INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(548, 'WILLIAM G.K. THOMPSON  --- PLAINTIFF/RESPONDENT/RESPONDENT\r\nVRS\r\nTOTAL GHANA LIMITED  --- DEFENDANT/APPELLANT/APPELLANT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\n\r\n	\r\n\r\nCORAM: WOOD (MRS.), C.J. (PRESIDING)\r\nBROBBEY, JSC\r\n...& Là.	DOTSE, JSC	11TH AUGUST, 2010 YEBOAH, JSC\r\nGBADEGBE, JSC\r\nCIVIL APPEAL	NO.J4/3/2010 aato\r\nWILLIAM G.K. THOMPSON	PLAINTIFF/RESPONDENT/RESPONDENT VRS\r\nTOTAL GHANA LIMITED	DEFENDANT/APPELLANT/APPELLANT\r\nContract of employment— Suspension of employee— Basis of suspension to be proved by employer Burden of proof— Admission of inadmissible evidence during trial— Duty of the judge when giving judgment— Evidence Act 1975,5s. 11 (4), 14, 52 and 118.\r\n \r\nJUDGMENT YEBOAH, JSC: \r\nThis is an appeal from the judgment of the Court of Appeal dated 31 July 2008, which affirmed the previous decision of the trial High Court, Accra.\r\nThe respondent herein, who commenced the action as plaintiff at the High Court, Accra was at the time material to the action The Retail Network Development Manager of the appellant''s company. He has been in this official position for sixteen years and was a Senior Officer, In November of 2005, the Acting Manager Director of the appellant''s company, informed him that some\r\n \r\n\r\nemployees of the company had been arrested and that the respondent should go to the Police Station at Legon to give a statement to the Police. It turned out that two mechanics who were employees of the company at East Legon filling Station had been arrested. The respondent gave a statement to the Police and reported later to the Police Station on subsequent days.\r\nOn the 1st of November 2005, the respondent was at work when the Acting Managing Director of the appellant company handed a letter to him which sought to suspend him as an Officer of the company. In the course of the trial, this letter was tendered in evidence as Exhibit V. The reason canvassed in Exhibit ''B'' for the respondent''s suspension was that he had been implicated in the ongoing police investigations. The respondent contended that the Police did not make any adverse findings against him and did not charge him with any offence. It was further contended by the respondent at no point in time did the appellant company invite him to confront him with any allegations of impropriety before he was suspended. The respondent''s Solicitor wrote to the appellant company to reconsider the decision to suspend the respondent as according to the Solicitor, the decision sinned against the basic rules of natural justice. The appellant justified the decision to suspend the respondent.\r\nFollowing the response from the appellant company, the respondent caused the action herein to be commenced against the appellant seeking among other reliefs a declaration that his suspension from the employment was null and void and of no effect.\r\nThe matter proceeded to a full scale trial at the end of which the learned trial Judge of the High Court, Accra made a determination in favour of the respondent. The appellant, claiming to have been aggrieved by and dissatisfied with the judgment of the trial court lodged an appeal there from to the Court of Appeal. In its judgment, the Court of Appeal held that the appeal was without merit and consequently dismissed same. The instant proceedings are as a result of the exercise by the appellant of its statutory right to appeal to this court from\r\n \r\nthe decision of the Court of Appeal. In its appeal, the appellant quite naturally seeks a reversal of the decision of the Court of Appeal in its favour and in particular, an order dismissing the claims of the appellant as formulated in the writ of summons herein.\r\nBefore us, the appellant has challenged the decision that is on appeal on several grounds. In our view, since the action arises from a contract of employment, the fundamental issue to be decided in the matter herein is whether the letter of suspension earlier on referred to in the course of this judgment was justified under the contract between the parties herein? This requires us to examine the reasons contained in the said letter of 1 November 2005. Since the appellant was the author of the said letter, it was incumbent upon it to prove that the allegation on which the suspension was based was true.\r\nUnfortunately, at the trial before the High Court, the appellant relied only on bare allegations to sustain a charge which was in its nature criminal. The appellant neither called the police who were alleged to be investigating the complaint, nor the persons who had according to them, made statements that implicated the respondent. The proceedings held in the course of the trial on 26 January 2007 that appears at page 136 of the record of appeal has the following entry that we consider decisive against the appellant on the burden of proof that it assumed having regard to its defence to the action herein.\r\n"BOA DU: We have subpoenaed the IGP and served Hearing Notice on them but they have not come to help us. We cannot ask that they be arrested so we	are dosing our case.\r\nBY COURT, Defendant having announced the closure of their case counsel should file addresses on or before 6 February 2007 and plaintiffs counsel\r\nhis address on or before 1 February 2007. Adjourned to 270'' February for mention."\r\n \r\nO	iane VPM 4fl	M.m'' V	>\r\nWe think that by its conduct, the appellant may be said to have admitted the respondent''s claim that the allegations made against him were untrue. In the peculiar context of this case, there was, in or thinking, an obligation on the part of the appellant to provide credible evidence to the trial court that would render the allegation on which its suspension of the appellant was based more probable than the version of a denial which was the pivot of the appellant''s case. By the operation of the relevant rules of the Evidence Act the burden of leading evidence and in particular sections 11(4) and 14 the appellant left the trial court with no option than coming to the conclusion that the allegation made against the appellant that had informed his suspension was untrue. We refer to the said sections as follows:\r\n"11 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.\r\n14 Except as provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is	essential to the claim or defence he is asserting."\r\nSee Brown v Rolls Royce Limited [1960] 1 ALL ER 577.\r\nThe above conduct of the appellant can only be construed to mean that it did not have the evidence to support the allegation. It being so, we are surprised that the appellant invites us to come to a different conclusion on the matter than that which was reached on the admitted evidence by the Court of Appeal and indeed the trial Court. It is interesting to note that in its bid to prove the allegation against the respondent, the appellant introduced in Evidence Exhibit 1, a report by the Legon Police that is headed;\r\n"Re-Malpractices at the A & C Shopping Mall Total Filling Station at East Legon "\r\n \r\nVYH	4) r•:.	1{fl	"M)W:rU''	10Mnr\r\nThe said document that was admitted in evidence, despite objections from\r\n\r\ncounsel for the appellant, in our view not only offends against the hearsay rule contained in section 118 of the Evidence Act, 1975 NRCD 323 but was prejudicial to the case of the appellant within the intendment of section 52 of the same legislation and ought not to have been received in evidence at all. Consequently, we proceed to expunge from the evidence although we observe that neither the trial court nor the Court of Appeal acted upon it in reaching their verdict in the matter herein. See Tormekpey v Aliiable [1975] 2 GLR 432. Delivering the opinion of the Court, Anin JA quoting with approval from Phipson on Evidence (lQthl Edition) at page 855, paragraph 2053 said at page 434 thus:\r\n''7f inadmissible evidence has been received (whether with or without\r\nobjection), it is the duty of the Judge to reject it when giving judgment, and if he has not done so, it will be rejected on appeal, as it is the duty of courts to arrive at their decision upon legal evidence only."\r\nSee also the case of Bonsu v The Republic [1999-2000] 1 GLR 199.\r\nSince the allegation on which the respondent''s suspension was based was not proved, the effect is that the appellant acted rashly and unfairly towards the respondent and renders anything founded on it without justification and unlawful.\r\nWe think that the reasonable inference to make from the failure of the appellant to provide the crucial evidence that was needed to sustain it suspension of the respondent is that the allegation never existed and consequently the suspension was without foundation. This being so, we do not think it is necessary to inquire into the other issues raised in the appeal such as the issue of fairness and or the denial of the respondent the right to be heard before suspending him. In our view, no useful purpose would be served by a consideration of those points as there is no foundation in the allegation.\r\n \r\n5\r\n \r\nFor the above reasons, we dismiss the appeal herein and proceed to affirm the decision of the Court of Appeal.\r\nANIN YEBOAH JUSTICE OF THE SUPREME COURT\r\nG. T. WOOD (MRS)\r\nCHIEF JUSTICE\r\nS.A. BROBBEY JUSTICE OF THE SUPREME COURT\r\nJ. V. M. DOTSE JUSTICE OF THE SUPREME COURT\r\n\r\n		\r\n\r\nCOUNSEL:\r\nPEASAH-BOADU FOR THE DEFENDANT/APPELLANT/APPELLANT.\r\nROCKSON	NELSON	DEFEAMEKPOR	FOR	THE PLAT NTIFF/RESPONDENT/EtESPON DENT.\r\n', '../links/cases/Document (89).pdf', 'Yes', 'BROBBEY JSC, DOTSE,JSC, YEBOAH,JSC, GBADEGBE,JSC', '2010', 'supreme', '<i><b><font face="Times New Roman" size="3">Contract of employment - Suspension of employee - Basis of suspension to be proved by employer - Burden of proof - Admission of inadmissible evidence during trial - Duty of the judge when giving judgment - Evidence Act 1975,ss.11(4),14,52 and 118.</font></b></i><br>', 'WOOD (MRS), CJ', 'Civil', '', 'J4/3/2010', '', '', 'supreme', '2010-08-11', ''),
(549, 'DR. CLEMENT APAAK  ...  PLAINTIFF\r\nVRS\r\n1. THE ELECTORAL COMMISSION\r\n2. THE ATTORNEY-GENERAL  ...  DEFENDANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA, A.D. 2012\r\nCORAM: ATUGUBA, AG. C.J. (PRESIDING)\r\nDR. DATE - BAH, J.S.0\r\nADINYIRA (MRS), J.S.C.\r\nOWUSU (MS.), J.S.C.\r\nANIN - YEBOAH, J.S.C.\r\nGBADEGBE, J.S.C.\r\nAKOTO-BAMFO (MRS) J.S.C.\r\nWRIT NO.1112712012\r\n17" OCTOBER,2012\r\nDR. CLEMENT APAAK	PLAINTIFF\r\nVRS.\r\n1.	THE ELECTORAL COMMISSION\r\n2.	THE ATTORNEY -GENERAL	DEFENDANTS\r\nStatute - Legislative Instruments —Local Government (Ketu North District Assembly) (Establishment) Instrument, 2007 (LI 1843)— Whethers.2 (4) ofLI 1843 creates new electoral areas - Constitutional law - 1992 Constitution art. 45— Whether first defendant could be restrained from conducting national elections in lawfully designated electoral areas.\r\n \r\nDR. DATE-BAH JSC:\r\nThis is the unanimous judgment of the Court. In this case, the plaintiff challenges the authority of the Minister responsible for Local Government to create electoral areas in districts, municipalities and metropolises, which, according to the plaintiff, he has purported to do under what he has construed to be enabling power under the Local Government Act 1993 (Act 462). The plaintiff has therefore brought this action invoking the original jurisdiction of the Supreme Court, seeking a declaration that various legislative instruments specified in a Schedule attached to his Writ were made in contravention of Article 45(b) of the 1992 Constitution. Article 45 of the Constitution reads as follows:\r\n"The Electoral Commission shall have the following functions -\r\n(a)	to compile the register of voters and revise it at such periods as may be determined by law;\r\n(b)	to demarcate the electoral boundaries for both national and local government elections;\r\n(c)	to conduct and supervise all public elections and referenda;\r\n(d)	to educate the people on the electoral process and its purpose;\r\n(e)	to undertake programmes for the expansion of the registration of voters; and\r\n \r\n(f) to perform such other functions as may be prescribed by law".\r\nThe first defendant, which, from the above provision, is to be interpreted to have the exclusive constitutional authority to create electoral areas, admits that the Minister has no authority to create electoral areas. It, however, argues that the Minister responsible for Local Government did not, in fact and in law, establish or create electoral areas as contended by the Plaintiff.\r\nThe fact is, however, as illustrated by LI 1843, the Local Government (Ketu North District Assembly) (Establishment) Instrument, 2007 (which is appended, by way of a sample, as an exhibit to the plaintiff''s Statement of Case), the Legislative Instruments do contain a subsection 2(4) in the following terms:\r\n"For the purpose of election to the Assembly the area of authority of the Assembly shall be divided into the electoral areas specified in the First Schedule to this Instrument."\r\nThe issue is whether this provision (and similar provisions in the other Legislative Instruments listed in the plaintiff''s schedule) can reasonably be interpreted as amounting to the creation of electoral areas by the Minister. The first defendant''s contention is that by the Representation of the People (Parliamentary Constituencies) Instrument, 2004 (C.1.46), the Electoral Areas specified in the Instruments made by the Minister had already been earlier created by the first defendant. Accordingly, in spite of the language of subsection 2(4), quoted above, the Minister was not really creating an electoral area, but\r\n \r\nmerely referring to one already in existence.	In paragraph (5) of the first defendant''s Statement of Case, it affirms as follows:\r\n"We admit that Section 2(4) purports to divide the area of authority of the Assemblies into the electoral areas specified in the ft Schedule to the Instrument. This may seem to be ultra vires the powers of the Minister for Local Government or attributed to inelegant drafting."\r\nThis is a clear admission by the first defendant that there is a problem. This court can help to solve the problem by affirming that the Minister responsible for Local Government does not have authority to create or establish electoral areas and that to the extent there is any language in the Instruments listed in the Schedule to the plaintiff''s writ that suggests that he has any such authority that language is void to the extent of its inconsistency with Article 45(b).\r\nThe first defendant argues that because section 3(2)(e) of Act 462 empowers the Minister responsible for Local Government to specify "any other matters that are required to be included in the instrument or are consequential or ancillary to it", the inclusion of the electoral areas in the offending Instruments should be construed as consequential or ancillary to the establishment of the Assemblies set up by the Instruments pursuant to enabling power under Act 462. There is danger in this ambivalence. This Court should make it clear that, to the extent that section 2(4) of the Instruments gives the impression that the Minister is establishing the electoral areas, this is ultra vires and unconstitutional. Accordingly, this court should so declare. The Minister needs to use language which makes it plain that the electoral areas he refers to in the Instruments are pre-existing and already created by the first defendant. Any ambiguity in this\r\n \r\nregard should be resolved against him and any offending statutory language struck down to the extent of its inconsistency with the first defendant''s powers under Article 45(b) of the Constitution.\r\nFor the reasons given above, we would grant the plaintiff the first two reliefs endorsed on his Writ of Summons, namely:\r\n1.	"A declaration that the various legislative instruments specified in the Schedule attached to the writ, laid in Parliament by the Minister of Local Government, and which came into force after 21 Parliamentary sitting days, were made by the Minister in contravention of Article 45 (b) of the Constitution to the extent that those legislative instruments purported to create electoral areas for various districts, municipalities or metropolises in Ghana;\r\n2.	An order declaring the said legislative instruments null, void and of no legal effect to the extent that they sought to create electoral areas in said districts, municipalities or metropolises in Ghana."\r\nHowever, it would be unreasonable to restrain the first defendant from conducting national or local elections on the basis of the electoral areas specified in the impugned legislative instruments, if those electoral areas coincide with electoral areas that the first defendant has lawfully designated. We would thus only grant the third relief sought by the plaintiff subject to a qualification. The third relief sought is in the following terms:\r\n \r\n3. "An order of perpetual injunction restraining the 1" Defendant from conducting any national or local elections on the basis of the electoral areas specified in the impugned legislative referred to in the Schedule until those electoral areas are properly constituted in accordance with law in a manner that is not inconsistent with Article 45 (b) of the Constitution;...\r\nIt is granted subject to the qualification that the said injunction shall not apply where any national or local elections are held on the basis of any enactment by the first defendant which complies with the Constitution.\r\nIn sum, subject to the qualification noted above, the plaintiff''s action succeeds.\r\n(SGD) DR. S. K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) W. A. ATUGUBA\r\nACTING CHIEF JUSTICE\r\n(SGD) S. 0. A. ADINYIRA (MRS.)\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n(SOD) R. C. OWUSU (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) ANIN -YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) N. S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) V. AKOTO — BAMFO (MRS.)\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL\r\nDR. ABDUL BAASIT AZIZ BAMBA FOR THE PLAINTIFF.\r\nJAMES QUARSHIE-IDUN (WITH HIM ANTHONY DABI) FOR THE 1sT DEFENANT.\r\nSYLVESTER WILLIAMS ( PRINCIPAL STATE ATTORNEY) FOR THE 2ND DEFENDANT.\r\n_\r\n)\r\n', '../links/cases/Document (200).pdf', 'Yes', 'DR.DATE-BAH, JSC, ADINYIRA (MRS) JSC, OWUSU (MS.),J.S.C, ANIN - YEBOAH,J.S.C. GBADEGBE,J.S.C. AKOTO-BAMFO (MRS.) J.S.C', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Statute-Legislative Instruments-Local Government (Ketu North District Assembly) (Establishment) Instrument,2007 (LI 1843) - Whether s.2 (4) of L I 1843 creates new electoral areas - Constitutional Law - 1992 Constitution art. 45 - Whether first defendant could be restrained from conducting national elections in Lawfully designated electoral areas.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J1/27/2012', '', '', 'supreme', '2012-10-17', ''),
(550, 'GLADYS AKU AGBENU  ...  DEFENDANT/RESPONDENT/APPELLANT\r\nVRS\r\nIN THE MATTER OF THE ESTATE\r\nOF ROBERT AGBENU (DECEASED) AND IN THE\r\nMATTER OF GODWIN AGBENU  ...  PLAINTIFF/APPELLANT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA - GHANA\r\nCORAM:	ATUGUBA, JSC (PRESIDING)\r\nAKUFFO (MS), JSC\r\nANSAH, JSC\r\nOWUSU (MS), JSC\r\nBAFFOE - BONNIE, JSC\r\nCIVIL APPEAL NO. 14/26/2008 17T11 IUNE. 2009.\r\n\r\n	\r\n\r\nPractice and Procedure - Appeal - Dispute over Landed Property - Circumstances which Appellate Court can upset findings of Trial Court - Evidence —5. 80 of NRCD323 - Factors for Evaluation of Evidence —Whether TrialJudge rightly admitted evidence.\r\nU DC MEN ''I'' ATUGUBA ISC:\r\nThis is an appeal by special leave of this court from the judgment of the court of Appeal reversing the judgment of the circuit court, Accra presided over by his Ilonour Judge C.k.Minta\r\n \r\nThe facts of the case as stated by the Court of Appeal per Quaye J.A. are as\r\nfollows:\r\n"Robert Agbenu died intestate on 13th December, 1979. The\r\nPlaintiff/Appellant herein, claiming to be one of only two surviving children of Robert Agbanu filed an action in the Circuit Court, Accra on 15th n August, 2001 against the defendant/respondent, whom he identified as the other child of his father, claiming three heads of relief.\r\nThese reliefs are:-\r\na) a declaration that the subject- premises forms part of the estate of their deceased father, Robert Agbenu\r\naforementioned.\r\nb)	an order appointing the Registrar of the Court to gather-in the estate and distribute it to the parties herein;\r\nc)	Defendants/respondent to render accounts of all rents and proceeds from the disputed house with effect from 1980.\r\nThe averments in the accompanying statement of claim sought to assert the plaintiff''s capacity, the blood (paternal) relationship between him and the defendant/respondent, the extent of the estate of Robert Agbenu and the attempts that had been made to call the respondent\r\nto account.\r\nIn her pleadings however, the respondent denied substantially the averments of fact made by the appellant. Apart from denying any blood relationship with the appellant, the respondent asserted ownership of the disputed house No.E 119/14 Nima and counter claimed for a declaration to that effect.\r\nAt the end of the trial, the lower court dismissed the claims of the appellant, found in favour of the respondent and made orders upholding the counterclaim".\r\nThe plaintiff failed at the trial court but prevailed in the Court of Appeal. The defendant/respondent has appealed to this court on the following grounds:\r\n \r\n".That the judgment of the Court of Appeal is against the weight of evidence addressed at the trial.\r\nThat the judgment of the Court of Appeal cannot be supported by evidence adduced at the trial.\r\n•That the learned Court of Appeal Judges erred in law when they\r\nadjudged the deceased to be the owner of the disputed land and house.\r\n•The Court of Appeal failed to give the appropriate weight to the Defendant''s title Deeds (Exhibit A)".\r\nThe parties gave evidence themselves and by two witnesses each. The trial judge however took the view that once the defendant holds a registered document evidencing title in herself that is conclusive of the case. Thus at p. 69 of the record of appeal he stated as follows:\r\n"From the evidence adduced in court, the court finds as a fact that the\r\nplaintiff surprisingly tendered an indenture in respect of the house in dispute bearing the name of the defendant The indenture was tendered and marked as exhibit ''A''. It was dated 26th\r\nJanuary 1978, stamped as AC 5426/85 and registered at the Land Title Registry as 4565/1985 of 6th August 1985"\r\nContinuing at p. 70 he said:\r\n"In so far as the ownership of the plot has been registered at the Land Registry, it amplifies the position of the defendant as the owner of the land. Her ownership therefore cannot be Impugned or disputed Furthermore she is the house-owner collecting rent from the tenants as the landlady. The defendant is thus\r\nin legal and physical possession of the property. X X X XX\r\nWith the type of registration effected by the defendant it can be conclusively presumed that she is the owner of the house\r\n \r\nin dispute. The question to be asked by this court is by what stretch of imagination can the plaintiff claim a property for which he does not have any document to support his claim?\r\nThe plaintiff, however, must fail in his claim on two different grounds, namely (a) that he did not prove sufficient possession and (b) the defendant proved beyond all reasonable doubts that she was the\r\nowner of the House in dispute. As the equity maxim goes "equity follows the law" Therefore inasmuch as the defendant has been wise enough to register the plot as her property, she is\r\nthe owner of the plot Again any claim by the plaintiff is defeated by the provision of the Limitation Decree of 1972 (SMCD 54)."\r\nConsequently though he set out in extenso the evidence led in the case between pages 66-69 of the record, he regarded it as virtually irrelevant and did not assess the same. As to the Limitation Decree, the same was never in issue as it was not pleaded.\r\nThe Court of Appeal for its part rightly held that registration of purported documents of title per se does not necessarily establish the validity of the title in question. Beyond this however they also did not evaluate the evidence on record to any penetrating degree.\r\nIf the trial court had discharged its function properly that would have been the end of the matter. That function has been well known since the days of Majolagbe v Larbi (1959) GLR 190 and Quaye v Mariamu (1961) GLR 93 C.A. That function with regard to the facts in issue, has been restated in more recent times. Thus is NU v Amina (1984-86) 2 GLR 13 C.A. at148 Abban J.A. (as he then was with the concurrence of his other brethren) said: "As I said\r\nearlier on, the learned trial judge made a thorough and critical analysis of the evidence in the light of the issues raised before him, and the decision he arrived at was correct and should not be disturbed."\r\nAgain in Bisi v Tabiri (1984-86) 2 GLR 282 C.A. at 287 Adade JSC (his other brethren concurring) said: "As a judge of fact, it is his peculiar province,\r\n \r\nlistening to the evidence and having the witnesses before him, to weigh the\r\nseveral statements on each issue and to decide which to believe and which to reject And so long as his conclusions can find support from statements on record, it is not open to an appellate tribunal, except for\r\njust and compelling reasons, to disturb them." All this must be done in the light of S.80 of the Evidence Decree, 1975 (N.R.C.D. 323) relating to factors for the evaluation of evidence.\r\nWith regard to the Court of Appeal they should have also, as aforesaid critically evaluated the evidence since the trial judge had failed to do so, in order to render their decision on the facts supportable. Thus in Appiah v Takyi (1982-83) GLR 1 C.A at 3 Mensa Boison J.A. (his other brethren concurring), said: "though an appellate court may not lightly upset findings of fact made by a trial court, it may properly do so where, especially in a non-\r\njury trial, all the circumstances are adverse to such finding of fact see George Mattouk v Ellie Massad (1941) 7 WACA 91 at 93".\r\nSimilarly in Kofi v Kumansah (1984-86) 1 GLR 116 C.A. at 121 the court stated:\r\n''In the case of Codjoe v Kwatchey (supra), Webber 0 said at 374: "The Appeal Court is not debarred however from coming to its\r\nown conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the\r\nAppeal Court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from\r\noverruling it if on full consideration it comes to the conclusion that the judgment was wrong..."\r\nFrom all the foregoing it is clear that with respect, neither the trial court nor the Court of Appeal directed itself satisfactorily by critically evaluating the matters of fact in issue. Of course the incidence and degree of these\r\nprinciples may vary on the facts of a particular case.\r\n \r\nAll this apart, we have detected much confusion in the proceedings. It appears from the record that counsel for the parties adopted the question and answer form of leading their witnesses in evidence rather than the free narrative style. However, recording such evidence in the form of question and answer is the appropriate method with regard to cross-examination. When the same method is applied, to the adduction of evidence in chief, as was done in this case, it makes the same clumsy and disjointed and impedes a fluent perusal of the evidence so led.\r\nThen also, on 1211112003, after the conclusion of the evidence of DWI at p 42 of the record the following note appears:\r\n"BY COURT: Adjourned to t December, 2003 for continuation"\r\nHowever for some inexplicable reason the evidence of PW2 commences on 2011112003 at p.43 and concludes at p. 46 on 1111212003.\r\nThat is not all. Although this case related to land situate at Nima, Accra there is between pages 91 to 110 a judgment of the Court of Appeal in a case intituled J.K.Nyamekye versus Kofi Yeboah, C.A. No. 93/95 dated 15th April,\r\n1999 relating to land "known and called Asanteman Council... "on Mim Stool Land in the Brong Ahafo Region of Ghana.'' How did this case get into the proceedings of this case and for what purpose?\r\nIt is trite learning that where the facts have not been satisfactorily found by the lower courts this court can itself do so upon the recorded evidence. However in the circumstances of this case where counsel in the case were unable to unravel the facts of the case to the court by evidence and there is little to choose from the two cases as to the facts, the demeanour of the\r\nwitnesses might have been of help. See Atsu v. The Republic(1968) GLR\r\n716 C.A. at 720. Unfortunately there is no indication as to the incidence of this factor in the trial court''s judgment and with the added confusion in the proceedings as earlier alluded to supra we think the best and benign course to take in this case is to order a retrial. See Khoury v Choitel (1964) GLR 100 SC. Quagraine v Davies (1962) 1 GLR 104 S.C. of course is authority\r\n \r\n\r\n\r\n \r\nfor retrial based on confusion in a case. See also Commissioner of Police\r\nv. Tunday Lagos (1962) 1 GLR 127 S.C.\r\nWe accordingly allow the appeal, set aside the judgments of the Court of Appeal and the Circuit Court and remit this case for trial below before a Circuit Court, Accra, differently constituted.\r\nW. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\nS.A.B. AKUFFO (MS)\r\nJUSTICE OF THE SUPREME COURT\r\nJ. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\nR. C. OWUSU (MS)\r\nJUSTICE OF THE SUPREME COURT\r\nP. BAFFOE-BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL\r\nFREDERICK ASAMOAH FOR THE APPELLANT\r\nWILLIAM ANTHONIO FOR THE RESPONDENT\r\n', '../links/cases/Document (201).pdf', 'Yes', 'AKUFFO (MS),J.S.C.,ANSAH,J.S.C.,OWUSU (MS),JSC,BAFFOE-BONNIE,JSC', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and Procedure - Appeal - Dispute over Landed Property - Circumstances which Appellate Court can upset findings of Trial Court - Evidence - S.80 of NRCD323 - Factors for Evaluation of Evidence - Whether Trial Judge rightly admitted evidence</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J4/26/2008', '', '', 'supreme', '2009-06-17', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(551, '1. ARNOLDUS MARIA VAN DE MAST\r\n2. ELIZABETH MARIA VAN DE MAST-VAN DER WAL  ---  PETITIONERS\r\nVRS\r\n1. PATRICK HARRO KOOLEN\r\n2. NICOLE MARIA ESMERALDE KOOLEN-HEIJ  ---  RESPONDENTS', 'IN THE SUPERIOR COURT OF IUDICATURE, IN THE HIGH COURT OF IUSTICE ACCRA, COMMERCIAL DIVISION, HELD ON THURSDAY THE 26Th DAY OF IANUARY, 2012 BEFORE HIS LORDSHIP IUSTICE RICHARD ADIEI¬FRIMPONG\r\nSUIT NO. MISC/0512011\r\nIN THE MATTER OF KOSA BEACH RESORT LTD AND ANNINOPA LTD\r\nr. aYisJ\r\nIN THE MATTER OF THE BODIES CORPORATE (OFFICIAL LIQUIDATOR)\r\nACT, 1963 (ACT 180)\r\nBETWEEN\r\n \r\n\r\n \r\nVRS\r\n \r\n\r\n \r\n\r\nCOUNSEL: MARIETTA BREW APPIAH OPPONG FOR PETITIONERS --PRESENT FREDERICK I3OAMAI I FOR RESPONDENTS PRESENT\r\nCompany Law - Winding up - Voluntary - Petitioners seeking for winding up under the Bodies Corporate (Official Liquidations) Act 1963 (Act 180) - Winding up relief sought on just and equitable grounds - Each side prepared to buy out the other - Whether action properly brought before court— Alternative relief available - Claim for winding up dismissed - Petitioners allowed to buy out Respondents.\r\n \r\n\r\n \r\nIUDGMENT\r\nTwo Small Private Limited Liability Companies are in focus in these proceedings. "They are KOSA BEACH RESORT LTD AND ANNINOPA LTD. Henceforth in this delivery they shall be simply called "KOSA" AND "ANN INOPA".\r\nThe two Companies are wholly owned by the parties herein, Dutch nationals who had travelled to settle in Ghana purposely to do business.\r\nThe Petitioners are a husband and wife. They together hold a simple majority of 56% of the total shares in KOSA. The Respondents, also a husband and wife together hold the remaining 44% and from the records available the four (4) are the only directors of KO-SA. It is not in doubt that the object of KO-SA is mainly to operate a beach resort as a hospitality facility.\r\nThe share structure in Anninopa is 50% each for the Petitioners and the Respondents who are as well the first directors. Anninopa was incorporated from its regulations to carry on "Farming, food processing and manufacturing of Agricultural equipment". There is no evidence that any of these businesses has been carried out. The only known asset of Anninopa is the 1.96 acre land situate along the beaches of Ampenyi, a community in the Komenda Edina Eguafo Abrem District of the central Regional of Ghana. It is on this land that KOSA is situate and operated. I do observe that the issues that this court is called upon to determine and which it s!-,all endeavour to do, render the history of the formation of the companies significant to state and I state them briefly.\r\n \r\n\r\nThe Petitioners whilst in their home country planned to travel to Africa to invest in the hospitality industry. It was part of their intention to do this in association with others and they appeared to have discussed the idea with a friend. Co incidentally, I presume, the Respondents also shared a similar vision which fact became known to the same friend of the petitioners. It could therefore have only been a perfect opportunity for the two couples to associate to realize their common vision. The two sides eventually met in the Petitioners house back home to marry their plans together.\r\nThe Petitioners subsequently searched on the internet and found that KOSA was for sale. It was then known as KOSA CULTURAL CENTRE AND BEACH RESORT LTD.\r\nWith the consent of the Respondents the Petitioners negotiated with the former owners and settled on the price for the acquisition of that entity. The business was purchased for €222,500 out of which the Petitioners invested €124,600 and the Respondents €97,600.\r\nThis proportion in investment reflect the shareholding structure in KO-SA whose name they changed by a special resolution from the former to the present. The transaction was concluded some time in June 2007. When they commenced business, the parties as directors agreed to manage the business themselves and accordingly shared their roles as follows:\r\nPt Petitioner in charge of Finance and Administration. 2'' Petitioner in charge Marketing and Reservation, 1st Respondent in charge of Gardening and Cleaning and 2nd Respondent in charge of Shopping and Kitchen matters. Anninopa did not exist before. The parties incorporated it some time in May 2007 when they came to Ghana.\r\n \r\nThese are facts that are not in any controversy and from them the conclusion should not be remote to draw that the acquisition and incorporation of the companies in particular and the intention of the parties to invest and do business in the country in general must have been founded on mutual understanding, trust and projected harmony.\r\nIn recent times however, the relationship appears to have fallen on evil days and the result of all is the instant action by which if the facts the evidence and the law will warrant it, could, beyond the strained relationship between the two couples, occasion the demise of the corporate entities of KOSA and Anninopa.\r\nThe Petitioners have sought the following reliefs:\r\na)	An order of the court directed at the Respondent to sell their 44% share\r\nin KOSA and 50% share in Anninopa to the Petitioners at the price of\r\nUSD 98,245.00 in accordance with the valuation report or in the\r\nalternative.\r\nb)	That the companies be wound up by the court under the provisions of\r\nthe Bodies Corporate (official Liquidations) Act 1963 (Act 180)\r\nc)	Costs\r\nd)	Further or other reliefs.\r\nThe Respondents have also cross petitioned as follows:\r\na)	An Order to buy out the Petitioners shares of 56% of KOSA and 50% of\r\nAnninopa for an amount of 115,000 Euro from the companies.\r\nb)	Interim injunction to restrain the petitioners from winding up the\r\ncompanies.\r\n \r\ncJ Costs\r\nSection 246 (1) of the Companies Act 1963 Act 179 provides:\r\n1. "The winding up of a company may be either\r\na)	By an official liquidation in accordance with the provisions of the Bodies Corporate (official liquidations) Act 1963, Act 180 or\r\nb)	By a private liquidation in accordance with the provision of this part of the code".\r\nBoth the long and short titles of the Bodies Corporate (Official Liquidations) Act 1963 Act 180 indicate that the provisions therein govern official liquidation in accordance of which the jurisdiction of this court has been invoked. The relevant provisions are in Section 4 subsections 1, 2 and 5 which state:\r\n"4 (1) The Registrar or any other person who is\r\na)	A creditor of the company\r\nb)	A member or contributory of the company or\r\nc)	The Attorney General, but only on the grounds specified in paragraph (c) of subsection 2 may present a petition to the High Courtfor the official winding up of the Company.\r\n2) The High Court may order the official winding up of a company on a Petition presented under subsection 1 where,\r\na) The company does not within a year from its incorporation, commence to carry on all of the businesses which it is authorized by\r\n \r\nits Regulations to carry on, or suspends any of those businesses for a year.\r\nb)	The company does not have members;\r\nc)	The business or objects of the company are unlawful, or the company is operated for an illegal purpose, or the business being carried on by the company is not authorized by its regulations;\r\nd)	The company is unable to pay its debts or\r\ne)	The court is of the opinion that it is just and equitable that the company be wound-up.\r\n(5) Where the Petition is presented by members or contributories of the company on the grounds that it is just and equitable that the company should be wound up the High Court, if it is of the opinion\r\na)	That the Petitioners are entitled to relief by winding-up the company or by some other means and\r\nb)	That in the absence of any other remedy it will be just and equitable that the company should be wound up,\r\nShall make a winding up order unless it is of the opinion that another remedy is available to the Petitioners and that they acted unreasonably in seeking to have the company would up instead of pursuing that other remedy".\r\nThe Petitioners have sought the winding up relief on the just and equitable ground under the above Section 4 (2) e and S.\r\nBENIN I. (as he then was) noted in the Case of BILLY VRSKUWOR (1991)1 GLR 522 at page 529 that\r\n \r\n"When it comes to consider the just and equitable rule, it is a question of fact and as such each case must depend on its own circumstances. The court therefore has unfettered discretion in this exercise since it is not possible to lay down a general guide to the solution of what are essentially individually cases".\r\nSee also In RE BLERIOT MANUFACTURING AIRCRAFT (1916) 32 TIMES LR\r\n253.\r\nIn their pleadings, the petitioners have levelled several allegations against the Respondents to form the grounds for their winding up relief. For the sake of brevity I sum them up as follows:\r\n1)	The Respondents failure to perform their obligations in the business of the company and showing no interest in the progress of the business.\r\n2)	Poor business relationship between the Respondents and employees of the business and neighbours.\r\n3)	Bad human relations between the Respondents and client.\r\n4)	Finding the Regulations and laws of Ghana absurd. Hence difficulty in handling company matters with government officials and institutions and\r\n5)	Making unsubstantiated accusation of fraud against the Petitioners\r\nresulting in the breakdown of trust and cooperation in the running of the company.\r\nIn consequence of these allegations the Petitioners further pleaded as follows in paragraphs 25 and 26 of the petition.\r\n \r\n"25. Petitioners state that the mutual trust based upon which the parties entered the business has broken down, the business relationship has turned sour and there is no communication between the parties.\r\n26. The Petitioners shall contend that it is not their intention to have the companies wound up but having regard to the circumstances of the matter it is just and equitable that KO-5''A and Anninopa be wound up".\r\nIt is right to state that these allegations made by the Petitioners against the Respondents must be proven before they can ground the conclusions drawn for the relief sought.\r\nBut before examining the evidence adduced, I shall reiterate the point I earlier made that two companies are involved in these proceedings. It is true that the members and the Directors of the two entities are the same. That however does not intermix their separate and distinct legal status. This is moreso when their authorised businesses do differ. It seems to me that relating to the evidence and the facts established, this dichotomy seems to have been lost on the parties and even on Counsel.\r\nLearned Counsel for the Respondent in his address had made an introductory remark which appeared to have highlighted the distinction. He submitted\r\n"My Lord the facts and background to this case is straightforward. The Petitioner and the Respondent are Dutch nationals who met and agreed in 2005 to invest in a common business KOSA Beach Resort Ltd and Anninopa Ltd. Regrettably however the fact of the two businesses having separate and distinct legal personalities separate from the personalities of the Petitioners and the Respondents seems lost on the Petitioners".\r\n \r\nWhilst I agree with the principle as indicated by Counsel, he also seems to have, down the line mixed up the implications of the distinction as the conclusions in his address did not reflect the corporate divergence he had drawn initially.\r\nI establish that the grounds urged on this court for the winding up of KOSA may and as the facts will show could not be the same for the winding up of Anninopa. As a matter of fact Anninopa as a Company has never been operational.\r\nIn the Regulations of Anninopa which is part of Exhibit ''B'' before me, the\r\nauthorised business of Anninopa are:\r\n"a) Farming b) Food Processing and\r\nc) Manufacturing ofAgricultural equipment".\r\nThere is no evidence, none at all to show that any of these has ever been carried out. It comes out clearly that when the parties sat down and shared their responsibilities in the management of the business it related to KOSA. Anninopa has nothing to do with Reservations, Kitchen, Gardening and Cleaning. Indeed all we are told of Anninopa as far as business is concerned is the fact that it owns the land on which KOSA operates. That has nothing to do with farming food, processing and manufacturing of Agricultural equipment.\r\nI entertain no doubt that all the events resulting in the controversy, the allegations and counter allegations, relate to the business of KOSA. None can apply to Anninopa. Those allegations even if proven cannot in my opinion be relied upon to order the winding up of Anninopa.\r\n \r\nTherefore "The just and equitable" provision in Section 4(5) of Act 180 is inapplicable to Anninopa. But then the fact which has come out clearly and which this court cannot gloss over is that Anninopa since its incorporation has not carried on its authorised business and that is since May 2007. There is no indication that any of the objects of farming, Food Processing and Manufacturing of Agricultural machinery is intended to be carried out. The provision in Section 4 (2) ( c) of 180 is clear that the court may order the winding up of a company if it has failed to carry on its authorised business within 1 year of its incorporation or suspends any of those businesses for 1 year. The view of the court is that if Anninona is to be wound up, it could only be done under Section 4 (2) ( c) and not 4 (2) (e) which states the just and equitable ground.\r\nIn any case however, the power vested in this court under Order 4 (2) ( c) just like that under the "just and equitable" ground is permissive and discretionary. And like any discretionary authority, the power ought to be exercise in the manner the justice of the case shall dictate.\r\nAn element of complexity of this case is that because KOSA is situate and run\r\non the land owned by Anninopa, any winding up order of Anninopa will\r\ncertainly affect the business of KOSA.\r\nI shall therefore proceed to consider the case of KOSA before making any\r\norders about Anninopa.\r\nIn considering KOSA, I think that the reliefs being sought by the parties should be put in perspective. As far as the Petitioners are concerned the winding up order is an alternative relief. The primary relief if may describe it so is for an order to buy out the Respondents. For the Respondents, winding up is out of\r\n \r\nthe question. They want to buy out the petitioners. Let me state that the fact that each side is prepared to buy out the ether does not mean a winding up order cannot be made. In the case VUJNOVICH AND ANOR VRS VUJNOVICH (1989) LRC 634, the court found just and equitable grounds to wind up the company even though either side was prepared to buy out the other.\r\nIt all depends as indicated earlier on the circumstances of each case.\r\nLord Cozens-HARDY MR. highlighted this position clearly in the case of YENIDJE TOBACCO LTD. (1916) CH 4,.6. In that case the only two shareholders and Directors with equal management and voting rights became so hostile as to refuse to speak to each other. Despite this the company still made high profit. The court held that the company ought to be wound up because there was a complete deadlock. His Lordship states at page 432 thus\r\n"If ever there was a case of deadlock! think it exists here, but whether it exists or not, I think the circumstances are such that we ought to apply, if necessary the analogy of partnership law and to say that this company is now in a state which could not have been contemplated by the parties when the company was formed and which ought to be terminated as soon as possible. We are told that we ought not to do it because the company is prosperous; making large profits, rather larger profits than before the disputes became acute. I think ones knowledge of what one sees in the street is sufficient to account for that, having regard to the number of cigarettes that are sold for that, and we can take judicial notice of that in judging whether the business is much larger than it was before. Whether such profits would be made in circumstances like this or not, it does not seem to me to remove the difficulty which exists. It is contrary to the good\r\n \r\nfaith and essence of the agreement between the parties that the state of things which we find here should be allowed to continue"\r\nLord Warrington in the same opinion stated:\r\n''lam prepared to say that in a case like the present, where there are only two persons interested, where there are no shareholders other than those two, where there are no means of overruling by the action of the general meeting of shareholders the trouble which is occasioned by the quarrels of the two directors and shareholders, the company ought to be wound up if there exist such ground as would be sufficient for the dissolution of a private partnership at the suit of one of the partners against the other. Such ground exists in the present case. I think, therefore that it is just and equitable that the company should be wound up".\r\nAlso in LOCH & ANOR VRS JOHN BLACKWOOL LTD. (1924) AC 783 LORD SHAW in his judgment refers to the case of BAIRD VRS LEES (1924) SC 83 in which the just and equitable rule was made manifest in the following words.\r\n"I have no intention of attempting a definition of the circumstances which amount to a just and equitable" cause. But I think I may say this. A shareholder put his money into a company on certain conditions. The first of them is that the business in which he invests shall be limited to certain objects. The second is that it shall be carried on by certain persons elected in a specified way. And the third is that the business shall be conducted in accordance with certain principles of commercial administration defined in the statute, which provide guarantee of commercial probity and efficiency. If shareholders find that these conditions or some of them are deliberately and consistently violated\r\n \r\nand set aside by the action of a member and official of the company who wields an overwhelming voting power and if the result of that is that, for the extrication of their rights as shareholders they are deprived by the ordinary facilities which compliance with the companies Act would provide them with, then there does arise in my opinion a situation in which it may be just and equitable for the court to wind up the company".