INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(522, 'CHRISTIANA QUARTSON --- PETITIONER/APPELLANT/APPELLANT\r\nVRS\r\nPIOUS POPE QUARTSON --- RESPONDENT/RESPONDENT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA, AS.. 2012\r\n\r\n	\r\n\r\nCIVIL APPEAL\r\nNO.14/8/2012\r\n31ST OCTOBER, 2012\r\nCIIRISTIANA QUARTSON	PETITIONER/APPELLANT/APPELLANT YRS\r\nPIOUS POPE QIJARTSON	RESPONDENT/RESPONDENT/RESPONDENT\r\nFatuity Law - 1-lusba rid mid WIiJ'' - Divorce - Property Rights - Matrimonial Home - Principle of Substantial Contribution —Whether performance of wifely duties amounts to substantial contribution— 1992 Constitution, art. 22(2) - What Equities of particular case call for—Company Law— Veil o/ Incorporation - Appropriate person to pay director Jees\r\nJUDGEMENT\r\nANSAII, I.S.C.\r\nThe Petitioner and the Respondent lived together as husband and wife for 25 years. The Petitioner petitioned for divorce, citing unreasonable behavior and adultery and sought the following reliefs:\r\nThat the said marriage he dissolved.\r\nThat the petitioner he granted custody of Perry, the minor child of the\r\nIi I r i age\r\niii.	That the respondent he ordered to vacate matrimonial home\r\n \r\n\r\n\r\n \r\niv.	That the Petitioner be paid a lump sum of C500, 000, 000 (Five Hundred Million cedis) as dissolution settlement\r\nv.	That the Petitioner be given all her director''s fees and allowances as a director of Pious Trading and Construction Company Limited of which the Respondent has coveted as "his" company.\r\nvi.	That the Petition''s [SIC] 40 percentum shares in Pious Trading And Construction Company Limited be quantified and paid to her as part of the marriage settlement.\r\nvii.	That the Respondent be condemned in costs\r\nviii.	That the Petitioner may have such further reliefs as this Honourable Court may deem fit having regard to property rights.\r\nThe respondent cross petitioned and sought the following reliefs:\r\n(a)	That the marriage be dissolved\r\n(b)	That the Respondent be given custody of all the children of the marriage\r\n(c)	That an order be directed to petitioner to vacate from matrimonial house when put up solely from the sweat of Respondent.\r\nThe trial judge dissolved the marriage, but dismissed the Petitioner''s prayer that the Respondent be ordered to vacate the matrimonial home. The court awarded a lump sum of GH C35,000 (Thirty-five ThousandGhana Cedis) instead of the Petitioner''s prayer of GHC50,000. In addition the court awarded the appellant one double plot of land either at the North of Kwesimintsim or Anaji and a Nissan Pathfinder with registration number WR 4141 T. The petitioner was further ordered to vacate the matrimonial home within 30 days.\r\n \r\n\r\n•\r\n \r\nThe petitioner appealed against the trial court''s decision. In the Court of\r\nAppeal, the petitioner''s grounds of appeal were thus,\r\na)	The trial judge erred in ordering the petitioner to vacate the matrimonial\r\nhome within 30 days;\r\nb)	The trial judge erred in not vesting the matrimonial home in the\r\npetitioner;\r\nc)	The trial judge erred in not ordering the respondent to vacate the\r\nmatrimonial home;\r\nd)	The amount of GHC35,000 awarded to the petitioner as financial\r\nsettlement was woefully inadequate considering the circumstances of\r\nthe marriage and the evidence on record;\r\ne)	The trial judge erred in refusing to entertain reliefs (v) and (vi) of the\r\namended petition.\r\nThe Court of Appeal dismissed the appeal, save for awarding an enhanced\r\nfinancial settlement of GHC50,000 (Fifty Thousand Ghana Cedis). The\r\nPetitioner therefore filed the present action on the following grounds:\r\n1.	The Court of Appeal erred in law and occasioned a grave miscarriage of\r\njustice when it held that the matrimonial property was not jointly acquired because the contribution of the Appellant in the form of purchasing building materials and supervising the construction of the Matrimonial property from the foundation level to completion did not constitute substantial contribution.\r\n2.	The Court of Appeal erred and occasioned a grave miscarriage of justice\r\nwhen it held that the Appellant''s contribution to the acquisition of the\r\nmatrimonial home constituted only domestic chores of a wife and\r\ncannot entitle her to an interest in the property.\r\n \r\n\r\n*\r\n \r\n3.	The Court of Appeal erred and occasioned a grievous miscarriage of justice when it held that domestic chores and supervision of the construction of the matrimonial home by the Appellant cannot be qualified in monetary terms or value.\r\n4.	The Court of Appeal erred and occasioned a grave miscarriage of justice when having found that the Appellant was entitled to be settled with a house, nevertheless made an award of GHC15,000.00 which is woefully inadequate to purchase a house befitting the status of the Appellant.\r\n5.	The Court of Appeal erred and occasioned a grave miscarriage of justice when it held that because the Constitution mandated Parliament to legislate a law to regulate the distribution of jointly acquired matrimonial property and Parliament has to date failed to pass such a law the Appellant should bear the brunt of the inaction of Parliament.\r\n6.	The Court of Appeal erred and occasioned a miscarriage of justice when it held that the Respondent was not obligated to transfer to the Appellant the monetary value of 40% of the 100% shares of the Respondent held as part of financial provision.\r\n7.	The Court of Appeal erred and occasioned a miscarriage of justice when it failed to lift the veil of incorporation and found that even though the Appellant was a Director of Pious Trading and Construction Company Limited the Court nevertheless held the Respondent was not under any obligation to pay to the Appellant Directors fees which she is entitled.\r\n8.	Any further grounds of appeal shall be filed upon receipt of the record of appeal.\r\n \r\n\r\n \r\nSubstantial Contribution to Acquisition of Property Acquired During Marriage\r\nGrounds 1 to 5 bring to the fore the issue of what amounts to\r\nsubstantial contribution to the acquisition of property acquired during\r\nmarriage. It would be worthwhile at this stage to mention that Parliament has\r\ntill this day, not enacted legislation to regulate the distribution of jointly\r\nacquired property of spouse upon divorce, as the Constitution mandate. This\r\nfact will be revisited later, but for now it would suffice to mention that due to\r\nParliament''s inaction the courts have, over the years, carved out the principle\r\nof substantial contribution as the litmus test for determining whether or not a\r\ncase can be made for joint ownership of property. The courts have therefore\r\nheld in several cases that substantial financial contribution of a spouse to the\r\nacquisition of property during the subsistence of the marriage would entitle\r\nthat spouse to a share in the property. For example, in Yeboah v. Yeboah\r\n(1974) 2 GLR 114, FI.C. a husband and wife were married under the Marriage\r\nOrdinance, Cap. 127. Before the marriage, the wife had applied for a house\r\nfrom the Housing Corporation. She was allocated a plot of land for which she\r\npaid a deposit. After the marriage, she had the plot of land transferred into\r\nthe name of her husband and the deposit was refunded to her by the\r\ncorporation. The husband then took a loan from his employers to put up a\r\nhouse on the plot. Just as he was about to start constructing the building, the\r\nhusband was transferred to London where he was later joined by the wife. The\r\nconstruction of the building started while the couple were resident in London.\r\nAccording to the wife, during the construction of the house she flew to Ghana\r\nat the request of her husband to supervise the construction. She stated that\r\nshe paid the fare herself. She alleged that she made several structural\r\n \r\nI\r\n \r\nalterations to the building with the knowledge and consent of her husband. The parties returned to Ghana and thereafter the marriage broke down. The husband then served a notice on the wife to quit the matrimonial home on the ground that he required the premises for his own occupation. When the wife failed to quit the premises, the husband then brought an action to eject the wife from the house. Headnote 3 of the court''s holding, per Hayfron-Benjamin J (as he then was) stated thus:\r\n"The wife was a joint owner of the house with the husband because judging from the factors attending the acquisition of the house and the conduct of the parties subsequent to the acquisition, it was clear that they intended to own jointly the matrimonial home." (e.s.) See also Rimmer v. Rimmer [1959] 1 Q.B. 63 and subsequent cases like Abebrese v. Kaah [1976] 2 GLR 46 H.C., Anang v. Tagoe [1989-90] 2 GLR 8 H.C., and Achiampong v. Achiampong [1982-83] G.L.R. 1017 C.A.\r\nIt follows that where a spouse makes substantial financial contribution to the acquisition pursuant to an agreement or inferred intention by the couple that the property acquired should be owned jointly, the court will hold the property to be jointly owned. It is also clear from judicial precedent that what amounts to substantial contribution by a spouse is usually gleaned from the facts of each case. Where the court makes an inference that there an intention or agreement that the contribution made would entitle each spouse to a share of the property, the court would not deny one spouse ownership of the property over the other. The courts were then left to decide, with their discretion and on the facts of the case, in which proportion the joint property would be shared. This would be without prejudice to the fact there might not\r\n \r\n\r\n\r\n \r\nhave been any hard evidence of the exact amount of financial contribution made or in which mathematic proportions the contributions were made. After all, the institution of marriage is not one to which the ordinary incidents of commerce would apply. See Abebrese v. Koch and Anang v. Tagoe supra.\r\nIndeed this position of the law prevailed until this court held in Mensah v. Mensah [1998-99] SCGLR 350 and subsequently in Boafo v. Boafo [2005- 2006] SCGLR 705 that the principle of "equality is equity" is the preferred principle to be applied in the sharing of joint property, unless in the circumstances of a particular case, the equities of the case would demand otherwise. The decisions in Mensah v. Mensah and Boafo v. Boafo supra enjoy constitutional backing for Article 22(3) states thus:\r\n"(3) With the view to achieving the full realisation of the rights referred to in clause (2) of this article —\r\n(a)spouses shall have equal access to property jointly acquired during marriage;\r\n(b)assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage." (es.)\r\nEvidently, the framers of the Constitution intended that there should be no discrimination (particularly against women) in the sharing of joint property. All this apart, the jury was still out on the issue whether the satisfactory\r\nperformance of wifely duties would entitle her to a share in property acquired during marriage, particularly the matrimonial home. Would the performance of these duties amount to substantial contribution albeit in kind, or would they be disregarded? Article 22 (2) enjoins Parliament to "as soon as practicable after the coming into force of this Constitution, enact legislation regulating the\r\n \r\n\r\n \r\nproperty rights of spouses." (es.) It would be useful to reiterate again the regrettable fact that 20 years after the coming into force of the 1992 Constitution, Parliament is yet to give this constitutional requirement the legislative teeth it needs to bite. In the absence of legislative guidelines, the courts have followed the principle laid down in Quartey v. Martey & Anor. (1959) GLR 377, HC per 011ennu J. (as he then was) at 380 thus:\r\n"... by customary law it is a domestic responsibility of a man''s wife and children to assist him in the carrying out of the duties of his station in life, e.g. farming or business. The proceeds of this joint effort of a man and his wife and/or children, and any property which the man acquires with such proceeds, are by customary law the individual property of the man. It is not the joint property of the man and the wife and/or the children. The right of the wife and the children is a right to maintenance and support from the husband and father."\r\nThis principle was clearly behind the reasoning of the trial judge when he held at 248 of the record of appeal as follows:\r\n"There is abundant evidence that indicates that the house was acquired by respondent. He solely contributed all the finances that went into the construction of the building. That is not to say Petitioner did not do anything. She did what any dutiful wife would do. Essentially respondent was outside the Country at the initial sates of the construction of the house and there is abundant evidence to show that he sent down all the money needed for the construction. The Petitioner as a dutiful and responsible wife was responsible for supervision and purchasing of the building materials. She recommendably did what any good wife would do\r\n \r\nunder the circumstance. However, to the extend [SIC], that she did not contribute financially in any way towards the acquisition; I will state that this house was acquired by respondent. It must be pointed out that the fact that a wife has served her husband dutifully, faithfully and responsibly during marriage does not by itself entitle her to a share in the property acquired by the husband. Conversely, the fact that a husband has performed satisfactorily the duties of a husband does not entitle him to a share in the property acquired by the wife during the marriage.\r\nIn the case of Quartey yrs. Martey & Another (1959) GLR\r\n377, 011enu J said in the course of his judgment. " I must hold that in the absence of strong evidence to the contrary, any property a man acquires with the assistance or joint effort of his wife is the individual property of the husband and not the joint property of the husband and the wife." ..." (e.s.)\r\nIt is the view of the court that the principle laid down in Quartey v. Martey, supra cannot be allowed to stand, in this twenty-first century world. Times have changed and society has evolved since 1959. The world is waking up to the fact that women play an all important role in the development of society and this role cannot be whittled away by the inability or difficulty to quantify in financial terms their contribution in the creation of a healthy stable family environment. The respondent in his statement of case invites this court to hold that the appellant has no share in the matrimonial home, in the absence of legislative guidelines. In addressing the court on Ground 5, the respondent argued, inter alia, as follows:\r\n \r\n\r\n \r\n"It is our contention that the provisions of Article 22(2) of the 1992 Constitution are mandatory. If the framers of the Constitution had intended that the judiciary should take up that responsibility by way of judicial law making they would have stated so expressly. Short of that we would be stretching the judicial law making function to the limits if one wants the judiciary to outstep its bounds and assume legislature functions."\r\nThe respondent''s line of reasoning in this appeal appears to be in consonance with the reasoning behind the Court of Appeal''s decision. The Court of Appeal speaking through Marful-Sau J.A. refused to recognize the appellant''s contribution to the construction of the matrimonial home. At 358 of the record of appeal he said as follows:\r\nIn the instant case the appellant from the record did not contribute financially towards the acquisition of the property. The contribution she relied upon is the services she rendered as a wife during the construction of the house. The question I ask again is this; does it amount to a substantial contribution? In other words, what price or commercial value do we ascribe to domestic services rendered by wives in Ghana, like cooking for workmen and supervising workers constructing a house solely funded by a husband? In Ghana this issue, particularly upon dissolution of marriage is still at large in the sense that no legislation has been enacted to commercialise domestic services rendered by wives." (e. s.)\r\nAt 360 the learned Justice of the Court of Appeal continued:\r\n \r\nIn the absence of such legislation in Ghana, I am of the considered opinion that domestic services rendered, however important they may be, for now, cannot amount to a contribution by a spouse in a property acquired through the financial resources of the other spouse. I am of the view that if the courts are left on its own to quantify such domestic services without legislative guidance, the result will be judicial chaos in matrimonial suits." (es.)\r\nIn view of the changing times, it would defy common sense for this court to attempt to wait for Parliament to awaken from its slumber and pass a law regulating the sharing of joint property. As society evolves, a country''s democratic development and the realization of the rights of the citizenry cannot be stunted by the inaction of Parliament. We do not think that this court is usurping the role of Parliament, especially in cases where the inaction of Parliament results in the denial of justice and delay in the realization of constitutional rights. As the appellant put it in ground 4 of her grounds of appeal, the appellant should not be made to bear the brunt of Parliament''s failure to pass a law to regulate distribution of joint matrimonial property. Happily, this court has taken a progressive step and put the matter to rest in Gladys Mensah v. Stephen Mensah, Unreported Suit No: J4/20/2011, dated 15th February, 2012. The court speaking unanimously through my learned brother Dotse J.S.C. held that thus:\r\n"Why did the framers of the Constitution envisage a situation where spouses shall have equal access to property jointly acquired during marriage and also the principle of equitable distribution of assets acquired during marriage upon the dissolution of the marriage?\r\n \r\nWe believe that, common sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner''s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.\r\nThis is so because, it can safely be argued that, the acquisition of the properties were facilitated by the massive assistance that the other spouse derived from the other.\r\nIn such circumstances, it will not only be inequitable, but also unconstitutional as we have just discussed to state that because of the principle of substantial contribution which had been the principle used to determine the distribution of marital property upon dissolution of marriage in the earlier cases decided by the law courts, then the spouse will be denied any share in martial property when it is ascertained that he or she did not make any substantial contributions thereof It was because of the inequalities in the older judicial decisions that we believe informed the Consultative Assembly to include article 22 in the Constitution of the ilth Republic." (e.s.)\r\nWe do not think that this position has the potential of causing judicial chaos on the scale that the learned Justice of the Court of Appeal envisages.\r\n \r\nThe decision in Gladys Mensah v. Stephen Mensah, supra is not to be taken as a blanket ruling that affords spouses unwarranted access to property when it is clear on the evidence that they are not so entitled. Its application and effect will continue to be shaped and defined to cater for the specifics of each case. The ruling, as we see it, should be applied on a case by case basis, with the view to achieving equality in the sharing of marital property. Consequently, the facts of each case would determine the extent to which the judgment applies.\r\nWhat are the facts of the present case? The respondent made a living as a seafarer. His job took him away from home for many years. During these years, the respondent remitted several sums of money for the construction of the matrimonial house. It was the petitioner who solely supervised the construction of the house from the foundation level until the house was completely and satisfactorily built. The evidence also shows that when the respondent was incarcerated in Liverpool, the petitioner took on the responsibility of taking care of their three children. The appellant does not dispute that the house was constructed solely from the funds of the respondents. That notwithstanding, she invites this court to hold that her contributions in kind, namely her diligent supervision of the construction of the matrimonial home entitle her at least, to an equal share of the matrimonial home. The respondent on his part claims sole ownership of the matrimonial home as his self acquired property. We must point out at this point that the respondent contented in the courts below that he intended to make anadvancement to his son. Even though this claim does not form part of the grounds of this appeal, it must be stated that the respondent''s claim of advancement cannot hold water in view of the evidence on the record. The presumption of advancement is itself capable of rebuttal if the evidence shows that the person paying the money did not intend to forgo his beneficial\r\n \r\ninterest. In this case, the circumstances of the respondent''s posturing leading to the acquisition of the house did support an intention to forgo his interest in the house. The respondent clearly showed by his conduct anterior to the so- called advancement that he was building the house to his taste and for his own purposes and the involvement of his children was based on what should happen after and not before his death.\r\nIt is our opinion that on the strength of Gladys Mensah v. Stephen\r\nMensah supra, the wife would be entitled on a share of the value of the matrimonial home. The evidence is abundantly clear that she performed her supervisory tasks over the building of the house satisfactorily. Even though she was a housewife, she single-handedly took charge of the household when her husband, the appellant, was incarcerated for years in Liverpool. We would agree with the reasoning in Gladys Mensah v. Stephen Mensah supra, that the inability to adequately quantify the appellant''s wifely assistance towards the construction and upkeep of the matrimonial home does not in itself bar her from an equitable sharing of the matrimonial property.