INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(576, 'FEDERATION OF YOUTH ASSOCIATION OF \r\nGHANA (FEDYAG)  ---  PLAINTIFF\r\nVRS\r\nPUBLIC UNIVERSITIES OF GHANA & ORS  ---  DEFENDANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCORAM: ATUGUBA, JSC (PRESIDING)\r\nAKUFFO (MS), JSC\r\nBROBBEY, JSC\r\nANSAH, JSC\r\nADINYIRA (MRS), JSC\r\nOWUSU (MS.), JSC\r\nANIN - YEBOAH, JSC\r\nGBADEGBE, JSC\r\nAKOTO-BAMFO (MRS) JSC\r\nWRIT NO.J 1/5/2009\r\n27/07/2010\r\nFEDERATION OF YOUTH ASSOCIATION\r\nOF GHANA (FEDYAG)	PLAINTIFF\r\nVRS.\r\nPUBLIC UNIVERSITIES OF GHANA &ORS	DEFENDANTS\r\nConstitutional law - 1992 Constitution art 25 - Universal Declaration of Human Rights (UDHR) art. 26 - Right to Education - Right subject to limitation - Whether fee paying policy in Public Universities is inconsistent with 1992 Constitution— Statutes - Construction - Art. 25 of Constitution must be interpreted guided by Directive Principles in Art. 38.\r\nJUDGMENT ADINYIRA (MRS) JSC\r\nThe case before this Court demands an interpretation of the extent of the citizen''s right to education as enshrined in article 25 of the 1992 Constitution. The right to education has been a cause for civil rights activists in the history of many nations. It is a common saying that education is the key to development. Education is also\r\n \r\n\r\n\r\n\r\nbreaking the cycle of poverty. Therefore in the quest to attain political and socio-economic development after independence, education was one\r\nof the core areas that Ghana and other African countries paid much attention. Education therefore offers an effective platform for national development and also "promotes understanding, tolerance, and friendship among all nations, racial or religious groups." See Article 26 (2) of the Universal Declaration of Human Rights.\r\nThe plaintiff, Federation of Youth Association of Ghana (FEDYAG)\r\ncommenced an action, by a writ filed on 22 April 2009, invoking the original jurisdiction of this court against the Public Universities of Ghana as the first defendants, and against the Ministry of education, the National Council for Tertiary Education, and the Attorney-General as the\r\nsecond, third and fourth defendants respectively, for the following\r\nreliefs:\r\n1.	A declaration that the fee paying policy being implemented by the public universities of Ghana is inconsistent with, or in\r\ncontravention of the letter and spirit of the 1992 Constitution and more particularly articles 17 (2) (3) (4) (a), 23, 25 (1) (c), 34 (1), 38 (1) (3) (a) (c) and 41(b) and (d) thereof\r\n2.	An order prohibiting any further implementation of the fee paying policy by the first defendants herein and quashing same.\r\nFacts and Plaintiffs Case\r\nApart from the bare assertions of facts made by the plaintiff in its\r\nStatements of Case, as verified by the accompanying affidavit, it\r\noffered no further proof of the facts alleged in them. For clarity I set\r\n \r\n\r\nout in full paragraphs i to 7 of the statement of case which are as follows:\r\n1.	The Public Universities of Ghana, the ist Defendants herein, for many years into the 4th Republic, have been implementing a policy called "Full Fee Paying Policy". The beneficiaries under the said policy are christened "The Fee paying Students."\r\n2.	How did this come about? As a country, like many states, within the comity of nations, we have an obligation of welcoming citizens of the world into our universities to\r\npursue knowledge. It means that space must be reserved by the institutions concerned for these foreign students as we call them. It has almost always been the case that the space so reserved has never been fully occupied by the targets. The Universities instead of returning the unoccupied space to the next most qualified prospective students then sell the space to Ghanaian citizens at the same price as the foreign students.\r\n3.	As if that is not enough, the universities realizing that a lot of money could be made out of this have decided to reserve more space than can ever be reasonably occupied by these foreign students.\r\n4.	Now this act of public universities has become an annual ritual. For e.g. they tell the world that we can only take 70% prospective students whiles in reality they can take up to 95%. They then cut the intake at say aggregate 12 instead of aggregate 15 and turn around and say, "Whoever can pay this much; come, we have a place for you".\r\n \r\nC\r\n5 This means that whilst some citizens of the country pay tuition fees others do not pay tuitions fees to access higher education in the country.\r\n6.	By acting in this manner, many qualified prospective students who could have had a place in their own capacity but for that much to pay are relegated to the background while those who have the means have their way.\r\n7.	It is our humble contention that this act in the name of full fee paying of public universities in Ghana betrays the letter and spirit of the supreme law of the land viz the 1992 Constitution.\r\nThough the plaintiff avers generally that the defendants'' fee paying policy "betrays the letter and spirit of the supreme law of the land viz the 1992 Constitution", it specifically and more particularly relies on articles 17(2)(3)(4)(a), 23, 25(1)(c), 34 (1), 38(1)(3)(a)(c) and 41(b)(d) thereof.\r\nCommon Submission by all of the Defendants\r\nIt was commonly submitted by all the defendants that the fee-paying policy is in no way discriminatory because the quota available to the students admitted on merit is not in any way diminished by the admission of fee-paying students. They further submitted that by the provision of article 25 (i) (c) of the constitution, the introduction of free education at the tertiary level should be by a gradual process.\r\n1st Defendants'' Response\r\nThe 1st defendants further submit that the plaintiff does not show in which way the defendants have violated the articles mentioned in the writ. They submit that university education in Ghana has been funded by\r\n \r\n\r\nthe government through annual bursaries. The number of non-paying students is tied to the size of the government bursaries made available each year. That by the ever diminishing size of government bursary the public universities cannot admit all qualified candidates. They claim that the quota given to fee-paying students does not affect the quota for non-\r\nfee paying students. They submit that the fee-paying policy enables qualified students who would otherwise not gain admission on account of not obtaining government bursaries, to pay and obtain education from the public universities. The 1st defendants submit further that the revenues from fees paid by the fee-paying students are added to the government subvention to increase the number of non-fee-paying students admitted each year. In the case of the Kwamc Nkrumah University of Science and Technology, such funds make it possible for the University to give scholarship to brilliant students from less endowed schools.\r\nThe 2nd'' 3rd and 4th Defendants'' Response\r\nThe 2nd, 3rd and 4th defendants on their part submit that, the government is unable to fully meet the financial requirements of the 1st defendants. As a result these subvented institutions have to supplement government efforts by resorting to the fee-paying policy. They also stated that the quota reserved for the intake of foreign students is a time\r\nhonored practice by universities around the world. This practice enriches the academic community and provides for global socio-cultural interaction, which by itself is education.\r\nCentral issues to be determined in the case\r\nThere is no doubt that in essence the plaintiffs contentions are based on provisions of the constitution falling under or relating to the\r\n \r\n\r\nFundamental Human Rights as set out in chapter 5 of the Constitution. The only articles which do not physically fall within the said chapter 5 are articles 34, 38 and 41. These fall (under chapter 6), the Directive Principles of State Policy, of which article 34 requires that in applying or interpreting the constitution, their guidance cannot he discounted and therefore article 38 relating to education cannot be discounted in considering educational rights under chapter 5. We however do not see the relevance of article 23, and 41 of the Constitution to the case.\r\nThe parties did not agree on the issues to be tried and each filed separate memorandum of issues which added up to 13. From the myriad of issues filed by the parties we see the following issues emerging from the pleadings:\r\ni.	Whether or not the full fee paying policy of the 1s1 defendant universities are in contravention of the letter and spirit of articles 25, (i) (c), 38 (i) () (a) (c) of the 1992 Constitution of Ghana.\r\nii.	Whether or not the 1st Defendant''s offer of admission spaces not taken up by foreign students to students who qualify but not admitted for lack of government subvention, amounts to discrimination, in contravention of article 17(2) (3) () (a) of the 1992 Constitution.\r\nBefore we determine the above issues we must interpret article 25 to discover the extent of educational rights guaranteed by the 1992 Constitution. The correct approach to the construction of constitutional provision has been amply expounded on in the case of A/iurnah Ocansey v. Electoral Commission; Centre for Human Rights & Civil Liberties (''cHURCIL) v Attorney-General & Electoral Commission\r\n \r\n\r\n(Consolidated); 2010 [SCGLR] 575 by our eminent lady Chief Justice Georgina Wood. She said at page 597 of the report as follows:\r\n"The correct approach to interpreting Constitutions generally and fundamental human rights provisions in particular, is clearly so well settled: it does not admit of any controversy. The jurisprudence of this court does show that these must be broadly, liberally, generously or expansively construed, in line with the spirit of the constitution, history, our aspirations, core values, principles, and with a view to promoting and enhancing human rights rather than derogating from it.\r\nThis court has clearly moved away from the doctrinaire approach adopted years ago in the case of In re Akoto [1961]2GLR 523 SC. The famed words of Sowah JSC as he then was in the celebrated case of Tufflior v Attorney General [1980] GLR 637 at 647-648, are very much still relevant for our purposes; not to mention the tall list of case law that was cited in one of the most recent decisions of this court given on 3 February 2010- to be reported as Brown v Attorney —General (Audit Service case) [2010] SCGLR 183. Two of the older decisions of this court are Mensima v Attorney- General [1996-7] SCGLR 676 at p. 714, and New Patriotic Party v Inspector —General of Police [1993-94] 459 at 482. In the latter case, Bamford —Addo JSC as she then was observed that:\r\n"...fundamental human rights are inalienable and can neither be derogated from or taken away by anyone or authority whatsoever. ...This  court is therefore not permitted to give an interpretation which seeks to tamper in any way with the\r\n \r\n\r\n\r\nfundamental human rights but rather to see that they are respected and enforced."\r\nThe learned Chief Justice Georgina Wood observed further that:\r\n"In Minister of Home Affairs v Fisher [1980] A C 319, Lord Wilberforce in delivering the judgment of the Privy Council\r\nstated at page 329 as follows:\r\n"A constitution is a legal instrument giving rise, amongst other things, to individual rights capable of\r\nenforcement in a court of law. Respect must be paid to the language which has been used and to the traditions\r\nand usages which have given meaning to that language.. .and to be guided by the principle of giving full effect to those fundamental rights and freedoms\r\nwith a statement of which the Constitution\r\ncommences."\r\nBased upon these principles of constitutional interpretation, we have to interpret Article 25 guided by Article 38 of the Directive Principles of State Policy as required by Article 34.\r\nArticle 25 provides:\r\nI. All persons shall have the right to equal educational opportunities and facilities and with a view to achieving the full realisation of that right -\r\n(a)	basic education shall be free, compulsory and available to all;\r\n(b)	secondary education in its different forms, including technical and vocational education, shall be made generally available and accessible to\r\n \r\n\r\nall by every appropriate means, and in particular, by the progressive introduction of free education;\r\n(c)	higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular, by progressive introduction of free education;\r\n(d)	functional literacy shall be encouraged or intensified as far as possible\r\n(e)	the development of a system of schools with adequate facilities at all levels shall be actively pursued.\r\n(2) Every person shall have the right, at his own expense, to establish and maintain a private school or schools at all levels and of such categories and in accordance with such conditions as may be provided by law.\r\nArticle 25 is based on Article 26 (1) of the Universal Declaration of Human Rights which states as follows:\r\nArticle 26 "(i) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merits [Emphasis mine]\r\nIt is noted that whereas Article 26 of the Universal Declaration of Human Rights simply states everyone has a right to education, our constitutional provision on the right to education states that: "All persons shall have the rig/it to equal educational opportunities and facilities". Why the difference? The difference is mainly due to our\r\n \r\n\r\nnational experiences, challenges and weaknesses in our educational system and economic imbalances, which needed to be addressed to\r\nprevent the erosion of the gains that have so far been made. There was the need to address the imbalances in the infrastructural development of\r\neducational facilities in the country and the urgency to improve the quality of education particularly in the field of science and technology; for effective national development. All these are reflected in Article 25.\r\nHayfron-Benjamin JSC in Edusei (No.2) v. Attorney General (1998-99) SCGLR 753 at 756 expressed a similar view as follows:\r\n"In the area of fundamental human rights, it must be said that the matters enumerated in the Constitution and in chapter 5 thereof are based firmly on the sum total of our national experiences and our nation''s subscription to international conventions and protocols on fundamental human rights."\r\nFrom the outset it is supposed that each word used in Article 25 is intended to have some effect, or be of some use. In terms of our constitutional provisions the word equal usually reflects the human right\r\nprovision of Article 17 which stipulates that:\r\n(I) All persons shall be equal before the law.\r\n(2) A person shall not be discriminated against on grounds of gender,\r\nrace, color, ethnic origin, religion, creed or social or economic status.\r\nThe word opportunity may be defined as: a favourable or\r\nadvantageous circumstance or combination of circumstances, or a\r\ngood chance for advancement or progress, or simply an advantage.\r\n \r\n\r\na\r\nThe phrase equal opportunities may thus be defined as a situation in which people have the same chance or advantage in life as other people without being treated in an unfair way because of their race, color, ethnic origin, religion, creed or social or economic status. [Emphasis mine]\r\nFollowing the basic principles of constitutional interpretation set out above we can conclude that the words in article 25 (1) confer on every Ghanaian the right to have the same or equivalent chance and opportunities for educational advancement; and also the right to the same educational facilities in which to achieve that purpose regardless of his/her social or economic status, place of origin, sex or religion.\r\nHowever there are inherent limitations that regulate and control the enjoyment of the right to equal educational opportunities and facilities. This right is subject to the capacity on the part of the student and the availability of educational facilities to be provided by the state. In the same Art 25 the right is qualified by clauses (a), (b), and (c) by the controlling words: with a view to achieving the full realisation of that right, a)basic education shall be free and compulsory and available to all, b) generally available and accessible at secondary, technical and vocational level, and c) in respect to university or higher education, equally accessible to all on the basis of merit of the students and the capacity of the institution; and in particular by progressive introduction of free education at all levels. The ultimate objective of article 25 is to make education free by a gradual and progressive introduction to free education at all levels.\r\nSince the right to education is for every person, the article 25 (d) requires that functional literacy be encouraged and intensified for those who for one reason or other are unable to pursue formal education. Also private\r\n \r\n\r\npersons have the right to run schools at all levels but at their own\r\nexpense.\r\nIt is therefore the duty of the state to formulate and execute policies to achieve this purpose. However by article 38 of the Constitution these educational objectives can only be implemented by the availability of resources.\r\nThis article 38 provides:\r\n(1) The State shall provide educational facilities at all levels and\r\nin all the Regions of Ghana, and shall, to the greatest extent feasible, make those facilities available to all citizens.\r\n(3) The State shall, subject to the availability of\r\nresources, provide-\r\n(a)	equal and balanced access to secondary and other\r\nappropriate pre-university education, equal access to university or equivalent education, with emphasis on\r\nscience and technology;\r\n(b)	a free adult literacy programme, and a free vocational training, rehabilitation and resettlement of disabled persons; and\r\n(c)	life-long education. [Emphasis mine]\r\nHowever, the reality is that since education comes with cost in terms of infrastructure, such as classrooms and lecture halls, well resourced library and research centres, teachers/lecturers, Ghana like other African countries cannot provide free education within the shortest possible\r\n \r\nU\r\ntime. Even the free universal basic education has not been fully achieved 19 years after the promulgation of the Constitution since educational opportunities and facilities in rural areas are not the same as those in the urban areas.\r\nBarely four decades ago, university education was virtually free, in terms of tuition fees, boarding and lodging, and there were well equipped libraries and laboratories and adequate lecture halls and enough lecturers. The failure of government allocations in the face of economic decline and structural economic adjustment programs has led to reduction in support for public universities. Increasing student enrolment without the corresponding expansion in facilities has created huge complex problems that called for an improvement in resources and administration which will greatly improve university education and as a matter of course enhance development efforts.\r\nThe public universities are obliged under the statutes establishing them to augment their resources. The Ghana Education Trust Fund (The GET Fund) was established in 2000 under the Ghana Education Trust Fund Act, 2000, Act 581, to assist nationwide financing of education. Yet we face the problem of limited access to university education because not all qualified applicants get access into the public universities.\r\nThe inadequate funding from government and the resultant deterioration in the educational system, led to the introduction of cost sharing and cost recovery principles into the education sector. These are the full fee-paying and user fee policies. User fees are charged for accommodation and academic facility use such as the use of laboratories and libraries and other educational facilities, and are paid by all\r\n \r\n\r\ncategories of students except perhaps by those on full scholarship awarded by the university.\r\nHowever, it seems that the plaintiff is not basing his claim on the right to free university education but rather on the right to equal access to the limited opportunities available to Ghanaians to public universities as required by article 25 (1) of the Constitution. The plaintiff complains that a significant part of the more qualified persons are not able to enter the institution because they are unable to raise and pay the fees charged by the i'' defendants and that the less qualified who are able to raise such fees charged get access into the university by their ability to pay. It seems to us that the plaintiff does not understand how the full fee-paying policy is implemented by the 1st defendants.\r\nThe 1st defendants in their statement of case explained how the fee paying policy is implemented. They stated that:\r\n"By 2002 the government approved intake quota was 5 percent for the foreign students and 5 percent for non-resident Ghanaians. It must be stated that these percentages were not in diminution of but in addition to the traditional spaces for local non-fee paying students . . .It is spaces that are not filled with respect to the above quota that are offered to other Ghanaian students who have qualified for entry into the universities but could not be admitted on account of they not having qualified for the government bursary."\r\nIn 2006 the quota for non-resident Ghanaians was raised to 10 percent. According to the 1st defendants:\r\n \r\n\r\n\r\n"Whereas the intake for the non-fee paying students is solely\r\ndetermined by the quantum of the bursary received from the government, the intake for the fee-paying students is determined as a percentage of, yet over and above, the already determined non-fee paying intake"\r\nThe defendants explained further that:\r\n"[T]he places available for fee-paying students would not in any\r\nevent be available for non-paying students as the 1st defendants\r\nwould not be able to recover the cost of training the extra\r\nstudents."\r\nThe 1st defendants stressed that the source of income from the fee-paying\r\nstudents has on the average over the past 8 years constituted 28 percent\r\nof the total revenue of the 1st defendant. They argued that:\r\n"In effect the fee-paying students the subject matter of this suit, are subsidizing the non-fee paying students, and are thereby making university education ''progressively free, ''equally accessible'' and to the greatest extent feasible ...available to all citizens'' towards the realization of the form and spirit of articles 25 (1) (c), 38 0), (3) (a) of the Constitution."\r\nThe ist defendant gave some statistics that showed that the quota for the non-fee paying students has not been reduced to the benefit of the fee-\r\npaying students as claimed by the plaintiff in paragraph 3 of their\r\nstatement of case. We reproduce the statistics for purposes of clarity.\r\nTable I: Kwame Nkrumah University of Science & Technology, Kumasi Admission Statistics for 2004-2009\r\nYear	Qualified Admitted	Foreign students	Ghanaian Fee Paying\r\nStudents	\r\n \r\nNo.	gy,No.\r\nC	2004/05	11723	6451	200	3.10	495	7.57\r\n2005106	16473	8771	275	3.14	761	8.68\r\n2006/07	17100	7988	203	2.54	566	7.09\r\n2007/08	11614	6952	152	2.19	490	7.05\r\n2008/09	10630	6800	132	1.94	339	4.98\r\nTable 2: University of Cape Coast - Admission Statistics for 2005-2009\r\n \r\nYear\r\n2005/06\r\n2006/07\r\n2007/08\r\n2008/09 -\r\n \r\nQualifiedI Admitted\r\n12166	5340\r\n13133	4270\r\n11046	4146\r\n9676	4319\r\n \r\nForeign students\r\nNo.\r\n56	1.05\r\n47	1.10\r\n51	1.32\r\n83	1.92\r\n \r\nGhanaian Fee Paying\r\nStudents\r\nNo.\r\n535	10.02\r\n182	4.26\r\n142	3.42\r\n128	I	2.96\r\n \r\nTable 3: University for Development Studies- Admission Statistics 2004-2009\r\n \r\nYear	Qualified Admitted\r\n2004/05	3575	1738\r\n2005/06	4103	1850\r\n2006/07	4808	2432\r\n2007/08	6935	3720\r\n2008/09	6128	4123\r\n \r\nForeign students\r\nNo.\r\n0	0\r\n2	0.1\r\n0_0\r\n0	0\r\n0.24\r\n \r\nGhanaian Fee Paying\r\nStudents\r\nNo.\r\n23	1.32\r\n4	0.47 - \r\n0	0\r\n0	0\r\n0	0\r\n \r\nTable 4: University of Education, Winueba- Admission Statistics 2005-2009\r\nYear	Qualified Admitted	Foreign students	Ghanaian FCC Paying Students\r\nNo.	No.\r\n2005/06	4825	3795	-	-	-	-\r\n2006/07	5793	4511	-	-	-	-\r\n2007/08	7159	3979	-	-	-	-\r\n2008/09	7964	4040	I\r\n \r\n\r\n\r\n\r\nTable 5: University of Ghana, Legon- Admission Statistics 2005-2009\r\n \r\n\r\n \r\nTable 6: University of Mines and Technology, Tarkwa- Admission Statistics 2004-2009\r\n\r\nYear	Qualified	Admitted	Foreign students	Ghanaian Fee Paying\r\nStudents\r\n		No.	No.	°A)\r\n2005/06	734	266	9	2-53	4	1.5\r\n2006/07	743	315	6	1.9	7	2.22\r\n2007/08	1067	361	15	4.16	8	2.21\r\n2008/09	1145	390	24	6.15	13	3.33\r\n\r\nThe 1s1 defendants also showed a statistics of admission of less endowed undergraduate students on scholarships funded from revenue accrued from the fee-paying policy by the Kwame Nkrumah University of Science and Technology, Kumasi.\r\nTable 7: Kwame Nkrumah University of Science &Technology, Kumasi- Less Endowed Admissions (Undergraduates)\r\n \r\n\r\n \r\n\r\nNo.	0/0\r\n2004/05	256	3.97\r\n	534	6.09\r\n2006/07	335	4.14\r\n2007/08	168	2.42\r\n2008/09	149	2.19\r\n \r\nThe above statistics clearly defeats the plaintiffs argument that the admission for regular students into public universities in Ghana has been reduced over the years in favour of the fee paying students. Although the quota for non-resident Ghanaians was raised to io% in 2006; the statistics shows that, that quota has never been fully used. For example in the Kwame Nkrumah University of Science and Technology, only 8.6% of the quota for full paying Ghanaian students was filled in the 2005/06 academic year. The percentage admitted dropped to 7.09% in 2006/07 academic year. The number has declined to 4.98 as at 2008/09 academic year. See Table 1. The unused quota cannot be allocated to non-bursary students as there are no funds to cover their fees.\r\nWe recall that Article 25(c) specifically provides that: "higher education shall be made equally accessible to all, on the basis of capacity, by ever appropriate means, and in particular, by progressive introduction of free education". So the real issue here is whether the full fee paying policy as being implemented by the public universities infringes the letter and spirit of Article 25 (i) (c). The proper test for determining an infringement to a fundamental right is to examine its effect and not merely its object.\r\nBy the provision of Article 38 (3) (a) of The Directive Principles of State Policy, equal access to university education is subject to the availability of resources to the state. The defendants who are charged by the Constitution to provide university education in Ghana are obliged to find and commit available resources to provide education to qualified students. The 1st defendants have demonstrated that the fee-paying policy was one of the means by which they have been able to offer\r\n \r\n\r\n\r\neducational opportunities to more Ghanaian students; who otherwise\r\nwould not have had access to public universities due to insufficient\r\nfunding from the government.\r\nIt follows from the foregoing that the fee-paying policy achieves a constitutionally valid purpose and that the chosen means are reasonably and demonstrably justified. We therefore hold on issue (i) that the fee- paying policy does not contravene the letter and spirit articles 25 1 (c) and 38 (1) (3) (a) (c) of the Constitution.\r\nThat takes us next to a consideration of the last issue. It appears that the\r\nplaintiff makes a legitimate point that the full fee-paying policy is to the disadvantage of persons with low economic status as they may not have the ability to opt for the fee-paying policy. On the other hand we do not think the fee-paying policy is discriminatory, considering firstly, the fact that it does not affect the quota for non-fee-paying students and\r\nsecondly, the fact that it creates more opportunity for qualified students\r\nto get university education. As the government cannot provide bursary for all qualified students to enter the university, the 1st defendants'' offer\r\nof admissions spaces not taken up by foreign students to students who qualify but are not admitted for lack of government subvention, do not\r\namount to discrimination.\r\nThe plaintiff did not substantiate his statement in paragraph 13 of his affidavit in the verification of fact that:\r\n13..."[T]his policy of fee paying by the defendants is as discriminatory as it amounts to granting advantage to some\r\nprospective students based on their economic status rather than their intellectual capacity."\r\n \r\n\r\nThe system has a level of transparency; as prospective students have to\r\n \r\n•\r\n \r\nopt for the full fee-paying policy at the time of applying for admission. In that respect it is expected that the admission of these full fee-paying students should be on merit rather than the ability to pay. There should however be decent and adequate facilities to support student intake into\r\nthe public universities.\r\nAccordingly I hold on issue (ii) that the full fee-paying policy is not discriminatory and as such does not infringe Article 17 of the\r\nConstitution.\r\nConclusion\r\nThe full fee paying policy is not unprecedented in Africa. It is implemented worldwide. What is required is that the defendants, students, parents and all stakeholders should develop adequate support mechanism such as, scholarships, grants, insurance schemes and adequate student loan schemes to lessen the harsh effect of cost sharing. Until the resources are available to the state to provide free education in Ghana, the full fee-paying option would have to continue to enable more qualified Ghanaians to access public universities.\r\nFrom the foregoing, we hold that the fee-paying system as implemented\r\nby the 1st defendants does not infringe Articles 17, 25 (i) (c) and 38 (i)\r\n(3) (a) and (c) of the Constitution.\r\nThe plaintiffs action fails and is hereby dismissed.\r\n(SGD) S. 0. A. ADINYIRA (MRS.) JUSTICE OF THE SUPREME COURT\r\n \r\n\r\n \r\n\r\nV\r\n\r\n \r\n(Scrn)	W. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	S. 0. B. AKUFFO (MS.) JUSTICE OF THE SUPREME COURT\r\n(SGD)	S. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	J. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	R. OWUSU (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n\r\n(SGD)	N. S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	V. AKOTO-BAMFO (MRS) JUSTICE OF THE SUPREME COURT\r\nCOUNSEL: \r\nDENNIS OFOSU-APPEA FOR THE PLAINTIFF.\r\nACE ANKOMAH (WITH HIM KWESI FYNN) FOR THE 151 DEFENDANT.\r\nCECIL ADADEVOH ( WITH HIM MS. HELENA FRENCH ASA ) FOR THE 2ND TO 411/ DEFENDANTS.\r\n\r\n', '../links/cases/Document (225).pdf', 'Yes', 'AKUFFO (MS)JSC,BROBBEY JSC,ANSAH JSC,ADINYIRA (MRS)JSC, OWUSU (MS),JSC, ANIN-YEBOAH,JSC, GBADEGBE,JSC, AKOTO-BAMFO (MRS)JSC', '2010', 'supreme', '<i><b><font face="Times New Roman" size="3">Constitutional law - 1992 Constitution art.25 - Universal Declaration of Human Rights (UDHR) art.26 - Right to Education - Right subject to limitation - Whether fee paying policy in Public Universities is inconsistent with 1992 Constitution - Statutes - Construction - Art.25 of Constitution must be interpreted guided by Directive Principles in Art.38.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J1/5/2009', '', '', 'supreme', '2010-07-27', ''),
(579, 'ABII INTERNATIONAL SAVINGS & LOANS  VS. \r\nSAM AMOFA ADU', 'IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) ACCRA HELD ON MONDAY, THE 18TH DAY OF JULY 2016 BEFORE HER LADYSHIP JUSTICE AKUA SARPOMAA AMOAH (MRS.) ==============================================================  \r\nSUIT NO. RPC/415/14 \r\nABII INTERNATIONAL SAVINGS & LOANS AVENOR JUNCTION ACCRA         …   PLAINTIFF  \r\n                            VS. \r\nSAM AMOFA ADU (TRADING UNDER THE NAME & STYLE MY KINDNESS GAS ENTERPRISE) NEAR GLORYLAND SCHOOL LABANON-ASHIAMAN          …   DEFENDANT \r\n==============================================================  \r\nPARTIES:         -          DANIEL AMANKWA REPRESENTS PLAINTIFF \r\nDEFENDANT PRESENT  \r\nCOUNSEL:        -            EMMANUEL ASARE HOLDING BRIEF FOR CLAUDE OPPON FOR PLAINTIFF PRESENT   \r\n              YAW KYERE AMPEM HOLDING BRIEF FOR NANA AKWASI AWUAH FOR THE DEFENDANT PRESENT \r\n\r\nBY COURT:     The terms of settlement filed by the Parties on the 13th day of July, 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                                                                          \r\n                                                                            [SGD]               MRS. AKUA SARPOMAA AMOAH JUSTICE OF THE HIGH COURT  aey/   ', 'links/cases/ABII INTERNATION SAVINGS AND LOANS VRS SAM AMOFA ADU.pdf', 'Yes', 'AKUA SARPOMAA AMOAH(MRS.), J', '2016', 'High Court', '', 'AKUA SARPOMAA AMOAH (MRS.), J', 'Civil', '', 'RPC/415/14 ', '', '', '', '2016-07-18', ''),
(580, 'ABRAHAM KUMA VRS. SELASE AKABUO        ', 'JUDGMENT: The Petitioner and Respondent were married under the Marriages Act 1884 – 1985 (Cap 127), at the Accra Metropolitan Assembly in Accra, on 22nd December 2012.     \r\nThe husband – Petitioner filed this Petition against the Respondent his wife seeking a dissolution of the marriage on the grounds that same has broken down beyond reconciliation. The Petitioner averred that both parties are Ghanaian citizens, with the Petitioner currently domiciled in the United States of America, and there are no issues of the marriage. That when the Respondent secured her visa, and Petitioner made travel arrangements for her to join him in March 2013, the Respondent’s attitude changed and she became cold towards him. He averred further that contrary to the Respondent’s assurances that the age difference between the parties was not a problem, when she came to the United States of America, she started to complain about the age difference.  That a previous application filed in the High Court when the marriage was barely two years was not granted by the Court. Petitioner further averred that in September 2013, when he was out of \r\n2  \r\na job for October 2013, the Respondent informed her family and she was asked to return to Ghana. That a result of the Respondent’s representations that she did not know when she will return to the United States of America, he was compelled to buy her a one way ticket to Ghana and she returned to Ghana. That all attempts to reconcile the marriage have not been successful.  \r\nThe Respondent who was served with the Petition entered appearance to same by Counsel and filed an answer.  By her answer she traversed the averments in the Petition and contended that the application brought by Petitioner in the High Court to for leave to commence divorce proceedings, was dismissed because the assertions made therein were untrue. She averred further that the age was never a problem initially. That the Petition was frivolous and pleaded estoppel per res judicata upon the basis that the present  Petition raises same or similar issues on the basis of which the previous application was dismissed. That it was the Petitioner who refused to arrange for her to go back to the United States after she completed her exams in the University of Ghana, as he was peeved by the dismissal of his application by the High Court. She averred that the marriage has not broken down beyond reconciliation.  \r\n The suit was set down for trial. The parties subsequently filed terms of settlement on 6th April 2014. Being a matrimonial causes matter, the Court heard evidence of both parties to satisfy itself as to whether or not the marriage had broken down beyond reconciliation in accordance with sections 2 (2) and (3) of the Matrimonial Causes Act 1971 (Act 367).  \r\nThe testimony of the Petitioner was given by his Attorney. The Attorney testified that he is a brother of Petitioner. He tendered the Power of attorney as Exhibit A.  According to his testimony, the Petitioner and Respondent were married in December 2012, and only lived together for nine months as Respondent joined the Petitioner in the United States of America in March 2013, and returned to Ghana in December 2013 and the parties have since lived apart.  He tendered the marriage certificate as Exhibit B.  He testified \r\n3  \r\nfurther that there are no issues of the marriage. That though she had earlier indicated that she was not worried about the age difference between the parties, after the marriage she became cold and started complaining about the age difference. The Petitioner was born in 1972 and the Respondent in 1989. That this age gap resulted in differences between the parties and all attempts at reconciliation were unsuccessful.  That he was one of a group of family members who went to the Respondent’s father to attempt a reconciliation to no avail. That since the age gap will not change, it is not possible to reconcile their differences and prayed the Court to dissolve the marriage.   \r\nThe Respondent testified that she lives at Maledjor in Accra, and that she and Petitioner were married in December 2012 and she joined Petitioner in the United States of America in March 2013, and returned to Ghana in December 2013 and the parties have since been living apart. She stated that the parties have already filed a settlement and prayed for a dissolution of the marriage.  \r\nThe testimony of both parties were not controverted by cross- examination as there was none from either party. It is trite that facts not disputed are deemed to be admitted. As I have no reason to disbelieve the testimony of either party, I accept the evidence of the parties as being the facts pertaining to the marriage. \r\nBy section 1 (2) of the Matrimonial Causes Act of 1971 (Act 367), the sole ground upon which an order for dissolution of a marriage can be made is that the marriage has broken down beyond re-conciliation. Section 2 (1) of the said Act however, requires that the Petitioner prove one or more of the facts set down in the said section. \r\nSection 2(1) (f) of Act 367, supra provide as follows; \r\n (f) that the parties to the marriage after diligent effort have been unable to reconcile their differences \r\nAfter hearing the testimony of both parties, I am satisfied that efforts at reconciliation have failed. I am satisfied that there is no possibility of reconciliation between the parties and that the marriage has indeed broken \r\n4  \r\ndown beyond reconciliation. In the Circumstances, it is therefore decreed that the marriage celebrated between the Petitioner and the Respondent on 22nd December 2012 and evidenced by Marriage Certificate No                                    be and is hereby dissolved forthwith on the ground that same has broken down beyond reconciliation. As the parties filed terms of settlement on 6th April 2016 by which a sum of Twelve Thousand Ghana Cedis (GHC 12, 000) was paid to the Respondent, there will be no further order for ancillary reliefs, and no order as to costs.  \r\n         (SGD) HAFISATA AMALEBOBA (MRS) JUSTICE OF THE HIGH COURT.  \r\nCOUNSEL: ABRAHAM AMALIBA ESQ FOR PETITONER  JEAN MAURELLET ESQ FOR RESPONDENT.      \r\n              ', 'links/cases/ABRAHAM KUMA V. SELASE AKABUO.pdf', 'Yes', '', '2016', 'high', '', 'HAFISATA AMALEBOBA (MRS), J', 'Civil', '', 'BDMC 231/2015 ', '', '', 'High Court, Accra', '2016-04-19', ''),
(581, 'AGRICULTURAL DEVELPOMENT BANK\r\n    VRS  \r\nFIIFFI QUARTEY', ' \r\nRULING  \r\nThe Plaintiff/Applicant by this Ex parte application seems to root this motion under Order 10 Rule (1) of the High Court (Civil Procedure) Rules, C.I 47 and seeks final judgment against the defendant for his failure to enter appearance and file a defence upon service of the writ of summons and the statement of claim. When the application came on for hearing the court indicated to the counsel for the applicant that the present applicant was incompetent as not mandated by the rules of procedure. Counsel nonetheless, contested this claim and the court adjourned to give a reasoned ruling for describing the application as defective. The reasons of the court is provided as follows:  \r\nThe plaintiff claims for a liquidated sum being loans advanced to the defendant that Plaintiff contends defendant has defaulted in repayment. This should ordinarily bring it within the scope of order 10 Rule 1 (1) of C. I. 47 which states as follows:  \r\n “Where the plaintiff’s claim against the defendant is for a liquidated demand only, and the defendant fails to file appearance, the plaintiff may, after the time limited for appearance only to enter final judgment against the defendant for a sum not exceeding that claimed by the writ and for costs and proceed with the action against other defendants, if any” \r\n \r\n2  \r\n  At first glance, one would be tempted to conclude that the present action has justly and truly been mounted in pursuance of this rule quoted supra. But this suit is not just an action for recovery of monies due and owed. It is a mortgage action and mortgage actions have their own special rules and procedure that an applicant must follow when seeking a judgment in default of appearance. Counsel denied that his action is a mortgage action. What then is a mortgage action becomes crucial for determination in knowing if the present suit is one or not. Section 1 of the Mortgages Act, NRCD 96 defines what a mortgage is in law as follows:  \r\n “A mortgage … is a contract charging immovable property as security for the due repayment of debt and any interest accruing thereon or for the performance of some other obligation for which it is given, in accordance with the terms of the contract”  \r\nAnd Black’s Law Dictionary, 9th Ed defines Mortgage as a:  \r\n “lien against property that is granted to secure an obligation such as a debt and that is extinguished upon payment or performance according to stipulated terms”  \r\nAnd section 2 of the Mortgages Act notes that every transaction which is in substance a mortgage of immovable property whether expressed as mortgage, charge, pledge of title documents, outright conveyance, trust for sale on condition, lease, hire purchase, conditional sale, sale with right of repurchase or in any other manner, shall be deemed to be a mortgage of immovable property.  \r\nThe last relief of plaintiff is for an order for the judicial sale of residential property located at Sakumono, Tema in the Greater Accra Region. And how did plaintiff become vested with the cause to ask for a judicial sale of an immovable residential property? This can be found by paragraph 6 of the averment of plaintiff in his statement of claim wherein he states that:  \r\n“Plaintiff claims that as security for the loans, Defendant executed a deed of mortgage in favour of plaintiff over residential property situate at Sakumono estates”  \r\n \r\n3   \r\nThis clearly from plaintiff’s own case before the court is that he gave out loans and as security for the loans, there was a charge of immovable property at Sakumono. He describes it as a mortgage and even if he had not by section 2 of the Mortgages Act, supra such a transaction is a mortgage action. Rule 1(2) of Order 59 of the High Court (Civil Procedure) Rules also defines a mortgage action as:  \r\n“mortgage action” means an action in which there is a claim by the plaintiff for any of the following relief’s:  \r\n(a) Payment of moneys secured by a mortgage or charge (b) Sale of the mortgage property (c) Appointment of a receiver (d) Delivery of possession to the mortgagee or person entitled to the charge by the mortgagor or persons having the property subject to the charge or by any other person who is or is alleged to be in possession of the property; (e) Release of the property from the security (f) Delivery of possession by the mortgagee  \r\nThis is an action for payment of monies secured by a mortgage property at Sakumono or in the alternative order for the sale of the mortgage property. The action is within the four corners of (a) and (b) of the Rule 1 of Order 59 quoted supra. It is therefore not correct for counsel to suggest that the claim is not a mortgage action.   \r\nWhat then is the procedure for seeking judgment in a mortgage action when a defendant fails to file an appearance before the court.  \r\nThe answer is provided for by the Order 59 of the High Court Civil Procedure Rules, C. I. 47. Rule 5 states that:  \r\n“(1) In a mortgage action, judgment in default of appearance or in default of defence shall not be entered except with leave of the Court.  \r\n(2) Notice of an application for the grant of leave under this rule shall be served on the defendant”. \r\n \r\n4   \r\nThe applicant came by motion ex parte that clearly sin against the provisions supra as where the rules call for an application on notice an applicant  cannot disregard that and makes it ex parte without any just cause shown to the court.  \r\nBesides, the application was bedeviled with other substantial challenges such that even if the application had been on notice the court cannot ignore those deficiencies and grant the applicant its prayers. The writ of the plaintiff is within sections 15 and 18 of the Mortgages Act, NRCD 96 as it has sued the mortgagor for the performance of its obligations under the contract or for a judicial sale. If that is the case, then an action brought within the scope of sections 15, 16, 17, 18 and 20 of the Mortgages Act must fully comply with Rule 3 of order 59 with regard to some particulars that must be evident in the statement of claim as the rule states:  \r\n“Every statement of claim in a moneylenders or mortgage action shall state  \r\n(a) The date on which the loan  was made (b) The actual amount granted to the borrower (c) The percentage of interest charged (d) The date in which the contract for repayment was made (e) Evidence of a note or memorandum of contract with the borrowers signature (f) The date it was made and the date a copy of same was delivered or sent to the borrower (g) The amount repaid (h) The amount due but unpaid (i) The date the unpaid amount became due (j) The amount of interest accrued, due and unpaid on the sum”  \r\nExamining plaintiff’s claim I reckon that the plaintiff only complied with (a), (b) and  (c). There is no evidence of a memorandum of contract with the defendant/mortgagor’s signature on, the applicant has not shown how much the defendant/mortgagor has repaid, the principal amount unpaid, the amount of interest accrued and due and unpaid. It is therefore not for nothing that the court aptly described the application as \r\n \r\n5  \r\nirredeemably and incurably incompetent. The application for the reasons provided is accordingly dismissed.     \r\n     \r\n(Sgd) Eric K. Baffour, Esq. Justice of the High Court   ', 'links/cases/ADB v FIIFI QUARTEY.pdf', 'Yes', '', '2016', 'High Court, Acc', '', 'ERIC K. BAFFOUR, J', 'high', '', 'BFS/205/2015', '', '', 'High Court, Accra', '2016-02-04', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(578, 'ABI/KOFI OWUSU BOATENG TEMA, NEWTOWN    VRS:   1. THE CHIEF OF DEFENCE STAFF 2. THE ATTORNEY-GENERAL  ', '1   \nIN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, GHANA IN ACCRA ON MONDAY THE 12TH DAY OF OCTOBER, 2016 BEFORE HER LADYSHIP DORIS BEMPONG (MRS. ) HIGH COURT JUDGE  \nSUIT NO. BMISC 402/2013  \nABI/KOFI OWUSU BOATENG TEMA, NEWTOWN      : PLAINTIFF              VRS:  \n1. THE CHIEF OF DEFENCE STAFF 2. THE ATTORNEY-GENERAL    :   DEFENDANTS \n\nPlaintiff’s claim in this matter against the Defendant which was filed on 22/2/2013 is for: 1. A declaration that the circumstances surrounding the decision to release the Plaintiff from the Ghana Armed Forces were most unfair since he was very innocent and therefore, his discharge was wrongful.  \n2. A further declaration that after having detained the Plaintiff for the alleged offence for three months, the decision to release him amounted to double jeopardy and therefore unconstitutional.   \n2  \n3. General damages for the wrongful release from the Ghana Armed Forces.  \n4. Cost.  \nPlaintiff was enlisted in the Ghana Armed Forces on 27/1/2006 and was posted to the Ghana Navy where he served until his release from the Armed Forces in August 2012.   \nThe release, according to Plaintiff was based on an allegation that he did not properly account for a weapon that was released him for duty. He claimed that despite his innocence, he was tried and detained in custody for 90 days. He was subsequently released from the Armed Forces and this the Plaintiff claim amounts to punishing him twice for the same offence. The Plaintiff says that this is double jeopardy and it sins against the constitution.   \nThe Defendants filed a Statement of Defence which they subsequently amended to say that the Plaintiff was not entitled to any of the reliefs being sought in his Statement of Claim.  \nAccording to Defendants, the Plaintiff was indeed enlisted in the Army and posted to the Navy and was based at the Naval Base, Tema as an armourer.  \nAccording to Defendants, on 27/3/12, Command of the Naval Base, Tema, received a signal from the Naval Headquarters that an M16 Carbine Rifle with serial number, A00057681 had been received from some armed robbers by the police and the inscription on the rifle showed that it belonged to the Naval Base, Tema. A Search was conducted in the armoury and temporal log books of the base. \n3  \nThe Search revealed that even though the rifle had been signed off as returned, it was not physically present in the armoury.  \nThe base ordered an investigation which revealed that the last person to have signed for the rifle was the Plaintiff herein on the 27/2/2012. The “sign-off” column of the temporal log book however had a different signature from the one in the “sign in” column. Further checks indicated that the signature in the sign off column belong to DW2, OS BAAH.  \nIt is the case of the Defendant that a Board of Inquiry was consequently constituted with the main mandate to find out the circumstances that led to the disappearance of the rifle and the culprit.  \nUpon completion of its work, the Board of Inquiry determined that the Plaintiff and the armourer on duty on the day in question i.e. One AB ALISI should be held responsible for the disappearance of the rifle and to be duly punished.   \nA Disciplinary Committee was set up and it recommendation the charging and trial of the two officers with 2 counts of the offence of negligence to the prejudice of good order and discipline contrary to section 54 of the Armed Forces Act 1962 (Act 105).  \nThe Plaintiff was tried by a Disciplinary Committee and found guilty on both counts and was sentenced to 90 days detention which he served.  \nAccording to the Defendant, the Ghana Armed Forces, the employer of the Plaintiff upon considering the circumstances surrounding the incident and the magnitude of the offence for which \n4  \nPlaintiff had been found guilty, took a decision to release the Plaintiff from the service. The employer was of the opinion that it was in the best interest of the Armed Forces since the Plaintiff’s position as an armourer was a sensitive one and if he couldn’t be trusted to properly account for a single rifle, he could not be trusted with a full armoury filled with firearms.  \nThis decision they said was an administrative one and not a punitive measure. His release came with his due benefits being paid to him.  \nAt the close of pleadings, the issues set down for determination were: i.  Whether or not the Plaintiff was duly tried by the Armed Forces. ii. Whether or not the release of the Plaintiff from the Armed Forces amounted to double jeopardy. iii. Whether or not indeed Plaintiff committed an offence. iv. Any other relief arising from the pleadings.  \nThe Armed Forces Act 1962 (Act 105) mandates the Armed Forces to investigate and prosecute any of its employees for offences committed under the Act and in accordance with due process.  \nFrom the pleadings of both parties, when the disappearance of the M16 rifle was detected, investigation were conducted and a Board of Inquiry set up to go into the matter. Upon the completion of the work of the Board of Inquiry, a disciplinary Committee was set up with the mandate of trying the Plaintiff and one AB1 Alisi, who were believed to be responsible for the said disappearance of the rifle.  \n5  \nIndeed, the Plaintiff was tried, found guilty and sentenced to a 90 day detention. A sentence which the Plaintiff served. Plaintiff did not appeal against the conviction and sentence and did not question the authority of the Armed Forces to try him.  \nIt is worthy to note that the Plaintiff was charged under section 54 of the Armed forces Act 105. Section 54(1) provides that: “Any act, disorder or neglect to the prejudice of good order and discipline shall be an offence and any person convicted thereof shall be liable to dismissal with disgrace from the Armed Forces or to any less punishment provided by this Act”.  \nSubsection(3) of section 54 goes further to describe what constitutes an act conduct, disorder or neglect to the prejudice of good order and discipline as follows: (3)  An act or omission constituting an offence under section 13 or          a contravention by a person of; (a)    Any provision at this Act. (b)    Any regulations published for the general information and           guidance of the Armed Forces to which that person belongs or            to which he is attached or seconded; or  (c) Any general, garrison, unit, section, standing, local or other orders, shall be an act, conduct disorder or neglect to the “prejudice of good order and discipline”.  \nIn the Court’s view, all due processes were followed in the investigation, trial and conviction of the Plaintiff and conviction of the Plaintiff that cannot be faulted.  \n6  \nThe military did what it had power to do and judiciously too. The summary trial was in conformity with the provisions of Act 105 as amended by Armed Forces Law 1983, specifically section 63(1) which provides for the constitution of the disciplinary committee. He was therefore properly tried and convicted.   \nThe Plaintiff as part of his claim wishes the court to declare that his subsequent release for the Armed Forces was most unfair and amounts to double jeopardy.  \nThe criminal code 1960 Act 29 at section 9 provides that; “A person cannot be punished twice for the same offence”.  \nIt is not the law that he cannot be punished twice for the same act.  The legal principle of double jeopardy is one that has been established as a common law principle that ensures that a person must not be punished or vexed twice for the same wrong doing.  The principle of double jeopardy may avail a person where an attempt is made to prosecute a person for an offence for which he has already been prosecuted and either found guilty or acquitted. The person must have been through the rigors of a prosecution on which final judgment has been passed.   \nIn the case of REPUBLIC VRS: THOMAS (1950) 33 CR APPL R. 200: HUMPHERY J stated: “It is not the law that a person shall not be punished twice for the same act. No one has ever said so. In any case, the Interpretations Act does not say so. What the Act says is that a person shall not be liable to be punished twice for the same offence.”  \n7  \nThe dictum was quoted in the Ghanaian case of ABABIO VRS: REPUBLICE (1972) 1 GLR @ 344.  \nThe elements to look out for in double jeopardy is for there to have been a legitimate prosecution which was final. Therefore, where a person has undergone the ordeal of a trial at which a verdict has been pronounced by a court of competent jurisdiction, whether found guilty or not should not be vexed by another trial but left undisturbed to lead a normal life.  \nIn the present case, the Plaintiff was charged with 2 counts of the offence of conduct to the good order and discipline contrary to section 54 of the Armed Forces Act 105 and was duly tried by the Disciplinary Board which found him guilty and sentenced him accordingly.  \nThe Armed Force considering the gravity of the circumstances surrounding the whole incident and the offence were of the view that it was not in their best interest of maintaining order and discipline within the ranks to release the Plaintiff.  \nI am also of the opinion that given his position as an armourer, his employers must be certain of the utmost discipline and trustworthiness of their employee. Where they are not sure that they can completely trust the employee, they have every right to terminate his employment with full benefits.  \nThis release or discharge from the Army is only an administrative action and does not carry any sanctions. The Plaintiff was released and paid his entitlements/gratuity in full in accordance with article 206. 85 of the Armed Forces Regulations 1970 (C.I. 12. \n8  \nIf the Armed Forces had intended to punish the Plaintiff, they would have dismissed him summarily without any gratuity. In the light of the foregoing this Court is of the view that the Plaintiff has not been able to adequately prove his case against the Defendants and that the claims against the Defendants are (UNMERITUOUS).  \nThe claims of the Plaintiff are therefore dismissed and judgment is entered for the Defendants. No Order is made as to costs.  \nParties:   Plaintiff absent.       Defendant present   \nCounsel: Augustine Asafo Adjei for Respondent present.       Cynthia Ofori for the Defendant.   \n  H/L DORIS BEMPONG MRS. JUSTICE OF THE HIGH COURT                              \n9  \n ', '../links/cases/ABI KOFI OWUSU BOATENG.pdf', 'Yes', 'DORIS BEMPONG (MRS. ), J', '2016', 'High Court', '1   \nIN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, GHANA IN ACCRA ON MONDAY THE 12TH DAY OF OCTOBER, 2016 BEFORE HER LADYSHIP DORIS BEMPONG (MRS. ) HIGH COURT JUDGE  \nSUIT NO. BMISC 402/2013  \nABI/KOFI OWUSU BOATENG TEMA, NEWTOWN      : PLAINTIFF              VRS:  \n1. THE CHIEF OF DEFENCE STAFF 2. THE ATTORNEY-GENERAL    :   DEFENDANTS \n\nPlaintiff’s claim in this matter against the Defendant which was filed on 22/2/2013 is for: 1. A declaration that the circumstances surrounding the decision to release the Plaintiff from the Ghana Armed Forces were most unfair since he was very innocent and therefore, his discharge was wrongful.  \n2. A further declaration that after having detained the Plaintiff for the alleged offence for three months, the decision to release him amounted to double jeopardy and therefore unconstitutional.   \n2  \n3. General damages for the wrongful release from the Ghana Armed Forces.  \n4. Cost.  \nPlaintiff was enlisted in the Ghana Armed Forces on 27/1/2006 and was posted to the Ghana Navy where he served until his release from the Armed Forces in August 2012.   \nThe release, according to Plaintiff was based on an allegation that he did not properly account for a weapon that was released him for duty. He claimed that despite his innocence, he was tried and detained in custody for 90 days. He was subsequently released from the Armed Forces and this the Plaintiff claim amounts to punishing him twice for the same offence. The Plaintiff says that this is double jeopardy and it sins against the constitution.   \nThe Defendants filed a Statement of Defence which they subsequently amended to say that the Plaintiff was not entitled to any of the reliefs being sought in his Statement of Claim.  \nAccording to Defendants, the Plaintiff was indeed enlisted in the Army and posted to the Navy and was based at the Naval Base, Tema as an armourer.  \nAccording to Defendants, on 27/3/12, Command of the Naval Base, Tema, received a signal from the Naval Headquarters that an M16 Carbine Rifle with serial number, A00057681 had been received from some armed robbers by the police and the inscription on the rifle showed that it belonged to the Naval Base, Tema. A Search was conducted in the armoury and temporal log books of the base. \n3  \nThe Search revealed that even though the rifle had been signed off as returned, it was not physically present in the armoury.  \nThe base ordered an investigation which revealed that the last person to have signed for the rifle was the Plaintiff herein on the 27/2/2012. The “sign-off” column of the temporal log book however had a different signature from the one in the “sign in” column. Further checks indicated that the signature in the sign off column belong to DW2, OS BAAH.  \nIt is the case of the Defendant that a Board of Inquiry was consequently constituted with the main mandate to find out the circumstances that led to the disappearance of the rifle and the culprit.  \nUpon completion of its work, the Board of Inquiry determined that the Plaintiff and the armourer on duty on the day in question i.e. One AB ALISI should be held responsible for the disappearance of the rifle and to be duly punished.   \nA Disciplinary Committee was set up and it recommendation the charging and trial of the two officers with 2 counts of the offence of negligence to the prejudice of good order and discipline contrary to section 54 of the Armed Forces Act 1962 (Act 105).  \nThe Plaintiff was tried by a Disciplinary Committee and found guilty on both counts and was sentenced to 90 days detention which he served.  \nAccording to the Defendant, the Ghana Armed Forces, the employer of the Plaintiff upon considering the circumstances surrounding the incident and the magnitude of the offence for which \n4  \nPlaintiff had been found guilty, took a decision to release the Plaintiff from the service. The employer was of the opinion that it was in the best interest of the Armed Forces since the Plaintiff’s position as an armourer was a sensitive one and if he couldn’t be trusted to properly account for a single rifle, he could not be trusted with a full armoury filled with firearms.  \nThis decision they said was an administrative one and not a punitive measure. His release came with his due benefits being paid to him.  \nAt the close of pleadings, the issues set down for determination were: i.  Whether or not the Plaintiff was duly tried by the Armed Forces. ii. Whether or not the release of the Plaintiff from the Armed Forces amounted to double jeopardy. iii. Whether or not indeed Plaintiff committed an offence. iv. Any other relief arising from the pleadings.  \nThe Armed Forces Act 1962 (Act 105) mandates the Armed Forces to investigate and prosecute any of its employees for offences committed under the Act and in accordance with due process.  \nFrom the pleadings of both parties, when the disappearance of the M16 rifle was detected, investigation were conducted and a Board of Inquiry set up to go into the matter. Upon the completion of the work of the Board of Inquiry, a disciplinary Committee was set up with the mandate of trying the Plaintiff and one AB1 Alisi, who were believed to be responsible for the said disappearance of the rifle.  \n5  \nIndeed, the Plaintiff was tried, found guilty and sentenced to a 90 day detention. A sentence which the Plaintiff served. Plaintiff did not appeal against the conviction and sentence and did not question the authority of the Armed Forces to try him.  \nIt is worthy to note that the Plaintiff was charged under section 54 of the Armed forces Act 105. Section 54(1) provides that: “Any act, disorder or neglect to the prejudice of good order and discipline shall be an offence and any person convicted thereof shall be liable to dismissal with disgrace from the Armed Forces or to any less punishment provided by this Act”.  \nSubsection(3) of section 54 goes further to describe what constitutes an act conduct, disorder or neglect to the prejudice of good order and discipline as follows: (3)  An act or omission constituting an offence under section 13 or          a contravention by a person of; (a)    Any provision at this Act. (b)    Any regulations published for the general information and           guidance of the Armed Forces to which that person belongs or            to which he is attached or seconded; or  (c) Any general, garrison, unit, section, standing, local or other orders, shall be an act, conduct disorder or neglect to the “prejudice of good order and discipline”.  \nIn the Court’s view, all due processes were followed in the investigation, trial and conviction of the Plaintiff and conviction of the Plaintiff that cannot be faulted.  \n6  \nThe military did what it had power to do and judiciously too. The summary trial was in conformity with the provisions of Act 105 as amended by Armed Forces Law 1983, specifically section 63(1) which provides for the constitution of the disciplinary committee. He was therefore properly tried and convicted.   \nThe Plaintiff as part of his claim wishes the court to declare that his subsequent release for the Armed Forces was most unfair and amounts to double jeopardy.  \nThe criminal code 1960 Act 29 at section 9 provides that; “A person cannot be punished twice for the same offence”.  \nIt is not the law that he cannot be punished twice for the same act.  The legal principle of double jeopardy is one that has been established as a common law principle that ensures that a person must not be punished or vexed twice for the same wrong doing.  The principle of double jeopardy may avail a person where an attempt is made to prosecute a person for an offence for which he has already been prosecuted and either found guilty or acquitted. The person must have been through the rigors of a prosecution on which final judgment has been passed.   \nIn the case of REPUBLIC VRS: THOMAS (1950) 33 CR APPL R. 200: HUMPHERY J stated: “It is not the law that a person shall not be punished twice for the same act. No one has ever said so. In any case, the Interpretations Act does not say so. What the Act says is that a person shall not be liable to be punished twice for the same offence.”  \n7  \nThe dictum was quoted in the Ghanaian case of ABABIO VRS: REPUBLICE (1972) 1 GLR @ 344.  \nThe elements to look out for in double jeopardy is for there to have been a legitimate prosecution which was final. Therefore, where a person has undergone the ordeal of a trial at which a verdict has been pronounced by a court of competent jurisdiction, whether found guilty or not should not be vexed by another trial but left undisturbed to lead a normal life.  \nIn the present case, the Plaintiff was charged with 2 counts of the offence of conduct to the good order and discipline contrary to section 54 of the Armed Forces Act 105 and was duly tried by the Disciplinary Board which found him guilty and sentenced him accordingly.  \nThe Armed Force considering the gravity of the circumstances surrounding the whole incident and the offence were of the view that it was not in their best interest of maintaining order and discipline within the ranks to release the Plaintiff.  \nI am also of the opinion that given his position as an armourer, his employers must be certain of the utmost discipline and trustworthiness of their employee. Where they are not sure that they can completely trust the employee, they have every right to terminate his employment with full benefits.  \nThis release or discharge from the Army is only an administrative action and does not carry any sanctions. The Plaintiff was released and paid his entitlements/gratuity in full in accordance with article 206. 85 of the Armed Forces Regulations 1970 (C.I. 12. \n8  \nIf the Armed Forces had intended to punish the Plaintiff, they would have dismissed him summarily without any gratuity. In the light of the foregoing this Court is of the view that the Plaintiff has not been able to adequately prove his case against the Defendants and that the claims against the Defendants are (UNMERITUOUS).  \nThe claims of the Plaintiff are therefore dismissed and judgment is entered for the Defendants. No Order is made as to costs.  \nParties:   Plaintiff absent.       Defendant present   \nCounsel: Augustine Asafo Adjei for Respondent present.       Cynthia Ofori for the Defendant.   \n  H/L DORIS BEMPONG MRS. JUSTICE OF THE HIGH COURT                              \n9  \n ', 'DORIS BEMPONG (MRS. ), J', 'Civil', '', 'BMISC 402/2013', 'DORIS BEMPONG (MRS. ), J', '', '', '2016-10-10', ''),
(582, 'AGRICULTURAL DEVELOPMENT BANK LTD.\r\nVRS  \r\n1. RENAIZANCE SUPPLY CHAIN LTD. TEMA  \r\n2. CHARLES SENYO YOUNG ACCRA  \r\n3. KENNETH KPEDOR    ====        DEFENDANTS/RESPONDENTS  ACCRA  ', '  \r\nRULING  \r\nOn June 28, 2016, this Court granted the application on notice for mandatory injunction filed by the Plaintiff/Applicant (hereinafter, the “Plaintiff”) and reserved its reasons for today, which I proceed to give. \r\n[1] PROCEDURAL BACKGROUND \r\nThe Plaintiff is a bank duly registered under the laws of the Republic of Ghana.  The 1st Defendant is a customer of the Plaintiff bank and has its registered office in the Greater Accra Region of the Republic of Ghana.  On 5th August, 2015, the Plaintiff \r\n2  \r\ntook out a writ of summons at the registry of this court claiming the following reliefs against the Defendants: \r\ni. Recovery of the sum of GH¢3,385,156.71 (Three Million, Three Hundred and Eighty-five Thousand, One Hundred and Fifty-six Ghana Cedis Seventy-one Pesewas) against the Defendants jointly and severally. ii. Interest on the said sum of GH¢3,385,156.71 (Three Million, Three Hundred and Eighty-five Thousand, One Hundred and Fifty-six Ghana Cedis Seventy-one Pesewas) from 3rd August, 2015 at the rate of 40% per annum till date of final payment against the Defendants jointly and severally. iii. An Order directed at the 1st Defendant to immediately return or re-deliver the Leased Assets to the Plaintiff by sending same to Plaintiff’s Warehouse at Adenta on the Adenta Aburi road near Geowags Limited. iv. Costs inclusive of solicitors’ fees. \r\nSubsequent to the issuance of this writ, the Plaintiff has brought the instant application under Order 25 of the High Court (Civil Procedure) Rules, 2004 (CI 47), for an order of mandatory injunction directed at the 1st Defendant to immediately return or to re-deliver to the Plaintiff the twenty-two (22) tractor heads and trailers it leased out to the Defendants, (hereinafter, the “Leased Assets”).  Accompanying the Application is an Affidavit and a Statement of Case filed on Plaintiff’s behalf by its Solicitor, Mr. Bannerman Williams, Jnr., of Sackodar Chambers setting out the grounds for the prayer and also urging the Court to grant the application.  The Defendants resist the grant of this application in the affidavit in opposition filed by the 3rd Defendant on their behalf on the ground that the application cannot be supported in law as it will be unfair to order the 1st Defendant to return the Leased Assets. \r\n3  \r\n[2] ARGUMENTS OF THE PARTIES: \r\nPlaintiff claims that it entered into a finance lease of some twenty-two (22) tractor heads and tractor trailers with the Defendants on or about July 23, 2015, (hereinafter, the “Finance Lease”).  According to the Plaintiff, by the terms of the Finance Lease, the lease term was for six (6) months and the payment of the lease rental was to be by bullet payment.  It is the further claim of the Plaintiff that it was agreed in the Finance Lease that the Leased Assets would remain the property of the Plaintiff while the Defendant was to have no right or interest therein otherwise than as lessee.  Plaintiff alleges that as a result of the persistent default by the 1st Defendant in the repayment of the lease, the Plaintiff terminated the Finance Lease on July 8, 2015 and demanded, inter alia, the return of the Leased Assets to the Plaintiff at such place as it may appoint in good working order and condition (fair war and tear excepted), as provided for in the Finance Lease.  The Plaintiff, however, claims that the 1st Defendant has ignored all the demands made on it by the Plaintiff for the return of the said Leased Assets.  It further alleges that all efforts by the Plaintiff to trace and repossess the Leased Assets have proven futile.   \r\nOn account of the foregoing facts, Plaintiff argues that the only legal strand that connected the Defendant to the Leased Assets, the Finance Lease, has since been terminated, the Defendant has effectively been stripped of any legal basis for the wrongful continuous detention and or use of the said Leased Assets.  Plaintiff further argues that the Leased Assets are of a wasting nature, suffering increasing depreciation in their values with each passing day the 1st Defendant continues to use them. Plaintiff, therefore, contends that unless ordered by this Honourable Court, the Defendants will not return or redeliver the Leased Assets to it. \r\n4  \r\nThe Defendants oppose the grant of this application for the reasons set out below.  It is the case of the Defendant that after taking possession of the Leased Assets, the 1st Defendant realised they were not in the condition which the Plaintiff and the 1st Defendant believed they were at the time of negotiations.  Thus, the contract was entered into as a result of a mistake and/or a misrepresentation of the state of the Leased Assets.  It is the Defendants further claim that the said mistake and/or misrepresentation caused the 1st Defendant to incur unexpected expenditure, which state of affairs was communicated to the Plaintiff.  The Defendants further contend that the relationship between the parties was originally envisaged as one of outright sale and purchase agreement and its subsequent conversion into a loan by the Plaintiff Bank was done contrary to law and same is void and of no effect.  The 1st Defendant, has since, successfully secured equity partnership, partly in order to help settle its indebtedness to the Plaintiff Bank, according to the Defendants.  For the foregoing reasons, therefore, the Defendants argue that it will be unfair to order the 1st Defendant to return the Leased Assets and the application for the mandatory injunction cannot be supported in law. \r\n[3] ANALYSIS AND OPINION OF THE COURT: \r\nOrder 25 r 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47) states that: \r\n “[t]he court may grant an injunction by an interlocutory order in all cases in which it appears to the court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the court considers just.”  \r\n It is trite that an injunctive order is an equitable remedy and it lies only within the discretion of the court to decide whether or not to grant same.  Yet, the court shall \r\n5  \r\nonly grant it upon carefully considering the justness and convenience of the order requested for.   \r\nIn Halsbury’s Laws of England Vol. 24, 4th edition, paragraph 819 at page 429 it is stated that:   \r\n“the words just and convenient in the statutory provision do not mean that the court can grant an injunction simply because it thinks it convenient but mean that it should grant an injunction for the protection of the rights or the prevention of injury according to legal principles.  They confer neither arbitrary nor unregulated discretion on the court, and do not authorise it to invent new modes of enforcing judgments in substitution for ordinary modes.” \r\nIn that regard, an injunctive order would only be granted where there is a legal right that can be asserted either at law or in equity, for the protection of such a right.  The Applicant must, prima facie, demonstrate, therefore, a legal right that is in danger of continuous threat if the status quo ante was or was not to be maintained.  Also, the Applicant is to demonstrate that, on the balance of convenience, irreparable damage shall be caused to him or her if that legal right was not protected for the time being.  See the case of PUNJABI BROTHERS v. NAMIH (1958) 3 WALR 381.  This further principle, in the case of FRIMPONG v. NANA ASARE OBENG II, [1974] 1 GLR 16, was proposed in the following terms, that is, the Court must also consider the  \r\n“… hardship that would be caused if the application is granted or refused; in other words, the relative convenience or inconvenience which might result to the parties from granting or withholding an interlocutory injunction…”.   \r\n6  \r\nThe basic purpose of interim injunctions is, as was discussed in the Supreme Court case of ODONKOR v. AMARTEI (1987-1988) GLR 578, to hold the balance evenly between the parties pending the final resolution, as much as is possible, of matters in difference between them, and also to ensure that the victory of the successful party is not rendered nugatory or one that brought him more problems than blessings.  In the English case of AMERICAN CYANAMID CO. LTD v. ETHICON LTD (1985) AC 396, applied by the Court of Appeal in the local case of VANDERPUYE v. NARTEY (1977) GLR 428, at 431, Lord Diplock advanced the opinion that where the court was considering the application for interim injunction while the substantive suit was still pending for determination on its merits, it was more appropriate for the court, at that stage of the litigation, to resolve the conflict between the parties on the affidavit evidence before it and refrain from making pronouncements which would pre-determine the issues for trial.  Amissah, JA, stated in VANDERPUYE v. NARTEY, supra, that: \r\n“[T]he governing principle should be whether on the face of the affidavits there is need to preserve the status quo in order to avoid irreparable damage to the applicant and provided his claim is not frivolous or vexatious”. \r\nPlaintiff asserts that it is the legal owner of the Leased Assets, which assertion is not denied by the Defendants.  Defendants also do not deny Plaintiff’s further assertion that the Finance Lease, the agreement on the strength of which the 1st Defendant came to be in possession of the Leased Assets has been terminated, for which reason the 1st Defendant has no legal basis to keep the Leased Assets..  Yet, the Defendants on the other hand deny that by the terms of the Finance Lease, the 1st Defendant is required to return the Leased Assets to the Plaintiff and rather claim that the Finance Lease was executed ultra vires the law and therefore of no effect. Thus, there are \r\n7  \r\nserious issues to be tried between the parties, as to whether or not the Plaintiff is entitled to its reliefs as claimed on the writ of summons.  Considering the pleadings and the affidavit evidence before me, I find, therefore, that the claim of the Plaintiff is neither frivolous nor vexatious.   \r\nAs stated earlier, where the court takes the view that the case was neither frivolous nor vexatious, the court must then proceed to determine the application for the interlocutory injunction by considering the balance of convenience as between the parties. \r\nIn considering the balance of convenience, I must, however, first determine what is the status quo currently existing as between the parties.  From the affidavit evidence before me, it is a fact that the Leased Assets which are the legal property of the Plaintiff are currently in the possession of the 1st Defendant.  Further, the Plaintiff has terminated the Finance Lease because of the persistent default of the 1st Defendant in making the agreed rental payments for the use of the Leased Assets.  The Defendants do not deny these assertions, yet they insist on keeping the Leased Assets.  What will happen to the legal right of the Plaintiff in the Leased Assets if the status quo ante is maintained?  The foregone conclusion is, while these Leased Assets remain in the possession of the 1st Defendant, the Plaintiff is being denied the funds which would have accrued to it from hiring out the equipment to other potential or prospective customers.  Plaintiff, seeks to protect its proprietary/ownership interest in the Leased Assets against the danger of the continuous threat of depreciation physically and/or in value of the Leased Assets and limit its inability to realise the rents from the Leased Assets while they remain in the possession of the Defendants and while the substantive suit has not been heard.    \r\n8  \r\n[4] CONCLUSION \r\nI find that Plaintiff’s apprehension that should the Court refuse to grant it this interlocutory injunction, the Leased Assets will suffer a depreciation physically and/or in their value is real.  These assets are of a depreciating nature and while they are in the possession of the 1st Defendant, nothing prevents the 1st Defendant from continuing to use them to advance its business activities, while at the same time failing to make any financial payments to the Plaintiff for their continued use.  It is my opinion, then, that the Plaintiff stands to suffer more hardship by the continued retention of the Leased Assets in the possession of the Defendants.  What would the Defendants, on the other hand, suffer if the interlocutory injunction is granted?  To my mind, the Defendants stand to lose the benefit of working with the Leased Assets, assets they admit they do not own and whose continued use they do not deny failing to pay for.  In other words, the Defendants stand to lose nothing that rightfully belongs to them if the interlocutory injunction is granted.    The foregoing brings to mind what the Supreme Court said in the case of IN RE YENDI SKIN AFFAIRS; YAKUBU II v. ABUDULAI [1984-86] 2 GLR 231-238, that: “the courts had consistently operated on the principle that where two parties were litigating, every care must be taken to ensure that the party who eventually won did not find his judgment useless in his hands.  Hence, at first instance, there were rules for interim preservation of the subject of litigation, and for injunction to prevent waste.  At the same time the courts have tried to hold the balance evenly between the parties so that one did not take undue advantage of the other during the course of the litigation.  Those principles have been \r\n9  \r\napplied, subject to the balance of the convenience in a particular situation and to the hardship which the making or the refusal of an order might have on one or the other of the parties.”    \r\nIn considering the competing claims of the parties in the light of the evidence before me and on the balance of convenience, therefore, I am of the view that it shall be rather unjust and/or inconvenient to maintain the status quo as between the parties.  I also find that taking into consideration the peculiar circumstances of this case, the Plaintiff will not be adequately compensated for in damages, should the court refuse to grant the interlocutory injunction pending the final determination of the suit.  In the AMERICAN CYANAMID CO. LTD v. ETHICON LTD case, supra, the court stated at page 509 thus:  \r\n“The object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the Plaintiff’s need for such protection must be weighed against the corresponding need of the Defendant to be protected against injury resulting from him having been prevented from exercising his own legal rights for which he could not be adequately compensated under the Plaintiff’s undertaking  in damages if the uncertainty were resolved in the Defendant’s favour at the trial.”  \r\nAfter giving my thoughtful consideration to the rival contentions put forward by the parties to the suit in the light of the relevant provisions of the C.I 47, the case law and the principles underlying the grant or otherwise of an interlocutory injunction, I \r\n10  \r\nconclude that it would rather be fair to grant the Plaintiff the order of mandatory injunction prayed for, directed at the 1st Defendant to immediately return or to redeliver to the Plaintiff the Leased Assets.  The Court grants this order with a view to preserve the security and the integrity of the Leased Assets, they being of a wasting nature, to protect them from depreciating physically and/or in value and to prevent further financial loss to the Plaintiff, which may be occasioned by the failure of the 1st Defendant to make the agreed rental payments for the continued use of the Leased Assets in the interim pending the final determination of the suit.  See the decision of Benin JA (as he then was) in the Court of Appeal case of GENERAL DEVELOPMENT CO. LTD v. RAD FOREST PRODUCTS LIMITED & OTHERS [1999 - 2000] 2 GLR 178.  It is the considered view of this court, therefore, that the justice of the matter requires that the application be granted.  \r\n[5] ORDER:  \r\nLet the 1st and 3rd Defendants convey the said tractor heads and trailers to the Plaintiff by sending same to the Plaintiff’s warehouse at Adenta on the Adenta-Aburi road near Geowags Limited, Accra, on or before 12th July, 2016 for the purpose of preservation pending the final determination of the suit.  \r\nI make no order as to costs.     \r\n   Sgd ……………………………………………… JUSTICE JENNIFER ABENA DADZIE JUSTICE OF THE HIGH COURT (COMMERCIAL DIVISION) \r\n11  \r\nCOUNSEL:  \r\nBANNERMAN WILLIAMS, JNR. ESQ., OF SACKODAR CHAMBERS, ACCRA, FOR PLAINTIFF TUINESE AMUZU, (HOLDING BRIEF FOR DR. AZZIZ BAMBA, ESQ.) OF AB & M LEGAL CONSULT, ACCRA, FOR 1ST AND 3RD DEFENDANTS  \r\nCASES REFERRED TO:  \r\nPUNJABI BROTHERS v NAMIH (1958) 3 WALR 381 FRIMPONG v. NANA ASARE OBENG II, [1974] 1 GLR 16 ODONKOR v. AMARTEI (1987-1988) GLR 578 AMERICAN CYANAMID CO. LTD v. ETHICON LTD (1985) AC 396 VANDERPUYE v. NARTEY (1977) GLR 428, at 431 IN RE YENDI SKIN AFFAIRS; YAKUBU II v. ABUDULAI [1984-86] 2 GLR 231-238 GENERAL DEVELOPMENT CO. LTD v. RAD FOREST PRODUCTS LIMITED & OTHERS [1999 – 2000] 2 GLR 178 ', '', 'No', '', '2016', '', '', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'BFS/176/1', '', '', 'High Accra, Accra', '2016-07-04', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(583, 'ALHAJI SALIFU HARUNA OTINSHIE,                            \r\nNUMO ADJEI KWANKO II OSABU AND AYIKU WOLOMO OF THE KLEMUS                                                                                \r\nVS  \r\nMRS. ASHAMI TETTEH                                                                                    OTINSHIE                     ', '\r\nJUDGMENT:  \r\nBy a Motion on Notice, brought under Order 50 r 1 of the High Court Civil Procedure Rules, 2004 (CI 47), the Defendant/Applicant (hereinafter referred to as the Applicant,  seeks an order for the committal of the 1st Plaintiff/Respondent (hereinafter referred to as the Respondent) for contempt of Court. The motion was supported by an affidavit and supplementary affidavit. The circumstances preceding this application are that the Respondent commenced an action against the Applicant for the reliefs endorsed on the writ of summons, namely; Declaration of Title to the land in dispute, an order of perpetual injunction against the Applicant, damages for trespass, costs and any other reliefs the Court may deem it just to grant. The \r\n2  \r\nRespondent also filed an application for an order of interlocutory injunction against the Applicant to restrain her acting by herself, or her workmen, assigns among others from carrying out or continuing construction works on the land pending the final determination of the suit. The Applicant entered appearance and filed a Defence and an affidavit in opposition to the application for injunction.   Before the injunction could be heard and determined, the Applicant filed the present application seeking an order to commit the Respondent, for contempt. Subsequent to the filing of this present application, the 2nd Plaintiff was joined to the suit, and at the time of hearing of this application, the Writ of summons had been amended to include the 2nd Plaintiff as a party to the suit. The 2nd Plaintiff is however not a party to the present contempt proceedings. The gravamen of the Applicant’s case is that by a Judgment of the High Court, the Defendant was declared owner of the land in dispute and was put into possession of same by execution of a Writ of possession, whereupon she built a wall around the property. According to the Applicant while the application for injunction was pending the Respondent engaged in conduct which amounted to disrespect to the authority of the Court, its Judgments and orders by pulling down the walls of the Defendant. The Respondent filed an affidavit in opposition, in which he denied pulling down the walls of the Applicant, alleging that it was rather the Applicant who pulled down his structures, and further that he was never a party to any suit instituted by the Applicant. He contended that he instituted the present suit when he became aware of the said Judgment in the Applicant’s favour. Upon the Court’s direction, oral testimony was heard for the determination of the application, and written submissions filed. One Curtis Nortey Sowah testified on behalf of the Applicant, and called no witnesses, while the Respondent testified and called one witness. Before proceeding to examine and evaluate the oral and affidavit evidence before the Court, I will examine the principles governing the law of contempt and the circumstances in which the Respondent can be held by the Court, to have committed contempt. Contempt of Court is defined by Black’s Law Dictionary 6TH Edition as  “Any act which is calculated to embarrass, hinder, or obstruct [a] court (sic) in administration of justice or which is calculated to lessen its authority or its dignity. Committed by a person who does any act in wilful contravention of its authority or dignity, or tending to impede or frustrate the administration of justice, or by one who, being under the courts authority as a party to a proceeding therein, wilfully disobeys its lawful orders or fails to comply with an undertaking which he has given”. \r\n3  \r\nIn the case of RE; EFFIDUASE STOOL AFFAIRS (NO 2 ) REPUBLIC V. NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS AND OTHERS ,EX PARTE AMEYAW II (NO 2),[1998-1999] SCGLR 639, holding 1, the Court in defining contempt, held among others as follows; “Civil contempts are those quasi – contempts consisting in failure to do something which the party was ordered by the Court to do for the benefit or advantage of another party to pending proceedings, while criminal contempts was that done in respect of the Court or its process, or which obstructed the administration of Justice or tended to bring the Court into disrepute.” An applicant who alleges that a Respondent has committed contempt of Court carries the burden to prove same. Contempt being quasi criminal, the burden of proof is strict and beyond reasonable doubt. This position of the law was re- stated in the case of RE; EFFIDUASE STOOL AFFAIRS (NO 2 )  supra at page  665 and 666 per  ACQUAH JSC ( as he then was) where the learned Justice stated at page 666 as follows; “…. Now from the standard of proof required to sustain liability, an Applicant must make out a prima facie case against each of the Respondents before the Court can turn to consider the defences put up. And in this regard, an admission or proof of the actual allegation does not imply an admission on the liability in Contempt, as it would still be the burden of the Applicant to establish that the factual allegations constitute contempt.” The basis for the application brought by the Applicant for committal of the Respondent for contempt, is not the breach of an order of the Court, but acts which the Applicant alleges are a disrespect to the authority of the Court and an obstruction of the Administration of Justice. In the case of AMEGA KOFI TOGODO & 3ORS V. TOGBUI NYAHO TAMAKLOE OF WHUITI & 4 ORS , SUIT NO HI/211/2003  decided on 15th APRIL 2005 C.A,(unreported),  the Court per Asare Korang J.A  at pages 4 and 5 of the Judgment stated thus ; “What was the contempt alleged to have been committed in this case? It was not that the appellants had breached or disobeyed any order of injunction made against them by the judicial committee of the Volta Regional House of Chiefs. The basis for the charge of contempt was that the Appellants with full knowledge of the pendency of the litigation in the Judicial committee of the Volta Regional House of Chiefs, bearing on the qualification of the 4th Appellants Awoamefia undermined and tended to bring the authority and administration of the law into disrespect , and also interfered with pending litigations. The principle is that if a party knowing of the existence of a case – a writ , a petition or a motion pending before an adjudicating body seeking to restrain an act , makes a decision himself to deal with and \r\n4  \r\ngrant the very remedy to himself without giving opportunity to the adjudicating body to hear the matter , he commits contempt.” The Supreme Court per Acquah JSC in RE; EFFIDUASE STOOL AFFAIRS (NO 2 )  supra at page  663 per  ACQUAH JSC ( as he then was) could not have made this anymore clearer when he stated thus; “Counsel takes a narrow view of the meaning of contempt of court and would restrict same to disobedience to court order. I think the point is now clear that any conduct that tends to bring the authority and administration of the court into disrespect or disregard and /or to interfere with or prejudice parties, litigants or their witnesses is a contempt.”  From the above, therefore, it is settled law that contempt does not arise only as a result of flouting an order of the Court, but also out of acts which tend to bring the authority and administration of justice into disrespect or disrepute. These principles already stated will be applied in the determination of this application presently before this Court. According to the Applicant, pursuant to obtaining a Judgment from the High Court dated 10th July 2013, in her favour declaring her owner of the land in dispute, she caused her lawyers to write to the occupiers of the land including the 1st Plaintiff inviting them for discussions on the way forward, which invitation was not honoured by the Occupiers. She therefore entered into possession of the land by a Writ of possession and commenced building a wall on the land. The Applicant attached to her affidavit as Exhibit CS’’, her Deed of lease, the Judgment of the Court in suit No, L169/99, an order of injunction, Order for leave to issue writ of possession, writ of possession and certificate of possession.  The Applicant contended that though the Respondent was aware of the Judgment in her favour and inspite of the pending injunction brought by him, he proceeded to demolish the wall of the Applicant. The Applicant attached to her affidavit in support, Exhibits SQ1 and SQ2 as evidence of the demolition of her wall. The duty of this Court on this application is not to determine the merits of the substantive suit but to determine whether or not the Respondent has engaged in acts amounting to contempt of Court.  One Curtis Nortey Sowah testified on behalf of the Applicant. According to him, the Applicant is his Aunt, and he was engaged in construction on the land in dispute. In his own evidence – in- chief, he admitted that he did not see the Defendant demolishing the land. On the 13th Of July 2015, his evidence – in- chief was in part, as follows; Q Did you witness the Plaintiff conducting this demolition?  \r\n5   \r\nA To say the truth I did not witness the said demolition by the plaintiff, but he was the one always coming to the property to give us warning over the land.  \r\nIn cross –examination by Counsel for the Respondent on 15th July 2015, he  affirmed his earlier testimony as follows;  \r\nQ     You told this Court you never saw Alhaji Haruna destroying anything on           the land.  \r\nA     Yes, I never saw him demolishing the structure but he was the one always coming to the site to question us  \r\nQ      You did not see anyone being directed by him to demolish the structures?   \r\nA     No I did not.  \r\nThe Applicant did not call any witness to corroborate the testimony given on her behalf.  \r\nThe Respondent gave testimony consistent with his affidavit in opposition, that he never demolished a wall, and that he had his structure demolished by persons he called thugs hired by the Applicant. According to him the said thugs may have demolished the Applicant’s wall mistaking it for his. Though Counsel for the Applicant suggested to the Respondent that he was the only one with reason to demolish the wall, the Respondent never changed his story and his testimony was not impeached under cross- examination. The Respondent tendered in evidence Exhibits 1 and 2” which were photographs depicting the state of the land and the portions which were demolished.  \r\nCounsel for the Applicant by her written submissions urged the Court not to attach any importance to the testimony of the Respondent’s witness, DW1, because of her inconsistent statements. I do not share Counsel’s view. The witness was clear in her testimony that she was in the structure of the Respondent when some persons came to demolish same, but was not on the premises when policemen and Court bailiffs came to the land in dispute, since she never saw them. She further stated that since the demolition, she has been living in a wooden kiosk on the land.  She testified that the Respondent was her landlord who had put her in possession of the land. She corroborated the Respondent’s testimony that there were structures on the land which were subsequently demolished. Contrary to the case of the Applicant, that there were no structures on the land when she went onto same, Curtis Nortey who testified on her behalf, admitted that the Photograph, Exhibit 1 was reflective of the structures on the land when he went unto same to commence construction work and that at the commencement of construction work on the Applicant’s behalf, the structure in Exhibit 1 which shows a partly demolished structure, had not been demolished at the time. The witness \r\n6  \r\ntestified under cross- examination that he completed the wall before he became aware of the injunction that had been filed by the Plaintiff.  \r\nFrom the evidence before the Court, it is indeed clear that some demolition took place, and it seems to me that the said demolition affected both the Structures of the Respondent and the walls of the Applicant.  Since it is the Applicant who has brought this application before the Court, this Court will seek to determine contempt relative to the Respondent only. That there was a demolition that affected the walls of the Applicant is not in doubt. However has the Applicant been able to prove that it was the Respondent who demolished or authorised the demolition of her wall? From the Applicant’s own testimony by Curtis Nortey, he never saw the applicant either by himself or directing any person to demolish structures on the land. No evidence before this Court implicates the Respondent in the demolition of the Defendant’s wall during the pendency of tis suit or the application for injunction or at any other time. The assertion that the Respondent is the only person with reason to demolish the wall is at best speculative, and cannot in my view discharge the onerous burden placed on the Applicant by law, to prove the factual allegations beyond reasonable doubt and to further prove that those acts amount to contempt and are wilful, to enable this Court punish the respondent for contempt. Counsel for the Applicant in her written submissions stated that the Plaintiff had obtained a Judgment in her favour, given notice to the Respondent and been put into possession of the land.  That the Respondent lodged a complaint at the police station and subsequently came to Court, and yet kept on going unto the land to threaten the workers of the Applicant without waiting for the action to be determined. Counsel submitted that the conduct of the Respondent in continuing to visit the land to threaten the Applicant’s workers amounted to an abuse of the Court’s process and constitutes contempt. Counsel for the Applicant urged on the Court that if the Court does not find the Respondent guilty of contempt on account of the broken walls of the Applicant, it should so hold him in contempt over the threats to the Applicant’s workers. It seems to me that the above allegation that the respondent had gone unto the land to threaten the workers of the Applicant, and that same constituted contempt in the face of the pending suit, and the judgment obtained by the Applicant, was neither canvassed by the Applicant in her affidavit in support, nor her supplementary affidavit in support of this Application.  The Respondent denied that he went unto the land to threaten the workers of the Applicant. More importantly, he did not have the opportunity to contest the new ground first raised by Counsel for the Applicant in her written submissions. Since Contempt is a quasi - criminal action, the Respondent ought to be aware of all of the grounds on which the Applicant seeks his committal, to enable him have a fair opportunity to respond to \r\n7  \r\nsame.  Since this was never one of the grounds upon which the application was brought, this Court will not consider this new ground in the determination of this application. Order 50 r 3 (3) of the High Court Civil Procedure Rules 2004, (CI 47) states expressly as follows:  \r\n“Without prejudice to the powers of the Court under Order 16 rule 7, no grounds except the grounds set out in the affidavit in support of the motion shall be relied upon at the hearing of an application for an order of committal”  \r\nThe burden of proof requires the Applicant to prove beyond reasonable doubt that the Applicant’s walls were demolished by the Respondent, that the said act constitutes contempt of Court, and that same have been committed wilfully in order for same to be punishable. \r\nFrom the totality of the evidence before the Court, I am of the view what the Applicant has not proved beyond reasonable doubt that the Respondent is guilty of contempt, thereby failing to discharge the burden of proof required of her by law. The Application therefore fails and is hereby dismissed.  \r\nI award costs of 1, 500 against the Applicant and in favour of the Respondent    \r\n(SGD) HAFISATA AMALEBOBA (MRS) \r\nJUSTICE OF THE HIGH COURT.  \r\nCOUNSEL: \r\nMR. LESTER OHEMENG, MS. MELISSA AMARTEIFIO, MS VELDA A. ATTUAH, LED BY MR. ERIC MENSAH FOR THE APPLICANT, HOLDING THE BREIF OF NENE AMEGATCHER. \r\nMR. NATHANIEL MYERS FOR THE RESPONDENT (WITH MS. IRENE MARIA QUARSHIE).   \r\n    \r\n8   ', 'links/cases/ALHAJ HARUNA VS. ASHAMI TETTEH.pdf', 'Yes', '', '2015', 'high', '', 'HAFISATA AMALEBOBA (MRS), J', 'Civil', '', 'FAL 119/15', '', '', 'High Court, Accra', '2015-12-22', ''),