\r\nThere is no way paucity of authorities demonstrating the myriad of circumstances which render the just and equitable principle applicable. Learned Counsel for the Petitioners in inviting this court to wind up the companies referred me to the cases of IBRAHIM VRS WESTBOURNE GALLERIES LTD (1973) AC 360;\r\nIn RE ZINOTTY PROPERTIES (1984) 3 LL ER 754;\r\nRE: WORLDHAMS PARK GOLF GOURSE LTD (1998) 1 BCLC; and\r\nVIJJNOVICH VRS VUJNOVICH supra all of which are excellent authorities on the subject of the applicability of the principle. I need not go through them because of the view I shall express in a moment.\r\nAs I read Section 4 (5) of the Bodies Corporate (Official Liquidation) Act 1963 Act 180, my understanding is that where there is the availability of another remedy, the court may not wind up a company on the just and equitable ground. And the court will not so do where it is plain and obvious that the Petitioner has an adequate alterative remedy but is unreasonably pursuing a winding up petition. I suppose the position of our law only emphasizes the\r\n \r\nD\r\npopular view that winding up a company should be done as the last resort by a court.\r\nIn Re A Company (No. 003028 of 1987) (1988) BCLC 282, the majority shareholder purported to remove the minority from office as director on the ground of serious misconduct. The minority commenced on action by a writ claiming inter alia damages for breach of contract and also presented a winding up petition. The court struck out the winding up petition because in the view of the court the action commenced by the writ would be determinative of the parties rights.\r\nSimilarly in RE A (No. 004415 of 1996) (1997) 1 BCLC 497 the Vice Chancellor struck out the claim for winding up, holding that a share purchase order would be an adequate remedy and that the retention of the winding up claim could damage the business of the company.\r\nIn the instant case, the issue is simpler. The winding up claim is an alternative remedy. The Petitioners also seek a share purchase order. The Respondents not only resist the winding up claim but seek an order to buy the petitioners out. I am of the view that by their respective claims the parties have taken the position themselves that there exist some alternative remedy which will address their grievances. They have indeed specifically sought and pursued that remedy. Within the context of Section 4 (5) of Act 180 therefore, ordering that KOSA be wound up is not an order this court should make. Although in certain cases the authorities have shown that it will not matter, I am in this case further persuaded by the undeniable fact that KOSA is doing well as a business, making some profit and generating employment. In an economy where the level of unemployment is towering I doubt whether if\r\n \r\nthere are no statutory or other special reasons for it a court in Ghana today should be happy in pronouncing the demise of a hiring company like KOSA. Law should aid development and those of us who interprete them should be the apostles.\r\nI have given thought to the reasons assigned by the Petitioners for the winding up of the companies. I have considered the evidence adduced by the Petitioners to prove them and that by the Respondents in rebuttal. In the light of my findings on Anninopa Ltd and the conclusion I just drew that its sister company KO-SA ought not to be wound up I do not find it necessary to determine in any detail the merit of the individual allegations proffered by the Petitioners for the winding up order sought. However for the reason that some of them relate to the integrity of the parties, I shall make a few comments on them. Generally I find some of the allegations, petty, some unfounded and unproven. For instance the allegation that the Respondents left the business of the Company and went on their holiday without leaving a contact address turned out to be devoid of merits. The evidence adduced\r\nshowed that just as the Respondents went on their planned holiday, the Petitioners also subsequently went on their planned holiday. The following exchange which took place when Counsel for Respondent cross-examined the 2" Petitioner should amplify the point being made.\r\nQ:	During the Construction of the restaurant, Respondents embarked on\r\ntheir annual planned holiday.\r\nA:	It was the first time in three (3) years so it wasn''t an annual holiday\r\nwhich they spent in the Netherland.\r\n \r\nQ:	And as you rightly put it being in the country for two (2) years plus they\r\nhad pre-informed you that they will be taking their annual holiday at\r\nthat time of the year.\r\nA:	They informed us that they would take a holiday\r\nQ:	Before they went on that holiday also the work on the restaurant was\r\nalmost completed.\r\nA:	the work on the restaurant was not completed\r\nQ:	I didn''t say it was completed; I said it was almost completed they had\r\ndone a substantial part of the construction at that time\r\nA:	They had done a lot of work at that time\r\nQ:	This holiday was four (4) weeks\r\nA:	That is correct\r\nQ:	When the Respondents returned to Ghana and do the business not quite\r\nlong you also took your planned holiday.\r\nA:	We did take a holiday\r\nQ:	And if you recollect, you took your holiday for eight (8) weeks\r\nA:	The holiday was for seven (7) weeks\r\nQ:	In your absence the Respondents also had to hold the fort\r\nA:	They were at that moment responsible\r\n \r\nRespondents abandoned their schedule and travelled for a holiday. A:	I haven''t mentioned the word abandoned".\r\nIt is clear from the above that the parties took their planned holidays in turns and in the absence of one couple, the other held the fort. The Petitioners even took a longer period of holidays and from the evidence on record at the time they did the restaurant was yet to be roofed with the raffia. It was not as if it was fully completed. There is also the evidence that whilst on holidays, the respondent exchanged e-mails with the Petitioners. This makes untrue the claim that the Respondent left for the holidays without a contact.\r\nAgain when the Petitioners alleged that the Respondents found the laws of Ghana absurd and hence had difficulty in handling company matters with Government Officials and Institutions I would have thought that they would substantiate it, serious as it was. But no single event was cited in an attempt to establish it. For me that was an accusation that sought to put the Respondents in a bad light. I deem this unfair. My observation in all this however is that the allegations are all symptoms of total breakdown of mutual trust and confidence. It all started when the Respondent resisted the Petitioners proposal to put up a private residential facility at the premises of the resort for their personal use.\r\nObviously, that was what led to the mediation process which turned abortive in resolving their differences and which eventually culminated in the decision to communication by email. Regrettably it will now not be far from the truth to describe their relationship as near rivalry. But for the fact that there is an\r\n \r\nalternative relief which could be granted, this could have passed for a classical factual situation to order a winding up.\r\nHaving weighed all the facts and considered the law, I think I should reject the Petitioners claim that ROSA be wound up. Earlier in this judgment, I stated that because ROSA is situate and operated on the land owned by Anninopa Ltd, any winding up order of Anninopa will certainly effect the business of ROSA. By this kind of operational linkage, the view of the court is that if ROSA should stay then, Anninopa should stay. Therefore whilst I recognize the fact that Anninopa could be wound up because it had not carried on any of its objects, seven ( 7) years or so after its incorporation I do not consider it a good exercise of this court''s discretion to wind it up. ROSA survives on Anninopa''s land and for that reason Anninopa must live for ROSA to survive. The two should either die together or live together.\r\nI shall therefore similarly dismiss the claim for the winding up of Anninopa.\r\nI shall however recommend to the future shareholders to consider merging the two companies or take immediate steps to commence the object of Anninopa.\r\nHaving dismissed the winding up claim, the obvious relief to grant is the order for either the Petitioners to buy out the Respondents or for the Respondents to buy out the Petitioners. The two sides can simply not co exist any longer to run the companies.\r\nThis obviously is a difficult decision to make having regard to the apparent fact that each side is strenuously prepared to take over the stake of the other. But before deciding on the options, let me determine the issue about the value\r\n \r\nof the business and the valuation report that was prepared and tendered at the trial. This valuation report, Exhibit]'' forms the basis of the price quoted by the Petitioners for the acquisition of tne Respondents shares. For the Respondents, the report means nothing to them. It does not reflect the realities of the business in terms of total assets and hence the value of the business. To the Respondent therefore the report cannot form the basis of any good offer. So when the Petitioners had the report in evidence through their PW1, the Respondent also brought in their expert to review the report. Exhibit ''3'' is the review report tendered by DW1.\r\nThe issue for determination is whether in its present form the valuation report reflects the true value of the business so as to form the basis of any good offer. I should point one thing out that the Asenta Property consulting, which did the valuation, was engaged to value the assets of KOSA. In their own executive summary in Exhibit ''Y it is stated:\r\n"Asenta Property Consulting, a firm of Chartered Surveyors, Valuers and property consultants has been appointed by KOSA Beach Resort Ltd to advise the company on the open market value of the resort".\r\nOne controversy which arose in the course of the trial was the addition of the asset of Anninopa i.e. the land to the value of the assets of KOSA. The Respondents position which this court appeared to share was that if Asenta valued the assets of KOSA, then it was wrong for the value of the asset of Anninopa to be added up because the two were separate business entities. Whilst I still believe in the logic of this argument, I take the view however that given that presently the two businesses must necessarily be kept and run together, and given also that the only known asset of Anninopa is the land\r\n \r\nwhose value has been indicated in the report, the controversy dwindles and the court can conveniently assess the valuation report within the scope of the two companies. The first point to make is that by quoting their offer on the basis of the value stated in the valuation report, the Petitioners have proceeded from the premise that the report was prepared for purposes of the sale of the business. But was the valuation prepared for the purpose of the sale of KOSA?\r\nThere is nothing in the evidence to show that when Asenta was engaged it was told that the purpose of the exercise was for the sale of the business. It is said of valuation that one particular asset can have different values at one particular point in time depending upon the purpose of the valuation. So that for instance, talking about one and the same property and the same time, its value for say insurance purpose will be different from its value for sale purpose. Again its value for mortgage purpose will be different from its value for balance sheet purposes. I came across this information in a book titled\r\nINTRODUCTION TO PROPERTY VALUATION (A.F MILLINGTON) 5th edition page 49-50.\r\nThe Defendants witness Mr. Amofa Agyemang made the same point in his evidence as follows.\r\nQ: On number 4 of your findings you have indicated that it is not clear what the initial purpose of the valuation was..........would you mind explaining that one too to the court\r\nA:	I was just being fair to do the valuer because when you are consulted to value a property the person would have to indicate the purpose for\r\n \r\nwhich he needs the valuation report. If a valuation for example is requested for account purposes the values may be different from valuation for sale. For account purposes you are interested in the value of the asset minus depreciation in the books of the company so all those details are taken away. When it comes to value for sale, they are essentially different because you are selling out everything. So the purpose is to indicate how much I can sell this thing to day...............so it is important that the client indicates to the valuer the purpose for which they require the report that would enable the valuer to do exactly what the client wants".\r\nThis enlightenment from the authors of the book and from the witness affords me sufficient basis to raise the question as to the extent to which Exhibit ''J'' the report does reflect the real value of the companies for purposes of sale, there being no indication that that purpose was made known to Asenta and there being no evidence to show that the exercise was done for that purpose.\r\nSecondly the report also indicates clearly that Asenta valued the fixed assets of ROSA. It is stated in the executive summary under "JOB UNDERSTANDING" as follows:\r\n"The Job involves the identification, survey and the determination of the open market value of all the fixed assets of the resort which includes land and buildings, chattels and equipment based on their existing use value......\r\nThe simple question to ask is does the business not have any assets apart from fixed assets? And if there are other assets, are they valueless?\r\n \r\nKOSA is a beach resort that hosts guests on regular basis. I doubt if there were no current assets like stock and consumables. There is no mention of cash deposits. But the evidence of the Pt Respondent indicates that the company has a considerable cash deposit. Infact, a portion of the Pt Respondents evidence on this issue which is not controverted will not only show that the business has a strong liquidity position but will also demonstrated how wobbly the report is in terms of the asset value of the business. He said:\r\n"Coming back to the amount, we bought KO-SA for €248,000 and even the former owner''s price quoted on the internet was €410,000. After that we made further investments like buying a car for €10 000 doing some maintenance work on some buildings and we also had to pay the elders about GHt4,000 because of a small piece of land in front of KOSA. We did all these investment on 50/50 basis. I looked at the figures for the past nine (9) months for example, the average income of KOSA is GI-11.32,000 and profit for each month is GHt8,000. And even now we have about G11026,000 so when you compare that to the amount mentioned in the report then for me I don''t take it very serious'': This evidence makes much sense to me.\r\nEven though, there is no evidence to show how much cash deposit the business had at the time of the valuation, I think I can safely infer that the business at that material time could boast of a sum considerable enough to render unrealistic any asset valuation which did not take it into account.\r\nAssuming the property is to be sold today on the basis of the valuation report\r\nand for that matter the quotation indicated by the Petitioners, what happens\r\nto the GHC126,000 deposit which constitutes about 85% of the total value of\r\n \r\nthe whole business using the investment approach indicated by Asenta? (US$92,207.00).\r\nApart from the current assets, mention was also made of intangible assets like goodwill which was not factored. The PW1''s explanation is that goodwill comes in when a facility has really made a name. 1 find this explanation unpersuasive. It is in the same report that the property has been described as having a "unique location". As the Respondents witness pointed out location is a unique attribute one cannot easily copy or reproduce. I strongly believe that if the property were to be sold, the fact that its location is unique will in some measure enhance its value and price. This is the sense in which I appreciate the position of the Respondents witness. If this did not matter to Asenta, then maybe it was on account of the method they adopted. With the valuation report considered, against the background of the other evidence on record I am not satisfied that the report gives the real total value for purpose of sale of the business. I find that the businesses have been woefully undervalued and Exhibit ''J'' cannot form the basis of any realistic quotation.\r\nFor the purpose of one side buying out the other therefore, I strongly hold that a more comprehensive valuation should be conducted.\r\nNow who should buy out the other? Counsel for the Petitioners has laid out three main grounds for me to consider and order that the Petitioners buy out the Respondents. These are in brief as follows:\r\n1.	That the Respondents are the cause of the mistrust and the breakdown of the parties business relationship.\r\n2.	That the Petitioners are the majority shareholders of KOSA\r\n \r\n3. That the Petitioners have exhibited more interest in seeing the companies grow and achieve its full pitential.\r\nOn the other hand Counsel for the Respondent has pointed out the following:\r\n1.	That the Respondents have shown that they have a passion to run the\r\nbusiness having resigned their lucrative jobs in Holland and relocated in\r\nGhana.\r\n2.	That the Respondents have not shown any rule of law that allows them\r\nas majority shareholders in KOSA to buy them out.\r\n3.	That the Respondent have worked diligently and tireless and shown\r\ncommitment to buy out the Petitioners if they wanted to opt out.\r\nI must confess that there is scarcity of local authorities on this area of our law. Counsel for the Petitioners invited me to draw an analogy from Section 218 of our Companies Act 1963 Act 179. However the provision there offers no assistance. The relevant provision is Section 218 (2) which confers on this court the power to make an order for the purchase of shares or debentures of members by other members or debenture holders on grounds of oppressive conduct. The provision does not prescribe that the majority should purchase the shares of the minority or vice versa.\r\nThere is therefore no analogy to draw. In the case of SCOTTISH CO OPERATIVE WHOLESALE SOCIETY LTD. V MEYER (1959) AC 324, the court ordered the majority to buy out the minority on grounds of oppressive conduct but it was for the reason that it was the majority that had perpetrated the oppression and not for the reason it was the majority shareholder. That case therefore gives only a little assistance.\r\n \r\nI am of the opinion that, this court has discretion in the matter. And the object of this discretion for me should be; in whose hands can the companies do well.\r\nThe claim that the Respondents are the cause of the mistrust and break down is not established. I strongly think both sides share in the blame. It takes two to tango and the impression that the Petitioners always did right does not attract me. I also find that each side has contributed its fair due to the progress of the company. But let me say that, even though being the majority shareholder is not an established yardstick, it is also a fact which is difficult to wish away.\r\nI also notice that when the parties sat down to share their management roles the Petitioners took the roles of finance and Administration and marketing and Reservations.\r\nThe Respondents took the roles of gardening and cleaning and shopping and kitchen. Comparatively, the roles taken by the Respondents are low keyed in the scheme of the business.\r\nIt is my view that the Petitioners, aside their majority shareholding in KOSA have also handled the more essential and key roles in the management of the business. These two factors give them a slight urge over the Respondents and they inform my decision that they are better placed to buy out the Respondents.\r\nAccordingly, I rule that the Petitioners buy out the Respondents. This is subject to a comprehensive total asset valuation done for the purpose of the sale of Respondents shares and/or interest to the Petitioners. The cost of the valuation shall be at the expense of KOSA. Pending the valuation and the take\r\n \r\nI to lb •\r\nover, I order that the parties continue with the respective roles and remain entitled to all benefits in the business as they exist presently. I order further that upon the valuation the Petitioners shall pay what is accruable to the Respondents in full within 30 days; and upon such payment, the Respondents shall with immediate effective cease to be members and Director of the companies. I charge the lawyers of the parties to agree on a valuation firm to conduct the valuation within 14 days from today. If the lawyers cannot agree on one then both or any of them may bring an application before me for the appointment of a valuer.\r\nIn the circumstance of this case, I order the parties to bear their costs in these\r\nproceedings.\r\n(SGD.)\r\nRICHARD ADJEI-FRIMPONG\r\nJUSTICE OF THE HIGH COURT\r\n\r\n', '../links/cases/Document (202).pdf', 'Yes', '', '2012', 'high', '<i><b><font face="Times New Roman" size="3">Company Law - Winding up - Voluntary - Petitioners seeking for winding up under the Bodies Corporate (Official Liquidations) Act 1963 (Act 180) - winding up relief sought on just and equitable grounds - each side prepared to buy out the other - Whether action properly brought before court - Alternative relief available - Claim for winding up dismissed - Petitioners allowed to buy out Respondents.</font></b></i><br>', 'JUSTICE RICHARD ADJEI-FRIMPONG', 'Civil', '', 'MISC/05/2011', '', '', 'high', '2012-01-26', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(552, 'K. AMISSAH KOOMSON\r\nH/N0. 216\r\nBaba Yara\r\nMadina, Accra  ---  PLAINTIFF\r\nVRS\r\nGHANA REVENUE AUTHORITY\r\nCustoms Division\r\n28th February Road\r\nMinistries,Accra.  ---  DEFENDANT', 'IN THE SUPERIOR COURT OF IUDICATURE, IN THE AUTOMATED FAST TRACK HIGH COURT, ACCRA HELD ON THURSDAY THE 2311D DAY OF FEBRUARY, 2012 BEFORE HIS LORDSHIP JUSTICE E.A. ASANTE\r\nSUIT NO.AHR. 90/2010\r\nK. AMISSAH KOOMSON H/NO.2 16\r\nBABA YARA\r\n\r\n	\r\n\r\nPARTIES ABSENT\r\nEMMANUEL AMOFA FOR THE PLAINTIFF PRESENT BOB SENYALA FOR THE DEFENDANT PRESENT\r\nPensions - Entitlements - Terminal Benefits - Plaintiff suing for accrued entitlements for thirty- three and halfyears of service - whether defendant has breached conditions of service with regards to plaintiffs entitlements.\r\nLand Law - Title Deeds - Pull Payment not made - Requirement for full payment.\r\n \r\nJUDGMENT\r\n•\r\nThe Plaintiff is a retired employee of the erstwhile Customs Excise and Preventive Services [CEPS] and now, a branch of the Ghana Revenue Authority, the Defendant herein. The Plaintiff''s complaint is that he worked for the CEPS for a period of thirty three and a half [33.5] years but upon his retirement, he was denied the payment of his terminal benefits; hence instituted this action against the Defendants for the following reliefs:\r\na.	An order compelling the Defendant to pay to the Plaintiff all his legitimate welfare package or accrued entitlements for his thirty three and a half years of service with the Defendant.\r\nb.	An order compelling the Defendant to release the title deeds of his premises for which Plaintiff has fully discharged his obligations to the Defendant.\r\nc.	Interest on the Plaintiff''s accrued entitlements at the prevailing bank rate from 1st April 2008 to date of final payment.\r\nd.	Costs.\r\nFrom the Plaintiff''s pleadings as well as his evidence at the trial, he contended that he retired from the employment of the Defendant on the 8th of March 2008 and became entitled to some end of service benefits to which all retired officers of the Defendant were entitled.\r\nHe maintained per his January 2008 pay slip which he tendered into evidence as exhibit "B", that his basic salary at the time of his retirement was GH4J,871.32. He went on to say that the entitlements which he was denied were:\r\n[a] One large size deep freezer; [b] GH4460.00 being medical subsidy from 2008 to 2011; [c] Long Service Award of GI-1 5,613.96 being three months salary, and [d] a Certificate of Honour as per Article 40[1c] of their conditions of service which conditions he tendered into evidence as exhibit "A"; [e] GH02,689.22 being four (4) weeks salary for every year served; and [f] a kente cloth. The Plaintiff again stated in evidence that he purchased a vehicle from the Defendant and his salary had been over- deducted to the tune of GH78.00 and so he was entitled to a refund of it. In all therefore the Plaintiff contended that he was entitled to be paid the sum of GH08,243.21 from the Defendant by virtue of the Conditions of Service which the Defendant has refused to pay to him. He went on to say that whilst in the employment of the Defendant, he was granted a housing facility by the Defendant and so the title deeds of the premises were used as security and kept by the Defendant. He contends that he is left with the balance of GH4t257.00 which he expects the Defendant to deduct from his entitlements, but the Defendant has refused to do so and to release the\r\n \r\ndocuments to him despite demands for it. In respect of the vehicle, the\r\n• Plaintiff states that it was valued at GH4:6,300.00 by the State Transport Company and it was offered to him at the same amount by the Defendant and that from deductions made by the Defendant from his salaries, he has overpaid to the tune of GH75.64 to which he is entitled to a refund. The Plaintiff totally rejected and denied the Defendant''s contention that his End of Service Award of three months'' salary was GH43,208.29, that his welfare package was one week basic salary for every year served totaling GH48,269.48, and that his car loan balance stood at GH10,502.61. In all therefore he denied the Defendant''s contention that the total amount due for collection by the Plaintiff from Defendant was GHc975.61.\r\nFrom the statement of defence as well as the evidence at the trial, the Defendant denied being liable to the Plaintiff for his claims.\r\nThe Defendant contended strongly that under their conditions of service, there is nothing like retirement benefit comprising of four weeks'' salary of every year served as claimed by the Plaintiff. Rather, the Defendant maintained that there was a special welfare package under which the Plaintiff was entitled to one weeks'' basic salary for every year served. Again, the Defendant stated that upon the Plaintiff''s retirement, he was entitled to a large size fridge or a deep freezer not a large deep freezer. The Defendant again contended that the Plaintiff is also entitled to a medical subsidy not exceeding GH440.00 per annum. Defendant also contended that the Plaintiff was entitled to three months basic salary as Long Service Award which Defendant quoted as GH43,208.29. The Defendant again maintained that the Plaintiff was owing on the car loan to the tune of GHc10,502.61. The Defendant again stated that the Plaintiff had not put in an application for the release of his documents to him as required and so it will be done if he applies for it upon final payment.\r\nAt the close of pleadings, the following issues were set out for the determination of the case:\r\na.	Whether or not the Plaintiff was in the service of the Defendant for thirty three and a half years.\r\nb.	Whether or not the Plaintiff''s entitlements consist of four [4] weeks'' salary for every year served.\r\nc.	Whether Defendant has complied with the payment of the Long Service Award under the Defendants'' Conditions of Service.\r\nd.	Whether the Defendant was required to release the title deeds of the Plaintiff''s property after fully discharging his financial obligation to the Defendant.\r\n \r\n4\r\ne.	Whether the Defendant is indebted to the Plaintiff in respect of the car •	loan.\r\nf.	Whether the Defendant has breached the Conditions of Service as regards the payment of Plaintiff''s entitlements.\r\ng.	Whether the Plaintiff is entitled to his claims.\r\nAdditional issues:\r\n1.	Whether or not by the Conditions of Service for staff of the Defendant there is a provision for retirement benefits.\r\n2.	Whether or not the officially documented award for retired officers of the Plaintiff category is a large size fridge or deep freezer and a medical subsidy not exceeding GH00.00 per annum.\r\n3.	Whether or not in addition to the retirement award the Plaintiff is entitled to "Long Service Award" of three months'' basic salary and a Certificate under Article 40 of the Conditions of Service for staff.\r\n4.	Whether or not officers granted housing loans apply officially for the return of their title deeds used as collateral for the loan after fully discharging all obligations attached to the loan.\r\n5.	Whether or not it is on record that as at the date of this suit Plaintiff had applied for the return of his title deeds.\r\nI will deal with the issues raised as and when they arise. For me issue [a] as set out does not arise at all because the defendant has not disputed the Plaintiff''s contestation that he worked for thirty three and half years. I therefore find as an undisputed fact that that the Plaintiff worked for the Defendant for thirty three and half years. On issue [b], whereas the Plaintiff contends that he is entitled to four weeks basic salary for every year served as his retirement award, the Defendant contended per its witness that he was entitled to one week basic salary for every year served. There is evidence on record that for lack of funds the Defendant agreed to pay two weeks and sometimes one week basic salary for each year served, depending on the year of retirement and availability of funds. For instance under cross-examination of the Defendant''s Welfare Officer by the Plaintiff''s counsel, he stated that those who retired in 2007 were paid two weeks basic salary for every year worked but those who retired in 2008 were paid one week''s salary for every year worked as their retirement awards. It is also undisputed on record that the agreed period for the payment of the retirement award was four weeks for every year served and that those received payments for periods less than that would be re-imbursed when the time came for\r\n \r\nS\r\nthe full payment. In the circumstances, since the Defendant''s witness\r\n• stated that they were in the position of paying two months, I hold that the Plaintiff herein is entitled to the payment of two weeks for every year served. The unchallenged evidence is that the Plaintiff''s monthly basic salary at the time of his retirement was GH41,871.32. To buttress this contention, the Plaintiff tendered his pay slip for January 2008 into evidence as exhibit "B" I therefore order the Defendant to calculate the Plaintiff''s retirement award based on this figure. I now come to the issue of the title deeds. The Plaintiff contended that he has just GH4257.00 left on his housing loan to repay and that the Defendants have failed to deduct it from his terminal benefits so they can release his title deeds to him. From the Defendant''s contention, the Plaintiff has not fully paid for the facility; hence his title deeds have not been released to him. On this issue I agree with the Defendant''s stance. The Plaintiff has to take steps to make full payment before his title deeds would be released to him. There was no agreement that the loan would be deducted from his terminal benefits. I therefore hold that the Plaintiff is entitled to the release of his title deeds from the Defendant immediately upon payment of the balance of GH257.00 to the Defendant. Upon payment of the balance, the Defendant is ordered to immediately release his title deeds to him. The next issue is on the payment of the car loan. In respect of this, the Plaintiff contended that the car was valued by the State Transport Company to cost GH6,300.00 and that in all the sum of GH6,378.64 had been deducted from his salary. He therefore contended that he had overpaid by GH478.64. The Plaintiff again exhibited the letter of request sent by the Defendant to the Intercity STC to value the\r\nPlaintiff''s vehicle together with other cars as exhibit "D". He also tendered the valuation report as exhibit "E" in proof of the price and he also tendered as exhibit "F" the offer letter from the Defendant offering the car for him at the valued price of GHc6,300.00. All these were admitted into evidence without objection by the defence counsel. The Defendants denied the Plaintiff''s assertion that he had fully paid the car loan but were unable to state the debt position when asked to do so.\r\nUpon request by the Plaintiff''s counsel, the Defendants could not produce the account. The only available evidence for consideration by the court is the documents tendered by the Plaintiff. On the face of exhibit "B", the Plaintiff has overpaid the car loan and is entitled to a refund of the overpayment. I therefore order the Defendant to refund the Plaintiff''s amount of GH478.64 to him. The issue of the Long Service Award does not arise at all. The Defendant''s own witness admitted that the Plaintiff is entitled to End of Service Award of three months basic salary. I therefore find that the Plaintiff is entitled to be paid his End of Service Award of three months basic salary. The Defendant also admitted per its witness that the Plaintiff is entitled to a deep freezer and I order the Defendant to procure the said deep freezer to the Plaintiff. The other issue is the medical subsidy. The Defendant per its witness admitted that the Plaintiff\r\n \r\n()\r\nis entitled to be paid the sum of GH40.00 annually as medical subsidy\r\n• but he was not practically entitled to it because no officer had been paid that subsidy. He however admitted that under article 36(4)ii all retirees including the Plaintiff who had worked for fifteen years and more were entitled to this subsidy. Following this admission, I find that the Plaintiff is entitled to be paid his medical subsidy of GH40.00 by the Defendant from 2008 when he retired until his death.\r\nIn sum therefore, I enter judgment for the Plaintiff against the Defendant in the following terms: Defendant is ordered to pay to the Plaintiff his terminal award being two weeks of his basic salary of GH1,871.32 for every year worked, with the remaining two weeks to be paid when the company decides to pay for all staff of the Plaintiff''s category as agreed. Defendants are in addition ordered to pay to the Plaintiff his Long Service Award which is his three months basic salary. Defendant is also ordered to refund the Plaintiff''s GH478.64 to him and in addition write a letter to transfer the titled to the Toyota Corolla to him. The Defendant is also ordered to release the Plaintiff''s title deeds which he used to secure the loan to him upon payment of the outstanding balance of GH4257.00. The Defendant is also ordered to pay the Plaintiff his medical subsidy in terms of the Conditions of Service tendered as exhibit "A".\r\nUpon the Defendant''s own admission, it is ordered to buy the Plaintiff a large deep freezer refrigerator in accordance with the conditions of service. Interest is to be calculated on all sums adjudged to be paid to the Plaintiff by the Defendant. It is also ordered that all payments and orders made under this judgment are to be complied with within sixty days from today. I award cost of GH4,000.00 for the Plaintiff against the Defendant.\r\n(SGD) EDWARD AMOAKO ASANTE\r\nJUSTICE OF THE HIGH COURT\r\nEY/...\r\n', '../links/cases/Document (203).pdf', 'Yes', '', '2012', 'high', '<i><b><font face="Times New Roman" size="3">Pensions - Entitlements - Terminal Benefits - Plaintiff suing for accrued entitlements for thirty-three and half years of service - whether defendant has breached conditions of service with regards to plaintiff''s entitlements.Land Law - Title Deeds - Full Payment not made - Requirement for full payment.</font></b></i><br>', 'JUSTICE E.A. ASANTE', 'Civil', '', 'AHR.90/2010', '', '', 'high', '2012-02-23', ''),
(553, 'FREDERICK MENSAH  ...  PLAINTIFF/RESPONDENT\r\nVRS\r\n1. DIRECTOR NEWMONT\r\n2. NEWMONT GOLD GH. LTD.  ...  DEFENDANTS/APPELLANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE COURT OF APPEAL\r\nACCRA-GHANA\r\nCORAM:	A. ASARE-KORANG, J.A (PRESIDING) V. OFOE, J.A.\r\nC.J. HONYENUGA, J.A\r\nSUIT N0.1-11/72/2012 15T1 NOVEMBER, 2012\r\nFREDERICK MENSAH	PLAINTIFF/RESPONDENT\r\nVRS.\r\n1.	DIRECTOR NEWMONT\r\n2.	NEWMONT GOLD GH. LTD	DEFENDANTS/ APPELLANTS\r\nLand Law - Compulsory Acquisition - Compensation - Method of Payment— Minerals and Mining Acts s. 73 and 74 - Law on compensation payment requires agreement by the parties on what compensation to be paid —Agreed method of compensation is Acreage method.\r\nPractice and Procedure —Appellate Court - Circumstances under which it can interfere with findings of trial court —Justifiable to do so when findings is inconsistent with crucial evidence on record\r\nOFOE, IA.:\r\nThe defendant acquired a mining lease from the government of Ghana in Ad ausena in the New Abirem District of the Eastern Region. By law it is obliged to pay compensation to persons, including farmers, who found themselves on the acquisition area.\r\n \r\n\r\n \r\nand were to be displaced. The plaintiff, a farmer, happens to be one of these persons. It is the accepted practice that the farmer affected, in this case the plaintiff, the chief farmer of the area, officials of the defendant company and an officer of the Land Valuation Board approves of the type and quantities of the crops found on the affected farmers land. What was found on plaintiff''s land and signed by these personalities was tendered as exhibit A. The dispute between the plaintiff and the defendant in the trial court and indeed in this court is in respect of some 5000 nursery seedlings which plaintiff claims he is entitled to be compensated for. The defendant does not intend paying the plaintiff this demand because it is its case that there is an accepted mode of payment for seedlings which is not what the plaintiff is demanding. The defendant contends that the payment is on acreage basis. The matter had to go to the Nkawkaw High Court for determination.\r\nBy his writ of summons, which was home brewed i.e. issued by the plaintiff personally, he asked for an order from the court directed at the defendant to pay compensation to him as per the valuation report of his farm.\r\nDefendants'' case on the pleadings is that it is true that they found 5000 seedlings and other crops belonging to the plaintiff on the land. These were duly recorded and that is what is recorded in exhibit A. They were to facilitate the movement of the seedlings to any place of choice for the plaintiff but he refused insisting he was\r\n \r\nentitled to be paid compensation for these 5000 seedlings which are\r\nnot crops planted on the land.\r\nThe trial court agreed and gave him judgment directing the defendant to pay the plaintiff compensation for all crops including the 5000 seedlings, rejecting the acreage mode of payment offered by the defendant.\r\nThe trial judges reasoning for this conclusion can be noted under two heads. Firstly that it was not right for the second defendant to object to the planting of 5000 seedlings on the plaintiff''s 5 acre piece of land on the grounds that the seedlings were too many to occupy that size of land. Such objection the trial judge found unreasonable because it was the view of the trial court that it was the plaintiff''s right to decide on the most economic use for his land and not the defendant. Secondly the purpose of the stock taking was to identify and record the crops growing on plaintiff''s land and since counsel for the defendant in his address admitted that the 5000 seedlings are crops then the seedlings qualify to be paid compensation like any other crop.\r\nThe defendant does not agree with the trial judge and has appealed against the judgment on the grounds that the judgment is against the weight of evidence and that the order of the trial court that it pays compensation for all the 5000 seedlings is arbitrary and has no basis in law or the facts.\r\n \r\nThe authorities are now agreed that where a trial court took into consideration the demeanor of the witnesses before him or her as well as the substance and quality of oral and documentary testimonies before giving judgment then an appellate court has no power to disturb or interfere or reverse the judgment of the trial court. But then it is also recognized that an appellate court may reverse findings of fact made by a trial court based on established facts. It may justifiably interfere with a finding of fact by a trial court where the finding is inconsistent with crucial evidence on record or the finding of the trial court is perverse. Refer to the cases of Agbemashie vs. Amorkor (2009) SCGLR 594, Koglex No 2 vrs Field (2000) SCGLR 175 at 184. This the appeal court does by examining the record of appeal critically to satisfy itself that the said findings of the trial court are supportable having regard to the evidence on record. As is commonly said, an appeal is by way of rehearing and we are duty bound to review the record of appeal whether the appeal of the defendant is supportable\r\nBy the appeal records the valuation report plaintiff had in mind at the time of instituting the suit was exhibit A. He was asking that he be paid compensation according to this report, exhibit A. It is clear however from the record of proceedings that exhibit A is not a valuation report to form the basis of any payment as contended by the plaintiff. I will agree therefore with the defendant that exhibit A is a record of the personal data of plaintiff, and the description and enumeration figures of the crops plaintiff had on the farm at the\r\n \r\ntime of the enumeration and not a valuation report. There is therefore a defect in the claim of the plaintiff in that he was making claim on a report which has not made any valuation entitling him to any monetary payment. This defect notwithstanding it is my view that the plaintiff''s claim should not be dismissed only because of this defect in his claim. I have earlier mentioned that the plaintiff was in court without the assistance of a lawyer. The authorities have in certain circumstances permitted the courts in looking at the substance of the claim and not the form in ascertaining the nature of the claim before it. Refer to the case of Ghana Consolidated\r\nDiamond Ltd vs. Tantuo (2003-2004) SCGLR 1144. They have also permitted the courts to amend the claim of parties before it if the circumstances will so permit and no injustice will be occasioned the other party so as to grant parties any award due them to meet the justice of the case. For this position we may look at the case of Amakom Sawmills vs. Mansah (1963) 1 GLR 368, Akyea Djamson vs. Duagbor (1989-90) 1GLR 223. What then in substance did the plaintiff want from the defendant company and did the record of appeal disclose he was entitled to any such relief against the defendant?\r\nBefore I proceed with this judgment it is worth mentioning that the record of appeal discloses that as regards compensation matters there is this negotiating committee, the Compensation Negotiation Committee (CNC) comprising representatives of farm owners, the Newmont Company, the Lands Commission and Town and Country Planning and the valuation Board. The plaintiff admits this\r\n \r\ncommittee exists, and admits further that the decision of this committee binds him.\r\nReading the record of appeal in whole the defendant''s position appear not to be denying the plaintiff any compensation but rather to pay him according to the operative rules in the field which accords with the Minerals and Mining''s Act 2006 (Act 703). According to the defendant these are rules that have been crafted by the CNC for use and have been in use in the payment of compensation to others also entitled. To the defendant therefore the plaintiff is entitled to compensation but not for the whole of the 5000 seedlings.\r\nI will then ask, how much compensation is the defendant admitting the plaintiff is entitled to?\r\nDefendant testified through a Mr. Paul Obeng, an employee of the defendant company. He told the court the CNC has subcommittees. It was the Crops Compensation Committee that assessed the rate of payment for crops. The crops were classified into three: seedlings, medium and matured plants. At a meeting of the Crops Subcommittee meeting it was agreed that the definition of a seedling is a young plant that can be found on the nursery bed or on the field but has not developed new roots and leaves. This witness testified further that they found out that sixty oil seedlings\r\n \r\ncan plant one acre of land. So any anything in excess of the sixty is to be transported to another land. His evidence continued:\r\n"We found out that the plaintiff had another land of about five acres in the area. We are now processing compensation for that five acres land but the extra 5000 seedlings compensation will also be added to the compensation on the five acre land. For the 0.1 acre we are going to estimate the number of seedlings which can be planted on the 5 acre land and add to the 0.1 acre land. We are only paying the transportation of the extra 5000 seedlings to the 5 acre land"\r\nEven though it would be right to say that this evidence is not too clear, the import becomes clearer after reading submissions of both counsel. The meaning gathered is that while the plaintiff wants to be paid simply for his 5000 seedlings, since these were counted and recorded as found on his farm, the defendant wants to apply acreage payment method. In other words how many acres would the plaintiff need to be able to plant the whole of his 5000 seedlings? If by the standard practice sixty seedlings can be planted over an acre of land then for the 5000 seedlings the plaintiff would need over 80 acres of land to plant the whole of the 5000 seedlings. They found that the plaintiff had no such land. All he had was a 5.1 acre land and will therefore be paid for the number of seedlings that can be planted on this acreage and would be assisted to carry the remainder of the seedlings to any place of his choice. This acreage\r\n \r\nmethod of payment approved by the CNC was what was used for payment of compensation all other farmers. This evidence was not denied by the plaintiff.\r\nSubmissions of counsel for the defendant in support of his ground of appeal were that there should be no doubt that exhibit A was not a valuation report but a recording of the crops that were found on plaintiff''s land. Also there was the CNC which was responsible for categorizing and working out the procedure by which compensation would be paid the beneficiaries. It is counsel''s submission that it was wrong for the trial judge to have ignored this CNC, its subcommittees and its guidelines and ordered payment to the plaintiff for all the 5000 seedlings, in effect failing to properly assess the probative value of exhibits 1 and 2. It is counsel''s submission that compensation payment has been by the acreage method to all other farmers, who like the plaintiff have agreed to be bound by the decisions of the CNC.\r\nCounsel for the plaintiff on the other hand had a simple position in his submission. The compensation payment by the defendant based on the acreage approach is not only arbitrary but unknown to the Mining Commission. He emphasized that the plaintiff is entitled to nothing than the full value of all the 5000 seedlings as granted by the trial judge. This to him is the agreement between the plaintiff and the defendant and nothing else.\r\nI have stated earlier in this judgment that plaintiff''s claim on the writ is defective but that we will not hold him to it if the justice of\r\n \r\nthe case so demands. From the record of appeal it appears clear that what the plaintiff is asking from the court is for an order to be paid compensation for the 5000 seedlings. What is the basis for this claim? Since he is asking for this payment he has the evidential burden to convince the court the basis for this claim. I think the position of the law on this is clear. In his counsel''s submission he refers to exhibit 1 at page 7 land 72 as the contract and the "law" which binds the defendant to pay t7 per seedling to the plaintiff Try as I could I found no basis for considering this exhibit as a contract or law governing compensation. Exhibit 1 is the report of the 7th meeting held by the crop subcommittee. The report contains deliberations and definition of mature plant, medium plant and seedlings and nothing else. Counsel again refers to exhibit 2 as an agreement to pay (P7 as compensation rate for seedlings. Here again there is nothing in there that specifies t7 as compensation rate for all seedlings found on a farm. It would appear therefore that the plaintiff failed to establish any basis for the compensation of all the 5000 seedlings he is asking of this court.\r\nThe trial judge concluded that in so far as counsel for the defendant has admitted that seedlings are also crops then the seedlings are entitled to compensation. With all due respect to the trial judge counsel''s submission is not evidence and therefore it was wrong for him to have relied on such submission to find for the plaintiff Again nowhere in the record of appeal is it stated that if seedlings are found to be crops then they are entitled to compensation. In any case it has never been in doubt that in\r\n \r\nexhibit 1 seedlings are crops. The issue before him was what mode of payment existed for the payment of seedlings. Was it payment on acreage basis as contended by the defendant or payment for the whole 5000 seedlings as contended by the plaintiff and why? This was not answered by the trial judge. The trial judge''s next argument he made in favour of the plaintiff was why the defendant would want to determine for the plaintiff how many seedlings should fill an acre of land. According to the trial judge it was for the plaintiff to determine how many seedlings he will want to put on a plot and not the defendant. This position taken by he trial judge is not accurate. The law on compensation payment as will be shown presently requires agreement by the parties on what compensation to be paid and not a sole decision of the plaintiff. He argued further that since the seedlings were in existence before the moratorium then the defendant was bound to pay for the 5000 seedlings. Here again with all due respect to the trial judge he begged the question. Why should the plaintiff be paid for all the 5000 seedlings only because they were in existence before the moratorium? It is not an accurate position to take that every crop in existence before the moratorium was entitled to compensation. The record of appeal does not support such position.\r\nI have stated earlier in this judgment that the defendants admit the plaintiff is entitled to compensation but not to the whole of the 5000 seedlings as claimed by the plaintiff. They contend that their chosen method of payment is in accordance to Act 703, the Minerals and Mining Act which governs compensation payments. What does this\r\n \r\nlaw say? On reading this enactment I find the following provisions very relevant to our case i.e. sections 73 and 74 of this Act.\r\n1173(1) The owner or lawful occupier of any land subject to\r\na mineral	right is entitled to and may claim from the\r\nholder of mineral right compensation for the disturbance\r\nof the rights of the owner or occupier, in accordance with\r\nsection 74.\r\n"74.(1) The compensation to which an owner or lawful\r\noccupier of land may be entitled	may include\r\ncompensation for:\r\n(a)Deprivation of the use of or particular use of the\r\nnatural surface of the land or part of the land\r\n(b)Loss of or damage to immovable property\r\n(c)In the case of land under cultivation, loss of\r\nearnings or sustenance suffered by the owner or\r\nlawful occupier, having due regard to the nature of\r\ntheir interest in the land\r\n(d)Loss of expected income, depending on the nature\r\nof the crops on the land and their life expectancy..."\r\n \r\nReading the law in whole and the above mentioned sections in particular, one will not fail to come to the conclusion that there is no iron clad rule as to what compensation should be paid to beneficiaries. It is a function to be determined by agreement noting that at the end of the deliberations fair compensation will be paid all beneficiaries. This is a constitutional, Article 20(2)(a) of the 1992 constitution. The Act also provides for steps to be taken where there is no agreement. Refer to section 73(3). So was there agreement between the parties as to the compensation payable to the plaintiff? From the record of appeal it would appear that because several other farmers were affected by the acquisition it became necessary to have an umbrella body, the CNC, for the decision on the modalities and how much compensation to pay beneficiaries to be determined. It is reasonable to conclude from the evidence therefore that the CNC was the body that did the negotiation and it is at that point that agreement, the agreement required under the law, is reached with the beneficiaries. This is what the plaintiff said in cross examination:\r\n"Q. You said the compensation is done by the CNC (Compensation Negotiation Committee)\r\nA. Yes they negotiate the price\r\nQ. Whatever CNC agreed is binding on you?\r\nA. Yes"\r\n \r\nI have earlier mentioned the composition of the CNC.\r\n \r\nWhat then did the CNC agree should be the mode of handling seedlings and how much was to be paid for seedlings? From the evidence on record I think the plaintiff should be bound by the decision of the CNC which is that the plaintiff will have to be paid for the number of seedlings that will cover the area 5.1 acres and should be assisted to convey the remainder of the seedlings to any place of his choice.\r\nIn consequence of the analysis of the evidence on record and on application of the law governing compensation payments, the Minerals and Mining Act, I find myself unable to support the findings and judgment of the trial court. He failed to give adequate consideration to the evidence on record thereby coming to a wrong conclusion granting the order that the plaintiff be paid compensation for all the 5000 seedlings.\r\nI will uphold the appeal and set aside the judgment and order of the trial court.\r\n(SGD.)\r\nVICTOR D. OFOE\r\nJUSTICE OF APPEAL\r\n(SGD.) ASARE KORANG, J.A I agree	A.ASARE-KORANG\r\nJUSTICE OF APPEAL\r\n \r\n(SGD.)\r\nC.J. HONYENUGA JUSTICE OF APPEAL\r\n \r\nCOUNSEL\r\n•	DR. J.E. OPPONG FOR THE PLAINTIFF/RESPONDENT\r\n•	MR. SEY\r\nCO. LEGAL PRACTITIONERS FOR THE\r\nDEFENDANT/APPELLANT\r\n\r\n', '../links/cases/Document (204).pdf', 'Yes', 'V.OFOE, J.A., C.J.HONYENUGA, J.A', '2012', 'appeal', '<i><b><font face="Times New Roman" size="3">Land Law - Compulsory Acquisition - Compensation - Method of Payment - Minerals and Mining Act,s.73 and 74 - Law on compensation payment requires agreement by the parties on what compensation to be paid - Agreed method of compensation is Acreage method. Practice and Procedure - Appellate Court - Circumstances under which it can interfere with findings of trial court - Justifiable to do so when findings is inconsistent with crucial evidence on record</font></b></i><br>', 'A.ASARE-KORANG, J.A.', 'Civil', '', 'H1/72/2012', '', '', 'appeal', '2012-11-15', ''),