\r\nIn view of our conclusion above, it is our view that the appellant''s property rights were not adequately considered by the Court of Appeal. We would disagree with the Court of Appeal in so far as it held that the appellant had no interest at all in the matrimonial property. It must be noted that this court has taken into account the equality principle laid down in Mensah v. Mensah and Boafo v. Boafo, supra. However, as Date-Bah JSC held in Boafo v. Boafo supra, the equality principle may be waived if in the circumstances of a particular case, the equities of the case would demand otherwise. We think that the equities of this particular case do not call for a half and half sharing of the marital home. Grounds 1 to 5 are therefore upheld.\r\n \r\nGrounds 6 and 7\r\nThe appellant seeks a declaration from this court that she is entitled to directors'' fees and dividends from Pious Trading and Construction Company Limited. The law on the separate legal personality of companies vis-à-vis the personality of the directors and shareholders, is trite. This court would follow the reasoning of a long line of cases beginning with Salomon v. Salomon [1897] A.C. 22, H.L. that a company has separate legal personality and unless certain exceptions can be shown, the court is reluctant to lift that veil of incorporation,\r\nsee Morkor v. Kuma (East Coast Fisheries Case) [1998-99] SCGLR 620. The\r\nappellant here has not shown that this case can be brought under any of the allowed exceptions that warrant the lifting of the corporate veil. The proper person for an action for directors'' fees and dividends would be the company, Pious Trading and Construction Company Ltd and not Pious Pope Quartson himself. In effect, grounds 6 and 7 would fail.\r\nWe therefore disaffirm the holding of the courts below regarding the wife''s interest in the matrimonial home. The award of GHC50,000.00 was meant to enable her build a house but the petitioner must have some money to live on whilst she reorganizes her life. We therefore award a further financial settlement of GHC15, 000.00 in addition to the award of the Court of Appeal''s GF-1C50, 000.00, thus making a total of GHC65, 000.00, for the appellant. The petitioner''s claim is hereby amended accordingly. The petitioner''s interest in the matrimonial home is adequately covered and reflected in the award of the double plot of land to her by the courts below.\r\nThe appeal is therefore allowed in part, to the extent of this court''s holding.\r\n \r\nISGDI J. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\nISGDI	W. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\nISGDI	R. C. OWUSU\r\nJUSTICE OF THE SUPREME COURT\r\nISGDI	ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\nISGDI N. S. GI3ADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL; \r\nNENE AMEGATCHER ( WITH HIM ISAAC OFOSU-BOATENG) FOR THE PETITIONER/APPELLANT/APPELLANT.\r\nKOJO KUM FOR THE RESPONDENT/RESPONDENT/RESPONDENT.\r\n)	)(	k)c\r\n', '../links/cases/Document (124).pdf', 'Yes', 'ANSAH,J.S.C, OWUSU (MS.),J.S.C., ANIN-YEBOAH, J.S.C., GBADEGBE, J.S.C', '2012', 'supreme', '<b><font face="Times New Roman" size="2">Family Law - Husband and Wife - Divorce - Property Rights - Matrimonial Home - Principle of Substantial Contribution - Whether performance of wifely duties amounts to substantial contribution - 1992 Constitution,art. 22(2) - What Equities of particular case call for - Company Law - Veil of Incorporation - Appropriate person to pay director fees. </font></b><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J4/8/2012', '', '', 'supreme', '2012-10-31', ''),
(523, 'AFRICAN AUTOMOBILE LIMITED --- PLAINTIFF/APPELLANT/APPELLANT\r\nVRS\r\nTHE ATTORNEY - GENERAL --- DEFENDANT/RESPONDENT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCORAM:	DATE-BAlI jSC (PRESIDING)\r\nANSAI-I JSC\r\nDOTSE JSC\r\nBONNIE JSC\r\nBAMFO (MRS) JSC\r\nCIVIL APPEAL\r\n14/23/2012 6TH JUNE 2012\r\nAFRICAN AUTOMOBILE LIMITED - PLAINTIFF/APPELLANT/APPELLANT V E ItS US\r\nTHE ATTORNEY-GENERAL - DEFENDANT/RESPONDENT/RESPONDENT\r\nContract - Acceptance —Whether evidence of referee is binding - Conclusion of contract a matter of law for judge to determine - Prescribed mode of communicating acceptance should be adhered to - Order Jr payment oJ interest using Court (Award of Interest and Post Judgmen tin terest) Rules, 2005 (Cl 52) Rules land 2\r\nIUDGMENT\r\n \r\nDR. DATE-BAH JSC \r\nThis is an action brought by a car dealer in respect of outstanding sums owed it for the servicing of the motor vehicles of the Ministry of Information. While the fact of the plaintiff''s services having been rendered to it was admitted by the Ministry, there was an issue as to the exact sum due and the interest rate to be applied in relation to the unpaid indebtedness.\r\nThe plaintiff in its Statement of Claim, filed on 31st January 2008, averred that, by\r\na letter of 27th January 1997, it had accepted the Ministry''s request for a credit\r\nfacility and entered into an agreement with the defendants regarding the sale and servicing of motor vehicles by it. This averment was denied by the defendant when he eventually filed his Statement of Defence, on 10th July 2008, after succeeding in setting aside a judgment in default of defence, which had meanwhile been entered against him. After the close of pleadings, the two issues set down for trial were:\r\n1.	"Whether or not Plaintiffs and Defendants have any credit\r\nagreement with any mode of calculating interest upon default.\r\n2.	Whether or not Defendants are indebted to Plaintiffs."\r\nAt the trial before the learned trial High Court Judge, Her Ladyship Justice Torkornoo of the Commercial Division of the High Court, evidence was heard from the plaintiff''s witness and a referee who had been appointed, during the pre-trial settlement stage of the proceedings, by the Court to enquire into the accounting differences between the parties. However, the defendant offered no evidence and did not participate in the trial, although he had notice of it.\r\n \r\n2\r\n \r\nIn her judgment after the trial, the learned High Court judge held that the plaintiff had failed to prove the terms of any credible agreement with the Ministry which should lead to the sum claimed. In the plaintiff''s writ, its claim was for "recovery of the sum of GH 14,174,693.12 being outstanding sums owed Plaintiff as at 31st January 2008" and interest on the sums from date of judgment until date of final payment. Lecturn\r\nAt the trial, one Harrison Teye testified for the plaintiff that it had sold motor vehicles to the Ministry and provided it with after sales service. He indicated that the sale of motor vehicles was for cash, while the after sales service was on credit basis covered by an agreement. He claimed that the credit facility agreement was in writing and the Ministry had accepted it. He tendered this alleged credit facility agreement into evidence as Exhibit A. He also tendered as Exhibit B an alleged acceptance of the credit facility agreement by the Ministry. Exhibit A is a letter dated 25th March 1991 addressed to the Chief Director, Ministry of Information and thus different from the letter referred to in the Plaintiff''s Statement of Claim. It stated that it was intended to reiterate a particular term of a credit facility which the Ministry was currently enjoying from the plaintiff as follows:\r\n"All credit customers must settle their accounts fully by the 15th of the month following that during which the service was provided."\r\nIt went on to indicate that in view of the high interest charge on bank credit, the plaintiff had decided that it would pass on the cost of credit (compound) to all customers who failed to perform in accordance with its credit terms. It then set out the interest rates the plaintiff would apply to defaulting customers as follows:\r\n \r\n3\r\n \r\na)	"Interest rate on the outstanding amount at the end of each month 3%.\r\nb)	Loss of use of the outstanding amount 4%.\r\nc)	Bank and other expenses 0.5%."\r\nThe last paragraph of the letter was in the following terms:\r\n"Kindly confirm your acceptance of the above by signing, dating and stamping the copy of this letter attached hereto as your facility is being withheld tilt receipt of your confirmation."\r\nThe evidence shows that the Ministry never signed, dated and stamped a copy of Exhibit A. Rather, the evidence given of its alleged acceptance of the plaintiff''s offer of credit terms was in the shape of Exhibit B. On these facts, the learned trial High Court judge held that no contract had been established on the credit terms alleged to be binding on the defendant. She said (at pp. 47-48 of the Record):\r\n"My understanding of the plaintiff''s witness''s evidence is that the sum presented to this court was calculated from the terms outlined in exhibit A. But a cursory look at exhibit A shows that it is a letter communicating a unilateral decision on how bills to customers would be calculated and requesting that acceptance of the terms should be indicated by signing, dating and stamping a copy of the same (this) letter attached.\r\nNo such copy of the same letter signed, dated and stamped was presented showing acceptance of the terms urged on me as indicating a contract. Indeed, exhibit B is in no way a copy of exhibit A. It is a short note saying\r\n \r\nrill\r\n \r\n''we confirm our acceptance of the terms of the above credit facility as outlined therein''. Is it a response to exhibit A? There is no date on exhibit B. It could easily be a response to a different document because the clearly outlined response required by exhibit A to make it a contract is a signing of the same letter that exhibit A is."\r\nHer conclusion that no contract had been formed on the basis of Exhibit A was\r\naffirmed by the Court of Appeal. Ofoe JA said in the Court of Appeal (at pp. 193-\r\n4)\r\n"Exhibit B is an undated letter which is purported to have been issued by the defendant. Not only is this communication not on the defendant''s ministry letter head, as should normally be the case, but it is also unsigned. On Exhibit B are certain signatures which henceforth were to be the only recognized signatures by the plaintiff in any future dealings with the defendant. The letter also stated that all invoices, debit notes, statement of account were to be sent to the Ag. Chief Director. The trial judge refused to give any authenticity to this letter. I think there was sufficient evidence on record for the trial judge to have reasoned the way she did refusing authenticity and any weight to Exhibit B. These are findings of fact supportable by the evidence an appellate court like ours has no legal mandate to subvert."\r\nFurthermore, the learned trial judge pointed out that Exhibit A was dated 1991, at which time the Ministry''s indebtedness was 2,689,261.50 cedis. However, the agreement from which the indebtedness claimed under the current action was supposed to have arisen was entered into in 1997. She further drew attention to\r\n \r\n5\r\n \r\nthe fact that the records of indebtedness submitted by the plaintiff to the referee appointed by the court started from 1994. She accordingly concluded perfectly logically that the debt standing at the end of 1994, amounting to 132,233.00 old cedis, had nothing to do with the letter of 1991. Her decision that the plaintiff had failed to establish any agreement that allowed it to apply the alleged interest rates set out in Exhibit A to the debts outlined in the report of the referee was thus unexceptionable.\r\nThe learned trial judge did, however, find that the defendant had used the plaintiff''s services between January 1994 and November 1998 and incurred a bill of 19,406,371 cedis. Some payments had been made, leaving a balance of 15,636,482.00 cedis as at 15th April 1999. Since there was no evidence of payment of that debt, she ordered defendant to pay the outstanding debt of 1,563.64 Ghana cedis with interest on it at the prevailing commercial banking interest rate from April 1999 to date of final payment.\r\nDissatisfied by the judgment of the learned trial judge, the plaintiff appealed to the Court of Appeal which unanimously dismissed the appeal. It is from this decision of the Court of Appeal that the plaintiff has further appealed to this Court on the following grounds:\r\na)	"The judgment is against the weight of evidence.\r\nb)	The Learned Justices of the Court of Appeal erred when they failed to appreciate on the evidence before them that the basis of Plaintiffs'' claim was a valid and "credible Contract".\r\nc)	The Court erred in Law on the evidence before her when she failed to properly consider and construe Exhibit B as an integral part of Exhibit\r\n \r\n6\r\n \r\nA and which exhibits collectively form the Agreement or Contract between the Parties.\r\nd)	The Court of Appeal erred when she affirmed the findings of the Trial Court setting up a case for the Defendant/Respondent to the extent that Exhibit B being undated and not appearing on an official Letterhead of 1 Defendant/Respondent was invalid.\r\ne)	The Court erred in Law when she failed to consider and appreciate the import of the evidence contained in the Court Experts'' Report ie Exhibit CW1 and disabled herself thereby from arriving at a proper conclusion relative to Plaintiff/Appellant/Appellant''s claim.\r\nf)	The Court further erred in Law when she set up a case for the Defendant/Respondent/Respondents on interest calculation despite the existence of Exhibits ''A'' and''B''.\r\ng)	The Court patently erred in affirming the decision of the Court below, in which despite clear and ambiguous (sic) admissions of the debt by the Defendant/Respondent/Respondents, the Court below found otherwise.\r\nh)	The Court patently erred in affirming the findings of the Court below to the effect that the Plaintiff/Appellant/Appellants'' claim was unproven.\r\ni)	The Court exceeded her jurisdiction and breached the Rules of Natural Justice thereby when in the absence of any evidence on record found that there had been a collusion between the Parties in relation to Plaintiff''s claim."\r\n''A\r\n\r\n \r\nThe appellant argued grounds (a) to (d) together. It complained that both the trial court and the Court of Appeal had set up a case for the defendant that he himself had not made, in that he had not denied that there was an agreement covering the transactions between the parties. The appellant argued that Exhibits A and B did constitute a valid enforceable contract and therefore the trial court''s calculation of interest on the outstanding debt on the basis of simple interest was in error and should not have been affirmed by the Court of Appeal.\r\nThe appellant expressed dissatisfaction with the following passage from Ofoe JA''s\r\njudgment (at p. 194 of the Record):\r\n"Having rejected the existence of any contract based on Exhibits A and B the rate of calculating the interest at compound interest, as specified in Exhibit A, was inapplicable to the debt owed the Plaintiff by the Defendant. Such conclusion necessarily flows from the rejection of the contention of the Plaintiff that it has a contract based on Exhibits A and B. I think it is necessary at this point to clarify this position of the jurisdiction of Mr. Korley in the assignment that was given him by the Court. As earlier mentioned the Court set itself issues for trial which included whether there was any credit agreement between the parties. This issue is a purely legal issue not meant and can''t be for the determination of Mr. Korley, the court witness. The Court can''t shirk its statutory responsibility in determining this issue to Mr. Korley. The trial judge was therefore right in ignoring the computation of Mr. Korley whose total figure was based on his believe (sic) that Exhibits A and B constituted a\r\n8\r\n \r\ncontract between the parties. Whether there was a concluded contract between the parties based on Exhibits A and B is for the court to determine and not Mr. Korley."\r\nThe appellant contends that, given the evidence of Mr. Korley, the referee appointed by the Court, and of the plaintiff''s witness at the trial, the evidence on record did not support the finding of the courts below that the plaintiff/appellant/appellant''s claim had not been established. The appellant states in its Statement of Case that:\r\n"It is therefore our respectful submission that the Court of Appeal rather erred in affirming the finding that the claim was not substantiated by ignoring the evidence of both PW1 and that of the referee on the debt."\r\nThis submission misses the point of Ofoe JA''s analysis in the passage from his judgment quoted above. His point indeed is that the interpretation of facts to determine whether they result in the conclusion of a contract is a matter of law for a judge to undertake. Accordingly, the assumption by the referee that Exhibits A and B resulted in a contract and therefore their terms were to be applied to the calculation of interest on the indebtedness he ascertained was not binding on the trial court nor on the Court of Appeal. He was correct in this analysis. In these circumstances, the issue which calls for discussion is whether indeed Exhibits A and B do constitute a contract.\r\nThe last paragraph of Exhibit A, which was earlier quoted in this judgment, has clear words which prescribe the mode of communication of the offeree''s acceptance of the plaintiff''s offer. Given those clear words and the absence of\r\n9\r\n\r\n \r\nany evidence of waiver by the offeror regarding the prescribed mode of communicating acceptance, that mode of communication was binding and the learned trial judge was justified in disregarding any purported acceptance which did not conform to the prescribed mode of communication. We would thus uphold the legal conclusion of the learned trial judge that Exhibits A and B did not result in the formation of a contract. There being, accordingly, no contractually determined interest rate applicable to the indebtedness of the Ministry that had been established on the evidence, it was reasonable for the learned trial judge to order the payment of interest on it at the prevailing commercial banking interest rate from April 1999 to date of final payment, which is what the provisions of the Court (Award of Interest and Post Judgment Interest) Rules, 2005 (Cl 52) authorize her to do (See rules 1 and 2 of Cl 52). The Court of Appeal did not, therefore, err in affirming her decision on this issue.\r\nThe appellant''s argument on grounds (e), (f), (g) and (h) is similar to that already examined. It again relies on Exhibits A and B being construed as forming a contract. It notes that under Rule 1 of the Court (Award of Interest and Post Judgment Interest) Rules, 2005 (CI 52), if the parties specify a rate of interest which is to be calculated in a particular manner, then the court shall award that rate of interest calculated in that particular manner. Of course, this argument also falls down, once this Court affirms, as it has done above, the Court of Appeal''s approval of the learned trial judge''s conclusion that Exhibits A and B did not constitute a contract.\r\n10\r\n \r\nThe final ground argued by the appellant was ground (I). Under this ground, the appellant complained about the following passage from the judgment of Appau JA:\r\n"The names of the Ag. Chief Director and the Deputy (with their alleged specimen signatures) were merely inserted in the letter as persons who would sign for and on behalf of the 1 defendant/respondent without indicating who the author of the letter was. On the face, Exhibit ''B'' appears fake and unauthentic. I cannot therefore fathom how the Attorney General''s office could gloss over the serious defects in Exhibit B and commit the State to the payment of the whopping sum of over 14 million Ghana cedis on mere maintenance and servicing of 1st defendant/respondents vehicles when on the evidence, plaintiff was not entitled to that sum."\r\nThe appellant maintained that there was not a shred of evidence to suggest that Exhibit B was "fake and unauthentic." It also pointed out that the defendant had not raised any query about the authenticity of Exhibit B. The appellant then continued to deny that there was any collusion between the parties. It will be recalled that ground (i) was as follows: "The Court exceeded her jurisdiction and breached the Rules of Natural Justice thereby when in the absence of any evidence on record found that there had been a collusion between the Parties in relation to Plaintiff''s claim."\r\n \r\n11\r\n \r\nThis claim of collusion arises from the assertion in the judgment of the learned trial judge that a representative of the defendant had indicated before her a willingness to submit to judgment in the sum of 14,174,693.12 Ghana cedis. This is what she said (at p. 47 of the Record):\r\n"Before judgment could be given, the Attorney-General''s representative reappeared, and said that the State wished to submit to judgment in the sum of 14,174,693.12 Ghana cedis being what was entered as default judgment. My understanding of my role as a judge is that I am required to give judgment on the evidence laid before me and not as directed by the parties. I have a duty to implement the ethic of competence, which requires adjudication based on evaluation of evidence. Instead of entering judgment as submitted by the State, I have chosen to examine the evidence and give my judgment based on the evidence."\r\nApart from this assertion in the judgment of the learned trial judge, however, we have not found any record in the Record of Appeal of this attempt by the State to submit to judgment. Either the record is incomplete or the learned trial judge neglected to make a record of that incident.