(584, 'ATTAH BEMPAH  \r\n    VRS  \r\nDANIEL AGYAPONG', 'JUDGMENT  \r\nPlaintiff in a writ issued on the 22/7/2009 sought the following reliefs:  \r\na. Declaration of title to all that  piece or parcel of land containing an area of 0.32 acres more or less lying being and situate at North Gbawe, Accra that is known and called Plots Nos 202 and 204 (Sector B) that is bounded on the north by Plot Nos 201 and 203 measuring on that side 140 feet more or less and on the east by plots 206 measuring on that side 100 feet more or less and on the south by a proposed road measuring on that side 110 feet more or less and on the south west and on the west by a proposed road measuring on that side 115 feet more or less which piece and parcel of land is delineated and marked with red on the site plan dated 31/07/96 attached to the indenture b. A further declaration that the defendant’s action of erecting a building on the said land without the plaintiff’s permission or consent amounts to trespass on same.  \r\nc. Recovery of possession from the defendant of the portion of the said parcel of land trespassed on by the defendant. \r\n \r\n2 | P a g e    \r\nd. Recovery from the defendant the sum of Gh¢3.600.00 plus interest from the date defendant received same from the said tenants till date of final payment being advance for rent paid by tenants to the defendant in respect of stores they occupy on the said land.  \r\ne. Damages against the defendant for trespass.  \r\nf. Perpetual injunction restraining the defendant, his agents, assigns workmen or any person claiming by, through or for the defendant from entering, building on, or interfering in any way with the plaintiff’s use, quiet enjoyment and possession of the piece or parcel of land the subject matter of this suit.  \r\nThe thirteen paragraphed statement of claim that accompanied the writ can be summarized as follows: that by means of an indenture between the plaintiff and one Nii Adam Quartey, of the Gbawe Kwatei family he acquired two plots of land. Defendant who was once a friend of the plaintiff has without his consent erected a building on a portion of the land and has also collected an amount of Gh¢3.600 from the tenants of the plaintiff.  \r\nAccording to the Plaintiff as he is ordinarily resident outside Ghana he made the defendant his supervisor and caretaker only for him to visit Ghana in one of his visits in 2008 to find out that the defendant has erected another building beside that of his own on a portion of the land as his personal property. After confronting the defendant he agreed to vacate the building he had erected on condition and terms which defendant unilaterally set out in letters defendant wrote to the plaintiff. Defendant has persisted in his acts of trespass by bringing sand, gravel and stones onto the land notwithstanding his assurances to vacate the land and has continued in his acts of trespass. Plaintiff according prays for the reliefs set out in his writ.  \r\nDefendant has resisted the claim of the plaintiff and instead set out a cross action in the nature of a counter claim for the following two reliefs: \r\n \r\n3 | P a g e   \r\na. A declaration that plaintiff is estopped by conduct from challenging defendant’s possession of the premises occupied by defendant and his family or  \r\nb. In the alternative an order that the property occupied by defendant and his family be valued at the expense of plaintiff and a further order that plaintiff pays to defendant the cost of valuation.  \r\nIn his statement of defence the defendant has set out a different version of what transpired between them. He claims that he was in a business dealings with the Plaintiff when the latter travelled abroad by selling vehicles shipped by plaintiff to him and also supervised plaintiff’s transportation business as well as disbursing monies at the directions of the plaintiff. And that he mooted the idea of purchasing land for Plaintiff out of the proceeds of the sale of vehicles for the construction of a house. He approached the original owners of the land being Gbawe Kwatei family and acquired two plots of land on behalf of the plaintiff. In one of the visits of Plaintiff to Ghana when construction started he became pleased with the work done by defendant that in the presence of witnesses, Plaintiff asked the defendant to take one of the two plots of land as a gift in appreciation for the good work done and further requested him to get two separate land documents for the two plots of land.  \r\n Defendant accordingly executed two documents on the instructions of the plaintiff and proceeded to complete a four bedroom house for the plaintiff which Defendant and his family moved in to occupy. Plaintiff had no difficulty in sharing the house with them anytime plaintiff happened to visit Ghana. To defendant plaintiff was fully aware of the house he started constructing in 2000 and never challenged him on that.  \r\nTo defendant he gave out two stores upon completion as rent to tenants and upon plaintiff’s direction disbursed the Gh¢3.600. And it was therefore untrue that he had embezzled monies due to the plaintiff. Plaintiff ordered him to cause a valuation to be done on the house he had put for the purposes of a refund of his monies to him which he did and his property valued at \r\n \r\n4 | P a g e  \r\nGh¢19.100. He did that and made plaintiff aware but plaintiff has refused to refund the monies to him. To him he was compelled by health reasons to complete the house and has incurred further expenses.  \r\nThe following were settled as issues for determination by the trial Judge:  \r\ni. whether or not the disputed plot of land belong to the Plaintiff or to the defendant.  \r\nii. whether or not plaintiff made a gift of one of the plots of lands described in the statement of claim and the subject matter of this dispute to the defendant.  \r\niii. whether or not the plaintiff gave his consent and permission for the defendant to erect a building on plaintiff’s plot aforesaid.  \r\niv. whether or not plaintiff is entitled to recover from the defendant the sum of Ghc3.600.00 being rent defendant received for and on behalf of the plaintiff.  \r\nv. whether or not the plaintiff is stopped from challenging defendant’s occupation and possession of plaintiff’s premises.  \r\nvi. whether or not plaintiff is entitled to the reliefs endorsed on their writ of summons and statement of claim.  \r\nvii. whether or not the defendant is entitled to his counterclaim  \r\n   ANALYSIS OF THE EVIDENCE AND EVALUATION OF THE LAW  \r\nAs 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 Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS [2003 – 2004] SCGLR 420 is very instructive that: \r\n \r\n5 | P a g e   \r\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…”   \r\nIn respect of thedefendant’s counter claim it is to be viewed with the same scale of measurement as if he was the plaintiff. As far back as the case of AMON v BOBBETT (1889) 22 QBD 543 where Browne LJ noted that:  \r\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”.  \r\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’  \r\nBefore commencing the evaluation of the evidence, I must place on record the real and substantial difficulty that afflicts me even though as a trial Judge I have not had the benefit of listening to any of the evidence of the parties in court. Not presiding as an appellate Judge, nonetheless, my evaluation is limited to only the evidence on record same as the task that confronts any \r\n \r\n6 | P a g e  \r\nappellate court. And that does not in any way derogate or detracts or steal the glow out of the findings to be made upon analysis of the evidence.  \r\nI now begin the analysis and evaluation with the evidence of the Plaintiff. The Plaintiff testified through his lawful attorney Kwaku Akosah and Pw1 Osei Bempah, an uncle of the Plaintiff. The attorney testified and tendered the power of attorney that vest in him the capacity to be in court as Ex “A”, the indenture of the two plots in dispute as Ex “B”. The Ex “B” shows a transfer of two plots of land from Gbawe Kwatei family to the Plaintiff with the defendant acting as the authorized representative. This piece of evidence finds corroboration in the evidence of the Defendant when he stated in his evidence on the 11th of May, 2011 that the Plaintiff made him purchase the land for Plaintiff in 1994 and that they were two plots from the Gbawe Kwatei family. It is therefore clear from the evidence that there is no dispute at all regarding the initial purchase of two plots of land on behalf of the Plaintiff by the defendant from the Gbawe Kwatei family.  The court guided by the trite principle of law that where a party makes an averment and that averment 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.  \r\nWhat then comes up for determination as gleaned from the substance of the first three issues is to the effect as to whether at any point in time the Plaintiff made a transfer of one of the two plots of land to the Defendant either through a gift or otherwise as the defendant seems to assert and the Plaintiff denies. Being a trite rule of evidence that one cannot prove a negative, the defendant claiming that the Plaintiff divested himself of the ownership of the one plot being the res litiga, the burden is cast on the defendant to prove to the court how he became the owner of the land.  \r\nHow did the defendant discharge his burden? Defendant states in his evidence in chief on record that he became the owner of the res litiga in this manner:  \r\n“In 1996 when he [plaintiff] came to Ghana, one evening we were \r\n \r\n7 | P a g e  \r\ntogether when one Sampson Adjei came to us in the house and we sat down and plaintiff said that in appreciation of all that I had done for him I should take the other plot”.  \r\nThe following material information were elicited from the defendant in his further evidence before the court:  \r\nQ: So what happened from there?  \r\nA: We thanked him ...  \r\nQ: So what happened to the land he gave to you.  \r\nA: I started developing it.  \r\nQ: Which year was it.  \r\nA: 2000  \r\nQ: Was any documentation prepared in respect of the land given to you  \r\nA: Yes”  \r\nThe evidence of transfer of the land was tendered by the defendant as Ex ‘2’. The court will need to take a critical examination of Ex ‘2’ as to whether it meets the standard of a document that purports to transfer ownership of land. Ex ‘2’ seems or appears to have two parties to the transaction. The first party is the plaintiff and the second party is the defendant. Curiously enough the defendant admits that he signed the document as defendant and at the same time signed the document on behalf of the plaintiff. As to how this can be, this is what the defendant states in answers to questions:  \r\nQ: Look at Ex ‘2’, it is the document between Attah Bempah and Daniel Dwomoh Adjapong, who executed this document for Attah Bempah  \r\n \r\n8 | P a g e  \r\nA: Daniel Dwomoh Adjapong, myself  \r\nQ: Who signed for Daniel Dwomoh Adjapong?  \r\nA: Myself  \r\nQ: Can you tell the court why you are not Attah Bempah but you executed it for him  \r\nA: The authority he gave to me to sign Ex ‘B’ is the same authority I used to sign Ex ‘2’  \r\nSo can a party to a transaction sign in his own name and change its morphology and sign on behalf of the other party to the transaction, that is the transferor?   \r\nSection 1 of the Conveyancing Act, NRCD 96 states as follows:  \r\n‘A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorised in writing, unless relieved against the need for such a writing by the provisions of section 3. (2) A transfer of an interest in land made in a manner other than as provided in this Part shall confer no interest on the transferee’.  \r\nDefendant has stated emphatically that he signed for on behalf of the Plaintiff based on an oral instructions. This is against the clear terms of the requirement for a document affecting land to be signed by the transferor or a person authorized by the transferor in writing to sign on his behalf. The authorization of the transferor for the document to be signed on his behalf should be in writing and not an oral one. The admission by the defendant that no such authorized writing exist makes Ex ‘B’ void and of no effect.  \r\nSection 2 of Conveyancing Act again states that: \r\n \r\n9 | P a g e   \r\n“No contract for the transfer of an interest in land shall be enforceable unless— (a) it is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorised to sign on behalf of such person; or (b) it is relieved against the need for such a writing by the provisions of section 3”.  \r\nCan it be said as indeed the defendant claims that the transfer of the interest in the res litiga was a gift such that depending on the nature of the gift, say if it was a customary gift, it would be excused from the necessity for writing. For section 3 of the law list among others an oral grant under customary law as one of the transfers of an interest in land which is permitted without writing. In proving an oral gift of the land to the defendant, the latter procured Sampson Adjei, DW1 to testify on his behalf. As part of the substance of the testimony of DW1 he claims that Plaintiff called him in the presence of Agartha, the wife of defendant and told them that he was gifting one of the two plots to defendant in appreciation for his good works. And he continued that:  \r\n“Mr. Agyapong tried bringing a schnapp to thank Mr. Attah Bempah but he said no, the schnapp is not needed because of the numerous assistance he has offered him”   Plaintiff’s attorney has denied this claim of the defendant and so also is the uncle of the Plaintiff, Pw1 who has denied the claim of any customary gift to the defendant. For when Pw1 came under cross examination this is what transpired  \r\nQ: I am putting it to you that in appreciation of the good work the Plaintiff gave to the Defendant a plot out of what he had  \r\nA: I do not believe it. If he had given him anything of that sort he would have \r\n \r\n10 | P a g e  \r\ntold me considering how close I am with him”.  \r\nWhat then is the law on customary gift regarding land?  \r\nJustice Dennis Adjei, in his work – Land Law and Conveyancng in Ghana notes at page 53 that any personal gift of a land must be done in public and not in secrecy and that the immediate family of the donor are preferably to be present in the making of such gift of land. This position is supported by the case of AKUNSAH v BOTCHWAY & RIVER FARMS LTD [2011] SCGLR 288 that:  \r\n “In the case of a personal gift the owner’s decision is not subject to approval or consent from anyone. The only condition is that it should not be done in secret. It should be witnessed by others, preferably by members of the immediate family of the donor who are not entitled to question his decision provided they have no interest in the property which he intends to give away”. It does not end there. The beneficiary of the gift expresses his acceptance and gratitude for the payment of “aseda” in any form depending on the circumstances of each case”  \r\nAlso in the case of YOGUO v AGYEKUM & ANOR [1966] GLR 482520; the court gave the essential elements of a valid customary gift of land to include the following: ceremony of transfer of ownership, publication to the living and the dead that ownership in a property had as from the date moved from the donor to the donee, pouring of libation and finally “aseda” to indicate acceptance of the gift.  \r\nThough in modern times some of the strict requirements have been watered down yet one cannot discount the provision of “aseda” which is an essential element of a valid gift as both parties are Ashantis having grown up together at Asante Mampong. I do not find that there was any valid gift of the res litiga to the defendant under customary law. There being no such gift under customary law and having earlier found that there was no valid transfer of the property to the defendant in a manner that meets the minimum \r\n \r\n11 | P a g e  \r\nrequirements under the Conveyancing Act, the net effect is that the property is the property of the Plaintiff and was never transferred to the Defendant.  \r\nHaving then been in possession of the land of Plaintiff since 2000, should the court make the Plaintiff pay the defendant the cost that the defendant has incurred so far in erecting the structure which he now occupy?. Ordinarily, a trespasser who has been on another’s land without permission is even supposed to pay damages for trespassing. However, the defendant in his Ex ‘1” tendered in court which Plaintiff did not deny being the author of that letter; Plaintiff unequivocally accepted to refund any monies spent on the land after the value of the land has been ascertained.  The valuation done based on the agreement between the parties was tendered as Ex ‘3’ where the cost of the building put up by the defendant was estimated to be Gh¢19.614.70. The courts are not in the business of drawing up agreements for parties and a party may decide to compromise his rights under the law and it is not the duty of the court to assert a right that a party himself has decided to waive. Notwithstanding the trespassory acts of the defendant, Plaintiff decided to pay defendant whatever monies expended. Plaintiff did not deny being the author of Ex ‘1’ and it was based on that letter that a valuation of the building was undertaken.  \r\nSection 26 of the Evidence Act, NRCD 323 provides:   \r\n “Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest”.     \r\n  This has been termed as the irrebuttable presumption of estoppel by conduct. By the very statement through the letter of Plaintiff he had caused the \r\n \r\n12 | P a g e  \r\ndefendant to believe and act upon it that he was going to refund his monies to him. The catch is that for the doctrine to operate it must relate to existing facts, the conduct must be clear and unambiguous and third the other party should have acted upon it to his detriment.  I find that the plaintiff having agreed to refund the value of the monies spent by defendant on the land which was found to be Gh¢19.100.00 at the time, plaintiff must refund the monies as its value as at today. It would not be helpful to order for another valuation on the property as subsequent to the time defendant was told to halt further development, he ignored it and continue to develop the property on the flimsy ground of ill health. And it will not be just to make plaintiff pay for expenditure on the building beyond which he had clearly accepted to pay.  \r\nThis then bring the court to the issue as Plaintiff’s claim to an amount of Gh¢3.600 which he claims are monies defendant collected from tenants and had not accounted for it. In the evidence of the defendant he admitted receiving Gh¢3.600 and this is how he accounted for them:  \r\nQ: What happened to that money  \r\nA: He directed me to use GH¢1.800 to procure electricity meters and also use part for telephone installation  \r\nQ: What happened to the remainder  \r\nA: He asked me to give the remaining amount of Gh¢1.800 to one Alhaji who is a contractor engaged to do some work on the premises   Q: What happened to the other Gh¢1.800 to Alhaji, did you give it to him  \r\nA  Yes  \r\nQ: Did you give all the Gh¢1.800 to him  \r\nA: I gave him Gh¢1.000 \r\n \r\n13 | P a g e   \r\nQ: What happened to the remainder  \r\nA: It got missing”  \r\nAgain here with the admission of defendant that the total monies of Gh¢3.600 came into his hands as rent from tenants of plaintiff and claim to have disbursed the monies on the instructions of plaintiff, the burden was on defendant to have backed his claims in court with the necessary receipts from the electricity company and also the payment made to Alhaji. There is also no evidence that he lost an amount of Gh¢800.00 beyond the mere assertion made in court. This is also a departure from his pleadings that he disbursed all the monies as per the instructions of plaintiff. From the evidence on record I find as a fact that defendant received an amount of Gh¢3.600 on behalf of plaintiff and failed to account for same and defendant is liable to refund the monies to the plaintiff.  \r\nThis brings the court to the final issue worth determining in this suit and that is whether the Plaintiff is stopped from challenging defendant’s occupation and possession of the plaintiff’s premises. The defendant claim that he started building on the res litiga in the year 2000 and that plaintiff had been visiting Ghana every two years and never raised any issue until 2006 when he asked him to stop further developments on the land. The court is not clear as to the specific estoppel that defendant is claiming. Granted that defendant started construction in 2000 and it was in 2006 that he was told to stop would that be enough to invoke a claim of estoppels?.  \r\n First if it is matter of a claim bordering on Statute of Limitations that the right of Plaintiff has been extinguished; Limitations Act, NRCD 54, specifically section 10 which states as follows:   “10(1) a person shall not bring an action to recover a land after the expiration of twelve years from the date on which the right of action accrued \r\n \r\n14 | P a g e  \r\nto the person bringing it or if it accrued to a person through whom the first mentioned claims to that person  \r\n(2) a right of action to recover land does not accrue unless the land is in the possession of a person in whose favour the period of limitation can run”  \r\nFor the plea of limitations to be entertained it must expressly be pleaded or a party must plead facts such as would evince intention to rely on the plea of limitations. See the case of DOLPHYNE (NO 3) v SPEEDLINE STEVEDORING CO. LTD [1996-97] SCGLR 514. Looking at paragraphs 27 and 28 of the statement of defence this first hurdle requirement of pleading is satisfied. However, defendant started a building in the year 2000 and being told to stop in the year 2006 will not meet the requirement of the minimum number of years set out in the law. And any purported claim under the Limitations Act fails.  \r\nWhat of the claim of the defendant falling under section 26 of the Evidence Act, NRCD 323 quoted supra which is to the effect of being estoppel by conduct. What statement or conduct, acts, omissions either intentionally or otherwise caused the defendant to believe that the property he now occupies, had been given to him by the plaintiff. From the evidence it seems that anytime the Plaintiff was on a visit in Ghana he used to put up in the house and did not complain as he shared the property with the defendant. But would that be enough to amount to estoppels by conduct?  \r\nOccupying a property because the owner is not in Ghana in itself when the owner comes and fails to comment will not give rise to a conclusion that the \r\n \r\n15 | P a g e  \r\nowner has by conduct encouraged the person in occupation to believe that he now assumes ownership of the property. As the one that was overseeing the construction of the house, having moved to occupy part of the property does not raise an estoppel by conduct. And as noted for the claim of that estoppel to operate the conduct complained of must be unequivocal and unambiguous, the other party must have relied on it to his detriment. I do not think that the conduct of Plaintiff here before 2006 did in any way raise the irrebuttable presumption of estoppel by conduct and I so find and hold.   \r\nThe court summarizes its judgment in conclusion as follows: Plaintiff succeeds in his action for declaration of title to the res litiga, recovery of possession of the land as well as recovery of an amount of Gh¢3.600 together with interest from the time the monies got into possession of defendant till date of final payment at the commercial bank rate. And an order of perpetual injunction to restrain the defendant and his agents and privies from claiming or interfering with plaintiff’s enjoyment of the property. As stated the plaintiff must pay the today’s value of an amount of Gh¢19.100 to be assessed by the Registrar together with the parties. This amount could be off set against any monies Plaintiff is entitled.  \r\nFinally the plaintiff asked for general damages. In the Supreme Court case of DELMAS AGENCY GHANA LTD. V FOOD DISTRIBUTORS INTERNATIONAL LTD [2007 – 2008] SCGLR 748 on the award of general damages the court held that:    ‘General damages is such as the law will presume to be the natural \r\n \r\n16 | P a g e  \r\nand probable consequence of the defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded’  \r\nOn the whole I will award an amount of Gh¢15.000general damages.  \r\nIn terms of cost, this matter has been in court since 2009 and the cost of litigation with many adjournments must have taken its financial toll on the plaintiff. On the whole I will award cost of Gh¢15.000.00 in favour of Plaintiff.     \r\n              (SGD.) Eric Kyei Baffour, Esq. Justice of the High Court     \r\nRepresentations:   \r\nPlaintiff’s Lawful attorney – Present  Defendant – absent   \r\nRosemary Hayford, (Mrs) for Sampson Obeng, Esq for Plaintiff – Present   \r\nDefendant’s Counsel absent  ', 'links/cases/ATTAH BEMPAH v DANIEL AGYAPONG.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'IRL/451/09 ', '', '', 'High Court, Accra', '2016-03-18', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(585, ' BEATRICE ABLA AVEGE\r\n              VRS  \r\nFRANK BEDU AVEGE', '\r\nJUDGMENT \r\nPlaintiff’s claim against the defendant is for  \r\n1) The payment of a total amount GHC 257,698.35 and  $7000 being an outstanding of money expended by plaintiff on a building project for  defendant and the cost of a bailing machine,  \r\n2) Interest at bank rate from 15th February 2011till date of final payment.  \r\nThe defendant entered appearance and also counterclaimed for the following  1. A declaration that defendant is a 50% equity shareholder of the plaintiff’s used clothes business and therefore entitled to 50% of profits accruing to the business since 1989. 2. A declaration that plaintiff pays 50% of profits in the used clothes business to defendant 3. A declaration that plaintiff’s conversion of defendant’s two storey to a single storey house without his permission is wrongful and unlawful. 4. An order that defendant recover from plaintiff an amount of GHC 120,000 being the amount used to demolish and restore the building to the state in which it was before. \r\n2  \r\n5. An order for recovery of $50.000being capital and accrued profits from bailing business set up by parties but solely run by plaintiff. 6. An order for audit an account to determine the plaintiff’s user of the bailing ma and defendant paid $chine and the warehouse as well as rents received from date of completion to date of handover by plaintiff. 7. A declaration that defendant has fully paid the GHC 100,000 business loan advanced by plaintiff in cash and stocks. 8. A declaration that transfer of Koshi Kutsienyo’s plot to Timothy Avege’s property to defendant. 9. An order directing plaintiff to deliver up to defendant the title deeds, building permits and all document relating to plot no RP/16/C3 and 16 belonging  to defendant to him. 10. Legal fees and cost.  \r\nThe plaintiff, a businesswoman who lives in Accra is the uterine sister of the defendant who also lives in the United States of America. According to the plaintiff she undertook to cause the construction of a two bedroom and another three bedroom furnished apartments for the defendant at Community 16, Lashibi Sakumono, Accra.   \r\nThe plaintiff avers that the defendant has taken over the two buildings together with her warehouse containing a baling machine, even though the warehouse belongs to her.   \r\nPlaintiff said that she repurchased the land from the Nungua at GHC700.00 on defendant’s behalf, but defendant couldn’t pay for the land. She however agreed and undertook to build for the def. According to plaintiff she expended an amount of GHC 257,698.35 on the project together with furnishing and defendant paid an amount of $17,000 out of the project cost. Plaintiff said that the warehouse belonged to her but the defendant had also taken it with her bailing machine.   \r\nPlaintiff denied the defendant being a 50% shareholder in her bailing business and denied owing the defendant $50,000. She also stated that Koshi Kutsienyo was alive and had not mandated the defendant to sue on his behalf. Plaintiff said \r\n3  \r\nshe was ready to hand over documents on the project as soon as she is paid what is due her,  \r\nThe defendant in his statement of defense stated that the plaintiff had lost her business capital when her husband died and her stepchildren siphoned all her money,  \r\n According to defendant in 1989, the plaintiff approached him in the UK to help salvage her business. He thus abandoned his schooling, job and pursuit of resident permit to come to Ghana to help to revamp the used clothes business for the plaintiff. He relocated to the US and also managed the plaintiff business dealings there. He said he continued organize the selection of good stock, supervise the bailing, purchasing and shipping of used clothing for the plaintiff. By virtue of the reorganization of the plaintiff’s business and his relocation to the US, the plaintiff promised him 50% of the profits of the business which made him a 50% equity owner of the business.  \r\nDefendant stated that before leaving Ghana he bought two double plots of land for himself and his bosom friend Koshi Kutsienyo and requested plaintiff to start developing in one corner of each plot a two storey semi-detached house to lintel level. He further stated he continued to render services to plaintiff and in 2002 gave an amount of $12,000 as capital contribution to the business, in 2004 plaintiff informed him that his investment had grown to become $15,000.  \r\nDefendant says that the parties had an agreement for the plaintiff to complete the project with her own resources and to rent the place out to recoup whatever she spent on the project. He said plaintiff has not rendered an account for the rental from1991 to 2006. Again since the building was not put up the way he wanted it and had to spend GHC 120,000 on demolishing and remodeling of the house.  \r\nDefendant disputes the balance of GHC 149.291 being claimed because the various sums of money he transferred to plaintiff as well as rents collected had offset whatever he owed. He however admitted collecting financial help of GHC 100,000/00 from the plaintiff.  \r\n4   \r\nThe issues for determination adopted on 29/18/12 were as follows. ? Whether or not plaintiff undertook a building project for the defendant including the warehouse ? Whether or not defendant has taken possession of the project including a warehouse and bailing machine ? Whether defendant has paid for the buildings including the warehouse and the baling machine. ? Whether or not defendant refunded the outstanding balance of the financial assistance. ? Whether on the account of the defendant’s substantial contribution to the rebuilding and revival of plaintiff’s business and upon representation by plaintiff is an owner in equity of 50% of plaintiff’s business. \r\nThe fact of the agreement between the parties as to the construction    of the houses by plaintiff for defendant is not in contention, however the parties are both not in agreement on what is owed and to whom it is owed.        \r\nThe plaintiff has led evidence to show the cost of the apartments built for defendant as well as the warehouse with the baling machine. This evidence was corroborated by the plaintiff’s witness Augustus Kuma Tsorgali. Both plaintiff and her witness admitted that defendant had sent two used cars to be sold and proceeds put towards the project. Again they have both admitted $17000 being paid by defendant. This evidence went unchallenged.   \r\nThe burden of proof and persuasion remains on a plaintiff to prove unless and until the plaintiff is able to produce evidence of relevant facts and circumstances from which it can be said that they, defendant therefore counterclaimed was the view of Brobbey JSC in the case of OSAE VS ADJEIFIO (2007-2008) SCGLR @ 499.  \r\nThe defendant has admitted taking over the warehouse and apartments as alleged by the plaintiff and it therefore not in issue. What is in issue therefore is whether indeed the defendant has paid for the project fully.   \r\n5  \r\nFrom the defendant’s evidence, he said that at a point in time he had to give up his job and studies in the UK to come and salvage the plaintiff’s business and plaintiff promised him 50% of profits in the business. Defendant is also counterclaiming for a declaration that he is a 50% equity shareholder of plaintiff’s business and for an audit of the business and a declaration that it is illegal for plaintiff to transfer Kutsienu’s land to another brother’s name,  \r\nThe court did not consider anything about Kutsienu’s land since defendant did not have a power of attorney to sue plaintiff on his behalf. However the burden of proof shifts with the counterclaim. Adinyira JSC in the case of DON ACKAH VS PERGAH TRANSPORT ( 2010) SCGLR @728 stated that “it is a basic principle of the law of evidence that the party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the facts is more probable than its non-existence”.   \r\nSections 10 and 12 of NRCD 323 Evidence Act gives credence to the above statement.  \r\nI have carefully considered the evidence and exhibits produced and I am satisfied that the plaintiff has adequately led evidence to establish her claim, the defendant on the other hand has failed to adequately prove his case. defendant’s  counterclaims are therefore dismissed, judgment is entered for the plaintiff in the sum   of amount GHC 257,698.35 and the cedi equivalent of $7000 being an outstanding of money expended by plaintiff on a building project for  defendant and the cost of a baling machine,  \r\nInterest at bank rate from 15th February 2011 till date of final payment. Cost of GHC 5000 is awarded to the plaintiff.  \r\n                                                         (SGD) DORIS BEMPONG (MRS.) JUSTICE OF THE HIGH COURT ', 'links/cases/BEATRICE AVEGE.pdf', 'Yes', '', '2015', 'high', '', 'DORIS BEMPONG (MRS), J', 'Civil', '', 'BC/255/2012', '', '', 'High Court, Accra', '2015-12-16', ''),
(586, 'BIZZACO LTD. \r\n    VRS  \r\nACCRA METROPOLITAN ASSEMBLY   ', '  \r\nJUDGMENT  \r\nOn the George Walker Bush motorway, otherwise called N1at the section at Abelemkpe is a piece of land by the highway which until the 3rd and 23rd of May, 2014 was occupied by the Plaintiff and had been converted into a washing bay. Acting on concerns that the activities of Plaintiff on the land poses threat to motorist coupled with a feud between Plaintiff and residents of Abelemkpe, National Security was compelled to demolish the property of Plaintiff on that piece of land.  \r\nThe plaintiff company claims per the reliefs endorsed on its amended writ of summons the following reliefs originally against National Security, the Attorney General and Accra Metropolitan Assembly:  \r\ni. An amount of Ghc486.190.19 being the total amount expended by the Plaintiff on its business operations on the aforesaid land from the date when the land was given it to the date of the final demolition.  \r\nii. Interest on same at the prevailing Bank rate from the date of the issuance of this suit to the date of final payment of same.   \r\n \r\n2  \r\niii. Damages and compensation to be assessed by the court on a quantum meruit basis.  \r\niv. Perpetual injunction restraining the Defendants their agent privies and servants and by extension, any other person or persons and or entity from dealing with the land in any manner detrimental to the interest of the Plaintiff pending the determination of all matters before the Court.  \r\nv. Costs incurred by the Plaintiff inclusive of legal fees. \r\n  \r\nvi. Any other reliefs which may be ordered by this honourable court.  \r\n The suit was amended to delete the name of National Security as a party to the suit. Eventually the Plaintiff discontinued the action against the Attorney General making the AMA the only defendant in the suit. In view of the change in parties to the suit Plaintiff indicated that it has abandoned reliefs (iii) and (iv) endorsed on the writ.  \r\n In the amended statement of claim the Plaintiff describes itself as a company that deals in the sale and rental of vehicles as well as the operation of washing bays. And that it applied for a parcel of land at Abelemkpe from the Defendant in October 2011 to be used as a washing bay. The defendant initially granted it a temporary permit to be on the land to operate a washing bay. Plaintiff had to spend GH¢25.000.00 to make the land suitable for a washing bay. Defendant became satisfied with the good use the Plaintiff had put the land and decided to execute a lease for Plaintiff in January, 2014 for a period of five years.  \r\n Based on the five year lease, Plaintiff claims to have secured two loans of GH¢40.000 and GH¢35.578.00 to inject into the business on the land. Plaintiff claim to have used the loans secured to build summer huts for clients, drill a borehole and fence round the land. That he was doing brisk business employing forty two persons when on May 2nd 2014 one Major Awuni of the National Security came to the land where Plaintiff is operating its business and indicated that they were there to demolish the property. The National Security carried out the threats of \r\n \r\n3  \r\ndemolition and destroyed the Plaintiff’s property on the land. To Plaintiff National Security intimated to him that the land does not belong to AMA for it to have given it to the Plaintiff. Plaintiff claims that the demolition exercise was completed on 28th May, 2014 when the National Security finally raised every property on the land to the ground.   \r\n Plaintiff claim that based on the representations made by AMA it expended all those monies and after the demolition it contracted a management company to assess the cost of the damage which came up to GHc486.190.19 and as it has suffered this huge financial loss due to the representations of the AMA it seeks those reliefs against it.   \r\n In the amended statement of defence filed by the defendant it denied the essential averments of the Plaintiff and gave a different version of the events between the parties regarding the damage caused the Plaintiff’s property on the land. Defendant claim to have granted a temporary permit for the Plaintiff to be on the land on condition that Plaintiff was not to put up any permanent structure on the land. Besides that defendant was to vacate the land anytime the government needed that land. It further averred that the grant of the land to Plaintiff on temporary basis was in furtherance of its mandate under the Local Government Act, 1993 Act 462 which mandates Assemblies to be responsible for reserved lands of the government.  Again, the Defendant set out in its defence that Plaintiff breached the material terms set out in the agreement it entered into with Plaintiff as it failed to obtain permit for the structures Plaintiff put up on the land.  \r\nTwo main issues emerged after defendant spurned the opportunity to partake in the pretrial conference and these were:  \r\n1. Whether or not Defendant’s grant of the land to plaintiff was lawful.  \r\n2. Whether or not the Plaintiff is entitled to its claim or reliefs against the defendant. \r\n \r\n4   \r\nThe court is not unaware of two additional issues filed by counsel for AMA. I am afraid the court is unable to incorporate those two additional issues as leave of the court was not formally granted. And with the procedure of trial at the Commercial Courts as spelt out under Order 58 of the High Court (Civil Procedure) Rules, C.I 47, with the failure of a pre trial conference to resolve the issues, when the matter is to proceed to trial, the lawyers for the parties are by practice supposed to assist the Judge in settling the issues for trial. Indeed rule 8 of Order 58 states as follows:  \r\n “If no amicable settlement is reached, the pre trial judge shall at the time settlement broke down, direct the parties to the Administrator who shall immediately fix a date before another judge on the issues set down for hearing at the pre-trial settlement conference. The hearing date shall not exceed twenty-one days from the time settlement broke down.”   Having disabled itself from participating in the pretrial conference and the issues for determination having been set down by the pretrial Judge together with the Plaintiff, I do not think it necessary to admit of any other additional issues that had been filed by the counsel for defendant as that had been done in violation of the rules. Before me will be the two issues set down for determination at the pretrial between the two parties.  \r\nEVALUATION OF THE EVIDENCE AND ANALYSIS OF THE LAW  Plaintiff bore the onus to discharge the claim he made before the court in terms of alleging that defendant had led him to be on the land when defendant knew that it had no right to make any grant of the land. Besides, that Plaintiff went on the land based on the representations made to it by defendant which representations had turned out to be false and that he Plaintiff had relied on them to his detriment of having its business brought to its knees by the demolition that was undertaken by operatives of National Security.  \r\n Plaintiff in its attempt to prove its claim called two witnesses. The first being the director of Plaintiff’s company, Bismarck Agyapong and Pw1, Nathaniel Ebo Yawson, a quantity Surveyor, who did an assessment of the value \r\n \r\n5  \r\nof the damage caused to the properties on the land. Defendant on other hand called two witnesses in its quest to fend off the claim of the Plaintiff. These were Twumasi Ankrah and Victor Mensah. Plaintiff tendered the following material evidence that will be useful in evaluating the substance of its case. There is Ex ‘A’ being an application letter written by Plaintiff company to defendant for approval to use the land at Abelemkpe, a government land. Ex “B” is the response of the defendant granting the Plaintiff what it called a temporary permit to be on the land. Pertinent to Plaintiff’s case is also Ex ‘E’ being what it termed an assignment of the land to it by defendant almost two years after the grant of a permit to Plaintiff to be on the land. Though called an assignment, Ex ‘E’only grants Plaintiff the right to be on the land for five years. There is also Ex ‘H’ which is a letter from defendant to Lands Commission for the consent of the Lands Commission to the grant made by defendant.  \r\n My first duty is to resolve the issue as to whether the grant of the land by AMA to Plaintiff was lawful, Plaintiff in its Ex ‘A’ written to defendant for the right to be on the land admits that the land was government land but was only being used as a refuse damp. In both Ex ‘B’ and ‘C’ defendant also concedes that the land is government land and further notes that it is a reservation. And yet in Ex ‘E’ defendant makes a claim in recital two that:  \r\n“whereas AMA has a piece of land located and being at Abelemkpe…”.   \r\nAnd it was based on this assumption of ownership that defendant in Ex ‘E’ makes an allocation to Plaintiff to be on the land for five years. Does government land becomes the land of a Metropolitan or Municipal or District Assembly? Or put in another way does an Assembly such as AMA controls and grants lands that are termed as government lands?  \r\n Learned counsel for defendant has cited sections 10 and 130 of the Local Government Act, Act 462, 1993 that the Assembly has powers over government lands not allocated to anybody. This is in support of the claim made by its DW1 Victor Mensah under cross examination that AMA has powers over such government lands in the following exchanges:  \r\n \r\n6  \r\nQ: If you look at paragraph 3 of the deed of assignment that recital will therefore be wrong  \r\nA: The recital is correct  \r\nQ: When the AMA says that it has land which is the subject matter of this litigation the AMA is misstating the fact of ownership  \r\nA: AMA has jurisdiction over government lands that are not being used immediately by the government of Ghana, and it can grant for the purposes it deems fit subject to certain terms and conditions…  \r\nQ: I put it to you that the AMA cannot make any such grant without the consent of Lands Commission  \r\nA: This is a convention that exists between the agencies of government like AMA and Lands Commission”  \r\nI do not think that the exercise of powers of an Assembly under Act 462 to enter unto any land to carry out inspection, inquiry or execution of works or the improvement and management of human settlement as well as the environment in the district includes the alienation of an Assembly of a government land. All public lands in Ghana under article 257 of the 1992 Constitution has been vested in the President on behalf and in trust for the people of Ghana. Article 258 which creates the Lands Commission and gives it the following functions, among others, as:  \r\n“(1) There shall be established a Lands Commission which shall, in co-ordination with the relevant public agencies and governmental bodies, perform the following functions - (a) on behalf of the Government, manage public lands and any lands vested in the President by this Constitution or by any other law or any lands vested in the Commission; It is therefore clear that the mandate for managing public lands is a function of the Land Commission and not that of the District Assembly.  