(554, 'KOJO ANYANFUL  ---  PETITIONER/APPELLANT\r\nVRS\r\nTHERESA ANYANFUL  ---  RESPONDENT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE COURT OF APPEAL\r\nACCRA A.D. 2011\r\nCORAM: ABBAN, JA (PRESIDING)\r\nDUOSE, JA\r\nOFOE, JA\r\nSUIT NO.: 141149/2011 17Th1 November, 2011\r\nKOJO ANYAFUL	PETITIONER/APPELLANT\r\nVRS\r\nTHERESA ANYAFUL	RESPONDENT/RESPONDENT\r\nFamily Law— Husband and wife— Dissolution of marriage— Grounds upon which divorce petition is granted by the court— Petitioner to adduce strong and weighty evidence to show marriage has broken down beyond reconciliation— Matrimonial Causes Act, ss. 1,2 & 3.\r\nIUDGMENT OFOE, l.A\r\nThe appellant who was the petitioner in the trial court sought from the court the dissolution of the marriage between him and the respondent. By his petition he was seeking the dissolution of the marriage because the respondent has been abusive, that they had not lived together since 1999, all diligent efforts have been made to\r\n \r\nresolve their differences to no avail and that the respondent has behaved in such a way and manner he cannot reasonably be expected to live with her. In respect of property settlement he prayed the court to settle House Number 120 Park Road, Uxbridge, Middlesex, England which he claims he purchased alone and one other house in Rome on him. A two bedroom NTHC property in Accra which he built with the contribution of the respondent he asked that it be settled on them jointly and an uncompleted house in Dome which he claims he built alone be settled on him.\r\nThe respondent denied the allegations of the petitioner and accused him rather of abandoning the home most of the time. It was the case of the respondent that they lived together in the U.K until the petitioner returned to Ghana in1991. They agreed that she stayed behind in the U.K to study Nursing. They visited each other regularly until the petitioner got a job with the United Nations and moved to Rome in 1996. After her course in the UK she joined the petitioner in Rome. On agreement of both parties he had to go back to the UK with the children for medical reasons. This was in 1999. Kwesi their 13 years old child is medically challenged and needed continious care and medical attention. Their other child is Yaa who at the time of the petition was 11 years. The petitioner abandoned them in the UK and on any of the rare visits he made to them there were quarrels with occasional threats from the petitioner to divorce her. She also thinks the marriage has broken down beyond reconciliation and prays for dissolution of the marriage, custody of the two children, maintenance including medical bills and\r\n \r\nallowance for the children. In respect of the properties she claims to be a joint contributor and therefore the London and the Lashibi property in Ghana, which they jointly owned, be settled on her for the petitioner to keep the Italy and Dome house in Ghana. I must mention here that the respondent mentioned that she had commenced divorce proceedings in the UK through her solicitors because she and the children are British citizens and domiciled in the UK and their joint assets are in the UK, Italy and Ghana. When she commenced this proceeding her father in Law called that she should not proceed with the proceedings but come to Ghana for a discussion on the matter\r\nThe petitioner''s reply to the respondent''s answer sought for different reliefs. He asked that the London property be sold and the proceeds be split between them after payment of the mortgage balance and all the other properties be shared according to each person''s contribution. When the case came on for hearing the respondent was not in court and the court proceeded to take evidence in her absence on the 27" July 2009 and delivered its judgment on the 19th October 2009 refusing the petition for divorce.\r\nIt is this refusal that the appellant, who I have referred to as the petitioner and I will continue to refer to as such in this appeal, is aggrieved with and has appealed to this court. To him the judgment is against the weight of evidence and is not warranted by law. There is a lot wrong with this other ground of appeal that simply states that "the judgment is not warranted by law". It has been repeated and several times that Rule 8 sub rule 4 requires that where the\r\n \r\nground of appeal alleges error of law particulars of the error should be clearly stated. I will make no issue out of this omission by counsel and proceed to find out whether indeed there was such error of law as alleged by the petitioner.\r\nThe brief of the evidence put before the court why he thinks the marriage has broken down irreconciliably were that the wife has been very abusive towards him and on one occasion she struck him at the back of his head. After this incident Mr. Kojo Owusu Tieku, a Diplomat came in and their differences were resolved and they agreed to continue with the relationship. This was in 2005. Another difference between them was resolved by a Mr. Asante in London and they agreed to continue the marriage for the sake of the children. Their differences continued anytime they met. On one other occasion the respondent came to his office and abused him in front of his secretary and this to the petitioner broke the camel''s back. To the petitioner these were sufficient acts of the petitioner clearly indicating their marriage had broken down beyond reconciliation. He ended his evidence that the last time they had sexual relations was a year ago. It needs noting that the petitioner gave these pieces of evidence on the 271h July 2009.\r\nWhat was the trial judges assessment of the evidence and its application of the law that the petitioner finds unacceptable. After referring to section 2(1) and 2(3) of the Matrimonial Causes Act and emphasizing that the court should not grant divorce petition unless it finds that the marriage had broken down beyond reconciliation the trial judge proceeded and concluded:\r\n \r\n"The Petitioner in the instant case led no corroborative evidence in support of his assertions. The parties are living apart of each other by their own mutual arrangements. Quarrels, conflicts, insult and differences between spouses and I dare to say occasional romantic assaults are normal incidents of married life. Not having had sex for a year without more is no ground for divorce especially when the parties are not living together and there is no complaint of having had any adverse health related consequences. By the petitioners own evidence the two attempts at reconciliation were successful when they both agreed to continue for the sake of the children.\r\nMarriage is a sacred institution ordained by God, sanctioned by the state and approved and consented to by two families. The law requires very strong and weighty reasons to dissolve such a union. On the evidence led in this case, no weighty reasons have been advanced to convince me to grant the prayer. Accordingly the prayer will not be granted."\r\nCounsel for the petitioner disagrees with these views expressed by the trial judge and argues that there are sufficient pieces of evidence provided by the petitioner for the grant of the petition for divorce. He submits that the Matrimonial Causes Act, Act 367 of 1971, specifically section 2(1) provides that to show that the marriage has broken down beyond reconciliation there is the need to establish the existence of certain facts. (2) (1)(b) provides that:\r\n \r\n"the respondent should have behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". This standard, according to counsel was met by the evidence given by the petitioner. The two incidents that were settled can''t be the basis for concluding that the marriage had not broken down beyond reconciliation, as the trial judge reasoned. For according to counsel, if there had indeed been a settlement, the subsequent incident where the respondent had to abuse him, a diplomat, in his office before the secretary would not have occurred. To interpret these incidents, including an assault as "romantic assaults" and conclude that the law requires" strong and weighty reasons to dissolve such a union is not only a wrong assessment of the evidence but also a wrong application of the law on burden of proof. Counsel submits that our civil law demands proof on the preponderance of the probabilities and not "strong and weighty reasons" as the trial judge stated. It is counsel''s submission that to wait until an irreversible harm is caused to one of the parties, as the court appeared unconsciously to have preferred, should be rejected for His Lordship Sarkodie''s views in the case of Addo vrs Addo (1973) 2 GLR 103 at 106, where he said,\r\n"The injury may be to physical or mental health but where one spouse complains of unreasonable behavior of the other spouse it seems to me the injury need not be actually suffered. A reasonable apprehension (emphasis mine) that injury will result if the conduct is persisted in will be enough; for the\r\n \r\nCourt should not wait for a spouse to be actually injured\r\nbefore offering (her) relief."\r\nIt would be necessary to quote the relevant portions of the\r\nMatrimonial Causes Act for a better appreciation of the application\r\nof the facts to the applicable law.\r\n"Section 1	Petition for Divorce.\r\n(1)	A petition for divorce may be presented to the court by\r\neither party to a marriage.\r\n(2)	The sole ground for granting a petition for divorce shall be\r\nthat the marriage has broken down beyond reconciliation.\r\nSection 2—Proof of Breakdown of Marriage.\r\n(1) For the purpose of showing that the marriage has broken\r\ndown beyond reconciliation the petitioner shall satisfy the\r\ncourt of one or more of the following facts:—\r\n(a)	that the respondent has committed adultery and that\r\nby reason of such adultery the petitioner finds it\r\nintolerable to live with the respondent; or\r\n(b)	that the respondent has behaved in such a way that\r\nthe petitioner cannot reasonably be expected to live with\r\nthe respondent; or\r\n(c)	that the respondent has deserted the petitioner for a\r\ncontinuous period of at least two years immediately\r\npreceding the presentation of the petition; or\r\n \r\n(d)	that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; or\r\n(e)	that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or\r\n(1) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences.\r\n(2)	On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent.\r\n(3)	Notwithstanding that the court finds the existence of one or more of the facts specified in subsection (1), the court shall not grant a petition for divorce unless it is satisfied, on all the evidence, that the marriage has broken down beyond reconciliation".\r\nA cursory reading of these provisions will show that the sole grounds for granting a petition for divorce is that the marriage has broken down beyond reconciliation. Whether a marriage has got to\r\n \r\nthat stage or not is for the trial judge to determine after examining all the facts put before him. By subsection 3 of section 2 even though there may be established any of the facts specified in subsection 1, the court should still be satisfied that the marriage has broken down beyond reconciliation. Looking at the evidence led before the trial court there has been two incidents but settled. Then was the abuse in the office. Should these two incidents that were settled and the subsequent abuse in the office be sufficient grounds for a conclusion that the respondent has behaved in such a way as not to expect the petitioner to reasonably live with her? I don''t think the trial judge''s conclusion in the negative is baseless. This is especially so when the petitioner himself told the court that the last time they had sexual affair was over a year ago. And these are couple not living together, by their own agreement, because each had to work at a different location on the globe for financial reasons- one in the UK and the other in Rome. As rightly stated by the trial judge petitioning for divorce is a different thing from its grant. A party is at liberty to petition for divorce but it is the duty of the court to look at the entire evidence before it whether it is satisfied the marriage has broken down beyond reconciliation. Underlying section 2 of the Act, quoted earlier, is a clear duty imposed on the court to give maximum scrutiny to petitions for divorce and be satisfied before grant. I am of the view the trial judge did exactly that before concluding refusing the petition.\r\nIt is true that the trial judge made reference to strong and weighty reasons before the grant of divorce. Counsel finds this an\r\n \r\nintroduction of another yardstick not known to the law in the\r\ndischarge of the evidential duty imposed on parties in civil litigation. How strong and what weight should be given to the evidence led by the petitioner? For the trial judge to find that no such weighty evidence has been given by the petitioner and that the evidence he led is not strong enough for the petition to be granted, I don''t think should be interpreted as introducing an unknown evidential principle on proof in our law of evidence. If he did, it is a known common principle that an appeal is by way of rehearing. Is there evidence for which on application of the evidential burden of proof on the balance of probabilities the judgment can be supported? I think the answer should be a yes.\r\nIssue of jurisdiction has tangentially been raised but on reading of the appeal record I don''t think it is worth any bother to this court. The essential conclusion is that the prayer in the petition has been refused. Whatever happened in the UK, if indeed it happened, by way of earlier divorce, was not canvassed before the trial judge because the respondent who raised it in her pleadings did not testify before the trial judge.\r\nFrom the foregoing the appeal is consequently dismissed.\r\nVICTOR D. OFOE\r\n(JUSTICE OF APPEAL)\r\n \r\nHENRIETTA ABBAN, JA I agree	HENRIETTA ABBAN (JUSTICE OF APPEAL)\r\nISAAC DUOSE, JA	I also agree	ISAAC DUOSE (JUSTICE OF APPEAL)\r\nCOUNSEL\r\n. MR. GEORGE KOM FOR PETI''I''IONER/APPELLANT(WITH HIM FRANCIS KOKU)\r\nMR. FRANCIS ACHIBONGA FOR RESPONDENT/RESPONDENT\r\n\r\n', '../links/cases/Document (205).pdf', 'Yes', 'DUOSE, JA, OFOE, JA.', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Family Law - Husband and wife - Dissolution of marriage - Grounds upon which divorce petition is granted by the court - Petitioner to adduce strong and weighty evidence to show marriage has broken down beyond reconciliation - Matrimonial Causes Act, ss.1,2 &amp; 3.</font></b></i><br>', 'ABBAN(MRS), J.A.', 'Civil', '', 'HI/49/2011', '', '', 'appeal', '2011-11-17', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(555, 'EXPOM GHANA LTD  ---  PLAINTIFF\r\nVRS\r\n1. VANGUARD ASSURANCE AND ANOR\r\n2. TRI-STAR INSURANCE SERVICES GHANA LTD  ---  DEFENDANTS', 'IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF\r\njUSTICE ACCRA, (COMMERCIAL DIVISION) HELD ON TUESDAY THE 8TH\r\nDAY OF JANUARY, 2013. BEFORE HIS LORDSHIP, JUSTICE RICHARD\r\nADIEI-FRIMPONG.\r\nSUIT NO.INS14/2010\r\nEXPOM GHANA LTD	PLAINTIFF kTj M1\r\n1.	VANGUARD ASSURANCE AND ANOR\r\n2.	TRI-STAR INSURANCE SERVICES GHANA LTD -	DEFENDANT\r\nPARTIES: PLAINTIFF REPRESENTED BY DOMENICO FALCONE-PRESENT DEFENDANTS ABSENT\r\nCOUNSEL: THADDEUS SORY FOR PLAINTIFF WITH HIM CYNTHIA FRIMPOMAA-PRESENT\r\nMARTIN AGYEN SAMPONG WITH HIM BARBARA OKINE TETTEY AND MICHAEL GYAN NYARKO FOR 1ST DEFENDANT-PRESENT AYITTEY ARMAH TETTEH FOR 2ND DEFENDANT-PRESENT\r\nLaw of Contract - Insurance - Failure of insurer to settle claim made by insured - Whether the insured deliberately caused the peril - Burden of proof - Onus on insurer to adduce credible evidence that insured committed arson - Standard of proof required in civil cases tainted with criminality is proof beyond reasonable doubt - Evidence Acts. 13(1)\r\nIndemnity - Measure of indemnity - whether plaintiff has to he restored to the position existing at the time of the fire -- Onus on plaintiff to adduce evidence to prove quantum of loss suffered.\r\n \r\nh.\r\n- •\r\n \r\nJUDGMENT\r\nLying at the heart of Insurance Contracts are those situations where an insurance company can lawfully refuse to settle a claim.\r\nSuch is the situation that confronts this court in the instant litigation. The Vanguard Assurance is resisting a claim put in by Expom Ghana Ltd, under an insurance policy.\r\nIn some cases, an insurer may not repudiate the contract of insurance itself but the liability that has arisen thereunder. Lord Justice BANES draws the distinction between the two instances in the case of WOODALL VS PEARL ASSURANCE CO. LTD. (1919) 1 KB 593 at 604 as follows:\r\n"I am not able to agree with the Learned Judge upon this point. In considering this part of the case, it is necessary to draw a clear and sharp distinction between two separate classes of cases. One class is where the insurance company is repudiating a contract, in the sense that they are disputing the existence of any binding contract at\r\nThe other is where Company is repudiating liability under the contract, but accepting the existence of the contract as a binding contract...."\r\nCuriously, as it will become manifest from the facts pleaded by the Insurer in this case, issues are raised both against the contract itself and the liability that has ensued thereunder. What is to be examined are the grounds proffered for the position taken.\r\n \r\n- •\r\n \r\nBut a brief background events of the controversy are as follows: Some time in\r\n2006 a Company called TRUSTY FOODS took up a combined All Risks\r\nInsurance Policy with Vanguard.\r\nTrusty Foods had been engaging in the business of processing tomato paste into finished products. Subsequently, by separate special resolutions by the two companies passed for that purpose, Expom took over the business of Trusty Foods as well as its assets and liabilities. The take-over process however took a bit of time. But essentially as part of the process, the policy of insurance was renewed this time in the name of Expom Ghana Ltd to span from 20/11/09 to 20/11/10, a period of 12 months. The renewal was done through the brokerage of the 2nd Defendant.\r\nAdmittedly Expom paid all premiums due in its own name. Then on 10th of May 2010, fire gutted part of the premises of the company causing extensive damage to property, mainly raw materials purported to be processed into finished products. Expom then commenced processes to claim indemnity. The denial of the claim and the subsequent events have culminated in the instant suit in which Expom seeks the following relief:\r\ni.	A declaration that defendants are liable to indemnify Plaintiff for\r\nthe loss and damage suffered by Plaintiff as a result of the fire that\r\ndamaged Plaintiffs raw materials and goods on 10/05/10\r\nii.	A declaration that under and by virtue of the insurance contract\r\nbetween Plaintiff and Pt Defendant, 1st Defendant is under an\r\nobligation to indemnify Plaintiff in respect of all costs incurred by\r\n \r\nPlaintiff in cleaning the debris left as a result of the fire incident that destroyed Plaintiffs raw materials and goods on 10/5/10.\r\niii.	An order directed at the Defendants to pay forthwith to Plaintiff the sum of four million, nine hundred and forty two thousand, three hundred and eleven Euros, fifty-three Euro cents (€4,942,311.53) being the value of raw materials and goods damaged by the fire which occurred on Plaintiffs premises on 10/5/10.\r\niv.	An order directed at 1st Defer1dant to pay all costs incurred by Plaintiff in clearing all the debris left at the Plaintiffs premises as a result of the fire that destroyed Plaintiffs raw materials and goods on 10/5/10.\r\nV. Compensation by way of interest on the aforesaid sum of €4,942,311.53 at the prevailing bank rate from 11/05/10 when the Plaintiff made its first demand for payment of the aforesaid sum up to the date of final payment which interest shall to the extent possible compensate Plaintiff for the loss of profits resulting from Plaintiffs inability to carry on production by reason of Defendants'' refusal to honour their obligations under the contract of insurance concluded between Plaintiff and 1st Defendant timeously.\r\nvi.	Interest on any and all sums e;:pended by Plaintiff in clearing the debris left as a result of the fire which caused damage to Plaintiffs raw materials and goods on 10/5/10.\r\nvii.	Costs for prosecuting the present suit on a full indemnity basis.\r\n \r\n- •\r\n \r\nLet me first of all note that the Plaintiff joined the TRI-STAR as a party in the action on the basis of its understanding that the 2nd Defendant was an agent to Vanguard. This is summed up in paragraph 5 of the Plaintiff''s statement of claim where it is pleaded thus:\r\n"S. Plaintiff avers that accordingly at all times material to this suit, 2" defendant acted as Pt defendant''s agent and for that matter persuaded Plaintiff to insure its properties witn Pt Defendant and that it is the contract of the insurance brokered by the 2nd defendant and concluded between the Plaintiff and 1st Defendant which provides the basis for the Plaintiffs present suit against Defendants".\r\nHowever the fact which all the parties admit is that, TRI-STAR was a broker in\r\nthe transaction. The position of an insurance broker is clearly specified in\r\nSection 73 of the Insurance Act 2006 (Act 724) as follows:\r\n" insurance broker'' means a person who acts as an independent contractor or consultant who for commission or other compensation and not being an agent of the Insurer, carries out any of the following activities:\r\n(a)	The Soliciting or negotiating on insurance business including the\r\nrenewal and continuance of such business, on behalf of an insurer or a\r\nprospective insured other than himself\r\n(b)	The bringing together, enter directly or through the agency of a third\r\nparty, with a view to the insurance of risks, or persons seeking insurance\r\n \r\nand carried out work preparatory to the conclusion of contract of insurance".\r\nBy law therefore, an Insurance Broker is not an agent to the Insurance Company whose engagement with another party he brokered and does not for that reason alone incur liability under that transaction.\r\nThat the 2d Defendant did not incur liability on the Plaintiffs claim was later to be admitted by the Plaintiffs Managing Director Domenico Falcone under cross-examination as follows:\r\n"Q: Mr. Falcone, you don''t have any contractual agreement with TRI-STAR to pay you any insurance claim?\r\n"A: No, my claim is against Vanguard\r\nA:	Tri-Star was not an agent of 1st Defendant Company, Vanguard Assurance\r\nQ:	My Lord, Tn -star was a Broker".\r\nThe foregoing can only lead to the conclusion that the Plaintiffs claim in so far as it relates to the 2n1 Defendant is not maintainable.\r\nThe real triable issues therefore emerge between the Plaintiff and Vanguard whom I shall hereinafter refer to also as "the Defendant".\r\nThe Defendant has pleaded a number of grounds to repudiate liability.\r\nThose shall be examined against the backdrop of the evidence and the law later in this delivery. One issue I consider fundamental however is the claim that the Plaintiff did not have an insurable interest in the property damaged. It is considered so fundamental because in my thinking it calls the validity of\r\nthe insurance contract itself to question. Indeed Counsel for the Defendants goes as far as demanding of the court to ''first of all examine whether the Plaintiff is the insured at all".\r\nInterestingly, when the Defendant pleaded in paragraph 10 of the statement of defence that the Plaintiff had no insurable interest in the raw materials, no factual narration was pleaded as the basis for that conclusive averment. 1 suppose the rules on pleadings would require of the defendants to plead the material facts that formed the basis of that !''iind of defence. Be that as it may, 1 observe that the reason for that defence has been put across in defence Counsel''s address.\r\nI shall ignore the procedural glitch associated with the question and consider the argument put forth by Counsel on its merits. Counsel has submitted as follows:\r\n"Trusty Foods Limited was acquired by Expom Ghana Limited by a resolution in 2008. Expom Ghana Limited thus, took over all the assets and liabilities of Trusty Foods including the insurance.\r\nThe process of the above acquisition took a bit of time according to the Plaintiff and whilst the process was on going, Plaintiff caused 2nd Defendant to instruct 1st Defendant of the take-over and subsequently paid premium to 1st Defendant Company in the name of Expom Ghana Limited per the endorsement schedule of Exhibit "A".\r\nOn the schedule, the insured''s name is Expom Ghana Limited which endorsement took effect on 2011 November 2009. A proper due diligence\r\n \r\n- •\r\n \r\nin the acquisition process clearly indicates that at the time of making premium payments to 1st Defendant in the name of Expom Ghana, the process had not been completed successfully and therefore the Plaintiff cannot be said to have any insurable interest in the raw materials that got damaged by fire on May 10, 2010".\r\nThe logical deficit in this argument lies it1 the suggestion that even though Expom had taken over the assets and liabilities of Trusty Foods including the policy, even though the policy had been renewed in the name of Expom, and even though Expom had assumed payments of premiums in its own name, because the take over process was still on going, Expom did not have an insurable interest in the raw materials. That certainly cannot be an acceptable deduction.\r\nPerhaps the argument also did not take into account the recital contained in the endorsement schedule of the renewed policy attached to Exhibit ''H'' which sets out the scope of the policy as endorsed by Vanguard itself.\r\nIt reads:\r\n"RENEWAL OF POLICY\r\nIn consideration of the payment of the renewal premium of US$64,652.48 (equivalent to Euro 50,000.00) the Insurance by this policy is renewed for a period of twelve months from 20th November 2009 to 20th November 2010 and the schedule of the policy is to read as follows:\r\n \r\nDESCRIPTION\r\n1. "FIRE: All Real and personal property of every kind and description of Expom Ghana Limited''s own or for which they may be held responsible including but not limited to Buildings, Plant, Machinery Stocks, Inventory and Equipment as detailed below as well as public and products liability...."\r\nSignificantly, in the same schedule the policy No. is given as P-001-5054-2006-060-6 and the insured''s name is provided as ''Expom Ghana Ltd.'' Trusty Food is not mentioned anywhere.\r\nThe renewal therefore created an independent contractual relationship between Vanguard and Expom which had nothing to do with the takeover process.\r\nThe Defendant knew that Expom had taken over the assets of Trusty Foods. It could not have underwritten the policy in a vacuum. In the light of the evidence any argument that Expom did not have insurable interest in the stocks will signify a clear misconception of what insurable interest actually implies. What an insurable interest implies in the law of insurance is a belaboured subject and does not require a long list of authorities to make plain.\r\nIn IVAMY, "GENERAL PRINCIPLES OF INSURANCE LAW, 2'' edition (1990) at page 19, the Learned Authors have written and the statement has received approval in several judicial decisions thus:\r\n \r\n"Where, as in the case of personal accident insurance and most branches of property insurance, the subject matter of insurance is a physical object exposed to certain perils, an insurable interest is constituted by the fact that the assured, from his relation to the subject matter, will suffer prejudice if the subject matter is lost or damaged by such perils".\r\nSee MACDONALD VS CANADA ACCIDENT & FIRE ASSURANCE CO. (1978) 77 DLD (3d) 746\r\nGEISMAR VS SUN ALLIANCE & LONDON INSURANCE LTD (1979) Q B 838. LUCENA VS CRAUFURD 127 ER 630 at 643 (11L)\r\nMy understanding of the law is that generally, courts do not look favourably to arguments that an insured had no insurable interest. The reason is that insurable interest is the basic reason why an insurer will issue a legal insurance cover.\r\nThe Learned authors of "General Principles of Insurance Law" referred to\r\nsupra make this point as follows:\r\n"The inclination of the courts is to find in favour of an insurable interest\r\nwherever the facts of the case and the law applicable permit".\r\nAnd the words of LORD BRETT MR in the cr se of STOCK VS INGLIS (1884) 12\r\nQ8D 564 at page 571 strongly make this point as follows:\r\n"It is the duty of a court always to lean in favour of an insurable interest, if\r\npossible for it seems to me that after underwriters have received the\r\npremium, the objection that there was no insurable interest is often as\r\n \r\nnearly as possible, a technical objection, and one which has no real merit, certainly not as between the assured and the insurer".\r\nOn this note, I dismiss the defendant''s claim that Expom did not have an insurable interest and hold the parties bound by the terms of the policy.\r\nThe real question to examine is essentially whether within the limits of the policy the Plaintiff has made a case to warrant the claim made and/or whether sufficient grounds have been demonstrated for the defence to except the claim.\r\nAnd the nerve centre of making such a determination is the question as to who bears which burden of proving what, and by what standard of proof.\r\nThe law is that where an insurance Company has alleged a breach on the part of the insured to repudiate liability the Company bears the burden of proving the breach. What the insured need to do foremost is to show that the policy covers the peril that has occurred. If the insured shows by a prima fade evidence that the damage that has occurred is within the scope of the policy the burden shifts on to the insurer to provc that the damages is in exception due to the alleged breach.\r\nIn COLLINUAUX''S LAW OF INSURANCE 7TH edition at 112 paragraphs 4-45 is the following statement;\r\n"The burden of proof is upon the assured to show that the loss was proximately caused by a peril insured against To prove a prima facie case, the assured need not prove how the casualty occurred, or what\r\n \r\nparticular peril caused it, he need merely prove that the cause fell within the perils insured against.... Once the assured has produced a prima facie case the burden shifts to the insurers if they wish to show that it was in fact a cause excepted by the policy which proximately caused the loss".\r\nSimilarly, the authors of BULLEN & LEAKE & JACOBS, PRECEDENTS OF PLEADINGS, 13th edition at page 523-524 have stated:\r\n"It is always for a insurer to prove an exception and also for the insurer to prove the breach of a condition which would relieve him from liability in respect of a particular loss".\r\nThe case of BOND AIR SERVICES VS HILL (1955) 2 QB 417,; BENNETT VRS YORKSHIRE INSURANCE CO. LTD. (1962) 2 Lloyds Report 270; and FARNAM VS ROYAL INSURANCE CO. LTD. (1976) 2 Lloyds Report 437 are cited for this position.\r\nIn the Law Reports of the Commonwealth 1986 edition at page 84 is reported the Indian case of NARVINVA KAMAT & ANOR VRS MARTINS & ORS where the Supreme Court of that country pronounced persuasively on the principle as follows:\r\n"The burden to prove that there was a breach of the contract of insurance was squarely placed on the shoulders of the Insurance Company. It could not be said to have been discharged by it by a mere question in cross examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company wriggle out of the liability under the contract of insurance. The insurance company could have got\r\n \r\nthe evidence produced to substantiate its allegation. Applying the test, who would fail if no evidence is led, the obvious answer is the insurance Company".\r\nObviously, paucity of local decisions in insurance cases on this point makes citing of some of them impossible. Nonetheless it is my view that this common law position on burden of proof is in accord with our general rules of evidence which emphasize the point that depending on the particular issue which arises, from time to time in the course of a trial, the burden of proof shifts from party to party.\r\nHaving said all that, the immediate question is whether the Plaintiff has shown by prima facie evidence that the cause of the damage fell within the peril insured against.\r\nIt is not controverted anywhere in the proceedings that it was fire that caused the damage in question. I doubt if any need arose to call evidence on that The Plaintiff also tendered Exhibit "H", the renewed policy which clearly shows that fire was one of the perils insured against. The Plaintiff therefore showed the prima facie evidence required of it to shift the burden on to the defence to prove the exception alleged. I shall consider separately the various grounds set out by the defendant in repudiating liability.\r\nI do so because depending on the gravity of the allegation, the standard of proof shall vary. First, the Defendant alleges arson on the part of the Plaintiff in causing the damage.\r\n \r\n- •\r\n \r\nIt is pleaded in paragraph 11 of the statement of defence thus:\r\n"11.	Defendants in further denial of paragraph 11 of the statement of\r\nclaim say that they have reason to believe that the Plaintiff deliberately\r\ncaused the fire that destroyed the goods and raw materials":\r\nRelated closely to this claim are the averments contained in paragraphs 12, 13\r\nand 18 of the same process.\r\n"12.	Defendants will contend at the trial that at all material times the\r\nPlaintiff was aware that the raw materials and goods purportedly\r\ndestroyed by the fire had expired or were about to expire.\r\n13. Defendants will further contend at the trial that the Plaintiff took\r\ncalculated steps to prepare the grounds for this claim and that this claim\r\nis actuated by malice.\r\n18. Defendants will further contend at the trial that the events leading to\r\nthe fire show that Plaintiff made calculated attempts to cause the fire so\r\nas to make an undue claim on stock which had already lost their value".\r\nWhat all these averments read together mean is no doubt that, the defendant is alleging criminality on the part of the Plaintiff. I do agree that within the tenets of the insurance policy, these alleged acts if proven constitute ample basis for the defendants to repudiate liability.\r\n \r\nThe Policy without doubt does not cover "loss or damage occasioned by the willful act" of the Plaintiff or its agents just as it does not cover "loss or damage where any inmate or member of the insured''s household or any of his business staff is concerned as principal or accessory; or less or damage due to the willful or negligent act or with the connivance of the insured"\r\nWith the instant allegation being criminal in nature and being directly in issue, I am certain that the standard of proof pursuant to Section 13 (1 ) of the Evidence Act NRCD 323 is proof beyond reasonable doubt. Going through the written submission of defence Counsel I notice that somehow, this criminal standard in our statute is ignored and a different standard of proof adopted.\r\nI also noticed that even though in the statement of defence the alleged willful act of setting the fire was pleaded separately from fraud, Counsel in the address has subsumed the alleged arson conduct under fraud and examined it as fraud. Whilst one may argue that willfully setting fire on a property to make a false insurance claim is itself fraudulent a conduct, since the act of setting the fire is itself a criminal conduct separate from the motive, and given the manner in which the allegations have been pleaded and the fraud particularized, each allegation had to be examined separately. Be that as it may, I suppose the duty of the court is to examine the merits of the evidence adduced to prove the allegations.\r\nIn prescribing the standard of proof which I find to be out of tune with our law Learned Counsel for the Defendant submitted as follows:\r\n \r\n\r\n• •\r\n \r\n"In fraudulent claims, the burden of proof is on the insurer who alleges fraud on the part of the insured. The standard of proving this is slightly higher than the preponderance of probability in civil cases but not as high as beyond reasonable doubt in criminal cases".\r\nIt is important to mention that in referring to "fraudulent claims" Counsel was\r\nreferring to the alleged willful act of setting the fire. That being the case then\r\nthis court does not accept the standard of proof indicated.\r\nIn the oft cited case FENUKU & ANOR VRS JOHN TEYE (2001-2002) 2 GLR\r\n985 at page 003, the supreme court considers Section 13 (1) of the Evidence\r\nAct and states:\r\n"With regard to proof of forgery or for that matter any allegation of a criminal act in a civil trial, one cannot go outside that statutory provisions. In this country, the position is governed by section 13 (1) of the Evidence Decree 1975 (NRCD 323) and no amount of foreign authorities, however persuasive can dislodge this requirement of the law. It provides:\r\n13 (1) in any civil or criminal act the burden of persuasion as to the\r\ncommission by a party of a crime which is directly in issue requires proof\r\nbeyond reasonable doubt. Generally in a civil trial, the burden of persuasion is on a preponderance of probabilities. Where, however, a\r\ncriminal act is in issue in a civil trial, the burden of persuasion requires\r\nproof beyond reasonable doubt, though the sufficiency of that evidence\r\n \r\nrequired to attain that standard would depend to a large extent on the gravity of that particular offence".\r\nThe allegation here in sum is that the Plaintiff, knowing well that the stock of raw materials were either expired or near expiry, took calculated steps and willfully set the fire on them in order to claim on the policy.\r\nWhat evidence was adduced to prove this allegation beyond reasonable doubt?\r\nCounsel for the Plaintiff thinks that no evidence was adduced to prove that the fire was willfully set. He submitted thus:\r\n"Like the charge of negligence, Ft defendant also provided no evidence of arson. 1s, Defendant suggested to M:. Domenico Falcone during cross- examination that there were some email correspondences between Domenico Falcone and Mr. Walter Russo regarding the fire. This was denied by Mr. Falcone. When it was Ft defendant''s turn to adduce evidence to substantiate this point, no scillinta of evidence was adduced on this point...."\r\nMy understanding of the Plaintiff''s Counsel''s position that the defendant did not adduce evidence to prove the willful act is that there was no direct evidence as opposed to circumstantial evidence to prove the allegation. If this understanding is accurate, then, I take it that both Counsel agree that the evidence on record to prove the allegation is purely circumstantial.\r\n \r\nIndeed no scillinta of direct evidence was adduced and Learned Defence Counsel in her address does not allude to a single direct evidence. She invites the court to consider a number of factors as constituting the circumstantial evidence in proof of the allegation. She then cites a number of external authorities where the courts have considered circumstantial evidence as proof of allegations of the nature being considered.\r\nI do agree with Defence Counsel that the instant allegation could be proved by circumstantial evidence. I however have to point it out that under our law circumstantial evidence is relied upon to draw conclusions where there was no co existing circumstance which would weaken the inference. In other words circumstantial evidence had to be acted upon only when the circumstances had, of necessity to be inferred and that the facts led to no other conclusion. Put in another way, the circumstances must exclude any other rational conclusion and must lead as is usually said, to the irresistible conclusion that the crime was actually committed.\r\nSee DUAH VS THE REPUBLIC (1987/88) 1 GLR 343.\r\nAnd I sounded the above caution on the assumption that the factors listed in Defence Counsel''s address as constituting circumstantial were founded cogent and backed by the evidence on record. If they were not, then in my view they cannot constitute circumstantial evidence in the first place to afford the court draw the necessary inference. It has become necessary to make this point because a cursory glance at the list of fifteen (15) or so factors indicated by Counsel prompts questions as to how some of them were obtained.\r\n \r\nFor instance under paragraph 14 of the list, a statement has been made as\r\nfollows:\r\n"14. Plaintiff was in distress, production had declined and plans were\r\nunderway to sell the Company\r\nI do not know where this information was constituted. Nobody from the record said so, the defence did not plead this and no evidence was adduced to establish this fact. It is a complete fabrication. Judging from the way certain factors have been bandied around, I am compelled to sacrifice brevity and examine the list set out in the address. Perhaps that is the only way their credibility could be ascertained as established facts. It has become even necessary for me to analyse the list because a part from a few of them, the rest were not based on pleaded facts. They were raised whilst the trial was on going and after the Plaintiff had closed its case.\r\nIn this consideration, I shall however not follow any particular order and where it is not backed by any evidence, I shall simply say so. Also where two or more tie in and can be resolved together, I shall not hesitate to do so. The first to consider states:\r\nPlaintiff Knew or had reason to believe that the 12, 246 bins/boxes of raw  tomato paste packed in its compound had expired or were near expiration and  that it could not process all of them prior to their expiry.\r\nFirst of all there was no evidence that any of the raw material had actually\r\nexpired. The Defendant''s own witness Detective Sgt. Okuampah who said he\r\nremoved exhibit 16 (i.e. a label from one of the burnt bins) could at best show\r\n \r\nthat the paste had five S more months to run before expiration. He gave the following answers under cross examination:\r\n"Q Assuming without admitting that this is the expiry date, it reads 2611 September 2010 for a raw material. The Company was in production when you went there that is true.\r\nA:	That is true\r\nQ:	When did the fire take place\r\nA:	That was in May.