\r\nIn our view, however, neither this incident nor the imputation of collusion alleged by the appellant has a determinative effect on the success of this appeal. This is because they make no difference to the central analysis of the learned trial judge, which was affirmed by the Court of Appeal, namely that Exhibits A and B did not result in a contract because there was no effective acceptance of the offer made\r\n \r\n12\r\n \r\nby the plaintiff. Accordingly, the following concluding plea of the appellant in its Statement of Case cannot succeed:\r\n"In reality, my Lords, we wish to submit that the finding of collusion as well as the derogatory remarks made about Exhibit ''B'' to the effect that it is "fake and unauthentic" is not borne out by the evidence on record and it is respectfully submitted thus that the judgment based on these ought to be set aside and this ground of appeal allowed."\r\nAccordingly, all the grounds argued by the appellant are dismissed. However, before concluding this judgment, we need to advert to an issue that was raised by the respondent in his Statement of Case. Although we have held above that the alleged agreement between the parties on interest calculation was not a binding contract, the respondent nevertheless claimed that the purported agreement was a loan agreement within the purview of Article 181(3) of the 1992 Constitution and without Parliamentary approval it was invalid. Having held that the purported agreement was not a binding contract, there is no need to deal with this constitutional issue fully. However, it is worth pointing out that the extension of credit facilities to a government Ministry in relation to services rendered to that Ministry is not, in our view, equivalent to a loan.\r\nThe appeal is dismissed and the judgment of the Court of Appeal affirmed.\r\n13\r\n\r\n \r\n(SGD)	DR. S. K. DATE- BAH\r\n \r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	J. ANSAH\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\n(SGD) V. AKOTO-BAMFO (MRS)\r\nJUSTICE OF THE SUPREME COURT\r\n \r\nCOUNSEL.\r\nADDO ATUAH FOR THE APELLANT.\r\nPEARL AKIWUMI SIRIBOUR ( PRINCIPAL STATE ATTORNEY ) WITH MRS. YVONNE AWOONOR-WILLIAMS (ASSISTANT STATE ATTORNEY) FOR THE RESPONDENT.\r\n14\r\n', '../links/cases/Document (123).pdf', 'Yes', 'ANSAH JSC, DOTSE JSC, BONNIE JSC, BAMFO (MRS.) JSC', '2012', 'supreme', '<b><font face="Times New Roman" size="2">Contract - Acceptance - Whether evidence of referee is binding - Conclusion of contract a matter of law for judge to determine - Prescribed mode of communicating acceptance should be adhered to - Order for payment of interest using Court (Award of Interest and Post Judgment Interest) Rules,2005 (CI 52) Rules 1 and 2.</font></b><br>', 'DATE-BAH JSC', 'Civil', '', 'J4/23/2012', '', '', 'supreme', '2012-06-06', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(524, 'GLADYS MENSAH  --- PETITIONER/RESPONDENT/RESPONDENT\r\nVRS\r\nSTEPHEN MENSAH  --- RESPONDENT/APPELLANT/APPELLANT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA, A.D. 2012\r\nCIVIL APPEAL\r\nNQJ4/20/2011\r\n22ND FEBRUARY, 2012\r\n\r\n	\r\n\r\nGLADYS MENSAH	PETITIONER/ RESPONDENT/RESPONDENT VRS\r\nSTEPHEN MENSAH	RESPONDENT/APPELLANT/APPELLANT\r\nFamily Law - husband arid Wile —Divorce —Distribution of Property acquired duriiq the subsistence oJ marriage —Principle of distribution of marital property - Wife entitled to an (J(finI share of In	due to the Equality principle —Constitution 1992,  arts, 22(3) and :33(5) - Matrimonial Causes Act 1971, s 20\r\nEvidence - Burden oJ/)iOof— Disciicitqe of burden —Onus oil	to adduce evidence —Failure to do so riot a bar to using respondent''s evidence —Evidence Act 1975, ss /0 and 14\r\nJUDGEMENT JONES DOTSE JSC\r\nLord Donning in his hook, "Landmarks in the Law" Butterworths, 1954, writes at page 176 "oil	in attitude of the British people to Divorce" as follows:\r\n"There is no longer any binding knot for marriage. There is only a loose piece of string which the parties can untie at will. Divorce is not a stigma. It has become respectable. One parent families abound."\r\n \r\n\r\n\r\n \r\nThe above quotation can equally be said to be applicable to the Ghanaian society as well.\r\nIn the instant case since the parties are not contesting the issue of divorce, but only devolution of property acquired during the subsistence of the marriage upon divorce, we will focus our attention to those issues.\r\nWhat then are the facts in this case? In view of the importance that this court attaches to the legal and constitutional issues determinable in this case, we have considered it worthwhile to narrate in great detail, not only the facts of the case, but the reasons behind the trial court decision as well as the dismissal of the appeal by the Court of Appeal.\r\nThis will necessarily lead to a discussion of the principles upon which concurrent findings of fact by a trial and first appellate court can be set aside or departed from by this court, i.e. second appellate court, as we have indeed being requested to do.\r\nFACTS\r\nThis is an appeal from the judgment of the Court of Appeal dated 23/7/2009 which affirmed the judgment of the High Court dated the 31st January 2003. In a petition filed on the 20th of April 2000, the Petitioner/Respondent/Respondent (hereinafter Petitioner) averred that she and the Respondent/Appellant/Appellant (hereinafter Respondent) were married under customary law in March of 1989 and converted to a marriage under the Ordinance in June of 1989. It however emerged from the evidence that the parities got married in 1987. About a decade after the celebration of this union, cracks started appearing in the marriage with the Petitioner accusing the Respondent of acts of infidelity which culminated in the Respondent moving into their jointly acquired home in Adenta with his illicit lover giving credence to the Petitioner''s allegations. After diligent efforts at reconciliation had failed, the Petitioner filed her petition for divorce at\r\nthe High Court.\r\nThat the parties also acquired substantial assets during the subsistence of the marriage cannot be under emphasised. These the Petitioner listed in her petition\r\nas follows;\r\n1.	Unnumbered three bedroom house at Kasoa\r\n2\r\n\r\n \r\n\r\n\r\n \r\n2.	Unnumbered six bedroom house at Adenta\r\n3.	Unnumbered four bedroom house at Krobo Odumasi\r\n4.	Unnumbered three bedroom house on Spintex Road\r\n5.	Vacant plots of land at Adenta\r\n6.	One and half vacant plot of land at Krobo Odumasi\r\n7.	Shares in Guidem Company Ltd.\r\n8.	Shares in shop on the Airport El-Wak Road\r\n9.	Nissan Patrol GT 618 E\r\n10.	Nissan Sunny GT 1073 D\r\n11.	Pick-Up GT 3240 P\r\n12.	Opel GT 9414 Q\r\n13.	20 feet Container\r\n14.	SSB Tudu Branch Current Account No. 120769006.\r\nThe Petitioner therefore prayed for a dissolution of the marriage and for the assets jointly acquired to be shared equally. It is the distribution of these assets, which the trial Court found to have been jointly acquired that has led to the present appeal.\r\nEVALUATION OF EVIDENCE AND DECISION OF TRIAL COURT\r\nBefore coming to that conclusion, the trial judge painstakingly set out the evidence she had received and after reviewing the evidence determined that the issue to be resolved was whether or not the petitioner is a joint owner of the property and is therefore entitled to her claim of 50% share in them.\r\nThe evidence was that before the Petitioner married the Respondent, she used to trade in rice, sugar and groundnuts at the Odumase Krobo Market. After marriage she moved to Accra with the Respondent, then a junior accounts officer at the Controller and Accountant General''s Department.\r\n3\r\n \r\nI\r\n\r\n \r\nThey both did not own any properties and lived in rented premises at La. At the weekends, they would go to Krobo to farm and plant cassava. After processing the harvested cassava into gari, the petitioner realised 600,000 cedis which she used as capital for trading. She traded in palm oil and travelled to various towns and villages to buy palm oil. Aside from this, she also traded in cooking oil, rice and sugar from their house at La. Respondent also sold some of these items to his co-workers in the office. She also at a point in time took some money from her father to reinvest in their business. Gradually, they built up their business and from the proceeds, bought their first landed property at Kasoa, on which they put up a three bedroom house. As the business expanded, they acquired a shop at the Ministries and petitioner managed the shop whilst the Respondent continued working at the Controller and Account-General''s Department. As the business continued to boom, the parties diversified to other products, including electrical appliances like fridges, TV, deep freezers etc. They also sold cloth, vegetable oil and bicycles. The Respondent arranged for these items from their suppliers on credit.\r\nThey also got their customers from the Respondent''s co-workers, mostly on credit basis. This was deducted at source from their salaries. All cash which was realised from sales was recorded into a book by the sales assistants, which the petitioner took home to the Respondent. He would check the cash and if it tallies with the amount in the book, he would sign against it. It was the Respondent who handled the accounts of the business. He also paid himself 500,000 cedis and paid the petitioner nothing.\r\nBoth the Petitioner and the Respondent were members of a susu group and Petitioner bought her personal items with the returns from the susu contribution. They also invested in Pyram and made healthy profits from there which they ploughed back into their business.\r\nAt the peak of their business, they were making between 150 million and 300 million a month. The Petitioner therefore advised the Respondent to acquire landed properties as an investment. The Respondent agreed and allowed the Petitioner to keep a third of all cash deposits towards this acquisition.\r\n4\r\n \r\nThe Petitioner it seems was very astute and acquired the Adenta and Krobo Odumase properties on which she built houses. They also acquired a number of vehicles and the first vehicle, a pick-up was bought with part of her susu contributions and part of the business proceeds. Subsequent vehicles and properties were acquired from the proceeds of the business they run together.\r\nThe Respondent however denied that the Petitioner made any contribution to the business. According to him the Petitioner was a housewife and never worked to make a living. She had also embezzled money from him which resulted in the loss of his capital and he was compelled to go for a bank loan to recapitalise his business.\r\nThe Petitioner called no witnesses in support of her case but the Respondent called five witnesses. The trial judge however found the evidence of the petitioner more convincing than that of the Respondent and the reason she alluded to for so finding were that even though the Respondent had maintained throughout the trial that the Petitioner never worked during the decade the marriage lasted, his own witnesses contradicted him. The judge also made the finding that the Respondent''s own evidence supported the fact that the Petitioner supervised the running of the shop and also worked in the shop. The judge further made the finding that the Respondents 4th and 5th witnesses were "serious liars" bent on throwing dust into the court''s eyes. Besides, when the Respondent claimed that he took a loan to recapitalise the business after the Petitioner had drained off all the monies, the judge made the finding that the loan was applied for long after the petition had been filed. Further, the Respondent claimed he had acquired the Spintex property with the bank loan. Again the judge found that the property had been acquired long before the loan was contracted and concluded that the property was acquired with proceeds from the business. The judge further found that the Respondent had not been entirely honest when he stated that he did not sign Exhibit C2 which was the document on the Krobo Property.\r\nHe had indeed appended his signature on the document and this led the trial judge to conclude that the parties intended the property to be joint property.\r\n5\r\n \r\nI\r\n\r\n \r\nBased on the above facts and findings, the learned trial Judge delivered judgment in favor of the Petitioner. Aggrieved by the decision of the trial High Court, the Respondent filed an appeal to the Court of Appeal. As was to be expected, the Court of Appeal in a unanimous decision dismissed the Respondent''s appeal.\r\nIt is against this Court of Appeal decision that the Respondent has appealed to this court based on the following grounds of appeal.\r\nGROUNDS OF APPEAL\r\nThe Respondent''s grounds of Appeal are stated as follows:\r\na.	The Court of Appeal failed to consider adequately the evidence of the Respondent and placed unnecessary weight on the evidence of the Petitioner.\r\nb.	Exhibits 7 and 7A having been admitted, the court erred in assessing the amount to be paid to the Petitioner as her share of the profits.\r\nc.	Since the Respondent''s company was a limited liability company and thus a legal entity, the court erred in ordering payment out of its profits without regard to the interests of the other shareholders of the company.\r\nISSUES FOR DETERMINATION\r\nWe have perused the statement of case of the parties. From the arguments contained in the Statements of case by the parties, the following issue stands out as the main issue for determination, although there are some other ancillary issues. This is:\r\nWhether the equality principle used by the trial and appellate courts in the distribution of the martial property acquired during the marriage following the dissolution of the marriage between the parties is sustainable under the current state of the laws in Ghana based on the available evidence on record.\r\n6\r\n \r\nIn determining this issue, matters as to whether the trial and appellate court correctly evaluated the evidence of the Petitioner by applying to it the proper rules of the Evidence Act, 1975 NRCD 323 and whether the courts below correctly awarded the lump sum payments out of accounts of a limited liability company on statement of accounts that are not as healthy as the Petitioner made the court to believe, reference exhibits 7 and 7a are consistent with the evidence on record.\r\nCONSTITUTIONAL PROVISIONS OF SHARING MARITAL PROPERTIES ON DIVORCE\r\nIn view of the effect some provisions of the Constitution 1992 will have on this case, we deem it expedient to set out these provisions in extenso.\r\n	1.	Article 22 (2)\r\n(2)	"Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses. "and\r\n(3)	"With a view to achieving the full realization of the rights referred to in clause (2) of this article\r\n(a)	Spouses shall have equal access to property jointly acquired during marriage.\r\n(b)	Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage."\r\n	2.	Article 33(5)\r\n"The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as exduding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man."\r\n \r\n''4\r\n \r\n\r\n\r\n \r\nFrom the above provisions of the Constitution, it means that, the framers of the Constitution mandated the Parliament to enact relevant legislation to regulate the property rights of spouses.\r\nIt is a sad reflection that since 7th January 1993 when this 4th Republican Constitution came into force, the above directive has as yet not been complied with.\r\nSuffice it to be that, there is now before Parliament, a Bill in fulfillment of this article 22 (2) of the Constitution.\r\nIt is also important to note that article 22 (3) (a) & (b) give an inkling of what the said legislation should contain. For instance it is quite clear from these provisions that the principle of having equal access to property acquired during marriage and that of equitable distribution of property upon dissolution of the marriage have been espoused.\r\nIn view of the pride of place that our Constitution has in the sources of law in Ghana, reference article 11 (1) of the Constitution 1992, such fundamental philosophical principles which underpin distribution of marital property acquired during the subsistence of a marriage upon its dissolution should not be glossed over. This constitutional principle is similar to the emerging principle of "Jurisprudence of Equality"which is now applicable in issues concerning gender affairs. We will revert to this principle of Jurisprudence of Equality later.\r\nFurthermore, the provisions spelt out in article 33 (5) re-enforce the guarantee and protection of all the fundamental human rights contained in chapter 5 of the Constitution 1992 including the property rights of women, economic rights, cultural rights and practices and general fundamental freedoms and others.\r\nThere is this proviso also in article 33 (5) which enjoins the courts in Ghana to look at other rights not specifically mentioned but which are considered to be part and parcel of an emerging democratic state intended to secure the freedom and dignity of man, and this includes the opposite, woman.\r\n8\r\n \r\nAPPLICABLE GUIDELINES ON SHARING MARITAL PROPERTIES\r\nThis judgment will accordingly be discussed in line with these and other international laws and conventions which give or are designed to bring honour and dignity to spouses in cases of dissolution of the marriage.\r\nWhy did the framers of the Constitution envisage a situation where spouses shall have equal access to property jointly acquired during marriage and also the principle of equitable distribution of assets acquired during marriage upon the dissolution of the marriage?\r\nWe believe that, common sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner''s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.\r\nThis is so because, it can safely be argued that, the acquisition of the properties were facilitated by the massive assistance that the other spouse derived from the other.\r\nIn such circumstances, it will not only be inequitable, but also unconstitutional as we have just discussed to state that because of the principle of substantial contribution which had been the principle used to determine the distribution of marital property upon dissolution of marriage in the earlier cases decided by the law courts, then the spouse will be denied any share in marital property, when it is ascertained that he or she did not make any substantial contributions thereof.\r\nIt was because of the inequalities in the older judicial decisions that we believe informed the Consultative Assembly to include article 22 in the Constitution of the 4th Republic.\r\n9\r\n \r\nWe shall revert to a discussion of some of the older cases spanning the period 1959 to 2005 i.e. from the cases of Quartey v Martey [1959] GLR 377 to Boafo v Boafo [2005-2006] SCGLR 705 which to me is to be regarded as the locus classicus and a restatement of the law on distribution of marital\r\nproperty acquired during the subsistence of the marriage upon divorce.\r\nHISTORICAL CASE LAW DEVELOPMENT\r\nBefore we embark upon this historical discourse of the cases, let us refresh ourselves with these words of encouragement from Lord Denning in the case of Packer v Packer [1953-54] Law Reports, Probate Division 15.\r\nIn this case, Lord Denning in characteristic fashion, stated that, not having done something before should not hinder a court from doing it for the first time. He stated thus:-\r\n"What is the argument on the other side. Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least If we never do anything, which has not been done before we shall never act anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both.\r\nThere is no decision of this court that an order cannot be made\r\nfor custody of an illegitimate child and in the absence of direct decision preventing us, I think that we should follow the course which is permitted by statute and prescribed by good service".\r\nLike most of the decisions of Lord Denning at the material time, it was a dissenting opinion in a matrimonial case. But with the passage of time his opinions have become accepted as the correct statement of the law.\r\nWhat we take note of is that, from the above opinion, it is clear that the fact that there is no precedent to support a decision of a court is now no bar to prevent a court from arriving at a decision provided the decision will not be contrary to constitutional or statutory provisions or in conflict with the doctrine of stare decisis if the court is bound by its own decision or by a decision of a Superior\r\ncourt.\r\n10\r\n \r\nFortunately, we do not find any such impediment or inhibition in this situation. This is because, the Supreme Court has given the green light in its previous\r\ndecisions in the cases of Mensah v Mensah [1998-991 SCGLR 350 and Boafo v Boafo already referred to supra.\r\nThis court is of the view that the time is ripe for improvements to be made to the far reaching decisions in the cases just referred to.\r\nDEVELOPMENT OF RELEVANT GHANAIAN CASE LAW\r\nLet us now go on our historical journey on the development of case law on the distribution of marital property acquired during marriage upon divorce. This exercise is important as it will enable us to explain the rationale for the improvements being made and the introduction of the ''frmnciles of jurisprudence of equality."\r\nJOINT PROPERTY\r\nProperty acquired with the assistance of a wife was regarded as the sole property of the husband. The customary law position was that the wife and children had a domestic responsibility of assisting the husband/father with his business and as such the wife could not claim any interest in any property she assisted her husband to acquire. Thus, in Quartey v. Maftey[1959] GLR 377, HC 011ennu J. (as he then was) held at 380 that:\r\n"The proceeds of this joint effort of a man and his wife and/or children, and any property which the man acquires with such proceeds, are by customary law the individual property of the man. It is not the joint property of the man and the wife and/or the children. The right of the wife and the children is a right to maintenance and support from the husband and father."