 11.  \r\nFrom the evidence of the plaintiff’s representative, I glean that Access Bank (then Intercontinental bank) which had provided an unconditional guarantee to defendant for 2011/12 cocoa season was called upon to make good their guarantee provided when Dio Jean failed to provide cocoa to the level of the amount advanced to it. Defendant had demanded Ghc 2,989.891.08 from Access bank, then Intercontinental bank as per Ex ‘4’ tendered by the defendant. By plaintiff’s calculation Access bank, out of the demand made on it, paid only Ghc2,146,993.90 and the difference between the amount paid and the original demand made on Access bank was Ghc830.000 plus an interest of 16% making a total of Ghc962,800 as the outstanding amount that was carried forward and illegally pushed as part of the debt of 2012/13 cocoa season.  \r\nAs long as Access bank did not pay all the demanded amount of Ghc2,146.993.90; it is the case of plaintiff that there had been a collusion between the defendant and Dio Jean Ltd of an illegal agreement to push the difference to 2012/13 cocoa season for plaintiff to be saddled with liability to clear. This position which is the gravamen of the claim of the plaintiff was made evident when Davies, Esq. subjected defendant’s representative to cross examination in the following: \r\n \r\n8   \r\n“Q: Look at Ex 7, how much did Access Bank pay  \r\nA: Ghc2,146,993.90  \r\nQ: Look at Ex 4, how much did Cocoa Board indicate to Access Bank as to the indebtedness of Dio Jean in respect of the guarantee they provided for the 2011/2012 main crop cocoa season  \r\nA: Ghc2,989,891.08  \r\nQ: Juxtaposing Ex 7 against Ex 4, did Access Bank pay the totality of the indebtnedness implicated in Ex 4  \r\nA: No, My Lord. But that is why it was stated in my evidence that Dio Jean Ltd held funds in respect of the 2011/2012 season and continued to purchase cocoa in the minor season for delivery and continuously reduce their debt ….”  \r\nThere may be varied reasons why the whole debt demanded by defendant against Access Bank was not paid in full. One reason may be what plaintiff seems to be putting forward that the difference was carried forward to 2012/13 cocoa season. Another could be what defendant had been insisting that Dio Jean continued to deliver cocoa to reduce its level of indebtedness to defendant. The fact that the whole amount of Ghc2,989,891.08 was not paid does not in the absence of further evidence and particulars from plaintiff leads to one and only conclusion that there had been a collusion for illegal and unethical business practices on the part of defendant and Dio Jean. \r\n \r\n9  \r\nIt was woefully not enough for plaintiff to have made such a bare assertion and leave it there acting as if the burden of persuasion was cast on the defendant. Indeed the written submission of learned counsel for plaintiff seems to me that once plaintiff has made an assertion it suffices to prove its claim before the court. It was only when the plaintiff had adduced the necessary evidence to back its claim of illegal and unethical business practices that the burden would have shifted to the defendant to prove otherwise.  \r\n The cross examination of plaintiff representative revealed how shallow the claim of plaintiff was as the plaintiff’s representative, who had been with the plaintiff just two months before she testified showed how little she knew about the case. I will proceed to demonstrate a few of the utter lost cause that plaintiff embarked upon whiles its witness was in the box.  \r\nFirst when asked as to Intercontinental Bank having guaranteed the loan of 2011/12 cocoa season this is what she had to say:  \r\n“Q: I want to suggest to you that the 2011/12 operations of Dio Jean was guaranteed by Intercontinental bank  \r\nA: My Lord, I do not know that for a fact”.  \r\nOne then wonders then on what basis did plaintiff come to court at all if it did not know as fact that Access Bank guaranteed the 2011/12 cocoa season loan which in another breath it turns round to claim in its statement of claim that Access Bank did not pay all the debt arising out of that loan that the said bank guaranteed. This answer is a negation of what plaintiff had asserted in its statement of claim before the court.  \r\n \r\n10   \r\nPlaintiff’s representative was also woeful in her answer as to how the amount plaintiff is claiming came about in the following discourse with Amenyaglo, Esq:  \r\n“Q: How did you come by the figure Ghc 830.000 as not having been paid for 2011/12 crop season  \r\nA: My Lord, it was from the value of the cocoa beans that Dio Jean delivered to Cocoa Board. When you take the value of it out of the tonnage amount for 5 million there was no way about Ghc 830.000 would have come. There was supposed to be excess of funds and upon a review and analysis of the tonnage delivered and deductions made about 830.000 was not supposed to come from the 2012/13 crop season”.  \r\nThis is startling! Why? Plaintiff was not privy to the contract between Dio Jean and defendant for both 2011/12 crop season as well as 2012/13 season. Plaintiff did not have any evidence of tonnage of cocoa beans delivered by Dio Jean and was expecting defendant to have provided it that information to have shore up its floundering case and yet plaintiff’s representative is making allusions to arriving at the figure they claim from the court by analyzing tonnage of cocoa delivered. Plaintiff could not have done any analysis of tonnage of cocoa beans delivered as throughout the trial the plaintiff was completely clueless as to how much cocoa was delivered by Dio Jean to defendant.   \r\nAgain, plaintiff representative whiles in the box could not even tell the court the circumstances that led to the payment of Ghc 1,990.581.80 in the following damning admission: \r\n \r\n11   \r\n“Q: Can you tell the court the circumstances under which this monies were paid  \r\nA: My Lord, I have already indicated that I do not know the circumstances under which they were paid”.  \r\nLittle wonder, therefore, that in the address of counsel for plaintiff, the only reference to the evidence of their own witness who had to prove their claim was in respect of her re-examination as any reference to her cross examination would have been clear to plaintiff’s counsel the lapses in their case which they were relying on before the court.  \r\nThe charge of plaintiff against defendant is not a light one as it has alleged illegality against defendant. Illegality is to conduct one’s affairs in such a way as to bother on an act that is not only prohibited by statute but the law providing sanctions for a breach. Indeed what is an illegality is put succinctly by the Nigerian Supreme Court in the case of FASEL SERVICES LIMITED & ANOR V. NIGERIAN PORTS AUTHORITY & ANOR (2009) 2 CLRN at page 25 wherein the court stated on illegality as follows:  \r\n  “The position of the law is that where a statute declares a contract or transactions between parties not only void but also imposes a penalty for violation, that contract or transaction is illegal ab initio. However where the legal sanction is merely to prevent abuse or fraud and no penalty is imposed for the violation the provision of the statute, the violation is merely voidable and not illegal.”  \r\n \r\n12  \r\nBy this legal definition or implication of what an illegality is in law how would an unproven allegation of collusion amount to an illegality?  \r\nIt is now a hackneyed principle of law that evidence in prove of one’s case is not just a witness mounting the box and repeating averments in a statement of claim. The case of MAJOLAGBE v LARBI [1959] GLR wherein the court noted as follows:   \r\n“Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist”   As a matter fact plaintiff’s representative contradicted some of the crucial averments made by plaintiff in its claim as I have demonstrated supra. The rule has always been as held in the case of DORIS NARTEY v CHRISTIAN KUMI [2012] 42 GMJ 182 @185 the Court of Appeal held per Yaw Appau JA (as he then was) that:   ‘a party cannot in the course of hearing put up a case contrary to or inconsistent with that which he himself has put forward in his pleadings’  \r\nAlso in the case of SEMANSHIE v BIH [2006] MLRG 184 @ 195 where Dotse JA (as he then was) noted that it was an acceptable practice that whenever a party set up an entirely different case from that with which has been pleaded, then such a party must fail in his claim before the court. \r\n \r\n13   \r\nOn the other hand the defendant’s representative Daniel Gyabaa, notwithstanding manifold days of intensive and rigorous cross examination proved how doomed the case of the plaintiff was. The witness explained quite lucidly the business practice with regard to cocoa purchase and how when it initially called on the Access bank to make payment, it allowed and accepted cocoa deliveries from Dio Jean thereby reducing Dio Jean’s level of indebtedness to defendant. Such that at the time Access bank paid monies arising out of the guarantee it provided, that remained the only debt of Dio Jean at the time. One would ask what would have restrained defendant from asking all the monies due it from Access Bank when such Bank had provided a full unconditional guarantee to pay all the debts of Dio Jean only for it to saddle plaintiff, another guarantor with the liability to pay for a previous debt? Where is the evidence of collusion between Dio jean and defendant to engage in unethical and illegal business practice here?   \r\nPlaintiff only attempted to engage in what I will call unwarranted jurimetrics that did not in any way help its cause. I find and hold from the evidence available on record and a keen observation of the representatives of the parties that testified that there is no scintilla of evidence in support of any illegal and unlawful business practice for the carrying of any debt whatsoever for the payment by plaintiff. Plaintiff paid its just debt as per the guarantee agreement it gave.  \r\nBesides, one may ask where was Dio Jean Ltd during the whole trial. Could the presence of Dio Jean Ltd as a party or even a witness for the plaintiff not have helped matters? If Dio Jean Ltd colluded with defendant and it is the company that actually owed and for whose debt plaintiff stepped in and paid; why has plaintiff failed to pursue this company? I have considerable difficulty in appreciating why in the written \r\n \r\n14  \r\naddress of plaintiff’s counsel he seems again to shift the onus on who was to have called Dio Jean Ltd and Access Bank to the defendant. For he states that:  \r\n“…defendant by failing to call Access Bank and Dio Jean after repeatedly stating that the debt had been settled by Access Bank and Dio Jean laboured under the illusion that it was Plaintiff’s duty to have called them, but this illusion is misplaced”  \r\nIs that so? That a party claiming that they had been a collusion in respect of unethical and illegal business practice between plaintiff and Dio Jean Ltd in respect of Dio Jeans debt now claim that by simply making that allegation defendant was duty bound to call Dio Jean Ltd to come to court to say it was not true. If plaintiff is imputing criminality to defendant, whose duty is it to establish such wild allegation. That defendant should have called the Ghana Police to say that there is no illegality as plaintiff is pontificating. The day our rules on evidence is changed to saddle a party whom allegations are made to come and disprove the averments, would have been the day Ghana would have truly entered the dark day of its legal practice.   \r\nIn any case it is trite that in relations to the law on unconditional guarantee that once demand is made, the guarantor must pay without demur and pursue the borrower of the loan for its monies.  \r\nAs the court has found no unethical and illegal business practice the second issue of whether plaintiff was aware of such collusion becomes a non-issue to engage my attention. If the court had found the existence of such a collusion of unethical business practices, the bigger legal issue would have been the scope of unconditional guarantee as to whether it could be made to cover debts guaranteed or not. It is needless for me \r\n \r\n15  \r\nto embark upon that exercise since it is now only academic, as far as this case is concerned, and any such journey would be an extravagant exercise of intellectual gymnastics. The scope of such guarantee has receive extensive judicial pronouncements in other jurisdictions of the common law tradition.   \r\nIn the end the claim of the plaintiff is found to be weak, unconvincing and unproved. It is dismissed in its entirety. In awarding cost, the court is called upon to exercise its discretion. Such discretion must be exercised with considered degree of circumspection. Discretion must not only be exercised judicially but judiciously as well. Judicious means to be discreet and circumspect in balancing two competing interests in a given situation. See G.K.F INVESTMENT NIGERIA LTD V. NIGERIA TELECOMMUNICATIONS PLC (2009) 2 CLRN @ 25.  I take into consideration that there had been a trial of some of the issues earlier coupled with the fact that there was no substantial evidence for plaintiff to have embarked upon this action and in that circumstance I award cost of Gh¢ 15.000.00 in favour of Defendant against the Plaintiff.   \r\n     (Sgd.)  Eric K. Baffour, Esq. Justice of the High Court   \r\nRepresentations: Plaintiff – Absent   Abraham Donkor Representing Defendant – Present  Frank Davies, Esq. for Plaintiff – Present  Charles Amenyaglo, Esq. with George Laing, Esq. for Defendant – Present  ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'OCC/05/15', '', '', '', '2016-07-22', '');