\r\nQ:	So from May to September, how many months will that be\r\nA:	Five months\r\nQ:	That Company was in production at the time ofthefire\r\nA:	That is so my Lord\r\nQ: So if the product was to expire in September the raw material could have been used in production to get the finished product before the expiry date.\r\nA: The materials that they were using were in their warehouse which they had us into the warehouse but this was on isolated place in the Compound.\r\nQ:	Would they still have used this in their production before September.\r\nA:	Icannot tell\r\nAnother Defence witness whose evidence touched on the question of expiration of the raw materials was Mr. Ebenezer Kofi Essel from the Food & Drugs Board. He did not state that any raw materials were expired or were near expiry. He recounted an event where the board ordered certain raw\r\n \r\nmaterials imported by Expom to be destroyed and the reason was that when they were shipped into the Country and went through the GC NET system, it was discovered that the products were bloated spilling and maggot infested. He said when the board ordered the destruction Expom complied with the order.\r\nHe said the following under cross-examination:\r\nQ:	The products were not destroyed because they were expired but they were destroyed because of the spilling...."\r\nA:	Yes my Lord\r\nQ:	Mr. Essel read Exhibit ''19'' the last bit of it which you read to the court that if the Plaintiff did not comply with certain regulation you\r\nwere going to close the company down. To your knowledge was the company ever closed down after you sent them the order?\r\nA: My Lord, I will not be in the position to say this because the plaintiff complied with this order. When this letter was sent to them. They complied and we have a report that effect that the destruction was carried out".\r\nWitness also stated under cross-examination that as part of their monitoring duties, they monitored raw materials that Expom imported into the Country. From the testimonies of those two witnesses who indeed were the defendants own witness, none of the raw materials was expired and the ones closest to expiry had 5 months to run.\r\n \r\nThe Plaintiffs Managing Director Domenico Falcone explained how significant a period of S months in the life of the raw materials was. He said this in his evidence-in-chief.\r\n"Q: They are also saying that you caused the fire to get rid of the goods that were expired or nearing expiry\r\nA: My Lord that is also not true. The nearest expiry date was five (5) months. But again these were raw materials which can even be used a day to its expiration and get the finished product with two (2) years shelf life. In other words! could produce and even sell it in two (2) years time".\r\nAlso important to note is the evidence of the Plaintiff''s stock Manager Rosario Parlato that, in their production, they did not always deal with the raw materials in first come first used basis. Sometimes they selected the materials in a mixed up fashion.\r\nHe said the following under cross-examination:\r\n''9: Do you maintain the practice of first come first served of your raw material\r\nA: Yes, but I want to explain during the production, we have some characteristics or specs that we should get during the production. In all over the world tomato paste are not the same. For instance tomato concentrates from USA and Italy are very thick but that from china is of different quality. In Exhibit ''P''from example there is something like that there. We see that the first goods that we imported in March 2009, in percentages almost all was used. In\r\n \r\ngeneral we use first in first out so the first goods that come we put it outside. But it is also true that we have some specification that the customers are asking for so sometimes we have to take a different batch code to get that characteristics or quality".\r\nDomenico Falcone himself made a similar statement under cross- examination as follow:\r\n"Q: So it means in order to ensure that your concentrates do not expire you will by all means process the first one before you process the second one?\r\nA:	No, I have also answered this question before.\r\nWe don''t process based what arrived earlier but based on different factors. We have different suppliers and to quality can be slightly different but even between the same suppliers the batch numbers are different which means that the goods were on different days and the quality could be different. Some can have a very red colour or some can also have a very high thickness among others. And we consider these when we receive an order because some customers prefer some particular type but we also have the premium brand where we give or course higher quality product. We consider all these factors before criJosing what to process. And it may happen that we may choose something that has just arrived instead of something that had arrived 1 year before because we still have another 1 year to process it".\r\n \r\nThis evidence was not controverted. The effect of this explanation is that it was not always the case that the batch of raw materials closest to expiry had to necessarily wait till the very last day.\r\nEven if it did, it could still be used and the finished product will still have the 2 years shelf life.\r\nFrom the evidence, the defendant could not prove the crucial part of its case that the raw materials were expired or near expiration.\r\nSignificantly, the defendants'' failure to prove this claim tremendously diminishes the motive ascribed to the plaintiff to desire to burn the product. Mr. Domenico Falcone makes this point in his evidence-in-chief.\r\n"Q: They are also saying that the fire outbreak was as a result of a deliberate act?\r\nA: It is not true. My Lord, I want to explain that these were raw materials and ifyou process them, you would get more. So why should we destroy them and claim the value of the raw materials"\r\nClosely related to the above point is the claim that the:\r\n"The stock of tomato paste in drums /bins had been packed in a bushy and muddy area on Plaintiffs compound, exposed them to the vagaries of the weather when it has sufficient space in the warehouse to store them".\r\nThe first question to ask on this point is whether, the place where the raw materials were kept had been so bushy and muddy at the time the fire occurred. The question is pertinent because the defence witness who\r\n \r\ndescribes the place as such went there some time after the fire when the place\r\nhad been abandoned due to on going investigations.\r\nDetective Sgt. Okuampah who particularly attests to that scene went to the place on the 11/7/2010 about two (2) months after the fire. When it was suggested to him under cross examination that he found the place in that state because due to on going investigation, the place had been left in that state, he said he did not believe so.\r\nI did not find his answer convincing simply because he had not had the benefit of visiting the place prior to the outbreak or even immediately thereafter. The explanation that the place looked bushy and muddy because the place had been left so after the outbreak makes a lot of sense. One point which this court cannot gloss over is the fact that the premises of Expom was a custom bonded warehouse. At all material times before the fire the raw materials\r\nwere under the supervision of CEPS becc.use of the in bond arrangement where the Plaintiff had to produce before paying tax on the imports. According to the Plaintiffs stocks Manager because of this arrangement, a custom officer was always inside the factory to check on the goods before parts are taken for production. I do not believe that customs will supervise raw materials in that bushy and muddy area which is their bonded warehouse. There is also the evidence that forklift was used to pick the bins and drums of paste. It cannot be suggested reasonably that the forklift was operated through the mud and the bush.\r\n \r\nAgain, the evidence does not show that, the raw materials had previously been kept elsewhere and because of the plan to set them ablaze they were brought to that portion of the premises. According to the stocks Manager the raw tomato paste had always been kept at that place where they had the most space whilst the cans are kept inside because of rains.\r\nIn the light of the evidence that, that particular place is where the Plaintiff had been keeping its raw materials from the beginning, and given the lack of evidence that the place had been so bushy and muddy at the time of the outbreak, it cannot be said that, that is evidence of a plan to set the raw materials ablaze.\r\nStill on the stocks, it has been said that between February and August 2009, the Plaintiff imported 14,288 bins/boxes but had used only 2,042 and that the Plaintiff had kept on importing new stock and rather used it in production whilst failing to testify as to plans it had for that large stock of tomato paste (see 12 and 13 on the list).\r\nFirst of all it is not said anywhere in the evidence that the Plaintiff imported raw materials and used them out of turn and left old stock unused. That is another fabrication. I think I have pointed out from the evidence of the Plaintiff''s stock Manager how they picked the raw materials from the stock for production. It was not always on first come first used basis. Some times if they needed a particular specification for a particular quality they chose from the appropriate batch. And to suggest also that the Plaintiff kept on importing when they had stock only to set them ablaze leads to a conclusion that the\r\n \r\nPlaintiff deliberately spent money and resources to import and burn to make insurance claim. That is an absurdity. In any case it was not shown that the Plaintiff did not have the capacity to process the stock of paste before the expiry dates.\r\nCircumstantial evidence was also sought to be generated out of the how bins and drums had been arranged and what has been described as the pattern of burn. The three (3) factors listed can be considered together. They were listed as follows:\r\n"9. Bins/Drums had been arranged by Plaintiff in a horse-shoe shape and\r\nafter the fire, the vacant middle portion had debris of charcoal\r\nindicating that prior to the fire, the middle portion had been packed\r\nwith wooden pallets to accelerate the burning.\r\n10.	Failure of Plaintiff to adduced evidence to explain the purpose of the\r\nempty wooden pallet in the middle of the horse shoe arrangement.\r\n11.	Undenied evidence on record that the pattern of burn was from the\r\nmiddle outwards".\r\nReading those three (3) statements together, the impression sought to be created is that the bins and drums were deliberately arranged in the so called horse shoe pattern, with the middle part stacked with wooden pallets to start the burning.\r\nThis allusion emanates from the evidence of defence witness, Divisional Fire Officer Owusu Adjei.\r\n \r\nInterestingly, if his evidence is read as a whole, it does not support the defendant''s circumstantial evidence that the Plaintiff deliberately set the materials ablaze.\r\nHaving given the description of the arrangement, the fire expert said that from his investigation he could not trace the seat of fire.\r\nHe stated as follows in his evidence-in-chief:\r\n"Q: You made some analysis of burn, do you want to add anything\r\nA: Yes the analysis of burn you could see that the middle part was really burnt so that was where the intensity was located. You could then see that the pattern of burn was from the middle outwards.\r\nQ: Ifyou say the fire was from the middle outwards why do you then say that no specific seat offire could be identified because if that is where the fire was intensified then that could be the seat\r\nA: No it does not necessarily mean that when you have intense burning, it''s seat The seat could start from a small area and then propagate to a bigger area where there are a lot of combustible elements and so you could have an extensive burn even at a place where it is not the seat offire".\r\nThe most critical point is the conclusion the fire expert drew.\r\n"Q: Did you draw any conclusions from your investigations\r\nA: Yes after we had analysed, we came to the conclusion that looking at the risk exposures of the products, we could see that no specific cause offire could be pinpointed to, so we saw that the risk exposures were electricity and the fact that a naked light could be introduced to that\r\n \r\nplace so in that case it was the probable causes, we couldn''t get a\r\nspecific cause so we then alluded it to electrical fault or introduction\r\nof a naked light".\r\nThis is the Defendants own witness speaking.\r\nThe scenario is this;\r\nThe Defendant seeks to make the case that the Plaintiff willfully set fire to the raw materials and seeks to prove it by circumstantial evidence. And the defence calls a fire expert whose conclusion is that electrical fault was a probable cause of the fire. Can it then be said that that circumstantial evidence leads to an irresistible conclusion that the Plaintiff willfully set the fire? I think far from that. What is worse, the fire officer whose report comes after an initial fire report vouched for the validity of the initial report.\r\nThe initial report is in evidence as Exhibit "L" which specifically attributes the\r\ncause of the fire to an electrical fault.\r\nI think rather than strengthen it, the evidence of the Defendant''s fire expert\r\nweakens the defence as far as the claim of arson is concerned. Then about the\r\ndogs in the cage also, there was no evidence that the dogs on the premises had\r\npreviously been released at nights to guard the yard. The fact therefore that\r\nthey were in the cage in the night of the fire was a routine occurrence.\r\nThe 1st Defendant further alleges that prior to the fire outbreak the Plaintiff\r\nhad inquired to know whether the 1st Defendant could issue a policy to cover\r\n \r\ntomato paste that had deteriorated. The 1st Defendant pleaded this in paragraph 19 of the statement of defence as follows:\r\n"19 Defendant state that prior to the fire incident the Plaintiff sought to know from the 2nd whether the Pt Defendant could issue an insurance policy to cover raw tomato paste if the tomato paste deteriorated before it was used for production but 2;d Defendant indicated that it could not issue such a policy."\r\nThis averment was denied by the Plaintiff in the reply.\r\nSurprisingly the broker from whom the sad inquiry was allegedly made did not plead this in its statement of defence. Be that as it may with the Plaintiff denying this, a duty was cast on the Defendant to have called the broker to give corroborative evidence to prove this especially so when the alleged inquiry was not made directly from the Defendant. The least the defendant could have done to prove this allegation was to have called the alleged recipient of the inquiry (2h11 Defendant) to attest to it. This was not done and even when the representative of 2'' Defendant was in the box the Defendant failed to seek a confirmation from her. This allegation remains unproven and cannot form the basis for the court to draw the inference urged upon it. On the authority of the oft cited case of MAJOLA GRE VRS LARD! (1959) 1 GLR 190 what the Defendant''s Representative Charles Ansong Dankyi sought to do was to repeat an averment on oath which does not amount to proof.\r\n \r\nIn any case, by this court''s earlier finding on the basis of the defendant''s own\r\nwitness''s account that no tomato paste had deteriorated, that allegation\r\nspeaks of nothing.\r\nPerhaps the strongest circumstantial evidence relied on by the Defendant to prove the allegation that the Plaintiff willfully set the raw materials ablaze is the fact that prior to the fire the Plaintiff had sent home the 11 or so security men on duty and replaced them with its own workers who were a driver and a carpenter on grounds of an alleged theft of money in the Plaintiffs offices.\r\nAccording to the Defendant this was part of the scheme to pave the way for the Plaintiff to embark on the alleged ungodly venture that night. It is not in doubt that the Plaintiff sent away the 11 security men and replaced them with Zakaria Awudi and Seth Awuley a driver and carpenter respectively on the day of the fire. Admittedly, this act should arouse a very strong suspicion. But the Plaintiffs explanation as given by Domenico Falcone was that, there had been cases of theft previously. In one instance a report had been made to the police but nothing came out of it. On this occasion one Senior Officer Mr. Gyenaro found in his office that a drawer had been broken into and money taken away.\r\nFalcone said he himself was not around at the time but Gyenaro called their boss in Italy one Mr. Russo who instructed that the security men be sent away to send a strong lesson to them and resolve the issue with their principals later.\r\n \r\nI shall in a short while comment on this explanation in particular whether the action taken was appropriate. But I think it is important first of all to determine whether the alleged theft actually took place.\r\nDetective Lance Corporal George Anyima Mensah who conducted an investigation into the cause of the fire stated that when he got to the premises he was told about the theft that had occurred and he confirmed it. His evidence was as follows:\r\n"1 asked the director of the company why such a big company like Expom had just skeleton (sic) security men at post. And my lord, he informed me that they had competent security men from K9 and Ex force Security company but a day before the incident they detected that somebody had broken into one of their drawers in one of the offices and stole (sic) an unspecified amount of money. Due to that they asked their bosses to withdraw them for the meantime whilst they make an alternative arrangement, if possible to change those who were on duty that day."\r\nWitness continued as follows:\r\n"My lord I asked him to lead me to the offices where this alleged theft took place. I was led to one first office just after you enter their administration block My lord, they showed me the drawer in which the money was before the theft took place. On inspection, although I didn''t find much on the door, it was clear that the drawer had been forced open with some implement"\r\n \r\nBoth, Seth Awuley and Zakaria Awudi corroborated the evidence of the break\r\nin saying they went to see it for themselves.\r\nAwule went further to say that he was made to fix the broken drawer later.\r\nHe said so under cross-examination thus\r\n"Q: This drawer that you were talking about were you called to fix it.\r\nA:	I fixed it later."\r\nContrary evidence was adduced by the defence through Detective Sgt.\r\nOkouampah who said that when he went to do his investigation he did not see\r\nany sign of a break in on the drawer.\r\nHe testified as follows:\r\n"So with him and the HR''S assistance, we all moved to the office of the Managing Director one Domenico Falcone and! explained why I am there. From there I moved to the office of the Technician who alleged his office was broken into and monies stolen from his drawer, but nothing of that sort was detected."\r\nNoticeably Exhibit Y is the report produced by Sgt. Okouampa on his\r\ninvestigation.\r\nUnder cross-examination of Sgt. Okuampah I think his own answers show how\r\nhis account about the drawer is not reliable. The following ensued:\r\n"Q: Mr. Okuampah the Detective who did the earlier investigation, the\r\none who had first hand knowledge of the incident was in this court and\r\ntestified that the day he went to the scene that is Monday after the fire he\r\n \r\nsaw visible signs of a break in, in the drawer the alleged theft took place in but in your report two months after the incident you said you saw no signs of a break in.\r\nA:	That is so my lord.\r\nQ:	But the company was working after the fire outbreak and in between the time that you went there is that not so.\r\nA:	Yes.\r\nQ:	So they could have fixed the broken drawer in the two months before you went there.\r\nA:	This could be so.\r\nQ: So the fact that there was no visible sign when you went there was because they may have fixed it and that it could have happened the day they reported that there was a theft at the place.\r\nA:	It''s possible."\r\nThese answers clearly put the mind of the court beyond doubt that the account of Corporal Anyimah I''vlensah is preferable to the unreliable evidence of Sgt. Okuampah.\r\nWith all the evidence considered I make a finding of fact that t he theft actually took place.\r\nNotwithstanding the theft, I am of the view that sending away the entire security detail and replacing them with Awuley and Awudi was inappropriate a decision to take in the circumstances of the case. Especially so when both\r\n \r\nAwuley and Awudi were not on premises at the time and had to be called from home. The security men in the view of the court could have been made to stay on whilst their principals were sent for, for the matter to be resolved. The decision to send all of them away though I find inappropriate, is however not in itself sufficient to lead me to the conclusion that the Plaintiff did so in order to set the place. The fact that the action arouses suspicion does not mean that it was not taken for a genuine reason, more so when undoubtedly the decision was taken upon orders from a superior officer, Walter Russo in Italy. The standard is proof beyond reasonable doubt and a mere suspicion is not enough. Finally, the impression sought to be created that, the Plaintiff all of a sudden went to pay all arrears of premium in April is misleading.\r\nThe evidence of Domenico Falcone considered as a whole shows that though the Plaintiff did not pay in November when it was supposed to pay, it paid in several stages and the final payment made in April. This should not be understood to mean that the Plaintiff rushed to pay the outstanding premium in April because it planned to burn the place in May.\r\nI have painstakingly examined the totality of the allegation put forth as constituting circumstantial evidence of proof of the alleged deliberate act of burning down the raw materials. As i~ has been shown, some of the allegations were unfounded, some, not established as facts, others fabricated, and on the conclusions that I have drawn on them, they, when put together cannot constitute any reliable circumstantial evidence out of which the court can infer that the Plaintiff willfully set the materials ablaze.\r\n \r\nI accordingly dismiss the Defendant''s claim that the Plaintiff deliberately set fire to the raw materials to make a claim.\r\nHaving said all that, let me put on record that it was never the duty of the Plaintiff to prove that the fire was due to an electric fault.\r\nEarlier in this delivery I referred to BULLEN & LEAKE & JACOBS PRECEDENTS OF PLEADINGS on the question of burden of proof. But at page 533 of their 1311) edition,\r\nthe authors make specific point on fire insurance which I find very instructive. They state:\r\n"Damage by ''fire" occurs if there is damage by ignition of the property insured. A fire is always caused by combustion but combustion does not always cause fire. if property is damaged by fire then the cause ofthefire is immaterial, unless the fire was started deliberately by the insured himself. The Plaintiff need not prove the cause of the fire. It is for a defendant insurer to assert and prove that the fire was caused by the deliberate act of the insured or that he was privy to the arson."\r\nThe authors cite the cases of SLA4TTERY V MA4NCE (1962) 1BQ 676 and THE A4LEXJON HOPE (1988)1 Lloyds Rep 311 for his view.\r\nOn account of this principle, which I approve of, and with the defendant''s failure to prove that the Plaintiff deliberately set the fire the question about the cause of fire is immaterial and the Plaintiff bears no burden of proving the electrical fault.\r\n \r\nEven if the question still fell for determination as to whether the Plaintiff adduced evidence to prove the electrical fault, I answer it in the affirmative. The Plaintiff tendered two reports from the Ghana Police Service and the Ghana National Fire Service which were received in evidence as Exhibits "K" and "U'' respectively. Both reports indicated that the cause of the fire was electrical. Also tendered by the Plaintiff was Exhibit "V" which confirms the cause of the fire to be electrical.\r\nEven Exhibit "Y" which I have already referred to as having been prepared by\r\nthe fire expert called to give evidence by the defence gave electrical fault as a\r\nprobable cause of the fire.\r\nIn the Defendant''s attempt to diffuse the overwhelming evidence that the cause of the fire was electrical, one Engineer Joseph William Anguah was called to testify that the cause of the fire could not have been due to electrical fault. Admittedly, Ing Anguah has an impressive C.V. but regrettably his expert opinion does not pass the credibility test. He had visited the scene about 2 years after the fire. At the time he did, he knew this matter was in court and that the Defendant''s entrenched position was that the place was deliberately set ablaze by the Plaintiff. He had been solicited by the Defendant and most probably had been paid by them to go to the scene and soon thereafter appear in court to give evidence. I received his evidence with a lot of suspicion as he was most likely to do the bidding of his client the defendant.\r\n \r\nLearned Counsel for the Plaintiff drew the court''s attention to the provisions in Section 80(1) of the Evidence Act 1975 NRCD 323. The provision there provide the guide to the court in determining the credibility of the witness.\r\nUnder Section 80(2) the matters relevant to the determination of the credibility of a witness include:\r\n"(c) the existence or nonexistence of bias, interest or other motive."\r\nI strongly believe that Ing. Anguah went to the scene with his biases actuated by the defendant''s position and interest in the matter and that he came to this court well motivated to execute the defendant''s schedule. I did not believe him.\r\nIn any case the entrenched opinion of Ing. Anguah that electrical fault was out of the question conflicts with the opinion of the Defendant''s own fire expert who had gone to the scene much earlier in time and who mentioned electrical fault as a probable cause of the fire. This shows the apparent inconsistency in the defence on this issue. I fail to throw away the overwhelming evidence on record that the fire was caused by electrical fault in preference to the opinion of Ing. Anguah.\r\nI find sufficient evidence on record to attribute the cause of fire to electrical fault and so is the finding of the court. This position leads me to hold that there was no malice on the part of the Plaintiff as far as the burning of the raw materials is concerned.\r\nI now proceed to consider the other defences pleaded by the Defendant in the statement of defence. But before I do so, there is one matter which arose in the course of the evidence about a suit between Trusty Foods Ltd. and a\r\n \r\ncompany called THONKET which is pending in the High Court Kumasi. Technically, Expom is not a party to that suit but I suppose because of the corporate relationship between Expom and Trusty Foods, the defence roped those proceedings into this one to make up a case. In those proceedings an order was made in that court for some finished products supplied to Thonket by Trusty Foods to be destroyed because they were unwholesome. The case sought to be made out of this was that those products were made from expired or about to expire raw materials and that informs the plan by Expom to burn its raw materials expired or about to expire in order to make the instant claim.\r\nI find the conclusion drawn by the defence bizarre. There is nothing to show that the finished product destroyed in that suit were produced from the Plaintiff''s raw materials. The subject matter of that suit was finished products which Thonket was unable to sell and which expired on its shell It had absolutely no connection with Expom and its raw materials which got burnt. I dare say that this whole Thonket''s story represents one of the desperate attempts by the Defendant to wriggle out of liability by every conceivable excuse.\r\nIt is not relevant to the real issues in this case.\r\nNow, Defendant has pleaded misrepresentation on the part of the Plaintiff\r\nAgain contrary to the rules on pleadings no particulars were provided. Be that as it may it was further alleged in another averment that the Plaintiff fraudulently misrepresented to the Defendant that it was the same legal entity as Trusty Foods. Did the Defendant adduce evidence to prove this? I do not find any evidence of any misrepresentation much less it being fraudulent. On\r\n \r\nthe contrary the Defendant''s representative Charles Ansong Dankyi in his evidence admitted that he knew Expom Ghana Ltd. and that Expom had a policy of insurance with Vanguard. If Vanguard had been in any confusion whatsoever between Expom and Trusty foods, witness who said he was head of broker relations department with oversight responsibility of business matters would have said so.\r\nThe broker through whom the defendant dealt with the Plaintiff did not allude to any such misrepresentation and the question was not put across to them anywhere in their evidence. The averments therefore remained a bare assertion.\r\nThe Defendant also pleaded fraud particulais of which were given as follows:\r\n''(a) Fraudulently misrepresenting to the defendants its relationship with Trusty Foods Ltd.\r\n(b)	Deliberately omitting to submit vital document in respect of its operation immediately prior to the fire with the view of deceiving the 1st Defendant into paying the claim.\r\n(c)	Deliberately causing the fire with the view to making afalse claim."\r\nI do not find it useful to comment on the particulars given under paragraphs (a) and (b) as I have had the opportunity of dealing with those issues earlier in the course of this delivery.\r\nFor the particulars given in paragraph (b) I wonder how they amount to fraud.\r\nAs Counsel for the Plaintiff posed the question: "How does failure to submit documents to another amount to fraud? As the principle is well known fraud\r\n \r\ninvolves a representation of an existing fact made dishonestly without belief in its truth or without caring whether it be true or not and intended to be relied upon by the other party and which the other party actually relies upon to suffer a damage.\r\nThere is authority to say that any allegation of fraud should possess of these ingredients.\r\nI have had a number of occasions to cite the caution of the Supreme Court contained in the case of OKWEI MENSA4H V LA4RYEA (2011) 1 SCGLR 31 D which in the words of ANIN YEBOAH JSC was expressed thus:\r\n"In the particulars of fraud stated in the instant case, it was not averred that there was misrepresentation offacts which the defendants had made dishonestly by word or conduct with knowledge that same was false and intended for the Plaintiff to rely on it to his detriment. Indeed, a careful perusal of the particulars above does not in the least conform with any standard known to rules of procedure relating to pleading fraud in a statement of claim. It must be pointed out thatfraud qua fraud is such a serious allegation in legal proceedings that it should not be pleaded when Counsel could not, from available instructions form a strong opinion in favour of it."\r\nThis is the context in which I view the particulars contained in the paragraph in question. It does not constitute fraud I do not find any evidence in support of it and I dismiss the allegation it purports to contain.\r\nWith all the facts considered and the evidence examined, I come to the conclusion that the Defendant could not establish any breach on the part of\r\n \r\nthe Plaintiff which could warrant a repudiation of liability in the policy neither\r\nis the contract itself vitiated in any way.\r\nI hold that the Defendant is bound to indemnify the Plaintiff for the loss\r\nsuffered as the result of the fire in fulfillment of the terms of the policy.\r\nIn Halsbury Laws of England 4th edition volume 25 the Learned authors have\r\nwritten in paragraph 653 as follows:\r\n"Measure of Indemnity"\r\n"The assured is not fully indemnified unless, so far as money can do it he is\r\nrestored to the position existing at the time of the fire. The amount\r\nrecoverable must therefore be measured by the amount of his loss, that is\r\nto say by the value which the fire has taken from his property."\r\nIn paragraph 652, the authors have further written.\r\n"No Recovery beyond the sum assured"\r\n"Afire policy always specifies the sum insured which merely represents the\r\nmaximum sum for which the insurer accepts liability. Unless the policy is\r\na valued policy, the assured does not in the event of a loss become entitled\r\nto be paid it as a matter of course. What he is entitled to is a full\r\nindemnity within the limits of the policy. He cannot recover more than the\r\nsum assured even though the amount of the loss exceeds it and he cannot\r\nrecover even the sum insured unless he proves a loss to that amount."\r\nThe implication of this is that the Plaintiff has to prove the quantum of loss\r\nsuffered to determine the amount of indemnity.\r\n \r\nIt is not in doubt that the sum assured was 5 million Euros. The Plaintiff claims that the loss suffered amounts to 4,942,311.53 Euros. The Plaintiff is not entitled to recover the 5 million Euros. What the Plaintiff is entitled to recover is the 4,942,311.53 and even that, it had to prove it.\r\nThe Plaintiff''s case is that the said amount represents the value of 12,246 drums and bins of tomato paste that were destroyed in the fire. Domenico Falcone in his evidence tendered Exhibit ''NI'', ''P'', ''Q'' and ''R'' as the main documents of proof.\r\nExhibit ''NI'' indicates the Plaintiffs tomato paste import details from 2008 to 2010 Exhibit ''P'' indicates the import documents including commercial invoices, import declaration forms and bills of lading.\r\nExhibit ''Q'' according to the Plaintiff represents the value of the tomato paste that was damaged in the fire whilst Exhibit ''R'' represents the value of other stocks.\r\nIn his own words, Falcone said of Exhibit ''NI''.\r\n"Q: Please take a look at this and tell the court what it is A:	This is tomato paste import details"\r\nHe said of Exhibit ''P''\r\n"A: These are the documents I was talking about. The invoices of the supply, tomato paste import derlaration form and a copy of bill of lading of the whole goods destroyed".\r\n \r\nHe also said of Exhibit ''Q''\r\n"A: This is the computation of the tomato paste that was damage (SIC).\r\nAnd this is also the list of stock holdings as at 10th May in our\r\nwarehouse.\r\nAll these (SIC) information were given the police and copied to the\r\ninsurer"\r\nUnder cross-examination, Falcone admitted his limited knowledge on the details of the stocks and offered to produce his stock Manager who compiled the documents. Mr. Rosario Palato in his evidence attested to the Exhibits as those compiled by him and gave some details of their contents. Material to the quantity of the bins and drums destroyed in the fire, the following ensued whilst Rosario Palato was under cross-examination.\r\n"Q: Turn to page 3 of Exhibit ''Q'' and give us the total of the quantity\r\nimported from February 2009 to August 2009?\r\nA:	14,288 that is if I haven''t made Gay mistake\r\nQ:	Please go to the second page of Exhibit ''Q'' the very first column says\r\n"in stock"— could you add up for me?\r\nA:	12,246"\r\nFurther in the course of cross-examination, Learned Defence Counsel asked\r\nthe following question.\r\n"Q: Out of Exhibit ''Q'' of the total that you imported that we\r\nacknowledge that you imported the total value amount to 14,288\r\n \r\n\r\n\r\n \r\nand from your Exhibit ''Q'' again the total that you had in stock that were damaged were 12,246\r\nA:	Yes".\r\nIt does appear that Counsel conceded finally that the total stock damaged was 12,246, hence she put the following question across.\r\n"Q: in putting it to you that, that you had used 2,042 out of a total import of 14,288 and 12,246 were damaged".\r\nI think the Plaintiff adduced sufficient documentary and oral evidence to prove that a total of 12,246 bins drums were damaged by the fire.\r\nThere is no evidence to show that any of those bins and drums of tomato paste could be salvaged. The evidence shows that after the fire, the plaintiff extended a request to the Standard Board to test whether any of those was whole some. The analytical report from Standard Board is in evidence as Exhibit ''U''.\r\nThe board reports as follows:\r\nREMARKS:\r\n"The samples were picked at random from eleven barrels out of about twelve thousand two hundred and forty six drums and bins. All samples had unpleasant smell and were dark in colour which is uncharacteristic of tomato paste. The batch numbers could not be identified as a result of the fire outbreak Most of the samples at the factory premises were\r\n \r\n•\r\np •\r\n \r\ncompletely burnt to ashes, others were partially burnt and the rest of them were exposed to excessive heat from fire. The wholesomeness of the tomato paste concentrate analysed cannot be guaranteed and therefore should be destroyed".\r\nIn her written address, Learned Counsel fo:. the Defendant construed Exhibit ''R'' to say that goods to the value of 9,018,956.11 were salvaged and therefore that amount has to be deducted from the sum being claimed assuming the Plaintiff is entitled to any claim.\r\nOnce again that point was misconceived and I suppose the import of Exhibit ''R'' was misunderstood. The evidence adduced is that as far as the 12,246 drums and bins were concerned nothing was salvaged and that is clearly buttressed by Exhibit ''U''. Exhibit ''R'' only shows other stocks that the Plaintiff had at the time which had no contact with the fire.\r\nI think on the whole, the Plaintiff adduced sufficient documentary and oral\r\nevidence to prove the claim. The defence did not adduce any contrary\r\nevidence disputing the qua', '../links/cases/Document (206).pdf', 'Yes', '', '2013', 'high', '<i><b><font face="Times New Roman" size="3">Law of Contract - Insurance - Failure of insurer to settle claim made by insured - Whether the insured deliberately caused the peril - Burden of proof - Onus on insurer to adduce credible evidence that insured committed arson - Standard of proof required in civil cases tainted with criminality is proof beyond reasonable doubt - Evidence Act s. 13(1) <br>Indemnity - Measure of indemnity - Whether plaintiff has to be restored to the position existing at the time of the fire - Onus on plaintiff to adduce evidence to prove quantum of loss suffered.</font></b></i><br>', 'JUSTICE RICHARD ADJEI-FRIMPONG', 'Civil', '', 'INS/4/2010', '', '', 'high', '2013-01-08', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(556, 'MADAM AFUA NKUAH  ...  APPELLANT\r\nVRS\r\nYAA KONADU\r\nTONY AGYEMANG BOATENG  ...  RESPONDENTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA- GHANA\r\nCORAM: WOOD (MRS), CJ (PRESIDING) BROBBEY, JSC\r\nANSAH, JSC\r\nANIN YEBOAH, JSC\r\nBAFFOE-BONNIE, JSC\r\nCIVIL APPEAL\r\nN Oj 4/9/2008\r\n11" FEBRUARY, 2009\r\nMADAM AFUA NKUAH	APPELLANT VERSUS\r\nYAA KONADU\r\nTONY AGYEMANG BOATENG	...	RESPONDENTS\r\nPractice and Procedure —Action in Representative Capacity —Procedural Requirements Order 2 Rule 4 of Cl 47— Whether appellant sued in Representative Capacity - Statute - Application - Whether Act 63 and Act 122 were erroneously applied in particular case.\r\nJUDGMENT\r\nANIN YEBOAII, l.S.C:\r\nThis is an appeal against the judgment of the court of Appeal dated the 13/03/2006.The court of Appeal allowed an appeal against the judgment of the Iligh Court, Kumasi which was delivered on 15/07/2002.The Plaintiff/Respondent/Appellant who for the sake of brevity shall be referred to as the Appellant herein on 25/10/1996 issued a writ of summons against the Defendant/Appellant/Respondent (who shall be referred to in this judgment as the Respondent).The action was for a declaration to the effect that a single room in a house at old Amakom known as H/no Plot 2 Block X1I1,0Id Amakom is neither the property of the Respondent nor any member of her family. The appellant also sought as ancillary reliefs, ejectment and recovery of possession and injunction. The case for the appellant was that one lKwabena Bin was the original owner of H/no Plot 2 Block X1 11, Old Amakom, in Kumasi and in 1954 he assigned his interest in the house to one Yaw Mensah a grand uncle of the Appellant. At the time of the\r\n \r\nassignment, one Madam Tiwaa who was the sister of the alleged assignor was occupying two rooms being chamber and hall in the first floor of the house. The said Madam Tiwaa was the mother of the Respondent. Due to the fact that Kwabena Bio hid assigned his interest in the house, her sister Madam Tiwaa had to vacate the house. The assignee on humanitarian grounds offered Madam Tiwaa one room on condition that she could live in the room in only her lifetime. Madam Tiwaa accepted the proposal and lived in one room with her daughter, the respondent herein, till she died in 1995. It was soon after the death of Madam Tiwaa that the appellant demanded rent from the respondent if she wanted to continue to live in the room. The respondent disputed the appellant''s title which led to the action at the High court, Kumasi.\r\nThe respondent traversed most of the allegations of facts upon which the appellant''s claim was based. She pleaded that Kwabena Bio put up the house but received a loan fi om one Yaw Mensah the predecessor-in-title of the appellant and used the house as security which made the transaction a pledge. According to her, it was as a result of the inability of the family of Kwabena Bio to pay off the debt to redeem the pledge whereby Yaw Mensah agreed with her family to exact rents from the house and pay off the debt. Respondent stated categorically that her mother on her own volition moved from the hall and chamber to occupy a single room in the house which is the subject matter of this action. In effect it was her case that kwabena Bio owned the house and that Yaw Mensah was a mere pledgee who never owned the house.\r\nOn the 17/6/1998, one Tony Agyemang -Boateng who claimed to be the head of family of the respondent applied to join the suit as co-defendant. His application was granted. In his statement of defence filed pursuant to the joinder, he virtually repeated the ailegations of facts pleaded in the statement of defence of the defendant. He, however, lodged a counterclaim and put the capacity of the appellant in issue. He denied stoutly any assignment executed by his relative Kwabena Bio and pleaded fraud to deny the assignment any effect in law.\r\nThe learned trial judge was called upon to resolve several issues which emerged from the pleadings. He found as a fact that the property, that is, H/N.9 Plot 2 Block XIII Old Ainakom was indeed put up by Kwabena Bio. He, however, found in favour of the appellant herein that Kwabena Bio in his lifetime assigned his interest in the house to Yaw Mensah. As a trial judge, he proceeded to evaluate the evidence of the respondents touching on the allegations of fraud. According to the learned trial judge, the Deed of Assignment which was tendered as Exhibit ''B'' did not suffer from any fraud. It was therefore concluded by the judge that Exhibit ''B'' upon examination assigned all the interest of Kwabena Bio effectively to Yaw Mensah.\r\nPage 2 of 6\r\n \r\nSeveral exhibits in the form of rent cards and statutory demand notices for payment of property rates were admitted in evidence and they bore the name of Yaw Mensah as the owner of the house in which the single room, the subject matter of this appeal is part of. Based on the evidence the learned trial judge entered judgment for the appellant to recover the single room in the house and further granted all the reliefs sought on the writ of summons and dismissed the counterclaim.\r\nThe respondents being dissatisfied with the judgment of the High Court lodged an appeal to the Court of Appeal. On the 13/03/2006 the Court of Appeal, in an unanimous decision, reversed the judgment not on the merits but on the issue of lack of capacity. As the Court of Appeal held that the appellant had no capacity to bring the action, it did not deem it proper to go into the other issues or grounds of appeal. The Court of Appeal based its decision on the case of CONNEY V BENTUM WILLIAMS [1984-86] GLR 310 CA and held that as the appellant was deriving her title from an e'';tate in which she was a beneficiary she required a vesting assent to enable her to initiate legal proceedings involving the estate''s property.\r\nThe appellant has lodged this appeal to this court obviously seeking the reversal of the judgment of the Court of Appeal on several grounds apparent in the notice of appeal.\r\nThe judgment of the court of Appeal has been seriously attacked under ground (a) of the grounds of appeal which stated as follows:\r\nfiie Court of Appeal erred in holding:\r\n(a) that the plaintiff did not have the requisite capacity to sue at the court below in view of the fact that the court did not have any factual evidence to support its holding, particularly as the issue of capacity raised at the court below and the Court of Appeal related to the plaintiff''s lack of vesting assent and not as to her lack of capacity as the head of family.\r\nIn civil actions, usually commenced by writ of summons, if a party to the suit initiated an action in a representative capacity, such capacity ought to be fully endorsed on the writ and appear in subsequent processes filed. The action which has culminated in this appeal was commenced on 25/10/96 when the High Court Civil Procedure Rules [N 140 A of 1954 was in force. Order 3 Rule 4 of the operative rule states as follows:\r\n \r\nPage 3 of 6\r\n \r\n4. If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, the endorsement shall show in the manner appearing by such of the forms in appendix A, part II, as shall be applicable to the case or by any other statement to the like effect in which capacity the plaintiff or defendant sues or is sued"\r\nSee GHANA MUSLIMS REPRESENTATIVE COUNCIL & ORS V SALIFU  [1975] 2 GLR 246 CA.\r\nIn this appeal before us it is obvious from the proceedings, specifically the writ of summons that the appellant as plaintiff did not sue in any representative capacity whatsoever. Her case was simple. Both in her evidence and statement of claim it was her case that the house formed part of the estate of one Yaw Mensah, and that after his death one Kwame Adum Atta obtained letters of administration and administered the estate. It was her case that as Yaw Mensah had another landed property as H/Ng K077 his estate was distributed and H/Ng Plot 2 Block XIII Old Amakom of which the room in dispute form a part was given to her by the family.\r\nShe was obviously not suing as the head of her family. Both the pleadings and the evidence did not disclose so. It was therefore not proper for the defendant and co¬defendant to plead that she had not capacity to institute the suit. In my respectful view, the learned judges of the Court of Appeal did not consider the procedural requirement of suing in a representative capacity as laid down in the applicable rules of court as it then stood at the time the writ was issued. Order 3 Rule 4 of LN 140 A of 1054 has been subsequently repeated in Order 2 Rule 4 of the new High Court (Civil Piocedure) Rules, 2004 CI 47 and nothing turns on the difference. In my opinion the Court of Appeal erred in raising the issue of capacity against the appellant in the manner it did.\r\nAnother error which touches on the issue of capacity was the application of the ratio decidendi in the case of CONNEY V BENTUM WILLIAMS [1984-86] 2 GLR 301 CA which states inter alia, that lack of vesting assent and registration of same does not vest legal title in a beneficiary under a will by virtue of Land Registry Act 1962 (ACT122).\r\nIn as much as I do not doubt the correctness of the decision in the Conney''s case, it is clear that this case is easily distinguishable from the Conney''s case. In the Conney''s case, the testator had died on 30/04/1976, at a time when both the Administration of Etates Act 1961 (Act 63) and the Land Registry Act 1962 (ACT 122) were in full force and effect. In this case before us, Yaw Mensah, on the evidence, died in 1957 and Letters of Administration was obtained in 1957 by one Adum Attah. It is therefore\r\nPage 4 of 6\r\n \r\nerroneous for learned counsel for the respondent to invoke Act 63 and Act 122 which were both wholly inapplicable given the circumstances of the case. As the evidence was not clear from the record when the property was given to the appellant, it was with due respect equally wrong for the Court of Appeal to raise this point against the appellant and based its judgment on it by applying the Conney''s case to deny the appellant her capacity to sue.\r\nApart from the erroneous application of both statutes which influenced the Conney''s case, the appellant in this case had sued for only one room in the house which had been gifted to her. The title of the whole house was not put in issue in her claim in anyway. The respondents rather counterclaimed for the house on the simple grounds that the house was pledged by Kwabena Bio to Yaw Mensah and sought declaration of title and the usual ancillary reliefs or recovery of possession, injunction and accounts.\r\nIii my respectful opinion, there was therefore no basis to deny the appellant her right to sue to recover only the one room which was the subject or her claim. I am of the view that the appeal ought to be allowed and the judgment of the High Court granting the reliefs endorsed on the writ to the plaintiff restored.\r\nANIN YEBOAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nI igree\r\nG. T. WOOD (MRS) (CHIEF JUSTICE)\r\nI agree\r\nS. A. BROBBEY\r\n(JUSTICE OF THE SUPREME COURT)\r\nI agree\r\nJ. ANSAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nPage 5 of 6\r\n\r\n \r\nI dgree\r\n \r\nP. BAFF0E-BONNIE\r\n( JUSTICE OF THE SUPREME COURT)\r\n \r\nCOUNSEL:\r\nDR. L. K. AGBOSU FOR THE APPELLANT.\r\nK A. ASANTE-KROBEA FOR THE RESPONDENTS.\r\n \r\n\r\n \r\nPage 6 of 6\r\n\r\n', '../links/cases/Document (207).pdf', 'Yes', 'BROBBEY JSC, ANSAH JSC, ANIN YEBOAH JSC, BAFFOE-BONNIE, JSC', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and Procedure - Action in Representative Capacity - Procedural Requirements - Order 2 Rule 4 of CI 47 - Whether appellant sued in Representative Capacity - Statute - Application - Whether Act 63 and Act 122 were erroneously applied in particular case.</font></b></i><br>', 'WOOD (MRS), CJ', 'Civil', '', 'J4/9/2008', '', '', 'supreme', '2009-02-11', ''),