\r\n\r\n \r\n\r\nLi\r\n \r\nSUBSTANTIAL CONTRIBUTION PRINCIPLE\r\nClearly this position has since been eroded by changes in the traditional roles of men and women and the economic empowerment of women. In Yeboali v. Yeboah [1974]2 GLR 114 HC, Hayfron-Benjamin J (as he then was) held that there was no positive customary law preventing the creation of joint interest by persons not related by blood.\r\nThe current position of the law regarding joint property is that substantial contribution by a spouse to the acquisition of property during the subsistence of the marriage would entitle that spouse to an interest in the property.\r\nIn the Yeboah case, supra the husband and wife were married under the Marriage Ordinance, Cap. 127. Before the marriage, the wife had applied for a house from the Housing Corporation. She was allocated a plot of land for which she paid a deposit. After the marriage, she had the plot of land transferred into the name of her husband and the deposit was refunded to her by the corporation. The husband then took a loan from his employers to put up a house on the plot. Just as he was about to start constructing the building, the husband was transferred to London where he was later joined by the wife. The construction of the building started while the couple were resident in London. According to the wife, during the construction of the house she flew to Ghana at the request of her husband to supervise the construction. She stated that she paid the fare herself. She alleged that she made several structural alterations to the building with the knowledge and consent of her husband. The parties returned to Ghana and thereafter the marriage broke down. The husband then served a notice on the wife to quit the matrimonial home on the ground that he required the premises for his own occupation.\r\n12\r\n \r\nWhen the wife failed to quit the premises, the husband then brought an action to\r\neject the wife from the house. Headnote 3 of the court''s holding stated thus:\r\n"The wife was a joint owner of the house with the husband because judging from the factors attending the acquisition of the house and the conduct of the parties subsequent to the acquisition, it was dear that they intended to own jointly the matrimonial home. Where the matrimonial home was held to be held jointly by husband and wife as joint owners, it would be improper to treat the property as a subject of mathematical division of the supposed value of the house. What the court could do in such a case was to make what would seem to be a fair agreement for the parties."\r\nSimilarly in Abebrese v. Kaah and Others 119761 2 GLR 46 HC, the wife contributed substantially to building the matrimonial home. The husband had provided the purchase money for the land. She paid for the timber, and contributed to buying sand and iron sheets. She also supervised work done by labourers and helped to carry water to the site. However, she had not kept account of her contribution. The husband died intestate and his successor purported to sell the house. The court held that although the wife could not state in terms of cash how much her contribution towards the building was, it was clearly substantial. The court pointed out that the ordinary incidents of commerce had no application in the ordinary relations between husband and wife and the wife''s evidence as to the size of her contribution and her intention in so contributing would be accepted.\r\n13\r\n \r\nFurther in Anang v. Tagoe [1989-90]2 GLR 8 HC, it was held at 11 that:\r\nwhere a wife made contributions towards the requirements of a matrimonial home in the belief that the contribution was to assist in the joint acquisition of property, the court of equity would take steps to ensure that belief materialised. That would prevent husbands from unjustly enriching themselves at the expense of innocent wives, particularly where there was evidence of some agreement for joint acquisition of property."\r\nMATRIMONIAL CAUSES ACT, 1971 ACT 367\r\nThe cases cited supra give an indication that the courts seek to provide some protection, especially to wives, when there is evidence that a spouse has made a substantial contribution to acquire property. What amounts to substantial contribution is determined by looking at the facts surrounding the acquisition of the property. The facts would lead to an inference that there was intention by the parties to own the property jointly. Section 20 (1) of the Matrimonial Causes Act, 1971 (Act 367) provides that\r\n20(1) The court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof as part of a finandal pro vision as the court thinks just and equitable. "(e . s)\r\nEven though it has been held that the ordinary incidents of commerce do not apply in marital relations and that the courts will not employ mathematical division to determine each spouse''s share in the property, the courts currently apply the equality is equity principle. This principle is backed by Constitutional force in article 22(3) (b) of the 1992 Constitution referred to supra.\r\n\r\n \r\nEQUALITY IS EQUITY PRINCIPLE OF SHARING OF MARTIAL PROPERTY\r\nThus in Mensah v. Mensah already referred to supra, the court applied the equality is equity principle to determine which proportions the couple''s joint\r\nproperty would be shared. Bamford-Addo JSC held at 355 thus:\r\n"... the principle that property jointly acquired during marriage becomes\r\npint property of the parties applies and such property should be shared equally on divorce; because the ordinary incidents of commerce has no\r\napplication in marital relations between husband and wife who jointly\r\nacquired property during marriage. "(e.s.)\r\nIt would appear from Mensah v. Mensah, supra that the court favoured equal sharing of joint property in all circumstances. However, this position has been modified and clarified subsequently in the case of Boafo v. Boafo referred to supra.\r\nIn that case, the husband petitioned for divorce and the wife cross-petitioned for\r\ndivorce. The marriage was dissolved. On the issue of distribution of properties, the trial judge found that the properties had been jointly acquired; that the\r\ncouple had operated their finances jointly, but that the degree of financial\r\ncontribution by the wife to the acquisition of the joint properties was not clear.\r\nThe trial Judge then made distribution orders which were not on a half and half\r\n(equal) basis. The wife appealed to the Court of Appeal on the ground, inter alia,\r\nthat the trial judge failed to distribute the property in accordance with article 22(3) (b) of the 1992 Constitution.\r\n15\r\n \r\nThe Court of Appeal held that the properties should have been distributed equally on a half and half basis and allowed the appeal. The husband appealed to the Supreme Court.\r\nIn delivering the judgment of the court dismissing the appeal, Dr. Date-Bah JSC referred to the decision in Mensah v Mensali and further explained the position of the court. At 711, he said:\r\n"On the facts of Mensah v. Mensah (supra), the Supreme Court (per Barn ford-A ddo JSC) held that equal sharing was what would amount to a ''just and equitable" sharing. The view of Denning U (as he then was), in Ri,n,ner v. Rimmer [1952] 1 QB63 at 73 that on the facts of that case equailty is equity seems to have inspired the learned Supreme Court Judge''s approach. ... Denning U''s view was that where it is dear that the matrimonial home or furniture common use belongs to one or the other of the married couple, then the courts would respect the proprietary rights of the particular spouse. But where it not dear to whom the beneficial interest belongs or in what proportions, then the equitable maxim of equality is equity would be applied. The spirit of Bamford-Addo JSC''s judgment in Mensab v. Mensah appears to be that the principle of the equitable sharing of joint property would ordinarily entail applying the equitable princ,le, unless one spouse can prove separate proprietorship or agreement or a different proportion of ownership.\r\n16\r\n \r\n\r\n \r\nThis interpretation of Mensah v. Mensah as laying down the principle of equitable sharing ofjoint property, accords with my perception of the contemporary social mores...\r\nThe learned judge also underscored the essence of section 20(1) of the Matrimonial Causes Act, 1971 Act 367 and article 22(3) (b). At 713 he said of article 22(3) (b):\r\n.. Thus article 22 firmly places within the domain of social human rights the distribution of the property of spouses, on divorce... It was meant to right the imbalance that women have historically suffered in the distribution of assets jointly acquired during marriage. An equal division will often, though not invariably, be a solution to this imbalance."\r\nThen at 714, he said of section 20(1) of Act 367:\r\n"The question of what is "equitable'','' in essence, what is just, reasonable and accords with common sense and fair play, is a pure question of fact, dependent purely on the particular circumstances of each case. The proportions are, therefore, fixed in accordance with the equities of any given case. "(e. s.)\r\nTherefore even though Boafo v. Boafo affirmed the equality is equity principle as used in Mensab v Mensah, it gave further meaning to section 20(1) of Act 367 and article 22(3)(b) of the 1992 Constitution. Consequently, the issue of proportions are to be fixed in accordance with the equities of each case.\r\n17\r\n \r\nThe court duly recognized the fact that an equal (half and half) distribution, though usually a suitable solution to correct imbalances in property rights against women, may not necessarily lead to a just and equitable distribution as the Constitution and Act 367 envisages. It is submitted that the court made room for some flexibility in the application of the equality is equity principle by favouring a case by case approach as opposed to a wholesale application of the principle.\r\nThe above notwithstanding, it must be noted that the paramount goal of the court would be to achieve equality. Thus, the court endorsed the Court of Appeal''s position to the effect that an inability or difficulty to identify clearly distinct contributions in the acquisition of the joint property would not in itself preclude a half and half sharing. At 716 Date Bah JSC quoted with approval a passage from the judgment of Wood JA (as she then was)\r\n...Indeed in cases where the evidence dearly points to a joint ownership, I found no inflexible rule stipulating that a spouse''s inability to identify dearly contribution automatically disentitles him or her from a half share. To the contrary, it does appear that the courts have been quick to apply the equality Is equity rule, and so lean towards a half and half share, if from all the circumstances, such an approach would be justifiable. ''f.. Again, we consider this passage a sound statement of the law. ... Where there is substantial contribution by both spouses, the respective shares of the spouses will not be delineated proportionally like a shareholding in a company. For, the marriage relationship is not a commercial relationship... equality is equity will usually be an equitable solution to the distribution issue. The Court- of Appeal was therefore within its rights in intervening to achieve equality."\r\n18\r\n\r\n \r\nIt is therefore apparent that the Ghanaian Courts have accepted this equality is equity principle in the sharing of marital properties upon divorce. We believe that the death knell has been sung to the substantial contribution principle, making way for the equitable distribution as provided for under article 22 (3) of the Constitution 1992.\r\nLet us now examine the invitation being made to us in this appeal to set aside the judgment of the Court of Appeal, and by necessary implication, that of the High Court in view of the concurrent findings by the two lower courts. Is there any sound legal basis for this request?\r\nCONCURRENT FINDINGS OF FACT\r\nThe Supreme Court has in the following cases laid down the criteria that will enable a second appellate court, like this Supreme Court to depart from concurrent findings of fact by the trial court and concurred in by the first appellate court, the Court of Appeal.\r\n1.	Gregory v Tandoh IV & Anr. [2010] SCGLR 971 and\r\n2.	Obeng v Assemblies of God, Church Ghana [2010] SCGLR 300\r\nThe principle is therefore firmly established that where findings of fact have been made by a trial court and concurred in by the first appellate court, then the second appellate court like this court must be slow in coming to different conclusions unless it was satisfied that there were strong pieces of evidence on record which made it manifestly clear that the findings by the trial court were perverse.\r\nIn the instant case, there being no such evidence that the findings of fact are perverse, this court is unable to depart from the findings of fact as they are indeed supported by evidence on record.\r\nEVALUATION OF EVIDENCE ON RECORD\r\nIn the circumstances of this case, even though the Petitioner did not call any witnesses, there were pieces of corroborative evidence from the Respondents\r\n19\r\n \r\nwitnesses which supported the Petitioner''s case that she and the Respondent took part in the trading activities.\r\nFor example, DWI, Ellen Dzifa Amugie contrary to Respondent''s assertion that the Petitioner did not play any role in the business activities stated on oath that she saw the petitioner once in the premises where the Respondent was selling the items to the Civil Servants in the Ministries.\r\nSecondly, in answer to a question from Counsel for the Petitioner, requesting explanation as to the business deals or negotiations that she DWI went out with the Petitioner to conclude, DWI answered thus:-\r\n"Yes, but the woman she led me to was not ready to give us credit and so we did not take anything from her."\r\nThese pieces of evidence at least shows that the Petitioner was not the type of lazy housewife that the Petitioner was portrayed to be. The truth of the matter is that, the Petitioner played a pivotal role in the management of the business before and after Guidenn was registered as a business entity at the Registrar General''s Department.\r\nDW2 — Michael Nii Amarh Ahuloo a colleague of the Respondent at the Controller and Accountant General''s Department, testified that he had ever met the Petitioner in the House of the Respondent at La. According to DW2, he went to their house at La, very early in the morning at the invitation of the Respondent. In answer to a question during cross-examination, DW2 answered that when he got to the house of the parties at La, he saw Palm oil in drums as well as tomatoes, but he could not tell who sold those items. The same witness also testified that he ever saw the Petitioner in the store of the Respondent in the Ministries but cannot tell exactly what she was doing at the material time. All these go to confirm that the Petitioner was really engaged in trading in the house at La and also took part in the business.\r\nFinally, DW4, Isaac kwao, a close blood relation of the Respondent who later came to work with him also testified that, the procedure in the management of the store was that, "at the end of each day''s sales Sister Gladys that is the petitioner comes to collect the cash. The respondent then was working with the Accountant Generals ''Department".\r\n20\r\n \r\nC\r\n-i\r\n \r\nThis particular piece of evidence is consistent with the evidence of the petitioner under cross-examination that she kept a record of the daily sales and gave it to the Respondent. This particular record has been tendered as exhibit E.\r\nIt has to be noted that, DW4 is also a Carpenter by profession and was the one who worked on the couple''s Adenta property. He confirmed that it was the Petitioner who took him to the Adenta house and also that when he first met the Petitioner, she was a table top trader, dealing in the sale of rice, cooking oil and other consumables in their house at La.\r\nThe combined effect of all these pieces of evidence is that, even though learned Counsel for the Petitioner was careless in not calling evidence to support the contentions of the Petitioner, by the evidence of the Defence witnesses referred to supra, the necessary corroborative linkages had been established to enable this court draw the necessary inferences. In this respect therefore, we are of the considered view that, once the Respondent and his witnesses have corroborated in material particulars the evidence of the Petitioner on the core issues involved in this trial, the failure by her to call evidence of her own in support thereof is immaterial.\r\nWe are therefore of the considered view that, in law the burden that is cast on the Petitioner to lead sufficient evidence to enable a finding of those facts to be made in her favour has been established as required by sections 10 and 14 of the Evidence Act, 1975, already referred to supra.\r\nWe accordingly hold and rule that taking all the above pieces of evidence from Petitioner, respondent and his witnesses into consideration and on the authority of the following Supreme Court decisions, the Petitioner must be deemed to have discharged the burden cast on her by and under the Evidence Act, 1975 NRCD\r\n323.\r\n1. Dzaisu v Ghana Breweries Limited [2007-2008] SCGLR 539 where\r\nthe Court spoke with one voice through our esteemed Sister Sophia Adinyira JSC on application of section 14 of NRCD 323 at holding 1 thereof and\r\n21\r\n \r\nAckah v Pergah Transport Limited 120101 SCGLR 728 where the\r\nSupreme Court again speaking through our respected Sister Sophia Adinyira JSC espoused section 10 of NRCD 323 of the Evidence Act.\r\nThis means that, since it was the Petitioner''s duty as required by law to produce the evidence of the facts in issue and that duty has been satisfactorily discharged, that burden has been performed and the trial and appellate courts were thus right in coming to the conclusions reached by them.\r\nFrom the above, it would appear certain that all the lower courts correctly applied the principles of evaluating the evidence and the probative values attached to the party who has the burden of proof. Under these circumstances, it is our considered view that this court does not see it''s way clear in interfering with the findings of fact made by the trial court which was concurred in by the Court of Appeal.\r\nWe are therefore of the very considered view that the Court of Appeal did not err in affirming the findings of fact made by the trial court.\r\nIndeed, the Court of Appeal correctly applied the principles of evidence in this case and satisfied itself that the standard of proof required in law had been met.\r\nSecondly, it has to be considered that, the facts of this case require that the veil of incorporation be lifted to enable the court determine the real persons who are managing the business of Guidem.\r\nThis is a situation where the respondent cleverly explored the illiteracy of the Petitioner and abused the trust reposed in him by the Petitioner. Since the primary duty of courts of law is to do substantial justice, the decision of the lower courts to be objective and consider all the surrounding circumstances of the case supports the decision arrived at.\r\nHaving reviewed the evidence on record in great detail as well as the constitutional provisions dealing with devolution of marital properties upon divorce, it is appropriate at this stage to consider the principle of Jurisprudence of Equality.\r\n \r\n22\r\n \r\n\r\n \r\nEven though the decision of this court in effect is that, the Petitioner, from the evidence on record, must be reputed to have made and contributed substantially to the acquisition of the matrimonial properties and assets on offer for sharing in this case and therefore entitled to an equal share, the constitutional provisions in article 22 (3) of the Constitution, 1992 cannot be overlooked.\r\nThis is because, as a final appellate and constitutional court, this Supreme Court has a duty to make its views clearly known on the relevance and applicability of constitutional provisions whenever these arise or call for interpretation in cases that come up before it for adjudication.\r\nOur comments as a court, on the constitutional interpretation and applicability of the equality is equity principle contained in article 22 (3) of the Constitution 1992, in the sharing of marital properties acquired during the subsistence of a marriage and the Principle of Jurisprudence of equality, (yet to be discussed) are to be understood in that context.\r\nThus, even if this court had held that the petitioner had not made any substantial contributions to the acquisition of the matrimonial properties, it would still have come to the same conclusion that the petitioner is entitled to an equal share in the properties so acquired during the subsistence of the marriage. This is because this court recognises the valuable contributions made by her in the marriage like the performance of household chores referred to supra, and the maintenance of a congenial domestic environment for the respondent to operate and acquire properties. Besides, the constitutional provisions in article 22(3) of the Constitution 1992, must be construed to achieve the desired results which the framers of the Constitution intended.\r\nIn coming to this conclusion, we are not unaware of complications that may arise in the application of the principle of equality in the context of polygamous marriages.\r\nWe are however of the view that those complications can be tackled on a case by case basis in subsequent case law development, or by direct statutory intervention by the Legislature.\r\n23\r\n \r\n\r\n\r\n \r\nFinally, such an interpretation and decision would be consistent with earlier decisions of this court in Mensah v Mensah and Boafo v Boafo already referred to supra.