And that the Lands \r\n \r\n7  \r\nCommission performs that role in co-ordination with the relevant government agencies and institutions. The land has been termed by the defendant as a reserved land. Such powers of the State to create a reserved is by virtue of Land (Statutory Wayleaves) Act, 1963, Act 186. The law gives the power to the President of Ghana to acquire a right of way or any similar right over land whenever the President is of the opinion that it is in the public interest to do. Such a statutory wayleaves may be created in respect of a highway or any other structure by means of an Executive Instrument. In respect of this land it became the land of government in pursuance of Act 186 by the issuance of an Executive Instrument called Lands (Statutory Wayleaves) Accra – Tema Motorway (Phase 11) Instrument, 1973 where in the schedule the land acquired for the extension of the motorway encompasses the land the plaintiff occupied.  \r\nThis land being government land, I find that the only agency or body or authority that is constitutionally mandated to deal with in terms of alienation is not the defendant but rather the Lands Commission. It is the Lands Commission that has the power to deal with the land but not an Assembly who may engage in alienation and later seek the blessings of the Lands Commission. There is no dispute at all between the parties that defendant did grant the land to plaintiff and no issue is joined on that fact. As it is trite that where a party makes an averment and that averment 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. From the analysis supra I find as a fact and answer in the negative to the first issue that the grant by AMA of the land to Plaintiff was unlawful as it had no such mandate to make an alienation as is seen in Ex ‘E’.  \r\nBut having found the unlawfulness of the grant of the land to plaintiff by defendant; does it make plaintiff entitled to its claim of recovery of the cost of investment on the land. Put differently the court will have to determine whether as plaintiff’s counsel claim that plaintiff was deluded into entering on the land by defendant and if it was any representation made by defendant that caused the plaintiff to invest on the land. Plaintiff’s representative had claimed through its witness statement at paragraph 13 that AMA had made Plaintiff aware of AMA’s title to the land and their right to grant the land to the Plaintiff. Plaintiff further support its claim with Ex ‘E’ that AMA had represented to it that it had title to the land and it was that representation that deluded it to enter the land and caused it to invest there.  \r\n \r\n8   \r\nA look at the exhibits tendered by the parties and also the cross examination of the Plaintiff’s representative seems to show that Plaintiff was fully aware that defendant was not the owner of the land before Plaintiff applied for the right to be on the land. Before examining the exhibits on record, the cross examination of Bismarck Agyapong revealed the following:  \r\n“Q: If you look at the heading it reads “Application for Usage of Government land which presupposes that you are aware that it is a government land  \r\nA: Yes my Lord”  \r\nThe document counsel for defendant was referring to here is Ex ‘A’ written by Plaintiff and it is important that I quote the first paragraph of that exhibit. It reads:  \r\n“The above company has sited a piece of land at Abelemkpe near the overpass. The said land which is a government land is being used as a refuse dump and a hide out for thieves. We think we can put the land into meaningful use at the same time generate income for the sub metro and get the unemployed in the sub metro work to do”.  \r\nFrom the answer of Plaintiff’s representative whiles under cross examination as quoted supra and Ex ‘A’ written by Plaintiff itself,  I find as a fact that Plaintiff was fully aware that the land it made investment on did not belong to defendant but was a government land. And if it knew it to be a government land and not for the defendant the right body to apply for allocation of government land was the Lands Commission and not the AMA. Long before Ex ‘E’ was entered into between the parties in 2014, on 7th August, 2012 defendant had issued Ex ‘B’ to Plaintiff and had told Plaintiff among others that:  \r\n“be reminded that the space is a reserved land and no permanent structure is to be constructed on the land. The government had the right to revoke this temporal [sic] permit without any cost to it, when the government decides to use the space for any purpose”.   \r\n \r\n9  \r\nI have already detailed out how the land became a government reserved land by virtue of an Executive Instrument and Ex ‘B’ reminding Plaintiff that it is such a government land was to put Plaintiff on notice that defendant was not representing that it was the owner of the land. So if Plaintiff had been told in unequivocal terms that the land it was seeking was a government land and its representative in the person of its Managing Director has admitted in court that Plaintiff knew that the land was a government land, and per its own showing and exhibit it state that the land was a government land; could defendant be held liable for making representations that Plaintiff now claims has turned out to be false?  \r\nRepresentation according to the Law of Contract by Chesire & Fifoot, 15th Ed at page 332, the learned authors states that:  \r\n“is a statement of fact by one party to the contract (the representor) to the other (the representee) which while not forming a term of the contract is yet one of the reasons that induces the representee to enter into the contract. So a misrepresentation is simply a representation that is untrue”.   \r\nMisrepresentation could either be a fraudulent one, or a negligent misrepresentation or could be an innocent one. I have found that defendant did not represent to plaintiff that it was the owner of the land and even if in Ex ‘E’ defendant purports to claim to be the owner, that is completely irrelevant as plaintiff knew all along that defendant was not the owner. It is the law on misrepresentation that knowledge of the untruth of a representation is a complete bar to relief to a claim since a Plaintiff cannot assert that he has been misled by the statement. As it was noted in the English case of IRVINE v KIRKPATRICK [1950]7 BELL APP 186 that   \r\n“the misrepresentation and the concealment go for just nothing, because it is not dolus qui dat locum contractui”.  \r\nPlaintiff being fully aware that defendant had no authority to make any alienation of government land whatever losses Plaintiff has incurred for the demolition of its property cannot be blamed on the defendant. Plaintiff’s counsel in his address cited section 28(1) of the Sales of Goods Act, Act 137 that AMA did not have good title to the land and could not have protected the Plaintiff. With the greatest respect to the \r\n \r\n10  \r\nsubmission of counsel for Plaintiff, I fail to appreciate the import of the citing of the Sale of Goods Act. As goods in the Sale of Goods Act, Act 137 is defined under section 81 as:  \r\n“movable property of every description, and includes growing crops or plants and other things attached to or forming part of the land which are agreed to be severed before sale by or under the contract of sale”  \r\nAnd under section 74 of the law it notes that “ “This Act applies to every contract of sale of goods made after the commencement of this Act”.  Illustration of this provision by some few authorities in England and Ghana will show that it is not every contract of sale that comes within the scope of sale of goods. In the English case of MORGAN v RUSSELL [1909] 1 K. B 357; where there was an issue as to whether or not the sale of cinders and slag which were affixed to the land but not detached from the soil was a sale of goods, the court held that it was not a sale of goods, but a sale of an interest in land. Coming home in the Ghanaian case of HALABY v WIREDU [1973] 2 GLR 249 where the plaintiff sold his business and stock-in-trade together with the business premises to the defendant by two separate agreements, Koranteng –Addow J held that it was not every contract of sale that came within the scope of the Sale of Goods and that:  \r\n“The sale of a business was not the sale of goods within the meaning of Act 137. The sale of a business was a sale of more than the goods that were sold by the businessman. It included the sale of goodwill and a whole business organisation. … what was sold consisted also of an interest in land and this could not be the sale of goods”.  \r\nClearly then, alienation of an immovable property is not within the scope of the Sale of Goods Act. With the Plaintiff having failed to prove that defendant misled it into coming unto the land, defendant cannot accordingly be held liable for the destruction to the property or investment made by Plaintiff and the latter has no cause of action against AMA. In the premises it would be futile for the court to proceed to vet the bill of quantity submitted by PW1.  \r\n \r\n11  \r\nThe action of Plaintiff against AMA is accordingly dismissed in its entirety. I will award cost of GH¢6.000.00 against Plaintiff.  \r\n   \r\n            (sgd.) Eric Kyei Baffour, Esq.  Justice of the High Court     \r\nRepresentations:   \r\nPlaintiff represented by Bismarck Agyepong Present  Defendant Absent  Felix Quartey, Esq., for plaintiff Present  Samuel Mensah Akrong, Esq. for defendant present  ', 'links/cases/BIZZACO v AMA.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'RPC/365/2014 ', '', '', 'High Court, Accra', '2016-04-05', ''),
(587, 'BSIC (GHANA LIMITED) SAHEL SAHARA BANK \r\n          VS.  \r\n1. CANDY-LOVE QUARMNYE,  \r\n2. COMFORT NIMAKO DOME ', '\r\nJUDGEMENT  \r\nThe Plaintiff has sued the Defendants jointly and severally for the following reliefs endorsed on its writ filed on the 1st day of March, 2013.  \r\na) Recovery of the sum of One Hundred and Thirty-One Thousand, Six Hundred and Forty-Two Ghana Cedis , Seventy -Four Pesewas (GH?131,642.74) being as of the 17th day of January, 2013, the outstanding balance in respect of the said credit facility granted by Plaintiff to the 1st Defendant b) Recovery of the agreed rate of interest of 30.5%per annum plus a margin of 3% per annum on a) above from the 17th January, 2013 till date of final payment. c) Recovery of the agreed penal rate of 10% on facility amount above the agreed interest rate on ( a) and (b ) above from the 17th day of January, 2013 to date of final payment  d) An order for the judicial sale of the residential property belonging to the 2nd Defendant at Plot No. 853 Block 23, Section 171/2, Dome, Accra e) Costs including legal fees.  \r\nPlaintiff avers that it is a limited liability company engaged in the business of banking. On or about the 29th day of January, 2010, it granted a credit facility to the 1st Defendant, a customer of Plaintiff bank.  As security for the repayment of the said loan, the 1st Defendant provided the following: a) A Mortgage of 2nd Defendant’s property situate in Dome, Accra  b) Assignment of all receivables in an Assignment between the Plaintiff and 1st Defendant. c) A Personal Guarantee of the 1st Defendant valued at One Hundred and Sixty-Eight Thousand, Two Hundred and Eighty-Four Ghana cedis (GH?168, 284.00).  d) A Floating Charge dated the 3rd day of February, 2010.             By the terms of the facility, the principal amount, the interest and other charges became due and payable immediately upon a failure by the 1st Defendant to pay the facilities on the due dates or whenever called in. According to the Plaintiff, by a letter dated the 18th day of February, 2011, it  reminded the  1st Defendant of the expiry date for the facility which was the 28th day of February, 2011 and also informed the 1st Defendant of its level of indebtedness, which stood at Sixty-Three Thousand, Two Hundred and Seventy-Three Ghana Cedis , Six pesewas (GH? 63,273,06)  at the time  but the 1st Defendant  failed to \r\n3  \r\nhonour its obligations such that its indebtedness stood at  One Hundred and Thirty-One Thousand, Six Hundred and Forty-Two Ghana Cedis, Seventy -Four Pesewas (GH?131, 642.74) as at the 17th day of January, 2013 . It is for this reason that Plaintiff has instituted the present action.  \r\nThe 1st Defendant on the 16th day of August, 2013 entered conditional appearance to Plaintiff’s writ and on the 27th day of November, 2013 filed a defence to same. The 2nd Defendant however, though served by substituted service with the Writ and Statement of Claim failed to enter appearance. The Court therefore, on the 27th day of October, 2014 entered judgment in default of appearance against her.   \r\nSubsequently, following the Parties’ inability to settle at the pre-trial settlement conference, this matter was set down for trial.  The Court accordingly, on the 11th day of March, 2016 gave directions regarding the further conduct of the suit. Counsel for 1st Defendant, though duly notified of this Court’s orders regarding the filing of witness statements failed to comply with same. Hearing notices were thereafter served on Counsel for 1st Defendant to attend the case management conference on the 18th day of May, 2016 but he failed or refused to appear without offering any explanation for his absence.  In the light of the persistent default on the part of 1st Defendant, this Court on the 18th day of May, 2016 struck out 1st Defendant’s Statement of Defence and Counterclaim in accordance with Order 32 Rule 7A(3)b of the High Court Civil Procedure Amendment Rules, 2014 CI 87. Copies of the order striking out the Defence and Counterclaim were served on both 1st Defendant and her Counsel but this drew no reaction from them.  The Plaintiff’s suit therefore stood uncontested at the trial. It however remained for this Court to determine whether or not Plaintiff is entitled to the reliefs endorsed on its Writ of Summons, for Section 14 of the Evidence Act, Act 323 states as follows: Except as otherwise provided by law, unless it is shifted a Party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.  \r\nThe effect of this provision is to cast the burden of proof and of persuasion on the Plaintiff who in this case, is required to adduce satisfactory evidence to substantiate its assertions, failing which its action must fail.  \r\n4  \r\nKwaku Dzidepo, a loans recovery officer of Plaintiff bank, testified on Plaintiff’s behalf.  His evidence was essentially in line with Plaintiff’s pleadings.  In support of his evidence he tendered the following documents: EXHIBIT A - a copy of a Credit Facility Offer Letter dated the 29th day of January, 2010 addressed to 1st Defendant who duly signified her acceptance of the terms of the facility by the execution of same. EXHIBIT B - a copy of an agreement dated the 3rd day of February, 2010 and entered into between Plaintiff and 1st Defendant whereby 1st Defendant assigned all receivables of Candy-Love Enterprise to Plaintiff. EXHIBIT C - a copy of a Guarantee executed by the 1st Defendant in favour of Plaintiff. EXHIBIT D - a copy of a Floating Charge dated the 3rd day of February 2016 made in favour of Plaintiff by the 1st Defendant EXHIBIT E - a Deed Of Mortgage dated the 4th day of March, 2010 and entered into between Plaintiff and 2nd Defendant in respect of 2nd Defendants property situate at Dome together with a memorandum of registration of the said mortgage deed. EXHIBIT F - a copy of a Statutory Declaration sworn to by the 2nd Defendant confirming her consent to her property being used as security for the loan facility granted 1st Defendant. EXHIBIT G - a copy of the Land Title Certificate covering the property of 2nd Defendant used as security for the loan facility. EXHIBIT H - a Valuation Report issued in February 2010 in respect of 2nd Defendant’s property. EXHIBIT J - a copy of letter dated the 19th day of April 2010 notifying the 1st Defendant of the Disbursement of the Credit Facility to 1st Defendant on the 16th of February 2016. EXHIBIT K - a letter dated the 18th day of February 2011 reminding the 1st Defendant of the impending Expiry of the Credit Facility on the 28th day of February 2011. EXHIBIT L - 1st Defendant’s Statement Of Account covering the period 1st February, 2010 31st March, 2016 which indicate that the 1st Defendant has failed or refused to make any payments on the facility since the 1st day of February 2011. EXHIBIT M - a Final Demand Notice dated the 14th day of June, 2012 addressed to 1st the Defendant, informing her of her level of indebtedness to Plaintiff at the time and calling on her to settle same within Seven (7) days of receipt of the notice or face legal action.  \r\nI have carefully examined the above listed exhibits and find that they amply support the case of the Plaintiff.  The evidence adduced also stands unchallenged. The Plaintiff’s claim therefore succeeds. \r\n5   \r\nI accordingly enter judgment for the Plaintiff against the Defendants jointly and severally for the following reliefs: a) Recovery of the sum of One Hundred and Thirty-One Thousand, Six Hundred and Forty-Two Ghana Cedis, Seventy -Four Pesewas (GH?131,642.74) being as at 17th   January 2013, the outstanding balance owed  by the 1st Defendant on the credit facility granted the 1st Defendant by Plaintiff.  \r\nIt would appear that reliefs (b) and (c) endorsed on the Writ of Summons are at variance with the reliefs prayed for in the witness statement of Plaintiff’s representative.   As regards relief (b) indorsed on the Writ of Summons, Plaintiff seeks an order for the “Recovery of the agreed interest of 30.5% per annum plus a margin of 3% per annum on (a) above from 17th January 2013 to date of final payment.”  However, in the witness statement filed by Plaintiff’s representative, Plaintiff prays for “Recovery of the agreed interest rate of 35% per annum on (a) above from January, 2013 to date of final payment.”  \r\nAgain, with respect to relief (c), where the endorsement on the Writ of Summons seeks an order for the  “Recovery of the agreed penal rate of 10% on facility amount above the agreed interest rate on  (a) and (b) above from 17th day of January, 2013 to date of final payment”, Plaintiff’s representative in his testimony prayed for the “Recovery of the agreed penal rate of 12% on the credit facility amount above the agreed interest rate on (a) and (b) from the 17th day of January 2013 to date of final payment”.   I find from EXHIBIT A that the Parties agreed on an interest rate of 35.5% and a penal rate of 12% per annum and not the rates indicated on the Writ of Summons.  \r\nIn any event, this discrepancy in my view, is resolved by Order 11 Rule 15(2) of the High Court Civil Procedure Rules (CI 47) which states that the “Plaintiff may in the Plaintiff’s statement of claim  alter, modify or extend any claim made by the Plaintiff in the endorsement of the writ without amending the indorsement .”  This is subject of course, to the rule that the allegations made in the Statement of Claim should arise from the same facts giving rise to the cause of action mentioned in the Writ of Summons.    \r\n6  \r\nApplying the said rule to the facts of this case, paragraphs 6 (a) and (b) of the Plaintiff’s Statement of Claim in my view, will serve to override the above mentioned defects in Plaintiff’s writ.   In the premises, judgement is further entered in favour of Plaintiff against the Defendants for:  b) Recovery of the agreed interest rate of 35.5% per annum on (a) above from the 17th day of January, 2013 to date of final payment. c) Recovery of the agreed penal rate of 12% on the facility amount above the agreed interest rate on (a) and (b) above from the 17th day of January 2013 to date of final payment.  \r\nIn addition to the above reliefs, relief (d) prays for the judicial sale of residential property belonging to 2nd Defendant situated at Plot No. 853 Block 23, Section 171/2, Dome, Accra. I do not think relief (d) can be granted in addition to reliefs (a) (b) and (c).  The essence of securing the loan facility with the 2nd Defendant’s property was to ensure that the said property could be sold to offset any amount owed Plaintiff, in the event of a default on the part 1st Defendant.  This Court cannot therefore, order the Defendants to pay the amount outstanding on the loan facility in addition to ordering the sale of 2nd Defendant’s property.  Reliefs (a), (b) and (c) on the one hand and relief (d) on the other, can only be granted in the alternative. I will accordingly order in the alternative, the judicial sale of 2nd Defendants property situated at Plot No. 853, SECTION 171/2, DOME, ACCRA in event of a failure by the Plaintiff to recover the amount owed as granted per reliefs (a) (b) and (c).   \r\nIn conclusion, I must say that the work of this Court would have been much easier, had Counsel for Plaintiff applied a little more diligence in the presentation of Plaintiff’s case to this Court. It is my hope that Counsel will in future do the necessary to assist the Court in doing its duty.  \r\nI award costs of Thirteen Thousand Ghana Cedis (GH?13,000.00) in favour of Plaintiff    \r\n         (SGD)            MRS. AKUA SARPOMAA AMOAH             JUSTICE OF THE HIGH COURT aey/ ', 'links/cases/BSIC GHANA LIMITED V CANDY LOVE QUARMYNE 2.pdf', 'Yes', '', '2016', 'high', '', 'AKUA SARPOMAA AMOAH (MRS), J ', 'Civil', '', 'BFS/52/2013 ', '', '', 'High Court, Accra', '2016-10-28', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(588, 'COMFORT Y. BOAMPONG, MARGARET MENSAH  \nVRS MARGARET AMANKWAH', '1  \r\nIN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, GHANA IN ACCRAON MONDAY THE 29TH DAY OF APRIL, 2016 BEFORE HER LADYSHIP DORIS BEMPONG MRS.  HIGH COURT JUDGE  \r\nSUIT NO. BFA 41/2013 \r\n1. COMFORT Y. BOAMPONG 4  LAKE POOL STREET    KANESHIE, ACCRA               PLAINTIFFS 2. MARGARET MENSAH E.P. SCHOOLS  PEKI-BLENGO       \r\nVRS: MARGARET AMANKWAH    4 LAKE POOL SCHOOL         DEFENDANT SANTA MARIA, ACCRA ------------------------------------------------------------------------------------------------------ J U D G M E N T ------------------------------------------------------------------------------------------------------  \r\nParties: Present.  Counsel: Ntony for Plaintiff with Cynthia Ohene present.  \r\nPlaintiff’s claim against the Defendant is for: 1. An Order of Interlocutory Injunction, restraining the Defendant, her agents and servants from collecting further rent from the occupants of 6 hall and chambers until Letters of Administration is obtained and from doing any construction in the house until the property is shared. 2. A declaration that the Plaintiffs and Defendant and her children have equal interest in the estate of the late Nelson Boampong and that the 2nd Plaintiff is a Co-owner of the 1st block with the late Nelson Boampong. 3. An Order to the Defendant to account for the rent collected since 2011. 4. Costs.  \r\n2  \r\nThe Plaintiffs case as gleaned from their statement of claim was that the Plaintiffs were beneficiaries of the estate of the late Nelson Boampong who was the father of 1st Plaintiff and husband of the 2nd Plaintiff.  \r\nThe estate includes two blocks of buildings consisting of 6 Units of hall and Chamber apartments. According to 1st Plaintiff, the Defendant who is her stepmother upon the death of her father, in 2010, rented out the rooms in the house without Letters of Administration.  She said Defendant brought out a document she presented as the Last Will and Testatment of the deceased and went ahead to distribute the estate according to the alleged will. Plaintiff says that the 1st block of building was put up by the 2nd Plaintiff and she is therefore beneficiary and especially so when she had a subsisting marriage with the deceased (Nelson Boampong).   \r\nPlaintiff contends that the will was a fake and forged one and that Letters of Administration should be taken to administer the estate of her father. 2nd Plaintiff corroborated the evidence of 1st Plaintiff and stated that the marriage between her and the deceased was still subsisting and that she was an only child and when her father fell sick she had to go to her hometown to go and look after him. She said that deceased kept sending her money and visiting her as a wife until he died.   \r\nShe gave evidence to show that she was in the charcoal business in her husband and out of the proceeds at their business she bought the piece of land at Santa Maria and built the 1st block comprising 4 hall and chamber units. She contends that since she is a surviving wife and helped to build the 1st block she is entitled to a portion of the estate.  \r\nDefendant’s case is that upon the death of her husband she discovered a will which had been prepared by the deceased and she handed same to the family.   \r\nAccording to her the will was read at the court and the property was distributed per the dictates of the sand will. Defendant stated that the 2nd Plaintiff had left the \r\n3  \r\nmarriage and relocated to her hometown. She denied that the 2nd Plaintiff was a wife and therefore a beneficiary.   \r\nShe again denied that the 2nd Plaintiff was a contributor to the construction of the house she had already left in the 1980’s when the house was built.  \r\nAt the close of pleadings, the issues identified and raised for determination were; 1) Whether the 2nd Plaintiff was a wife of the late Nelson Boampong and therefore a beneficiary to his estate. 2) Whether the 2nd Plaintiff contributed in the construction of the 1st block of the houses at Santa Maria and consequently a joint owner with the late Nelson Boampong. 3) Whether the late Nelson Boampong made a valid will on the disputed property which could be proved in common form and admitted to probate. 4) Whether the Defendant could deal with the deceased person’s property without probate or Letter of Administration.  \r\nEvidence in the matter so far indicates to the court that there was no dissolution of Marriage between the 2nd Plaintiff and Nelson Boampong. The 2nd Plaintiff was emphatic that she was still married to Nelson Boampong at the time of his death and that she had relocated to her hometown to take care of her sick father.  \r\nAccording to her, Nelson used to visit her and send her money for her upkeep during the whole time that she was in her hometown.  \r\nEvidence of Magaret Nkasiah (PW1) and Ken Opoku Asiedu, Customary Successor of Mr. Boampong was to the effect that they knew of no customary dissolution of the said marriage. Defendant also was unable to challenge the existence of the marriage or prove otherwise. The Court therefore finds as a fact that the marriage between Nelson Boampong and the 2nd Plaintiff was still existing at the time of his death and that made her a surviving spouse who in entitled to a share in his estate.  \r\n4  \r\nOn the question of whether 2nd Plaintiff contributed to the building of the house especially the 1st block, the Court is of the view that since the 2nd Plaintiff and the deceased worked together in the charcoal business and it has been confirmed that the land was purchased with proceeds from the business, the 2nd Plaintiff must have contributed.   \r\nPW1 confirms that on several occasions that she visited the couple on her own antenated trips, she saw building materials in their home in Mamprobi and 2nd Plaintiff had told her that she and her husband were building a house at Santa Maria. This was also confirmed by DW2. Mary Anokye Duah under cross examination.  \r\nThe Court is convinced that the 2nd Plaintiff is in so far as she is a spouse entitled to a share in her husband’s estate. In case of MENSAH VS MENSAH 2012 SCGLR 311, The Supreme Court did away with the requirement of substantial contribution of a wife to jointly owned property. Again Article 22 (1) of the 1992 constitution provides that;  “A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will”.  \r\nThe supposed will of Nelson Boampong was exhibited in Court and the question is whether or not it was a valid will which was proved in common form.  \r\nEvidence adduced so far indicates that the supposed will was alleged found by the Defendant and presented to the family of Late Boampong.  \r\nEvidence of DW2 Ken Opoku Asiedu who is the customary successor of the deceased said he was shown a copy of the will but it had no witnesses or mentioned no executors. He again said that though no probate was taken and no Letters of Administration taken, the family went ahead to distribute the estate according to the dictates of the “Will”.  \r\n5  \r\nThe Wills Act 360 of 1971 lays out the requirements of a valid Will. Section 2 of Act 360 provides that, a Will is not valid if the signature or sign of the testator is not made in the presence of 2 or more witnesses and theirs in turn made in the presence of the testator. Section 3 of Act 360 also requires that an executor or executors be named in the will to execute the said Will. These are important requirements and the Court is convinced that since Nelson Boampong’s will did not satisfy these requirements, it was incomplete and therefore not a valid will that could have been proved in common form. Since no probate to the said will was taken the family could not deal with the estate of the deceased.  \r\nOrders 66 rule 3 of CI 47, (High Court Civil Procedure) rules 2004 provides that;            “Where any person other than the person named as an executor in a will or appointed by Court to administer the estate of a person takes possession of and administer or otherwise deal with the property of a deceased person, the person shall be subject to the same obligation and liabilities as an executor or administrator and shall in addition be guilty of the offences of intermeddling or liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or both”.  \r\nEvidence adduced shows that the Defendant and her witness without obtaining Letters of Administration or Probate went ahead to distribute the estate of the late Boampong.    \r\nIt has also been shown that the Defendant collects rents and was trying to construct an extension in the house. It was also been shown that the 1st Plaintiff has also been receiving parts of the rent accruing to the hall and chamber that was given to her in the supposed distribution.   \r\n6  \r\nThis was not denied by both 1st Plaintiff and Defendant. Defendant said she paid school fees with the rents collected. Both parties cannot under law deal with the deceased person’s estate without obtaining probate or Letters of Administration.  \r\nIn the light of the foregoing, I hold that, the Defendant, her agents and assigns are restrained from dealing with the estate of the deceased Nelson Boampong until such time that the Letters of Administration shall be obtained and the property lawfully distributed in accordance with PNDCL 111.  \r\n(2)  It is hereby declared that the Plaintiffs, Defendant and her children by Nelson Boampong are all equal beneficiaries in the estate of Nelson Boampong.  \r\n(3)  Both parties i.e. 1st Plaintiff and Defendant are to account for the rents since 2011.    \r\n             (SGD)    H/L DORIS BEMPONG MRS. JUSTICE OF THE HIGH COURT       \r\nE.L……..  ', 'links/cases/COMFORT YAA BOAMPONG.pdf', 'Yes', '', '2016', 'high', '', 'DORIS BEMPONG (MRS), J', 'Civil', '', 'BFA 41/2013', '', '', 'High Court, Accra', '2016-04-29', ''),
(589, 'DALEX FINANCE & LEASING CO. \r\nVRS  \r\n1. DEES & D INVESTMENT LIMITED \r\n2. STEPHEN DEE LARBI   TEMA  \r\n3. AMELE DEE LARBI ', ' \r\nRULING  \r\nThe main issue requiring my adjudication in this application is whether or not the Plaintiff is entitled to summary judgment on its reliefs as endorsed on the writ of summons and the statement of claim. \r\nA brief facts of the case is that the Plaintiff, a finance and leasing company, granted a loan facility to the Defendants which was disbursed in three (3) tranches.  As security for the loan, the 2nd and 3rd Defendants guaranteed separately to be personally liable either jointly or severally with 1st Defendant in the event of default by the 1st Defendant.  As further security for the loan, 1st Defendant mortgaged its filing station situate at Ashaley Botwe, Accra, in favour of the Plaintiff.  The relationship between the parties subsequently went sour as the 1st Defendant, as alleged by the Plaintiff, failed to meet its repayment commitments in respect of the 1st and 3rd tranches resulting in the suit before this court.   \r\nThe Plaintiff in its writ asked for the following reliefs: \r\n2  \r\n(a) The sum of GH?674,923.27 (Six Hundred and Seventy Four Thousand, Nine Hundred and Twenty Three Ghana Cedis, Twenty Seven Pesewas) which said sum is the outstanding balance of two facilities granted to 1st Defendant and guaranteed by 2nd and 3rd Defendants as at the 8th day of October, 2014. (b) Compound monthly interest of 4.5% from the 9th day of October, 2014 till the date of final payment. (c) Cost inclusive of legal cost. \r\nAnd also for   (d)  Judicial sale of 1st Defendant’s mortgaged property situate at Ashaley Botwe, Accra, covering an area of 0.995 acres. \r\nI have read the application for summary judgment, the supporting affidavit and examined the various exhibits put in evidence by the Plaintiff and the defence filed by the Defendants to this suit.  I have also given thoughtful consideration to the provisions of the High Court (Civil Procedure) Rules, 2004, C.I. 47 (hereinafter, “C.I. 47”) and the principles governing the grant or otherwise of summary judgment.  It may be useful to reproduce the relevant extract from the C.I 47, which in Order 14 rule 1 provides as follows: \r\n“14.1. Where in an action a defendant has been served with a statement of claim and has filed appearance, the plaintiff may on notice apply to the court for judgment against the defendant on the ground that the defendant has no defence to a claim included in the writ or to a particular part of such a claim, or that the defendant has no defence to such a claim or part of a claim, except as to the amount of any damages claimed.” \r\nThe essence of summary judgment was echoed by the Supreme Court in the case of BALLAST NEDAM BV vrs. HORIZON MARINE CONSTRUCTION LTD [2010] SCGLR 435 where the court held that  \r\n“… although the procedure for summary judgment under Order 14 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), enables the plaintiff to obtain speedy and summary judgment without a trial even in cases where the defendant to the action expresses an intention to defend the action, the court may only grant the application in cases where the defendant is unable to set up a good defence or raise an issue which ought to be tried …” \r\nIn the earlier decision of SANUNU vrs SALIFU [2009] SCGLR 586, the Supreme Court held that under Order 14 rule 1 of C.I. 47, a trial judge  \r\n“… must come to the conclusion that on the face of the claim there is no defence to the action. A defence set up need only show that there is a triable issue; and leave to defend ought to be given unless there is clearly no defence in law and no possibility of a real defence on the question of fact.” \r\n3  \r\nElaborating on the objectives of summary judgment under Order 14, Akuffo, J.S.C., had this to say in the unreported Supreme Court case of SAM JONAH v. DUODU-KUMI [2003-2004] SCGLR 50: \r\n“The objective of Order 14 is to facilitate the early conclusion of actions where it is clear from the pleadings that the defendant therein has no cogent defence. It is intended to ‘prevent a plaintiff being delayed when there is no fairly arguable defence to be brought forward.” (See Halsbury’s Laws of England, Fourth Edition, 516). What we are, therefore, required to do in this appeal is to ascertain whether, on the totality of the pleadings and all matters before the High Court at the moment it delivered the Summary Judgement, the Respondent had, demonstrably, any defence, in law or on the available facts, such as would justify his being granted leave to defend the Appellant’s claim.” \r\nIn reliance on what Kpegah J, (as he then was) stated in the case of YARTEL BOAT BUILDING CO. v. ANNAN [1991] 2 GLR 11,   at pages 14 and 15 of the report, I find that there is no denying the fact that the Applicant has met the preliminary requirements provided under Order 14 of C.I. 47 for an application for summary judgment.  That is, (i) the statement of claim was served on the defendant; (ii) The defendant entered appearance; and (iii) the affidavit in support of the application complied with the requirements of Order 14 rule 2 in providing a verification of the fact on which the relevant claim was based and stating that in the deponent’s belief, the Defendants have no defence to the claim.   \r\nWhat then is the Plaintiff’s case?  In the instant case, it is the Plaintiff’s contention that the Defendants have not materially denied the substance of its claim and merely stating in their statement of defence that they do not owe Plaintiff the sum claimed and alleging that they have not been given a statement of account does not constitute a defence.   \r\nThe Defendant has not filed any affidavit in opposition to this application for summary judgement.  Per the provisions of Order 14 rule 3(1) which states as follows: “3. (1) A defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court” (emphasis added), \r\nthe Court shall rely on the statement of defence filed by the Defendants to ascertain their case. In contrast to the Plaintiff’s claim, the issues raised as the grounds of defence in Defendant’s statement of defence can best be summarised in the following terms: \r\n(i) The ownership of the fuel station situated at Ashaley Botwe, which property was used in securing the loan.   (ii) Defendants contend that they have made substantial payments to the Plaintiff, which, if accounts are gone into would render their outstanding balance to be either far below the amount stated by the Plaintiff to be due and owing or would indicate that Defendants are not indebted to the Plaintiff at all; and   \r\n4  \r\n(iii) Defendants request for the appointment of an independent reputable accounting firm to ascertain the true amount owed to the Plaintiff. \r\nTo challenge an Order 14 application, a defendant needs to show that there is a triable issue as to the facts.  In this respect, a defendant must raise an arguable issue that requires a trial in order to determine it once and for all.  See the BALLAST NEDAM BV vrs. HORIZON MARINE CONSTRUCTION LTD case, supra, where the court stated that “…where the defendant to the action expresses an intention to defend the action, the court may only grant the application in cases where the defendant is unable to set up a good defence or raise an issue which ought to be tried …”.  In other words, where the defendant raises an issue which ought to be tried, the court may not grant the application for summary judgement. \r\nThe issue of the ownership of the fuel station which was mortgaged by the Defendants to secure the loan facility is not an issue that can simply be disposed of on affidavit evidence only.  A trial may have to be gone through to determine this issue once and for all.  Further, per the pleadings, it appears that there is a dispute regarding the amount of money that has been paid in relation to the balance that is due and outstanding.  Again, by requesting for accounts to be gone into, Defendants have raised a defence known in law.  In this regard, I am reminded of the dictum of Lord Coleridge C. J., in the case of SHEBA GOLD MINING CO., LTD. vrs. TRUBSHAWE [1892] 1 Q.B. 674 found at p. 682 of the report which was referred to by her Ladyship, Justice Cecilia Koranteng-Addow in the local case of GHANA COMMERCIAL BANK v. BINOO-OKAI [1982-83] GLR 74-81.  The latter case involved an application to enter final judgment on a specially indorsed writ and to claim interest up to final payment upon the defendant’s failure to settle its debt to the Plaintiff bank, under Order 14, r.1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A).  In her decision, Justice Cecilia KorantengAddow quoted Lord Coleridge C. J., as follows:  \r\n“…We think this is as it should be.  It is important that a man, who is to be proceeded against summarily for judgment, should know exactly how much he has to pay if he wishes to stay the action, and should not be called upon to take the risks of calculation.” \r\nIndeed, on the authority of Order 29 rule 2 (1) of C.I. 47, any party to a suit may apply to the court at any stage in the cause or matter for any necessary accounts to be taken. \r\nI am of the candid opinion, therefore, that upon examining the entirety of the pleadings so far filed in the case, it is clear that there are triable issues (that is, the issue of the amount due and outstanding and the ownership of the fuel station) between the Plaintiff and the Defendants.  These are issues which cannot simply be swept under the rag and ignored and when taken together make the applicability of Order 14 impossible against the Defendants.  As noted by Kpegah J (as he then was) in the YARTEL BOAT BUILDING CO. v. ANNAN case, supra, Order 14 “… prescribes the procedure to be followed by a plaintiff who wishes to obtain summary judgment against his adversary. It does not confer on a plaintiff an absolute right to proceed for summary judgment in every case….” \r\n5  \r\nI therefore refuse the application and award costs assessed at GH? 1,000.00 against the Plaintiff in favour of the Defendants jointly. \r\n    \r\n         ……………………………………………….. JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION)    \r\nCOUNSEL:  SAMUEL M. CODJOE, ESQ., OF LAW TRUST COMPANY FOR PLAINTIFF/APPLICANT THOMAS ACQUAH, ESQ., OF LAW TEMPLE FOR DEFENDANTS/RESPONDENTS  \r\nCASES REFERRED TO: BALLAST NEDAM BV v. HORIZON MARINE CONSTRUCTION LTD [2010] SCGLR 435 \r\nSANUNU v. SALIFU [2009] SCGLR 586 \r\nSAM JONAH v. DUODU-KUMI [2003-2004] SGLR 50: \r\nYARTEL BOAT BUILDING CO. v. ANNAN [1991] 2 GLR 11, at pages 14, 15 \r\nGHANA COMMERCIAL BANK v. BINOO-OKAI [1982-83] GLR 74-81 \r\nSHEBA GOLD MINING CO., LTD. V. TRUBSHAWE [1892] 1 Q.B. 674 at p. 682  ', 'links/cases/DALEX V. DEE''S AND INVESTMENT LTD.pdf', 'Yes', '', '2016', 'high', '', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'BFS/274/2014', '', '', 'Hgh Court, Accra', '2016-01-19', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(590, 'DANAA NANTOHMAH\r\n  VRS THE RESIDENT DIRECTOR', 'JUDGMENT \r\n  Plaintiff in a writ issued on the 11th of March, 2013 claimed per the endorsement the following reliefs against the defendant:  \r\ni. A Declaration that the purported termination of the employment is tantamount to wrongful dismissal and or termination and is unlawful.  \r\nii. Damages for wrongful dismissal and or termination.   \r\niii. An order that the Defendant shall pay to the Plaintiff all entitlements due to him at the date of dismissal and or termination under his employment contract and or Conditions of Service in the workplace. \r\n2 | P a g e  \r\niv. Damages for discriminatory and unfair labour practice.  \r\nv. Any other relief found due   \r\nPLAINTIFF’S CASE  Plaintiff recounts the grounds upon which he mounts the claim he seeks in the statement of claim that he was employed by the Defendant as its Programme Coordinator in April 2009, and was made a permanent staff two years afterward in 2011.  \r\nPlaintiff claim that during his employment he spearheaded the unionisation of the employees of the Defendant even though the Resident Director was opposed to the idea of the unionisation of the employees. Plaintiff avers that without any prior consultation with or input from the employees, the management of the Defendant company drafted and served on the employees new Conditions of Service which the employees were required to sign. \r\nPlaintiff asserts that he and other leaders of the local union resisted the management’s efforts and this made him a specific target of Defendant’s Resident Director. \r\nPlaintiff states that in or about 2012 he coordinated a programme which involved a visit of a member of Parliament of Germany to Ghana, Dr. Barbel Kofler. At the conclusion of the programme the Resident Director orally reviewed the programme with the Plaintiff.  Plaintiff states further that subsequently the Resident Director of the Defendant in her determination to find fault with the Plaintiff served on him a letter terminating his employment. \r\nIt is the case of the Plaintiff that the action of the Resident Director is in breach of the rules of natural justice- audi alteram partem and is clearly a punitive action against him. Plaintiff avers that the acts of the Resident Director amount to wrongful dismissal. Plaintiff therefore claims that he has been denied his lawful \r\n3 | P a g e  \r\nentitlements under his contract of employment and conditions of service, and has suffered substantial damages.  \r\nDEFENDANT’S CASE \r\nDefendant denies all the material averments made by the Plaintiff, and makes the case that it had at all material times treated the Plaintiff fairly.  \r\nDefendant avers that the employees of the Defendant were unionised in 2003 long before the Plaintiff was employed, and that it was only in 2011 that the Plaintiff was appointed the Local Union Chairman and that it was not opposed to unions in Ghana.  \r\nDefendant asserts that the Plaintiff had failed to discharge his duties properly in respect of the programme organised by him on the 17th February, 2012 to Bonwire in the Western Region. The Defendant contends further that on the 27th February 2012 the Resident Director invited the Plaintiff to a hearing on the alleged misconduct in respect of the events that took place during the visit of the German MP on the 17th February 2012, and that at the said hearing the Plaintiff did not admit his mistakes or apologize. Defendant says that the Plaintiff was given a fair hearing and is not entitled to any of its reliefs. \r\nPlaintiff joined issues with the defendant in his reply and noted further that the meeting held cannot be claimed to be the hearing as that was only a standard practice after such visit. \r\nISSUES FOR TRIAL \r\nThe following issues were filed by the counsel for Plaintiff and with additional issues by the defendant and same were adopted by the court for determination: \r\n1. Whether the Defendant’s then resident director exhibited hostility and or resentment towards trade union activities by the Plaintiff and other staff at the workplace. \r\n4 | P a g e  \r\n2. Whether the Plaintiff as local union chairman in response to popular staff sentiments led the resistance to the Defendant’s attempt to impose a new or revised Conditions of Service without prior consultation or negotiations. 3. Whether the visit of the German MP became the casus belli which the Defendant seized upon to get rid of the Plaintiff. 4. Whether there was over a formal query issued to Plaintiff or formal disciplinary proceedings before the Defendant purported to dismiss Plaintiff. 5. Whether the purported dismissal was wrongful and unlawful. 6. Whether the Plaintiff has suffered damage and loss as a result of his purported dismissal 7. Whether Plaintiff is entitled  to the reliefs sought 8. Any other issues arising from the pleadings. The additional issues consisted of the following: \r\na. Whether or not Plaintiff’s behaviour during the one week visit of Dr. Baerbel Kofler, a German Minister of Parliament to Ghana amounted to proven misconduct. b. Whether or not the reputation of the defendant was damaged through the behaviour of the plaintiff during the visit of the German Minister to Ghana. c. Whether or not the plaintiff was given the opportunity to be heard by the defendant on his alleged misconduct before dismissal. d. Whether or not the dismissal of the plaintiff was lawful. e. Whether or not the defendant owes the plaintiff the payment of any entitlements under his employment contract.  \r\nANALYSIS OF THE EVIDENCE AND EVALUATION OF THE LAW: \r\nFrom the issues and additional issues making a total of twelve issues the court can deduce that they can all be subsumed in about three or four issues of whether \r\n5 | P a g e  \r\nthe dismissal or the termination of the appointment of the plaintiff was fair, whether or not plaintiff was entitled to a hearing before dismissal/termination and was so denied one and finally whether plaintiff had made a case of entitlement to damages. \r\nThis case just like the earlier transferred cases before me like GEORGE SARPONG v WISCONSIN UNIVERSITY, (Unreported) dated 16th June 2016; which I had placed on record and now repeat of the the real and substantial difficulty that afflicts me even though as a trial Judge I have not had the benefit of listening to any of the evidence of the parties in court. This has been so because by some unfortunate coincidence, so notorious in this country for me to recount here, and whose ramifications are still raging, the trial Judge that tried the case to conclusion, has not had the privilege to preside over the judgment of the matter. Not presiding as an appellate Judge, nonetheless, my evaluation is limited to only the evidence on record same as the task that confronts any appellate court. And that does not in any way derogate or detracts or steal the glow out of the findings to be made upon analysis of the evidence.  \r\nPlaintiff testified in person and did not call any witness. He tendered, among others, the following vital evidence before the trial court in his evidence on the 4th of March, 2014: contract of employment as Ex ‘A’, job description as Ex ‘B’, employment contract as Ex ‘C’, conditions of service as Ex ‘D’, the conditions of service of 2011 as Ex ‘E’ and finally his dismissal letter as Ex ‘F’. Defendant on the other hand testified through its Resident Director and two witnesses as Dw1 and Dw2.  \r\nIn the endorsement Plaintiff claims that the “purported termination of the employment is tantamount to wrongful dismissal and or termination”. And in relief ii he “seeks damages for wrongful dismissal or termination”. Throughout the addresses of the counsel for both parties I did not find a serious attempt to \r\n6 | P a g e  \r\ndistinguish between the termination and dismissal. Plaintiff proceeded as if the two are virtually the same. I find it necessary before launching into analysis of the evidence that I acquit my mind with respect to dismissal and termination under labour law. As each has a different implication.  \r\nThe courts draw a distinction between termination of an employee’s contract of employment and the dismissal of an employee. The Supreme Court in the case of ISAAC KOBI & 24 ORS v GHANA MANGANESE COMPANY LTD HI/70/2004 held that:  \r\n“Clearly their severance of employment was not a summary dismissal but a termination of appointment. Without the need to quote any legal authorities, it is common knowledge that clear distinctions exist between the two. I will only attempt to note the commonest. While in summary dismissals the employer may state reasons for their action, the employer is not equally bound to give any reason for termination of appointment. Besides this, an employee whose service was to be terminated was entitled to notice or payment in lieu thereof, and also payment of all his entitlements.” \r\nThe distinction is important for two reasons: First, the right to terminate a contract of employment flows from the general principle of law that contracts of employment are not contracts of servitude from which parties cannot pull out. The position of the law on termination of contract of employment has been this: that the employer is not under duty or any obligation imposed by law to proffer reasons for termination the contract of an employee. And that it is enough if the contract is terminated in accordance with the procedural requirements and terms of the contract. See the case of WILLIAM AMPIAH v COCOA MARKETING COMPANY (Unreported) H1/43/12 dated 21st March, 2013 COA. A termination was said to be wrongful where one of the parties terminates \r\n7 | P a g e  \r\nthe contract of employment contrary to the terms stated therein. The Court of Appeal quoted with approval the decision of the Supreme Court in the case of BANNERMAN-MENSON VS. GHANA EMPLOYERS ASSOCIATION [1996-97] SCGLR 417. The Court in discussing whether an employer or employee is duty bound to give reasons for termination of employment held at pages 422 and 423 thus:  \r\n“…the appellant could terminate the appointment by giving his employers six months notice if he decided to, without giving any reasons. So were the respondents entitled to dispense with the appellant’s services by giving him six months notice. This conforms to equitable principles… \r\nTo me it is of no consequence if the respondents gave as a reason for the termination of the appellant’s employment the fact that he had reached the age of 60 years. What is important is the mutual agreement of the parties that the contract of employment could be determined by giving six months notice of intention to do so. I think the appellant was laboring under serious illusion in assuming that his appointment was terminated by reaching the retirement age of 60 years. The respondents were under no obligation to give him reasons for his termination”. \r\nSee also the case of ARYEE v STATE CONSTRUCTION COMPANY [198486] 1 GLR 424. \r\nThe dismissal of an employee, on the other hand, is occasioned by the misconduct of the employee or the doing of an act for which the contract of employment prescribes dismissal.  \r\nIn circumstances where the conduct of a worker is of some grave and weightier character that it undermines the relationship of confidence which must exist between a master and a servant, then such an employee may be summarily \r\n8 | P a g e  \r\ndismissed. See the case of NEARY & NEARY v DEAN OF WESTMINSTER [1999] IRLR 288. Instances of acts that may be capable of amounting to misconduct so grave and weighty enough to merit dismissal include, among others, fraud, stealing, extortion, corruption, bribery, falsification of accounts/records, fraudulent breach of trust, gross insubordination, dereliction of duty, sleeping at work, verbal or physical abuse, fighting, assault and battery, working under the influence of alcohol or any illicit psychotropic drug, conflict of interest, competition with the employer’s business, conversion of company’s property for private use without the employer’s permission, etc. This is a departure from the old standard which prevented the employer from automatically dismissing his employee without notice where such employee has committed an offence that have a criminal element(s) which criminal offence requires the proof in a court of law, of proof beyond all reasonable doubt. \r\nThe letter that plaintiff complains of is Ex ‘F’. It is captioned “Letter of Dismissal – Cessation of Employment”. And notes in paragraph 2 that: \r\n“We are terminating your employment as Programme Coordinator due to your misconduct with immediate effect from February, 28th, 2012. This decision is based on the incident in respect of the visit of the Member of Parliament from Federal Republic of Germany…”.  \r\nIt is my view, and I find as matter of fact and law that even though Ex ‘F’ features at some point a reference to termination of employment, on the whole the letter was in the nature of a dismissal and not termination from my analysis supra on the difference between a dismissal and termination of employment. Be that as it may, the court in the course of the analysis of the evidence will still consider the implications of the letter if it was in the form of a dismissal or in the form of a termination.  \r\n9 | P a g e  \r\nI proceed on the first leg to assess whether if the claim is one of dismissal before assessing if it is termination and whether any of the two legs could be sustained to enable plaintiff succeed in this action. In respect of the allegation of his dismissal that he deems unlawful, plaintiff catalogue a number of claims as evidence of the unlawful dismissal. First is what he claims was his involvement as the chair of the local union and being at the forefront of resisting an attempt by defendant to make each employee sign individual condition of service. As a result of this stand the Resident Director became hostile towards him, so plaintiff claims. \r\nHowever, when the plaintiff came under cross examination regarding the claim that he was unfairly targeted this is what transpired: \r\nQ:  How were you targeted by the Resident Director.  \r\nA: This was when she started to impose conditions of service on Local Union members and we resisted it.  \r\nQ:  Did you ever complain to the NLC?  \r\nA: We complained to the Mother Union which wrote to the Resident Director about Collective Bargaining.  \r\nQ:  What was the response of the Defendant’s organisation?  \r\nA: She never responded to the letter written by ICU    The Defendant tendered a copy of the letter by Defendant to the General  \r\n10 | P a g e  \r\nSecretary of the ICU dated 23/03/2014 on the subject “Your Demand for Collective Bargaining Agreement-FES Ghana”. Reading the letter as a whole, it appears the Defendant as employer was expressing genuine and legitimate concerns in respect of the agreement that ICU sought to reach with them. There is no indication of hostility towards the ICU neither can any negative sentiments towards unionisation be gleaned from that letter and accordingly find that allegation of plaintiff be unfounded and unproved.  \r\nAgain, regarding the claim of unfair dismissal, plaintiff supports the assertion with the letter of his dismissal that the litany of the claims by defendant was untenable and besides he was not given a hearing and hence a breach of the audi alteram partem rule of natural justice. Among some of the reasons cited in Ex ‘F’ include, among others, choosing a low standard hotel, wrong scheduling of the programme and its timing, use of a political party, CPP vehicle to meet the German MP and the entourage etc.  \r\nIt is worth noting that in article 7 of Ex ‘C’ the parties agreed that:   \r\n“Each contracting party shall have the right to terminate this contract without prior notice when facts occur which render it impossible to expect that the employment be continued by the terminating party until the agreed end of employment”.  \r\nThe principle at common law as noted in Halbury’s Laws of England (3rd ed.) Vol 25 paga 487, paragraph 938 is that   \r\n"A servant, whose conduct is incompatible with the faithful discharge of his duty to his master, may be dismissed ...Dismissal is also justified in the \r\n11 | P a g e  \r\ncase of a servant ... if his conduct has been such that it would be injurious to the master''s business to retain him."  \r\nThis principle was applied in the Ghanaian case of ABOAGYE V GHANA COMMERCIAL BANK [2001-2002] SCGLR 797 where the respondent countersigned a cheque to allow a customer to withdraw an amount of 15,000 million cedis without verifying that the customer had that money in the account. He was dismissed and complained among others of the breach of the natural justice rule. The court held in line with the common law principle that:  \r\n“the conduct of an employee ought to be compatible with the faithful discharge of his duty and should not be injurious to the employer’s business”.  \r\nPlaintiff has parried the allegations made in Ex ‘F’ as a façade and a lame excuse to dismiss him as he claims that he was not responsible for most of the arrangements. However, under cross examination he admitted the level of his involvement in the following:  \r\n“Q: February 2012, what was your responsibility to plan that programme when the German MP came.   A: I had to meet partners, arrange meetings, send letters out, arrange accommodation …”  \r\nI find therefore as a fact that plaintiff had a key role to play in the organization of the programme for the German MP and the attempt to distance himself from the lapses cannot be completely true. Regarding the claim of the meeting he held with the Resident Director that he claims was a normal review held after a \r\n12 | P a g e  \r\nprogramme has been held and therefore no adequate opportunity was provided him to defend himself; it has been held in the ABOAGYE v GCB case supra that:  \r\n“Finally in considering the question whether or not in any particular case there has been a failure of natural justice, the fact that there was evidence to support the charge preferred against the plaintiff namely negligence, is immaterial to the determination of the issue whether the plaintiff had not been given a fair trial. ... Since the Disciplinary authorities of the defendant bank failed to apply the rules of natural justice there was no fair trial, and this is fatal to their decision to dismiss the plaintiff with loss of benefits.” \r\nHowever, a different conclusion was reached in the case of JUSTICE AWUKUSAO v GHANA SUPPLY COMPANY LTD J4/15/2008 dated 11th March, 2009. In that case, the Plaintiff was dismissed for expending company monies’ to renovate his house after its sale to him. Counsel for the plaintiff submitted that this particular charge was not mentioned in the Draft Report and so the plaintiff had no chance to re-act to it and therefore a dismissal based on this charge was unlawful. Counsel for plaintiff also relied on the case of ABOAGYE V GHANA COMMERCIAL BANK and urged at the trial and on appeal, that this in effect took away the plaintiff’s opportunity to be heard on the charge levelled against him.  \r\nThe Court held that, “at common law it is enough if the fact upon which a person is summarily dismissed objectively establishes ground or cause for dismissal.” \r\nAnd in the case LAGUDAH v GHANA COMMERCIAL BANK [20052006] SCGLR 388, Date-Bah JSC in his judgment commented at page 401 that: \r\n13 | P a g e  \r\n“I am not persuaded that, in a commercial setting, in the absence of a contractual provision to the contrary, an employer is bound to comply with the rules of natural justice. At common law, it is enough if the facts objectively establish cause for dismissal.” \r\n  The court went on at page 405 to state that: \r\n“…. in the ordinary common law of employment, unaffected by public law considerations, there is no obligation on an employer to set up a tribunal or committee of enquiry before he can dismiss an employee summarily for misconduct. Irrespective of the procedure which he adopts, if he establishes facts justifying the dismissal, that is enough.” \r\nIn the Lagudah case above, both the trial court and the Court of Appeal were satisfied that there was sufficient evidence on the record to justify the summary dismissal of the plaintiff. In a similar manner, the Court in BANI v MAERSK GHANA LTD [2011] 2 SCGLR in answering the contention of the appellant that his dismissal was unlawful on the ground that the findings on which the dismissal was based was made by a subcommittee alleged to have acted ultra vires said:    “Assuming without admitting that the subcommittee’s findings were ultra vires, we do not consider that this would derogate from the defendant’s common law right to dismiss the plaintiff for proven misconduct.  Once there are facts on the record justifying the defendant/respondent dismissing the appellant for misconduct, the fact that the findings were made by a committee that was acting, allegedly, ultra vires, is irrelevant.”  \r\nI am of the opinion that as long as the defendant sat with plaintiff to review his performance after the visit of the German MP, that should suffice for the purposes of dismissal to satisfy any hearing that plaintiff ought to have been \r\n14 | P a g e  \r\ngiven and the failure to abide by the principle of audi alteram partem in its strictest sense cannot invalidate the dismissal of an employee for misconduct or make such dismissal wrongful.  \r\nIn the BANI case the Court was of the view that considerations of such doctrine as ultra vires is an important building block for the court in exercising control over administrative action, and consequently such considerations are a public law element. The Court held further that; \r\n“A similar policy rationale does not exist for the courts supervising delegated decision-making in the private sector.  Indeed, it would be against public policy to subject private sector business units to the same control over their administrative decisions as public bodies.  The private sector needs more flexibility and is not expected to operate under the same rules of the game, so to speak, as government and public bodies.” \r\nLet me also be quick to add to the authorities the case of  LEVER BROTHERS GHANA LTD  v ANNAN (CONSOLIDATED) [1989-90] 2 GLR 385 when the court affirmed the trial judge’s decision and said (at pp.3889) that;  \r\n“The law is that where an employee has, in fact, been guilty of misconduct so grave that it justifies instant dismissal, the employer can rely on that misconduct in defence of any action for wrongful dismissal, even if at the date of the dismissal the misconduct was not known to him” \r\nTo elucidate the point further the Court held that,  \r\n“from the principle of law also quoted above which entitles an employer to dismiss summarily an employee he considers guilty of serious misconduct, such as dishonesty, it is evident that the employer is not \r\n15 | P a g e  \r\nobliged to set up an investigative process to give the employee a fair hearing:  see Presbyterian Hospital, Agogo v Boateng [1984-86] 2 GLR 381, CA.  What is required is that when the employee’s dismissal is brought to question in a court of law the employer’s action can be vindicated.”  \r\nSee also the following cases: EDWARD NASSER & CO LTD V. ABU- JAWDI [1965] 2GLR 532, PRESBYTERIAN HOSPITAL, AGOGO V BOATENG [1984-86] 2 GLR 381, CA; BOATENG V VOLTA ALUMINUM CO LTD [1984-86] 1 GLR 733, CA.; LEVER BROTHERS GHANA LTD V. ANNAN [1989-90] 2 GLR 385 \r\nI will hold and find that even if the meeting held with plaintiff did not meet the standard test of fair hearing, a breach of the audi alteram partem principle will not render a dismissal wrongful where there is sufficient evidence on the record to satisfy the court that the employee, which in this instance is the Plaintiff, is guilty of a misconduct of such a nature as to justify a dismissal. \r\nHaving found that if Ex ‘F’ was a dismissal letter, the claim of Plaintiff for unlawful dismissal will not succeed from the evaluation supra. Assuming without admitting that even the court is wrong on this finding that the severance was a dismissal, can Plaintiff succeed if it happens to be termination but not a dismissal? I do not think so and my reasons are as follows: \r\nAs far as termination is concerned it is the law that an employer need not assign reason for bringing to an end the employment of a worker as long as the termination is in accord with the terms of engagement between them. Ex ‘C’ which is the contract of employment gave the right to each party to terminate the contract without even prior notice. Then there is also the employment contract dated March 22nd, 2011 signed by the parties which also states at article 7 as follows: \r\n16 | P a g e  \r\n“Both contracting parties shall have the right to give notice of termination within a period of four weeks to the end of the quarter. In addition, each contracting party shall have the right to terminate this contract without prior notice when facts occur which render it impossible to expect that the employment be continued by the terminating party until the agreed end of employment”. \r\nSo here the terms of the contract makes it possible for the contract to be terminated with four weeks notice or as is common one month pay in lieu of the notice. Plaintiff was paid the February, 2012 salary in lieu of the four weeks notice. This appears to be the essence of the decision in the case of BANNERMAN-MENSON VS. GHANA EMPLOYERS ASSOCIATION [1996-97] SCGLR 417 where the court noted at page 422 that \r\n“…the appellant could terminate the appointment by giving his employers six months notice if he decided to, without giving any reasons. So were the respondents entitled to dispense with the appellant’s services by giving him six months notice. This conforms to equitable principles… \r\nTo me it is of no consequence if the respondents gave as a reason for the termination of the appellant’s employment the fact that he had reached the age of 60 years. What is important is the mutual agreement of the parties that the contract of employment could be determined by giving six months notice of intention to do so. I think the appellant was laboring under serious illusion in assuming that his appointment was terminated by reaching the retirement age of 60 years. The respondents were under no obligation to give him reasons for his termination”. \r\nAs far as common law is concerned there is nothing like unfair termination, a concept that is only familiar to the Ghana’s statute law under section 15 of the Labour Act, 2003, Act 651 which provides the basis for termination of a \r\n17 | P a g e  \r\ncontract to include, mutual agreement of the parties, by the employee when there is sexual harassment, ill treatment etc. And by the employer if there is death of employee, worker unfit medically to work, sickness, accident or proven incompetence etc. \r\nWhere a worker complains that the basis for the termination of his employment is unfair or do not meet the standard set down by law  under section 63 of Act 651, then it is my view that such an employee has no recourse to the court without first proceeding to the Labour Commission. Why? Simple the Act 651 specifically under section 64 has provided a mode for redress when there is an allegation of unfair termination of employment or an employee finds his claim on any of the grounds under section 63 when it provides under section 64 as follows: \r\n“A worker who claims that the employment of the worker has been unfairly terminated by the worker''s employer may present a complaint to the Commission” \r\nI am not unmindful of the fact that the word “may” is used in section 64, nonetheless, I am fortified in my position that an employee who complains of unfair termination must first proceed to the Labour Commission on the strength of two authorities. First is the Court of Appeal decision in the WILLIAM AMPIAH v COCOA MARKETING COMPANY supra, and two the Supreme Court decision in the case of BANI VS. MAERSK GHANA LTD. supra where the court considered the scope of the jurisdiction of the court to entertain actions for unfair termination rather than the Labour Commission in the following terms: \r\n“These statutory remedies are made available to the Commission but not, at least expressly, to the courts. What then is the impact on the common law of these statutory provisions? These provisions, with respect, are to \r\n18 | P a g e  \r\nbe construed as not directed at the court”. \r\nAnd in the AMPIAH case supra, Professor Sir Dennis Adjei noted as follows: \r\n“The aggrieved employee who thinks  his/her employment has been unfairly  terminated may make a complain[sic] to the Labour Commission for the Commission  to investigate and take appropriate decision  as provided  in section 64(2) of Act 651. The power to handle unfair termination against an employer is the prerogative of the Labour Commission and not the Courts. Where a jurisdiction as in the instant case is not given to the courts and the court assumes jurisdiction, any order made by the court is a nullity. The trial High Court acted without jurisdiction when it usurped the powers or the Jurisdiction granted to the Labour Commission. It must be stated in unambiguous terms that the power to investigate unfair termination by an employer is exclusively vested in the Labour commission and not, the court and any court which may purport to exercise such power shall be acting without jurisdiction and any order emanating  from  it would be a nullity”. \r\nFrom the above need I say more? The claim of the Plaintiff if it is for unfair dismissal I have shown to be not maintainable and if it is for unfair termination, he is in the wrong forum from the binding authorities I have cited. And if the claim of Plaintiff is for both unfair dismissal and termination he has no leg to stand on. \r\nHaving so found I consider it needless to embark upon the claim of entitlements to damages as damages could only be founded upon the establishment of a violation of a legal right. In other words, before damages could be assessed, the Plaintiff must first provide the evidence to warrant the award of damages. He must also provide facts that would form the basis of assessment of the damages he would be entitled to. Plaintiff has failed in my estimation to meet the test of \r\n19 | P a g e  \r\nestablishing the unfair dismissal or termination and in that respect I have no hesitation at all in dismissing the reliefs the plaintiff seeks in its entirety. And I so dismiss the reliefs that Plaintiff seeks in the court. \r\nIn awarding cost which is intended to cover for the legal fees of a successful party, the court may take into consideration the amount that may have reasonably been expended by the party in defending the claim or prosecuting same. On the whole I will be charitable to the Plaintiff and award cost of Gh¢ 15.000.00 in favour of Defendant against Plaintiff.    \r\n        (Sgd.) \r\nEric K. Baffour, Esq. \r\nJustice of the High Court  \r\nRepresentations:  \r\nPlaintiff - present  \r\nDefendant Represented by Fritz Kopsiekor – Present  \r\nEdward Briku-Boadi, Esq for Plaintiff, holding the brief of Dick Anyadi – Present  \r\nAnita Delight Danquah for Vitus Gbang, Esq. for Defendant – Present  \r\n  \r\n  ', 'links/cases/DANAA DANTOGMAH v FES.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'TMISC/0001/2016', '', '', 'High Court, Accra', '2016-11-30', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(591, 'DANGME RURAL BANK LTD.\r\nVRS  \r\nGALLYWOOD FILM VILLAGE ', '\r\nJUDGMENT  \r\nThe Plaintiff is a limited liability company, duly registered under the laws of the Republic of Ghana and authorized by the Bank of Ghana to provide universal banking services.  The Defendant, a customer of the Plaintiff bank, is also a company limited by guarantee and incorporated under the laws of Ghana to engage in film production.  \r\nIn the Plaintiff’s statement of claim, as amended, the Plaintiff claims against the Defendant the following reliefs:     “a) The recovery of an amount of GH¢409,681.56 inclusive of interest from the Defendant being the total outstanding balance on two credit facilities of GH¢250,000.00 and GH¢20,000.00 granted to Defendant by Plaintiff in May, 2012 and November 2012 respectively as financial support for the completion of Defendant’s school building project the repayment of which have long expired but Defendant has failed and refused to do so despite repeated demands by Plaintiff. b) Interest on the total outstanding balance of GH¢409,681.56 calculated at 30% per annum from August 2014 till date of final payment. c) Cost inclusive of Counsel’s fees.”  \r\n2  \r\nThe material facts which gave rise to the matter before me are stated in Plaintiff’s amended statement of claim and supported by the documentary evidence adduced by the Plaintiff in support of its case.  It is the case of the Plaintiff bank that it advanced an overdraft facility in the amount of GH¢250,000.00 to the Defendant on or about May, 2012 at the request of the Defendant to assist Defendant complete its school project (hereinafter referred to as the “Overdraft Facility”).  The Overdraft Facility was to attract an agreed interest rate of 30% per annum and was to be fully repaid within twelve (12) months, effective June, 2012 to expire at the end of May, 2013.  See Exhibits “A” and “B”, which are the Letter from William Akuffo, the Managing Director of the Defendant company by which the Defendant applied for the Overdraft Facility and the approval letter issued by the Plaintiff in approval of the Overdraft Facility, respectively.  According to the Plaintiff, the Defendant, sometime in November, 2012, requested for and was granted further a commercial loan of GH¢20,000.00 for three (3) months to expire in February, 2013, (hereinafter, the “Commercial Loan”).  To evidence this transaction, the Plaintiff tendered in evidence Exhibit “C”, the loan application letter written by the Managing Director of Defendant Company, William Akuffo, and Exhibit “D” the commercial loan approval letter dated 15th November, 2012 issued by the Plaintiff.  These two (2) credit facilities are referred to herein, collectively, as the “Credit Facilities”.  \r\nIt is Plaintiff’s case that the repayment periods of the Credit Facilities have long expired with the total outstanding balance of GH¢409,681.56, as at August 2014, remaining due and unpaid by the Defendant.  Plaintiff tendered in evidence Exhibits “E” and “F”, the statements of accounts on the Credit Facilities in proof of the balance outstanding in respect of the Credit Facilities.  Plaintiff further alleged that several repeated demands on the Defendant to pay up its debts were to no avail.  As a result, in August, 2014, it instructed its Solicitors to issue a formal demand notice, Exhibit “G” to the Defendant to demand the repayment of the outstanding balance due.    \r\nIt is the Plaintiff’s final contention that the Defendant has failed, refused and neglected to fulfill its part of the terms and conditions governing the grant of the Credit Facilities and that unless compelled  by this honourable court, the Defendant will continue to default to repay the loans to the detriment of the Plaintiff.    \r\nThe evidence of the record establishes that on 22nd January, 2015, the Defendant entered appearance through its Solicitor, Thomas Acquah, Esq. of Law Temple who filed on 26th February, 2016 a statement of defence to the suit on behalf of Defendant.   \r\nThe following issues were set down for trial after pre-trial settlement failed: 1. Whether or not the repayment of the credit facility of GH¢250,000.00 (Two Hundred and Fifty Thousand Ghana Cedis) and the interest thereon extended to Defendant by Plaintiff in May, 2012 has expired? 2. Whether or not the Plaintiff is entitled to the claims endorsed on the Writ of Summons? \r\n3  \r\n3. Any other issues arising out of the pleadings.   Before delivering my judgment, certain developments that took place during the trial of this case necessitate that I 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.  On 15th day of March, 2016, this Court granted the Plaintiff leave to amend its statement of claim. The amended statement of claim was filed on the same day and a copy served on the Defendant as evidenced by the Affidavit of Service on the docket before me.  The Defendant however failed to file any response to the Plaintiff’s amended statement of Claim, by way of an amended statement of defence or otherwise.  \r\nIt is noted, further, 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 numerous affidavits of service on the record.  A review of the docket provides no evidence as to support a finding that Mr. Thomas Acquah, the Solicitor who entered appearance on the behalf of Defendant, subsequently withdrew his representation of the Defendant in this case.  Furthermore, not only did the Defendant fail to make any officer of the company available to participate in a court assisted audit to reconcile the accounts as between the parties herein, it also failed to comply with the case management orders made by this Court.  In that regard, the statement of defence filed by the Defendant was struck out by the Court on 16th March, 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 follows: 1. Whether or not the Plaintiff is entitled to its reliefs as endorsed on the writ of summons and amended by the amended statement of claim.  \r\nThe 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.  See BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 where 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. The court applied the case of HUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.  In the 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 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 \r\n4  \r\nhis claim, the existence or non-existence of which is essential to the claim or defence he is asserting.   \r\nSection 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 12(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 amount of the Credit Facilities that it alleges remain outstanding and due, 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 is more probable than not.  \r\nPlaintiff’s claims and documentary evidence were corroborated by the testimony of Plaintiff’s representative, Mr. Devine Kudjonu, the Credit Manager, given on oath to this court.  The court finds 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.  The 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: “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.”  \r\nIn the circumstances the court is left with no option than to believe the claims of the Plaintiff as corroborated by the testimony of its witness and its 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. \r\n5   \r\nThe documentary evidence before the court and the uncontroverted testimony of Plaintiff’s Representative shows that it is not in dispute that the parties intended to create legal relations and their intentions were reduced into a binding contract as between the parties.  In DANIELE CONSTRUCTION v. MABEY & JOHNSON [2006] 4 M.L.R.G. 101 at 116, Akoto Bamfo J.A. stated that:   “An agreement is reached by a process of offer and acceptance and for a determination as to whether parties have reached an agreement, one should find whether there has been a definite offer by one party and an acceptance of that offer by the other, the test being whether the parties have all outward appearances as agreed in the same terms upon the same subject matter”.  \r\nAlso, in the unreported case of NTHC LTD v. ANTWI, (February 4, 2009), the Supreme Court held that:  \r\n“In the instant case, the letter of January 17, 2005 constituted an offer and not an invitation to treat, and that offer was converted into a contract by the plaintiff’s acceptance letter of January 31, 2005. There was, therefore, clearly an intention to create legal relations and the plaintiff’s undertaking to pay the purchase price was consideration enough to result in the formation of a contract.”  \r\nAll the requirements for the existence of a valid contract were present in the relationship between the Plaintiff and the Defendant.  There was agreement as to all the material terms of the agreements governing the Credit Facilities.  Additionally, these four (4) main ingredients were also present; the parties had capacity to enter into the agreements, there was offer and acceptance of the key terms of the agreements on which both parties were ad idem, there was consideration for the services and the intention of the parties to create legal relations could not be disputed.    \r\nExhibits “A” and “C”, which are the letters written by William Akuffo, the Managing Director of the Defendant company by which the Defendant applied for both the Overdraft Facility and the Commercial Loan constituted the offer by the Defendant company which was converted into a contract by Plaintiff bank’s acceptance in the form of the approval letters issued by the Plaintiff in approval of the Overdraft Facility and the Commercial Loan, Exhibits “B” and “D” respectively.  The relevant terms and conditions of the Overdraft Facility were contained in Exhibit “B”, which provided that upon acceptance by the Defendant, the facility would attract an interest rate of 30% per annum and the principal and agreed interest was to be repaid within twelve (12) months to expire in May 2013.  In respect of the Commercial Loan, the material terms and conditions thereof were stated in Exhibit “D” as follows: the loan duration was for three (3) months to expire in February, 2013 and interest on any unpaid principal was to be calculated at 30% per annum.  By \r\n6  \r\nexecuting Exhibits “B” and “D”, under the sub heading “ACCEPTANCE”, the Defendant is deemed to have accepted the foregoing terms and conditions and also accepted to be bound by them.  \r\nI am, therefore satisfied that it is more probable than not that as agreed between the parties herein, the Plaintiff advanced to the Defendant the sums of money in the amounts claimed by the Plaintiff in its statement of claim with the total indebtedness of the Defendant on the Credit Facilities standing at Four Hundred and Nine Thousand, Six Hundred and Eighty One Ghana Cedis, Fiftysix Pesewas (GH¢409,681.56) as at 1st August 2014.  See Exhibits “E” and “F”, the statements of accounts on the Credit Facilities tendered in proof of the balance outstanding in respect of the Credit Facilities.    \r\nFurther, 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 under the terms and conditions governing the grant of the Credit Facilities.  The Defendant failed to pay its stated indebtedness upon the expiration of both Credit Facilities and it refused to pay up in spite of the several demands made on it by Plaintiff so to do as evidenced by Exhibit “G”, the formal demand notice issued by Plaintiff’s Solicitors demanding payment of the Defendant’s outstanding debt, which was due and payable.  In holding thus, I would like to borrow the words of Acquah, JSC (as he then was) which captures succinctly the obligation of a borrower to repay the loan it has contracted in the case of BARCLAYS BANK (GHANA) LTD v SAKARI [1997-98] 1 GLR 746 - 767:  \r\n“Now, what is the obligation created under this loan contract, a breach of which would entitle the other to sue? The obligation of the bank was to advance the money, which it did, and that of the defendant was to repay the loan together with interest, if any.  This is the obligation of the parties under this loan contract, and indeed, almost all loan contracts. When a bank lends money to its customer, the obligation of the customer is to repay the loan. If the loan is sought for, let’s say, a business venture, and the business flops resulting in massive financial loss to the customer, this misfortune, though may be due to no fault of this customer, does not change the nature of the obligation of the customer to repay the loan he had contracted for.  He will still be obliged to fulfill his obligation.  Thus, the obligation of a borrower in a loan contract as opposed to other types of contracts, is to repay the loan and not the performance of the purpose for which the loan was sought.”   \r\nThe breach of the Defendant’s obligations under the terms and conditions of the Credit Facilities thus gave the Plaintiff the right to sue for the recovery of the sums claimed.  I therefore find that the Plaintiff has met its burden of proving that the Defendant owes it the sums of money claimed as per the reliefs (a) and (b) as amended by the amended statement of claim.    \r\n7  \r\nFrom the foregoing, I am satisfied that the Plaintiffs’ action succeeds.  Judgment is entered for Plaintiff in favour of reliefs (a) and (b) as endorsed on its writ of summons as amended by the amended statement of claim.    \r\nI award costs in the sum of GH¢40,000.00 in favour of the Plaintiff against the Defendant.    .  \r\n                                                                                                    (Sgd)             ……………………………………………….. JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION)       COUNSEL:     MARTIN MIREKU, ESQ., OF ABORIGINES LEGAL CONSULT, COUNSEL FOR PLAINTIFF THOMAS ACQUAH, ESQ., OF LAW TEMPLE, 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\nTAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882 TUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969 \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\nDANIELE CONSTRUCTION v. MABEY & JOHNSON [2006] 4 M.L.R.G. 101 at 116 \r\nNTHC LTD v. ANTWI, (Unreported, February 4, 2009, Supreme Court) \r\nBARCLAYS BANK (GHANA) LTD v. SAKARI [1997-98] 1 GLR 746 - 767 ', 'links/cases/Dangme Rural Bank Ltd v Gallywood Film Village.pdf', 'Yes', '', '2016', 'high', '', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'BFS/302/14', '', '', 'High Court, Accra', '2016-06-14', ''),
(592, 'DIANA YAWA DJIRACKOR \r\nVS.  \r\nSETH MENSAH KOJO DUMOGA ', ' \r\nJUDGEMENT  \r\nOn the 16th of December, 2014, the Petitioner instituted the present divorce proceedings against the Respondent seeking the following reliefs:  \r\na) The dissolution of the marriage  \r\nb) An order for the Respondent to pay a lump sum financial compensation of GH¢ 20,000.00 to the Petitioner  \r\nc) The Respondent pays the cost of the proceeding.  \r\nThe main allegation upon which Petitioner grounds the instant Petition is that the marriage between the parties has broken down beyond reconciliation on account of the Respondent’s unreasonable behaviour.   \r\nThe Respondent in his “RESPONSE TO PETITION” filed on the 13th day of February, 2015 admitted that the marriage had broken down but prayed in his Cross Petition   that the Court refers the Parties to a Court appointed Counselor for a final attempt at reconciliation.   \r\n2  \r\nThe Parties, both Ghanaians were married under the Ordinance on the 9th day of March, 1996, having been married customarily some 7 years prior to the said date. After, the marriage they cohabited at the Ministry of Finance flats, Dansoman, Accra between the years of 1990 and 1998 and then moved into their own house at Dome in September, 1998. There are two adult children of the marriage namely Kekeli Dumoga aged 25 years and Delali Dumoga aged 22 years.  \r\nAt the close of pleadings, the suit was fixed for hearing on the 28th day of May 2015 but suffered three subsequent adjournments because the Respondent, who entered appearance to the Petition by himself, was absent on each occasion. Upon being satisfied that Respondent had spurned every opportunity afforded him to be present at the trial, this Court proceeded to hear the evidence of Petitioner on the 2nd day of July, 2015 in Respondent’s absence.   \r\nThe testimony of the Petitioner is that the marriage between the parties has broken down beyond reconciliation because of the unreasonable behavior or conduct of the Respondent. The Petitioner cited a number of incidents to substantiate her allegation that Respondent had behaved unreasonably during the subsistence of the marriage. According to the Petitioner, the parties have been living apart since the year 2007, two years prior to the said separation the Respondent who had moved out of the matrimonial bedroom into the guest room, took to threatening and abusive behavior by constantly terrorizing Petitioner that he will kill her and kill himself, if she did not leave the matrimonial home. What the Petitioner termed the “exchange of assaults and accusations” had become the order of the day in the matrimonial home whilst the children (who were rather young then) looked on helplessly. On the 17th of April, 2007 matters came to a head when the Respondent in the morning of that day, followed the Petitioner from church as she drove to Lapaz, a suburb of Accra  to visit a friend. Upon realizing that she was being trailed by the Respondent, Petitioner parked midway to find out from him if there was any special reason why he was following her.  According to Petitioner, the Respondent right there in the street and in the full glare of the general public, hurled insults at her, calling her a prostitute and demanded that she leave his house. Obviously embarrassed by the scene that was being created, Petitioner rushed back into her car and sped off but the Respondent, undaunted, followed her to her friend’s house where he continued with his threats and insults. It only took the intervention of the said friend, for Respondent to end his verbal tirade and to finally agree to leave but this he did, only after he had driven into Petitioner’s car on purpose, damaging its side mirror in the process.  As if this was not enough, Petitioner returned home later that day to find that her belongings had been thrown out of the matrimonial home by the Respondent who in addition subjected her to severe beatings for her refusal to pay heed to his orders that she leave the matrimonial home.  All attempts by the Petitioner to return her things to the matrimonial home were stoutly resisted by Respondent thus leaving her with no other option than to report the matter to the Domestic Violence and Victim Unit (DOVVSU) of the Ghana Police Service. Upon the intervention of personnel at DOVVSU, Respondent was very categorical that he no longer wanted the Petitioner back in the matrimonial home. Having been left stranded at the police station, Petitioner was advised by DOVVSU, to find temporary accommodation and to pursue the matter in Court since the police   “could not handle divorce issues”.  There was yet another charge of adultery leveled against the Respondent by the Petitioner, which according to her, resulted in him fathering a child out of wedlock. \r\n3  \r\nAccording to Petitioner, Respondent had persisted in his philandering during the entire period that the parties lived together under the same roof and also for the period that they have been separated.  In response to Respondent’s invitation to the Court that the matter be referred to a Conciliator for an attempt at resolving the parties differences, Petitioner was adamant that it will serve no useful purpose since she no longer loved the Respondent and that the said prayer was merely a ploy by Respondent to frustrate or delay the hearing of the Petition.  At the close of Petitioner’s case, this Court adjourned the Petition to the 22nd day of July 2015 for judgment in view of the obvious lack of interest demonstrated by Respondent in prosecuting his Cross Petition.  However, on the day on which judgment was to be delivered, the Respondent appeared in Court evincing an earnest desire to prosecute his case despite his tardiness.  This Court therefore rescinded its decision to deliver judgment and acceded to Respondent’s request to be given a hearing, subject to costs.  After the hearing of a series of applications filed by Respondent, the last hearing being on the 27th day of July 2015, the suit was (due to the impending legal vacation) adjourned to the 4th of November, 2015 for the Respondent to cross-examine the Petitioner on her testimony.   \r\nOn the 4th day of November, 2015, the Respondent failed to make an appearance in Court on grounds that he was indisposed and prayed that the matter be adjourned to the 18th day of November 2015, which request was granted by the Court. Similarly, he failed to make an appearance on the 18th day of November, 2015 on grounds that he had had to travel out of the jurisdiction for treatment. The Court again adjourned the matter but this time, in view of the inordinate delay the case had suffered, ordered that the matter be heard continuously for three consecutive days being the 1st 2nd and 3rd day of December, 2015.  On the 1st day of December 2015 however, this Court received a letter signed by one Rommel Kudjoe asking that the matter be adjourned for a further three weeks because Respondent who had been discharged from the hospital was “under medical advice, confined to bed, rest and taking medication”.    Respondent finally appeared in Court on the 21st of December 2015 to cross-examine the Petitioner.  At the close of the case for Petitioner, Respondent applied orally to the Court for “leave to withdraw his answer but to maintain paragraphs 2 and 3 of his Cross Petition.”  Not surprisingly, this oral application was vehemently opposed by Counsel for the Petitioner. The suit was adjourned to the 20th day of January, 2016 for ruling on the Respondent’s application. Unfortunately, on the said date this Court did not sit because the Court’s support staff were out on a demonstration and therefore did not report to work.  The case was thus fixed for the 10th of February 2016 and hearing notices duly served on Respondent.   On the 10th of February, 2016, the Respondent was again absent without conveying any reason for his non-attendance. This Court, having regard to the background and record of the Respondent’s conduct of the case up to that point, proceeded to deliver its ruling on the Respondent’s oral application and ordered that Respondent repeats his application to withdraw his “RESPONSE TO PETITION” formally within seven days failing which the order would lapse.  There is evidence on record that the Respondent, on that very day applied for and obtained a copy of the said ruling. However, he, in wanton disregard for the orders of this Court failed to comply within the time stipulated. Respondent has since persisted in the regrettable pattern of absenting himself from Court without assigning reasons, resulting in several avoidable adjournments. I have deliberately taken the trouble to set out these facts in this judgment, in order to demonstrate the \r\n4  \r\nlengths to which this Court has gone in accommodating the Respondent’s dilatory tactics. Indeed I must say that I am, by the turn of events persuaded to agree with the Petitioner that the sole aim of the Respondent was to ostensibly frustrate the hearing of the instant Petition.  \r\nBe that as it may, the Respondent having declined to testify in support of the averments in his “RESPONSE TO PETITION” and Cross Petition, leaves this Court with no other option than to accept the evidence of Petitioner. I should also add for good measure, that Respondent’s cross examination of Petitioner, in my opinion, failed to unearth any concrete challenge to her evidence.  I therefore find Petitioner’s allegations proved against the Respondent.   \r\nThe Respondent in his Cross Petition prayed that the parties be referred to a Court appointed counselor for a final attempt at reconciliation. Petitioner was however dismissive of the said suggestion on grounds that it was just a cunning attempt by Respondent to delay or frustrate the hearing of the matter. I must confess that the conduct exhibited by Respondent from the inception of the trial to date has induced in me the feeling that Petitioner was justified in holding this view.  Given the facts and circumstances of this case, there was indeed no need for this Court to have exercised its powers under section 8 (2) of the Matrimonial Causes Act, as any adjournment for an attempt at reconciliation would have served no useful purpose SEE THE CASE OF MENSAH V MENSAH 1972 2GLR @198.  \r\nHaving found the case of Petitioner proven, the issue that remains to be addressed is whether this entitles her to an automatic grant of her prayer for a dissolution of the marriage. By section 2(3) of the Matrimonial Causes Act, Act 367, the Court should not grant a Petition for divorce unless it is satisfied on all the evidence that the marriage has broken down beyond reconciliation. This means that the ultimate decision regarding whether or not the marriage between the Parties has broken down beyond reconciliation rests solely with this Court even though the Petitioner in this suit has been found to have proved her case.  \r\nThe unchallenged evidence before me shows that the Parties have not lived as husband and wife since April 2007. I find upon the facts, that it was the Respondent who in an attempt to bring the marriage to an end did everything within his power to make life unbearable for the Petitioner. This included constant threats and assaults, fathering a child outside the marriage and finally driving her out of the matrimonial home. The Parties have been separated for a considerable period of time, but quite clearly, due to Respondent’s unreasonable behavior, Petitioner cannot be reasonably expected to continue with the marriage. I agree with Petitioner, based on the evidence before me, that the relationship between the Parties has so disintegrated that there is no hope for reconciliation. In my opinion, the relationship that has existed between the Parties for the past 9 years or so has only been an “empty shell” and much as the Court is enjoined to discourage divorce, it is empowered to dissolve marriages that have broken down irretrievably. In the circumstances, I am satisfied that that the marriage between the Parties has broken down irretrievably and I accordingly grant the Petitioner’s prayer for the dissolution of the marriage.  \r\nThere have been conflicting assertions regarding which of the Parties has been responsible for the upkeep of the two adult children of the marriage. I do not attach \r\n5  \r\nmuch importance to the said claims since none of the Parties is seeking any reliefs regarding the said children. Both Parties appear happy performing their parental duties and I consider it prudent that the status quo be maintained.  \r\nIt is to the reliefs being sought by the Petitioner that I now turn. The Petitioner prays the Court for the following reliefs in addition to seeking a dissolution of the marriage;  i) An order for the Respondent to pay a lump sum financial compensation of 20, 000.00 to Petitioner  \r\nii) That Respondent bears the cost of the Petition.  \r\nArticle 22(3) b of the 1992 Constitution provides that upon the dissolution of a marriage assets jointly acquired during marriage shall be distributed equitably between the spouses. On the evidence, the Parties jointly acquired a house at Dome during the subsistence of the marriage but the Petitioner is not making any claims to same. In my thinking, even if the Petitioner made no direct contributions towards the acquisition of the said house, she still, on the authority of MENSAH V MENSAH [2012]1SCGLR @ 391 would have been entitled to an equal share of it.  This notwithstanding, I have, as mandated by section 20 (1) of Matrimonial Causes Act, Act 367, taken time to carefully consider all the facts and circumstances of this case and I deem it just and equitable to grant the Petitioner’s prayer for GH¢20,000.00 as financial settlement.  \r\nI cannot however conclude this judgment without commenting on the egregious conduct exhibited by the Respondent from the inception of this matter. This Court is very alive to the fact that the Respondent was before this Court only as a party to these divorce proceedings  and not as Counsel but I must say, that the conduct of  the Respondent, who never missed an opportunity to remind this Court of the fact of he being  member of this Honorable Legal Profession, fell far short of  one who understood  that “a lawyer’s overriding duty to the Court is to facilitate the administration of justice to the standards set by the  legal profession” SEE THE SPEECH  DELIVERED BY THE HONOURABLE MARILYN WARREN, CJ OF VICTORIA, AUSTRALIA AT THE BAR ASSOCIATION OF QUEENSLAND ANNUAL CONFRENCE DATED 6TH OF MARCH, 2011.   \r\nOrder 1 (1) (2) of C I 47, normally referred to as the spirit of the rules underpins the need for all Parties concerned in the process of litigation  to work towards the  avoidance of unnecessary postponements and delayed justice which fact ought not to have been lost on the Respondent  as an officer of this Court . The wanton disregard for the rules of Court and the lack of diligence exhibited by the Respondent in this matter stands to be deprecated and I do so in no uncertain terms. A new day has dawned, the days of avoidable protracted litigation are over and I believe it is the duty of all stakeholders in the justice delivery system to work assiduously towards the speedy, inexpensive and effective delivery of justice. In conclusion I hereby make the following Orders:  \r\n1. That the marriage celebrated between the Petitioner and the Respondent on the 9th day of   March 1996 is hereby dissolved.  \r\n6  \r\n2. That the Respondent do pay a lump sum of GH¢20,000.00 to the Petitioner as financial settlement.  \r\n3. Costs of GH¢5,000.00 is hereby awarded in favour of Petitioner against the Respondent.    \r\n             [SGD] MRS. AKUA SARPOMAA AMOAH, J.    JUSTICE OF THE HIGH COURT ', 'links/cases/DIANA YAWA DJIRACKOR VRS SETH MENSAH KOJO DUMOGA.pdf', 'Yes', '', '2016', 'high', '', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'BDMC/109/2015', '', '', 'High Court, Accra', '2016-06-10', ''),