(557, 'AMBROSE DOTSE KLAH  ...  PLAINTIFF/RESPONDENT/APPELLANT\r\nVRS\r\nPHOENIX INSURANCE CO  ...  DEFENDANT/APPELLANT/RESPONDENT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT OF GHANA\r\nACCRA, GHANA.\r\nCORAM: DATE-BAH JSC (PRESIDING)\r\nANSAH JSC\r\nDOTSE JSC\r\nBONNIE JSC\r\nAKOTO-BAMFO (MRS) JSC\r\nCIVIL APPEAL\r\n14/19/2011\r\n30111 MAY 2012\r\nAMBROSE DOTSE KLAH	PLAINTIFF/RESPONDENT/APPELLANT\r\nPHOENIX INSURANCE CO.	DEFENDANT/APPELLANT/RESPONDENT\r\nPractice and procedure— Pleadings— Whether ones pleadings must contain his statement of claim and evidence— Evidence not needed in the statement of claim— Cl 47, Order 11(7,) (U— Plaintiff under a duty to adduce evidence to support claim made— EvidenceAct,ss.1O& 11\r\nContract— Breach of contract— Damages— Calculation of damages— Quantum subject to the duty of mitigation of damages\r\nJUDGMENT\r\nAKOTO-BAMFO (MRS) JSC:\r\nIt is important to stress that the efficient conduct of a case includes the drafting of\r\ncorrect pleadings, the marshaling and adducing of the relevant evidence during the trial and the invocation of the correct principles of law. These are well-known basics. If counsel falls short in any of these areas, it may lead to failure of the\r\naction he or she has initiated or, correspondingly,\r\n \r\n\r\nsuccess of an action he or she is defending. In such a situation, it is no use for counsel to turn around and blame the court for allowing technicalities to frustrate its primary and important function of justice. Courts do justice according to law. Accordingly, counsel cannot afford to take their eyes off the details of the law. This case is a classic example of counsel paying insufficient attention to detail resulting in the inevitable loss of the claim which is the subject of this inattention.\r\nOn the 30th of June 2009, the appellant herein, Ambrose Dotse Klah, filed a Notice of Appeal in the Registry of this court by which process he served notice that he was dissatisfied with the Judgment of the court of Appeal dated the 18th of December 2008.According to him the object of his dissatisfaction was:\r\n"The part of the judgment which set aside the award of "severance and other awards"\r\nThese were his grounds of appeal:\r\na The Court of Appeal erred in setting aside the award of severance award and other benefits having confirmed that the appeal was wrongfully dismissed\r\na The Court of Appeal failed in its duty to do justice to the applicant when it failed to\r\ninvoke its general powers to protect the applicant.\r\nc The Court of Appeal should have exercised the discretion to order the payment of\r\nSeverance awards having found that the Defendant/Appellant/Respondent severed\r\nthe employment relationship.\r\nd The	Court	of	Appeal	erred	in	requiring	the Plaintiff/Respondent/Appellant to lead\r\nexhaustive and elaborate evidence on his "severance and other\r\n \r\n\r\nawards [benefits]"\r\nwhen what he claimed to be due him was not challenged.\r\ne Additional grounds of appeal may be filed upon receipt of the\r\nrecord of proceedings.\r\nEven though there was an indication that additional grounds would be filed; no such grounds were filed.\r\nIn order to appreciate the issues raised, it is necessary to set out briefly the events culminating in to the present appeal.\r\nBACKGROUND\r\nUntil the 5th day of March 2005, the appellant was the Chief Accountant of the Phoenix Insurance Company, the respondent in the present appeal. He was employed in 1996 and assigned the post of a Chief Accountant, a position he held until he received the letter of the 5th of March informing him of the decision of management to dismiss him summarily from the employment of the company with immediate effect.\r\nIn the ensuing paragraphs of the letter of dismissal, which was marked as exhibit A in the Court of first instance, were set out various acts which\r\nmanagement claimed constituted the appellant''s "refractory and\r\nunprofessional behavior in the company."\r\nExhibit A left the appellant in no doubt that flowing directly from the dismissal was the loss of all benefits due him.\r\nNaturally unhappy at this turn of events, the appellant took out a writ of summons in the High Court claiming against the respondent and two of its executive directors jointly and severally these reliefs:\r\n1. Declaration that the dismissal of the Plaintiff is unlawful.\r\n \r\n\r\n2.	GH1,000,000,000 General Damages for DEFAMATION and personally disparaging the Plaintiff.\r\n3.	GH03,731,353,000 special Damages for DEFAMATION rendering\r\nhis employment opportunities as a Chartered Accountant negligible up to and including his Retirement age.\r\n4.	GH070I,128,000 SEVERANCE AND OTHER BENEFITS as the Plaintiffs normal Entitlements.\r\n5.	Perpetual Injunction to restrain the Defendants, their Agents and Servants from publishing the said defamatory words or any similar words against the Plaintiff.\r\n6) Legal Cost.\r\nAfter a full trial, the learned Judge found that the dismissal was wrongful and proceeded to make these pronouncements and orders:\r\n"In the case the Plaintiff is asking for the payment of normal benefits which he fixed at GH$701,128,000 being severance award and other benefits.\r\nThere is no evidence challenging this piece of evidence on record." He then continued later:\r\n"Since the amount found is what he is to earn by virtue of his employment, he needs to be compensated for the trauma that he encountered.\r\nThe Court in addition awards GH$200 million as general damages. I also award costs of GH$50 million to the plaintiff."\r\nThe respondent company registered its protest against the decision by lodging an appeal at the Court of Appeal. The court unanimously dismissed the appeal on all the grounds with the exception of the 3rd ground. It reversed the findings of the learned trial Judge on the severance award and accordingly quashed the orders made.\r\n \r\n\r\nNot surprisingly, the appellant lodged an appeal against the decision of the Court of Appeal by filing the Notice of Appeal referred to earlier in this judgment.\r\nEven though five (5) Grounds of Appeal were filed, learned Counsel for the appellant argued all the grounds together with an explanation that they were interrelated.\r\nIt is evident that the central issue raised in this appeal was the reversal of\r\nthe order for a severance award in the sum of GH¢701,128,000 in favour of the appellant by the Court of Appeal.\r\nIn his Submissions contained in the Appellant''s Statement of Case, learned\r\nCounsel argued that, the Court of Appeal abandoned its primary and important duty to do substantial Justice by allowing technicalities to hold sway over substance.\r\nIn the view of learned Counsel, since the issue of the GH¢701,128,000 was\r\nneither set down as an issue for determination in the High Court, nor were the pieces of evidence by the appellant on the issue challenged, the Court of Appeal erred when it reversed the findings of the High Court on the issue. He additionally contended that since there was no dispute, owing to the fact that the severance award was not an issue set down for determination, the appellant was relieved of his duty to call further evidence on the issue. There being no cross examination on the issue, he contended (and the trial Court thus having admitted same) the Court of Appeal erred in reversing same.\r\nIn reply, learned counsel for the respondent submitted that since the appellant failed to discharge the burden laid on him to produce evidence to establish the requisite degree of belief in the mind of the Court, as set out under section II of the Evidence Act 1975, the attack mounted by the appellant was bound to fail.\r\nIn paragraph 38 of the Statement of Claim filed on 30/7/2005, the appellant\r\nclaimed as follows; "38; Plaintiff further says that by reason of Defendant''s\r\naction he is not likely to get any job befitting his qualification and status as a chartered Accountant, and thus at his age with nine years more to reach his retiring age, the following are his expected losses, i.e.3, 731,353,000 in\r\n\r\nexpected income. WHEREOF: Plaintiffs claim is against the Defendants jointly and severally as per Writ of Summons as follows:\r\na.	Declaration that the dismissal of the Plaintiff is unlawful.\r\nb.	GH¢1,000,000,000 General Damages for DEFAMATION and\r\npersonally disparaging the Plaintiff\r\nc.	GH03,731,353,000 Damages for DEFAMATION rendering his\r\nemployment opportunities as a Charted Accountant negligible up to and including his Retirement age.\r\nd.	GH07001, 128,000 SEVERANCE AND OTHER BENEFITS as\r\nPlaintiff''s normal Entitlements.\r\ne.	Perpetual Injunction to restrain the Defendants, their Agents and Servants from publishing the said defamatory words or any similar words against the Plaintiff.\r\nf.	Legal Cost.\r\nSubsequent to this, the respondents filed a Statement of Defence consisting of 41 paragraphs. In paragraphs 39 to 41 appear the following:\r\n"39. Defendants say that in response to paragraph 38, they are not responsible in any way whatsoever for the conduct of Plaintiff''s profession, and he is put to the strictest proof to justify how GH¢3.731,353,000.00\r\ncould be his expected income as Chief Accountant.\r\n40.	Except as otherwise admitted in this Defence, Defendants deny every material allegation in Plaintiff''s Statement of Claim.\r\n41.	Defendants finally state that Plaintiff is not entitled at all to the reliefs he seeks, as being avaricious, unmeritorious and founded on falsehoods."\r\n \r\n\r\nWhat is the effect of the above?\r\nIt is common learning that pleadings are written statements of the parties setting out in summary form the material facts on which each relies in support of his claim or defence; thereby enabling each party to state and frame the issues in dispute between them.\r\nIn Hammond v Odoi 1982-83 GLR 1215 at 1235, Crabbe JSC pronounced on the functions of pleadings thus:\r\n"Pleadings are the nucleus around which the case- the whole case-\r\nrevolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case. And the reply is very much a part of the\r\npleadings."\r\nThe Plaintiff is required to formulate the factual grounds upon which he bases his claim or relief and thus define his cause of the action against the defendant. In Accra-Tema City Council v Ntim 1969 CC 62, the crucial role of pleadings was stated in these terms:\r\n"It is the purpose of such pleadings that they should help to define the\r\nissues and to indicate to the party who asks for them how much of the range of possible evidence will be relevant and how much irrelevant to those issues. But if an appellate court is to treat reliance on them a pedantry or mere formality I do not see what part they have to play in our\r\ntrial system."\r\n \r\n\r\nTraditionally, the Plaintiff is required to conclude the Statement of Claim with a relief or the remedy claimed.\r\nThe Statement of Defence, on the other hand, informs the Plaintiff precisely how much of the Statement of claim the defendant admits or denies. It is obvious that the respondent positively denied the averments in paragraphs 38 of the Statement of Claim as per paragraphs 39, 40 and 41 of the Statement of Defence.\r\nSince a party''s pleadings constitute allegations, as opposed to evidence; where an averment is positively denied as in the matter under consideration, it is incumbent upon the party asserting to substantiate those averments by leading evidence thereon; a cardinal rule of pleadings is that the material facts on which the party pleading relies for his claim, but not the evidence by which those facts are to be proved, should be contained in the Statement of Claim. Order 11 (7)(1) of 01.47 provides\r\n"Subject to this rule, and rules 10 to 12, every pleading shall contain only a\r\nStatement in summary form of the material facts on which the party pleading relies for the Claim of Defence, but not the evidence by which those facts are to be proved, and the Statement shall be as brief as the\r\nnature of the case admits". Whittaker V. Nanka Bruce 1994-95 GLR 784.\r\nWe are of the view that the appellant, having pleaded and endorsed his claim for the sum of GH0701,128,000 and same having been denied; he\r\nwas under an obligation to lead evidence in proof of those allegations.\r\nIt was not sufficient for him to have pleaded without more; he failed to prove the avements contained in the Statement of Claim. Therefore the assertions of learned Counsel that the issues raised in paragraph 38 of the Statement of Claim metamorphosed into admitted pieces of evidence have no basis in law. The appellant failed to discharge the burden placed upon him by virtue of sections 10 and 11 of the Evidence Act, 1975.\r\nIndeed what constitutes proof has been laid down in the celebrated case of Majolagbe v Larbi 1959 GLR 190 at Page 192 relying on Khoury V. Ritcher\r\n"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,\r\n \r\n\r\ninstances 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 on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what\r\nhe avers is true."\r\nAdditionally learned Counsel contended that the appellant''s evidence on the GH$701,128,000 was not challenged and therefore constituted\r\nadmitted facts which the High Court rightly considered but which findings were wrongly reversed by the Court of Appeal.\r\nWe take note of the fact that the Court of Appeal adequately dealt with this issue; and rightly concluded that no evidence was led on same. This is what Aduamah Osei J A at page 467 of the Record said on the issue;" In considering the respondent''s claim for the said sum, the trial Court stated as follows:\r\n"In this case plaintiff is asking for the payment of his normal benefits which he fixed at GH0701,128,000 being severance award and other benefits. This represents monies he earned for working for the company. There is also no evidence challenging this piece of evidence on record". On the\r\nabove findings of the learned trial Judge, Aduamah Osei JA delivered himself thus:\r\n"I have gone over the evidence several times and I find nothing on record in support of the trial\r\ncourt''s statement that the said sum represents monies the respondent "earned for working for\r\nthe company". There was no such evidence which the appellant was enjoined to challenge.\r\n \r\n\r\nAll the respondent did was to endorse on his writ of summons, as one of the reliefs claimed by\r\nhim, a claim for "GH0701,128,000 SEVERANCE AND OTHER BENEFITS, as Plaintiff''s\r\nnormal Entitlement", and to repeat the endorsement at the end of his Statement of Claim.\r\nThe repeat of the indorsement at the end of the Statement of claim is prefixed with the words, "WHEREOF; Plaintiff''s claim is against the Defendants jointly and severally as per his writ of Summons as follows;\r\n"This is obviously intended to suggest that the reliefs that follow flow from\r\nthe preceding averments. There is however nothing in the preceding averments on which the claim for the said sum can be based. And even if there were any such averments, there is no evidence on record which\r\nestablishes, supports, or even explains the claim."\r\nHaving perused the Record of Appeal, we cannot but agree with those findings.\r\nIt is therefore our considered view that since the appellant made no attempt at substantiating the allegations contained in the Statement of Claim, they remained allegations and not proof. The case of the appellants crumbles and we accordingly dismiss same.\r\nSignificantly the learned trial Judge simply stated at page 467 of the Record " In this case Plaintiff is asking for the payment of his normal benefits which he fixed at GH$701,128,000 being severance award and other benefits. This represents monies he earned for working for the\r\n \r\n\r\ncompany. There is no evidence challenging this piece of evidence on record".\r\nWhat was the nature of the award? Was it within the scope of the exercise of its jurisdiction to award general damages or special damages as and\r\nwhen appropriate? If the former; what was the award of GH0200,000.00?\r\nWas it in respect of his Salary for the period in lieu of notice and therefore represented the amount of wages he was prevented from earning as a result of the wrongful act? If the latter; was it pleaded, particularized and proved?\r\nA distinction exists between general and special damages; for whereas general damages arise by inference of law and therefore does not need to be proved by evidence, special damages, a loss which the law will not presume to be the consequence of the defendant''s act but which depends in part, on the special circumstances, must therefore be claimed on the pleading and particularized, to show the nature and extent of the damages claimed. The plaintiff must go further to prove by evidence that the loss alleged was incurred and that it was the direct result of the defendant''s conduct. Chahin and sons v. Epope Printing Press 1963 1 GLR 163-173.\r\nThis undoubtedly was a contract of employment. The respondent committed a breach thereof.\r\nWhere an employer wrongfully dismisses an employee as in the instant case, which was the finding made by the trial Judge and rightly affirmed by the Court of Appeal; the measure of damages is calculated largely on the basis of the principles applicable to actions of breach of contract as enunciated in Hadley v Baxendale 1854 9 Ex .341 and 354-355. "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such of breach of contract should be such as may fairly and reasonably be considered as either arising naturally i.e., in the usual course of things from such breach of contract itself, or such as may reasonably be supposed to\r\n \r\n\r\nhave been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it.\r\nThe principle is to place the injured party as far as money could do so in the position he would have been but for the breach. Royal Dutch Airways v Farmex 1989-9 2GLR 623.\r\nOver the years, our courts have enhanced the awards beyond the notice period under the contract.\r\nHemans V. Ghana National Trading Company 1978 1GLR 4.\r\nNkegbe V. African Motors Division of the United Africa Company of Ghana Ltd. 1978 1GLR 32.\r\nThis development does not detract from the essential nature of a contract of employment which is clearly determinable and does not therefore give the wronged party the right to be paid salary until his retirement, the exception being contracts affected by Public Law Provisions as demonstrated by the Ghana Cocoa Marketing Board V. Agbettor line of cases. ([1984-86] 1GLR 122.)\r\nWe take note of the fact that there was an award of GH$200,000,000 which\r\nwas affirmed by the Court of Appeal. Since that issue is not on appeal, we refrain from commenting on same, Suffice it to say that generally a plaintiff is entitled to such damages as would have been suffered by a party acting reasonably after the breach. Therefore in the case of an employee wrongfully dismissed, he is required to make a reasonable effort to secure a comparable job. Ashun v Accra Brewery Ltd 2009 Sc.GLR 81\r\nAt page 84, the Supreme Court speaking through Prof Date-Bah JSC\r\nstated ''the duty of mitigation of damages for wrongful dismissal devolves\r\non the employee. Accordingly, he or she has the duty to take steps to find alternative employment. In principle then, in the absence of any contrary statutory or contractual provision, the measure of damages for wrongful termination of employment under the common law of Ghana is\r\n \r\n\r\ncompensation, based on the employee''s current salary and other conditions of service, for a reasonable period within which the aggrieved party is expected to find alternative employment. Put in other words, the measure of damages is the quantum of what the aggrieved party would have earned from his employment during such reasonable period, determinable by the court, after which he or she should have found alternative employment. This quantum is, of course, subject to the duty of\r\nmitigation of damages".\r\nIn the main, we find no merit in the Appeal. We would accordingly dismiss\r\nsame\r\nV. AKOTO-13AMFO (MRS)\r\nJUSTICE OF THE SUPREME COURT\r\n \r\nDR. S. K. DATE- BAH\r\nJUSTICE OF THE SUPREME COURT\r\n \r\nI\r\nJ. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\n\r\nJ. V. M. DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\nP. BAFFOE BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL;\r\nAURELLIUS AWUKU FOR THE AIELLANT. AUUMAI-I OCANSEY FOR THE REPONI)ENT.\r\nN\r\n', '../links/cases/Document (208).pdf', 'Yes', 'ANSAH,J.S.C., DOTSE,J.S.C., BONNIE JSC,AKOTO-BAMFO (MRS) JSC', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and procedure - Pleadings - Whether one''s pleadings must contain his statement of claim and evidence - Evidence not needed in the statement of claim - C.I 47,Order 11(7) (1) - Plaintiff under a duty to adduce evidence to support claim made - Evidence Act,ss.10&amp;11<br>Contract - Breach of contract - Damages - Calculation of damages - Quantum subject to the duty of mitigation of damages</font></b></i><br>', 'DATE-BAH JSC', 'Civil', '', 'J4/19/2011', '', '', 'supreme', '2012-05-30', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(558, 'KWAKU FRIMPONG\r\nA.K.A IBOMAN  ---  APPELLANT\r\nVRS\r\nTHE REPUBLIC  ---  RESPONDENT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA, 2010\r\nCORAM: BROBBEYJSC (PRESIDING)\r\nADINYIRA (MRS) JSC\r\nOWUStJ (MS) JSC\r\nDOTSE JSC\r\nGBADEGBE JSC\r\nCRIMINAL APPEAL\r\nNO. 131512010\r\n18TH JANUARY, 2012\r\nKWAKU FRIMPONG	APPELLANT\r\nA.K.A IBOMAN\r\nVRS\r\nTHE REPUBLIC	RESPONDENT\r\nEvidence - Failure to call material witnesses - Evidence Act, 1975 NRCD 323 s.51 (1) and (2) Quality of evidence not quantity of witnesses important - Circumstantial Evidence - NRCD 323 s.120.\r\nCriminal law - Conspiracy to commit crime - Criminal Offences Act, 1960 Act 29 ss. 23 & 149 - Robbery - Act 29 s.149 - Whether court ought to have mitigated sentence - First offender - Constitution, 1992 art. 14 (6) - Whether sentence run concurrently or consecutively - Act 30 ss.302 & 303\r\nJUDGMENT\r\n \r\nINTRODUCTION\r\nJONES DOTSE JSC: \r\nThe appellant herein and three others were tried and convicted by the High Court, Fast Track Division, Accra on the following charge\r\nsheet:\r\nCount One\r\nConspiracy to commit crime namely robbery contrary to sections 23 and 149 of the Criminal Code 1960 Act 29 as\r\namended by Act 646, 2003.\r\nParticulars of Offence\r\nKwaku Frimpong a.k.a Iboman, Ernest Ababio a.k.a Blackie, Daniel Amewu a.k.a Coffie and Raymond Kwasi Wilson on 23rd April, 2002 at about 2.30am you did act together to rob, Albert Mawusi Biga''s BMW No. GR 2158Q and other items in his house at Lashibi within the jurisdiction of this court.\r\nCount Two\r\nStatement of Offence\r\nRobbery, contrary to section 149 of the Criminal Code 1960, Act 29 as amended by Act 646, 2003\r\nParticulars of Offence\r\nKwaku Frimpong a.k.a Iboman, Ernest Ababio a.k.a Blackie, Daniel Amewu a.k.a Collie and Raymond Kwasi Wilson on 23rd April 2003 at about 2.30 am you did rob Albert Mawusi Biga''s BMW No GR 2158Q and other items in his house at Lashibi in\r\n2\r\n \r\nthe Greater Accra Region and within the jurisdiction of this court.\r\nand sentenced to a term of imprisonment for 65 years on each count with hard labour.\r\nOn the 23rd day of October 2008 the Court of Appeal dismissed an appeal lodged by the appellant against the conviction and sentence of the High Court.\r\nFollowing that dismissal, the appellant filed this appeal to this court with the following as grounds of appeal:\r\nGROUNDS OF APPEAL\r\na.	That the Court of Appeal failed to properly evaluate the evidence which formed the basis for the conviction of the appellant by the trial court.\r\nb.	That the dismissal by the court of Appeal of Appellant''s appeal was unreasonable and occasioned the Appellant a substantial miscarriage of justice.\r\nC.	That the Court of Appeal and the trial court failed to give\r\nadequate and proper consideration by appellant''s defence.\r\nd. That the Court of Appeal ought to have mitigated the sentence imposed on appellant by the trial court.\r\nBRIEF FACTS\r\nThe undisputed facts before the trial High Court are that, on the 23rd day of April 2002 the appellant and his three accomplices armed with a gun and other offensive weapons attacked the residence of PW1 and PW2, namely Albert Mawusi Biga and Ebo Jackson at Lashibi a suburb of Accra. Under threat of death, the appellant and his group managed to procure the keys to a BMW 5 series car belonging to PW1. It was into this BMW car that some electrical gadgets including two Toshiba DVD players, a Pioneer\r\n3\r\n \r\nDVD player, a JVC amplifier, a CD player, wrist watches and mobile phones were put and thereafter the appellant drove the car off with the items and the other robbers.\r\nThe appellant later procured the services of someone at Dansomari and had the original number plate of the BMW car changed from GR 2158Q to GR 9204Q and then drove the car to his hometown Domeabra, near Konongo in the Ashanti Region.\r\nAs the robbery had been reported to the Police, investigations led to the arrest of one Daniel Amewu, the 3rd accused who mentioned the names of the appellant and the others.\r\nThe said Daniel Amewu, led the Police to arrest the appellant and a search in the house of the appellant led to the retrieval of a DVD player that was stolen from the house.\r\nIn the course of the Police investigations, the appellant admitted and confessed his involvement in the offence and led the Police to retrieve the BMW car from his hometown where he had gone to hide the vehicle.\r\nIt was based upon these facts that the appellant and the three others were prosecuted and convicted. It must be noted at this stage that even though the appellant challenged the voluntary nature of the confession statement that was procured from him, a mini trial conducted by the learned trial Judge upheld the prosecution''s case that the confession statement was voluntarily given and witnessed by an independent witness as required by and under section 120 of the Evidence Act, NRCD 323.\r\nEven though learned Counsel for the appellant argued the ground of appeal on sentence first, for purposes of clarity, it is considered imprudent to follow the same pattern. We will therefore consider grounds (a) and (c) together, then ground (b) and lastly ground (d) on sentence.\r\n \r\n4\r\n \r\nGROUNDS A AND C\r\nGround A: That the Court of Appeal failed to properly evaluate the evidence which formed the basis for the conviction of the appellant by the trial court.\r\nGround C: That the Court of Appeal and the trial court failed to give adequate and proper consideration by the appellant''s defence.\r\nIn his submissions in support of the above two grounds of appeal, learned counsel for the appellant made heavy weather of the admissibility of the confession statements Exh E and El. Learned Counsel contended that on the basis of provisions contained in section 120 of the Evidence Act, NRCD 323 and the testimony of the independent witness during the mini trial, the court should not have relied so much on the confession statement without carefully enquiring into the circumstances under which the said confession statement was procured.\r\nLearned Counsel therefore submitted that the learned trial Judge should have hastened slowly in concluding that the appellant was guilty in view of the many lapses inherent in the procuration of the confession statement.\r\nOn the basis of the above, learned Counsel pointed out that, it was equally wrong for the learned trial Judge to have relied on pieces of CIRCUMSTANTIAL EVIDENCE to draw the necessary inferences of guilt especially where there was clear evidence that the bits and pieces of circumstantial evidence do not irresistibly lead to guilt. See the case of Bosso v Republic [2009] SCGLR 420.\r\nIn this respect, learned Counsel for the appellant drew attention to the following:\r\n \r\n5\r\n \r\ni.	Failure of the Court of Appeal to detect the inconsistency in the prosecution''s case which stems from their failure to call material witnesses like a houseboy, watchman and his wife.\r\nii.	Failure of the Court of Appeal to link the presence of the appellant at the crime scene to the crime, e.g. inability of the prosecution to establish for instance that the DVD player that was retrieved from the appellant''s room was among the items stolen from the house of PWI contrary to appellants assertion that they were found in the car. See case of Dogbe v Republic [1975J1 GLR at 118.\r\niii.	That the Court of Appeal failed to consider the issues of whether the conduct of the appellant in the crime in relation to offences after the robbery had been committed were relevant to the offences with which he had been charged.\r\niv.	That the mere possession of items stolen from the crime scene does not automatically lead to proof of guilt of robbery, at worst, learned counsel contended that the appellant could have been charged with stealing or dishonestly receiving.\r\nv.	That the offence of robbery is a one off event, but not a continuous one for which acts committed after the robbery continue to be used to ground an offence of robbery.\r\nOn the basis of all the above points, learned Counsel for the appellant finally submitted in respect of the above grounds of appeal that it was wrong for the appeal court to have confirmed the conviction of the appellant on the basis of suspicion where his defence that the vehicle had been brought to him to purchase had not been considered.\r\nLearned Counsel for the Respondent, Mrs Evelyn Keelson, Principal State Attorney, in her brief but incisive submissions as contained in the Respondent''s statement of case, made light work of the\r\n \r\n6\r\n \r\nsubmissions made by learned counsel of the appellant Edward Darlington.\r\nLearned Counsel made references to the evidence of PW1 and PW2, both of whom were robbed and were therefore eye witnesses to the crime. In addition to the evidence of PW1 and PW2, learned Principal State Attorney made references to the evidence of PW3, D/Insp. Philip Anipa, the Police Investigator who investigated the crime and made very positive and crucial findings which confirmed the testimony of PWI, PW2 and the confession statement of the appellant at the trial court.\r\nFAILURE TO CALL MATERIAL WITNESS\r\nIt must be noted that, evaluating evidence in a criminal trial such as one involving a serious offence of robbery and indeed any other criminal offence is not based on the quantity of witnesses called at a trial in proof of the case of the prosecution or defence, but the quality of the evidence that the witnesses proffer at the trial.\r\nThis court in a unanimous decision in the case of Gligah & Anr v\r\nthe Republic [2010] SCGLR 870, at holden 5, where the Supreme Court, speaking with one voice through me stated thus:\r\n"The Supreme Court would affirm as good law, the principles of law regarding the need for a party to call a material witness in support of its case. However, the said principle of law did not apply in the circumstances of the instant case. In establishing the standard of proof required in a civil or criminal trial, it was not the quantity of witnesses that a party who had the burden of proof, called to testify, that was important, but the quality of the witnesses called and whether at the end of the day the witnesses called by the party had succeeded in proving the ingredients required in a particular case. In other words, the evidence led must meet the standard of proof required in a particular case. If it did, then it would be a surplusage to call\r\n7\r\n \r\nadditional witnesses to repeat virtually the same point or seek to corroborate evidence that had already been corroborated."\r\nSee also the cases of Tettey v Republic 12001-2002] SCGLR holden 2 and Dexter Johnson v Republic to be reported in [2011] SCGLR 601.\r\nIt is therefore clear that the inability or failure of the prosecution to call the houseboy, watchman or his wife has not resulted into a miscarriage of justice for which appellant should have any benefit.\r\nWhat is important to consider is whether the evidence of the three prosecution witnesses who gave evidence in the case, testified upon what is relevant and material evidence.\r\nIf their evidence is relevant and material in establishing the necessary ingredients of the offence charged, then the prosecution must be deemed to have discharged the burden of proof that lies upon them.\r\nSee sections 51 (1) and (2) of the Evidence Act, 1975 NRCD 323 which states as follows:-\r\n1.	"Relevant evidence is admissible except as otherwise provided by an enactment.\r\n2.	Evidence is not admissible except relevant evidence."\r\nIn this case, as has already been stated, PW1 and PW2 were the victims of the robbery attack and were able to give detailed testimony that linked not only the appellant, but also the other convicted persons.\r\nPWI testified under cross-examination that whilst he actually saw and identified A2, A3 and A4 there was a fourth person outside at the entrance of the outhouse whom he did not identity.\r\n \r\n8\r\n \r\nPW2 also in his evidence in chief narrated coherently the sequence\r\nof events in which by his narration he also identified 4 robbers in\r\nall, corroborating the evidence of PW1. Since the evidence of PW1\r\nand PW2 were relevant and germane to the crux of the case, there\r\nwas no need to look elsewhere.\r\nIt is important to note that in this case, it is sufficient if the\r\nprosecution succeed in proving the essential ingredients of the\r\noffences of conspiracy to commit robbery and robbery. For the\r\noffence of conspiracy, it is necessary to establish the following: \r\ni.	Agreement to commit the unlawful act of robbery - acting\r\nfor a common design. There need not be any prior\r\ndeliberation.\r\nii.	Intention on their part to commit that unlawful act - this\r\nwas manifested in their common pursuit of the robbery\r\nagenda.\r\nSee the following cases which have all espoused the provisions on\r\nsection 23 of the Criminal and other Offences Act, 1960, Act 29\r\nwhich deals with conspiracy:\r\n1. Behome v Republic [1979] GLR 112\r\nii. State v Boahene [1963] 2 GLR 554\r\niii.	State v Otchere & Others [1963] 2 GIAR 463\r\niv.	Azametsi v The Republic [1974] 1 GLR 228 CA\r\nIn this latter case, the first appellant who was the head of a fishing\r\ngroup decided to offer human sacrifice to the sea god for a bumper\r\ncatch. The victim, a member of the group was killed in the house of\r\nthe first appellant and this was witnessed by the appellant, his wife\r\nand others after which the body was disposed off. The first\r\nappellant was convicted inter alia, of conspiracy to commit murder.\r\nOn appeal against the conviction, the court held that there was\r\nI!]\r\n \r\nenough evidence of a common purpose and therefore he was guilty of the offence of conspiracy.\r\nFor the offence of Robbery, it is important to establish the following ingredients:-\r\n1.	That the appellant stole something from the victim of the robbery of which he is not the owner.\r\n2.	That in stealing the thing, the appellant used force, harm or threat of any criminal assault on the victims.\r\n3.	That the intention of doing so was to prevent or overcome the resistance.\r\n4.	That this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in a restrictive sense.\r\n5.	The thing stolen must be in the presence of the person threatened.\r\nFor example it was held in the case of Behome v Republic [19791 GLR 112 that:\r\n"One is only guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault with the intent thereby to prevent or overcome the resistance of his victims to the stealing of the thing."\r\nThus, as in the instant case, where it was the appellant who kept guard outside, whilst his accomplices used threat to procure the stolen items and the keys to the BMW car which he drove away and kept the car, he is as much guilty of the offence as those who used the threat. For it was he who facilitated the committing of the offence and their exit from the scene.\r\n \r\n10\r\n \r\nAs is well known, it is trite law that in criminal cases, the duty on\r\nthe prosecution is to prove the allegations against the appellant\r\nbeyond all reasonable doubt.\r\nThe prosecution have a duty to prove the essential ingredients of\r\nthe offence with which the appellant and the others have been\r\ncharged beyond any reasonable doubt. The burden of proof remains\r\non the prosecution throughout and it is only after a prima facie case\r\nhas been established i.e. a story sufficient enough to link the\r\nappellant and the others to the commissioning of the offences\r\ncharged that the appellant, therein accused is called upon to give\r\nhis side of the story. See cases like:\r\n1.	Amartey v The State [1964] GLR 256 at 295\r\n2.	Gligah and Anr. v The Republic referred to supra.\r\n3.	Dexter Johnson v The Republic to be reported in the\r\n[2011] SCGLR at 601.\r\nBased on the above principles, it is clear that the prosecution led\r\nrelevant evidence and satisfied the standard of proof that is\r\nrequired in a criminal case.\r\nIn the instant case, the prosecution in our opinion have led credible\r\nand cogent evidence to support all the necessary ingredients of the\r\noffence charged.\r\nFor instance, the fact of the robbery having occurred in the house of\r\nPW1 and PW2 on the night of 23rd April, 2002 is not in doubt.\r\nSecondly, the fact that the robbers were armed and put the inmates\r\nof the house in which the BMW car number GR 2158Q was stolen\r\ninto fear and threat of death is also not in doubt.\r\nThirdly, the fact that during investigations into the case, the\r\nappellant was mentioned and evidence was adduced which showed\r\nhis total and unequivocal involvement in the dastardly act i.e. he\r\n11\r\n \r\nwas the one who stood outside and kept guard whilst the others robbed and it was he who finally drove the stolen vehicle away and kept it.\r\nFourthly, the role and importance of the evidence given by Investigative officers during trial of accused persons needs to be put into proper contest and in this case the evidence of P.W.3 D/Insp. Anipa had to be understood in that contest.\r\nCIRCUMSTANTIAL EVIDENCE\r\nWhat must be noted is that, a crime is always investigated after the act had been committed. However, during the investigation, the Police are able to put together strings of activities and draw the necessary inferences and conclusions. Some of the evidence might be direct and therefore quite conclusive, but others might be indirect, and referred to as circumstantial.\r\nSome crimes are investigated based solely upon circumstantial evidence as apart from the accused there might not be any living eye witness of the crime. But courts of law will not throw their hands in despair only because there is no other eye witness account of the crime. This is the relevance and importance of circumstantial evidence which can be used to put together a very strong credible case capable of securing conviction for the prosecution.\r\nThe Supreme Court in the celebrated case of State cr Anani Fiadzo [1961]GLR 416 held on the issue of circumstantial evidence as follows: -\r\n"Presumptive or circumstantial evidence is quite usual as it is rare to prove an offence by evidence of eye-witnesses and inference from the facts may prove the guilt of the appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence, and in order to justify the inference of guilt the inculpatory facts must\r\n12\r\n \r\nbe incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis other than guilt. A conviction must not be based on probabilities or mere suspicion."\r\nSee also:\r\n3.. R v Onufrejczyk [1955] 1 QB 388\r\n2.	Bosso v Republic [2009] SCGLR 420, holden I\r\n3.	Gligah 85 Anr v The Republic referred to supra\r\n4.	Dexter Johnson v The Republic referred to supra where the Supreme Court again stated as follows at 605 holden No. 2\r\n"Circumstantial evidence was quite usual as it was rare to prove an offence by evidence of eye-witnesses; and inferences from the facts proved might prove the guilt of the appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption would follow irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis other than that of guilt.\r\nIn the instant appeal, even though the trial Judge in directing the jury, had not referred to the magic word "circumstantial", the Judge had taken pains to refer in great detail to pieces of evidence from both the prosecution and defence on record which linked the appellant irresistibly to the commission of the offence. Furthermore, there had been no substantial miscarriage of justice resulting from the directions to the jury and the conviction for murder would therefore be affirmed.\r\n13\r\n \r\nSee also Dogbe v The Republic [1975] 1 GLR 118, holden I, where the High Court, per Ata-]3edu J, stated thus:\r\n"In criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant facts from which it might be inferred by the court. Thus opportunity on the part of the accused to do the act and his knowledge of circumstances enabling it to be done were admissible to prove identity."\r\nAs at now, so far as the evidence on record is concerned, there are bits and pieces of evidence connecting the appellant to his deep involvement in the commissioning of the offences with which he was charged. In this instance, we will venture to state that, the inferences that have logically been made in this case appear so strong, cogent, credible and reasonable that assuming the confession statement is even disregarded, they constitute the best evidence against the appellant and upon which the court must convict.\r\nOther forms of evidence which can be termed circumstantial and accepted by the law courts are some of the following:\r\ni.	Forensic examinations etc.\r\nii.	DNA\r\niii.	Mobile phone conversations or SMS messages\r\niv.	Email messages where these are available and relevant V.	Crime scene investigations, and others.\r\nIn this case, the evidence of PW3, the Investigator even though got involved in the case after the robbery event, his evidence is so material that no fair minded court can disregard it.\r\n \r\n14\r\n \r\nFor instance how come that, out of the many people in Accra, it was only the appellant and his two other friends that the 3rd accused Daniel Amevvu pointed out as being part of the robbery gang.\r\nThis event is significant in many respects. This is because not only was the appellant mentioned, but he led the Police to retrieve the car that was stolen and used to carry the other stolen items away.\r\nSecondly, he also led the Police to discover how he changed the number plate of the BMW car No GR 2158Q to GR 9204Q\r\nThirdly, the many things that the appellant said in his caution statement which as it were is a confession statement could only have been made by a participis criminis.\r\nPW3 D/Insp. Anipa is definitely not a magician, in any case, no such evidence has been given to credit him with any magical or martial arts powers to read the minds of persons. Quite clearly therefore, only the appellant could have stated those things which themselves are consistent with the general tenor of the case. The only matter to critically consider is whether this confession statement was voluntarily made.\r\nADMISSIBILITY OF THE CONFESSION STATEMENTS\r\nWe have no doubt that the mini Trial was properly conducted and meets the Standard required in section 120 of the Evidence Act, NRCD 323.\r\nThe only issue we would want to deal with here is the role Independent Witnesses perform during the taking down of confession statements and the relevance of what the independent witness did in this case.\r\nIt is provided in sections 120, sub-sections (1) (a) (b) (c) and 2 (a) 86 (b) 3 (a) and (b) and 4 (a) (b) (c) as follows:\r\n \r\n15\r\n \r\n(1) (''In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which:\r\n(a)	constitutes, or\r\n(b)	forms an essential part of or\r\n(c)	taken together with other information already disclosed by the accused is a basis for an inference\r\nOf,\r\nthe commission of a crime for which the accused is being tried in the action is not admissible against the accused unless the statement was made voluntarily.\r\n(2) Evidence of a hearsay statement is not admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness, who\r\n(a) can understand the language spoken by the accused,\r\n(c) can read and understand the language in which the statement is made,\r\nand where the statement is in writing the independent witness shall certify in writing that the statement was made voluntarily in the presence of the independent witness and that the contents were fully understood by the accused.\r\n(3) Where the accused is blind or illiterate, the independent witness\r\n(a) shall carefully read over and explain to the accused the contents of the statement before it is signed or marked by the accused, and\r\n \r\n(b) shall certify in writing on the statement that the independent witness had so read over and explained its contents to the accused and that the accused appeared perfectly to understand it before it was signed or marked.\r\n(4) For the purposes of this section, a statement that was not made voluntarily includes, but is not limited to a statement made by the accused if\r\n(a)	the accused when making the statement was not capable because of a physical or mental condition of understanding what the accused said or did; or\r\n(b)	the accused was induced to make the statement by being subjected to cruel or inhuman conditions, or by the infliction of physical suffering upon the accused by a public officer or by a person who has a direct interest in the outcome of the action, or by a person acting at the request or direction of a public officer or that interested person; or\r\n(c)	the accused was induced to make the statement by a threat or promise which was likely to cause the accused to make the statement falsely, and the person making the threat or promise was a public officer, or person who has direct interest in the outcome of the action, or a person acting at the request or direction of a public officer or the interested person."\r\nThe relevance of these provisions is seen in the light of the objections taken to the admissibility of the charged cautioned statement of the appellant. In those statements exhibits E and E I, the appellant opened his mouth very loosely as if he was suffering from a mouth diarrhoea. This is in essence what is called a\r\n \r\n17\r\n \r\nconfession statement, where the statement admits of the declarant''s involvement in the commissioning of the offence.\r\nThe objection of learned Counsel for the appellant at the trial court, Mr. Hoeyi to the tendering of the statement is in the following terms:-\r\n"My Lord the statement was not that of his, it was not voluntarily given by him. The statement was given under duress and infact he was compelled to thumbprint it, he is an educated young man who can read and write and since he was not agreeing to sign they compelled him to thumbprint it. So it is inadmissible in law".\r\nHowever, in his evidence during the mini trial, the appellant stated thus:-\r\n"My Lord, I did make a statement to the Police but I don''t know the content of the statement you have in hand".\r\nIt is interesting to observe and note that, the appellant admitted that he saw PW3 write down the statement that he gave him at the CID Headquarters in Accra.