\r\nJURISPRUDENCE OF EQUALITY PRINCIPLE (JEP)\r\nThe Jurisprudence of Equality Principle, has been defined by the International Association of Women Judges in their November, 2006 USAID Rule of Law Project in Jordan as "the application of international human rights treaties and laws to national and focal domestic cases alleging discrimination and violence against women. "Such that the rights of women will no longer be discriminated against and there will be equal application of laws to the determination of women issues in all aspects of social, legal, economic and cultural affairs.\r\nIt is to be understood that discrimination and violence against women differ from country to country and each situation has to be considered on a case by case basis.\r\nFor example, whilst in Ghana, it is perfectly legitimate for issues such as inhuman widowhood rites, trokosi system and the inability of the courts to apply all the human rights provisions in the Constitution 1992 in favour of women so as to empower them in their quest for equality in the devolution of marital property upon divorce may be considered as discrimination and violence against women, in other countries, it may be the prohibition on female students wearing headscarves at university campuses, or the unequal payment of pensions to widows as compared to widowers that may be considered as such.\r\nIn our Ghanaian context, we have referred to the provisions of article 33 (5) of the Constitution which guarantee''s other rights, duties, declarations not specifically mentioned in the Constitution as applicable by our courts in order to ensure the dignity of the human race.\r\nFor example, Article (1) of the Universal Declaration of Human Rights provides as follows:\r\n"All human beings are born free and equal IA dignity and rights. They are endowed with reason and consdence, and should act towards one another in a spirit of brotherhood."\r\n24\r\n \r\n•\r\n4\r\n \r\nArticle 12 (1) and (2) of the Constitution 1992 give the scope and content of the fundamental Human Rights and Freedoms which the individual is entitled to enjoy.\r\nAs a matter of fact, even though the Universal Declaration of Human Rights is not a binding treaty, its principles and underpinning philosophy has been incorporated into national constitutions and referred to by several national courts. This is the context into which our national Constitution 1992 has to be understood in relation to this principle of Jurisprudence of Equality.\r\nGhana is also a signatory to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).\r\nFor example, article 1 of CEDAW, provides a definition of discrimination as follows:-\r\n"For the purposes of the present convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impaking or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."\r\nFurthermore, article 5 of CEDAW adds a key concept to international equal protection analysis; the need to eradicate customary and all other practices which are based on the idea of the inferiority or the superiority of the sexes or on stereotyped roles for men and women.\r\nOn the basis of the above conventions and treaties and drawing a linkage between them and the Constitution 1992, it is our considered view that the time has indeed come for the integration of this principle of "Jurisprudence of Eguality"into our rules of interpretation such that meaning will be given to the contents of the Constitution 1992, especially on the devolution of property to spouses after divorce.\r\nUsing this principle as a guide we are of the view that it is unconstitutional for the courts in Ghana to discriminate against women in particular whenever issues pertaining to distribution of property acquired during marriage come up during\r\n25\r\n \r\ndivorce. There should in all appropriate cases be sharing of property on equality basis.\r\nWe therefore endorse the Kenya Court of Appeals decision in the case of\r\nTa bitha Wangeci Nderitu v Simon Nderitu Kariuk; Civil Appeal No. 203 of 1997 where the Court of Appeal ruled for the wife, finding that the Married Women Property Act, superseded the customary law, that the husband had failed to show that the caesarian sections had disabled her sufficiently to warrant a reduction to 30 percent, and that a housewife''s contribution to the family in raising children counted as a contribution to the marriage.\r\nWhat are the facts of the above case?\r\nIn the said case both parties appealed from a lower court decision dividing marital property on divorce. The lower court found that both of the parties had contributed equally to the marital assets and ruled that the proceeds from the sale of the matrimonial home should be divided equally.\r\nThe husband discounted the wife''s share of the remaining assets to only 30W/0, based on what he termed the "common sense notion" that the three caesarian sections the woman had endured to deliver the couple''s children had diminished her ability to fully exert himself for the benefit of the household.\r\nThe decision arrived by the Kenya Court of Appeals is not only in tandem with common sense and international human rights conventions and principles, but also in tune with our articles 22 (3) (a) and (b) of the Constitution 1992.\r\nComing home to the instant case and applying the above constitutional provisions, relevant case laws enunciated in decisions such as Mensah v Mensah and Boafo v Boafo already referred to supra and international conventions and Principles of Jurisprudence of Equality, (JEP) this court is of the considered view that the Petitioners contribution even as a housewife, in maintaining the house and creating a congenial atmosphere for the respondent to create the economic empire he has built are enough to earn for her an equal share in the marital properties on offer for distribution upon the decree of divorce.\r\n26\r\n \r\n•\r\n4\r\n \r\nFrom the evidence on record, this court will not permit the respondent to use the petitioner as a donkey and after offering useful and valuable service dump her without any regard for her rights as a human being.\r\nCONCLUSION\r\nWe are therefore of the considered view that the time has come for this court to institutionalise this principle of equality in the sharing of marital property by spouses, after divorce, of all property acquired during the subsistence of a marriage in appropriate cases. This is based on the constitutional provisions in article 22 (3) and 33 (5) of the Constitution 1992, the principle of Jurisprudence of Equality and the need to follow, apply and improve our previous decisions in Mensah v Mensah and Boafo v Boafo already referred to supra. The Petitioner should be treated as an equal partner even after divorce in the devolution of the properties. The Petitioner must not be bruised by the conduct of the respondent and made to be in a worse situation than she would have been had the divorce not been granted. The tendency to consider women (spouses) in particular as appendages to the marriage relationship, used and dumped at will by their male spouses must cease. Divorce as Lord Denning stated long ago, should not be considered as a stigma.\r\nIn the premises, the appeal herein is dismissed as being without any merit and the Court of Appeal decision of 23rd July 2009 is hereby affirmed.\r\n(SGD)	J.V.M DOTSE JUSTICE OF THE SUPREME COURT\r\n(SGD)	S.A.B AKUFFO (MS) JUSTICE OF THE SUPREME COURT\r\n27\r\n \r\n\r\na\r\n \r\n(SGD)	DR. S.K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	S.O.A ADINYIRA (MRS)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	V. AKOTO BAMFO (MRS)\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL:\r\nSOMUAH ASAMOAH FOR THE APPELLANT ROBERTSON KPATSA FOR THE RESPONDENT\r\n\r\n \r\n28\r\n', '../links/cases/Document (122).pdf', 'Yes', 'DATE-BAH JSC, ADINYIRA (MRS) JSC, DOTSE JSC, AKOTO-BAMFO (MRS.) J.S.C', '2012', 'supreme', '<b><font face="Times New Roman" size="2">Family Law - Husband and Wife - Divorce - Distribution of Property acquired during the subsistence of marriage - Principle of distribution of marital property - Wife entitled to an equal share of property due to the Equality principle - Constitution 1992, arts. 22(3) and 33(5) - Matrimonial Causes Act 1971, s. 20 Evidence - Burden of proof - Discharge of burden - Onus on petitioner to adduce evidence - Failure to do so not a bar to using respondent''s evidence - Evidence Act 1975, ss.10 and 14</font></b><br>', 'AKUFFO (MS), J.S.C', 'Civil', '', 'J4/20/2011', '', '', 'supreme', '2012-02-22', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(525, 'SALOMEY SHORME TETTEH  --- PLAINTIFF/RESPONDENT/APPELLANT\r\nNII AMON TAFO  --- CO-PLAINTIFF/RESPONDENT/APPELLANT\r\nVRS \r\nMARY KORKOR HAYFORD\r\nSUBSITUTED BY STELLA\r\nLARBI & COMFORT DECKER  --- DEFENDANTS/APPELLANTS/RESPONDENTS', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCIVIL APPEAL\r\nNO.14134/2011\r\n22ND FEBRUARY, 2012 CORAM	AKU FF0 (MS) JSC (PRESIDING)\r\nDAlE-HAIl JSC\r\nADINYII(A (MRS) JSC\r\nDOTSE JSC\r\nAKOTO-HAMF() (MRS) JSC\r\n\r\n	\r\n\r\nMARY KORKOR HAYFORD	DEFENDANTS/APPELLANTS /\r\nSLJBSITUTED BY STELLA	RESPONDENTS LAItI3I & COMFORT DECKER\r\nEvidence —Biiii/eii 01/3100!— Discharge Of hi/It/c''!) - Onus DII /3/UI!) titi to (Tdc/Iice evidence to support claim - Failure to dtccha rye burden —Documentary evidence\r\nmast have precedence over oral evidence —Evidence Act 1975, ss. 10 and 14\r\nLund Law	Determination of priority grants —Application of the nemo dot principle —PI ivti!v if) J()V0iII of the defendant.\r\n \r\nJUDGMENT.\r\nJONES DOTSE JSC; \r\nThis is an appeal by the Plaintiff/Respondent/Appellant hereafter referred to as Plaintiff against the judgment of the Court of Appeal dated 22nd July 2010 which set aside a judgment of the High Court which was in favour of the plaintiff, and entered judgment in favour of the Defendants/Appellants/Respondents, hereafter referred to as the Defendants. It must be noted that, even though the Plaintiff commenced action against a Defendant, Madam Mary Korkoi, she died during the pendency of the suit, and had been substituted by her daughters, the two substituted Defendants herein.\r\nThis case commenced in the High Court, Accra where the Plaintiff issued a writ against the Defendant, Madam Mary Korkoi (deceased) claiming the following reliefs:\r\ni. Declaration that the Land Title Certificate No. GA3929 issued by the Chief Registrar, land Title Registry, Accra to the Defendant is null and void on grounds of fraud.\r\nAn order to cancel or set aside the said Land Certificate No. CA. 3929\r\nPerpetual injunction restraining the Defendant, her agents workmen etc not to have anything to do with the said land.\r\nAt the High Court the Acting Asere Mantse at all material times to the cause of the action, Nii Tafo Amon II applied to be joined as a party and was accordingly joined as a Co-plaintiff by an order of the Court.\r\n2\r\n \r\nInterestingly, both Plaintiff and Defendants claim title through the Asere Stool. Whilst plaintiff claims she acquired the land in 1978, Defendants claimed their mother acquired the land as far back as 1974, though she only got an indenture covering the land in 1983. It is therefore not surprising that the Defendants also counterclaimed for the following reliefs:-\r\na.	A declaration that the indenture issued to the Plaintiff in respect of the disputed land after an indenture was earlier executed in her favour in 1983 is null and void.\r\nb.	A declaration that the Asere stool indeed executed a Deed of Lease on 27/7/1983 in favour of the Defendant and same was registered at Land Registry and covered with Land Certificate No. GA3929.\r\nJUDGMENT OF THE HIGH COURT\r\nThe learned High Court Judge found for the Plaintiff on the basis that the Plaintiff''s land tallied with the size of land stated in her indenture and the Title Certificate in contra distinction to the Defendant''s who, according to the learned trial High Court Judge, showed inconsistencies in their land size because the size of their land as reflected in their indenture and in their Land Title Certificate did not tally.\r\nSubsequently, the trial High Court Judge granted plaintiff''s reliefs whilst she dismissed the counterclaim of the Defendants and accordingly as per plaintiffs writ set aside the Land title Certificate issued to the Defendants declaring it to be null and void.\r\nDECISION OF COURT OF APPEAL AND GROUNDS OF APPEAL TO THIS COURT\r\nThe Defendants appealed against the decision of the High Court to the Court of Appeal which overturned the decision of the High Court and entered judgment in favour of the Defendants. It is\r\n \r\n3\r\n \r\nagainst this decision that the plaintiff has appealed to this court\r\nunder the following grounds of appeal:\r\n1.	That, the judgment is against the weight of evidence adduced\r\nat trial."\r\n2.	The Court erred in law when it''s (sic) decided that because the\r\nPlaintiff/ Respondent/Appellant did not specifically claim\r\ndeclaration of title, her case must fail.\r\nThe Plaintiff thus prayed this court that the judgment of the Court\r\nof Appeal be reversed, and judgment entered in her favour.\r\nMATTERS TO BE CONSIDERED WHEN A SURVEY PLAN IS ORDERED BY A COURT\r\nBefore we consider the issues raised in the two grounds of appeal\r\nfiled in this case, there are some procedural issues which must be\r\ndealt with for the guidance of parties, counsel and trial court\r\nJudges, whenever an order is made for a survey plan in a land\r\ndispute.\r\nThe first one is of what relevance is the work of a Surveyor\r\nappointed by a court to assist in the determination of a land suit?\r\nThis observation must be critically considered in view of the orders made by the learned trial Judge, Ayebi J, (as he then was) on 6th\r\nApril, 2005 when he appointed the Surveyor.\r\nThis is what he directed the Surveyor and the parties to do:\r\n"The Regional Surveyor of the lands Commission, Greater Accra Region is hereby appointed to survey the respective lands of the parties herein in this matter and then superimpose them. The Plaintiff''s Counsel should therefore furnish the said Regional Surveyor with his instructions plus any relevant documents by 13/ 4/ 05. Each of the parties should pay a deposit of 01 million cedis...?"\r\n \r\n4\r\n \r\nUnfortunately, by the time the survey report was ready for presentation to the court, the suit which originally commenced before Beatrice Agyeman Bempah J, went back to her.\r\nAs a result, Ayebi J (as he then was) had nothing to do with this suit thereafter.\r\nIt was not surprising therefore that, both Counsel and the Court did not appreciate the important role the Surveyor''s evidence could have played in helping the court determine the real issues in controversy.\r\nFrom the orders made by the Court, it is clear the parties were to do the following things pursuant to the preparation of the Survey Plan:\r\n1.	The Plaintiff''s counsel was to file his survey instructions to the Surveyor before the commencement of work. By parity of reasoning, since the order directed the Surveyor to survey the respective land of the parties, it is to be assumed that the Defendant was to be expected to file survey instructions as well for the Surveyor to follow and or comply with.\r\n2.	The parties were to furnish the Surveyor with any relevant documents on or by 13/4/05.\r\n3.	The parties were to make a deposit of GHO 100.00 towards the preparation of the Survey Plan.\r\nOn the part of the Surveyor, he was directed by the Court to do the following:\r\na.	Survey the land of the parties\r\nb.	Superimpose the said lands possibly vis-ã-vis the relevant documents of the parties and the land of the parties as it is on the ground.\r\n5\r\n \r\nWe have not sighted any survey instructions filed by any of the\r\nparties in this case.\r\nIndeed when the Surveyor testified in the case, he did not mention\r\nthat any of the parties filed any survey instructions in the case.\r\nThus, apart from the site plans and some documents of title that\r\nthe Surveyor had access to from the parties, he was not specifically\r\nrequested to do any other thing by the parties or their counsel.\r\nIn any case, the Surveyor, one Robert Hackman, did testify in the\r\ncase about the work that he did in this case as C.W.I.\r\nOf particular importance to the fate of this case is the composite\r\nplan that the Surveyor prepared which was tendered as Exhibit 2.\r\nWe will revert to this exhibit later.\r\nLACK OF SURVEY INSTRUCTIONS TO SURVEYOR\r\nWe have perused the evidence and cross-examination of the\r\nSurveyor and come to the conclusion that if the parties had\r\ncomplied with the courts directive to file survey instructions\r\nperhaps the difficulties the Surveyor encountered with some of the\r\nquestions put to him under cross-examination would have been\r\naverted.\r\nFor example when the Surveyor was asked by the Defence Counsel\r\nas to what his interpretation of his own document, Exhibit 2 was,\r\nthe Surveyor answered thus:-\r\n"I wish I will be relieved to answer this question as it will into the arena"\r\n"we believe it was a reference to arena of conflict."\r\nSurprisingly, the learned trial Judge stated thus:\r\n"The court is (sic) agree with CWI as he is to be independent of the consistent between the parties."\r\n \r\n6\r\n \r\nEven though it is difficult to comprehend the said statement, we believe it was a tacit approval of the refusal by the Surveyor to give an honest expert opinion based on the work he has done to the court. It is generally understood that a court is not bound by the evidence given by an expert such as the Surveyor, in this case. See case of Sasu v White Cross Insurance Co. Ltd [19601 GLR 4 and Darbah & another v Ampah [1989-901 1 GLR 598 (CA) at 606 where Wuaku JA (as he then was) speaking for the court also reiterated the point that a trial Judge need not accept evidence given by an expert.\r\nBut the law is equally clear that a trial court must give good reasons why an expert evidence is to be rejected.\r\nWe believe that the court should have compelled the Surveyor to give an opinion on Exhibit 2 which he himself prepared.\r\nSecondly, what we have also deduced from this case is that, the failure by the parties to have filed survey instructions prevented the Surveyor from dealing with issues germane to the case when he went onto the land.\r\nFor example, it should be noted that, Counsel who represent parties before the law courts have a professional duty to perform to protect and enhance the best interests of their clients.\r\nBesides, it is they who have been professionally instructed by their clients and therefore understand the nuts and bolts of each case to enable them be determined once and for all and to let the courts of law dispose or deal with issues arising in the cases they handle. If indeed, as the evidence disclosed in this case, there have been developments on the land by both parties, then it would not have been out of place for the parties to have instructed the Surveyor to depict the wooden and or cement block structures if any on the land in dispute and show their positions vis-â-vis the land\r\n7\r\n \r\ndocuments claimed by each party in respect of the areas edged, as\r\n"Green, Red, Blue and Black."\r\nThirdly, the Surveyor would have been requested to indicate the\r\nportions of the land vis-â-vis the approved layout of the land from\r\nthe relevant statutory Town Planning and or Metropolitan\r\nAssembly.\r\nFourthly, all approved roads in the lay out as it affected portions of\r\nthe land claimed by the parties should have been indicated by the\r\nSurveyor on the plan if the parties and or their counsel really\r\nwanted issues to be dealt with holistically.\r\nIt should thus be noted that, in view of the massive assistance that a court determining issues of title to land and other related and ancillary reliefs would derive from Survey Plans, care and some amount of professionalism should be exhibited by Counsel whenever a Survey Plan is ordered in contested land disputes.\r\nThis is because, Counsel who is on top of his brief in a land suit, will definitely take advantage to ensure that overt acts of\r\nownership and possession are clearly delineated by the Surveyor on the plan to boost his or her clients chances of success.\r\nThus, the request for a survey plan if properly managed, will\r\nensure that a lot of evidence will be introduced by the party\r\nthrough pictorial representation as will be delineated on the plan\r\nas if the court had moved to the locus in quo.\r\nIn the instant case, it would have been perfectly legitimate for the\r\nlearned trial Judge to have ordered the Surveyor to go back to the\r\nland with an order for the counsel in the case to file their survey\r\ninstructions, so as to enable those instructions to aid the Surveyor\r\nin his work. Since all the above is history, we have to make do with\r\nthe plan as it is and determine the success or failure of this appeal.\r\n8\r\n\r\n \r\nWith the above procedural points discussed, this court now proceeds to the resolution of the appeal.\r\nARGUMENTS ON GROUNDS OF APPEAL\r\nEven though the plaintiff filed two grounds of appeal as has been stated supra, learned Counsel for the plaintiff in his written statement of case argued only the omnibus ground "that the\r\njudgment is against the weight of evidence". This evidently meant\r\nthat the second ground of appeal has been abandoned, it will thus not be considered in this judgment.\r\nIt is deemed worthwhile to consider in some detail, the facts of the case to enable them to be put in proper context.\r\nThe main issue for determination is whether Plaintiff should succeed on the basis of her claims and evidence led in support thereof at the trial court as well as her briefs before this court on appeal.\r\nOne striking observation made in the case is the clear difference in the Land Title Certificates held by Plaintiff and Defendants, GA11053 and GA3929, respectively. This difference promptly and presumptively shows that both Plaintiff and Defendants each hold title but to two different lands. This is confirmed by Plaintiff in her defence to Defendant''s counterclaim. At paragraph 4, Plaintiff concedes thus:\r\n"The Plaintiff further says that the Land the Asere Stool gave to the Defendant is very different from the Plaintiff''s land."