(593, 'E. K. BONSU LTD\r\n    VRS  \r\nPRUDENTIAL BANK LTD', '  \r\nRULING  \r\n  Defendant/Applicant seek by this application to stay proceedings of the court pending what he terms as mandatory compliance by the Plaintiff of a statutory provision. The mandatory provision he refers to is section 43 of the Credit Reporting Act, 2007, Act 726. To the applicant as the plaintiff in his claim allege having been defamed based on what plaintiff believe to be inaccurate information provided to XDS Credit Reference Bureau by defendant, the plaintiff ought to have first resorted to the mechanism for resolution of such disputes with the Bank of Ghana before resorting to legal action in the court.  \r\nPlaintiff/respondent ardently opposes the application on a number of grounds. One that the application is belated in the sense that the applicant had waived his right to have the matter settled before the arbitral forum created by the law. This he contends that defendant has filed a statement of defence and that amounts to the taking of fresh step. Again to the plaintiff the dispute is not about the operations of the Credit Bureau, XDS Data but mainly has to do with an action the defendant which has made him suffer disrepute in the eyes of the public.  \r\nIt is provided under section under section 43 of Act 726 as follows: \r\n \r\n2   \r\n“(1) A complaint shall be submitted in writing to the Bank before redress is sought in a Court for the settlement of grievance under this Act. (2) The Bank shall investigate the matter and determine it in accordance with this section. (3) Where the Bank receives a complaint or notice of a dispute, the Bank shall (a) cause the matter to be investigated, and (b) settle the dispute or complaint to the satisfaction of the parties concerned, unless the Bank considers the matter to be frivolous or vexatious. (4) A person dissatisfied with a decision of the Bank may appeal to the High Court. The Bank here means the Bank of Ghana and the law requires that before any person  who has suffers harm arising from the supply of inaccurate or incomplete information about the person is entitled to commence an action in Court against the data provider or credit bureau, by demonstrating that the data provider negligently provided the information which has caused harm to the person, and to seek an injunction or otherwise from the Court to restrain the publication of the inaccurate information. However, this cannot be done unless the aggrieved person has first complied with section 43 of the Law. Clearly then, the action of Plaintiff in this court seeking damages for defamation is well within the grounds of complaints contemplated by section 41 as whatever damages plaintiff may be entitled to arises naturally from the  alleged provision of inaccurate information about him by the data provider, that is the defendant and the contention of counsel for plaintiff that this action is not within the perimeters of actions that ought to be first brought before the Bank of Ghana cannot be correct. What then of the claim that defendant has waived his right to have the matter stayed because he has taken a fresh step? Would filing of a statement of defence be enough to disable a person from invoking a statutory right for settling disputes? It has been cited for the consideration of the court the case of REPUBLIC v HIGH COURT, TEMA; EX PARTE MY SHIPPING PVT LTD [2011] 1 SCGLR 237. It is curious to note that in this case an attempt to invoke an arbitration clause to have a matter stayed in favour of arbitration failed because pleadings had been concluded and directions taken. What was left was for the commencement of hearing. It is my understanding that the applicant ought to file the application for stay timeously and not wait when it is too late to do so. Is that the case here? The applicant filed this application after he \r\n \r\n3  \r\nhad entered appearance and filed a statement of defence. Pleadings have not yet closed unlike the case of Ex Parte My Shipping PVT when they were waiting for trial to commence.  In that respect I do not think that there had been an inordinate delay on the part of the applicant. Besides, it is trite that no court has the power to grant immunity to a party to violate the provisions of a statute and if the Law calls for a certain procedure to be complied with before a party comes to court that cannot be waived at the discretion of the court. On that score the application succeeds and the proceedings are stayed until the plaintiff has complied with section 43 of Act 726. I make no order as to cost.      \r\n           (Sgd.) Eric K. Baffour, Esq. Justice of the High Court     \r\nRepresentation  \r\nParties Absent  K. A Yankyera, Esq for Plaintiff/Respondent – Present  Nana Offei Djan, Esq for Defendant/Applicant – Present  ', 'links/cases/E.K. BONSU v PRUDENTIAL BANK.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'CM/0266/16', '', '', 'High Court, Accra', '2016-07-18', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(594, 'EBENEZER KOFI ADOM\r\nVRS\r\nCOMFORT AKOSUA FRIMPOMAA BOATENG', 'JUDGMENT  \r\nIn this divorce suit, the Petitioner, Ebenezer Kofi Adom has petitioned this Court praying for the dissolution of the marriage between himself and the Respondent Comfort Akosua Frimpomaa Boateng, on the grounds that the marriage between the Parties has broken down beyond reconciliation.  From the averments in the petition, it would appear that the Petitioner relies mainly   on the alleged desertion and adultery of the Respondent as proof of the said breakdown.  \r\nThe petition discloses that the Parties, both Ghanaians were married under the ordinance on the 20th of May 2006 at the Nsawam Road Church of Christ, Accra. After the said marriage they lived together at Alajo in Accra and have one issue, Shadrach Kwabena Amankwaa Adom who was aged 7 years at the time the petition was filed. The Petitioner is a freelance photographer by profession and the Respondent a trader.  \r\nAccording to Petitioner, Respondent  left the matrimonial home some five years ago as a result of disagreements over various issues, chief among these being, the refusal of Respondent to heed Petitioners warnings against persistently serving Petitioner with food prepared by other tenants of the compound house in which the Parties lived. After Respondents unceremonious departure, Petitioner had \r\n2  \r\nmade countless attempts by himself and through other well-meaning persons to convince Respondent to return to the matrimonial home but Respondent had remained adamant in her decision not to.  In line with this decision Respondent, had three months prior to her departure to her parents’ home at Asiakwa and even thereafter refused to have sex with Respondent. Petitioner further levels the charge of adultery against the Respondent and avers that the Respondent is currently involved in an illicit relationship with one Dada Boat with whom she presently lives.  With respect to the child of the marriage, he charges Respondent with being an irresponsible parent who has abandoned the issue of the marriage to the benevolence of one Ososfo Stephen and avers that the child will be better off with him. Petitioner therefore prays for:  \r\na) That the said marriage be dissolved  b) That Petitioner be granted custody of the child of the marriage, Shadrach Kwabena Adom .  \r\nThe Respondent in her answer filed on the 29th of April 2015 denies all the averments in the petition to the extent that she engaged in the acts complained of by petitioner without just cause and cross-petitions for the following reliefs:  \r\na) That the marriage be dissolved. b) That the petitioner be made to pay GH¢300 as monthly maintenance fee for the child c) That the Petitioner be made to pay the child’s school fees and medical bills d) That the Petitioner be made to compensate the respondent with a sum of GH¢8000 e) That the Petitioner be made to contribute GH¢200 for the monthly payment of house rent.  Specifically, Respondent testified that she was indeed warned by Petitioner not to take food from co-tenants but insists that because this was a practice that existed between Petitioner and the said tenants long before she joined Petitioner in the said house, she had no choice but to continue in the said practice which involved the exchange and sharing of food between the tenants in the house with Petitioner’s knowledge and sometimes with his active participation. According to her, it was the abruptness with which Petitioner demanded that she ceases the practice that made it difficult for her to comply.  \r\n Again, in response to Petitioners allegation that she left the matrimonial home unceremoniously and has since refused to return, Respondent explained that she left because of the cruel and inhuman treatment she continuously suffered at the hands of the Petitioner. This included but was not limited to severe beatings and the Petitioner throwing out her belongings anytime they had a disagreement. It was after one such occasion that she travelled to her mother at Asiakwa to treat \r\n3  \r\nthe blood shot eyes she sustained as a result of Petitioner’s beatings that she decided never to return to the matrimonial home or the marriage, for fear of losing her life.  She denied ever committing adultery with one Dada Boat or not caring for the child of the marriage.  According to Respondent, the said Dada Boat is only a former employee of Danex who through her sister, helped her secure a job as a factory hand in the said company.  With regards to the child of the marriage, it is the case of the Respondent that she has not abandoned the child but merely sends him to the said pastor’s house in the mornings to enable him join the pastor’s son who attends the same school as the said child, to school. I have carefully considered the evidence of both Parties and I am of the view that even though Respondent cannot be held totally blameless for the disharmony and misunderstandings in the marriage, it is the violent and physical assaults constantly visited on her by Petitioner that have brought them this far.  For instance, this is what Petitioner had to say in response to questions put to him during cross- examination:  \r\nQ:  I put it to you that when she refused to have sex with you, you beat her mercilessly that is why she left the house to her mothers  \r\nA:  Yes, she refused to have sex with me and I beat her up as a result of her refusal It is also true that she left the matrimonial home as a result. What happened was, I was touching her and she rebuffed my advances, she held my shirt by the collar so when I tried to free myself, my hand touched her and she said I had hit her.  \r\nQ:   I put it to you that you beat her mercilessly, it is not true that you just hit her.  \r\nA:   That is not true.  \r\nQ:   I put it to you that anytime there was a misunderstanding between you and your wife, you do not only beat her but you throw her belongings out of the room.  \r\nA:   It is true but I have something to say, I only did that to scare her.  \r\nI must say that the Respondent sometimes exhibited conduct that I consider unbecoming of a reasonable wife, I am for instance, not impressed by the reason given by Respondent for ignoring Petitioners advice not to serve him food cooked by other tenants, however the above exchange coupled with other pieces of evidence before this court, show the Petitioner up as a violent man given to regular fits of anger. I do not believe Petitioner’s claim that his hand merely touched respondent, as that, to me, was clearly a lame attempt at retracting his earlier admission that he indeed beat up the Respondent.  In any event, Petitioner in my view cannot under any circumstance justify treating \r\n4  \r\nRespondent with such indignity.  From the evidence on record, this particular misunderstanding arose after Petitioner returned home one day demanding sex after having disappeared from the matrimonial home for two months with his whereabouts unknown to Respondent,  and I do not think that one could in fairness have expected Respondent, human as she is, to readily give in to Petitioner’s  demands without any protestations.  \r\nIt is not in dispute that, the parties had at the time of hearing the petition not lived as husband and wife for five years.  It is also not in dispute that Respondent has intimated in no uncertain terms her intention to bring the marriage to an end.   \r\nFrom the averments in the petition, it appears the Petitioner hinges his petition on sections 2(a), (b), (C), (d) and (f) as proof of breakdown of the marriage. Section 2(3) however, states that the court can still refuse to grant a petition even if the court finds any one or more of the facts listed in paragraphs 2a to f proven unless it is satisfied on all the evidence that the marriage has broken down beyond reconciliation.  Petitioner avers in paragraph 8r of his petition that the Respondent has behaved in such a way that he cannot reasonably be expected to live with her. I am however not satisfied on the facts that Respondent has behaved in such away that should make it unbearable for Petitioner to live with her, indeed, on the facts, I find the reverse to be the case and I am strengthened in this view by conduct of Petitioner which involved several attempts made to get Respondent to return to the matrimonial home after she left for Asiakwa.  Respondent indeed, could not, be expected to continually put up with the ill treatment meted out to her by Petitioner.   Petitioner himself admits that it was after he beat up the Respondent that she left five years ago for her mother’s home at Asiakwa and has since refused to return.  I find that it is rather the Petitioner who is in constructive desertion. The black’s law dictionary defines constructive desertion as “one spouse’s conduct that forces the other to leave the marital abode, the actions of the offending spouse must be serious enough that the spouse who is forced out of the home finds the continuation of the marriage to be unendurable or dangerous to his or her safety or wellbeing and finds it necessary to seek safety outside the marital domicile”.  Petitioner does not deny physically or emotionally abusing Respondent and Respondent has testified in this Court that she left the matrimonial home because she considered Petitioner’s conduct a threat to her life and limb.  \r\nI must however commend the Petitioner for the obvious show of remorse and contrition for his actions which I consider sincere. Apart from the unchallenged evidence of the several efforts made at reconciliation by himself and through his numerous emissaries, this Court observed from his demeanour throughout the \r\n5  \r\ntrial that he truly regretted his actions. Unfortunately, this cannot change the fact that it is the Petitioner and none other, who has been the author of his own misfortune.  \r\nThe Petitioner also levels the grave charge of adultery against the Respondent. Petitioner testified that it is the child of the marriage who told him that Respondent currently lived with one Dada Boat. He maintained that this fact was confirmed by his father in law in the presence of Petitioner’s church elders and that the said elders could attest to this fact. Curiously, none of these persons were called to corroborate Petitioner’s assertion. It is settled law that adultery being a matrimonial offence that is grave and weighty ought to be proved strictly even though not necessarily to the standard required in criminal trials. See the dictum of Sarkodee J in the case of ADJETEY V ADJETEY (1973)1 GLR 216.   \r\nI do not think the evidence of Petitioner led in support of his allegations that respondent has committed adultery meets the required legal standard as the same is uncertain. I therefore hold the charge of adultery not proven against Respondent.   \r\nAs regards issues concerning the child of the marriage, this Court at this stage no longer considers it necessary to examine the allegations made by both parties since the evidence on record suggests that the Parties have called a truce on the matter.  I have also declined to go into Respondent’s claims regarding Petitioner’s insistence on having anal sex with her or the claim of Petitioner that Respondent terminated a pregnancy without his consent. This is not only because I am unable, based on the evidence before me, to decide which of the Parties to believe but also because, given the circumstances of this case, I do not think those matters will affect my decision as to whether or not to grant the petition or cross-petition.   \r\nFlowing from the above, the main issue that falls for determination is whether the Petitioner and Respondent are entitled to their respective prayers for a dissolution of the marriage. As already noted in this judgment, the Parties have not lived together as husband and wife for the past five years.  The position taken by Respondent leaves this court in absolutely no doubt that she considers the marriage at an end. Section 2(d) of the act empowers the Court to grant a petition for divorce if it finds that the Parties have not lived as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to the said dissolution. The evidence shows that the Parties had lived apart for a continuous period of about four years prior to the presentation of the petition and the Respondent also consents to the said dissolution. On this account and on account of matters already discussed in this judgment I am satisfied that the marriage between the \r\n6  \r\nParties has broken down beyond reconciliation.  Accordingly, I grant the Decree of Divorce prayed for by Petitioner and consented to by Respondent. The Parties on the 19th of June, 2015 filed terms of settlement and prayed the Court to adopt same. This court declined the said invitation at the time in view of the mandatory requirement imposed by section 2(3) of the Matrimonial Causes Act (SUPRA) that the Court first satisfies itself of the breakdown of a marriage beyond reconciliation before granting a Decree of Divorce.  See also the case of IDDISAH V IDDISAH SUIT NO H1/164/11 CIVIL APPEAL dated 11th November 2011.  \r\n This Court having satisfied itself of the breakdown of the marriage and having decreed a dissolution of the marriage celebrated between Petitioner and Respondent hereby makes the following orders. By consent of the Parties, custody of Shadrach Kwabena Adom is granted to Respondent with reasonable access to Petitioner. The Petitioner is ordered to provide monthly maintenance of GH¢150 for the upkeep of the child of the marriage in addition to the provision of clothing and the payment of school fees and feeding fees charged by the school as well as medical care.  The Respondent should bear the cost of feeding the child outside school hours,  \r\nPetitioner is hereby ordered to settle on Respondent a lump sum payment of GH¢3000 as financial provision.  \r\nDECISION   Marriage dissolved Each party to bear their own costs.                           [SGD]          MRS. AKUA SARPOMAA AMOAH            JUSTICE OF THE HIGH COURT  \r\naey/…            ', 'links/cases/EBENEZER KOFI ADOM VRS COMFORT A. F. BOATENG.pdf', 'Yes', '', '2016', 'high', '', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'BDMC/180/2015', '', '', 'High Court, Accra', '2016-01-19', ''),
(595, 'EDEM AFFRAM \r\nVRS  \r\nBERNARD OWUSU-TWUMASI, \r\nOAK HOUSE COMPANY LTD, \r\nOAK HOUSE GROUP LIMITED,\r\nNANA OBOUR NIMAKO  ', 'RULING  \r\nThis is the ruling of the court in respect of the application filed by the Applicant seeking an order of the court to be joined to the action as 2nd plaintiff under Order 4 Rule 5 of the High Court (Civil Procedure) Rules, C.I 47. In the affidavit in support of the application, the Applicant deposed to the fact that he and the 1st Defendant/Respondent together incorporated the 2nd Defendant company. He averred that he subscribed to twenty five million shares (25,000,000) \r\n2  \r\nin the 2nd Defendant company and he was also named director at the incorporation of the 2nd Defendant company. He avers that he is a member of the 2nd Defendant company as he has never transferred his interest in the company. And hence his prayer to be joined to the suit as 2nd Plaintiff.  \r\nThe Court by an Order dated 26th July, 2016 granted the application. The Defendants/Respondents applied to set aside the Order of the Court joining the Applicant as 2nd Plaintiff on the ground that the affidavit in opposition filed by the Defendants/Respondents was not brought to the attention of the Court to aid the Court to come to a decision on the ascertained facts from both sides.  In this application, the Defendants/Respondents in an affidavit deposed to by their counsel claim that Applicant is not a shareholder of the 2nd Defendant company as by a letter dated the 28th September, 2007 he requested a refund of his capital contribution and same has been given him. Defendant/Respondents say that the Applicant had also voluntarily resigned from his directorship of the company. It is therefore their contention that since the Applicant is neither a Director of the 2nd Defendant company by virtue of his voluntary resignation and had also recovered all the equity he had contributed as a subscriber, he is not a proper party to be joined to the action.  \r\nJOINDER Order 4 rule 5(2) of the High Court (Civil Procedure) Rules states as follows: \r\nAt any stage of proceedings the Court may on such terms as it thinks just either of its own motion or on application \r\n(a) order any person who has been improperly or unnecessarily made a party or who for any reason is no longer a party or a necessary party to cease to be a party; \r\n3  \r\n(b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon to be added as a party”. \r\nThis principle has received judicial blessings in many cases. In COLEMAN v SHANG [1959] GLR 390-409 the court in deciding an application for joinder under the old civil procedure rules held that:  \r\n“The purpose of Order 16 rule 11 is to secure the determination of all disputes relating to the same subject matter without delay, and without expenses of separate actions.” \r\nVAN LARE J.A. AS C.J. cited with approval the dictum of Lord Esher thus;  \r\n"I can find no case which decides that we cannot construe the rule as enabling the Court under such circumstances to effectuate what was one of the great objects of the Judicature Acts, namely, that, where there is one subject-matter out of which several disputes arise, all parties may be brought before the Court, and all those disputes may be determined at the same time without the delay and expenses of several actions and trials. It appears to me that the words of the rule are large enough to allow of the joinder of the British Saw Mills Company as defendants in this case. I think the question arising between them and the plaintiff is a ‘question involved in the same cause or matter'' within the meaning of the rule." \r\nSo, too, in BENTLEY MOTORS (1931) LTD. V. LAGONDA LTD. ((1945) 14 L.J.R. CH. 208 it was held that one of the main objects of the rules on joinder is to enable the Court: \r\n4  \r\n"effectually and completely to adjudicate upon and settle all questions involved so as to render unnecessary multiplicity of proceedings”.  \r\nIn the result, the applicant must be a necessary party whose presence before the Court is a sine qua non for effective determination of all matters in controversy before the court.  \r\nThe rule further enjoins a person applying under the Order to be joined as a party to show his interest in the matter in dispute. The Applicant avers that he is a shareholder and director of the 2nd Defendant company. The Defendant/Respondents contention is that the Applicant has ceased to be a member of the 2nd Defendant company because his equity contribution has been refunded to him. The applicable provision of the Companies Act, Act 179 is section 30 which provides as follows: \r\n(1) The subscribers to the Regulations shall be deemed to be members of the company and on its registration shall be entered as members in the register of members referred to in section 32 of this Code. \r\n(2) Every other person who agrees with the company to become a member of the company and whose name is entered in the register of members shall be a member of the company”. \r\nFrom the Companies Act 1963 (Act 179) and on the case law, there are two modes of constituting membership of a company; one is those persons who subscribe to the regulations of the company for registration and incorporation, and second is those persons who, subsequent to the incorporation of the company acquire shares from the company. See PETER OSEI ASSIBEY v ADEHYEMAN GARDENS LTD & ORS. [2003-2005] 1 GLR 391.  \r\nThe Applicant having subscribed to the Regulations of the 2nd Defendant company is a member of it. His membership is by prescription of law, in that respect once he subscribed to the Regulations he became a shareholder upon the \r\n5  \r\nincorporation of the company. The membership continues until any of the eventualities in S.30 (5) occurs. The provision states that:    \r\n“Membership of a company with shares shall continue until a valid transfer of all the shares held by the member is registered by the company, or until all such shares are transmitted by operation of law to another person or forfeited for non-payment of calls under a provision in the Regulations, or until the member dies”.  \r\nThus the membership of a shareholder can be brought to an end on the occurrence of any of the events stated in S. 30(5) of the Companies Act.  A valid transfer of shares must be done in accordance with the Companies Act and the company’s Regulations and must be registered by the company in order to end the membership of the shareholder transferring his shares. What are the applicable provisions under the Companies Act on the transfer and registration of shares?  The Companies Act allows for company Regulations to provide for the restrictions on transfer of shares of that company. The Act however provides that the transfer shall be by a written transfer in common form- S.95(1) of Companies Act. Thus, there must be an instrument evidencing the transfer.  \r\nThe point is buttressed by S. 98(2) which provides that- \r\n(2) Notwithstanding anything contained in the Regulations of a company or in any contract, it shall not be lawful for the company to register a transfer of shares or debentures unless a proper instrument of transfer duly stamped, if chargeable to stamp duty, has been delivered to the company: \r\nProvided that nothing herein contained shall prejudice any power of the company to register any person to whom the right to any shares or debentures has been transmitted by operation of law. \r\n6  \r\nFrom the sections, it is clear that the Act does not endorse transfer of shares by the means which the Defendants/Respondents are urging on this court. The Defendants/Respondents say that by a letter dated the 28th day of September, 2007 (Exhibit OHC 3), the Applicant demanded a refund of his equity contribution and that by a cheque dated the 16th day of October, 2007 (Exhibit OHC 5) the Applicant was paid. They did not execute any instrument of transfer. Consequently, whatever purported transfer was made is contrary to the Companies Act.  More so, the Companies Act provides clearly that except in a capitalisation issue, all shares issued or taken up must be issued for valuable consideration and that where the shares are given in consideration for services provided S. 42 must be complied with.  The Applicant subscribed to twenty-five million shares; five million shares of which was given to him in consideration of his services during the formation of the company and twenty million shares for which he paid. In the light of S.42, having subscribed to take up twenty-five million shares, his liability to the company is for the value of entire twenty-five million shares and a purported refund of twenty-million cannot end his membership in the absence of a valid transfer all of his shares and registration of same. In the result, the refund made to the Applicant cannot constitute a valid transfer of shares under the Companies Act. It cannot operate to bring an end to the membership of the Applicant.  Defendants/ Respondents contention that by virtue of the refund to the Applicant of his contribution in the company, the applicant’s membership was effectively extinguished is untenable.   \r\nAn important issue has also been raised in the substantive suit and that is the alleged fraudulent change in the shareholding structure of the 2nd Defendant company by the 1st Defendant/Respondent. The Applicant having shown an interest in the shares as a shareholder or otherwise becomes a necessary party \r\n7  \r\nfor the effective determination of that issue before the court. On that score, I think the applicant has demonstrated sufficient interest in the suit and his presence as a party is necessary for the determination of all the issues in controversy. In will order that the writ and statement of claim is amend to capture the presence of the applicant in the action. I make no order to cost.      \r\n           (SGD) Eric K. Baffour, Esq. Justice of the High Court   \r\nRepresentations:  \r\nPlaintiff represented by Kwesi Baffoe Asamoah – Present  Applicant – Present  Dr. Kweku Ainuson for Plaintiff – Present  Joseph Kwadwo Konadu for Applicant – Present    ', 'links/cases/EDEM AFFRAM RULING 1.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'ACC/44/2015', '', '', 'High Court, Acxccra', '2016-11-30', ''),
(596, 'EWURABENA SACKEY, FRANCIS HERBERT SACKEY   \r\nVS.  UNITED BANK FOR AFRICA                                                                                                                     ', 'Per their Writ of Summons filed at the Registry of the High Court, Accra on the 25th March, 2013, and the accompanying statement of claim, the plaintiffs claim against the defendant bank is for; \r\n(a) An unqualified apology for the embarrassment caused to both the 1st & 2nd plaintiffs (b) Punitive and aggravated damages at Thirty Thousand Ghana Cedis (GH?30,000.00) in favour of each of the plaintiff for breach of confidentiality. (c) An Order of perpetual injunction restraining the Defendant, his agents, servants, assigns, representatives from further publishing the personal bank details of both the 1st and 2nd plaintiffs to the general public unlawfully. (d) Cost and (e) Any other relief (s) deemed fit by the Honourable Court. \r\nThe records show that, upon the service of the Writ of Summons and the statement of claim on the Defendant’s Bank on the 3rd April, 2013, notice of appearance was filed on the 10th April, 2013.  This was followed by an eleven (11) paragraphed Statement of Defence on the 23rd April, 2013. \r\n \r\n2 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nPer the records and at the level of application for directions, the below issues were set down for trial on the 5th November, 2013. \r\n(1) Whether or not the Defendants owe the Plaintiff a duty to protect their confidential personal information contained in their document in the Defendant’s custody. (2) Whether the Defendant breached the said duty by exposing such information to a road side bread seller. (3) Whether the Plaintiffs did suffer any damage resulting from the alleged negligent act of the Defendant’s Bank. \r\nThe case of the 1st plaintiff as told to the court on the 14th day of January, 2014, is that she does business between Britain and Ghana.  That she knows the 2nd Plaintiff very well as he is her brother and they both live in House Number. 39 Buleni inn, Accra.   That in the month of November, 2012, she had a call from a lady who asked whether she is a customer of the defendant’s bank and live in House Number. 39, Buleni inn Accra. \r\nIt is her case that, she answered the questions in the affirmative and she then questioned the caller as to where she had the information from and she replied that she had them from a bread seller the plaintiff sold her paper or documents to.    That she then arranged and met the said girl at Osu, Accra in the company of two of her friends.    Further that on seeing her the informant/caller whether asked whether she is so broke to be selling her personal documents.  That when asked of the said caller whether had evidence on what she was telling her, the informant who happens to be from a bread seller confidently pulled out and handed over to her a document which turned out to be a form she filled out in her application form for a Visa Card from the Defendant’s Bank.   That the said form had on it her email address, date of birth, full name, house address, her telephone and accounts numbers and the maiden name of her mother and further that, it also contained her security information.   Witness tendered in evidence the said form and same was accepted as Exhibit ‘A’.  That she at a point relayed this information to the 2nd Plaintiff who advised her to report the incident to the Defendant which she did but was not attended to until the instant Writ was filed.   That the information on Exhibit ‘A’ is confidential because it has \r\n \r\n3 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nthe security code to her account with the Defendant’s Bank, her full name, residential address, date of birth and her mother’s maiden name.    That there is also a security test question and a security answer thereto.    That she says the information contained in Exhibit ‘A’ is confidential because when she was opening the accounts with the Bank, they told her that should a third person or party sight the said Exhibit ‘A’ the Bank should be notified so that they would change the security code as at that date and that the security code has not been changed as at the day and date she was giving evidence in court. \r\nIt is further the case of the 1st Plaintiff that, a few days thereafter she received another call from the informant or caller asking her whether she knows one Francis Sackey and that her answer was in the affirmative, adding that the said Francis Sackey is her brother.    That she personally took those documents from the girl who had them from the bread seller.   That when the 2nd Plaintiff was again told of what had happened, he rushed to the Defendant’s Bank with anger to find out why document filled at the bank should find their way to a bread seller.  The said documents containing the information about the 2nd Plaintiff was also tendered and accepted in evidence as Exhibit ‘B’.   \r\nFurther that on the 16th April, 2012, four (4) of the defendants managers including the Head of the Legal Department met with them in their lawyers’ Chambers and proposed to settle the matter out of court.   That they discussed the terms of settlement and the officers said they were going to get back to them on the 23rd April, 2013, but never heard from the Defendant Bank.   She therefore prayed for the reliefs as endorsed on the Writ of Summons. \r\nOn the 7th day of April, 2014, the 2nd Plaintiff, Francis Herbert Sackey collaborated the evidence of his sister, Ewurabena Sackey to the effect of the circumstances that brought Exhibits ‘A’ and ‘B’ into their possession.    That he later came into contacts with one Felix Quaye the compliance manager of the Bank and narrated to him how their forms filled at the Bank got into the hands of a bread seller and later found their way into the possession of the Plaintiffs.    That the said Felix Quaye advised him to email his complaint \r\n \r\n4 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nto the Defendant’s Bank which he complied.   The said email correspondence was tendered and accepted in evidence as Exhibit ‘C.   That he also had the chance to meet Felix Quaye in the Company of four other managers of the bank whose names he mentioned as Benjamin Adjei Ahulu, Addey Dayor, Marcus and Ellen Muzu to whom he narrated the incident.   That nothing concrete came out of this meeting as the 1st Plaintiff had travelled out of the country and so they agreed to meet the third time which was convened later and this time with the Head of Legal Department, Nana Adwoa Hackman in attendance.    That at the third meeting, the Bank officials requested he returns the documents in issue so that they would change the PIN but this was not complied with as they had decided to institute legal action.    That the Bank officials at that meeting requested to settle the matter out of court if it was money they wanted.    \r\nIt is his case that, the matter was not settled out of court for which reason they are in court.   That the Visa Application Electronic Card is very confidential such that a third person or party can use them to enter into their accounts without any red flag been raised.  Further it is the 2nd plaintiff’s case that, they have suffered damage by the breach of the confidential agreement which of course is an embarrassment to them. \r\nOn the 22nd June, 2015, Raymond Addae Acka Egbele, a Representatives of the Defendant Bank testified to the effect that, he is the Head of Electronic Supervising Division of the Bank; and that the plaintiffs are customers of the bank.   That the Plaintiffs are making a claim that the Electronic Visa Application Forms that they requested and filled out and deposited in the custody of the defendant were found in the possession of a bread seller and as result of which they alleged their confidential information has been made public; which according to the Plaintiffs’ has caused embarrassment to them and have brought the Bank to court to claim some compensation.   That when they officially heard the case of the Plaintiff, the defendant Bank suggested to the Plaintiffs that, they would assist them to change the details of the alleged forms in order to prevent any possible issue on financial compensation.     That the Bank further suggest to change their details including their PIN \r\n \r\n5 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nbut the Plaintiffs declined.    Further that, Exhibits ‘A” and ‘B’ have the names, phone numbers and the accounts of the Plaintiffs.    \r\nIt is also the case of the Defendant per Representative that, the Plaintiffs were interested in financial compensation.  That the Defendant Bank does not see the said information as confidential and yet the Plaintiffs claim GH?30,000.00 each for allegedly exposing their information to the public.    That initially the Bank only asked them to assist it change their details but as the Plaintiff insisted on monetary compensation, the Bank met them to agree on a token sum in the range of GH?3,000.00 but this was turned down.    That all attempt to settle the matter out of court failed because of the Plaintiffs firm stand to take financial compensation of GH?30,000.00 each.   The Bank per witness deemed paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 17 and 18 of the statement of claim of the Plaintiffs.     That the Bank does not know the 1st Plaintiff as an International Business Woman or as a Financial Consultant and so it has not injured the Plaintiffs in anyway, form, manner and has also not defamed any of the Plaintiffs’ in any form for which reason it is their view that, the Plaintiffs are not entitled to the reliefs as endorsed on the Writ of Summons. \r\nNow, and as by Law established, a person who makes a claim in any civil case owes it a duty to adduce sufficient and credible evidence to prove his/her case.     In fact Section 11 (4) and 12 of the Evidence Act 1975 (NRCD 323) states that, the standard of proof in all civil cases is one of “a balance of probabilities”.   This was stated and cited with approval by the Supreme Court in the case of ADWUBENG VRS DOMFEH [1996 – 97] SCGLR 660 at page 662 as follows; \r\n“By Section 11 (4) and 12 of the Evidence Act (NRCD 323) the standard of proof in all civil cases is proof by the preponderance of probabilities no exceptions were made” \r\nAgain, In the case of TAKORADI FLOOR MILLS VRS SAMIR FARIS [2005- 2006] SCGLR 882 at page 900, the Supreme Court captured the trite position of the Law relating to the burden of proof.  They stated as follows:- \r\n \r\n6 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\n          “To sum up this point, it is sufficient to state that, this being a civilian suit, the rules of                            evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12 (2) of the Evidence Decree 1975 NRCD 323).  Our understanding of the Rules in the Evidence Decree, 1975, on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival version and it deserving of a favourable verdict”.  \r\nIt is therefore my view that, the yardstick for determining who takes the day in this suit is the quality and credibility of the evidence the party adduces. \r\nAt the close of the pleadings, three issues were set down for trial and the first is “whether or not the defendant owes the Plaintiffs a duty to protect their confidential personal information contained in their documents in the defendant’s custody.   Exhibits ‘A’ and ‘B’ are the VISA International Electronic Debit Card Application Form in respect of Miss Ewurabena Sackey and Mr. Francis H. Sackey respectively provided for filling by the UNITED BANK FOR AFRICA.  The two exhibits have the following information about the then applicants now the plaintiffs in the instant suit. \r\n1. Their full names 2. Home or residential address 3. Postal address 4. Both land and mobile telephone numbers 5. Accounts numbers 6. Test question and answer (under column of security information) \r\nOn each of Exhibits ‘A’ and ‘B’ and immediately below the security information bar or block is an agreement between the UNITED BANK FOR AFRICA, the then applicants and the plaintiffs in the instant suit.   By the agreement the applicants and the plaintiffs herein have subjected themselves to the Defendant banks VISA Debit Card Terms and Conditions as stated therein.  The question before the court is, as contained in issue (1) \r\n \r\n7 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nstated above.  The Defendant’s Bank also by its business nature is to collect and keep the information about its customers secretly and confidentially so that should any red flag be raised in respect of any such information as in the instant case, those documents could be easily traced and referred to.      If also, for any other reason (s) the Defendant’s Bank decides to do any other business including the issuance of Exhibits ‘A’ and ‘B’ as in the instant suit, it equally owes it a duty to keep copies that remain with it secretly and confidentially to the benefit of the Depositor/Customer and the Bank.    In fact it is an implied term of contract between the Applicant/Customer (s) who for the purpose of this case are the Plaintiffs herein and the defendant Bank to secretly and confidentially keep their respective information in the Bank’s custody.    This contract is entered into between the suitors immediately the applicants who are the plaintiffs herein filled and deposited their personal information Forms with the bank official (s) in charge of such duties.    \r\nInfact the Banking Act, 2004, (Act 673) and the Data Protection Act, 2012, (Act 843) establish the Defendant Bank’s duty to the Plaintiff.     Section 84 of Act 673 provides as follows and I quote: \r\n      “84 A director, an official or any other employee of a bank shall not disclose an information relating to the affairs of a customer with that Bank except where the disclosure of the information is by Law or a Court of competent jurisdiction or the Bank of Ghana or is authorized by the customer or is in the interest of that Bank”. \r\nIn the instant suit even though the Defendant objected to the tendering in evidence of Exhibits ‘A’ and ‘B’ they did not deny the fact that, the said exhibits were the documents that were filled and deposited in the Bank’s custody for safe keeping by the Plaintiffs herein, and without any authorization from or by a Court, the Bank of Ghana or the customer (s), the Applicants/Plaintiffs personal information forms with the defendant found their way to a bread seller on the street of Accra. \r\nAgain, section 17 (g) of the Data Protection Act 2012, (Act 843) provides as follows and I quote; \r\n \r\n8 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\n  17 “A person who process date shall take into account the privacy of the individual by applying the         following principles;- \r\n(g) “Data security safeguards” \r\nIn the instant suit, there is no dispute to the fact that Exhibits ‘A’ and ‘B’ were deposited with the Defendant’s Bank by the Plaintiff and yet they found their way to this court via a bread seller in or on the busy street of Accra.    The implication is that, the Defendant Bank either has no data security safeguards or neglected to apply them to the benefit of the Plaintiffs in the instant suit.    \r\nIt is therefore my view that, issue (1) above is resolve.   Issue two (2) is “whether the Defendant breached the said duty by exposing such information to a road side bread seller”?   The records and evidence before the court has it that Exhibits ‘A’ and ‘B’ were filled by the Plaintiffs and submitted to the Defendant for VISA Card.   The said Exhibits ‘A’ and ‘B’ are now with the court and no longer in the possession of the Defendant’s Bank.   The bare fact is that, the two exhibits found their ways into the hands of a bread seller on the street of Accra.    The meaning is that, the y have breached the Provisions of Section 84 of Act 673 of 2012 and Sections 17 (g) and 18 (a) of Act 843, the Banking Act and Data Provision Act respectively of 2012; for which reason they have breached their duty by exposing the information of the Plaintiffs to a bread seller.   Issue two is also resolved.    The third issue is “whether the Plaintiffs did suffer any damages resulting from the alleged negligent act of the defendant?   The Plaintiffs have stated in their respective evidence to the court the distress and anxiety that they went through in running after the officials of the Defendant Bank to report the incident to them.   They also mentioned the series of meetings that they had with the officials of the defendant Bank which yielded no positive result.   Time and money were spent on the meetings held and the filing of the instant suit.   The journey to and from court by the plaintiffs with the attendant payment of legal fees are all damages that the plaintiffs have suffered as a result of the defendant Bank negligent or wilful act by exposing their personal information to third parties who are not expected to have access to the information as contained in Exhibits ‘A’ and ‘B’. \r\n \r\n9 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nI am of the view that, as to whether the Plaintiffs are entitled to any compensation, the answer lies in Section 43 (1) and (2) of the Data Protection Act, 2012, (Act 843) which states and I quote “43 (1) where an individual suffers damages or distress through the contravention by a Data Controller of the requirement of this Act, that individual is entitled to compensation from the Data Controller for the damage or distress”. \r\n(2) In proceedings against a person under this Section, it is a defence to prove that the person took reasonable care in all the circumstances to comply with the requirements of this Act”. \r\nPer the evidence on record, the Court finds as a fact that, Exhibits ‘A’ and ‘B’ filled in the office of the Defendant Bank by the Plaintiffs herein contain vital personal information of the Plaintiffs.    \r\nIt is also a fact that, the aforementioned Exhibits found their way into the hands of the Plaintiff via a bread seller and a customer of the bread seller described here as the caller or informant.      \r\nIt is further a fact that the discovery of Exhibits ‘A’ and ‘B’ in the possession of the bread seller and her customer put fear, anxiety and distress into the plaintiffs which made them to run after the Defendant Bank for one or the other solution.   The Defendant Bank per its representative in this court never denied the fact that, Exhibits ‘A’ and ‘B’ containing very vital personal information of the Plaintiffs were not left in their custody or control for protection and safe keeping. \r\nJudging therefore, from the evidence on record and the facts of findings made, I am of the view that, the Defendant’s Bank has been negligent in its handling and control of Exhibits ‘A’ and ‘B’ which contain vital personal information of the plaintiffs that have been deposited in the care and custody of the bank for safe keeping.   \r\nI therefore hold the view that, the plaintiffs have been able to persuade me to belief that, their side of the evidence on record is more probable than that of the defendant for which \r\n \r\n10 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nreason they are entitled to reliefs (a), (b), (c) and (d) as endorsed on the Writ of Summons and the accompanying statement of claim filed on the 25th March, 2013. \r\nConsequently, the Court enters Judgment for the Plaintiffs on the said above mentioned reliefs and Order as follows; \r\n(a) The Court orders the Defendant Bank to within 14 days from the date of this judgment (i.e. 29th April, 2016) to render an unqualified apology in writing to the Plaintiffs for the embarrassment caused to them.  (b) On the issue of damages, the Court takes into consideration the panic, anxiety, fear, distress and also the time period of litigation and of course the expenses made in litigating over the matter.   In the circumstances of this, the Court holds the view that, cash the of sum GH?20,000.00 (Twenty Thousand Ghana Cedis only) to each of the 1st and 2nd Plaintiffs is most appropriate as compensation and it is accordingly ordered. (c) It is further ordered that, the Defendant’s Bank, its agents, servants, assigns, representatives and any other person acting on its behalf are restrained from further publishing the personal Bank details of the 1st and 2nd Plaintiffs to the general public unlawfully. (d) Cost of GH?5,000 to the Plaintiffs as against the Defendant’s Bank. \r\n                 \r\n                       (SGD.)         JUSTICE E. K. MENSAH         JUSTICE OF THE HIGH COURT       \r\n               LAWYERS: ELIS QUARSHIGA FOR THE PLAINTIFFS PRESENT NUTSIFAFA NUTSUKPUI FOR THE DEFENDANT PRESENT \r\n \r\n11 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\n                                                                                                                                            ', 'links/cases/EWURABENA SACKEY AND ANOR VS UNITED BANK FOR AFRICA.pdf', 'Yes', '', '2016', 'high', '', 'E.K. MENSAH, J', 'Civil', '', 'BC.338/2013', '', '', 'High Court, Accra', '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