\r\nAppellant however denied ever meeting the independent witness or seeing him anywhere during the taking down of the statement.\r\nAfter a careful perusal of the proceedings during the mini trial, we are satisfied that the statement was procured in accordance with the provisions of the Evidence Act, referred to supra.\r\nThis is because, according to the appellant, whatever he said he saw that PW3 put it down on paper. Thereafter he read it over to him and it was exactly what he told him. Out of abundance of caution, this is what the appellant said in answer to a question:-\r\nQ. "What he wrote down, was read back and explained to you in Twi language."\r\nIn]\r\n \r\nA. My Lord, after writing down the statement the investigator read over the statement exactly what I said."\r\nThe only difference is that the appellant denied admitting the crime\r\nand the presence of the independent witness. During cross-\r\nexamination, the appellant admitted thumbprinting the statement\r\nhe gave to PW3 and stated clearly that he made several\r\nthumbprints. This is consistent with the many thumbprints on the\r\nstatements, exhibits E and El.\r\nThe appellant also admitted that he gave the statement of his own\r\nvolition. This is what he said:-\r\n"Yes my Lord, I did give the statement on my own volition".\r\nThe above evidence clearly renders illogical the basis of the\r\nobjection by learned Counsel for the appellant that the statements\r\nwere procured from the appellant under duress and therefore not\r\nvoluntary.\r\nFrom a careful reading of section 120 of the Evidence Act, 1975,\r\nNRCD 323, the following procedure must be complied with to give\r\nvalidity to a confession statement and make it admissible in law.\r\n1. If the declarant of the statement made the statement while\r\narrested, restricted or is detained by the State then the statement is admissible only if \r\ni.	it was made in the presence of an independent witness, who\r\nii.	understands the language in which the declarant spoke i.e. accused therein, herein appellant.\r\niii.	can also read and understand the language in which the statement Is made.\r\n \r\niv.	whenever the statement is in written form, the independent witness shall certify in writing on the statement as follows:\r\n"that the statement was voluntarily made in his presence and that the contents were fully understood by the accused."\r\nv.	where the declarant is illiterate or blind, there are further provisions to protect the declarant by ensuring that the state does not take advantage of his disability by ensuring that\r\nvi.	the independent witness shall carefully read over and explain to the declarant the exact contents of the statement before it is marked or signed.\r\nvii.	the independent witness shall certify on the statement in writing that he had so read over and explained the contents of the statement to the declarant and that he appeared perfectly to understand it before making his mark or signature.\r\nThe rationale for the above elaborate provisions are clear. They are\r\nto ensure that the rights of the declarant, i.e. accused who is under\r\nrestriction are not trampled upon by the Police or the investigative\r\nagencies. These constitute the rights of all accused persons as has\r\nbeen protected in the Constitution 1992.\r\nFor example, what is meant by an independent witness? Taken\r\nliterally, this should mean someone other than the person,\r\ninstitution or body taking down the statement. The Longmans\r\nEnglish Larousse, defines independent as follows: \r\n"adj. free from the authority, control or influence of others, self governing, casually unconnected, these factors are independent\r\n20\r\n \r\nof each other, self supporting, not dependent on others for one''s living, not subordinate, not depending on another for its value."\r\nThe Chambers 201h Century Dictionary, (Geddie) Revised Edition defines the word independent also as follows: \r\n"adj. not dependent or relying on others, not subordinate, completely self governing, thinking or acting for oneself; too self respecting to accept help, not subject to bias etc."\r\nFrom the above definitions of the word independent, the definition which best suits the use of the word independent witness in the context can be said to be the meaning subscribed as follows:-\r\n"An independent witness is a person who is free from the authority, control or influence, or is not dependent or relying on anybody for direction, and or assistance."\r\nThis means therefore that, in the scheme of things, the independent witness envisaged under section 120 of the Evidence Act, referred to supra must be someone who satisfies the above definition.\r\nSuch a witness must not be subordinate to or under the authority, control or influence of the person investigating the crime and for which the independent witness is needed to authenticate the statement that has been given by the declarant.\r\nComing home to the instant case, it means that the independent witness in the case, Abukari Atta, who was procured by the Police to perform and satisfy a statutory requirement in section 120 of the Evidence Act referred to supra, undertook the performance of that duty to achieve a given result, so however that in the actual execution of that duty or requirement, he was not supposed to be under the order, control, influence or authority of the person for whom he did the work, i.e. the Police.\r\n \r\n21\r\n \r\nIn this case, the independent witness gave his name and occupation\r\nas follows:-\r\n"My name is Abukari Atta"\r\nI live at house No. D203/3 Timber Market\r\nI am a secretary to Nanumba community Chief resident in Accra here"\r\nThe independent witness stated that he visited a cousin of his, who\r\nis a Police Detective Sgt. at the CID Headquarters and it was there\r\nthat he was invited by the Investigator to witness the taking down of\r\nthe statement.\r\nWe are more than satisfied that the independent witness herein is\r\ncompetent as such and there has not been any imputation of bias\r\nagainst him to make him lose his independent stature. Learned\r\nCounsel for the appellant, did not pursue the evidence of his being\r\na friend to the Police and therefore incapable of being an\r\nindependent witness.\r\nUnder the circumstances of this case, we are more than convinced\r\nthat the independent witness having satisfied the qualities expected\r\nof an independent witness as defined supra and having also\r\nsatisfied the proficiency test as was shown and found by the trial\r\ncourt and the court of appeal, has complied with section 120 of the\r\nEvidence Act, referred to supra.\r\nWe believe the law does not allow the Police to secure the services of\r\nany person for this exercise. Care must be taken to ensure that the\r\nsaid independent witness is however known to the Police so that if\r\nas happened in this case, the need arises for a mini trial, the\r\nwitness can be contacted.\r\n22\r\n \r\nHowever, it must also be ensured that the said person is not tied to\r\nthe apron strings of the Police such as to question his neutrality\r\nand independence as was depicted in the definition or meaning of\r\nindependent.\r\nIt was quite unfortunate that learned Counsel for the appellant did\r\nnot pursue the frequent use of the independent witness by the\r\nPolice in other cases to strengthen his case against his being\r\nindependent. If Counsel had been diligent he could easily have\r\nprocured the necessary evidence to back that claim. This would\r\nhave been overwhelming in view of the vague, inconsistent and\r\nunreliable answers given by the independent witness on the subject\r\nmatter during cross-examination.\r\nIn short, an independent witness must not be someone who is so\r\nclosely connected to the Police as to make him more or less\r\ndependent on the Police. Such a scenario will defeat the purpose for\r\nwhich the law was enacted.\r\nSecondly, the independent witness must not only understand the\r\nlanguage in which the declarant spoke, but also understand the\r\nlanguage in which the statement was written down if it was written\r\nby someone other than the declarant.\r\nThirdly, the independent witness must also be able to read and\r\nunderstand the language into which the statement was written so\r\nas to enable him explain the contents to the declarant.\r\nFor example if the appellant, who spoke Twi, and the statement was\r\ntaken down in English by PW3 it meant that the independent\r\nwitness, must demonstrate sufficient proficiency in the Twi\r\nlanguage and also show ability to read English and interpret same\r\ninto Twi for the benefit of the declarant.\r\nIt also means that, if the investigative officer does not speak and\r\nunderstand the language which the declarant spoke, then the skills\r\n \r\n23\r\n \r\nof the independent witness as provided for in section 120 of NRCD\r\n323 become more relevant and crucial.\r\nUnfortunately, we have not seen anywhere in the record of appeal\r\nany cross-examination of PW3 to test his ability to understand Twi\r\nlanguage which was spoken by the appellant.\r\nThe only demonstrable test that was conducted during cross\r\nexamination at the mini-trial was that of the independent witness\r\nwho was given a clean bill of success and competence by the\r\nlearned trial judge and confirmed by the Court of Appeal.\r\nWe believe that, any attempt by a party to invalidate a confession\r\nstatement on the basis of non-compliance with section 120 (2) & (3)\r\nof the Evidence Act, 1975, NRCD 323 must begin with a\r\ndemonstration of the competence of not only the independent\r\nwitness of the language spoken by the declarant, but also by the\r\ninvestigator or person who writes down the statement. This\r\nbecomes more crucial when the statement is thumbprinted which\r\ngives the rebuttable presumption that the declarant is illiterate.\r\nThe various Investigating Agencies especially the Police must ensure\r\nthat independent witnesses they procure for witnessing such\r\nstatements satisfy these requirements.\r\nIn addition, the Investigators themselves must be proficient in the\r\nsaid language, otherwise they will be depending upon the\r\ncompetence of the independent witnesses, and if their skills or\r\nproficiency are suspect, then the whole edifice will crumble i.e. the\r\nstatements will not meet the test in the Evidence Act.\r\nFinally, it is desirable but not mandatory that the certificate on the\r\nstatement must be in the hand of the independent witness. Thus,\r\ncounsel should not only look at the form of such statements, but\r\nunravel the circumstances under which they were procured\r\nthrough cross-examination and proficiency tests conducted during\r\ntrials.\r\n24\r\n \r\nThese are the only methods by which the courts will ensure that the provisions in section 120 of the Evidence Act are complied with, save for allegations of torture, duress and other reasons which have to be proved on their own standing.\r\nUnfortunately, in this case, the appellant has not succeeded in casting any doubts on the proficiency of the independent witness in the Twi language as was found by the learned trial Judge and confirmed by the Court of Appeal. And since no test was performed on the Investigator, PW3, we are of the considered view that exhibits E and El were obtained in compliance with section 120 of the Evidence Act\r\nFrom the above analysis, it is clear that, Exhibits E and El had been voluntarily procured and the Court of Appeal was therefore right in confirming the findings of the learned trial Judge.\r\nWe similarly find and hold that the Court of Appeal was right in confirming the decision of the trial Court to convict on the pieces of circumstantial evidence.\r\nIt is therefore our conclusion that the failure of the prosecution to call other witnesses like the houseboy, watchman and his wife has not created any lapses in the prosecution''s case. The Court of Appeal was thus not in error when it affirmed same.\r\nSimilarly, even though robbery might be a one off event, series of activities before, during and after the event can be used to effectively nail an accused person in the offence of conspiracy and robbery itself. However, the fact that it was the appellant who drove the BMW car from the scene of the robbery meant that he was present at the scene. Whether he took part in the actual threat on the inmates or not is immaterial. The transaction is a one whole event, any person who engages in any part of the transaction is liable for the offence. The person who keeps watch whilst the\r\n25\r\n \r\ninmates of the house are subjected to torture and threat is as guilty as the person who threatens.\r\nIn this case, what must be noted is that, the appellant was not convicted because items stolen from the robbery scene were found in his possession. He was inextricably linked to active participation from the crime scene, i.e. driving the car from the scene and hiding it in his hometown.\r\nIt is therefore clear that, the confirmation of the conviction of the appellant by the Court of Appeal had been based on cogent and properly evaluated evidence that cannot be disturbed by this court.\r\nAfter an evaluation of the entire appeal record and the statement of case of the parties, what comes out clearly is that, the trial court, and the Court of Appeal did evaluate and consider the defence of the appellant. The fact that the defence of the appellant did not find favour with both the trial and the first appellate court did not mean that it was not considered.\r\nFor our part, we cannot but agree with the learned trial Judge that the defence of the appellant was but an attempt to extricate himself from the crime at that last stage. As a matter of fact, the defence of the appellant not only lacked substance, but was infantile and lacked merit.\r\nThe appellant was therefore properly convicted by the trial court and the confirmation of same by the Court of Appeal was in order.\r\nGround B: THAT THE DISMISSAL BY THE COURT OF APPEAL OF APPELLANT''S APPEAL WAS UNREASONABLE AND OCCASIONED THE APPELLANT A SUBSTANTIAL MISCARRIAGE OF JUSTICE\r\n \r\nme\r\n \r\nFrom the analysis that has been made supra, it is apparent that the\r\nCourt of Appeal considered the appeal that the appellant lodged\r\nbefore it and after evaluating same on sound principles of criminal\r\nlaw dismissed same. In any case it must be noted that an appeal is\r\nby way of a re-hearing and the Court of Appeal did just that.\r\nIn this regard, it must be pointed out that from the facts, the\r\nevidence of both the prosecution and defence and the law\r\napplicable, the dismissal of the appeal of the appellant did not\r\noccasion a substantial miscarriage of justice to the appellant.\r\nIn coming to this irrevocable conclusion, this court based its\r\ndecision on the fact that the appellant has not been able to proffer\r\nany convincing reason why he should be acquitted and discharged.\r\nHaving perused the entire appeal record in detail it is our\r\nconclusion that both the trial and appellate courts applied all the\r\ntests that are deemed to be applicable in criminal cases before coming to their decisions. See case of Amartey v Republic already\r\nreferred to supra.\r\nOnce the proper tests for evaluating the evidence of the witnesses\r\nand appellant has been properly done before the conviction of the\r\nappellant, this court is of the opinion that the dismissal of the\r\nappeal by the Court of Appeal was not unreasonable.\r\nIndeed, as was stated earlier, the defence the appellant proffered in\r\ncourt was a complete pathological lie which was very childish and\r\nbereft of any merits. That notwithstanding, the learned trial Judge duly considered same but came to the conclusion that "obviously,\r\neither the accused person was deliberately lying or his memory had been befuddled by the effluxion of time".\r\nWhat must be noted is that in a criminal trial or appeal, the fact\r\nthat the conclusion reached by a trial court or an appellate court\r\nwhich is inconsistent with the defence of the accused or appellant\r\n \r\n27\r\n \r\nshould not be construed as the failure of the court to consider the case put forward by the accused/ appellant.\r\nIt is enough if in the judgment the court makes references to the defence story, considers same and gives reasons why that story or defence cannot be believed.\r\nIn the instant case, both courts, trial and appellate did just that and in all cases concluded just like this court that the appellants defence is wishy washy, unconvincing, unreasonable and quite inconsistent with normal acceptable behaviour and conduct.\r\nSecondly, taking all the circumstances of this case into consideration, the appellant has not suffered any miscarriage of justice, much more substantial.\r\nWe will as well dismiss this ground of appeal.\r\nGROUND D: THAT THE COURT OF APPEAL OUGHT TO HAVE MITIGATED THE SENTENCE IMPOSED ON APPELLANT BY THE TRIAL COURT.\r\nIn view of what is at stake here in the consideration of the sentence of 65 years imposed on the appellant, we are inclined to commence our discussions and analysis with this quotation of a U. S States man John Tay in 1778: \r\n"I am now engaged in the most disagreeable part of my duty, trying criminals - punishment must of course become certain, and mercy dormant - a harsh system, repugnant to my feelings but nevertheless necessary".\r\nThis brings us to a discussion of the last ground of appeal which is on sentence.\r\n \r\n28\r\n \r\nIn dismissing the appeal against sentence, this is what the court of\r\nappeal stated per Acquaye J. A.\r\n"1 notice from the record of proceedings that the appellant was said to be a first offender and most of the items stolen was recovered. The evidence on record is that it was the appellant who drove the stolen car from the complainant''s house at Lashibi, Accra to his hometown in the Ashanti Region.\r\nTo reduce his sentence will be unfair to the other accused persons who are all serving 65 years jail sentence. The appeal against sentence is also dismissed." emphasis mine\r\nIn his statement of case before this court, learned Counsel for the\r\nappellant, Edward Darlington, based his arguments on the reasons\r\nwhy the sentence of 65 years should be varied.\r\n1.	That the appellant is a first offender and is young.\r\n2.	That modern view of punishment is to look at the correctional\r\nand reformative approach rather than attempting to crack a\r\nwalnut with a sledge hammer. That appellant needs a second\r\nchance.\r\n3.	That the period the appellant spent in lawful custody on\r\nremand was not taken into consideration when the sentence\r\nwas passed as he was constitutionally mandated to do under article 14 (6) of the Constitution 1992. Bosso v Republic\r\n[20091 SCGLR 420\r\n4.	That the learned trial Judge and the appeal court failed to\r\nexplain or justify the sentence of 65 years on each count\r\nwithout making it to run concurrent or consecutive as they\r\nwere obliged to do under the circumstances.\r\nOn her part, learned Principal State Attorney Mrs. Evelyn Keelson\r\nargued as follows:-\r\n29\r\n \r\n1.	That, robbery, being a first degree felony with no maximum\r\nsentence, meant the trial Judge acted within his discretion in\r\nimposing the 65 years in hard labour.\r\n2.	Considering the factors of punishment as laid down in the celebrated cases of Kwashie v Republic 1971 1 GLR 488 and in Republic v Adu Boahen 1972 GLR 70-78, what was\r\ndesirable under the circumstances was deterrent sentence. See unreported Supreme Court case of Kamil v Republic\r\nCriminal Appeal No.J3/3/2000 dated 8th December, 2010\r\n3.	That the learned trial Judge should have stated whether the\r\nsentences are to run concurrent or consecutive. Learned\r\nCounsel however stated that, the failure of the trial and\r\nappellate court to have stated the concurrent nature of the\r\nsentence has not occasioned any miscarriage of Justice as\r\ncontained in section 30 of the Courts Act 1993, Act 459.\r\nLearned Counsel urged this court to correct it.\r\n4.	Whilst conceding that the trial court did not state whether the\r\ntime spent by the appellant in lawful custody before sentence\r\nwas taken into consideration as is provided under article 14\r\n(6) of the Constitution, learned counsel for the Republic stated\r\nthat under the authority of the decision of the Court of Appeal in the case of 0 Jo v The Republic [1999-20001 GLR 169-181\r\nit is to be presumed that the court took the period the\r\nappellant spent in lawful custody into considertion before\r\nimposing the sentence.\r\nBased on the above, learned Principal State Attorney prayed this\r\ncourt not to interfere with the sentence imposed by the trial court\r\nand confirmed by the Court of Appeal.\r\nFrom the above arguments, the following issues need to be\r\ndiscussed and analysed in order to resolve the arguments raised\r\n \r\n30\r\n \r\nover the inappropriateness of the sentence imposed on the appellant by the trial court and confirmed by the Court of Appeal.\r\ni.	Whether or not on the totality of the facts and law, a sentence of 65 years on the appellant, a first offender according to the record then aged 31 years is appropriate.\r\nii.	That a trial court ought to take into consideration the period served by an accused person in lawful custody before sentence is imposed, pursuant to article 14 (6) of the Constitution 1992.\r\niii.	That the sentence of 65 years each on the offences should have been expressly made to run concurrent and not leave it blank as was done by both the trial and appellate courts.\r\nAPPROPRIATENESS OF SENTENCE OF 65 YEARS ON APPELLANT AS A FIRST OFFENDER\r\nThere is absolutely nothing on record to contradict the fact that the appellant is a first offender.\r\nDespite the misgivings expressed by the learned trial Judge on the accuracy of Police reports and or information that the appellant is a first offender, for now, Police records constitute the most authentic and reliable source of data upon which the courts act, in cases where records on accused persons are demanded by the courts.\r\nIt is also generally accepted that a first offender must normally be given a second opportunity to reform and play his or her role in society as a useful and law abiding citizen.\r\nThat is why it is desirable for a first offender to be treated differently when a court considers sentence to be imposed on a first offender vis-â-vis a second or a habitual offender. However, all that will change and evaporate into thin air if the crime committed by the first offender is such that the minimum sentence is fixed by law. For example, narcotics offences where the minimum sentence is 10 years, then the principle of considering first offenders will only be\r\n31\r\n \r\ntaken into account after the court considers that minimum and mandatory sentence.\r\nAgain if a first offender commits murder for example and the jury return a guilty verdict, the presiding Judge is mandated to impose the death penalty. See Dexter Johnson v Republic referred to\r\nsupra.\r\nThere are other examples like defilement, rape and some motor offences where death results. In all these cases, the minimum custodial sentence is fixed by law upon conviction and the fact that the accused/appellant is a first offender would be of no consequence. The minimum sentence in these cases would have to be imposed before the fact of being a first offender will be considered.\r\nThe point being articulated here is that, notwithstanding the general principle that first offenders should be treated leniently when sentence is being imposed, the measuring rod or standard in any circumstance is the offence creating statute and the punishment provided therein.\r\nWhere, as in the instant case, just like the other examples given, the minimum sentence is imposed, then the hands of the courts are tied.\r\nSecondly, the court will also have to consider whether the first offender indeed acted as a first offender i.e. a novice. This can be deduced from the type of crime committed, the circumstances under which the crime was committed and the casualties if any.\r\nTherefore if a first offender commits a serious crime like robbery which is a first degree felony, then it is to be presumed that the first offender himself had divested himself of any lenient considerations. In this case for example, section 149 of the Criminal Code 1960 Act 29, under which the appellant was charged provides as follows:-\r\n32\r\n \r\nSection 149\r\n(1)	"Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on a trial summarily or on indictment, to imprisonment for a term of not less that ten years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less that fifteen years."\r\n(2)	For the purposes of subsection (1) the Attorney-General shall in all cases determine whether the offence shall be tried summarily or on indictment.\r\n(3)	In this section "offensive weapons" means any article made or adapted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; and "offensive missile" includes a stone, brick or any article or thing likely to cause harm, damage or injury if thrown.\r\nThen section 150 of the Criminal Code 1960 Act 29 as amended at the time defines robbery as follows:-\r\n"A person who steals a thing is guilty of robbery if, in and for the purpose of stealing the thing, he uses any force or causes any harm to any person, or if he uses any threat of criminal assault or harm to any person, with intent thereby to prevent or overcome the resistance of that or of any other person to the stealing of the thing."\r\nWhat is to be noted here is that, whilst the minimum sentence for robbery has been fixed at 10 years simpliciter, in cases where offensive weapons have been used, the legislature has deemed it fit and proper to enhance the minimum to 15 years imprisonment. Being a first degree felony means that the legislature has categorized the offence of robbery as a grave one. The maximum\r\n33\r\n \r\nsentence can therefore be any number of years that a court deems suitable and appropriate under the circumstances unless the statute states otherwise.\r\nThere is no doubt that robbery is a serious crime and various legislations in this country have sought to deal with it as best as they could.\r\nIn the unreported criminal appeal case of Daniel Ntow v The Republic, Criminal Appeal No. CRA No. H2/25/05 dated 6th April, 2006 the Court of Appeal, Coram Owusu-Ansah JA presiding, Jones Dotse JA as he then was, and Iris May Brown J (Mrs) as she then was in a consideration of the legal regime and effect of the various amendments to section 149 of the Criminal Code, 1960 Act 29 observed as follows:-\r\n"In an attempt to rationalise the seriousness which society attached to the menace of armed robbery, NRCD II"\r\n(which is the suppression of Robbery Decree 1972, NRCD II) went to the other extreme by limiting the courts to only two sentences upon conviction in a robbery charge, namely:-\r\n1.	Life Imprisonment and\r\n2.	Sentence of death\r\nThis was the situation until Act 646 was enacted in 2003 which has indirectly amended and or repealed not only the original section 149 of Act 29 referred to supra, but also NRCD II as it is relevant and applicable to section 149".\r\nContinuing further, the Court of Appeal observed in the Daniel Ntow v Republic case referred to supra as follows:-\r\n"In effect, the result of the enactments in Act 646 are to do away with life imprisonment and sentence of death in\r\n34\r\n \r\nall cases of robbery, even where violent means are used\r\nwhich results in death."\r\nThe result has been the lengthy sentences that trial courts started\r\nto impose on convicted robbers. This has led to inconsistency in the\r\nsentences handed down by the courts. Whilst the minimum\r\nsentences have been fixed by operation of law, i.e. 10 or 15\r\nyears as the case might be, the sky appears to be the limit for\r\nthe maximum. That is where the court in appropriate cases must\r\nconsider the factors of punishment before sentences are imposed on\r\nconvicted robbers.\r\nWhat this court has been requested to do is to consider whether the\r\nsentence of 65 years is appropriate under the circumstances.\r\nThe learned trial Judge indicated what factors influenced him in\r\nimposing the sentence of 65 years. Speaking for ourselves we will\r\nstate that the sentence of 65 years is undoubtedly harsh and\r\nsevere. But is the trial Judge not justified?\r\nConsidering the menace of robbery in our Ghanaian society and the\r\nhigh incidence of the crime coupled with the revulsion which right\r\nthinking members of society feel about the crime, there is the\r\nurgent need to deal swiftly, and in a manner that will serve as a\r\ndeterrent to other like minded citizens. The principles upon which\r\nsentences are imposed have been stated in the locus classicus case\r\nof Kwashie v The Republic [1971] 1 GLR 488 at 493 where it\r\nwas stated thus:-\r\n"In determining the length of sentence, the factors which the trial Judge is entitled to consider are:\r\ni.	The intrinsic seriousness of the offence.\r\nii.	The degree of revulsion felt by law abiding citizens of the society for the particular crime.\r\n35\r\n \r\nUI	The premeditation with which the criminal plan was executed.\r\niv. The prevalence of the crime within the particular locality where the offence took place, or in the country generally.\r\nthe sudden increase in the incidents of the particular crime\r\nvi. Mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed."\r\nComing closely on the heels of the Kwashie v The Republic case supra, is that of The Republic v Adu-Boahen, [19721 GLR 70-78 where the court stated thus:\r\n"Where the court finds an offence to be grave, it must not only impose a punitive sentence, but also a deterrent or exemplary one so as to indicate the disapproval of society of that offence once the court decides to impose a deterrent sentence the good record of the accused is irrelevant." Emphasis mine.\r\nSee also the caution of the Supreme court in the unreported case of Kamil v Republic, Criminal Appeal No. J31312009 dated 8th December 2010 where the Supreme Court, speaking through Ansah JSC stated in relation to the harshness or otherwise of a sentence as follows:-\r\n"Where an appellant complains about the harshness of a sentence he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country considering the sentence of 20 years which was passed on the appellants in the Kamil v Republic case supra, and considering also the principles on sentencing enunciated in the\r\n36\r\n \r\ncase of Hodgson v Republic 120091 SCGLR 642, this court\r\nheld on the said sentence as follows:"- Considering all this we find no good reason to disturb the sentence on the appellant by the Court of Appeal, and think it was even on the low side and should have been increased."\r\nUsing all the factors and principles enunciated in the above cases, it would appear that the trial court had some justification in imposing the sentence it did.\r\nThis is because if one uses the factors in the Ktvashie v The\r\nRepublic case supra, there is no doubt that robbery is one of the most serious cases that has plagued this country for about two\r\ndecades now.\r\nThe security and law enforcement agencies have been battling to control the menace of robbery with varying degrees of success and or failure.\r\nSecondly, it is quite certain that the degree of revulsion felt by law abiding citizens at the mention of (armed) robbery is such that there appears to be complete unanimity that robbery is a canker that must be eliminated from our society.\r\nThirdly, there is also no doubt that the appellant and his gang of robbers actually planned and swiftly executed their robbery agenda successfully. As a matter of fact, the ease with which the robbery was executed gives the impression that the gang must have been experts at the criminal conduct.\r\nThe only snag was that, there was no criminal record on them as at that time. The appellant and his team acted professionally in the robbery act.\r\nFourthly, it will be an understatement that the prevalence of (armed) robbery was pronounced at the material time April 2002. We believe judicial notice can be taken of the fact that, that was the\r\n37\r\n \r\nperiod during which hardly a week passes by without a robbery\r\nincident being reported in the national dailies. What about those\r\nthat never get reported for us to read about?\r\nFifthly, it is correct to say that as at the material time and beyond\r\nthere was an upsurge in the crime of robbery with or without\r\nviolence.\r\nIt is only the last factor that enure''s to the benefit of the appellant.\r\nEven then, there is a big question mark. We have already stated\r\nand discussed the youthful age of the appellant. But then, as a\r\nyoung man, the appellant did not act according to his age, but\r\nacted like a matured, swift and experienced professional robber.\r\nUnfortunately, there was no solid and concrete evidence of good\r\ncharacter about the appellant on record save the fact that he was\r\nnot known by the Police records.\r\nEven under a consideration of this last factor, the violent nature\r\nwith which the offence was committed is an aggravating\r\ncircumstance rather than mitigating.\r\nFor us, the most appropriate and encompassing principle is to be found in the case of the Republic v Adu-Boahen supra which\r\nconcerns the deterrence nature of sentences. Whenever we talk of\r\ndeterrent or exemplary nature of sentence, whom are we really\r\nreferring to as being deterred?\r\nWe believe it cannot be the accused/ appellant himself. This is\r\nbecause he himself would have been in the "cooler" and nothing can\r\ndeter him at that stage. Perhaps the length and nature of the\r\nsentence can deter him from committing offences in future. That is\r\nafter serving and completing the current sentence.\r\nIn reality, it is our belief that those to be deterred are the members\r\nof the society who know about the severity of sentences imposed for\r\nthis or that crime. Under these circumstances, assuming persons\r\n38\r\n \r\nwith criminal propensities will think properly, then •they might be\r\ndeterred from any criminal conduct and realise that it does not pay\r\nto engage in criminal activities to wit robbery, rape etc as the case\r\nmight be.\r\nIt might also be necessary sometimes to protect society by keeping\r\nsuch persons away from society for a long time. The primary duty of\r\nany government is to ensure that citizens go about their duties in\r\npeace, tranquility and in safety.\r\nThe organs of the state constitutionally mandated to ensure that\r\nthere is law and order have a responsibility to enforce due\r\nobservance and maintenance of law and order.\r\nHowever, considering the five fold effect of sentences propounded in the kamil v Republic case referred to supra, it does appear that\r\nthe punishment in this case has been punitive enough. It may also\r\ndeter others who are right thinking.\r\nWe however, doubt really, if such a sentence, or long sentences by\r\ntheir nature reform offenders. There is absolutely no doubt that\r\nsuch a long sentence of 65 years will appease society and safeguard\r\nthem from criminal conduct.\r\nIt is however our view that for such sentences to be really deterrent\r\nto others, then a different approach must be adopted to the\r\nimposition of sentences. This is because as in this appeal, if the\r\nappellant successfully completes the term of 65 years, we doubt\r\neven if his peers in Domeabra, near Konongo will be alive for them\r\nto be deterred upon his release, that is, if he survives the hard\r\nprison conditions in this country\r\nWe similarly doubt if those around Kantamanto, in Accra where\r\nappellant had a store will also be available upon his release after\r\nserving the 65 years to be deterred from engaging in criminal\r\nconduct. The greatest deterrence to our mind is the swift but\r\nunlawful mob action that society unleashes upon those suspected\r\n39\r\n \r\nof committing crimes especially, stealing, robbery and ritual\r\nmurders. If what happens to suspects in robbery cases is anything\r\nto go by, there would have been no robbery or stealing cases by\r\nnow. We will therefore advocate a scheme of sentence where the\r\nlength of the sentence whilst being commensurate to an extent with\r\nthe gravity of the crime and revulsion which law abiding citizens\r\nfeel towards the crime, will be such that, the peers and younger\r\npersons of society will have an opportunity to observe the life of the\r\nconvict after his release and hopefully be deterred thereby.\r\nIn this case for example, we think there is the need for a reduction\r\nin the sentence. In the case of Daniel Ntow v Republic, referred to\r\nsupra, the Court of Appeal confirmed a sentence of 18 years\r\nimposed on the appellant by the trial High Court because he was\r\nyoung and a first offender whilst his two co-accused were handed\r\n30 years prison terms.\r\nGiven the age of the appellant as at the material time, he was 31\r\nyears at the time the crime was committed in April, 2002 then by\r\nparity of reasoning he would be 40 years plus as at date of this\r\njudgment.\r\nThe remission that the appellant would benefit from ought to be\r\nconsidered in any reduction of sentence.\r\nIn that scenario, people in his community, peers, old and young will\r\nthen have something to learn from the hopelessness of engaging in\r\ncrimes such as robbery when reference is made to the appellant\r\nand others in same category.\r\nWe will also consider the fact that even though the robbery gang\r\nwas violent, no one was injured or harmed during the robbery. In\r\naddition, most of the items were retrieved.\r\nTo us, these factors constitute sufficient mitigating circumstances\r\nwhich should have been considered by both the appellate and trial\r\ncourts. In any case, one cannot fault them because at all material\r\n40\r\n \r\ntimes society was highly enraged at the menace of robbery at the time, and the courts need to complement the efforts of the law enforcement agencies whenever there was proven, cogent, reliable and credible evidence upon which they could convict.\r\nFinally, we believe also that long sentences such as was imposed on the appellant, 65 years, meant that he was virtually being consigned to a life in prison throughout his active adult life. This would mean an extra strain on the scarce resources of the state to cater for him for all the period in prison.\r\nThe time has perhaps come for more reformative methods of punishment to be fashioned out by the state. For example, it is not desirable to consign convicted robbers to lengthy prison terms say 65 years without taking into account the social effects it will have on the social fabric of society generally.\r\nThis is because if as is happening, the lengthy prison sentences have failed to deter people and the resultant effect is that many more young p', '../links/cases/Document (208).pdf', 'Yes', 'ADINYIRA (MRS.), JSC, OWUSU (MS.) JSC,DOTSE JSC,GBADEGBE JSC', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Evidence - Failure to call material witnesses - Evidence Act, 1975 NRCD 323 s.51(1) and (2) - Quality of evidence not quantity of witnesses important - Circumstantial Evidence - NRCD 323 s.120.<br>Criminal law - Conspiracy to commit crime - Criminal Offences Act,1960 Act 29 ss.23 &amp; 149 - Robbery - Act 29 s.149 - Whether court ought to have mitigated sentence - First offender - Constitution, 1992 art. 14 (6) - Whether sentence run concurrently or consecutively - Act 30 ss.302 &amp; 303</font></b></i><br>', 'BROBBEY JSC', 'Criminal', '', 'J3/5/2010', '', '', 'supreme', '2012-01-18', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(559, 'HAJAARA FARMS LTD  ...  PLAINTIFF/RESPONDENT/RESPONDENT\r\nVRS\r\nSOCIETE GENERALE-SOCIAL\r\nSECURITY BANK  ...  DEFENDANT/APPELLANT/APPELLANT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\n\r\nCORAM: ATUGUBA, JSC (PRESIDING)\r\nDATE-BAH, JSC\r\nANSAH, JSC\r\nBONNIE, JSC\r\nAKOTO BAMFO (MRS), JSC\r\nCIVIL APPEAL\r\n14125/2011\r\n251H JANUARY, 2012\r\nHAJAARA FARMS LTD	PLAINTIFF/ RESPONDENT/ RESPONDENT\r\nVRS\r\nSOCIETE GENERALE-SOCIAL	DEFENDANT/ APPELLANT/APPELLANT\r\nSECURITY BANK\r\nContract - Tort - Concurrent liability in both contract and tort - Discharge of contract by breach - Effect of matured rights and obligations under discharged contracts - Whether further damages may be awarded after award in tort - Principle of unjust enrichment.\r\n \r\nJUDGMENT\r\nDR. DATE-BAH JSC: \r\nThe key facts in this appeal are that a farming company (the plaintiff/respondent/respondent) entered into a loan agreement with a bank (the defendant/appellant/appellant) to finance the importation of 10 tractors from France. On their arrival in Ghana, the farming company took delivery and custody of the tractors. Dissatisfied with this, the bank seized the tractors and put them in its warehouse. It released 5 of the tractors to the company only after new terms had been agreed between them. The remaining five remained in the bank''s custody until they were ultimately sold by the bank. The bank claimed to be exercising rights under the original loan agreement that it had concluded with the farming company. But this agreement was never put in evidence at the trial. Eventually, the five tractors released to the company were also seized by the bank and sold.\r\nThe farming company brought this action in 1993, claiming:\r\na)	"that an account be taken of the proceeds obtained by the Defendants from the operation of 5 (five) Renault agricultural tractors belonging to the Plaintiffs from 1988 to date of disposal plus interest on such proceeds at the rate of 26% or the prevailing bank rate whichever is higher;\r\nb)	that an account be taken of the proceeds obtained from the sale of 10 (ten) Renault tractors belonging to Plaintiffs by defendants plus\r\n2\r\n \r\n\r\n\r\n \r\ninterest thereon at 26% or the prevailing bank rate whichever is\r\nhigher;\r\nc)	General damages for wrongful detention and disposal of 20 (sic) (ten)\r\nRenault tractors the property of the plaintiffs by the defendants or\r\nAlternatively an order for the replacement by the Defendants of the 10 Renault tractors plus damages for their wrongful detention and or\r\nwrongful disposal.\r\nd)	An order that any sums outstanding in respect of claims (a) and (b)\r\nabove be paid to the Plaintiffs by the defendants."\r\nThe bank, in response, counterclaimed for:\r\na)	"Account of all the jobs undertaken by Plaintiffs and the proceeds\r\nobtained from them for the use of 5 (five) Renault Agricultural\r\nTractors from 1986 to 1992.\r\nb)	Payment to defendants of the Plaintiff''s outstanding indebtedness and interest thereon at the current Bank rate."\r\nFrom the nature of the claim and counterclaim, it would appear that the company\r\nsued in tort, whilst the bank counterclaimed in contract.	The claim and\r\ncounterclaim of the company and the bank respectively came before Aryeetey JA,\r\nas he then was, for trial at the High Court and he delivered judgment on 30th July 2007 in favour of the company on its claim and dismissed the bank''s\r\ncounterclaim, after a full trial.\r\nThe learned trial judge found that the bank, without reference to the farming\r\ncompany, had caused to be sold both the 5 tractors that they had permitted the\r\n3\r\n \r\ncompany to put in use and the 5 brand new and unused tractors which they had refused to release to the plaintiffs. He also found that there was no justification for the bank''s detention of the company''s chattels. He found that the relationship between the bank and the company was that of banker and customer and nothing more. He highlighted the fact that the bank had been unable to produce a copy of the agreement under which it purported to exercise a right to take possession of the tractors. In his own words (at pp. 271-2 of the Record):\r\n"However, what is missing from various documents tendered in evidence is what should have been the original loan agreement between the plaintiff company and defendant bank which in the first place facilitated the importation of the ten Renault tractors from France into the country. That document governed the relationship between the parties at the time of the seizure of the ten tractors which were warehoused at the instance of the plaintiff company. As it turned out by its conduct the defendant bank assumed the role of owners of all the ten tractors that were ordered at the instance of the plaintiff company and in fact were all consigned to the plaintiff company. I do not think that under the missing agreement document the defendant bank had power to seize the tractors on their arrival and assume the right as owners to compel the plaintiffs to agree to completely new terms under new agreements. If that had been the case the defendant bank would have been quick to tender that document in evidence in support of its despicable conduct in seizing the tractors from the plaintiffs."\r\n \r\nAlthough, as noted above, the company sued in tort, the learned trial judge purported to resolve aspects of the case on the basis of a contractual analysis. He was correct in this regard since the bank, having counterclaimed on its contract of loan for the farming company''s outstanding indebtedness to be enforced, put a contractual dimension of the case into play.\r\nAryeeteyJA argued that since the bank was in fundamental breach of the contract of loan with the company by unlawfully seizing the tractors belonging to the company, this breach discharged the company from any further obligations under the contract of loan. Accordingly, the company was no longer under any obligation to repay the loan that it had received. This is a startling proposition of law and one that seems to invoke forfeiture as a penalty against the bank. Although it is in a different context that the maxim "equity abhors a forfeiture" is\r\nusually considered, issues of unconscionability and equity cannot be ignored on the facts of this case. The case has very significant commercial implications beyond the facts of this particular case and therefore deserves careful consideration, since the learned trial judge''s holding was in substance upheld on appeal by the Court of Appeal.\r\nThe learned trial judge articulated the proposition of law referred to above thus (at pp. 279-80 of the Record):\r\n"I am of the view that the breach in respect of the five tractors which the defendant bank kept and were not put to any use until they were sold at its instance together with the five other tractors which it had earlier released for use by the plaintiff company, without any reference to the plaintiff company, was fundamental in that the plaintiff company''s ownership of the\r\n \r\n5\r\n \r\ntractors and its half measure means of repaying the loan Were taken away. It also means that the conversion committed by the defendant bank in both instances which amounted to repudiation of its rights under the contract brought everything to an end and in fact by its conduct the defendant bank forfeited its rights to any further claims under the contract. It would not therefore be expected that the plaintiffs would be required to honour their debt obligation in respect of the ten tractors. On the other hand the plaintiff company would be entitled to pursue a claim for wrongful seizure and detention of their tractors. Indeed the plaintiffs claim for general damages for wrongful detention and disposal of all their ten Renault tractors by the defendants or alternatively an order for the replacement by the defendants of the ten Renault tractors plus damages for their wrongful detention and or wrongful disposal."\r\nThis position of the learned trial judge would appear, on close analysis, to be awarding, in effect double compensation in respect of the same injury arising from the same set of triggering facts. The company is released from the obligation to repay the debt it had contracted and received and also allowed to recover damages for conversion by the bank of the chattels purchased with the loan. Causes of action in both contract and tort are upheld on the same facts. Is this justifiable, on the facts of this case?