\r\nFurther, the Plaintiff concedes in her defence to the counter claim that the site plan which the Asere stool prepared for the Defendants on the latter''s land does not fall on Plaintiff''s land. It is therefore surprising even at the initial stage for Plaintiff to seek to nullify Land Title Certificate No. 0A3929, when she concedes that her land and that of Defendants are not the same. We are therefore at a loss as to why she will seek to nullify same. She should rather be concerned about producing evidence to show that the land in dispute is the one to which she holds Land Title Certificate No. GA\r\n9\r\n \r\n11053. This she failed to do at the trial court but surprisingly succeeded in her claim.\r\nThen the next and legitimate question is which of the parties'' Land Title Certificate corresponds to the land in dispute. It is the process of finding the right evidence, we believe that was what the learned trial High Court Judge sought to do but erred in the conclusion by concentrating only on the inconsistencies of DWI, the surveyor for the Asere Stool, which sadly was irrelevant.\r\nThe position of the law, following from Fofie V Wusu [1992-931 GBR 877 is that it is the Plaintiff who bears the burden of establishing the identity of the land she is laying claim to. Failure to prove this identify is fatal to a claim for declaration of title.\r\nIn the above case, the Court of Appeal, Coram, Lamptey, Adjabeng and Brobbey JJA (as they were then) speaking with one voice through Lamptey JA held as follows:\r\n"To succeed in an action for a declaration of title to land a party must adduce evidence to prove and establish the identity of the land in respect of which he claimed a declaration of title. On the evidence the plaintiff failed to prove the identity of the land claimed."\r\nSee also:\r\n1. Kwabena v Atuahene [1 981]GLR 136 R. Anane v Donkor [1965] GLR SC and M. Bedu v Agbi [1972] 2 GLR 238, CA\r\nLet us examine whether the plaintiff discharged this basic requirement satisfactorily from the evidence on record.\r\nIn seeking to establish the identity of the land in dispute, Plaintiff traced her title to the land some 18years ago (which year pointed to 1978), and according to her she had been on the land all those years without any disturbance or interference from any person.\r\n10\r\n \r\nHowever, ironically, Plaintiff then admits in paragraph 8 of her statement of claim that the Defendant per her lawful attorney Stella Larbi took an action of ejectment in respect of the said land against her tenants at the District Court I, Osu, Accra, which case was still pending at the time the present suit was instituted. The assertion of non-disturbance, again, is against the backdrop of the uncontroverted evidence of Defendant that her tenants were in occupation of the land since 1973 and that it was the Defendant''s husband, one Quaynor who volunteered to be a caretaker of the Defendants land as the latter was suffering from her knees and so could not visit the land frequently. Indeed, not quite long after the suit was commenced, the original Defendant died.\r\nOf particular interest was the evidence given by the co-Plaintiff''s attorney. It is apparent from the record of proceedings that, the Co- Plaintiff''s attorney, one Festus, informed the court that she joined the suit at the invitation of the Plaintiff to ASSIST THE COURT. It must be noted that the attorney who joined the suit at the Plaintiff''s invitation did not so join to affirmatively and conclusively support Plaintiff''s claim but only to assist the court. Rightly so, in our opinion, Festus'' evidence did assist the court and was determinative of whether the Plaintiff''s claim succeeds or not. Of course, notice is taken of Co-plaintiff''s averments where he pleaded in his statement of claim that the Asere stool has not leased the land in dispute or any piece of land around the disputed land to the defendant herein. Suffice to say, this is not the same as saying the Asere stool did lease the land in dispute to the plaintiff\r\nOther than confirming that both Plaintiff and Defendants were granted land by the Asere stool, and again that the Plaintiff''s land is separate from that of the Defendant, Festus also had this to say as is captured in the record of proceedings:\r\n"The Plaintiff''s land is behind that of the Defendant''s and so there is a proposed road in the Plaintiff land at one side. In respect, the Plaintiff shares boundary with the plot of the Defendant at one side. The proposed roads are now graded and so the main road has eaten into the Defendant''s land."\r\n \r\n11\r\n \r\nIt is this portion of Festus'' evidence which supports Defendant''s claim in the case.\r\nIt is definitely surprising that the learned trial Judge ignored and did not make any reference to this in her judgment. The evidence given by the Surveyor who was tasked to survey the land in dispute and make a superimposition and to come up with a composite plan of the disputed land also finds no place in that judgment. Having been engaged by the court to help settle the dispute, one also expect that, being a neutral or non-interested party and an expert, his evidence would be comparatively cogent in determining whether Plaintiff''s claims fail or not.\r\nBy the evidence of the Surveyor, the land as shown to the surveyor by Salome Tetteh on the composite plan was edged green while the land as shown on the land title registration plan of Salome was edged black. On the other hand, the land as shown to surveyor by Mary Hayford, on the composite plan is edged red while the land as shown on the land title registration plan for Mary Hayford is edged blue.\r\nA look at the composite plan drawn by the Surveyor after superimposition, first of all, confirms the evidence of both the Plaintiff and the co-Plaintiffs attorney that both parties had different lands granted to them by the Asere stool. Further, it confirms the evidence given by the co-Plaintiffs attorney, who joined the suit at the invitation of Plaintiff that the Plaintiffs land is BEHIND that of the Defendant. Needless to say, it goes to show that both Plaintiff and Defendant hold two different Land title certificates and this is evidence of the fact that each surely has a land allotted to her. But in answer to the question as to who has properly laid claim to the land in dispute, it is the Defendant''s evidence which is more convincing.\r\nAs to the fact that Defendant''s land, from the surveyor''s composite plan, was smaller than what she claimed, the Court of Appeal was\r\nright in following the decision in Nana Darko Frempong II v Mankrado K Effah [1961] GLR 205-210. In that case which\r\ninvolved a land dispute between the chief of Aperade and Achiasi, the court held that estoppels could operate to prevent a party from\r\n12\r\n\r\n \r\nlaying claim to a land which formed part of a bigger land, where the latter has been a subject of decision of the court. In its decision, the Privy Council, per Lord Guest held that "where it is admitted that the lesser area lies within the larger area of land which was the subject of a decision of the Privy Council, it is immaterial whether or not the outer boundaries of that area are sufficiently clearly defined". Applying the reasoning of the court to the present case, the distinction made by the trial court judge that the Defendant''s land on the ground which measured about 0.08 of an acre more or less did not tally with that given in the land Title Certificate as 0.113 was irrelevant and hence immaterial. Using exhibit 2 as a guide and the above decision, it is clear that the Court of Appeal was right in their review of the facts of the case.\r\nIt is again unfortunate that this distinction is what amply informed the trial court judge to find for the Plaintiff. Besides, the minimal distinction in size goes to confirm what Co-plaintiff''s Attorney said, that the road may have eaten into part of the Defendant''s land.\r\nAt this point, it is important to refer to Exhibit 2, which is the survey plan that was prepared and tendered by the Surveyor into evidence. The Court of Appeal was in our view quite right when it relied on the said exhibit as follows:-\r\n"Plaintiff had consistently maintained that the land given to the original defendant by the stool was completely different from her land and that it was because part of her land had been reduced considerably by a proposed road that she is now laying claim to her (plaintiff''s) land. Exhibit 2, (page 140) the resultant plan produced by the Court appointed Surveyor, from the superimposition of respective site plans of the parties showed the land allocated to the original defendant falls within the area in dispute numbered 116. In contrast, plaintiff''s land indicated in her site plan, numbered 114 and edged black is completely outside the area in dispute. This is consistent with the testimony of the Surveyor. It was a grave en-or of law on the part of the Judge, in preferring the oral description given to the Surveyor by the plaintiff as to the position of the land she was claiming as opposed to the clear\r\n13\r\n\r\n \r\ndocumentary proof contained in her land certificate." Emphasis supplied.\r\nThis Court of Appeal position is really in tandem with the overwhelming evidence on record both oral and documentary that the land in respect of which the plaintiff sued, is outside the disputed area. That being the case, and since the initial allocation of the burden of proof is on the plaintiff before it will shift to the Defendant later, it is apparent that the plaintiff has failed to discharge this burden. Sections 10 and 14 of the Evidence Act, 1975 NRCD 323. See the following cases where the Supreme Court took pains to explain sections 10 and 14 of the Evidence Act, 1975 NRCD 323 referred to supra.\r\n1.	Dzaisu v Ghana Breweries Ltd [200720081 SCGLR 539, holding 1 at 546-547 on section 14 of NRCD 323 per Sophia Adinyira JSC and\r\n2.	Ackah v Pergah Transport Ltd. [20101 SCGLR 728 holding 1 especially at 735-737 per Sophia Adinyira JSC on section 10 of NRCD 323\r\nWe are therefore of the considered view that, despite the lapses in the conduct of the work of the Surveyor which arose from the inability of the parties to file survey instructions to the Surveyor, at least on the core directive that the parties show their bearings on the land and produce their relevant land documents and or site plans to the Surveyor that mandate having been done with overwhelming evidence that the plaintiff''s land is outside the disputed area, the plaintiff based on the evidence and law applicable, must of necessity fail in her action. This is because it is clear that whatever the Defendant has done on her land in the area is outside the plaintiffs land. We therefore have no hesitation in dismissing the plaintiffs appeal as being completely without any merit.\r\n\r\n	\r\n\r\n14\r\n \r\nhabet maxim, had nothing (with regard to the divested land) to convey again, and so any purported sale of the already divested land to the Plaintiff subsequently is null and void.\r\nThe Court of Appeal stated in their judgment the following statement which captures the issue of the priority of the grants to the parties.\r\n"The priority of the grant to the original defendant which was well before the receipt of her new title deed dated 27th July 1983, as opposed to the grant to the Plaintiff in 411t March 1990 which was long after the original defendant started various court actions including the institution of this suit."\r\nThe above is a correct resume of the chronology of events in this appeal. The Court of Appeal also aptly explained the dubious role played by the Asere Stool in muddying the waters.\r\nWe cannot but agree with the Court of Appeal that judicial notice is taken of problems relating to changes in succession to traditional stools and problems encountered by purchasers of land.\r\nThe Defendants were tricked into surrendering their mother''s original indenture indicating the grant to her by Nii Nikoi Olai Amontia IV the Asere Mantse who had died. If that document had not been taken away, it would have shown clearly that the Defendants grant was clearly made before Plaintiff. Even with the present state of the facts, it shows clearly that the Defendant''s conveyance is earlier in time to that of the plaintiff.\r\nThere is an obligation on a grantor, lessor or owner of land to ensure that any grant he purports to convey to any grantee, or lessee is guaranteed and that he will stand by to defend the interest so conveyed to any grantee or lessee.\r\nThis principle was explained by 011ennu J (as he then was) in the case of Bruce v Quarnor & Others [19591 GLR 292 at 294 as follows:\r\n"By native custom, grant of land implies an undertaking by the grantor to ensure good title to the grantee. It is therefore the responsibility of the grantor where the title of the grantee to the\r\n15\r\n \r\nland is challenged, or where the grantee''s possession is disturbed to litigate his (the grantor''s) title to the land. In other words, to prove that the right, title, or interest which he purported to grant was valid".\r\nIt would appear that the Co-plaintiff, by joining the suit to protect or defend the plaintiff''s title, did just that. But then, this court would have to consider whether on the basis of the evidence on record, the Co-plaintiffs had any title remaining in them to have conveyed to the plaintiff in any event.\r\nThis is because, there is overwhelming evidence on record that the Defendant had an earlier conveyance prior to the Plaintiff''s conveyance on the assumption that the parties in this case are dealing with one and the same parcel of land.\r\nAcquah J, (as he then was) in the unreported Ho, High Court case Suit No. L/523/90 dated 24th October 1991 entitled Helen\r\nAbdallah & 4 Others - Plaintiff v Mr. and Mrs. Nunyuie - Defendants, Kwasi Degbadzor & Anr - Co-Defendants relying on the Court of Appeal case of Wordie v Awudu Bukari [1976] 2 GLR at 381, held in the Ho High Court case as follows:\r\n"Be that as it may, since the plaintiffs, notwithstanding their statement of claim and Exhibit A, now concede that the land belongs to the Akpomegbe family, and from my holding that Akpo sold same in his own right as his father''s property, it follows that Akpo did not have title in the transaction he concluded with the late Madam Tamakloe. The principle nemo dat quod non habet therefore applies. Accordingly, although the plaintiffs Exhibit A is valid so far as the necessary legal formalities are concerned, yet it conveyed nothing to the plaintiff''s mother."\r\nThis court also held on the nemo dat quod non habet maxim in the unreported consolidated suit No. 81/92 and L. 20/92 dated 16th March 2011 entitled Mrs. Christiana Edith Agyakwa Aboa \r\nPlaintiff /Respondent /Respondent v Major Keelson (Rtd) - Defendant/Appellant/Appellant and Okyeame Yima & Anr -\r\n16\r\n\r\n \r\nPlaintiff/Respondents/Respondents	v Major Keelson \r\nDefendant/Appellant/Appellant as follows:\r\n"It can thus be safely concluded that, the principle nemo dat quod non habet applies whenever an owner of land who had previously divested himself of title in the land previously owned by him to another person, attempts by a subsequent transaction to convey title to the new person in respect of the same land cannot be valid. This is because an owner of land can only convey what he owns, and having already divested himself of title, the new occupant of the Begoro Stool Nana Antwi Awuah III cannot revoke what his predecessor had done."\r\nSee also Sasu cr Amua Sakyi [1987-88] 2 GLR 221, holden 7 at\r\npages 241 per Wuaku JA (as he then was).\r\nIt is therefore clear that, assuming the disputed land is the same\r\nparcel of land that both Plaintiff and Defendants lay claim to, on\r\nthe principle of nemo dat quod non habet, the Plaintiff must still\r\nfail in his appeal. The Court of Appeal was thus right in dismissing\r\nthe appeal.\r\nCONCLUSION\r\nIn the premises, this appeal fails and is accordingly dismissed.\r\nSave for the deletion of the order contained in the last sentence on\r\npage 191 of the appeal record to wit that "and since the\r\ndefendants are the only claimants they are entitled to be\r\ndeclared indisputable owners of the land" the entire Court of\r\nAppeal judgment of 22nd July, 2010 is hereby affirmed. The\r\nPlaintiffs case thus fails in its entirety.\r\n(SGD) J. V. M. DOTSE\r\n[JUSTICE OF THE SUPREME COURT]\r\n(SGD) S. A. B. AKUFFO [MS.] [JUSTICE OF THE SUPREME COURT]\r\n17\r\n\r\n \r\n(SGD) DR S. K. DATE-BAH\r\n[JUSTICE OF THE SUPREME COURT]\r\n(SGD) S .0. A. ADINYIRA (MRS.) [JUSTICE OF THE SUPREME COURT]\r\n(SGD) V. AKOTO-BAMFO [MRS.]\r\n[JUSTICE OF THE SUPREME COURT]\r\nCOUNSEL.\r\nCHARLES BAWADUAH FOR THE APPELLANT.\r\nGODWIN K. NTONY FOR THE RESPONDENT.\r\n--ti-- "\r\na;-, I si ''4 "	-	‘t,c.__''22 -\r\n,	\\ )I -,._ \\C %"c\r\n\\\r\nU-- ,	—\r\n,\r\nC\r\n\\ ,0,-,\r\n)\r\n18\r\n', '../links/cases/Document (121).pdf', 'Yes', 'DATE-BAH JSC, ADINYIRA (MRS) JSC, DOTSE JSC, AKOTO-BAMFO (MRS.) J.S.C', '2012', 'supreme', '<i><b><font face="Times New Roman" size="2">Evidence - Burden of proof - Discharge of burden - Onus on plaintiff to adduce evidence to support claim - Failure to discharge burden - Documentary evidence must have precedence over oral evidence - Evidence Act 1975, ss.10 and 14 Land Law - Determination of priority grants - Application of the nemo dat principle - Priority in favour of the defendant. </font></b></i><br>', 'AKUFFO (MS), J.S.C', 'Civil', '', 'J4/34/2011', '', '', 'supreme', '2012-02-22', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(526, 'NII PAUL AYITEY TETTEH SUBSTITUTED FOR BY ARTHUR HAMMOND TETTEH QUARCOO,\r\nSUING FOR HIMSEIF AND AS HEAD OF ONAMROKOR ADAIN FAMILY OF ACCRA  ---  PLAINTIFF/RESPONDENT/RESPONDENT\r\nVRS\r\n1.B.A. QUARCOO (DECEASED) H/NO.24 OKAITEI-NETTEY STREET KORLE WORKON, ACCRA 2.JAFRO MENSAH LARKAI H/NO.23 DOMIABRA STREET,KOTOBABI,ACCRA  --- DEFENDANTS/APPELLANTS/APPELLANTS\r\nIN CONSOLIDATION WITH 1.B.A. QUARCOO H/NO.24 OKAITEI-NETTEY STREET KORLE WORKON, ACCRA  ---PLAINTIFF/APPELLANT/APPELLANT 2.JAFRO MENSAH LARKAI H/NO.23 DOMIABRA STREET,KOTOBABI, ACCRA.SUING FOR ON BEHAIF OF THE ONAMROKOR ADAIN FAMILY OF ACCRA  --- PLAINTIFF/APPELLANT/APPELLANT \r\nVRS 1.ARTHUR HAMMOND TETTEH QUARCOO  --- 1ST DEFENDANT/RESPONDENT\r\n2.JUSTICE AYAA CUDJOE, ADABRAKA OFFICIAL TOWN, NEAR ROXY CINEMA, ACCRA  --- 2ND DEFENDANT/RESPONDENT/RESPONDENT', '			\r\n\r\nCORAM: ATUGUBA, 1S.0 (PRESIDING) )!	I	DATE-BAH, J.S.C.\r\nANSAH, J.S.C. ADINYIRA, J.S.C.\r\n-	OWUSU, J.S.C.\r\n \r\nNil PAUL AYITEY TETTEH\r\nSubstituted for by ARTHUR HAMMOND TETTEH QUARCOO, suing for himself and as Head of Onamrokor Adain Family of Accra\r\nVRS\r\n1.	B.A. QUARCOO (DECEASED) H/NO. 24 Okaitei-Nettey Street Korle Workon, Accra\r\n2.	]AFRO MENSAH LARKAI H/NO. 23 Domiabra Street, Kotobabi, Accra\r\nIN COT!SOUDATION WITH\r\n1.	B.A. QUARCOO\r\nHMO. 24 Okaitei-Nettey Street Korle Workon, Accra\r\n2.	JAFRO 11ENSAH LARKAI\r\nH/NO. 23 Domiabra Street,\r\nKatobabi, Accra\r\nSuing for on behalf of the\r\nOnamrokor Adain Family of Accra\r\nVRS\r\n1. ARTHUR HAMMOND TETIEH QLJARCOO\r\n \r\n''RVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHAI\r\n \r\nnear Roxy Cinema, Accra.\r\nPractice and Procedure— Suing in different capacities — Person suing in more than one capacity — Death of person— Survival of cause of action— Consolidation of suits — Only proper where cause of action in both suits survives — Effect of dismissal of one of the suits.\r\nApplication for substitution of deceased — Failure to move motion for substitution — Case proceeded as if substitution done — Effect\r\nJudgment —Wrong reasons in support — Effect on validity of judgment\r\nJUDGMENT\r\nATUGUBA J.S.C.:- \r\nIn this consolidated suit the plaintiff in the first suit no. F2453/2002 sued as per the indorsement on the writ "for HIMSELF AND AS THE HEAD OF ONAMROKO ADAM FAMILY HOUSE NO.146 AVENOR - ACCRA\r\nV.\r\n1.	B.A. QUARCOO 11/N0.24 OKATEI-NETTEY STREET, KORLE WORKO-ACCRA\r\n2.	JAFRO LARKAI\r\n11/N0.23 DOMIABRA STREET KOTOBABI -ACCRA"\r\nClaiming\r\na.	Declaration that the Plaintiff has been Head of Family of Onamrokor Adain family since 1994 and has remained same to date.\r\nb.	Perpetual injunction against the Defendants, from upholding themselves as Head and Assistant Head of the Onamrokor - Adain family.\r\nc.	Declaration that by the Court of Appeal''s judgment of 16/12/80 the Defendant is estopped from ever contesting the Headship of the family of Onamrokor -\r\nd.	General damages for personal injury done to the Plaintiff as a result of the activities of the Defendants in relation to the Headship of the family since the beginning of this year i.e. 2002.\r\ne.	Publication by the Defendants in all newspapers in country and sending of circulars to all the relevant official and customary authorities denying their earlier publications and withdrawing same\r\nf.	Costs."\r\nrs\r\n \r\nsuing for and on behalf of the Onamrokor - Aclain Family of Accra as plaintiffs versus (1) ARTHUR HAMMOND TETTEH QUARCOO and (2) JUSTICE AYAA CUD]OE as defendants" claiming\r\n1. An Injunction to restrain the defendants by themselves, their servants, assigns\r\nor	agents, or otherwise howsoever, from installing a chief at Dome and burying Paul Ay/tey Tetteh (Deceased) at the cemetery reserved for the substantive head of the Onamroko Ada/n family of Accra\r\n2.	Costs\r\n3.	Any other reliefs that this Honourable Court may deem fit\r\nDated this 13th day of January 2005, at Okona Chambers, Accra."(e.$)\r\nThe Grounds Of Appeal\r\nThis appeal emanates from the 2 d plaintiff/appellant/appellant in the second of the said two consolidated suits, the 1St plaintiff having died. His grounds of appeal are as follows:\r\n(i) Having held that the action which was instituted by Paul Ayitey Tetteh was a personal one which did not survive his death, the Court of Appeal erred in not holding further that B.A. Quarcoo and Jafro Mensah Larkai thereby became free to manage and control affairs of the family in the respective capacities they had been appointed to in the family on account of which Paul Ayitey Tetteh took action against them.