(597, 'THE REPUBLIC        \r\n    VRS  \r\n1. MRS CHARLOTTE OSEI,  \r\n2. THE ELECTORAL COMMISSION,  \r\nEX PARTE DR. PAPA KWESI NDUOM   ', ' \r\nRULING  \r\nI have before me an application in the nature of judicial review seeking the following reliefs:  One, certiorari to bring to the court the decision of the Respondents dated the 10th of October, 2016 which disqualified the Applicant as a presidential candidate for the 2016 general elections for the purpose of having same quashed.   \r\nTwo, an order of prohibition to be directed at the Respondents from proceeding with balloting for positions in the presidential elections.  \r\nAnd three for further orders directed against the 1st Respondent in her capacity as Returning Officer for Presidential election to grant the Applicant the opportunity to \r\n \r\n2  \r\namend and alter the one anomaly found in his nomination papers as well as accept his nomination papers as amended or altered to enable him contest as a presidential candidate for the 7th of December, 2016 elections.   \r\nThe grounds upon which the Applicant mounts this application has been stated by him to be anchored on:  \r\n1. Breach of the rules of natural justice (audi alteram partem)  \r\n2. Error apparent on the face of the record.  \r\nAs an application of this nature launched under Order 55 of the High Court (Civil Procedure) Rules C. I. 47 must of necessity be supported by an affidavit deposed to by or on behalf of the Applicant, the factual basis upon which this application has been made has fully been set out in the Applicant’s affidavit of 14th October, 2016.  \r\nI find it necessary to state the essential matters relied on by the Applicant in his thirtythree (33) paragraph affidavit in support. Applicant states that he was elected at the convention of the Progressive Peoples Party (PPP) as its Presidential candidate to contest for the upcoming elections for 2016. That the Respondents, who are mandated by law with the responsibility for the conduct of the elections opened nominations for which he duly picked nomination forms to contest for the office of the President of the Republic.  \r\nApplicant notes that the Respondents announced that it would receive the completed nomination papers on the 29th and 30th of September, 2016 and included the specific hours that persons who had evinced an intentions of contesting for the office of President were to submit the nominations papers. Applicant further claim that he dutifully followed \r\n \r\n3  \r\nthe instructions of the Respondents and submitted his forms on the 30th of September, 2016 only to hear ten clear days later on the 10th of October, 2016 at a press conference organized by the Respondents, that he has been disqualified as a presidential candidate on the basis that his nomination papers had one subscriber endorsing Applicant’s forms in two different districts; making the Respondents to conclude that Applicant did not have the requisite number of subscribers required by law to support the nomination.  \r\nTo Applicant the action of the Respondent to receive the forms only within the last two days of the nomination period meant that the Respondents have denied him the right afforded him by the law to have been given a hearing before a decision was taken regarding the competence of his nomination papers and hence the prayer for the invocation of the supervisory jurisdiction of the High Court.  \r\nThe Respondents have ardently resisted the application of the Applicant on the ground that it is baseless and undeserving of the reliefs he seeks from the court. In her affidavit in opposition deposed to by the 1st Respondent, she claims that by law she was to provide an opportunity for amendment to forms within the nomination period and that she concedes that the Commission indicated that it would receive the nomination forms on the 29th and 30th of September, 2016; nonetheless the rules regulating the conduct of the elections states that the processes of nomination is concluded by close of day for nomination. And that the Applicant, if it was desirous of taking advantage of the rules, by having the errors on his forms pointed out to him to amend, should have disregarded the notice the Commission gave for the submission of the forms on the 29th and 30th of September and instead submit his forms earlier enough for his errors to have been pointed to him.  \r\nAnd besides, even if the Applicant purported to have relied on the notice issued regarding the two specific dates of 29th and 30th for the submission of his forms, then the Applicant \r\n \r\n4  \r\nvoluntarily assumed the risk associated with the late submission of forms.  \r\n1st Respondent, again, claim that Applicant by his own showing has admitted that one subscriber subscribed in more than one district and the nomination forms of the Applicant accordingly did not comply with the law and the decision to declare as invalid the forms of the Applicant was proper and in accordance with the rules. To Respondents, the Applicant had duly been given a proper hearing which came after his disqualification wherein the Applicant admitted knowledge of the criminal subscription to his nomination form and concludes, therefore, that the Applicant had not acted fairly to deserve the exercise of the discretionary power of the court in his favour.  \r\nPRELIMINARY LEGAL OBJECTIONS The 1st Respondent in paragraph 6 of her affidavit in opposition gave indication that the application was incompetent and had preliminary legal objections to raise. Learned counsel, in his statement of case and in his vova voce submission before the court, has raised what I deem to be a hydra headed preliminary legal objections to the propriety of the application before the court. The court can proceed to the merits of this application only after it has determined the preliminary legal objections.  \r\nThe first preliminary objection raised is to the effect that the Applicant has invoked the jurisdiction of the court by the wrong process, as to counsel for Respondents, the correct process for the Applicant to have approached the court was a petition and not an application for judicial review. Counsel support his submission by Regulation 9(3) and (4) of the Public Elections Regulations, 2016 (C.I.94) which states that:  \r\n“Where candidate fails to comply with sub regulation (2), the Returning Officer shall consider the nomination paper of the candidate as invalid and shall \r\n \r\n5  \r\n  (a) Endorse and sign on the nomination paper the reasons for that decision; and   \r\n(b) Inform the Commission”.  \r\nAnd it is after that the Commission shall take a decision on the matter within seven days. Counsel for Respondent argues that the option available to a candidate who is aggrieved by the decision of the Commission is to be found in Regulation 9(5) which states that:  \r\n“This regulation shall not prevent the validity of a nomination to be questioned on an election petition”.  \r\nOne needs a careful reading of the basis for the Applicant being in court in order to appreciate whether the Applicant falls within Regulation 9(5) of C. I 94 as to compel him to commence his action by petition. Respondent claim that Applicant has only invoked the jurisdiction of the court because 2nd Respondent invalidated his nomination paper, thereby disqualifying him. To appreciate the nature of this application in this manner, with respect, is to habour a limited appreciation of the entire reasons why the Applicant has ran to the court. Applicant claim or question, as far as I understand his application, that Respondent is enjoined to have given  him a fair hearing before the close of nomination period, if there was one, to make any amendment or alteration necessary, to his nomination forms before any decision to disqualify him was made. If the Applicant was not alleging any procedural impropriety but only that the decision for his disqualification on the merits was wrong, then, I think, the correct procedure would have been by the mode spelt out under Regulation 9(5) of C. I. 94, that is through a petition.  \r\nIt is, therefore, my view that commencing an action by way of petition spelt out in \r\n \r\n6  \r\nregulation 9(5) of C.I 94 is when an applicant challenges the grounds of his disqualification on the merits and not when a disqualified candidate seeks to invoke the supervisory jurisdiction because of a procedural impropriety. See the following cases: REPUBLIC v HIGH COURT (CRIMINAL DIVISION); EX PARTE FRANCIS ARTHUR (Unreported) judgment of the Supreme Court dated 28th July, 2016; J5/29/16; AWUNI v WEST AFRICAN EXAMINATION COUNCIL [2003-2004] SCGLR 471.  \r\nWhiles writing this ruling, my attention was drawn to the case of REPUBLIC v NATIONAL ELECTORAL COMMISSION & REBECCA ADOTEY; EX PARTE GEORGE AMOO [13/7/2000] where the Court Appeal per Twumasi JA noted at page 5 of the judgment that where the legislature has provided a special procedure one cannot by pass it to litigate election results by prerogative writs. That case dealt with a party who had commenced an action by petition from the High Court all the way to the Supreme Court and whiles the final appeal was pending at the Supreme Court he decided to take the alternative route of invoking the prerogative writs of the High Court. The learned Judge correctly appreciated the issue in that case, when he stated as follows, that it was not opened to a Judge to assume fresh jurisdiction under the cloak of an application for prerogative orders in a disputed election results for which an election petition had previously been filed. That in itself amounted to an abuse of the judicial process. Ex Parte Amoo, is therefore, not an omnibus authority, to argue that this court is restrained from proceeding to examine this application as not being the right procedure for approaching the court.   \r\nThe second preliminary legal objection, I glean, is that even if the Applicant had come by way of petition, his cause of action would still not have accrued, and that having recourse to the court by way of petition is available only after the conduct of the elections. Counsel supports his submission with the cases of REPUBLIC HIGH COURT, SUNYANI, EX \r\n \r\n7  \r\nPARTE COLLINS DAUDA (BOAKYE-BOATENG INTERESTED PARTY) [2009] SCGLR 447; REPUBLIC v HIGH COURT, KOFORIDUA, EX PARTE ASARE (BABA JAMAL, INTERESTED PARTY) [2009] SCGLR 460.  \r\nI think, again with deep respect, counsel’s submission is gravely misconceived. The cases cited deals with the challenge to the validity of an election to Parliament under section 16 of the Representation of the Peoples Law, 1992 (PNDCL 284) which can only be questioned by a petition. The time for the presentation of a petition has been stated under section 18 of the said Law to be within 21 days after the publication in the Gazette of the results of the election. Counsel cannot stretch the time period given by the law under PNDCL 284 to mount a challenge questioning the validity of the election of a candidate as a member of Parliament to encompass an allegation of a challenge of a person regarding a breach of a procedural rule under C.I 94. In any case, I have found that approaching the court, as in this case as the Applicant did, is not by way of petition and the subsequent argument of needing to wait until after the elections is a non sequitor.  \r\nThe third in the trilogy of the preliminary legal objections launched by counsel for the Respondents is founded on an alleged non-compliance with the formal requirements for judicial review. Counsel for respondent relies on what the Rules say an application for judicial review should comply with under Rule 4 of Order 55 of the High Court (Civil Procedure) Rules, C.I. 47 which states as follows:  \r\n“Mode of Application  \r\n(1) An application for judicial review shall be made to the High Court by motion  \r\n(2) The motion shall be supported by an affidavit by or on behalf of the applicant which \r\n \r\n8  \r\nshall contain the following particulars:  \r\n(a) The full name, description and address for service of the applicant (b) The facts upon which the applicant relies;  \r\n(c) The relief or remedy sought by the applicant and the grounds on which he seeks the relief or remedy; and  \r\n(d) The full name, description and address for service of the person directly affected by the application”.  \r\nCounsel’s submission is that the above detailed information were found in the motion paper of the applicant but not in the affidavit, and this to him is fatal as the rules mandates that the information should rather be contained in the affidavit and not the motion paper as the Applicant had done.   I concede that the rules mandates an applicant to state the particulars required under Rule 4 of order 55 of C. I. 47 in the affidavit. Having put those particulars not in the affidavit but in the motion paper; what then is the net effect. Counsel for Respondent argues that this slip should lead to the dismissal of Applicant’s application before the court. I am unable to accede to this invitation by counsel for Respondent for the dismissal of the application and the reasons of the court are as follows:  \r\nIt is trite that where a step taken by a party to a proceedings is fundamentally defective such a defect or error is beyond the curative and redemptive powers of the court. See REPUBLIC v HIGH COURT, KUMASI; EX PARTE ATUMFUWA [2000] SCGLR Beyond that the failure to strictly comply with a procedural rule will not lead to an \r\n \r\n9  \r\nautomatic dismissal of a suit due to the saving grace of Order 81(1) of C. I. 47 which notes that the failure to comply with the requirements of the Rules, whether in respect of time, place, manner, form or content shall not nullify the proceedings. I understand the authoritative pronouncement of Dr. Date-Bah JSC in the case of REPUBLIC v HIGH COURT; EX PARTE ALLGATE CO LTD (AMALGAMATED BANK LTD) INTERESTED PARTY [2007-2008] SCGLR 1041 to mean this: that all breaches of the Rules of court are curable and may be waived by the court in the exercise of its discretion except three main irregularities that cannot be waived. These are:  \r\ni. A breach or a violation that borders on want of jurisdiction of the court. ii. A breach of a statutory provision or an enactment other than a breach of the rules of court iii. A breach of any of the constitutional provisions. See page 1050 of the Ex Parte Allgate case supra.   \r\nThe question I ask myself is does the violation that counsel for the Respondent raises fall within any of the three categories of exceptions that are beyond the curative powers of the court? The answer is a big no. Following Ex Parte Allgate the decision in Ex Parte Dr. Kofi Asare, supra followed the same jurisprudential thought. And even before the advent of the C.I 47 the Supreme Court had exercised similar functions in the case of NIKOI OLAI AMONTIA IV (SUBSTITUTED BY TAFO AMON II v AKOTIA OWORSIKA III (SUBSTITUTED BY LARYEA AYIKU III [2005-2006] SCGLR 637 where the court cited with admiration the dictum of Apaloo J.A (as he then was) in the case of ABDILMASIN v AMARFI [1972] 2 GLR 414 at 422 as follows:  \r\n“Nobody has a vested right in procedure and modern notions of justice require that a court should do substantial justice between parties unhampered by technical \r\n \r\n10  \r\nprocedural rules”.  \r\nI cannot rest this point without making reference to the case of HALLE & SONS v BANK OF GHANA & ANOR [2011] 1 SCGLR 378I wherein their Lordships noted in emphatic terms that:  \r\n“Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of a handmaid rather than a mistress, and the court ought not be so far bound and tied by rules, which are after all only intended as a general rules of procedure, as to be compelled to do what would cause injustice in the particular case”.  \r\n See also cases of OPOKU & ANOR (NO 2) v AXES CO LTD. [2012] 2 SCGLR 1214; BOAKYE v TUTUYEHENE [2007-2008] SCGLR; REPUBLIC v HIGH COURT, ACCRA; EX PARTE GHANA MEDICAL ASSOCIATION (ARCMANNAKUMMEY INTERESTED PARTY) [2012] SCGLR 768.  \r\nI will hold and conclude on this point that the contention of counsel for the Respondents is an anaemic technical legal point bereft of any merit or substance and same is accordingly dismissed.   THE SCOPE OF THE SUPERVISORY JURISDICTION OF THE HIGH COURT It is necessary for the purposes of clarifying the perimeters for the invocation of certiorari and prohibition that I set out the law on applications of this nature before dealing with whether the Applicant has made a good case for the reliefs he seeks from the court.  \r\n \r\n11  \r\nThe Supreme Court in defining the ambit and scope of certiorari application in the case of REPUBLIC V HIGH COURT, SEKONDI, EX-PARTE AMPONG AKA AKRUFA KRUKOKO I (KYEREFO III AND OTHERS – INTERESTED PARTIES) [2011] 2 SCGLR, 716 AT 722 noted as follows on the remit of certiorari applications:  \r\n“An order of certiorari, it is trite learning, is a discretionary remedy granted on grounds of excess or want of jurisdiction and or some breach of a rule of natural justice”.  \r\nIn the case of REPUBLIC v CAPE COAST DISTRICT MAGISTRATE GRADE II; EX PARTE AMOO [1979] GLR 150 CA Apaloo CJ noted as follows on certiorari applications: “As is well known, the remedy of certiorari is a useful tool in aid of justice and ought to be used to correct defects of justice whether they arise from illegality, fraud, breach of the rules of natural justice, error on the face of the record and the like.  I am not even prepared to say that the category of cases in which this useful remedy can or should be used is closed.  There is no reason why I should stifle the development of the law by any such assertion”  \r\nAnother better rendition of the scope of certiorari was spelt out by the Supreme Court in its recent decision of REPUBLIC v HIGH COURT, ACCRA; EX PARTE THE CHARGE D’AFFAIRS, BULGARIAN EMBASSY; (Unreported) Suit No J5/34/2015 dated the 24th Feb., 2016; wherein the court noted as follows:  \r\n“It is well-settled that certiorari will be granted to quash a decision of a court that has been made without jurisdiction or in excess of jurisdiction or where there is an error of law apparent on the record that makes the decision a nullity.  Certiorari \r\n \r\n12  \r\nwill also be granted to quash a decision given in breach of a rule of natural justice”.  \r\nIn the case of TEMA DEVELOPMENT CORPORATION & MUSAH v. ATTA BAFFOUR [2005-2006] SCGLR 121, the Supreme Court held, per Wood JSC (as she then was) quoting from the judgment of Lord Diplock at page 949 of the report in the case of COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS v. MINISTER FOR THE CIVIL SERVICE [1984] 3 All. ER 935 of the ambit of judicial review noted as follows that:   “To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either (a) by altering rights or obligations of that person which are enforceable by or against  him in private law or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and  which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn….  \r\nFor a decision to be susceptible to judicial review the decision-maker must be empowered by public law … to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law \r\n \r\n13  \r\nwith executive powers, which have one or other of the consequences mentioned in the preceding paragraph’.  \r\nIn the English case referred to by the Supreme Court in the TDC case, Lord Diplock identified three broad categories of acts amenable to judicial review. The first is illegality. That is the person who takes a decision in the performance of his public function must understand correctly the law that regulates his decision making power and be careful to give effect to the law. The second is irrationality otherwise now referred to as the Wednesbury unreasonableness. This is in respect of a decision taken of a public nature and is so outrageous in its defiance of logic or of accepted moral standards that no reasonable person would have arrived at the decision. The third comes under the rubric of procedural impropriety or failure to act with procedural fairness towards a person who is affected by the decision taken. These principles can also clearly be found in page 15 of the work “Judicial Review of Administrative Actions” (5th Ed) S & M London. See also the unreported ruling of my brother Asiedu J. sitting at the Fast Track Division of the High Court in ALBERT ANTHONY AMPONG v ATTORNEY – GENERAL AP 95/2009 dated 2nd December, 2009.  \r\nThe Applicant no doubt has triggered the supervisory jurisdiction of the High Court under article 141 of the Constitution, where the Constitution grants power to the High Court over all lower courts and lower adjudicatory bodies in the exercise of that jurisdiction to issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers. Section 16 of the Courts Act, 1993, Act 459 echoes this powers granted to the High Court under article 141 of the Constitution. The powers of the court is given a comprehensive boost under article 23 of the Constitution which states as follows: \r\n \r\n14   \r\n“Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other Tribunal”  \r\nThat the actions of the Respondents in the performance of their official functions is amenable and within the scope and remit of the exercise of the supervisory jurisdiction of the High Court if the acts violates any of the known principles I have distilled supra. See ENEKWA & ANOR v KWAME NKRUMAH UNIVERSITY OF SCIENCE & TECHNOLOGY (KNUST) [2009] SCGLR 242.  \r\nHaving set down the perimeters of the law, does the grounds of complaint of the Applicant meet the standard set by law? The reliefs Applicant seeks is based on the grounds of breach of natural justice (audi alteram partem rule) and two, error apparent on the face of the record. Has the Applicant demonstrated any of these grounds to the court to be entitled to the issuance of certiorari and prohibition? I will prefer to deal with the ground of error apparent on the face of the record first before turning to the audi alteram partem rule of natural justice.  \r\nERROR APPARENT ON THE FACE OF THE RECORD  What precisely is an error apparent on the face of the record? There seems not to be an   authoritative pronouncement yet from our courts, at least, my research did not yield one. But it does appear that the phrase does not lend itself to easy definition and error apparent on the face of the record cannot be established with a degree of certainty and mathematical precision. There is some degree of latitude to be determined on case by case basis on what will constitute an error apparent on the face of the record. What is clear, \r\n \r\n15  \r\nhowever, is that an error cannot be deemed to be apparent on the face of the record, if one needs to journey beyond the scope of the record to determine whether the decision impugned is correct or not. The record, upon examination at first glance, must strike one and need no long arguments and submissions to establish it. The error must be blatant and visible. I am persuaded by the position given in the Indian case of BATUK VYAS v SURAT MUNICIPALITY AIR [1953] BAM 133 where Chagla CJ noted as follows:   “No error can be said to be apparent on the face of the record if it is not manifest or self-evident and require an examination or argument to establish it”.  \r\nThe second case I find that determined what an error apparent on the face of the record mean is from a decision of the House of Lords in the case of BALDWIN & FRANCIS LTD V PATENTS APPEAL TRIBUNAL [1959] A.C. 663, which dealt with patent action under section 9 of the Patent Act of UK, 1949 stripping the right of appeal against the decision of the Patent Appeals Tribunal except in the invocation of certiorari. The owner of a prior invention brought an application to quash the decision of the Patent Appeal Tribunal which had reversed the call of a superintendent examiner, that an application of a new invention would involve the reference to a prior invention. The owner of the prior invention invoked the supervisory jurisdiction of the House of Lords, that there was an error apparent on the face of the record and invited their Lordships to compare the two specifications. The court in rejecting this invitation noted at page 674 that:  \r\n“Here error cannot be detected simply by comparing two phrases in the judgment of the tribunal. Before error could be found the House of Lords would have to construe the relevant specification, a document addressed to technical experts, \r\n \r\n16  \r\nwhich cannot be construed without explanations from technical experts. If in order to detect the error the House of Lords would require the help of technical experts, it is a contradiction in terms to say that an error of law appears on the face of the judgment…. In considering what is the record the matter must be looked at quite strictly …”    It further noted that: \r\n“The court should take care that on an application for certiorari it does not go behind the face of the record and decide a point of mixed fact and law. The error on the face of the record must be palpable and apparent. The record, according to Blackstone''s definition, is what the inferior tribunal keeps "for a perpetual memorial and testimony" of its proceedings”  \r\nThe final case on this point is the case of ACIT v SAURASHTRA KUTCH STOCK EXCHANGE LTD C/A NO. 1171 OF 2004 dated September, 15, 2008 the same Indian Court described an error apparent on the face of the record in the following terms:  \r\n“A patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it can be said to be an error apparent on the face of the record…”  \r\nThe record that Applicant complains about and seek to be quashed is Ex DPKN3, dated the 10th of October, 2016 and perhaps that part of page 11 of Ex DPKN2 that relates to the disqualification of the Applicant. Exhibit DPKN3 is a letter written to the Applicant by 1st Respondent in her capacity as the Returning Officer for the 2016 presidential elections. She informs the applicant of the regret of 2nd Respondent’s inability to accept \r\n \r\n17  \r\nthe nomination paper of Applicant because one subscriber, Richard Aseda endorsed Applicant’s form in two different districts.   \r\nTaking Ex DPKN3, it would be difficult to conclude, without admitting further evidence and arguments that there is something palpably wrong with Ex DPKN2. And as there is the need for admission of further evidence and arguments to determine error, if any, I find and I am persuaded that the second leg of Applicant’s challenge to the decision of the Respondents that there was an error apparent on the face of the record has not been made out.  \r\nAUDI ALTERAM PARTEM RULE OF NATURAL JUSTICE I now turn to the first and main ground that Applicant anchors his application to invoke the supervisory jurisdiction of the court. That is the denial by the Respondents to the Applicant of a fair hearing before the announcement that he has been disqualified as a presidential candidate on the ticket of the PPP. Applicant’s arguments oscillate from nonprovision by Respondents of a nomination period through one where he argues that even if a nomination period was provided the time allotted the Applicant was unreasonable and breached Regulation 9(3) of C. I. 94 to one that the failure by Respondents to grant him a hearing before disqualification before the closure of the nomination period was bad in law and sinned against the audi alteram partem rule.   \r\nI think Regulation 9(1)(2)(3) and (4) of C. I. 94 would be very relevant and I find it useful to reproduce same here. It states as follows:  \r\n“9. (1) Whenever the nomination paper and the statutory declaration of a candidate are delivered and the deposit is paid in accordance with these Regulations, the candidate \r\n \r\n18  \r\nshall be considered to stand nominated, unless proof is given to the satisfaction of the Returning Officer of the candidate’s death, withdrawal or disqualification.  \r\n(3) The returning officer shall inform a candidate that the candidate’s nomination is invalid where  \r\n(a) The particulars of the candidate or the persons subscribing to the nomination paper are not as required by law; or  \r\n(b) The nomination paper is not subscribed to as required by law, and    shall give the candidate the opportunity to make amendments or any alteration necessary, within the stipulated nomination period”.[emphasis mine]  \r\nThe 9(3) deals with the steps that the Respondents would have to take after scaling 9(1) and (2).  \r\nThe Regulation 9 must be read in tandem with the prior provision founded under Regulation 7 of the same C.I 94 that spell out the details that should be contained in the nomination paper of a candidate vying for the highest office of the land. It states that:  \r\n“7. (1) A candidate for election as President shall be nominated on a separate           nomination form in a manner determined by the Commission.  \r\n    (2) The nomination form for each candidate in an election for President shall  \r\na) be signed by the candidate; \r\n \r\n19   \r\nb) be signed by not less than two persons who are registered voters in the area of authority of each district assembly; c) designate a person to serve as Vice President; and   \r\nd) be delivered to the Commission on or before the day appointed as nomination day in relation to the election \r\n(4) A person shall not nominate more than one candidate in a presidential election.  \r\n(3) The nomination form shall be in quadruplicate and shall be delivered personally by (a) the presidential candidate or (b) any of the persons specified under sub regulation (2) (b) between the hours of nine in the morning and twelve noon and the hours of two and five in the afternoon on or before the nomination day  \r\nIt is worthy of note in Regulation 7(2)(d) and & 7(3)(b) of the use of the phrase “ nomination day” and in Regulation 9(2)(b) the use of the phrase “nomination period” within whose span a candidate is provided the chance to make amendments to his form. I cannot make a definitive determination of whether there was a breach of the audi alteram partem rule of natural justice without embarking upon an interpretation of the relevant provisions of C.I. 94 in relation to this dispute. And in doing so I am mindful of the basic rule that when a text is plain it needs no interpretation but effect must be given to it and it is only when there is ambiguity that a court needs to interpret. That statement itself is not free from controversy as Aharon Barak, the former President of the Israeli Supreme Court states that even plain text needs interpretation as it is through interpretation that the court can conclude that the meaning of a text or word is plain. He \r\n \r\n20  \r\nstates that:  \r\n “Even plain text requires interpretation, and only interpretation allows us to conclude that its meaning is plain. That does not, however, mean that no text is plain”.  \r\nThe better way of constructing statutes is to interpret it as whole in a journey of discovering the intent of Parliament.  Such that in the interpretative work of the Judge he ought to view the statute 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 Parliament. This has been echoed time and again and in the words of Viscount Simmonds that:  \r\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”.   \r\nSee also OSEI v AUSTRALIAN GOLDFIELDS LTD. [2003-2004] SCGLR 69.  \r\nThe Applicant argues that where the 1st Respondent upon presentation of nomination papers, on the day appointed by the Respondents, as nomination day, Respondents finds that the persons that subscribed to the nomination paper are not as required by law or the nomination paper does not meet the standard required by law, a candidate still stood nominated after the nomination day until the 1st Respondent had afforded an opportunity for amendment within the nomination period. And it was only when the opportunity had been offered within the nomination period for the amendment and the candidate was still \r\n \r\n21  \r\nunable to effect the amendment that the 1st Respondent shall consider the nomination paper as invalid and inform the 2nd Respondent with a decision being taken on it within seven days.  \r\nThe principle of natural justice that Applicant relies on has been stated by the learned authors of Halbury’s Laws of England (4th Ed Vol 1 @ 78) that no man shall be condemned unless he has been given prior notice of the allegation made against him and offered the opportunity to be heard. The Supreme Court touched on what it meant an opportunity to be heard in the case of AWUNI v WEST AFRICAN EXAMINATIONS COUNCIL [2003-2004] SCGLR 471; where the court speaking through Sophia Akuffo JSC noted as follows:  \r\n“I will not venture to give a comprehensive definition of what is fair and reasonable, since these qualities are dictated by the circumstances in which the administrative function is performed. At the very least, however, it includes probity, transparency, objectivity, opportunity to he heard, legal competence and absence of bias, caprice or ill-will”.  \r\nThe question for my determination is was the Applicant afforded the opportunity required by the provisions of the Rules under Regulation 9 of C. I 94, as dictated by the ‘audi alteram partem’ rule of natural justice,  to be heard and to effect whatever anomaly that the 1st Respondent discovered within the nomination period before a decision was taken to invalidate his nomination paper?   \r\nWhat is nomination period and what is nomination day have not defined by the C.I 94. However, what is nomination day has been defined for the purposes of the Representation of the Peoples Law, PNDCL 284 and in relation to elections as “the day appointed for the \r\n \r\n22  \r\nnomination of candidates”. It would then mean that nomination period under C.I 94 will be the period appointed for the nomination of candidates who have manifested an intention of contesting as candidates for both the presidential and parliamentary elections. And it would further mean, that nomination period would be longer than the nomination day or days considering the import of Regulations 7 and 9 of C. I. 94.  \r\nWhat then was the time appointed by the 2nd Respondent as the day and period for the nomination of candidates in compliance with Regulations 7 and 9 respectively? The only guide I have is Ex “DPKN1” captioned “Immediate Release [Thursday September, 08, 2016] Update on Preparations For December 7 Elections”. The relevant portion for now is the following:  \r\n“The Electoral Commission has briefed the political parties on its preparation so far towards conducting the 2016 elections. At the Inter-Party Advisory Committee meeting held on Thursday September 8, 2016, the Commission advised as follows:   1. The Commission will be accepting nominations from Presidential and Parliamentary candidates on 29th and 30th September, 2016…”  \r\nIt is therefore clear to me that the day(s) that the Commission was to receive the nomination papers from candidates was set to be the 29th and 30th of September and that to my mind will satisfy what is nomination day(s) within the contemplation of Regulation 7 (2)(d) of C. I 94. But the nomination period as contemplated by Regulations 9(3) of C. I. 94 was conspicuously not set by the Commission. Though the Rules clearly affords a candidate to present his nomination papers on or before the nomination day but it seems that per Ex ‘DPKN1’ the EC signaled its preparedness to receive nomination papers only on the 29th and 30thof September, 2016. The Applicant dutifully in compliance with the \r\n \r\n23  \r\ndirections provided by 2nd Respondent appears to have presented his forms on the 30th of September, the last of the two nomination days set by the Commission for receipt of the nomination papers.    It is after the receipt of the nomination papers on the nomination day, and within the nomination period; that Respondents were under duty by law to inform the Applicant of any anomaly detected on his form. The Respondents purporting and proceeding under the erroneous assumption that the two days set for the presentation of the nomination papers coincided with the end of the nomination period, failed to afford any opportunity to the Applicant to amend his form. Granted that even the nomination period ended on the 30th of September, 2016 the denial of an opportunity to the Applicant to amend his form will be wrong. And if the nomination period did not end on 30th September, as I seek to posit supra that EC did not set any nomination period, the denial of an opportunity to the Applicant is even more fatal and incurably bad.  \r\nI am fortified in my view that “nomination day” as it appears in Regulation 7(2)(d) of C. I. 94 is different from “nomination period” appearing in Regulation 9(2)(b) of C.I 94 due to one of the presumptions of interpretation. That is presumption of consistent expression or meaning. This presumption is to the effect that different words or phrases used in an Act or Rule are presumed to have different meanings placed on them by Parliament. After all Parliament in an Act does not use words and phrases in vain. I have not found anything from C.I 94 that displaces this presumption.   \r\nOn the contrary it would be absurd from a clear reading of Regulations 7 and 9 of C.I 94 that the framers of the Rules will vest in the hands of the 1st Respondent to provide an opportunity to candidates to amend within the nomination period and expect that the day the acceptance of the nomination papers ends is the day the nomination period closes.  If \r\n \r\n24  \r\none were to interpret the Rules that the end of the day(s) of acceptance of nomination papers ended the nomination period, it would be tantamount to the rules providing a right to a party in one breath and taking the same right away when there seems to be no claw back clause.  \r\nI think, in my respectful opinion, that it is contemplated within Regulations 9(2) of C. I 94 that a right is provided a candidate to amend or alter his forms after acceptance of same by the Returning Officer. And that the time for the end of the nomination period is set to last longer than the nomination date so that the nomination period span a time after the acceptance of the nomination forms. For that is the only way to make the enjoyment of the right afforded a candidate meaningful under regulation 9(2) of C. I 94. And to interpret it otherwise will mean the Returning Officer arrogating to itself the power to snatch from candidates what the Rules have given them. And the Returning Officer and the EC have no such power.  \r\nAssuming that even the court is wrong on this above point made, does it sit well with the Respondents to contend in this court that even though it told Applicant that he had the liberty to present his forms either on the 29th or the 30th of September, 2016; nonetheless, if Applicant has followed that instructions by bringing his form on 30th and not 29th September, Applicant has done so to his own peril because the days of acceptance of the nomination papers was the same as the end of the nomination period. This appears to me that Respondents intended to take from the Applicant what the Rules have afforded him. Applicant acted within the scope of the instructions of the Commission and cannot be made to suffer any penalty of denial of a hearing that the Rules under C. I. 94 give him before a decision was taken as to whether he had fully satisfied all the requirements necessary to contest as a candidate to the office of President of the Republic.  \r\n \r\n25  \r\nIf the right to put oneself up as a candidate to contest an election is needlessly denied by the Respondents without due regard to well-trodden paths of fairness and propriety, it renders meaningless the exercise of the right to vote guaranteed by the Constitution in a participatory democracy. As the choice of a voter may have been denied him not through the fair means and processes prescribed by law. The conduct of the Returning Officer and the Commission in its denial of the right afforded the Applicant by law to make alteration or amendment to his form has been taken in a petulant fashion and their decision in respect of Applicant has been extremely perverse. The Applicant, Dr. Papa Kwesi Nduom, has made a clear case on the basis of the ‘audi alteram partem’ rule of natural justice for the grant of the reliefs of certiorari and prohibition.  \r\nBefore I deal with the contention of counsel for Respondent that this court is impotent to make any further consequential orders to give directions regarding the opportunity to amend that Applicant seeks; I find it necessary and useful to respond to two pertinent riposte made by 1st Respondent in her affidavit in opposition to the Applicant’s affidavit in support of his application.  \r\nFirst is the claim that the conduct of the Applicant in admitting that Richard Aseda signed in two different districts bothers on criminality and does not deserve the relief he seeks. I will not spend much ink on this submission save to say that counsel seems to misapprehend the import and the scope for the invocation of the supervisory jurisdiction of the court. Consistently eminent jurists have emphasized that certiorari application does not deal with the merits of one’s substantive case but more with whether or not there had been a decision that is irrational, deprives a party of fair hearing, procedural impropriety etc.  \r\nThis point was drummed home in the case of REPUBLIC v COURT OF APPEAL, EX\r\n \r\n26  \r\nPARTE GHANA CABLE CO. LTD. (BARCLAYS BANK GHANA LTD - INTERESTED PARTY) [2005-2006] SCGLR 107 where at 118 of the decision, Dr. Twum JSC, noted as follows:  \r\n“Certiorari is not concerned with the merits of the decision.  It is a complaint about jurisdiction or some procedural irregularity like the breach of natural justice”.  \r\nAgain on the case 16th of March, 2011 in the case of REPUBLIC v HIGH COURT, ACCRA; EX PARTE SALLOUM & OTHERS (COKER INTERSTED PARTY) Suit No J5/4/2011 the majority per Anin Yeboah JSC stated that:  \r\n“The courts in Ghana and elsewhere seriously frown upon breaches of the audi alteram partem rule to the extent that no matter the merits of the case, its denial is seen as a basic fundamental error which should nullify proceedings made pursuant to the denial”.  \r\nThese are enough to foreclose that argument. The second troubling claim of the 1st Respondent is that if it was just a fair hearing that Applicant complains of then he was amply afforded the opportunity to meet with 1st Respondent when he was disqualified. To reduce the denial of fair hearing that the law afford the Applicant before a decision is made to disqualify him to the meeting that took place after the disqualification of the Applicant is to trivialize the weightier and substantial mandate placed on the shoulders of the Returning Officer to afford an opportunity to the Applicant to amend his nomination paper within the nomination period before a pronouncement was made to disqualify him.  \r\n \r\n27  \r\nWhat was the usefulness of the meeting if it would not result in Applicant have the opportunity to effect the amendment or ensuring the compliance of the 1st Respondents with the law? The meeting of 13th October, 2016 cannot be advanced, in any way, as meeting the very intendment of the fair hearing that Regulation 9(2) of C.I 94 anticipate. The fair opportunity to amend the forms must precede any action to disqualify and not the other way round.  I find that submission, again with profound respect to Sory, Esq. to be gravely pedestrian and peripheral.   \r\nThe decision disqualifying the Applicant and as contained in Ex DPKN3 is ordered to be brought for the purposes of having same quashed and is hereby quashed by the court in the exercise of its supervisory jurisdiction.  \r\nDoes this court have the power to order the Commission to afford opportunity to Applicant to amend the forms and receive same? Sory, Esq has made copious submissions on this issue and I understand them as follows: That article 46 of the Constitution insulate the Commission from any external control and that the case of ABU RAMADAN & ANOR v ELECTORAL COMMISSION & ANOR J1/14/16 and dated the 5th of May, 2016 reinforces this constitutional provision of insulation of the Commission from any control. In the Abu Ramadan case counsel relies on the dictum, of Gbadegbe JSC wherein he noted that:  \r\n“It is observed that in the exercise of the court’s original jurisdiction, it is not permissible for the court to substitute its own decision for that of the body or persons exercising a discretion conferred on it by the Constitution. This is necessary to keep the court itself within its proper limits in order to give effect to the supremacy of the law …”  \r\n \r\n28  \r\nCounsel for Respondent will recall that Gbadegbe JSC proceeded to emphasis that when it had to do with the exercise of the discretion of the Commission, then it was not proper for the court to substitute its own discretion for the Commission. The finding that I have made of a breach of a right afforded the law to the Applicant regarding the opportunity to alter or amend his nomination paper, is not an exercise of a discretion of the Returning Officer and Commission but a mandatory obligation imposed on them by the law. And where Commission’s actions disclosed any vitiating circumstances such as illegality, irregularity, unfairness or failure to satisfy an essential pre-requisite to the making of a decision that may justify the intervention of the court to set any exercise of discretion Commission aside.  \r\nI take umbrage under the glowing words of wisdom delivered at page 29 of the judgment by the learned Judge, Gbadegbe JSC as follows:  \r\n“The correct position is that the courts as constituted under the 1992 constitution may intervene in acts of the first defendant to ensure that it keeps itself within the boundaries of the law and also to give effect to provisions of the constitution. This is a jurisdiction that our courts have always exercised in relation to the  first defendant of which the recent decision in the Abu Ramadan case (supra) is  an example”.  \r\nI adopt the above words as mine and as counsel for Respondents is fully aware that just yesterday the Supreme Court in the case of KWESI NYAME- TEASE ESHUN v ELECTORAL COMMISSION has ordered the Commission to furnish agents of political parties with collation sheets of signed declared results and for Commission to give agents of political parties a signed and completed copy of Form One EL 23A and One EL 23 B for parliamentary and presidential elections respectively, it should  be clear \r\n \r\n29  \r\nto him that Commission cannot claim immunity from the directions of the court intended to give full meaning to the exercise of the court’s supervisory jurisdiction.   \r\nI will proceed after quashing the decision of the Respondents disqualifying the Applicant as a candidate and order that the Respondents afford opportunity to the Applicant to make the necessary alteration or amendment to its nomination paper for it to receive same and then proceed to determine whether the Applicant had met all the criteria laid down by the laws of the Republic, in line with its duty laid down by C.I. 94. EC has no basis to complain that nomination period has closed when they did not set one. They only set nomination day under regulation 7 but not nomination period under regulation 9(2) as I have already found. The time frame to afford the Applicant is entirely within the discretion of the Respondents being mindful of the limited time available for the elections on December 7, 2016  \r\nIn conclusion, I trust and hope, that this ruling dissolves doubts and illuminate our perception of the C.I 94 especially Regulations 7 and 9, an area that has been tormented by controversy and ambiguity. I will exercise my discretion not to award cost. Each party shall bear its own cost.    \r\n       (Sgd.) Eric K. Baffour, Esq. Justice of the High Court   \r\nRepresentation: Applicant – Present \r\n \r\n30  \r\n1st Respondent –  Nii Ayikoi Otoo, Esq. with Gary M. Nimako, Esq., Felix Ograh, Esq., Dennis Ofosu Appiah, Esq., Barbara Brown, Ms, Cecil Adasi, Esq and Naa G. Ayiko Otoo, Ms for Applicant – Present. Thaddeus Sory, Esq., with Sean Poku, Esq., and Theodora Tawiah Armah, Ms for Respondents – Present  ', 'links/cases/EX PARTE PAPA KWESI NDUOM.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'GT/1401/2016', '', '', 'High Court, Accra', '2016-10-28', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(598, 'FAUSTINA NETTEY & ORS VS.  \r\nROBERT AKAI NETTEY & ORS', 'JUDGEMENT \r\nThe Plaintiffs by their writ dated the 15th day of June, 2007 are before this Court seeking the following reliefs: \r\ni    A declaration by the Court that Letters of Administration in respect of the estate of Joseph Kwei Nettey were granted by the High Court, Accra to the 1st Defendant on the 5th of July, 1966 and the said estate had already been distributed.  \r\n ii.  A declaration by the Court that the order procured by the 1st, 2nd 3rd , 4th 5th and 6th Defendants from the High Court,  Accra presided by His Lordship Justice Acquaye by which the 7th Defendant was appointed to distribute the estate of Joseph Kwei Nettey according to the Intestate Succession Law, 1985 PNDCL 111 was procured by fraud . \r\niii. An order vacating the order made by His Lordship, Mr. Justice Acquaye in which he appointed the 7th Defendant to distribute the estate of Joseph Kwei Nettey (deceased) in accordance with the Intestate Succession Law, 1985 PNDCL 111. \r\niv. A perpetual injunction order directed at the 7th Defendant restraining him from distributing the estate of Joseph Kwei Nettey in accordance with the Intestate Succession Law, 1985 PNDCL 111. \r\nThe facts which have led to the commencement of the present suit are as follows: The Plaintiffs are all surviving children of Joseph Nakai Nettey (deceased) who died on the 8th day of March, 2005. The 1st Defendant (now deceased), the 2nd, 3rd, 4th, 5th and 6th Defendants and the Plaintiffs’ deceased father, Joseph Nakai Nettey are all siblings of full blood born to one Joseph Kwei Nettey.  According to Plaintiffs, upon the death intestate of their grandfather on the 31st day of December, 1965, their paternal uncle, the 1st Defendant, applied for and was granted Letters of Administration by the High Court, Accra on the 5th day of July, 1966 to administer the estate of their late grandfather, Joseph Kwei Nettey. Plaintiffs say that, in line with this mandate, the 1st Defendant as Administrator, duly distributed the rooms in House No. A690/2, Djator Street, Mamprobi-Accra with each of the Defendants including the Plaintiffs’ deceased father getting a specified portion of the said property.  The 5th and 6th Defendants who were still in school at the time, had their portions managed by the 1st Defendant and Plaintiffs’ late father who rented out the rooms allocated to the 5th and 6th Defendants and used the proceeds to maintain them till they came of age.  Plaintiffs contend that the 1st, 2nd, 3rd and 4th Defendants also rented out their rooms upon the said distribution. The Plaintiffs further aver that their deceased father, Joseph Nakai Nettey, whose share of rooms was on the first floor of the said property occupied same with his wife and children for decades until his death in 2005.  This according to Plaintiffs, is indeed where they were born and have lived all their lives. They say that it has however come to their notice that the Defendants have fraudulently managed to procure an order authorizing the 7th Defendant, the Administrator General, to take over the estate of their grandfather who died in 1965 and to distribute same according to the Intestate  \r\n3  \r\nSuccession Law, 1985 PNDCL 111.  Plaintiffs insist that it is unlawful for the 7th Defendant to attempt a redistribution of an estate which has long been distributed. They charge that, the said order was obtained by fraud as the Defendants made representations to the Court knowing very well at the time that the said representations were false.  The particulars of fraud were given as follows: \r\n“The representation made to the Court was to the effect that the estate of Joseph Kwei Nettey (Deceased) was not distributed when indeed Letters of Administration were granted by the High Court, Accra on the 5th day of July, 1966 to the 1st Defendant and thereafter the estate distributed several decades ago.” \r\nPlaintiffs assert that they bring the present action in their capacity as beneficiaries of the estate of their deceased father. \r\nThe Plaintiffs’ claim is stoutly resisted by the Defendants. The defence as pleaded in an Amended Statement of Defence filed on the 21st day of May, 2014 is that the estate in question has not been distributed. The Defendants admit that the 1st Defendant applied for and was granted Letters of Administration on the 5th of July 1966 but attribute his failure or inability to distribute the estate solely to the Plaintiffs’ father who they allege, monopolized the entire estate to himself and frustrated all efforts at distribution. According to Defendants, all attempts by the elders of the family to meet with Plaintiffs father to effect such distribution proved unsuccessful due to his recalcitrance. As a result, the matter was still pending before the joint family heads, namely, Mr. TA Mettle and Mrs. Fifi Ankrah at the time the present suit was instituted. This, the Defendants contend, brings the facts of this case within the ambit of Section 21 of the Intestate Succession Law, 1985 PNDCL 111.  They challenged Plaintiffs’ right to succeed their father’s interest in the said Property and counterclaimed for the following: \r\na. A declaration by the Court that Plaintiffs have no beneficiary interest in House No. A690/2, Mamprobi, Accra of the estate of the late Joseph Kwei Nettey. b. An order evicting the Plaintiffs from the premises of H/No. A690/2, Mamprobi, Accra c. Perpetual Injunction directed at the Plaintiffs, their privies, assigns and successors in title from interfering in anyway with House No. A690/2, Mamprobi, Accra. d. Any other or further order(s) as this Honourable Court may deem fit.  \r\nThe substance of Plaintiffs’ reply filed on the 1st day of August, 2007 was to deny Defendants’ assertions and to reiterate the fact that PNDCL 111 (supra) was not applicable to the facts of the present suit.  \r\n4  \r\nI find from the record of the Court that, apart from proof of the 7th Defendant having been served with the Statement of Defence filed by the 1st to 6th Defendants on the 6th day of July, 2005 and Plaintiffs’ reply filed on the 1st day of August 2007, there is no proof of service of any of the other processes filed in these proceedings on him.  Notable, among these processes are the Plaintiffs’ Writ and Statement of Claim filed on 15th day of June, 2007.  By ORDER 7 RULE 12(1) OF THE HIGH COURT (CIVIL PROCEDURE) RULES, CI 47, service of a writ is to be effected separately on each Defendant.  In the absence of any proof that the 7th Defendant was duly notified of Plaintiffs’ suit against  him as required by law, it is quite clear that he cannot be deemed to have been properly made a Party to these proceedings.  \r\nHaving addressed this issue, I now proceed to deal with the issues set down for the determination of the suit by the Court (differently constituted) at the close of pleadings. These are: \r\n1)  Whether or not Letters of Administration were originally granted to the 1st Defendant.  \r\n2)  Whether or not the Plaintiffs’ father had obstructed any distribution of the estate of the Defendants’ father by the 1st Defendant in his capacity as administrator of his father’s estate.  \r\n3)   Whether or not any head or elder of the families of the Defendants’ late father had sat down and witnessed any distribution of the estate of the Defendants’ late father, Mr. Joseph Kwei Nettey. \r\n4)   Whether or not Plaintiffs have a Vesting Assent or any document to prove a contention that a distribution had long been carried out. \r\n  5)   Whether or not the Defendants were justified or authorized by the ADMINISTRATION OF ESTATES ACT, 1961(ACT 63) in the circumstances of this case in seeking a Court order transferring the administration to the Administrator General and if so  whether or not the Plaintiffs’ charge of fraud is frivolous, untenable and grossly scandalous and absurd in law and fact.  \r\n6)  Whether the 7th Defendant is entitled to accept and act under a valid Court order to distribute the estate concerned.  \r\n7)   Whether or not PNDCL 111 makes provision under Section 21 for any undistributed estate to be dealt with. \r\n8)  Any other issues necessarily arising from the pleadings.  \r\nAs rightly pointed out by both Counsel in their respective addresses, the fact that the 1st  \r\n5  \r\nDefendant applied for and was on the 5th day of July, 1966 granted Letters of Administration is not in contention and is therefore not an issue to be resolved by this Court. \r\nThe remaining issues however, will, for the purposes of this judgement be compressed under five main heads which are: \r\n1) Whether or not the estate of Joseph Kwei Nettey has been distributed pursuant to the grant of Letters of Administration to the 1st Defendant on the 5th day of July, 1966. 2) Whether or not the Plaintiffs’ father had obstructed the distribution of the estate by the  1st Defendant. 3) Whether or not the order of the High Court dated the 7th day of May, 2007 appointing the Administrator General to take over and distribute the estate of the late Joseph Kwei Nettey was obtained by fraud. 4) Whether or not Section 21 of PNDC LAW 111 is applicable to the facts of this suit. 5) Whether or not Plaintiffs have the capacity to institute the present suit.  \r\nThe above issues will now be dealt with starting with the first two together since they are in my opinion, intertwined.  \r\nIt is not in dispute that Letters of Administration were on the 5th day of July, 1966 granted to the 1st Defendant (now deceased). The crucial issue which this Court has to determine however, is whether the 1st Defendant as Administrator proceeded to distribute the estate of Joseph Kwei Nettey to the persons beneficially entitled to same when he was granted Letters of Administration by the High Court in 1966.  On the pleadings, the present dispute appears to centre solely on the House No. A690/2 Djator Street, Mamprobi, Accra being the main property left behind by Joseph Kwei Nettey who died intestate.   \r\nIt is trite learning, that a Plaintiff in a civil suit, carries the burden of proving his case on a balance or preponderance of probabilities. Section 12 (2) of the EVIDENCE ACT, (NRCD 323), defines this as the “degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its nonexistence.”  In the Supreme Court case of AKWASI AND ABABIO [1994-95] GBR 774, the Court held that it was the Party whose pleadings raised an issue essential to the success of the case who 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\n Applying this legal principle to the present suit, it is my view and I believe quite rightly, that it is only when the Plaintiffs’ have established a prima facie case that the estate of Joseph Kwei  \r\n6  \r\nNettey had indeed been distributed that the burden shifts onto the Defendant to adduce evidence to the contrary. Similarly, the Defendants bear this primary evidentiary burden in respect of their Counterclaim. \r\nNow, there is no doubt that the said house having devolved on all the children of the deceased Joseph Kwei Nettey, who died intestate had assumed the nature and character of family property.  Being family property, the legal position is that, the interest held by the beneficiaries in the said property is joint and indivisible.  See the case of BINEY v BINEY [1965] GLR 619.  \r\nThe question however is whether or not the Property has been distributed amongst the children of Joseph Kwei Nettey for the purposes of occupation.   \r\nIt is the contention of the Plaintiffs, that the estate was distributed decades ago, presumably, not long after the grant of Letters of Administration to the 1st Defendant.  In support of this assertion, the 2nd Plaintiff who testified on behalf of all the other Plaintiffs gave evidence on how the Property in question was shared amongst all the beneficiaries of the estate including their deceased father.  He admitted that he had not been born at the time but grew up to find his father and each of the Defendants occupying specific portions of the Property.  He alleged that his father and the family head informed him that the Property had been distributed.  According to him, the fact that each of the Defendants as well as his father dealt with their respective portions of the said Property as they wished lent credence to what he had been told.  He stated, for instance, that some of the Defendants had let out the rooms given them upon the said distribution and were collecting rents for their exclusive benefit.  In proof of this, Plaintiffs tendered in evidence EXHIBIT D, a copy of a tenancy agreement entered into between the 3rd Defendant and one Benjamin Sakyi – Sarkwah.  By the said agreement, the 3rd Defendant had let her room to the said tenant for a three (3) year period.   \r\nThe fact that the estate has been distributed is however flatly denied by the Defendants. The common thread that run through the testimonies of all the Defendants given in this Court is that the estate has not been distributed because the Plaintiffs’ father refused to allow the 1st Defendant as Administrator to share the Property.  It is however quite apparent from the evidence, that each of the Defendants occupies a specific portion of the Property in dispute over which they have for over four (4) decades exercised exclusive rights of ownership.  Even in the case of the 5th and the 6th Defendants who were said to be of school going age at the time of their father’s death, the evidence before this Court is that their rooms were rented out by the 1st Defendant and Plaintiffs as caretakers and the proceeds used to maintain them till they were old enough to take charge of their respective portions. This fact has not been seriously denied by the Defendants.   What remains unclear to me however, is the exact reason the Defendants give  \r\n7  \r\nfor the failure of the 1st Defendant to distribute the estate.  Is it that the Plaintiffs’ father placed a ban of some sort on the due distribution of the Property by the 1st Defendant or that the 1st Defendant could not distribute the Property because Plaintiffs’ father refused to meet the family head for such distribution?  I am of the opinion that either reason is untenable whichever way one looks at it, for, the 1st Defendant, as Administrator did not need the consent of the Plaintiffs’ father or a meeting with the head of family to enable him distribute the estate of the deceased.  As Administrator, he was the only person vested with the power and authority to gather up the estate and to distribute it in accordance with law.  Assuming, however, without necessarily admitting that the Plaintiffs’ father indeed obstructed the said distribution, what stopped the 1st Defendant from seeking the intervention of the Court from which he obtained the grant? \r\nIt is interesting to note, that the 1st Defendant until his death was a Party to the present suit. The undisputed evidence shows that it was in the year 2007, that is, more than forty (40) years after the said grant of Letters of Administration to him, that 1st Defendant resurfaced in Court seeking an order for the distribution of the estate.  As pointed out in the case of SMITH V CLAY [1767] AMB 645, “a court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time.  Nothing can call forth this court into activity but conscience, reasonable diligence and good faith.”  The reasons put forth by the Defendants for the inordinate delay in seeking the intervention of the Court in my opinion, cannot be valid under any circumstance.  I do not think the Defendants would have succeeded in obtaining the order transferring distribution to the Administrator General if they had disclosed the true state of affairs to the Court presided over by His Lordship Justice Acquaye.  \r\n What I garner from the evidence of Defendants is the suggestion that, even if they occupy specific portions of the Property, the said house cannot be said to have been distributed because it was Plaintiffs’ father and not the 1st Defendant  as Administrator who allocated the said rooms to them  but  the point is, if indeed the said distribution was done by Plaintiffs’ father, then, the only  inference I am forced to draw from the evidence before me is that,  it was the 1st Defendant who relinquished his duties as Administrator to the Plaintiffs’ father. The Defendants having accepted and enjoyed the benefits of the said distribution for decades cannot now turn round and assert otherwise. Put against the case of the Defendants, what I find rather curious is the Defendants’ admission that they all enjoyed a cordial relationship with Plaintiffs’ father during his lifetime. \r\n The 5th Defendant on the 9th of July, 2015 was asked under cross-examination: \r\n“Q: Robert and Joseph were in [sic] good terms.   \r\n8  \r\nA: Robert is a senior brother to Joseph. \r\nQ: The sisters were in [sic] good terms with Joseph. \r\nA: yes.”  \r\nThere is also the undisputed evidence on record that all the Defendants were elders of the Plaintiffs’ father’s church.  By their evidence, the picture painted by the Defendants of the late Joseph Nakai Nettey is that of a stubborn, disrespectful man who, as it were, was a law unto himself.  I do not see how the Defendants could have maintained a cordial relationship with such a character.  I therefore take a jaundiced view of the Defendants’ claims. \r\nEXHIBITS 1 and 2 were also tendered by the Defendants through the 2nd Plaintiff, to buttress their assertion that the Property in question had been monopolized by Plaintiffs’ father who made extensions to the Property without their consent.  Much as I do not think that these belated protests reflect favourably on the honesty and good intentions of the Defendants, it is well settled that extensions or improvements made to family property by a member “does not take away the family stamp on the property” see the case of OSEI YAW V DOMFEH [1965] GLR 418.  In any event, I do not intend to dwell on the issue of the said extension in any detail as I find the said exhibits were merely introduced to show that Plaintiffs’ father had monopolized the estate.  Apart from the fact that the 5th Defendant asserts that no extensions were made to the Property, no issue was joined by the Parties on the said extensions or any rents accruing therefrom.  I will therefore confine myself to issues raised by the pleadings. \r\n It is rather interesting that the Defendants’ claims reared their heads only after the death of the Plaintiffs’ father. The Courts have long held the view that claims against the dead should be viewed with the “ utmost suspicion” and even in the case of OSEI SUBSTITUTED BY GILARD v KORANG [2013-2014] SCGLR 231, where the Supreme Court sought to re-state this rule, the Court was still of the view that a claim against a dead person, who was not in the position to contradict, explain or give evidence on his version of the case ought to be scrutinized meticulously and carefully weighed for its inherent probative value. I am not convinced that the Plaintiffs’ father alone hijacked the entire property, whilst the Defendants who were in the majority looked on helplessly.  I believe that if he wielded such power and influence over the rest of his siblings, he would have been the one to apply for letters of administration and not the 1st Defendant. \r\nThe Defendants have challenged the Plaintiffs to provide positive proof in the form of Vesting Assent to substantiate their claims that the Property has been distributed.  I do not think a failure   \r\n9  \r\nby the Plaintiffs to produce a Vesting Assent necessarily advances the case of the Defendants or disproves the fact that House No. A690/2 was duly shared amongst the children of the late Joseph Kwei Nettey. In the absence of direct evidence of distribution, this Court must look to all the facts and circumstances of the case, the totality of which should provide the necessary proof.  The standard of proof required of a Plaintiff in a civil trial is to lead such evidence as will tilt the balance of probabilities in his favour on a particular issue.  See the case of BISI v TABIRI [1984-86] 2GLR 282.  In my opinion the evidence led by Plaintiffs is strong enough to warrant an inference that House No. A690/2, Djator Street was indeed shared among the children of the late Joseph Kwei Nettey by the 1st Defendant upon the grant of Letters of Administration to him in 1966 and I believe and find that as a fact. \r\nI now turn to the question of whether or not the order of the High Court authorizing the Administrator General to take over and distribute the estate was obtained by fraud. In the case of SA TURQUI BROS v DAHABIEH [1987-88] GLR 486 @ 500, TAYLOR JSC, was of the view that “a charge of fraud in law can be taken to be properly made against a party who knowingly or recklessly whether by conduct or words uses unfair, unlawful or wrongful means to obtain a material advantage to the detriment of the other party.”  \r\nThe particulars of fraud given by the Plaintiffs suggest that the Defendants represented to the Court that the estate of Joseph Kwei Nettey had not been distributed when indeed Letters of Administration had been granted to 1st Defendant and the estate thereafter distributed decades ago. By Section 13 of the EVIDENCE ACT (NRCD 323), a charge of fraud being charge which is criminal in nature will have to be proved beyond reasonable doubt even in civil cases.  The effect of paragraph 8 of the Defendants’ Statement of Defence is not to deny that they informed the Court that the estate had not been distributed but rather to challenge Plaintiffs to provide evidence of such distribution. The totality of the evidence of the Defendants given in this Court also confirms that they sought and obtained the said order appointing the Administrator General because, as they allege, the estate had not been distributed.  It should be apparent from my analysis of the case so far, that I am in no doubt at all that the Defendants willfully misrepresented the true state of affairs to the High Court presided over by his Lordship Justice Aquaye.  I am inclined to believe that the Defendants went back to Court in the year 2007 to seek an order for a redistribution due to a deterioration of relations with Plaintiffs and not because the estate has not been distributed.   The testimony of the 2nd Defendant in particular, fortifies me in this conclusion.  In her evidence-in-chief, 2nd Defendant stated as follows: \r\n“The Plaintiffs should be evicted because they do not show respect in the house.” \r\nShe went further to state the following under cross-examination:  \r\n10  \r\nQ: You told the Court that you want the Plaintiffs out because they do not respect you as uncles and aunties. \r\n     A:  Yes. \r\nQ:  From what you have said it is not because the building has not been distributed to you by Robert. \r\nA:  It does not belong to their father but to our father.  \r\nThe reliefs being sought by Defendants in their Counterclaim are also very revealing in this regard. I find that the Court’s order appointing the Administrator General to distribute the estate of the late Joseph Kwei Nettey was obtained as a result of Defendants’ representation to the Court that the said estate had not been distributed when they knew the same to be false or had no belief in the truth of their assertion.  I find the charge of fraud established against the Defendants and accordingly set aside the order of the High Court dated the 7th day of May, 2007 appointing the Administrator General to take over and distribute the estate of the late Joseph Kwei Nettey, on grounds that the same was obtained by fraud. \r\nHaving found that the estate had been distributed long before the promulgation of the Intestate Succession Law, 1985 (PNDCL 111).  It follows that the said law cannot be said to be applicable to the facts of this case. Granting however, without necessarily admitting, that the estate had not been distributed prior to the coming into force of PNDCL 111 and that the issue regarding the said distribution was indeed pending before the family head, it behoved the Defendants to lead cogent and credible evidence in support of their allegations, in the face of Plaintiffs’ stout denials. 2nd Plaintiff challenged Defendants’ assertion that Mrs. Fifi Ankrah and Mr. Mettle were the joint family heads and tendered EXHIBIT E in support of his claim that Nathaniel Akai Nettey (deceased) was the duly appointed head.  As pointed out in the case of KLAH V PHOENIX INSURANCE, [2012]2 SCGLR, 1139, “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated by his witness. He proves it by producing other evidence of facts and circumstances from what the court can be satisfied that what he avers is true.”  \r\nIn line with the above reasoning, I think that it was imperative for the Defendants in this case, to lead further evidence to substantiate their claim that, the issue pertaining to the distribution of the estate was still pending before their head of family at the time PNDCL 111(supra) came into force.   \r\n11  \r\nSection 21 (1) of PNDCL 111 which is being invoked by the Defendants in this case states as follows: \r\nNotwithstanding the provisions of section 1 of this Law, or any other enactment the provisions of this Law shall be applicable in the settlement of any claim or adjudication pending before the Court or a chief or Head of family under customary law at the commencement of this Law in respect of the administration or distribution of the estate of an intestate who died before such commencement...” \r\nDefendants, I find, led no evidence regarding when in the past forty (40) years the matter went before a family head and for how long the same had been pending.  They even appeared confused as to whether or not the Nettey family had a family head and who indeed that person was. \r\nOn the 2nd day of March, 2015, 2nd Defendant under cross -examination responded: \r\n“Q:  Who is the head of family? \r\nA:  They are all dead.  \r\nQ:  So you don’t have a family head now. \r\nA:  As we speak we have no head of family but cousins who represent the family.” \r\nThe 5th Defendant on the other hand, had this to say on the 9th day of July, 2015 under cross- examination. \r\nQ: Where is Mrs. Ankrah. \r\nA: She is dead but I can’t remember the date. \r\nQ: Was she succeeded by someone?  \r\nA: He is called brother Akai. \r\nQ: Is brother Akai alive?  \r\nA: Yes he is alive. \r\nQ: Who is now the head of family? \r\nA: Brother Akai. \r\nQ: When was your latest family head appointed?  \r\n12  \r\nA:  Before Mrs. Ankrah died, at a family gathering where he was appointed before she died. \r\nThe contradictions in the testimonies of the 2nd and the 5th defendant are quite obvious.  At any rate, if the said Brother Akai succeeded Mrs. Ankrah as head of family, as is being alleged by the 5th Defendant, then I am in no doubt that he knew or ought to have known whether or not there was a pending issue regarding the distribution of the estate of the late Joseph Kwei Nettey. He was however, never called to corroborate the Defendants’ assertions. What I see is a desperate attempt on the part of the Defendants to bring this case under the transitional provisions contained in Section 21(1) of PNDC LAW 111 and I reject their claims as there is no reliable evidence before this Court that there was any “claim or adjudication” pending before any family head at the time the said law came into force. \r\nIt is to the final and in my opinion, the most fundamental issue in this suit that I now turn.  I say so because it is trite learning that want of capacity is fatal to an action and a Party who lacks capacity cannot succeed even if he has a cast iron case against his opponent.  The authorities on this legal principle are so numerous that I see no need to cite authorities in support of this position. It has been argued by Counsel for Plaintiffs in his address that the issue of the Plaintiffs’ capacity is not in contention as it was not raised by the Defendants at all.  I however hold a contrary view, given the facts and circumstances of this case.  On the face of the pleadings, it is clear that there is a serious question relating to the Plaintiffs’ capacity to institute the present action and on the authority of YOKWAH v DUAH [1992 – 1993] GBR 278, it is imperative that the same be addressed by this Court. It is the case of the Plaintiffs, that they bring the present action as beneficiaries of the estate of the late Joseph Nakai Nettey. In paragraph 15 of their Statement of Claim, the Plaintiffs aver that they have the capacity to bring the instant action against the Defendants.  Though the Defendants in their pleadings raised no issue as to the capacity of the Plaintiffs to bring the present action, they have challenged the Plaintiffs to produce their Vesting Assents in proof of their assertion that the Property had been distributed.  What I glean from the evidence –in- chief of 2nd Plaintiff is an admission that no Vesting Assents were executed in favour of the beneficiaries by the 1st Defendant as Administrator. This raises the vexed issue as to whether the Plaintiffs are clothed with the requisite capacity to bring this action. This issue was ably addressed in the case of OKYERE (DECD) (SUBSTITUTED BY) PEPRAH v APENTENG &ADOMAA [2012] 1SCGLR 65, where the Supreme Court in explaining the effect of Section 96 of the Administration of Estate Act, 1961 held that in the absence of a formal Vesting Assent executed in favour of a beneficiary or devisee, that beneficiary or devisee had no capacity to sue or be sued in relation to any portion of the deceased’s estate.  On the basis of the above authority, one should ordinarily conclude that the Plaintiffs’ claim and possibly, the Defendants counterclaim must fail.  For, in the \r\n13  \r\n absence of evidence of a formal Vesting Assent having been executed in favour of the Defendants and Plaintiffs’ father, the Plaintiffs cannot maintain an action in their capacity as beneficiaries of a Property to which their late father had no title.  In resolving this issue however, I think it is necessary to consider the nature and character of the Property in dispute.  On the evidence, it is not in dispute that H/No. A690/ 2, Mamprobi was the self-acquired Property of the late Joseph Kwei Nettey which devolved on all his children upon his death intestate. This, in the words of Akuffo Addo JSC in the case of LARTEY V MENSAH [1963] 2 GLR 92 @ 95.  “…operates to constitute the children into “a family” for the purpose of holding and enjoying the said property”.  Although the Property, the subject matter of this suit was shared among the children of the late Joseph Kwei Nettey, the said distribution, in my considered opinion, was only for the purposes of occupation and did not change the fact that the Property remained one unit in which both the Defendants and Plaintiffs’ deceased father held a joint interest.  On the basis of the foregoing, the crucial question is whether there is the legal requirement for the execution of a Vesting Assent in favour of each beneficiary to family property.  Section 96 of the Administration of Estates Act which is the relevant provision states as follows: \r\n(1) A Personal representative may assent to the vesting in the form set out in the Third Schedule in the person who by devise , bequest , devolution, appropriation or otherwise, is entitled to the vesting beneficially or as a trustee or personal representative, of any estate or interest in immovable property. (2) To which the testator or intestate was entitled (3) Over which the testator exercised a general power of appointment by will, or which devolved on a personal representative.  Of particular significance, is Subsection 2 of the said section which states: “The assent shall operate to vest in that person the estate or interest to which the assent relates and unless a contrary intention appears, the assent shall relate back to the death of the deceased.” \r\nNow, the concept of the indivisibility of family property is well settled at customary law. The general position is that though each individual member of the family holds a distinct interest in family property the said interest cannot be disposed of by that member except in exceptional cases and even then, not without the knowledge and consent of other principal members of the family, see the case of KOOMA ALIAS AIKINS VRS EKUA ALIAS HAYFRON AND OTHERS [1997 – 1998]. In the case of BINEY v BINEY [1965] (supra), ARCHER J emphasized this principle when he stated “All members of the family have a joint interest in these family properties,... an interest that is indivisible …”    \r\nMy understanding of the Section 96 above particularly Subsection 2, is that the effect of   \r\n14  \r\nexecuting a Vesting Assent in favour of a beneficiary would be to vest title to the said estate or interest in that beneficiary.  Following such vesting, the said beneficiary, in law becomes the owner of the property and is at liberty to transfer title to a 3rd Party or to deal with the property in whatever way he deems fit.  I think the situation is different in the case of family property, which is communally owned.  Whatever interest each beneficiary owns in the said property does not make them the owner of same. Due to the concept of indivisibility of family property and the principles that govern the use and ownership of same, I am unable to appreciate the contention of both Parties that, Vesting Assents needed to be executed in favour of each beneficiary regarding their respective interests or the portions they occupy in the said Property.  At best, any Vesting Assent executed in favour of the beneficiaries could only vest the Property in them jointly as children of Joseph Kwei Nettey and not their individual capacities.  It is quite clear, that there is no evidence of a Vesting Assent having been executed in favour of the Defendants before this Court but as stated earlier on in this judgement, this does not provide conclusive proof that the estate was not distributed. To me the task of the Court at this stage, is to determine whether the Plaintiffs have the requisite capacity to bring the present action in the absence of proof of a Vesting Assent having been duly executed in favour of the beneficiaries of the estate of Joseph Kwei Nettey.   \r\nThere is however, one issue of considerable importance to resolving this question and that is whether or not the Plaintiffs as grandchildren of Joseph Kwei Nettey are statutorily entitled to inherit their father’s interest in the property.  This is because if the Plaintiffs are not so entitled, then, they cannot claim to be beneficiaries of the estate.   \r\nNow, Section 14(3) of the Conveyancing Decree states as follows: \r\n“(3) A conveyance of an interest in land to two or more persons, except a conveyance in trust, shall create a tenancy in common and not a joint tenancy unless it is expressed in such conveyance that the transferees shall take jointly as joint tenants, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create a joint tenancy.”  \r\nThis means that a tenancy in common will be presumed in the absence of clear evidence of an intention to create a joint tenancy. On the evidence, I do not think that there is any doubt that the Defendants and Plaintiffs’ father took the Property in question as tenants in common and not as joint tenants. THE BLACK’S LAW DICTIONARY [8TH EDITION] defines a tenancy in common as; “a tenancy by two or more persons in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship”.  Furthermore, in the case of OWUSU V AGYENTOA [1994-95] 1GLR 45, the Court per  \r\n15  \r\nBrobbey JA as he then was, in discussing the effect of a clause in the will of the Testatrix in that case, had occasion to explain a tenancy in common as follows: “… if the clause were to have been construed to have created a tenancy in common, each devisee will have held a separate or distinct interest or share which would have literally attached to him or her and would devolve to his or her personal representatives.”  \r\nThis would mean that the share of Joseph Nakai Nettey, who died intestate in 2005, should go to those entitled to inherit him under PNDCL 111. Under the said law, in order of priority, it is the Plaintiffs as his children and any surviving spouse who should step into his shoes with respect to his interest in the said Property.  Consequently, the Plaintiffs, in my opinion, qualify in law, as beneficiaries to the Property in dispute and I so hold. \r\nThe final question therefore, is whether the Plaintiffs in the absence of a Vesting Assent are clothed with capacity to bring the instant action. \r\nIn determining this issue, I must say that, this Court is very alive to the fact that the failure by the Plaintiffs to produce a Vesting Assent in this suit does not necessarily mean that one was never executed in favour of the beneficiaries.  I say this because, in the absence of Plaintiffs’ father, it is the Defendants, particularly the 1st Defendant as beneficiary and Administrator who would have been in the best position to know whether or not a Vesting Assent had been executed in favour of the beneficiaries of the estate of Joseph Kwei Nettey.  However, given the facts and circumstances of this suit, one could not have reasonably expected the Defendants to produce a document which would obviously have been damaging to their case even if the same existed.  Be that as it may, the proper approach is for this Court to apply its mind not only to the law and the facts of this case but also to its duty to do justice. \r\nI find that, there is no dispute that the late Joseph Nakai Nettey (deceased) was a sibling of full blood of the Defendants.  The fact that the H/No A690/2 Djator Street, Mamprobi devolved on all the children of Joseph Kwei Nettey upon his death intestate is also not disputed. The evidence before this Court shows that the Plaintiffs from birth, lived with their father in his portion of the Property until his death in 2005 and still live there.  The 2nd Plaintiff in his testimony on the 8th day of December, 2014 gave his age as 43.  This means that the Plaintiffs have been in possession of their share of the property for not less than 45 years. The facts that have provoked the present suit are clear from the pleadings and the evidence led.  Plaintiffs say that the Defendants seek a redistribution of the Property in a bid to deprive them of their share.  I have already indicated that I am not persuaded that the Defendants had noble intentions for seeking the said order for distribution but whatever the case may be, it is obvious that the   \r\n16  \r\nDefendants want the Plaintiffs evicted from the Property in dispute. This fact is amply demonstrated by the reliefs being sought by the Defendants in their counterclaim. \r\nBy their Counterclaim Defendants seek the following reliefs: \r\nA. A declaration that Plaintiffs have no beneficiary interest in H/No A690/2, Mamprobi, Accra B. An order evicting Plaintiffs from the premises of N/No A690/2 Mamprobi, Accra C. Perpetual injunction directed at the Plaintiffs, their assigns and successors in title from interfering in any way with H/No A690/2, Mamprobi/Accra D. Any other or further order(s) as this Court may deem fit.  \r\n On the authority of OKYERE (DECD) v APENTENG & ADOMAA (supra), it is clear, that the Plaintiffs, having failed to prove that a Vesting Assent was duly executed in favour of the beneficiaries of the Property should ordinarily be held to lack the requisite capacity to bring this suit but in my considered opinion, each case should turn on its own facts. The uncontroverted evidence is that, the Plaintiffs together with their late father have for decades been persons in possession and exercised all rights of ownership over their share of the Property during their father’s lifetime.  The matters leading to the present suit only came up after the death of Plaintiffs’ father.  I do not disregard the fact that it is on the basis of the clear provisions of Section 96 of the Administration of Estate Act, Act 63 that the Supreme Court has held that beneficiaries cannot sue or be sued in respect of an estate unless a Vesting Assent has been duly executed in their favour.   In my respectful opinion however, a strict adherence to the provisions of the said section could lead to grave injustice, for that will mean that the Plaintiffs in this case will be left with no remedy in the face of imminent danger of their share of the Property being lost. To repeat the pertinent question posed by Brobbey JSC in the case of OKYERE v APPENTENG [supra], “If the law is that a beneficiary or devisee has no title to sue or be sued until the grant to him of a vesting assent, what does he do in any of the situations postulated above? At equity, such a person should be able to mount an action to protect the estate or to save it from being dissipated or wasted.” (Emphasis mine).   This was indeed the position taken by the Court of appeal in the case of APPAU AND OCANSEY [1992-93] 2 GBR 850. See HOLDING (4).  This Court, not only being a Court of Law but a Court of Equity, will not shut its doors to the Plaintiffs when doing so will clearly lead to an unjust result.  Consequently, I hold that, the Plaintiffs as beneficiaries of the estate of their late father have the capacity to institute the present suit to protect their interest in the Property. \r\nBefore concluding this judgement, I think there is one issue that cannot be overlooked by this  \r\n17  \r\nCourt.  One of the complaints of the Defendants is that the Plaintiffs have no respect for them. Unfortunately, no evidence was led by the Defendants in proof of the alleged acts of disrespect exhibited by the Plaintiffs.  This, notwithstanding, the general position under customary law is that the right to occupy family property is subject to good behavior.   I will therefore admonish the Plaintiffs to do their very best to dwell in peace and harmony with their “fathers” and “mothers” as this is not the self-acquired property of their late father but family property. \r\nIn the light of the foregoing, I grant reliefs i), ii) and iii) endorsed on the Plaintiffs’ Writ of Summons and dismiss the Defendants’ Counterclaim.  Plaintiffs’ relief (iv) seeks a perpetual injunction against the Administrator General.  As already observed, the record of this Court does not show that the Administrator General was properly made a Party to these proceedings. Accordingly, the said relief being sought against him cannot stand. \r\nThere will be no order as to costs.  \r\n(SGD) MRS. AKUA SARPOMAA AMOAH                       JUSTICE OF THE HIGH COURT   \r\naey/…           ', 'links/cases/FAUSTINA NETTEY AND ORS VRS ROBERT NETTEY AND 19 ORS.pdf', 'Yes', '', '2016', 'high', '', 'AKUA SARPOMAA AMOAH (MRS), J ', 'Civil', '', 'BFA/84/07', '', '', 'High Court, Accra', '2016-10-31', '');