\r\nIn principle, there can be concurrent liability in both contract and tort. In the past, there was some confusion on this issue of principle in English law, but the modern English law has been authoritatively settled in the English House of Lords\r\ncase of Henderson v Merrett Syndicates Ltd. [1994] 3 All E.R. 506. Lord Goff''s\r\n6\r\n \r\nspeech in that case is particularly instructive and it is helpful to quote a fairly lengthy passage from it on this issue (at p. 522 etseq.):\r\n"All systems of law which recognise a law of contract and a law of tort (or delict) have to solve the problem of the possibility of concurrent claims arising from breach of duty under the two rubrics of the law. Although\r\nthere are5231 variants, broadly speaking two possible solutions\r\npresent themselves: either to insist that the claimant should pursue his\r\nremedy in contract alone, or to allow him to choose which remedy he\r\nprefers. As my noble and learned friend Lord Mustill and I have good\r\nreason to know (see J Bracconot et Cie v Cie des Messageries Maritimes\r\n(The Sindh) [1975] 1 Lloyd''s Rep 372), France has adopted the former\r\nsolution in its doctrine of non cumul, under which the concurrence of\r\nclaims in contract and tort is outlawed (see Weir in XI Int Enc Comp Law, ch\r\n12, paras 47-72, at para 52). The reasons given for this conclusion are (1)\r\nrespect for the will of the legislator, and (2) respect for the will of the\r\nparties to the contract (see para 53). The former does not concern us; but\r\nthe latter is of vital importance. It is however open to various\r\ninterpretations. For such a policy does not necessarily require the total\r\nrejection of concurrence, but only so far as a concurrent remedy in tort is\r\ninconsistent with the terms of the contract. It comes therefore as no\r\nsurprise to learn that the French doctrine is not followed in all civil law\r\njurisdictions, and that concurrent remedies in tort and contract are\r\npermitted in other civil law countries, notably Germany (see para 58). I only\r\npause to observe that it appears to be accepted that no perceptible harm\r\nhas come to the German system from admitting concurrent claims.\r\n7\r\n \r\nThe situation in common law countries, including of course England, is exceptional, in that the common law grew up within a procedural framework uninfluenced by Roman law. The law was categorised by reference to the forms of action, and it was not until the abolition of the forms of action by the Common Law Procedure Act 1852 that it became necessary to reclassify the law in substantive terms. The result was that common lawyers did at last segregate our law of obligations into contract and tort, though in so doing they relegated quasi-contractual claims to the status of an appendix to the law of contract, thereby postponing by a century or so the development of a law of restitution. Even then, there was no systematic reconsideration of the problem of concurrent claims in contract and tort. We can see the courts rather grappling with unpromising material drawn from the old cases in which liability in negligence derived largely from categories based upon the status of the defendant. In a sense, we must not be surprised; for no significant law faculties were established at our universities until the late nineteenth century, and so until then there was no academic opinion available to guide or stimulate the judges. Even\r\nso, it is a remarkable fact that there was little consideration of the problem of concurrent remedies in our academic literature until the second half of the twentieth century, though in recent years the subject has attracted considerable attention.\r\nIn the result, the courts in this country have until recently grappled with the\r\nproblem very largely without the assistance of systematic academic study.\r\nAt first, as is shown in particular by cases concerned with liability for\r\n \r\n8\r\n \r\nsolicitors'' negligence, the courts adopted something very like the French solution, holding that a claim against a solicitor for negligence must be pursued in contract, and not in tort (see eg, Bean v Wade (1885) 2 TLR 157); and in Groom v Crocker [1938J 2 All ER 394, [1939] 1 KB 194 this approach\r\nwas firmly adopted. It has to be said, however, that decisions such as these, though based on prior authority, were supported by only a slender citation of cases, none of great weight; and the jurisprudential basis of the doctrine so adopted cannot be said to have been explored in any depth.\r\nFurthermore, when in Bagot v Stevens Scan/an & Co Ltd [1964] 3 All ER 577 at 580, 119661 1 OB 197 at 204-205 Diplock U adopted a similar approach in\r\nthe case of a claim against a firm of architects, he felt%524U compelled to recognise that a different conclusion might be reached in cases ''where the law in the old days recognised either something in the nature of a status like a public calling (such as common carrier, common innkeeper, or a bailor and bailee) or the status of master and servant''. To this list must be added cases concerned with claims against doctors and dentists. I must confess to finding it startling that, in the second half of the twentieth century, a problem of considerable practical importance should fall to be solved by reference to such an outmoded form of categorisation as this.\r\nI think it is desirable to stress at this stage that the question of concurrent liability is by no means only of academic significance. Practical issues, which can be of great importance to the parties, are at stake. Foremost among these is perhaps the question of limitation of actions. If concurrent liability in tort is not recognised, a claimant may find his claim barred at a time when he is unaware of its existence. ... It can of course be argued that the\r\n \r\n9\r\n \r\nprinciple established in respect of concurrent liability in contract and tort should not be tailored to mitigate the adventitious effects of rules of law such as these, and that one way of solving such problems would no doubt be ''to rephrase such incidental rules as have to remain in terms of the nature of the harm suffered rather than the nature of the liability asserted'' (see Weir, XI Int Enc Comp Law ch 12, para 72). But this is perhaps crying for the moon; and with the law in its present form, practical considerations of this kind cannot sensibly be ignored.\r\nMoreover I myself perceive at work in these decisions not only the influence of the dead hand of history, but also what I have elsewhere called the temptation of elegance. Mr Weir (XI Int Enc Comp Law ch 12, para 55) has extolled the French solution for its elegance; and we can discern the same impulse behind the much-quoted observation of Lord Scarman when delivering the judgment of the Judicial Committee of the Privy Council in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1985] 2 All ER 947 at 957, [1986] AC 80 at 107:\r\n''Their Lordships do not believe that there is anything to the advantage of the law''s development in searching for a liability in tort where the parties are in a contractual relationship. This is particularly so in a commercial relationship. Though it is possible as a matter of legal semantics to conduct an analysis of the rights and duties inherent in some contractual relationships including that of banker and customer either as a matter of contract law when the question will be what, if any, terms are to be implied or as a matter\r\n \r\n10\r\n \r\nof tort law when the task will be to identify a duty arising from the proximity\r\nand character of the relationship between the parties, %525Utheir\r\nLordships believe it to be correct in principle and necessary for the avoidance\r\nof confusion in the law to adhere to the contractual analysis: on principle\r\nbecause it is a relationship in which the parties have, subject to a few\r\nexceptions, the right to determine their obligations to each other, and for the\r\navoidance of confusion because different consequences do follow according\r\nto whether liability arises from contract or tort, eg in the limitation of action.''\r\nIt is however right to stress, as did Sir Thomas Bingham MR in the present case, that the issue in Tai Hing was whether a tortious duty of care could be established which was more extensive than that which was provided for under	the	relevant	contract.\r\nAt all events, even before Tai Hing we can see the beginning of the redirection of the common law away from the contractual solution adopted in Groom v Crocker [1938] 2 All ER 394, [1939] 1 KB 194, towards the recognition of concurrent remedies in contract and tort. First, and most important, in 1963 came the decision of your Lordships'' House in Hed/ey Byrne & Co Ltd v Heller & Partners Ltd [196312 All ER 575, [1964] AC 465. I have already expressed the opinion that the fundamental importance of this case rests in the establishment of the principle upon which liability may arise in tortious negligence in respect of services (including advice) which are rendered for another, gratuitously or otherwise, but are negligently performed-viz, an assumption of responsibility coupled with reliance by the plaintiff which, in all the circumstances, makes it appropriate that a remedy in law should be available for such negligence. For immediate purposes, the\r\n11\r\n \r\nrelevance of the principle lies in the fact that, as a matter of logic, it is capable of application not only where the services are rendered gratuitously, but also where they are rendered under a contract. Furthermore we can see in the principle an acceptable basis for liability in negligence in cases which in the past have been seen to rest upon the now outmoded concept of status. In this context, it is of particular relevance to refer to the opinion expressed both implicitly by Lord Morris of Borth-y¬Gest (with whom Lord Hodson agreed) and expressly by Lord Devlin that the principle applies to the relationship of solicitor and client, which is nearly always contractual (see [1963] 2 All ER 575 at 590-591, [1964] AC 465 at 497-499 where Lord Morris approved the reasoning of Chitty J in Cann v Willson (1888) 39 Ch D 39, and [1963] 2 All ER 575 at 610-611,\r\n[1964]	AC	465	at	529	per	Lord	Devlin).\r\nThe decision in Hedley Byrne, and the statement of general principle in that case, provided the opportunity to reconsider the question of concurrent liability in contract and tort afresh, untrammelled by the ancient learning based upon a classification of defendants in terms of status which drew distinctions difficult to accept in modern conditions. At first that opportunity was not taken. Groom v Crocker [1938] 2 All ER 394, [1939] 1 KB 194 was followed by the Court of Appeal in Cook v S [1967] 1 All ER 299, [1967] 1 WLR 457, and again in Heywood v Wellers (a firm) [1976] 1 All ER 300, [1976] QB 446; though in the latter case (see [1976] 1 All ER 300 at 306, [1976] QB 446 at 459) Lord Denning MR was beginning to show signs of dissatisfaction with the contractual test accepted in Groom v Crocker-a dissatisfaction which crystallised into a change of heart in Esso Petroleum\r\n \r\n12\r\n \r\nCo Ltd v Mardon [1976] 2 All ER 5, [1976] OB 801. That case was concerned with statements made by employees of Esso in the course of pre- contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the\r\nstation. Mr(~''526U Mardon was persuaded by the statements to enter into the tenancy; but he suffered serious loss when the actual throughput proved to be much lower than had been predicted. The Court of Appeal held that Mr Mardon was entitled to recover damages from Esso, on the basis of either breach of warranty or (on this point affirming the decision of the judge below) negligent misrepresentation. In rejecting an argument that Esso''s liability could only be contractual, Lord Denning MR dismissed Groom v Crocker as inconsistent with other decisions of high authority, viz Boorman v Brown (1842) 3 QB 511 at 525-526, 114 ER 603 at 608 per Tindal CJ; (1844) 11 Cl & Fin 1 at 44, 8 ER 1003 at 1018-1019 per Lord Campbell; Lister v Romford Ice and Cold Storage Co Ltd [1957] 1 All ER 125 at 139, [1957] AC 555 at 587 per Lord Radcliffe; Matthews v Kuwait Bechtel Corp [1959] 2 All ER 345, [1959] 2 QB 57 and Nocton v Lord Ashburton [1914] AC 932 at 956, [1914-15] All ER Rep 45 at 54 per Viscount Haldane LC. He then held that, in addition to its liability in contract, Esso was also liable in negligence. The other members of the Court of Appeal, Ormrod and Shaw Ui, agreed that Mr Mardon was entitled to recover damages either for breach of warranty or for negligent misrepresentation, though neither expressed any view about the status of Groom v Crocker. It was however implicit in their decision that, as Lord Denning held, concurrent remedies were available to Mr Mardon in contract and tort. For present purposes, I\r\n13\r\n \r\ndo not find it necessary to comment on the authorities relied upon by Lord Denning as relieving him from the obligation to follow Groom v Crocker; though I feel driven to comment that the judgments in Esso Petroleum Co Ltd v Mardon reveal no analysis in depth of the basis upon which concurrent liability rests. That case was, however, followed by the Court of Appeal in Batty v Metropolitan Property Realizations Ltd [1978] 2 All ER 445, [1978] QB 554, in which concurrent remedies in contract and tort were again allowed.\r\nThe requisite analysis is, however, to be found in the judgment of Oliver J in Midland Bank Trust Co Ltd v Hett Stubbs & Kemp (a firm) [1978] 3 All ER 571, [1979] Ch 384, in which he held that a solicitor could be liable to his client for negligence either in contract or in tort, with the effect that in the case before him it was open to the client to take advantage of the more favourable date of accrual of the cause of action for the purposes of limitation. In that case Oliver J was much concerned with the question whether it was open to him, as a judge of first instance, to depart from the decision of the Court of Appeal in Groom v Crocker. For that purpose, he carried out a most careful examination of the relevant authorities, both before and after Groom v Crocker, and concluded that he was free to depart from the decision in that case, which he elected to do. It is impossible for me to do justice to the reasoning of Oliver J, for which I wish to express my respectful admiration, without unduly prolonging what is inevitably a very long opinion. I shall therefore confine myself to extracting certain salient features. First, from his study of the cases before\r\n \r\n14\r\n \r\nGroom v Crocker, he found no unanimity of view that the solicitor''s liability\r\nwas regarded as exclusively contractual....\r\nHe expressed his conclusion concerning the impact of Hedley Byrne on the\r\ncase before him in the following words ([1978] 3 All ER 571 at 595-596,\r\n[1979] Ch 384 at 417):\r\n''The case of a layman consulting a solicitor for advice seems to me to be as typical a case as one could find of the sort of relationship in which the duty of care described in the Hedley Byrne case [1963] 2 All ER 575, [1964] AC 465 exists; and if I am free to do so in the instant case, I would, therefore, hold that the relationship of solicitor and client gave rise to a duty on the defendants under the general law to exercise that care and skill upon which they must have known perfectly well that their client relied. To put it another way, their common law duty was not to injure their client by failing to do that\r\nwhich they had undertaken to do and which, at their invitation, he relied on them to do. That duty was broken, but no cause of action in tort arose until\r\nthe damage occurred; and none did until 17th August 1967. I would regard it\r\nas wholly immaterial that their duty arose because they accepted a retainer\r\nwhich entitled them, if they chose to do so, to send a bill to their client.''\r\nI wish to express my respectful agreement with these passages in Oliver J''s\r\njudgment.\r\nThereafter, Oliver J proceeded to consider the authorities since Hedley\r\nByrne, in which he found, notably in statements of the law by members of the Appellate Committee in Arenson v Arenson [1975] 3 All ER 901, [1977]\r\n \r\n15\r\n \r\nAC 405 and in the decision of the Court of Appeal in Esso Petroleum Co Ltd v Mardon [1976] 2 All ER 5, [1976] QB 801, the authority which relieved him of his duty to follow Groom v Crocker [1938] 2 All ER 394, [1939] 1 KB 194. But I wish to add that, in the course of considering the later authorities, he rejected the idea that there is some general principle of law that a plaintiff who has claims against a defendant for breach of duty both in contract and in tort is bound to rely upon his contractual rights alone. He said ([1978] 3 All ER 571 at 598, [1979] Ch 384 at 420):\r\n''There is not and never has been any rule of law that a person having alternative claims must frame his action in one or the other. If I have a contract with my dentist to extract a tooth, I am not thereby precluded from suing him in tort if he negligently shatters my jaw (Edwards v Mo/Ian [1908] 1 KB 1002).''\r\nThe origin of concurrent remedies in this type of case may lie in history; but in a modern context the point is a telling one. Indeed it is consistent with the decision in Donoghue v Stevenson itself, and the rejection in that case of the view, powerfully expressed in the speech of Lord Buckmaster (see [1932] AC 562 esp at 577-578, (19321 All ER Rep 1 esp at 10), that the manufacturer or repairer of an article owes no duty of care apart from that implied from contract or imposed by statute. That there might be co¬existent remedies for negligence in contract and in tort was expressly recognised by Lord Macmillan in Donoghue v Stevenson [1932] AC 562 at 610, [1932] All ER Rep 1 at 25 and by Lord Wright in Grant v Australian Knitting Mills Ltd [1936] AC 85 at 102-104, [1935] All ER Rep 209 at 216 \r\n \r\n16\r\n \r\n217. Attempts have been made to explain how doctors and dentists may be concurrently liable in tort while other professional men may not be so\r\nliable, on% 529kla the basis that the former cause physical damage whereas the latter cause pure economic loss (see the discussion by Christine French ''The Contract/Tort Dilemma'' (1981-84) 5 Otago LR 236 at 280-281). But this explanation is not acceptable, if only because some professional men, such as architects, may also be responsible for physical damage. As a matter of principle, it is difficult to see why concurrent remedies in tort and contract, if available against the medical profession, should not also be available against members of other professions, whatever	form	the	relevant	damage	may	take.\r\nThe judgment of Oliver J in Midland Bank Trust Co Ltd v Hett Stubbs & Kemp (a firm) [1978] 3 All ER 571, [1979] Ch 384 provided the first analysis in depth of the question of concurrent liability in tort and contract. Following upon Esso Petroleum Co Ltd v Mardon [1976] 2 All ER 5, [1976] QB 801, it also broke the mould, in the sense that it undermined the view which was becoming settled that, where there is an alternative liability in tort, the claimant must pursue his remedy in contract alone. The development of the case law in other common law countries is very striking. In the same year as the Midland Bank Trust case, the Irish Supreme Court held that solicitors owed to their clients concurrent duties in contract and tort: see Finlay v Murtagh [1979] IR 249. Next, in Central Trust Co v Rafuse (1986) 31 DLR (4th) 481 Le Dain 1, delivering the judgment of the Supreme Court of Canada, conducted a comprehensive and most impressive survey of the relevant English and Canadian authorities on the\r\n \r\n17\r\n \r\nliability of solicitors to their clients for negligence, in contract and in tort, in the course of which he paid a generous tribute to the analysis of Oliver J in the Midland Bank Trust case. His conclusions are set out in a series of propositions (at 521-522); but his general conclusion was to the same effect as that reached by Oliver J. He said (at 522):\r\n''A concurrent or alternative liability in tort will not be admitted if its effect would be to permit the plaintiff to circumvent or escape a contractual exclusion or limitation of liability for the act or omission that would constitute the tort. Subject to this qualification, where concurrent liability in tort and contract exists the plaintiff has the right to assert the cause of action that appears to be the most advantageous to him in respect of any particular legal consequence.''\r\nI respectfully agree.\r\nMeanwhile in New Zealand the Court of Appeal had appeared at first, in McLaren Maycroft & Co v Fletcher Development Co Ltd [1973J 2 NZLR 100, to require that, in cases where there are concurrent duties in contract and tort, the claimant must pursue his remedy in contract alone. There followed a period of some uncertainty, in which differing approaches were adopted by courts of first instance. In 1983 Miss Christine French published her article on the contract/tort dilemma in (1981-84) 5 Otago LR 236, in which she examined the whole problem in great depth, with special reference to the situation in New Zealand, having regard to the ''rule'' in McLaren Maycroft. Her article, to which I wish to pay tribute, was of course\r\n \r\n18\r\n \r\npublished before the decision of the Supreme Court of Canada in the Central Trust case. Even so, she reached a conclusion which, on balance, favoured a freedom for the claimant to choose between concurrent remedies in contract and tort. Thereafter in Rowlands v Collow [1992] 1 NZLR 178 Thomas .1, founding himself principally on the Central Trust case and on Miss French''s article, concluded that he was free to depart from the decision of the New Zealand Court of Appeal in McLaren Maycroft and to\r\nhold that a perso0= 530 WI performing professional services (in the case before him an engineer) may be sued for negligence by his client either in\r\ncontract or in tort. He said (190):\r\n''The issue is now virtually incontestable; a person who has performed\r\nprofessional services may be held liable concurrently in contract and in\r\nnegligence, unless the terms of the contract preclude the tortious liability.''\r\nIn Australia, too, judicial opinion appears to be moving in the same direction, though not without dissent: see, in particular, Aluminum Products (Qld) Pty Ltd v Hill [1981] Qd R 33 (a decision of the Full Court of the Supreme Court of Queensland) and Macpherson & Kelley v Kevin _I Prunty & Associates [1983] 1 VR 573 (a decision of the Full Court of the Supreme Court of Victoria). A different view has however been expressed by Deane J in Hawkins v Clayton (1988) 164 CLR 539 at 585, to which I will return later. In principle, concurrent remedies appear to have been accepted for some time in the United States (see Prosser Handbook on the Law of Torts (7th edn, 1984) p 444), though with some variation as to the application of the principle in particular cases. In these circumstances it comes as no surprise\r\n \r\n19\r\n \r\nthat Professor Fleming, writing in 1992, should state that ''the last ten year5 have seen a decisive return to the "concurrent" approach'' (see Fleming Latv of Torts (8th edn, 1992) p 187).\r\nI have dealt with the matter at some length because, before your Lordships, Mr Temple QC for the managing agents boldly challenged the decision of Oliver J in the Midland Bank Trust case [1978] 3 All ER 571, [1979] Ch 384, seeking to persuade your Lordships that this House should now hold that case to have been wrongly decided. This argument was apparently not advanced below, presumably because Oliver J''s analysis had received a measure of approval in the Court of Appeal: see eg Forster v Qutred& Co (a firm) [1982] 2 All ER 753 at 764, [1982] 1 WLR 86 at 99 per Dunn U. Certainly there has been no sign of disapproval, even where the Midland Bank Trust case has been distinguished: see Bell v Peter Browne & Co (a firm) [1990] 3 All ER 124, [1990] 2 QB 495.\r\nMr Temple adopted as part of his argument the reasoning of Mr J M Kaye in an article The Liability of Solicitors in Tort (1984) 100 LQR 680. In his article Mr Kaye strongly criticised the reasoning of Oliver J both on historical grounds and with regard to his interpretation of the speeches in Hedley Byrne. However, powerful though Mr Kaye''s article is, I am not persuaded by it to treat the Midland Bank Trust case as wrongly decided. First, so far as the historical approach is concerned, this is no longer of direct relevance in a case such as the present, having regard to the development of the general principle in Hedley Byrne. No doubt it is correct that, in the nineteenth century, liability in tort depended upon the category\r\n \r\n20\r\n \r\nof persons into which the defendant fell, with the result that in those days it did not necessarily follow that, because (for example) a surgeon owed an independent duty of care to his patient in tort irrespective of contract, other professional men were under a similar duty. Even so, as Mr Boswood QC for the names stressed, if the existence of a contract between a surgeon and his patient did not preclude the existence of a tortious duty to the patient in negligence, there is no reason in principle why a tortious duty should not co-exist with a contractual duty in the case of the broad duty of care now recognised following the generalisation of the tort of negligence in	the	twentieth	century.\r\nSo far as Hedley Byrne itself is concerned, Mr Kaye reads the speeches as restricting the principle of assumption of responsibility there established to cases where there is no contract; indeed, on this he tolerates no dissent,\r\nstating (p 706) • =531 tia that ''unless one reads [Hedley Byrne] with deliberate intent to find obscure or ambiguous passages'' it will not bear the interpretation favoured by Oliver J. I must confess however that, having studied yet again the speeches in Hedley Byrne in the light of Mr Kaye''s critique, I remain of the opinion that Oliver J''s reading of them is justified. It\r\nis, I suspect, a matter of the angle of vision with which they are read. For here, I consider, Oliver J was influenced not only by what he read in the speeches themselves, notably the passage from Lord Devlin''s speech quoted above (see [1963] 2 All ER 575 at 610-611, [1964] AC 465 at 528- 529), but also by the internal logic reflected in that passage, which led inexorably to the conclusion which he drew. Mr Kaye''s approach involves regarding the law of tort as supplementary to the law of contract, ie as\r\n21\r\n \r\nproviding for a tortious liability in cases where there is no contract. Yet the law of tort is the general law, out of which the parties can, if they wish, contract; and, as Oliver J demonstrated, the same assumption of responsibility may, and frequently does, occur in a contractual context. Approached as a matter of principle, therefore, it is right to attribute to that assumption of responsibility, together with its concomitant reliance, a tortious liability, and then to inquire whether or not that liability is excluded by the contract because the latter is inconsistent with it. This is the reasoning which Oliver J, as I understand it, found implicit, where not explicit, in the speeches in Hedley Byrne. With his conclusion I respectfully agree. But even if I am wrong in this, I am of the opinion that this House should now, if necessary, develop the principle of assumption of responsibility as stated in Hedley Byrne to its logical conclusion so as to make it clear that a tortious duty of care may arise not only in cases where the relevant services are rendered gratuitously, but also where they are rendered under a contract. This indeed is the view expressed by Lord Keith\r\nof Kinkel in Murphy v Brentwood DC [1990} 2 All ER 908 at 919, [1991] 1 AC\r\n398 at 466, in a speech with which all the other members of the Appellate Committee agreed."\r\nEven though this extended passage from Lord Goff''s speech shows that there can be concurrent liability in contract and tort, the facts of each case will determine whether the extent of any concurrent imposition of a liability in contract and tort is justifiable.\r\n \r\nPS1\r\n \r\nAryeetey JA, the learned trial judge, justified his decision to release the company from its debt obligation by reference to the law on the discharge of contracts by breach. The learned trial judge relied on the proposition of law enunciated by the Court of Appeal in In re Timber and Transport Kumasi — Krusevac Co. Ltd, Sativa v Bonsu [1981] GLR 256 that where a contract party manifests a clear intention to be no longer bound by the terms of the contract or where he openly repudiates it, the innocent party might treat it as at an end and seek such remedies as are open to him or her. In that case, the Court of Appeal said:\r\n"The crucial issue which in our view was avoided by the High Court is whether the agreement was still binding on the parties. On this issue, we are thrown back on first principles and particularly on the effect of breaches of an agreement by one or other of the parties. The principle which emerges from a long line of decisions is that where one party manifests a clear intention to be no longer bound by the terms of his contract or where he openly repudiates it, the innocent party may treat the contract as at an end and seek such remedies as are open to him. Where the breach hits at the root or substance of the contract, in other words, where the breach is fundamental, the innocent party may accept the breach and treat it as absolving him from his own obligations under the contract. The question whether a breach is fundamental is, of course, for the court to determine: see Wallis, Son & Wells v. Pratt and Haynes [1910] 2 K.B. 1003, C.A.; Sweet & Maxwell Ltd. v. Universal News Services Ltd. [1964] 3 All E.R. 30 and Joseph v. Boakye [1977] 2 G.L.R. 392 at p. 402, C.A."\r\n \r\n23\r\n \r\nWhilst this statement of the law is largely correct, it needs further clarification in the context of the facts of this case. In this connection, I would like to refer to the analysis of Cheshire, Fifoot and Furmston''s Law of Contract (15th Ed, 2007) on the effect of discharge by breach, at p. 691:\r\n"A party who treats a contract as discharged is often said to rescind the contract. To describe the legal position in such a manner, however, must inevitably mislead and confuse the unwary. In its primary and more correct sense, as we have already seen, rescission means the retrospective cancellation of a contract ab initio, as for instance where one of the parties has been guilty of fraudulent misrepresentation. In such a case the contract is destroyed as if it had never existed, but its discharge by breach never impinges upon rights and obligations that have already matured. It would be better therefore in this context to talk of termination or discharge rather than of rescission."\r\nThis analysis is illuminating and I accept it. it is supported by the House of Lords decision in Johnson v Agnew [1980] AC 367, where Lord Wilberforce said (at pp.\r\n392-3):\r\n"it is important to dissipate a fertile source of confusion and to make clear that although sometimes the vendor is referred to ...as ''rescinding'' the contract, this so-called ''rescission'' is quite different from rescission ab initio, such as may arise for example, in cases of mistake, fraud or lack of consent. In those cases the contract is treated in law as never having come into existence... In the case of an accepted repudiatory breach the contract has come into existence but has been put an end to, or discharged.\r\n \r\nP11 I\r\n \r\nWhatever contrary indications may be disinterred from old authorities, it is\r\nnow quite clear, under the general law of contract, that acceptance of a\r\nrepudiatory breach does not bring about ''rescission ab initiot."\r\nThe implication of this analysis for this case is that the obligations of the company that arose before the date of the conduct by the bank held by the learned trial judge to be in breach of contract are not wiped out but remain binding. The company is released from any further performance of the discharged contract, from the date of discharge, but its accrued obligations remain binding. It cannot therefore be correct to hold that it is relieved from the obligation to repay the loan it contracted and which it had received in full. As at the date of discharge of its contract of loan, the company''s debt obligation (that is, the obligation to repay the loan) had already accrued. The debt was accordingly not discharged. The company is limited to recovering damages in contract for the breach found by the learned trial judge, which breach was supported by evidence on the record. This recovery of damages would be governed by the usual contract law principles laid down in Hadley v Baxendale (1854) 9 Exch. 341 as to remoteness of damage. Beyond remoteness and as to the measure of the damages payable to the company, this again would be governed by the usual principle of restitutio in integrum. The company must be restored, so far as money can do it, to the position that it would have been in, had the breach not occurred. This is where the concurrent recovery of damages in tort for the same conduct characterized as breach of contract becomes relevant. If the recovery of damages in tort has already secured for the company a restitutio in integrum, it follows that only nominal damages can be awarded it for the breach identified by the learned trial judge.\r\n25\r\n \r\nThe learned trial judge''s error in holding that the company was absolved from any obligation under the contract of loan is perpetuated in a different guise by the Court of Appeal and is thus the subject of grounds of appeal before this Court. Grounds (ii) and (iii), which were argued together, are as follows:\r\nii.	"The learned Justices of Appeal erred in law when they held that after the consolidation of the debt the Plaintiff/Respondent ceased to be liable for the payment of the debt.\r\niii.	The learned Justices misdirected themselves in law on the nature and effect of consolidation of debts which misdirection led them to hold that after consolidation the debt ceased to be payable."\r\nQuaye JA, in delivering the Court of Appeal''s judgment, had said, in relation to the bank''s counterclaim for the payment of the company''s outstanding indebtedness to it, (at p.426 of the Record) that:\r\n"The second segment of the counterclaim was in respect of respondent''s outstanding debt. Learned Counsel shot himself in the foot when he contended that the various loans that the respondents contracted with the appellants were consolidated at a point in time. This is a correct statement upon the facts and evidence before us. The loans which were consolidated upon the suggestion, advise (sic) or prompting of the appellants were FE 1.958.180.00 for the ten tractors and c707.500.00 other loan. In order to resolve whether the appellants were entitled to the Court''s decision on this segment of the counterclaim to warrant the setting aside of the finding by the\r\n26\r\n \r\ntrial Court, it is my candid view that we determine the legal meaning\r\nand effect of consolidation...."\r\nThe learned judge then proceeds to define consolidation and then continues:\r\n"The point which I want to bring home is that merging, or fusion or consolidation of two loan accounts had the effect of each of them losing its previous separate identity and from the time of consolidation, they become one. Take for example, pouring water from two different containers into one container. After that, you cannot identify which was previously contained in one or other of the two containers....\r\nThe total effect therefore is that only one loan account stood in the\r\nrecords of the appellants for the obligation of the respondents after the accounts had been consolidated. In Law, it is not available for the appellants to turn round after the merger at their own prompting, to want to see two separate loan accounts. The law would neither allow a party to take advantage of his own wrong nor to approbate and reprobate at the same time....lt is therefore clear that, as at the time this action was commenced, and more specifically, at the time the counterclaim was made, there was only one loan account between the appellants and the respondents, irrespective of how the loan was contracted, the purpose(s) for which segments thereof were given and taken or the time it was done. There was no separate debt standing against the respondent. If there was, then the appellants failed to lead evidence to establish\r\n \r\n27\r\n \r\nthat fact. I can identify no error in the refusal by the learned trial judge to grant the counterclaim and the reasons supporting his refusal. This ground of appeal fails and it is dismissed."\r\nWith respect, the learned Justice of Appeal is in error in his view that the company had no debt liability at the time the counterclaim was filed. Apart from the bank''s objection to the issue of consolidation being a ground of decision when it had not been argued in the appeal, on which I will give my view later in this judgment, the learned Justice seems to make the assumption that the only debt in respect of which there could be liability was the "other loan" of c707,500. That seems to be the explanation for the great lengths to which he went to establish the consolidation of the two loans. He seemingly fails to appreciate that the receipt of FF 1.958.180.00 to finance the importation of the ten tractors also resulted in a debt. The counterclaim was thus with reference to both amounts. There is undisputed evidence on record that the bank supplied the funds for purchase of the tractors.\r\nIn my view, as already set out above, the holding by the learned trial judge that the breach of contract by the bank discharged the company from its accrued obligation to repay the loan it had already received was clearly erroneous. That view equally applies to the holding by the Court of Appeal on this point. The extent of the award of both a tort and a contract remedy, on the facts of this case, leads to overkill in the remedying of the plaintiff''s injury. I would therefore allow the appeal on grounds (ii) and (iii) and give judgment in favour of the appellant on item (b) of its counterclaim, namely, there should be "payment to the defendants of the Plaintiff''s outstanding indebtedness and interest thereon"\r\n \r\n28\r\n \r\nat the Bank rate. This payment is, however, to be made subject to the payment by the appellant of the damages awarded by the learned trial judge in favour of the plaintiff/respondent/respondent in respect of the tort of conversion committed by the appellant/appellant/defendant. The payment of the plaintiff''s indebtedness is also to be made subject to whatever damages is awarded by this court in respect of the breach by the defendant of the loan agreement.\r\nThe plaintiff/respondent/respondent, however, disputes this result, in its Statement of Case, and makes the case that the defendant/appellant/appellant had failed to prove its counterclaim and therefore it should be dismissed. This is how it puts its case in its Statement of Case:\r\n"As noted earlier in these Submissions, in the case of Claim (ii)(i.e. the second segment of the counterclaim), the Appellants mentioned no specific sum in their Counterclaim. However, two sums were mentioned in the course of the evidence of their Representative as the indebtedness for which they were counterclaiming. On the 27 May 1997, he stated the figure as c 367,624,305.68 (vide p. 99 of the Record, line 19). Then on 4/7/97, he put the figure at c412,679,178.74 (vide p. 105 of the Record, line 9). In both cases, the figure was said to be the outstanding sum as at\r\n30/8/96.\r\nA Counterclaim is a fresh action. It is joined to another suit so as to avoid a proliferation of suits. The same standards of proof apply to a counterclaim and a normal suit. The party making a counterclaim must prove the claim. Where the claim is for a liquidated sum, it must be strictly proved. This the Appellants woefully failed to do. In the absence of proof which of the sums\r\n \r\n29\r\n \r\nmentioned by the Representative, and noted above, is the Judge to accept. In any event, it is submitted that the claim was not properly before the Court because of the Appellant''s failure to specify the amount in their pleadings and to pay the appropriate filing fee thereon (vide p. 149 of the Record) where the Representatives of the Appellants failed to say the Appellants paid a filing fee for this claim.\r\nIn the circumstances the only decision that can be made fairly on the counterclaim is to dismiss them."\r\nThus the respondent company, by this argument, tries to move the issue of its liability on the appellant''s counterclaim from one of contract law, as discussed above, to one of evidence and civil procedure. At this level also, I do not think that it can escape liability. There was indisputable evidence on record of its acceptance of a loan from the bank to finance the importation of the tractors. Its endeavour to quibble at the exact amount of the outstanding debt cannot rescue it from liability. The exact amount of the indebtedness was ascertainable from evidence on record. Admitted facts do not need to be proved and the fact that respondent owed money to the appellant was not disputed by the respondent. In the respondent''s own Statement of Claim, he averred in paragraphs 12 to 16 as follows:\r\n12."Defendants granted the Plaintiffs a loan of FE 1,284,780 with interest pegged at 26% per annum. A loan agreement dated 23 June 1988 was signed between Plaintiffs and Defendants.\r\n13.The Plaintiffs through their Managing Director secured the total loan now amounting to FE 1,958,180 including the sum of FE 673,400.91\r\n \r\n30\r\n \r\nearlier granted by the Defendants with three residential houses\r\nsituated in Tamale the title deeds of which were lodged with the\r\nDefendants.\r\n14.The Defendants also unilaterally decided to add the sum of\r\nc707,500.00 being an unrelated loan granted to the Plaintiffs in 1986\r\nto the loan for the purchase of the tractors.\r\n15.The Defendants charged a processing and commitment fee of\r\nc9,317,020.30 to cover the loan made to the plaintiffs.\r\n16.In due course, the Plaintiffs took delivery of the 10 Tractors and\r\ninformed the Defendants."\r\nBy these averments, it is clear that, by the plaintiff/respondent/respondent''s own pleadings, it admitted the existence of a loan from the appellant. It is thus\r\nestopped by representation from denying the existence of the loan in its defence to the counterclaim of the appellant in the same proceedings. The appellant indeed did admit, in its Statement of Defence, para. 12 of the respondent''s Statement of Claim. The loan agreement of 23 June 1988 was thus an admitted fact. In spite of this, the respondent generally traversed, in its Defence to the Counterclaim, all the averments in the Counterclaim of the appellant, which in part relied on this loan agreement and the other loan of c707,500 which existed in the appellant''s books. The respondent was thus approbating and reprobating.\r\nBeyond the pleadings, there was testimony at the trial, which established the\r\nrespondent''s liability on the loans that were the basis for the Counterclaim of outstanding indebtedness. In the evidence in chief of the respondent''s\r\n \r\n31\r\n \r\nrepresentative, Mr. Abdu Aziz, he made the following admission (at p. 72 of the Record) when asked:\r\n"Q. Has your company paid any part of the loan to the bank.\r\nA.	No."\r\nAlso, there was testimony by the Appellant''s representative, in his evidence-in-chief to the following effect (at p. 99 of the Record):\r\n"It is normal practice for the bank to open a loan account for all our borrowing customers. It is expected that loan repayments for the customers are paid into this account. In the particular case of Hajaara Farms Limited payments into this account Number 76 were mainly by transfers from the two operational account —that is Number 9211. No payments on withdrawal in respect of the loan account are made by cashiers. I have in my hand the loan account Number 76 of the plaintiffs. I would like to tender it in evidence - no objection - admitted and marked Exhibit 11. Exhibit 11 indicates that there were only a few repayments into the account. As a result of loan repayment Hajaara Farms as at the statement date on 30/8/96 still owed the bank an amount of c367,624,304.68. Payment for this amount is long overdue."\r\nThe respondent, in its Statement of Case, points out that there was testimony given by the same witness in which he stated a different amount as the debt owing as at 30/8/96. At p. 105 of the Record, the Defendant''s representative said:\r\n32\r\n \r\n"The plaintiff company is owing the bank. As at 30/8/96 the company owed the bank c412,679,178.74. Judgment should be given to the defendants for that amount with interest. It is due for payment."\r\nThis unfortunate internal conflict and contradiction in the evidence of the same witness cannot be interpreted as absolving the plaintiff/respondent/respondent from liability on its admitted loan transaction with the appellant bank. It would be perverse and against the weight of evidence to do so. I would rather resolve the conflict by holding the company liable for the lesser sum, namely,\r\nc367,624,304.68 as at 30/8/96, together with interest at the bank rate. In spite of the extensive cross-examination of the witness, he was not shaken in his testimony that there was an outstanding indebtedness of the respondent to the appellant.\r\nI am not impressed by the respondent''s captious point about the appellant''s failure to pay a filing fee for its counterclaim. The respondent contends that this is a basis for a dismissal of the counterclaim. The testimony relied on to found this point is inconclusive. The defendant/appellant/appellant''s representative was asked (at p. 149 of the Record):\r\n"Q. Do you know how much filing fees was paid for your counter-claim\r\nA.	I don''t know."\r\nThis testimony cannot be the basis for dismissing the counterclaim.\r\nThe arguments rehearsed above apply, mutatis mutandis, to grounds (iv) and (v) of the Appellant before this court, which it argued together. These are:\r\n \r\n33\r\n \r\niv. "The learned Justices of Appeal erred in law when they failed to distinguish between the loan contract and the tort of detinue and conversion which failure led to the erroneous decision that the loan (admitted by the Plaintiff/Respondent) ceased to be payable.\r\nV. The learned Justices of Appeal erred in law by avoiding the issue of whether or not the tort of detinue and conversion allegedly committed by the Defendant/Appellant amounted to a repudiation of the loan contract which issue was the main basis upon which the trial court rejected Defendant/Appellant''s Counterclaim for the payment of the debt."\r\nIn support of these grounds, the bank argued as follows in its Statement of Case (Para. 20):\r\n"One of the grounds on which the High Court dismissed the Appellant''s counterclaim for the outstanding debt (see pages 279 - 280 of the Record quoted above) was that by "seizing" the tractors, the Appellant repudiated the loan agreement under which the Bank wholly financed the importation of the 10 tractors. At pages 406-407 of the Record the Appellant strongly argued at the Court of Appeal that the learned High Court judge failed to distinguish between the loan agreement through which the Bank provided 100% funding for the importation of the ten tractors and the subsequent alleged tort of detinue and conversion committed. The Appellant further argued that if the High Court had drawn the distinction between the two it would have seen its way clear in upholding the legitimacy of the\r\n34\r\n \r\ncounterclaim for the outstanding debt especially after awarding the Respondent damages for the detinue and conversion. Equity fairness and justice require that the Respondent''s indebtedness should at least have been set off against the damages awarded him in order not to unjustly enrich the Respondent."\r\nIt is clear from my earlier discussion and holding in this judgment that I accept the main thrust of the bank''s argument on this point, namely, that its counterclaim should be upheld and that the seizing of the tractors, even if a breach of contract, did not release the company from its obligation to repay the debt. I would, in consequence, uphold ground (iv) of the appellant''s grounds of appeal. Ground (v), however, causes me some discomfort and I would not uphold it in the exact language through which it is expressed. Admittedly, the learned Justices of Appeal were in error in not addressing the issue of whether the bank''s conduct in seizing the tractors constituted a breach of contract and what were the consequences of that breach of contract. However, their error was not in failing to address the issue of whether "the tort of detinue and conversion allegedly committed by the Defendant/Appellant amounted to a repudiation of the loan contract", as alleged in the ground of appeal. The learned trial judge had held the defendant bank liable in both contract and tort and it would have been right for the learned Justices of Appeal to have adverted to the issue of whether the bank''s conduct had indeed been a breach of the contract of loan.