\r\n(ii) Since the defendants in that second suit do not occupy any traditional positions within the Onamrokor Aclain Family it was wrong for the Court of Appeal to hold that Paul Ayitey Tetteh could be buried by them as head of that family against objection by the family led by B.A. Quarcoo and Jafro Mensah Larkai.\r\n \r\n3\r\n \r\n\r\n \r\n(iii)	Having held that the consolidation of the two suits for trial was wrong\r\nand the High Court also had no jurisdiction to entertain the claim against\r\nJustice Ayaa Cudjoe which was a cause or matter affecting Chieftancy could not and had not been substituted for Paul Ayitey Tetteh in the first suit as Plaintiff, the Court of Appeal erred in not nullifying the entire trial and directing a retrial of the second suit as far as it related only to the right of the defendants to conduct the burial of Paul Ayitey Tetteh as a departed head of family.\r\n(iv)	The Court of appeal erred in directing the Onamrokor Adain Family to\r\nget united and bury Paul Ayitey Tetteh as its head of family when Paul Ayitey Tetteh was unable to establish that he was still head of family when he died and the two defendants in the second suit did not have the locus standi to prove that he was head of family when he died."\r\nThe first ground of appeal, subject to what herein later will be said of the first leg thereof, is quite puzzling. If the Court of Appeal was right in holding that the first action moritur cum persona then there was nothing in respect of which the court could adjudicate and declare rights of any sort. If it survived then they could only succeed per allegata et pro bata.\r\nAs to the second ground of appeal it is based on unpleaded and unsubstantiated grounds. It is purely speculative since there is no issue or evidence in the case touching and concerning whether "the defendants in that second suit do not occupy any traditional positions within the Onamrokor Adain Family" or whether the occupancy of any and if so of what, traditional positions, is prerequisite of those who will effect the burial of the late Paul Ayitey Tetteh. In any case the Court of Appeal did not say that the burial of the said deceased should be effected by the defendants.\r\n4\r\n \r\nThe Actio Personalis Rule\r\nAnd now to the third ground of appeal, which is the headquarters of the appeal. The first leg of the first ground of appeal though infelicitously formulated, taken together with this ground of appeal, is that the consolidation in the circumstances of the case vitiated the whole trial and since the first suit is non est either because it did not survive the death of Ayitey Tetteh or because there was no subsequent substitution the only surviving suit is the second suit, BFA 31/2005 which ought to be remitted to the trial court for trial de novo.\r\nIt is however clear from the record of proceedings that the plaintiff in the said first suit sued in a representative capacity on behalf of himself and the Onamrokor Adam Family, as head thereof. It is clear from reliefs (b) (c) and (e) indorsed on his said writ supra, that they are for the benefit of the said family. So also are most of the averments in the plaintiff''s statement of claim. Some of them are as follows:\r\n"5.	The Plaintiff says that he has since 1994 exercised all the rights and obligations both customary and Official attached to the said status from 1994 and is still exercising same and some of the rights and obligations are representing the family in their many cases in court especially over the Dome land the property of the family and signing all documents alienating the family''s properties with concurrence of the principal members of the family and the Secretary of the Council and performing the customary duty of distributing part of the family''s money to the 6 houses for the annual Homowo Festival.\r\nX	x	x\r\n9. However as per the Court of Appeal judgment given on 16/12/80 in the case of: B.A. QUARCOO VRS MANYE 0-ADORKOR ALLOTEY & 5 OTHERS the l Plaintiff herein was adjudged to have been properly destooled as\r\n \r\n5\r\n \r\na joint Head of Onamrokor - Adain family for "Mismanagement of family Property, failure to account for family monies collected by him, unauthorized sales of family lands, refusal to Co-operate with family Council and lack of respect and consideration of the other joint head, Manye Adokor Allotey as well as the elders of the family constituting the family Council."\r\nx	x	x\r\n12.	The Plaintiff says that the 15t Defendant is by the said judgment estopped to put himself forward as a head of the Onamrokor-Adain family even if he were to be a true member of the family.\r\n13.	The Plaintiff therefore says that it is very contemptuous on the part of the Defendants herein and all their collaborators to have made various publications in the newspapers and in the form of circulars to both Official and Customary institutions in the country announcing the 1st Defendant as having been appointed the Head of Onamrokor-Adain family with the 2 nd Defendant as his deputy as from 12/4/2002 in the face of the judgment and without the knowledge of the members of the present council of the family headed by the Plaintiff.\r\nx	x	x\r\n15.	The Plaintiff says that the 2"d Defendant who is a true son of the Onamrokor-Adain family and is grown enough to have been well seized with the facts here presented has teemed up with the 1st Defendant because he knows that the 1st Defendant is over 90 years in age and therefore he can use him to alienate the lands of the family and misappropriate the proceeds.\r\n16.	This assessment of the 2nd Defendant is born out by the fact that it is he who has put up a sign board directing people who want part of the family''s land to his house.\r\n \r\nme\r\n \r\n17. The Plaintiff again says that he is convinced in his such assessment of the 2 Ild Defendant by the directions as per a drawing he has obtained a copy of, sent to the Land Registry and Lands Commission directing interested land acquisitioners to his house.\r\nX	x	x\r\n21. The Plaintiff says that he sees the actions of the Defendants as a calculated plan to bring confusion in the family by influencing the ignorant young and older members of the family to be seem to be supporting them with promises of financial gain from the monies but Plaintiff says that a number of those collaborators of the Defendants claimed to have elected them to the positions they now claim to hold are not true members of Onamrokor-Adain family."\r\nThis suit was supported by the evidence of witnesses from the family. It is trite law that a person can sue in several capacities, see Akrong v. Bulley (1965) GLR 496 S.C. Assuming therefore that the personal part of the suit did not survive Paul Ayitey Tetteh''s death that of the family marched on. Though the family sues per its head or other proper person it is legally distinct from such a person as an individual and does not die (unless by supernatural causation) with such an individual. There is close legal analogy between the head of a family and the occupant of a stool. Hence in Attah v. Aidoo(1968)LR 362 at 365 Archer J (as he then was) said:\r\n"Mr. Gordon R. Woodman, in an exhaustive article on ''Developments in pledges of land in Ghanaian customary law" in [1967 J.A.L. 8 at pp. 9-10 states:\r\n"There is no direct authority on the consents necessary for a valid pledge of an interest held by the customary-law corporate persons the stool and the family."\r\n \r\n7\r\n \r\nSee also Mensah v. Lartey(1963)2 GLR 92 S.C.\r\nIt is however true that this court has held in In re Kwao (Decd; Nartey v. Armah (1989 - 90) 2 GLR 532 S.C. as stated in the headnote as follows:\r\n"The plaintiff in a protracted James Town Chieftaincy dispute, sued at the Ga Traditional council for a declaration as to the status of the defendant, N/i Kwao II, the incumbent occupant of the James Town stool. The dispute eventually came on appeal before the judicial committee of the National House of Chiefs (NHC) which held, inter alia, that N/i Adja Kwao II was not a member of the two partrllineal ruling houses of James Town and therefore his purported enstoolment as the chief of James Town was null and void and not in accordance with custom; in effect he was not a royal of the stool. Nii Adja Kwao II therefore applied to the NHC for leave to appeal to the Supreme Court against that decision but the application was refused on August 1985 for having been brought out of time, ie not within the stipulated fourteen days'' deadline. N/i Adja Kwao therefore filed a motion in the Supreme Court for spec/al leave to appeal following the refusal of the NHC to grant leave but he died before the hearing of the application which was thus struck out. Consequently, in the instant proceedings, the applicant, claiming as the head of family of the deceased defendant, filed a motion in the Supreme Court for an order of substitution for the deceased.\r\nHeld, dismissing the application (Adade and Wuaku JJSC dissenting): the plaintiff (who had sued the defendant as a person unlawfully claiming as the chief of James Town) had to lead evidence to show that the defendant, N/i Adja Kwao, was not descended lineally from any member, male or female, of either of the two patrilineal ruling houses of James Town or was descended from a female member only, that if he descended from a male member he had not been properly nominated, elected and enstooled as a chief; that if he had been properly nominated, elected and enstooled as a chief, he had been\r\n8\r\n \r\ndestooled in 1971; and if he had not been destooled, that he ought to be destooled. An action of that nature was not a representative one to be kept alive after the death of the person whose status was being challenged. At best the interest of the applicant in the suit was sentimental only. The real test was whether the app//cant had any personal interest in the outcome of the appeal. If he had not, he ought not to be allowed to intermeddle with it. R v Rowe [1955] 1 QB 573, CCA applied; Hodgson v Lakeman [1943] 1 KB 15 doubted."(e.$)\r\nIt must be said with the greatest respect, that the reasoning of Adade J.S.C. (dissenting) at 541-545 that the common law principle, actio persona/is moritur cum persona did not apply to the case in view of some of the plaintiff''s averments to the effect that the defendant was not a member of any of the royal families of the James Town Stool, is preferable. In any event both the majority and the minority therein agree as to the test for the survival of a cause of action, namely that '' The real test was whether the applicant has any personal interest in the outcome" of the case or if it can be shown that "somebody would be affected by the judgment of the court."\r\nApplying those principles to the facts of this case as earlier set out supra, it cannot be said that the first of the consolidated suits in this case mortur cum persona of Nil Paul Ayitey Tetteh.\r\nIt must however be emphasized in this case that not only were there several averments touching and concerning the family of which Nii Paul Ayitey Tetteh was head but that that family was a direct party to the action. That being so the effect of the death of NO Paul Ayitey Tetteh is analogous to the effect of the death of a stool occupant on a suit to which the stool is a party. That legal position has been stated in Ababio v. Tutu (1962)1 GLR 489 S.C. as per headnote (2) as follows:\r\n\r\n \r\n"In this appeal from a judgment of the High Court, Kumasi, disallowing the plaintiff-appellant''s claim for damages for trespass to land, it was argued that, (1) the judge had erred in giving judgment for the defendant as there was no defendant before the court. Counsel for the plaintiff-appellant relied on the following extract from the record of proceedings:\r\n"On Wednesday, 11 January, 1961, before Apaloo, J.\r\nPart-Head—Resumed from 1-11-60 p. 99.\r\nAmoaten for plaintiff.\r\nLutterodt for defendant.\r\nL utterodt - I understand Chief of Assachere has abdicated and no one occupying stool. I ask for short adjournment to mate a substitution.\r\nAmoaten: - I must point out this case started long ago. It is most unfortunate. I am for plaintiff and suggest some witnesses be taken.\r\nCourt. - This writ was issued since 1937 and has had a most unfortunate career. It was part-heard from 1-11-60 and fixed for two days. I am not prepared to give opportunity for the hearing of this suit to be prolonged further, especially in view of the fact that if I accede to this application now, this suit may not be heard this year. The application for adjournment is refused and I rule that hearing should proceed."\r\nX	x Held:\r\nX	X	x\r\n(2)	a stool is a corporation sole and whenever a stool comes to be properly and legally before the court, should the stool occupant thereafter cease to hold office, he, the stool occupant ceases to be before the court, but not the legal entity which is the stool. Dicta of Deane, C .J. in (1930) I W.A.C.A. 80 at p. 83 cited; Quarm v Yankah II\r\n(3)	since Order 16, rule 36, provides in certain eventualities for the trial of an act/on to proceed in the absence of the defendant, it is the responsibility of\r\n10\r\n \r\nthe elders of the stool to take steps to appoint another representative and -	get h/rn substituted for the representative who has ceased to be before the court;\r\n(4) the plaintiff-appellant was perfectly entitled to insist on the case proceeding, but having exercised his undoubted right of prosecuting his claim in the absence of the defendant, he cannot now complain that there was an abdication and no substitution and for this reason ask that the proceedings be declared null and void. Nana Gyarku III v. Joseph Brew, Privy Council, November 20, 1956, unreported and St. Victor v. Devereux (1845) 14 L.J. Ch. 224 at p. 246 applied;"(e.$)\r\nThe case of Re: Gomoa Ajumako Paramount Stool (no.2); APPLICATION FOR SUBSTITUTION, ACQUAH APPLICANT;KWA NANA v. APAA (2000) SCGLR394 Stands on its own facts.\r\nThat being so the consolidation of the two suits in this case was validly done even though at that time Nii Paul Ayitey Tetteh was dead.\r\nBut if even the family itself were not a direct party to the suit since as aforesaid there were several averments in the suit touching and concerning the interests of the family an application for substitution after Nii Paul Ayitey Tetteh''s death to protect the family interests as was in fact done in this case was proper.\r\nThe Validity of Substitution\r\nIt is true that the formal motion for the substitution was never moved or granted. Nonetheless it is very clear from the record of appeal that the suit was tried throughout as a consolidated suit with Nii Paul Ayitey Tetteh as substituted by Arthur Hammond Tetteh Quarcoo, without objection. Indeed the Plaintiffs in the second suit, BFA 31/2005 averred in paragraphs 2 to 4 of their statement of claim as follows:\r\n"2. The Plaintiffs were elected by the heads of the six (6) houses constituting the\r\n11\r\n \r\n—	Onamroko Aclain Family of Accra on 25th March 2002 by a majority of five\r\n-	(5) to one (1), according to customary law and usage.\r\n3.	The Caretaker of the Onamrokor Adain Family properly prior to 25111 March, 2002, Paul Ayittey Tetteh, filed a suit challenging the election of the Plaintiffs, which suit - Suit No. F2453/2002 - is pending at an Accra High Court.\r\n4.	The said Paul Ayittey Tetteh has since died and has been substituted by the jst defendant herein in the said suit." (e. s)\r\nIn those circumstances the said substitution ought to be deemed as having been effected, unhampered by any formalistic procedural ceremonies under the Rules of Court, otherwise the Rules will become masters rather than servants. Thus in Re Stone and Saville''s Contract (1963) I AlTER 353 C.A at 357-358 Upjohn ''Li. said of an issue that was fought out between the parties although it was not raised in the summons, as follows: "It seems to me that, on the facts of this case, the summons, as treated as amended (because that is really what happened), is perfectly proper to raise the issue" .(e.$) Again in Obeng v. Boateng (1966) GLR 689 at 696 Amissah J.A.(siWng as a High Court Judge), said:\r\n"I have noticed that the second defendants filed a statement of claim in the third party proceedings to which the third parties fl/ed a defence, although there is no record of their having entered an appearance to the third party notice.\r\nx	x	x\r\nAlthough the third parties did not formally enter an appearance, they have taken sufficient part in the application for directions to stop anyone from complaining about their failure technically to comply with the provision on entry of appearance: see Boyle v Sacker. "(e. s)\r\n \r\n12\r\n \r\nEffect of Wrong Reasons\r\nFrom all the foregoing it is clear that the Court of Appeal erred in nullifying suit no. F.2453/02. Its confirmation of the trial judge''s findings concerning the headship of the Onamrokor Adain Family is therefore sustainable.\r\nA close study of the reasoning of the Court of Appeal reveals that it took the view that though (erroneously as hereinbefore demonstrated) suit no. F2453/02 was non existent and its consolidation with suit no. BFA 31/2005 was a nullity, yet the trial of the latter suit was not thereby vitiated.\r\nAfter anxious reflection we think that this view is right. If suit no. F2453/02 did not exist that cannot mean therefore that suit no. BFA 31/2005 did not exist. If so the purported trial of the latter suit together with another suit which proves to be non existent cannot nullify the trial concerning the latter suit. After all the common thread in both suits was the headship of the Onamrokor Adain Family and evidence was commonly led as to that issue, there was therefore no question of severability. The parties led their evidence in dual capacities reflective of the two suits at the same time.\r\nThe element of nullity in proceedings is not always disastrous. In Addal v. The Republic (1973) I GLR 312 CA the trial judge took evidence of a witness when the jury was not yet empanelled and he directed the jury on that evidence as well. It was held that though the initial part of the trial was a nullity there was sufficient evidence aliunde to support the conviction.\r\nAgain in Obadzen II v. Onanka 11(1982-82) GLR 46 the Court of Appeal sustained the trial although the suit had been transferred to the High Court for trial by a magistrate contrary to the stipulated statutory procedure, holding that after all the High Court had concurrent jurisdiction over the case. In this new judicial era of substantial as opposed to technical justice we would go along with that approach.\r\n \r\n13\r\n \r\n\r\n \r\nIn any event as we elaborately demonstrated earlier the reasoning of the Court of Appeal concerning the validity of the consolidation and existence of suit no. F2453/2002 is erroneous. That being so it means that the Court of Appeal arrived at the correct decision though for wrong reasons in the steps leading to the same. That cannot vitiate their judgment because it is settled law that an appellate court can affirm the decision of a lower court which is correct but is founded on wrong reasons. Thus in Abakah v. Ambradu (1963)1 G.L.R. 456 at 464 Mills-Odoi JSC delivering the judgment of the Supreme Court said:\r\n"The judgment of the learned trial judge was based on wrong application of the law in Lartey v. Mensah (supra) which cannot be supported. But a Court of Appeal is entitled to uphold a judgment, if proper grounds exist on the record to justify the judgment, even though it cannot be supported for the reasons given by the court which gave it."\r\nLikewise, in Seraphim v. Amua-Seky/ (1971) 2 GLR 132 at 134 Apaloo 3. A. bluntly said : ".... Indeed in this court, no judgment is upset on the ground that its ratio is erroneous if there is another sound basis on which it can be supported." See also Duah v Debra (1967) GLR 456 C.A, Benneh v. The Republic (1971) 2 GLR 354 C.A at 360 per Koi Larbi JSC, Appianing v. The Republic (1972)1 GLR 123 C.A and Mensah V. Ghana Football Association (1989-90)1 GLR I S.C. In the last mentioned case, at p.8 Amua-Sekyi JSC speaking for the majority said:\r\n"...Even though we are unable to agree with the approach of the Court of Appeal to the matter, we think that its decision can be supported in that, in the circumstances of this case, it would be unjust to refuse a stay of execution."\r\nAll this is statutorily supported by the Rules of this Court, C.116, r.6(6)-(8) as follows:\r\n"(6) The appellant shall not, without the leave of the Court, argue or be heard\r\nin support of a ground of appeal that is not specified as a ground of appeal in\r\nthe notice of appeal.\r\n(7) Despite subrules (1) to (6), the Court,\r\n14\r\n \r\n\r\n \r\n(a)	may grant an appellant leave to amend the ground of appeal on the terms specified by the Court; and\r\n(b)	shall not, in deciding the appeal, confine itself to the grounds\r\nset forth by the appellant nor shall the Court be precluded\r\nfrom resting its decision on a ground not set forth by the\r\nappellant\r\n(8) Where the Court intends to rest a decision on a ground not set forth by the appellant in the notice of appeal, or on a matter not argued before it, the Court shall afford the parties reasonable opportunity to be heard on that ground or matter without re-opening the whole appeal."(es)\r\nThe last ground of appeal is clearly imaginary. The Court of Appeal made no such direction as is therein complained of and even if it did It was warranted by its concurrence on the issue of headship of the family, with the findings of the trial judge.\r\nFor all the foregoing reasons the appeal is dismissed.\r\nW. A. ATUGUBA (JUSTICE OF THE SUPREME COURT)\r\nDATE-BAH (DR) (JUSTICE OF THE SUPREME COURT)\r\n1 ANSAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nS. 0. A. ADINYIRA (MRS) (JUSTICE OF THE SUPREME COURT)\r\n15\r\n \r\nR. C. OWUSU (MS)\r\n(JUSTICE OF THE SUPREME COURT)\r\nCOUNSEL\r\nJAMES AHENKORAH FOR JAFRO MENSAH LARKAI, THE APPELLANT.\r\nNATHANIEL MYERS FOR ARTHUR HAMMOND TETTEH QUARCOO AND FOR ONAMROKOR ADAIN FAMILY, THE 1ST RESPONDENT.\r\nMRS. M. Y. ACHIAMPONG FOR JUSTICE AYAA CUDJOE, THE 2ND RESPONDENT.\r\nf\r\n''	Iifrai Ct\r\n', '../links/cases/Document (109).pdf', 'Yes', 'DATE-BAH,J.S.C., ANSAH,J.S.C., ADINYIRA,JSC, OWUSU,J.S.C.', '2009', 'supreme', '<i><b><font face="Times New Roman" size="2">Practice and Procedure - Suing in different capacities - Person suing in more than one capacity - Death of person - Survival of cause of action - Consolidation of suits - Only proper where cause of action in both suits survives - Effect of dismissal of one of the suits.<br>Application for substitution of deceased - Failure to move motion for&nbsp; substitution - Case proceeded as if substitution done - Effect<br>Judgment - Wrong reasons in support - Effect on validity of judgment</font></b></i><br>', 'ATUGUBA, JSC', 'Civil', '', 'J4/22/2008', '', '', 'supreme', '2009-05-06', ''),