\r\nHowever, I do not accept the argument made by the bank in support of this\r\nground of appeal to the effect that the High Court''s decision that there was a\r\nfundamental breach of the loan agreement was an error of law. I uphold the High\r\n \r\n35\r\n \r\nCourt''s decision that there was a fundamental breach of the loan agreement. My disagreement with that Court relates to the consequences of that fundamental breach, and not to the breach itself. To my mind, the consequence of the fundamental breach was the bank''s liability to pay damages and not the cancellation of the debt obligation owed to it by the plaintiff/respondent/respondent This is an implication of the law explained above that discharge by breach does not relate back to set aside obligations that had accrued before the date of discharge. However, the damages payable, on the facts of this case, might only be nominal, because of the substantial damages awarded by the learned trial judge in respect of the tort liability of the appellant bank, unless there is evidence that the plaintiff has proven a loss not covered by the tort damages. Restitutio in integrum is the purpose of the award of contract damages and not unjust enrichment of the innocent party beyond restoring him or her to the position he or she would have been in if the breach had not taken place. Accordingly, in place of the learned trial judge''s cancellation of the plaintiff company''s debt obligation to the defendant bank, I would substitute nominal damages payable by the bank to the plaintiff/respondent/respondent company for the breach of the loan agreement, unless the Record discloses that the Plaintiff has proven substantial damages beyond the loss covered by the tort damages.\r\nGround (vi) of the Appellant bank''s grounds of appeal reads as follows:\r\n"The learned Justices of Appeal erred by upholding the damages awarded by the trial Court in spite of the legal submissions made by the Defendant/Appellant and further by failing to properly take into account\r\nKTI\r\n \r\nthe outstanding debt admitted by the Plaintiff/Respondent from which the\r\nimportation of the ten (10) tractors was financed."\r\nThe Appellant supports this ground with only one paragraph in its Statement of\r\nCase. That paragraph states:\r\n"Our main grievance on the above ground is the fact that the High Court after awarding such damages should have taken into consideration the\r\noutstanding debt owed by the Respondent and set it off against the damages so as not to unjustly enrich the Respondent because after all it was the Appellant that wholly paid for the ten tractors for the Respondent and yet ask him not to pay the loan is most unfair, unjust and unconscionable. The Court of Appeal therefore committed an error when it affirmed the High Court''s erroneous decision."\r\nApart from complaining about the High Court''s failure to take the plaintiff/respondent''s outstanding debt liability to the defendant/appellant into account, this ground of appeal does not appear to complain about the quantum and principles underlying the damages awarded by the High Court in tort. If it does, it is half-hearted. The issue of the outstanding debt has already been dealt with above. Subject to that, I would affirm the damages awarded by the learned trial judge. In explaining how he quantified the damages payable in respect of the conversion, he said (at pp. 281-2 of the Record):\r\n"For the moment I would deal with the assessment of damages in respect\r\nof the five tractors which the defendant bank refused to release for the use\r\nof the plaintiff company. A practical way of assessing the minimum value of\r\nthe five tractors which were not put to use and remained in the custody of\r\n37\r\n \r\nthe defendant bank until they were disposed of would be to estimate what amount it cost the plaintiff company to procure all five of them. I think the total indebtedness of the plaintiffs to the bank which emanated from the loan transaction between the bank and the plaintiffs should be a safe guide in arriving at what it least cost the plaintiff to procure the tractors. According to the evidence on record the purchase and importation of the ten tractors were wholly funded by monies provided by the bank. Therefore it would be reasonable in the circumstances to limit the minimum value to be placed on the ten tractors to the total indebtedness of the plaintiff company to the defendant bank. According to exhibit 13 quoted above the plaintiff company, at the inception owed the defendant bank amounts of FF 1,958180.00 and C776470.00 which represent the total amount it cost the plaintiff company to procure the ten Renault tractors. It means therefore that the value of five of the Renault tractors would be half of the two amounts, which would be FF979,090.00 and c388.235.00 respectively. To me the total of the two amounts would be adequate compensation for the plaintiffs in the nature of damages for the conversion committed by the defendant bank in respect of the five tractors which it refused to release to the plaintiff company after their unjustifiable and unwarranted seizure."\r\nIn relation to the remaining five tractors which were released to the plaintiffs, the learned trial judge explained his quantification of damages in relation to them as follows (at p. 284 of the Record):\r\n \r\n38\r\n \r\n"...they were entitled to the award of damages for conversion which would be equal to the value of the five tractors at the time of their sale. Unlike the five tractors which were not released, it would not be relatively easy to compute their value at the time of sale, especially when no evidence was led by the plaintiff company in that regard. That, of course, is understandable since the plaintiffs'' pleading did not anticipate that the court would treat the five tractors which were not released differently from the other five. To be on a safe side we just have to limit our assessment of the value of the five tractors, which were used for some time, to the total amount which was derived from their sale at the instance of the defendant company."\r\nAn issue which arises from the learned trial judge''s quantification of the tort damages is whether after the award of those damages, there is any room left for the award of further damages, whether in contract or in tort. In tort, an argument could be made in support of consequential loss of profit by the plaintiff company caused by the commission of the tort. The difficulty for the plaintiff is that such consequential loss of profit has to be proved. Moreover, the plaintiff did not cross-appeal against the quantum of tort damages awarded it.\r\nAlternatively, the plaintiff could rely on contract to recover further damages flowing from the fact that the bank''s unlawful seizure of the plaintiff''s chattels, in breach of contract, probably caused it to lose profit. The first problem for a court seeking to award supplementary contract damages on this score is that the plaintiff did not sue in contract. However, the defendant bank did counter-claim in contract. Thus, in determining whether the plaintiff''s liability under the loan\r\n \r\n39\r\n \r\ncontract to the defendant bank remains outstanding, the issue can be legitimately addressed as to whether any loss, beyond that in relation to which tort compensation had already been awarded, had been caused to the plaintiff by the defendant''s breach of the contract of loan such that that loss should be deducted from the plaintiff''s indebtedness to the defendant bank. In principle, it is reasonable to hold that the plaintiff''s indebtedness under the contract of loan should be reduced by the monetary value of any breaches of that contract by the defendant bank. In this regard, the main loss raised by the evidence on record relates to the plaintiff''s probable loss of profits from the use of the five tractors that were never released to them, in consequence ', '../links/cases/Document (209).pdf', 'Yes', 'DATE-BAH,J.S.C., ANSAH,J.S.C., BONNIE,JSC,AKOTO BAMFO (MRS),JSC', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Contract - Tort - Concurrent liability in both contract and tort - Discharge of contract by breach -Effect of matured rights and obligations under discharged contracts - Whether further damages may be awarded after award in tort - Principle of unjust enrichment.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J4/25/2011', '', '', 'supreme', '2012-01-25', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(560, '1. RICHARD ODUM BORTIER\r\n2. DANIEL QUAYE  ...  PLAINTIFFS\r\nVRS\r\n1. THE ELECTORAL COMMISSION OF GHANA\r\n2. THE ATTORNEY GENERAL  ...  DEFENDANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT OF GHANA\r\nACCRA AD 2012\r\nCORAM: ATUGUBA (PRESIDING) JSC\r\nAKUFFO (MS) JSC\r\nBROBBEY JSC\r\nANSAH JSC\r\nADINYIRA (MRS) JSC\r\nYEBOAH JSC\r\nBONNIE JSC\r\nGBADEGBE JSC\r\nAKOTO - BAMFO (MRS) JSC\r\nWRIT\r\nNO. 1119/2011\r\n23RD FEBRUARY 2012\r\n1.	RICHARD ODUM BORTIER) PLAINTIFFS\r\n2.	DANIEL QUAYE\r\nVRS\r\n1.	THE ELECTORAL COMMISSION OF GHANA) DEFENDANTS\r\n2.	THE ATTORNEY GENERAL\r\n \r\nConstitutional law - Interpretation - Demarcation of constituency boundaries - was brought - Whether Supreme Cm Constitution, 1992, art. 48 - Whether\r\nprescribed by Constitution.\r\nJUDGMENT\r\n \r\nSOPHIA A. B. AKUFFO (MS) J.S.C; \r\nThe Plaintiffs, by their Writ filed on 22nd July 2011, claimed the\r\nfollowing reliefs: -\r\na.	"A declaration that upon a true and proper interpretation of Article 47 clauses (3) (4) and (7) of the Constitution 1992, the boundaries of Constituencies, as demarcated by the Electoral Commission of Ghana shall be made so as to ensure that it is in\r\naccordance with the egalitarian principle of fair representation\r\nsolidly embodied in the Constitution\r\nb.	"An order directed against the Electoral Commission of Ghana to review the boundaries of all constituencies as they exist now by altering them in order to conform with Article 47 (3) and (4) emphasising more on population distribution in accordance with the egalitarian principle of fair representation solidly embodied in the Constitution.\r\nc.	"A further order directed against the Electoral Commission of Ghana to review the 230 Constituencies as they stand now by altering them following the publication of the enumeration figures after the holding of the 2010 Population Census in accordance with the egalitarian principle of fair representation\r\nsolidly embodied in the Constitution."\r\nIn support of these claims, the Plaintiffs in their Statement of Case made various assertions which may be summarised as follows: -\r\na. Despite the dictates of article 47, particularly clauses (1), (3) and (7), the Electoral Commission of Ghana (hereinafter variously\r\n \r\n2\r\n \r\nreferred to as "EC or 1st Defendant") has since the year 2000 made alterations to constituency boundaries that are in\r\ncontravention of these said provisions.\r\nb.	The practice adopted by the EC, as evidenced by the manner in which constituency boundaries had been drawn in previous years, fails to take into account "the philosophy behind representation of the people in a democratic process which is to ensure that the inhabitants of a nation are adequately represented in Parliament", and the same practice, moreover, contravenes the letter and spirit of Chapter 7 of the Constitution, dealing with the representation of the people, as well as other laws and Constitutional Instruments made by Parliament and the EC.\r\nc.	The past practice/conduct of the EC, has been arbitrary and inconsistent with the letter and spirit of the Constitution; such\r\npractice include:\r\nthe insistence by the EC that each district of Ghana must have a constituency.\r\n-ii.	the EC''s insistence on giving a 9 point weight to population and a I point weight to land size.\r\nd.	Such practices have a tendency to result in under-representation in some constituencies or over-representation in others, thereby failing to assure equal/fair representation. As a consequence of these anomalies Ghana''s Parliament "can be described as mal \r\napportioned and disproportional" with a "wide discrepancy between the share of legislative seats and the share of population held by constituencies".\r\n \r\n3\r\n \r\ne. Since the EC has intentions to review the number of constituencies by creating 20 more through the application of factors which are inconsistent with the proviso to Article 47 (3), it is necessary for the Court to interprete Article 47 in such a manner as will foster the democratic principles under-pinning Chapter 7 by placing greater emphasis on Article 47 (3) rather than 47 (4), which is the exception, and ordering the EC to proceed accordingly.\r\nArticle 47 of the Constitution reads as follows: -\r\n(1)	Ghana shall be divided into as many constituencies for the purpose of election of members of Parliament as the Electoral Commission may prescribe, and each constituency shall be represented by one Member of Parliament.\r\n(2)	No constituency shall fall within more than one region.\r\n(3)	The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota.\r\n(4)	For the purposes of clause (3) of this article, the number of inhabitants of a constituency may be greater or less than the population quota in order to take account of means of communication, geographical features, density of population and area and boundaries of the regions and other administrative or traditional areas.\r\n(5)	The Electoral Commission shall review the division of Ghana into constituencies at intervals of not less than seven years, or within twelve months after the publication of the enumeration figures after the holding of a census of the population of\r\n \r\n4\r\n \r\nGhana, whichever is earlier, and may, as a result, alter the\r\nconstituencies.\r\n(6)	Where the boundaries of a constituency established under this article are altered a result of a review, the alteration shall come into effect upon the next dissolution of Parliament.\r\n(7)	For the purposes of this article, "population quota" means the number obtained by dividing the number of inhabitants of Ghana by the number of constituencies into which Ghana is\r\ndivided under this article.\r\nBoth of the Defendants have filed their statements of case in response to that of the Plaintiffs, and whilst the Plaintiffs, 1st Defendant and 2nd Defendant each filed their separate memorandum of issues, thereby presenting the Court with a welter of issues to ponder over in this matter, it is quite clear to the Court that the crux of the matter is whether or not the original jurisdiction of the Court has been properly\r\ninvoked in this instance.\r\nTo start off with, there is no question as to whether the Plaintiffs have the locus standi to bring this action for interpretation and enforcement of the provisions of Chapter 7 of the Constitution. As citizens of Ghana, which they aver, and which averment has not been seriously challenged by either Defendant, they may bring such an action, given the proper circumstances.\r\nAs to whether they have brought a proper cause of action that is another matter, however. Firstly, it is rather late in the day to mount any serious challenge based on the manner in which the EC has performed its functions in the past. Secondly, and more importantly, the crux of the Plaintiffs action relates to the manner in which the EC has demarcated or is intending to demarcate constituency boundaries. Aside from the fact that the EC is yet to perform such task, and it is,\r\n5\r\n \r\nat present, entitled to the presumption that it will perform its functions in due form, there remain the clear provisions of Article 48 of the Constitution. Since it is axiomatic that, in reading or construing a Constitution, the Court is required (as with all other legal instruments) to read the entire provisions with a view to assure that every provision is given effect and any internal conflict is duly resolved without doing damage to any provision thereof, it is quite inexplicable that the Plaintiffs chose to ignore totally the impact of the Article on their ease, and did not attempt to address the same, even in their reply to the l Defendant''s statement of case.\r\nNow, Article 48 states as follow: -\r\n1.	"A person aggrieved by a decision of the Electoral Commission in respect of a demarcation of a boundary, may appeal to a tribunal consisting of three persons appointed by the Chief Justice, and the Electoral Commission shall give effect to the decision of the tribunal".\r\n2.	"A person aggrieved by a decision of the tribunal referred to in clause (I) of this article may appeal to the Court of Appeal whose decision in the matter shall be final".\r\nThe Plaintiffs cause of'' action herein is one in respect of which the Constitution has prescribed a specific course of action, which clearly does not include the Supreme Court. Even though the declarations sought appear, largely to be based on basic Constitutional principles, we have no doubt that, in this case, what the Plaintiff seeks to dispute is the manner in which the EC has demarcated, is demarcating and might demarcate boundaries in the exercise of its power under Article 47. Such a challenge cannot be mounted in this court through an invocation of our original jurisdiction. This matter is, therefore, not properly before the court and the case is hereby dismissed.\r\n \r\n6\r\n \r\nFortunately, the Tribunal stipulated by Article 48 has, alter so many years of delay, been finally constituted, as the Chief Justice in November 2011 inaugurated the same. Therefore, the Plaintiffs are advised to mount their challenge in that proper forum.\r\n(SGD) S. A. B. AKU FF0 (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) W. A. ATUGUBA\r\nJUSTICE 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) S. 0. ADINYIRA (MRS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) P. BAFFOE BONNE\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n7\r\n \r\n(SGD) N. S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) V. AKOTO BAMFO (MRS)\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL:\r\nAYIKOI OTOO FOR THE PLAINTIFFS\r\nA. K. DAB! FOR THE 1ST DEFENDANT\r\nSYLVESTER WILLIAMS (PRINCIPAL STATE ATTORNEY) FOR THE ATTORNEY GENERAL.\r\n\r\n8\r\n', '../links/cases/Document (210).pdf', 'Yes', 'AKUFFO (MS)JSC,BROBBEY JSC,ANSAH JSC,ADINYIRA (MRS)JSC,YEBOAH JSC,BONNIE JSC,GBADEGBE JSC,AKOTO-BAMFO (MRS)JSC', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Constitutional law - Interpretation - Constitution, 1992,art. 47 - Demarcation of constituency boundaries - Whether a proper cause of action was brought - Whether Supreme Court has original jurisdiction - Constitution, 1992, art. 48 - Whether there is specific course of action prescribed by Constitution.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J1/9/2011', '', '', 'supreme', '2012-02-23', ''),
(561, 'JOHN BART ADDISON  ---  PLAINTIFF/APPELLANT\r\nVRS\r\nHANNA KORDAI ADDY  ---  DEFENDANT/RESPONDENT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE COURT OF APPEAL\r\nACCRA - GHANA\r\nAD 2011\r\nCORAM: M. OWUSU (MISS) J.A (PRESIDING) DUOSE J.A\r\nHONYENUGA J.A\r\nCIVIL APPEAL NO. H1/8/2011 20TH OCTOBER, 2011\r\nJOHN BART ADDISON	PLAINTIFF/APPELLANT\r\nHANNA KORDAJADDY	DEFENDANT/RESPONDENT\r\nLand law - Lease - Oral Agreement —ss. 1,Z3& 10 Conveyancing Decree,\r\n1973\r\nEvidence-Burden of proof— ss. 10(1) (2),11 (1),12 (1) (2) Evidence Act, 1975 (NRCD 323)\r\nJUDGMENT I-IONYENUGA I.A.\r\nThis is an appeal by the plaintiff/appellant from the decision of the High Court; Accra dated the 17111 day of December 2009. The said decision decreed that the lease agreement under which the plaintiff/appellant entered the land had long expired. The decision also decreed recovery of possession and ejectment of the plaintiff/appellant from the land.\r\n \r\nThe facts of this appeal are that the plaintiff/appellant claimed to have orally leased a building plot from one Oye Codjoe who is also known as Dunkrong Amartiokor, a fetish priestess for 50 years. The purpose of the grant was for the construction of a two storey commercial building. The plaintiff/appellant paid a customary drink of e200.00 (old cedis) or GHe0.02 before completion of the building. He also paid e200.00 (old cedis) a month and a total rent of el20,000.00 (old cedis) or GI-le12.00 representing the 50 years duration of the lease without a receipt issued to him. The said building was later demolished by the City Engineers because there was litigation on the land. He was rather advised to put a single storey but on 11 th-\r\nJ u ly 1987, the lessor died. The\r\nplaintiff/appellant filed a Caveat to the letters of administration applied for by the defendants/respondents •because they were interfering with the use of his plot.\r\nThe defendants/respondents denied the claim of the plaintiff/appellant. As a result, the plaintiff/appellant caused the instant writ of summons to be issued against the defendants/respondents claiming as follows:-\r\n"1. That the Court orders that plaintiff leased a plot from late Oyc Cocljoe alias Dunkrong Amartiokor and the plaintiff from his own resource built House No. B 672/6 on the leased plot situate lying and being at\r\nAbossey Okai.\r\n2.	That the lease is still in subsistence.\r\n3.	That an order for account of all monies accruing to the Estate of\r\nDeceased who died on 11"'' July 1987 up to the date of judgment.\r\n4.	Alternatively, the refund of the money plaintiff paid to the lessor and\r\nmoney spent to put up the house plus interest on the whole amount.\r\n5.	An order for injunction not to distribute the estate without reference\r\n6.	to the plaintiff. General Damages for interfering with the enjoyment of the plaintiff\r\nlease.\r\n7.	An order that the plaintiff is joint owner of the House No. B 672/6 with late Oye Cocijoe alias Dunkrong Amartiokor.\r\n8.	The Court order that cost be awarded against the Defendants.\r\n \r\nI,-''.	9.	Damages for breach of contract and misrepresentation."\r\nThe Writ of Summons was accompanied by a Statement of claim which was subsequently amended. The defendants/respondents also filed an amended Statement of Defence and Counterclaim as follows:\r\n,,a.	A declaration that the lease agreement under which plaintiff entered the land has long expired.\r\nb.	Ejectment and recovery of possession of the land from plaintiff, and says that plaintiff is not entitled to his claims".\r\nThe plaintiff/ respondent filed a reply to the amended Statement of Defence and Counterclaim. Summons for directions was filed but from the record of appeal, there is no evidence that it was taken by the Court before hearing commenced. However, the following issues were filed:-\r\n"a		Whether or not the plaintiff leased the plot from OYE CODJOE alias DUNKRON AMARTIOKOR.\r\nb		Whether or not the plaintiff leased from his own resources built the house No. B 672/6, Abossey Okai on the leased plot.\r\nC. Whether or not the Lessor OYE CODJOE alias DUNKRONG AMARTIOKOR failed to disclose to the plaintiff that there was a litigation on the plot.\r\nd. Whether or not because of litigation Building Engineers of A.M.A. instructed the plaintiff to put UI) Single Storey Building which was demolished twice by the litigants.\r\nC		Whether or not by the misrepresentation of the Lessor the plaintiff spent a lot of money to put up the building.\r\nf.	Whether or not the disputed House is jointly owned by the plaintiff and Amartiokor (Deceased).\r\ng.	Whether or not alternatively the defendants refund the amount the plaintiff spent plus interest to the plaintiff.\r\nh.	Any further issues appearing on the pleadings".\r\nThe plaintiff/ appellant opened his case but called no witness The original first defendant died in the course of the trial but was not substituted. The defendant/respondent''s attorney opened the defendant/ respondent''s case and\r\n \r\ncalled DW1 and DW2. In his judgment the learned trial judge dismissed the\r\nplaintiff/appellant''s claim and entered judgment for the defendant/respondent on\r\n111111106vt,\r\nher counterclaim.	Dissatisfied with the judgment of the trial Court, the\r\nplaintiff/appellant has filed the instant appeal on the following grounds: \r\n"i.	The judgment is against the weight of evidence led by the appellant. The reasons on which the judgment is founded are farfetched and did\r\nnot arise in the course of proceedings.\r\nAdditional grounds of appeal will be filed on receipt of record of\r\nproceedings".\r\nNo additional grounds of appeal were filed. In this appeal, the plaintiff/appellant would be referred to as- the appellant and the defend-ant/respondent as the\r\nrespondent.\r\n. Before I consider the grounds of appeal as filed, I have observed that the summons for directions as filed were not taken by the Court but the trial\r\n \r\nproceeded. Although the suit was filed under the old rules, High Court Civil Procedure Rules 1954 (LN 140 A) subsequent documents filed and the trial were conducted under the new High Court (Civil Procedure) Rules 2004 (C.I. 47). In such circumstance, order 1 rule 2 of C.I. 47 enjoined the trial court to interpret\r\nthe rules so as to achieve speedy and effective justice, avoid delays and unnecessary expense and as far as possible ensure that all matters in dispute between the parties are effectively and effectually determined and avoid multiplicity of suits. Moreover, Order 81 rule 1 of C.I. 47 enjoins such non-compliance or omissions to be treated as mere irregularity that does not result in a nullity.\r\nSee Republic vs High Court, Accra Ex Parte Allgate Co. Ltd. (Amalgamated Bank Ltd. Interested Party) [2007-2008] SCGLR 1041. The failure therefore of\r\nthe learned trial judge in not taking out the Summons for Directions before proceeding with the hearing of the suit is a mere irregularity and cannot result in\r\na nullity.\r\n \r\nNow, to the first ground of appeal that the judgment is against the weight of evidence. The onus cast upon an appellant who complains that the judgment is against the weight of evidence is to clearly and properly demonstrate to the appellate court that there were certain lapses in the evidence on record which if applied in his favour, could have changed the decision in his favour or that certain pieces of evidence have been wrongly applied against him. See Djin vs Musah Eaako [2007-20081 SCGLR 686 at p.687. A perusal of the Written Submission filed by counsel for the appellant leaves much to be desired. Counsel for the appellant never adverted his mind to the grounds of appeal as filed and therefore did not argue on its merits. The only credit to Counsel for the appellant is the attachments of the pleadings in the trial and what he termed proceedings coupled with the settlement of record and other administrative duties performed before the trial court''s Registrar. Counsel have a duty to their clients to perform their role as expected in the best interest of their clients. However, since an appeal is by way of rehearing, and it is the duty of the appellate court to evaluate the veracity or otherwise of any witness and analyse the entire record of appeal and take into account the testimonies and all the documentary evidence adduced at the trial before arriving at a decision Sc) as to satisfy itself that on the balance of the probabilities, the conclusions of the trial judge are reasonable or amply supported by the evidence. See Tuakwa vs Bosom [2001-20021 SCGTLR 61. Therefore, despite the failure of Counsel for the appellant to demonstrate why the judgment is against the weight of evidence, we shall by the above stated principle of law examine the totality of the evidence including documentary evidence on record before arriving at a conclusion.\r\nCounsel for the respondent has submitted that the appellant failed to lead any convincing evidence during the trial and therefore the trial judge did not place substantial weight on his evidence and prays that this ground of appeal must fail. In a civil ease, the plaintiff has the burden of proof and''persuasion on a balance of probabilities. See sections 10(1) and (2), 11(1) and 12(1) and (2) of the Evidence Act, 1975 (NRCD 323). The plaintiff must therefore lead credible and admissible evidence from whic h the facts he asserts can be inferred. See Zabrama vs\r\n \r\nSegbedzi [1991] 2GLR 221 at p.224. The respondent having counter claimed has\r\nassumed the same burden of proof like the appellant. See Jass Co. Ltd. & Anor vs Appau & Anor [2009] SCGLR 265. It is trite that a lease agreement is a contract for the lease of land and thus the terms of the contract has to be by\r\nmutual agreement. The appellant in paragraph 2 of the Amended Statement of\r\nclaim stated as follows:-\r\n"2.	In 1979 the plaintiff orally leased a building plot for 50 years from ()yc Codjoe a fetish priestess alias Dunkrong Amartiokor at Abossey Okai\r\nin Accra for the purpose of building two storey commercial buildings\r\non the plot".\r\nIn his testimony in court he repeated his assertion that he made an oral lease\r\nagreement with the said fetish priestess to put two storey buildings for commercial purposes and had even paid 0200.00 (old cedis) a month in 1979 and paid 0120,000.00 (old cedis) to cover the fifty year lease. The respondent in her Statement of Defence and Counterclaim denied the assertion of the appellant in\r\nparagraphs 3 and 4 as follows:-\r\n"3.	Save that the late Dunkrong Amartiokor leased part of her plot to plaintiff for ten years, effective from 1980 defendant denies all the\r\n1	4.	averments contained in paragraph 2 of the Statement of Claim.\r\nIn further denial of the said paragraph 2 of the Statement of Claim, defendant denies that the late Dunkrong Amartiokor was also called Oye Codjoc. Again defendant says the land was leased to plaintiff to\r\nconstruct a wooden workshop but plaintiff rather constructed a dwelling place contrary to what was initially agreed which the late\r\n1	Dunkrong Amartiokor objected to".\r\ntr , In the testimony of the respondent she again challenged the appellant''s evidence. Upon denial both in the pleadings and the testimony in court, it was incumbent upon the appellant to lead credible and admissible evidence to corroborate his\r\ncase.\r\nI, a..,,,	The only evidence led in support of the appellant''s case was the tendering of Exhibit A, the site plan of the land registered in the name of his lessor, Exhibit B\r\n \r\n\r\nan application to build a residential single storey building with fence wall, Exhibit 131 an extract from Accra building regulations, Exhibit B2 an application form for a building permit, Exhibits B3, B4, B5, B6 and 137 demand notices for the payment of property rates which bear his name. These exhibits only go to establish that the appellant did put up a building on the land. These did not prove whether the lease was granted to him for 10 years or 50 years. Despite having mentioned one Maame Hannah who is still living in the wooden structure on the land, as the person who introduced him to the late Dunkrong Amartiokor, the appellant woefully failed to call her although she is material to his case.\r\np -\r\n___. Moreover, it is strange that the appellant who is literate and an Electric Techinician could pay such a huge sum of money to an illiterate the late Dunkrong on a lease without having insisted on receipt being given to him. His explanation as to why he could not obtain any documentation is unacceptable. He stated in cross-examination as follows:-\r\n"Q. A very educated person like you, you made fifty years lease without taking document, do you want the court to believe that?\r\nA. I paid a bulky sum of money, she was illiterate and asked me to go and come. I did not want anybody to say I had cheated the old lady and she never did. So when I heard of the litigation I went to demand my money".\r\nIt is equally strange that the appellant in all these circumstance did not find it prudent to have gone to pay for an oral lease without going with another person to witness the transaction. In cross-examination he stated as follows:-\r\n"Q. In all these who and who were present?\r\nA.		When I went there I expected the old lady to bring somebody but she\r\nsaid 1 should deal with her".\r\nThis explanation sounds very funny. lie thus could not prove his allegations he made both in his statement of claim and his testimony in court.\r\nFurthermore, the law as stated in section 1 of the Conveyancing Act, 1973, required that a transfer of an interest in land shall be in writing, signed by the\r\n7\r\n \r\nperson making the transfer or by the agent of that person duly authorized in\r\n1111	writing unless relieved against the need for a writing by section 3. Section 1(2) of\r\n11110***, \r\nthe Conveyancing Act, 1973, NRCD 175 also required that a transfer of an interest in land be made in a manner other than as provided in sections 1 and 10 shall not\r\nconfer an interest on the transferee. Section 2 of NRCD 175 required that a\r\ncontract for the transfer of an interest in land is not enforceable unless:-\r\n \r\n(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 authorized to sign on\r\nbehalf of that person, or\r\n(b)	It is relieved against the need for a writing by section 3. A perusal of section 3 of NRCD 323 which states the transactions permitted without\r\nwriting, indicate that the appellant is not covered by the exceptions. Although the appellant had undertaken an interest in land, he did not lead any evidence to show that his transaction was under an oral customary grant. His evidence simply is that he had an oral lease with the late Dunkrong Amartiokor. The appellant cannot even be protected under NRCD 175 because his oral lease is not covered.\r\nThe principle is that evidence against a deceased person must be scrutinized with the utmost suspicion. See Moses vs Anane [1989-90] 2 GLR 694 at 697. The\r\noral lease between the appellant and the late Dunkrong must be viewed with suspicion particularly when the appellant did not tender any documentary evidence and Dunkrong Amartiokor died before the writ was filed. We therefore\r\nhaving regard to the record, do not believe the claim of the appellant as it is not convincing and unsupportable. It is thus clear to hold that the appellant failed to\r\nprove that he had an oral lease for 50 years. The evidence on record supports an\r\noral lease for 10 years which had long expired.\r\nIn the appellant''s statement of claim particularly in paragraph 2 he stated that it was a building plot that was orally leased to him. In his evidence, the appellant stated that the respondent had interfered with portions to others. A perusal of the\r\nrecord of appeal indicate that from the exhibits tendered by the appellant, it is clear that he was granted only a portion of the land. There is sufficient evidence\r\n \r\n8\r\n \r\n\r\n \r\non record from the respondent, DWI and 0W2 that before the appellant was granted the land, other persons had been living in wooden structures constructed by the late Dunkrong. The appellant himself admitted that DWI DW2 and Maame Hannah were living in wooden structures on part of the land. Exhibits 2 and 3 supports this contention. The appellant also admitted in cross-examination that he did nothing to those who occupied portions of the land whom he came to meet on the land in structures belonging to his lessor, from 1979 to 2004 when he issued the writ of summons. We would therefore not interfere with the finding of fact by the learned trial judge that the late Dunkrong Amartiokor leased only a small portion of the land to the appellant but not the whole land. This finding is supported by the record of appeal. In re Okine (Deceased) Dodoo and Another vs Okine & Others [2003-2004] SCGLR 582, the principle was stated by the Supreme Court to the effect that an appellate Court must not interfere with the findings of fact made by a trial court unless the finding of fact was wholly unsupportable. In the instant appeal, therefore, we would not disturb the finding of fact since it is supportable.\r\nWe would also not disturb the findings of fact by the learned trial judge that the appellant was to have built a wooden structure since wooden structures are all scattered in the area bt he built a sandcrete at his own risk. Likewise, the finding of fact that there was no litigation on the land would not be disturbed since these findings are all supported by the evidence on record.\r\nOn the other hand, the respondent as a counter claimant led credible and corroborative evidence. The respondent testified and was supported by the evidence of DWI and DW2. The respondent was consistent that the oral lease to the appellant was for 10 years and that DWI, DW2 and Maame Hannah had their wooden structures on the land before the appellant came to the land. She also led evidence to the fact that the appellant was to have built a wooden structure but contrary to the lessor''s instructions, he built a block house. She also denied that there was litigation on the land and that the appellant''s lease had long expired. The respondent also stated that the appellant was to put up a structure for a\r\n \r\nworkshop but he rather used his structure as a dwelling house. Further, she stated that the appellant changed the name of the lessor on the payment of the property rate into his own without the consent of his lessor. She was also consistent that only a portion of the land was leased to the appellant. She tendered Exhibit "C" to show that the respondent is next of kin to the late Dunkrong Amartiokor. Exhibit 2, 2A and 2B also depict wooden structures scattered on the land. DW1 confirmed that he was on the land before the\r\nappellant came and that wooden structures were on it. DW2 corroborated the\r\nevidence of the respondent that he took the appellant to late Dunkrong for the release of the land to him. He confirmed that the appellant and his lessor agreed\r\nto an oral lease for 10 years. With such consistent and corroborative evidence by\r\nthe respondent and DWI_ and DW2, we have no doubt that the holding and finding of the learned trial judge in dismissing the appellant''s claim is supported. The •	first ground of appeal is thus dismissed.\r\nNow to the second ground of appeal that the reasons on which the judgment is founded is farfetched and did not arise in the course of the proceedings. We think that this ground of appeal is superfluous because they are linked to the first ground of appeal that the judgment is against the weight of evidence. If learned Counsel had adverted his mind to the first ground, he would have observed that\r\nthis ground of appeal is of no consequence to this appeal. Having dismissed the first ground of appeal, we find it fruitless to consider this ground.\r\nIn this appeal, we find that there is no basis to depart from the findings of fact and conclusions reached by the learned trial judge.\r\nIn the circumstance, the appeal is dismissed and the judgment of the High Court dated the 171/1 December 2009 is hereby affirmed.\r\nrt,.		C. J. HAIIENUGA (JUSTICE OF APPEAL)\r\n10\r\n \r\nV\r\n-	S	•	I	i\r\nM. OWUSU (MISS) J.A.	I agree	M. OWUSU\r\n(JUSTICE OF APPEAL)\r\nI\r\nI. DUOSE J. A.	•	I also agree	T.. DIJOSE\r\n•	(JUSTICE OF APPEAL)\r\nCOUNSEL:\r\nMR. YAW AMO-FARKYE FOR THE PLAINTIFF/ APPELLANT\r\nMR. JOSEPH K. OYIMAH FOR THE DEFENDANT/RESPONDENT\r\nt ..\r\nC ft\r\n', '../links/cases/Document (211).pdf', 'Yes', 'DUOSE, J.A., HONYENUGA, J.A.', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Land law - Lease - Oral Agreement - ss.1,2,3 &amp; 10 Conveyancing Decree,1973<br>Evidence - Burden of proof - ss.10 (1) (2),11 (1),12 (1) (2) Evidence Act,1975 (NRCD 323)</font></b></i><br>', 'M. OWUSU (MISS) J.A.', 'Civil', '', 'HI/8/2011', '', '', 'appeal', '2011-10-20', ''),
(562, 'GAISE ZWENNES HUGHES & CO.  ---  PLAINTIFF/APPELLANT/APPELLANT\r\nVRS\r\nLODERS CROCKLAAN B.V.  ---  DEFENDENT/RESPONDENT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCORAM: DATE-BAH, JSC (PRESIDING)\r\nOWUSU, JSC\r\nDOTSE, JSC\r\nBONNIE, JSC\r\nGBADEGBE, JSC\r\nCIVIL APPEAL\r\n1412412011\r\n1ST FEBRUARY, 2012\r\nGAISE ZWENNES HUGHES & CO PLAINTIFF/ APPELLANT/ APPELLANT VRS\r\nLODERS CROCKLAAN B.V --- DEFENDANT/RESPONDENT/ RESPONDENT\r\nLegal practitioners Recovery of fees - Whether there was compliance with Legal Profession Act 1960 (Act 32) s.30 - Whether defence not raising point of non-compliance constitutes waiver - Cl 16 rule 6(7) (b) - Whether non-compliance with rules of court renders action incompetent.\r\nJUDGMENT\r\n \r\nDR. DATE-BAH JSC: \r\nI have had the privilege of reading before-hand the lucid and authoritative judgment about to be read by my brother Gbadegbe JSC and I agree with him. The interpretation put on section 30(1) of the Legal Profession Act, 1960 (Act 32) by the Court of Appeal in Ayarna & Anor V Agyemang & Ors [1976] 1 GLR 306 and by the Supreme Court more recently in Narter v Gati [2010] SCGLR 745 makes it\r\ninevitable for us to dismiss this action.\r\n(SGD) DR. S. K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\nGBADEGBE JSC: \r\nOn or about 14 March 2006, the defendant instructed the plaintiff, a firm of legal practitioners, regarding a contract that they had previously entered into with a company known as International Business Group, Ghana Ltd and its managing director. It\r\nappears from the pleadings in this case that the contract was one of purchase of shea¬nuts for which the defendant had made payment but did not receive supplies due to it.\r\nThe instructions from the defendant to the plaintiff provided for differential schemes of payment of professional fees in the event of a settlement or a full scale trial of the dispute. Based upon the agreement reached between the parties herein, the plaintiff issued a writ to demand payment of the outstanding amounts owed to the client and in the course of the pendency of the action reached an agreement with the debtors and executed terms of settlement dated 20 December 2006. The said terms of settlement were consequently duly entered as a judgment of the court in the matter.\r\n \r\nFollowing the conclusion of the case, the plaintiff basing himself on the retainer agreement took out a writ of civil summons to claim from its client (the defendant herein) professional fees owing to it following the recovery of judgment in the action that it had concluded against International Business Group and the managing director. In paragraph 11 of the statement of claim filed on its behalf, it was averred as follows:\r\n"As a consequence of the above and in line with their Retainer Agreement, Plaintiff requisitioned for payment of US$44,50, being 1.25% of the settlement sum recovered and received by Defendants of US$3,564,000.00 as a result of professional services rendered by the Plaintiffs."\r\nThe action proceeded to a trial that was determined against the plaintiff by the High Court. An appeal to the Court of Appeal was also determined against the plaintiff and as a result the proceedings herein were initiated before us by way of a further appeal seeking a reversal of the decision of the Court of Appeal. Before us, the parties submitted their respective statements of case and in the course of considering the matter before judgment; we raised for their consideration a point of law that was carefully drafted by the court as follows:\r\n"Was Section 30 of the Legal Profession Act 1960(Act 32) regarding the submission of a bill of fees by a legal practitioner to his client at least a month before the commencement of suit against the client complied with in this case?\r\nThe above question was responded to by the parties and we now proceed to consider the arguments presented to us in the matter. In my thinking, the question that we first have to decide in the appeal herein is that which turns on section 30 of the Legal Profession Act, which was raised by us. In its answer to the said question, while admitting non-compliance with section 30 of Act 32, the Legal Profession Act, the plaintiff in what I consider to be a confession and avoidance submitted that\r\n \r\nnotwithstanding the non-compliance by it with section 30 of the Act, the defendant by its conduct in not raising the point regarding same is deemed to have waived the non¬compliance with the statutory provision. In the supplementary statement of case filed on its behalf on 21 November 2011, it was stated at page 1 thus:\r\n"However could it be said that the failure by the Plaintiff to comply with the provisions section 30(1) of the Legal Profession Act renders the entire action null and void? We respectfully do not think so. It must be noted that the Defendant who was represented by Counsel in the trial court entered appearance unconditionally to the action and filed a Defence as well as a Counterclaim did not raise any such legal objection. Not having done so we submit that Defendant is deemed to have waived any such non-compliance to the irregularity."\r\nThis view of the matter that is urged on us by the plaintiff does not find support in the pronouncement of this court in the case of Nartey v Gati [2010] SCGLR 745.In the course of his judgment in the above case my respected brother, Date- Bah JSC reading the lead judgment of the court expounded the applicable law at page 758 as follows:\r\n"In Ayarna v Agyemang [1976] 1 GLR 306, the Court of Appeal held that the true object of section 30(1) of the Legal Profession Act, 1960 ( Act 32), was to enable the court to oversee and supervise the charging of professional fees if a dispute arose between a lawyer and his client as to the quantum or proprietary of the fees charged and that compliance with section 30 (1) of Act 32 was a mandatory pre-condition for the commencement of an action by a lawyer to recover his fees."\r\nIn my opinion, not having satisfied the mandatory requirement of Act 32 regarding the service on the client of a bill of fees before suing out the action herein, the action was improperly constituted and the appeal herein must fail. The non-compliance with the mandatory statutory requirement contained in section 30 of the Legal Profession Act,\r\n \r\n(Act 32) rendered the action in the form in which it was taken before the High Court one that was not sanctioned by law and as such it was competent for the court by itself to raise the point of law turning on it under rule 6(7) (b) of Cl 16, the Supreme Court Rules. The non-compliance in this case being a failure to comply with a mandatory statutory requirement invalidated the writ of summons on which proceedings in the matter herein were based as was decided by this court in the case of Republic v High Court, Accra, Ex-parte Allgate CoLtd [2007-2008] SCGLR, 1041. The decision of the Supreme Court in this case appears to have overruled the collection of cases including Heward MiIlsv Heward Mills [1992-93] GBR 239 which hold that non-compliance with rules of court renders an action incompetent; to have a nullifying effect, the non-compliance must also be a breach of the Constitution or of a statute or the rules of natural justice such as to affect jurisdiction. The situation that we are confronted with in the appeal herein being one of non-compliance with the provisions of a statute has the effect of invalidating the action. I add that in view of the breach of the statutory provision, we are left with no discretion in the matter such as to make any substantive order or orders in the action.\r\nRegarding rule 6 (7) of the Supreme Court Rules, Cl 16, I think that the framers of the rule conferred a power on us to be utilised in instances such as for example, that which has unfolded before us in the matter herein in order that proceedings commenced in clear violation of mandatory statutory requirements might not escape the scrutiny of the law. It seems to me that this is a useful tool in the hands of the court by which we are enabled to strike down proceedings even though the default in complying with mandatory statutory requirements might have escaped notice in the courts below. It is a weapon that enables us to uphold the rule of law as to do otherwise would have the effect of condoning breaches of statute. The above rule is of considerable standing and one on which there is no conflict of judicial opinion. The judgment of my worthy brother, Date-Bah JSC in the case of Republic v High Court ( Fast Track Division) Accra; Ex-parte National Lottery Authority [2009] SCGLR 390 is an illustration of this rule. At page 402, the learned judge observed as follows:\r\n \r\n"No judge has authority to grant immunity to a party from consequences of breaching an Act of Parliament. But this was the effect of the order granted by the learned judge. The judicial oath enjoins judges to uphold the law rather than condoning breaches of Acts of Parliament by their orders."\r\nThe result is that the appeal herein is dismissed and the action that was commenced\r\nbefore the High Court in the matter herein on 15 November 2006 is also dismissed.\r\n(SGD) N S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) R. C. OWUSU (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) J. V. M. DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) P. BAFFOE BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL\r\nPETER ZWENNES FOR THE PLAINTIFFS! APPELLANTS/APPELLANTS.\r\nMRS. ABENA NTRAKWAH-MENSAH FOR THE DEFENDANTS! RESPONDENTS /RESPONDENTS.\r\n\r\n', '../links/cases/Document (212).pdf', 'Yes', 'OWUSU, JSC, DOTSE,JSC,BONNIE JSC, GBADEGBE, JSC', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Legal practitioners - Recovery of fees - Whether there was compliance with Legal Profession Act 1960 (Act 32) s.30 - Whether defence not raising point of non-compliance constitutes waiver - CI 16 rule 6(7) (b) - Whether non-compliance with rules of court renders action incompetent.</font></b></i><br>', 'DATE-BAH JSC', 'Civil', '', 'J4/24/2011', '', '', 'supreme', '2012-02-01', '');