(527, 'STANDARD CHARTERED BANK GHANA LTD  --- PLAINTIFF/APPELLANT/APPLICANT\r\nVRS\r\n1.WESTERN HARDWOOD LTD\r\n2.FARROUK BARRAKEH  --- DEFENDANTS/RESPONDENT/RESPONDENTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nTHE SUPREME COURT\r\nACCRA - GHANA\r\nCORAM: ATUGUBA, JSC (PRESIDING) ANSAH, JSC\r\nADINYIRA (MRS.), JSC\r\nOWUSU (MS.), JSC\r\nB.BONNIE, JSC\r\nCIVIL MOTION SUIT NO. J8/50/2009\r\n20TH MAY, 2009\r\n\r\n	\r\n\r\nPractice and Procedure - Stay of execution —Powers of the Supreme Court—C./ 16, Rule 20\r\nGrant of stay of execution on terms by Court of Appeal—Irreversible —Application for suspension of order Effect of failure to apply to Court of Appeal - C. /. 16, Rule 20(2)\r\nApplication for stay of execution of High Court Judgment - Outside Supreme Court jurisdiction - C.!. 16, Rule\r\n20(1).\r\nRULING ATUGUBA, JSC:\r\nThe applicant moves "this honourable court to suspend the order of the Court of Appeal: Their Lordships Quaye, Addo and Acquaye, JJA dated 30 March 2009 and to stay execution of the judgment of the High Court, Sekondi, Coram: His Lordship, Honyenuga dated 30 May 2008 upon the grounds contained in the accompanying affidavit and for any further order(s) as this honourable court may deem meet" (The emphasis is ours).\r\nThe facts grounding this application are stated in the following relevant paragraphs of the supporting affidavit:\r\n"(3)	On 30 May 2008, the High Court, Sekondi, presided over by His Lordship, Honyenugah, J., delivered judgment in the suit between the plaintiff bank and the defendants.\r\n(4)	In the said judgment, His Lordship ruled in favour of the defendants-respondents-respondents on their counterclaim and also awarded general\r\n)ICIAL SERVICE OF GHANA JULH(IAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDiCiAL SERVICE OF GHANA\r\n \r\ndamages of Gh0300,000 together with costs of Gh6,000 against the plaintiff-appellant-applicant.\r\n(5)	Dissatisfied with the judgment, the plaintiff-appellant-applicant caused an appeal to be filed on its behalf challenging the judgment of the honourable court.\r\n(6)	On 14 July 2008, the plaintiff-appellant-applicant filed a motion to stay execution of the judgment of the High Court, Sekondi pending appeal.\r\n(8)	On 19 February 2009, the High Court, Sekondi presided over by His Lordship, Agbevor J dismissed the plaintiff-appellant''s application to stay execution of the judgment of the court.\r\n(9)	On a repeat application to the Court of Appeal, Coram: Their Lordships Quaye, Addo and Acquaye JJA, the honourable court, on 30 March 2009 ordered the plaintiff-appellant-applicant to pay half of the judgment debt in the sum of Gh0150,000 to the defendants-respondents-respondents pending the determination of the appeal. Annexed and marked as exhibit M is the ruling of the Court of Appeal. It is the contention of the plaintiff¬appellant-applicant that exhibit M amounts to a refusal of the application for stay of execution.\r\n(10)	The plaintiff-appellant-applicant is dissatisfied with the ruling of the Court of Appeal because in its opinion, the defendants-respondents-respondents are currently impecunious and do not have the capability to pay back the money to the plaintiff- appellant-applicant should its appeal be successful and has accordingly filed an appeal against the said ruling in this honourable court.\r\n(11)	It is the prayer of the plaintiff-appellant-applicant that the ruling of the Court of Appeal be reversed and an order granted to stay execution of the judgment of the High Court, pending appeal since the appeal has good prospects of success.\r\n(12)	Your Lordships'' reversal of the ruling of the Court of Appeal delivered on 30 March 2009 would obviate any hardship which might be visited upon the plaintiff- appellant-applicant in its efforts to recover the amount of GhØ15O,000 which it was ordered to pay by the Court of Appeal,\r\ntaking into consideration the fact that the defendants-respondents-respondents do not have liquid cash." (The emphasis is ours).\r\nIt is also pertinent to set out in full the ruling of the Court of Appeal (as per exhibit M) as follows.\r\n"Court.- We have carefully considered the issues before us in this application. Since the appeal is pending, it is our duty to hold the balance evenly between the parties, taking into account, inter alia, the issues of\r\nhardship, the entitlement of the victorious party in the t,ial court and the\r\ntaking of steps not to make the appeal, if successful, nugatory. We\r\naccordingly order that the application be granted subject to terms, and execution of the judgment of the trial court stayed subject to the applicant judgment debtor paying to the defendants judgment creditors the sum equal to fifty per cent of the judgment debt and also the whole of the costs awarded in the trial court within thirty days from the date of this order, failing which this order would lapse."\r\n(The emphasis is ours).\r\n \r\nFrom the foregoing, it is clear that the applicant bank is seeking the following reliefs from this court:\r\n(a)	the suspension of the order of stay of execution granted on terms by the Court of Appeal;\r\n(b)	reversal of that order; and\r\n(c)	stay of execution of the judgment of the trial High Court.\r\nThe powers of this court with regard to stay of execution pending appeal are provided in rule 20 of the Supreme Court Rules, 1996 (Cl 16), as follows.\r\n"20. Effect of appeal\r\n(1) A civil appeal shall not operate as a stay of execution or of\r\nproceedings under the judgment or decision appealed against\r\nexcept in so far as the Court or the Court below may otherwise\r\norder.\r\n(2) Subject to these Rules, and to any other enactment governing appeals, an application for stay of execution or of proceedings shall first be made to the Court below and if that court refuses to grant the application, the applicant may repeat the application before the Court for determination. (The emphasis is ours).\r\nWith regard to the suspension of the order of stay of execution granted on terms by the Court of Appeal. this court has recently shown in the case of Anang Sowah v Adams. MJ8/2/2009, given on 14 January 2009 (to be reported in [2009] SCGLR 111) that contrary to the earlier decision of this court in Takyi v Ghassoub (Ghana) Ltd [1987-88] 2 GLR 452, this court can, in an appropriate case, grant a "stay of proceedings under the judgment or decision appealed against," under rule 20(1) of the Supreme Court Rules, 1996 (Cl 16), and not only in respect of execution process. The scope of our jurisdiction in that regard was therein set out. In this regard we would, in this modern era of functional or purposive justice liberally interpret the word "proceedings" in rule 20(1) as referring to any steps that are required or are necessitated, and not merely occasioned, by the judgment appealed from.\r\nIn the instant case, the grant by the Court of Appeal of the stay of execution on terms is not executable, in the sense that the defendants cannot be compelled by any process to comply with the said terms. The said terms were solely for the personal benefit of the defendants and, save in very exceptional circumstances, a person can waive even a statute which confers a benefit on him: see Dhalomal v Puplampu [1984-86] 1 G LR 341. CA and Republic v High Court, Accra; Ex parte Asakum Engineering & Construction Ltd [1993-94] 2 GLR 643, SC. In this case, as the Court of Appeal indicated in its order of stay of execution, in the event of its non-compliance, it merely lapses see Ababio v Mensah [1989-90] 1 GLR 560, SC. However, since when the defendants decide to take advantage of the terms of the said conditional stay of execution, they would have been proceeding directly in compliance with the said order of the court, that step can be the subject- matter of an application for "stay of proceedings under the judgment or decision appealed against." "Judgment" in this context should include any order made by the court below, to which the appeal relates.\r\n \r\nBut even there the applicant bank has failed to make a prior application to the Court of Appeal after appealing from that order to this court as required by rule 20(2) of Cl 16. However, the applicant bank is of the view that, that step is pointless since the Court of Appeal would be unlikely to change its mind. This is not only speculative but a plea to us to ignore the plain requirements of the provision in rule 20(2). It is plain that we cannot so do. It would also mean that the invocation of the review jurisdiction of the High Court which, save in limited circumstances, has to be made to the judge who decided the case, has also to be judicially ignored. In any case, jurisdiction attaches to a court and not to a particular bench or judges: see Asare v The Republic [1968] GLR 37, CA (full bench) and Aidoo v Commissioner of Police (No 2) [1964] GLR 344, SC. Therefore, the application under rule 20(2) may not necessarily go before the same bench that dealt with it at first. This court is, however, a court of law and not a court of arbitrariness.\r\nAs regards relief (b) in the instant interlocutory application, namely, the reversal of the said order of the Court of Appeal, it is clearly not possible. And as to relief (c) above, ie an order to stay execution of the trial court''s judgment, it is plainly outside this court''s jurisdiction under rule 20(1) as explained by this court in Anang Sowah v Adams (supra) But the applicant relies heavily on the case of NDK Financial Services Ltd v Yiadom Construction & Electrical Works [2007-20081 1 SCGLR 93. The Editorial Note to that decision (as stated at page 95 of the Report) is the first indication that, that decision cannot endure for long. That reliance is per incuriarn of this courts unanimous decision in Republic v Duffour,'' Ex parte Asare [2007-2008] 1 SCGLR 394 where under the heading: "Contempt jurisdiction in respect of order confirmed on appeal" the court said at page 401:\r\n"The other reliefs, though enforceable, were not orders of this court but orders of the trial High Court which were merely confirmed by this court on appeal from the judgment of the Court of Appeal. It has sometimes been held in this court that such confirmed orders are enforceable by the confirming court. We think that, with the greatest respect, the better view is that such confirmed orders remain the orders of the court that made them and are to be enforced by the same court see Mosi v Bagyina [1963] 1 GLR 337, SC. Indeed, the nature of an appeal lends support to this view. An appeal is a plea to a higher court to correct the decision of a lower court which is contended to be wrong: see A/S Norway Cement Export Ltd v Addison [1974] 2 GLR 177, CA (full bench). If therefore the appellate court does not interfere with the decision below, one would have thought that the decision in question remains wholly that of the lower court. This is fortified by the principle that if a lower court''s judgment is confirmed on appeal, the judgment of the lower court is effective as from the date it was given by such lower court: see In re Debtor [1953] 1 WLR 1050 There is further fortification for this view in the several decisions of this court that where an appellate court dismisses an appeal without making any executable orders by itself, there cannot he an application for stay of execution pending an appeal from such a judgment: see Mensah v Ghana Football Association [2001-2002] SCGLR 318.\r\nThere are isolated decisions and dicta of this court tending to the contrary, but with the greatest respect, there is a heavy body of authorities in support of the view that orders which have been merely confirmed on\r\n \r\nappeal cannot be the subject of an application for stay of execution pending an appeal from such judgments." (The emphasis is ours).\r\nFrom early times, the highest courts in Ghana have held that the judgment of a lower court which has been affirmed on appeal remains the judgment of such lower court and not of the appellate court. See further Ware v Soboah [1960] GLR 212, SC in which it is stated in the headnote thus:\r\n''Held - the trial court in the circumstances was not competent to make a finding of joint ownership of the land, and that finding would, therefore, be deleted from the native court judgment. Save as so varied, the judgment of the Land Cowl stood. "(The emphasis is ours).\r\nSee also Sirebourv Dome [1962] 1 GLR 82 at 86.\r\nAgain in Kwashi v Boahene Adjei, CMJ8/39/2008, unreported, dated 28 October 2008, this court (Coram. Atuguba, Brobbey, Dr Date-Bah, Sophia Adinyira and Baffoe-Bonnie JJSC) unanimously dismissed an application for stay of execution in these words:\r\n"No appearance for or on behalf of the applicant. Application is dismissed for want of jurisdiction since the application could not relate to any legal proceedings that can be stayed at the Court of Appeal. Costs of GH2,000 for the respondents." (The emphasis is ours).\r\nFor the avoidance of doubt, we hereby depart from the decision of this court in the said NDK Financial Services Ltd v Yiadom Construction & Electrical Works [2007-20081 SCGLR 93.\r\nFor all the foregoing reasons the application is dismissed.\r\nW. A. ATUGUBA\r\n(JUSTICE OF THE SUPREME COURT)\r\nJ. ANSAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nS. 0. A. ADINYIRA(MRS)\r\n(JUSTICE OF THE SUPREME COURT)\r\n \r\n\r\nR. C. OWUSU(MS)\r\n(JUSTICE OF THE SUPREME COURT)\r\nP. BAFFOE-BONNIE\r\n(JUSTICE OF THE SUPREME COURT)\r\n \r\n\r\n	\r\n\r\n', '../links/cases/Document (110).pdf', 'Yes', 'ANSAH JSC, ADINYIRA (MRS) JSC, OWUSU (MS),J.S.C, B. BONNIE, J.S.C', '2009', 'supreme', '<i><b><font face="Times New Roman" size="2">Practice and Procedure - Stay of execution - Powers of the Supreme Court - C.I 16,Rule 20 Grant of stay of execution on terms by Court of Appeal - Irreversible - Application for suspension of order - Effect of failure to apply to Court of Appeal - C.I.16,Rule 20(2)<br>Application for stay of execution of High Court Judgment - Outside Supreme Court jurisdiction - C.I.16,Rule 20(1).</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J8/50/2009', '', '', 'supreme', '2009-05-20', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(528, 'AXES COMPANY LTD  --- PLAINTIFF/RESPONDENT/RESPONDENT\r\nVRS\r\n1.KWAME OPOKU 2.SYLOP COMPANY LTD 3.UNIQUE COMPANY LTD  --- DEFENDANTS/APPELLANTS/APPELLANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA - GHANA\r\nCORI\\M: DR. DATE-BAH, JSC (PRESIDING) OWUSU (MS.), JSC\r\nBAFFOE-BONNIE, JSC\r\nARYEETEY, JSC\r\nGBADEGBE, JSC\r\nCIVIL APPEAL SUIT NO. J4/23108\r\n26TH JANUARY. 2011\r\nAXES COMPANY LTD	PLAINTIFF/RESPONDENT/RESPONDENT\r\nVRS.\r\nHIERTAT\r\n2.	SYLOP COMPANY LTD.\r\n3.	UNIQUE COMPANY LTD.	DEFENDANTS/APPELLANTS/APPELLANTS\r\nPractice and Procedure\r\nSummary Judgment —final or interlocutory - test for determining some\r\nAppeal against summary judgment - time to bring appeal - Rule 9(1) of the Court of Appeal Rules, 1997 (C.I.19)\r\nApplication for extension of time to appeal —jurisdiction of court to entertain application Validity of appeal before the Court of Appeal\r\nTHE PRESIDENT OF THE COURT INVITED BAFFOE-BONNIE J.S.C. TO DELIVER HIS JUDGMENT FIRST\r\nBAFFOE-BONNIE. JSC\r\nFor a better appreciation of the issues to be resolved in this case, it is important to set out in detail the facts that have given rise to this appeal.\r\n \r\nThe respondent in this appeal brought an action at the High Court. The writ was indorsed as follows:\r\nThe plaintiff''s claim is for:\r\n1.	An order of interim injunction restraining the 1st Defendant from disposing of the property, that is, a building at Tema end of the Motorway (Tema)\r\n2.	An order freezing the accounts of the 1st Defendant, 2'' and 3'' Defendants at Ecobank, Tema\r\n3.	An order freezing the accounts of the 1st Defendant at Barclays Bank , Tema\r\n4.	An order compelling Barclays Bank to furnish the court with the Statement of accounts of the 1st Defendant from January 2004 to date\r\n5.	An order compelling Ecobank to furnish the court with the statement of accounts of the 2 nd and 3 r Defendants from January 2004 to date.\r\n(Attached was an 18-paragraph statement of claims).\r\nThis writ was immediately followed with an application for interim injunction on 9/01/07. The application was heard on 12101107. Mr. Amua Sekyi who announced himself as appearing for the defendant made the following intervention.\r\nMr. Amuah Sekyl: "I have no object/on to the app//cat/on except that there must be a time frame within which a statement of accounts within the period so that we can advise ourselves(sic)\r\nIt is still not clear how Mr. Amuah Sekyi appeared in court to make this concession seeing that he had not filed any appearance. He only entered appearance on 2/02/07. The application was granted and certain consequential orders made, including:\r\n \r\npg. 2\r\n \r\n"5. The managers of the above banks (i.e Barclays Bank, Tema and Ecobank, Tema) are to prepare and submit before this court statement of the respective accounts from January 2003 to date on 30/1/2007."\r\nThe two banks complied with the court''s directive and duly submitted statements on accounts being kept by the Defendant.\r\nSubsequent to the filing of the accounts by the affected banks, the respondents herein, filed an application for Summary Judgment for the sum of $3,042,000.00 per the grounds averred to in a 27-paragraph supporting affidavit.\r\nIn an affidavit in opposition sworn to by one John Cobbina Buabing, managing clerk at the law firm Amua Sekyl & Co., the defendant conceded owing $1,475,330.\r\nOn the day of the application Mr. Amuah Sekyi again made the following intervention:\r\n"My Lord, we admit owing the plaintiff the sum of $1,475.330 as contained in our affidavit in opposition"\r\nThe court''s reaction to this intervention was swift.\r\nBy Court: Based on the process before me as well as learned counsel''s submissions, summary judgment is entered for the plaintiff for the recovery of the sum of $1,475,330. ..... The outstanding balance of $1,467,000 is set down for hearing. Suit to take its normal course.\r\nThis was on 14/03/07.\r\n \r\npg. 3\r\n \r\nThe respondent herein, thereafter put in motion execution processes to ensure the payment of the judgment debt of 1,475,000 and agreed costs of $100,000. A writ of Fi Fa was issued and certain properties were attached and valued for auction. 3 months after these events and while the execution process was still in motion, the appellant changed solicitors.\r\nPer his new solicitors, the appellant filed initially an appeal against the judgment of the court on 18/6/07 and sought to move an application for stay of execution pending appeal. The trial High Court judge ruled that since the appeal was flied out of time and therefore not properly before the court the application for stay of execution could not be entertained.\r\nTaking a cue from this ruling, the appellant applied for an extension of time within which to file appeal. Same was granted on 13/August, 2007.\r\nOn 17/08/07, pursuant to leave granted, the appellant first filed a process titled Notice of Appeal. Barely two weeks later, i.e. on 5/9/07, the appellant realizing that there was an error in the process as filed, filed a notice of withdrawal of this flawed process and subsequently corrected himself by filing the correct processes and filed in the appropriate forum.\r\nThe grounds of appeal were given as follows:\r\n1.	The judgment is not warranted by law;\r\n2.	The judgment is against the weight of evidence;\r\n3.	That the jurisdiction of the court was not properly invoked;\r\n4.	That the judgment was obtained by a violation of public policy;\r\n5.	That at all material times the court was functus officio at the date when summary judgment was entered;\r\n6.	That the judgment is null and void;\r\n7.	Additional grounds will be filed upon receipt of the records of proceedings\r\npg. 4\r\n \r\nThe Court of Appeal upheld the submissions of the respondent and dismissed the appeal. It is from this decision that appellant has appealed to this court on the following grounds:\r\nI. the judgment is not warranted by law\r\nii.	the judgment is against the weight of evidence\r\niii.	additional grounds will be filed upon receipt of the records of proceedings.\r\nThis case raises a number of legal issues which we intend to deal with one after the other.\r\nJURISDICTION OF THE SUPREME COURT\r\nAfter going through submissions of both counsel and having thoroughly digested the appeal record, this Court came to the conclusion that the first legal hurdle that has to be surmounted before the merits of this appeal could be gone into was whether or not this Court has jurisdiction, and this necessarily has to be addressed first.\r\nRule 9(1) of the Court of Appeal Rules 1997 C.I. 19 provides as follows\r\nSubject to any other enactment for the time being in force, no appeal shall brought after the expiration of—\r\n(a)	Twenty-one days in the case of an appeal against an interlocutory decision;\r\nWi\r\n(b)	three months, in the case of an appeal against a final decision unless the court below or the Court extends the time\r\n(2) The prescribed period within which an appeal may be brought shall be calculated from the date of the decision appealed against.\r\n \r\nPg. 5\r\n \r\n(3) An appeal is brought when the notice of appeal has been filed in the registry of the court be/ow.\r\nThe interpretation that has been put on these provisions is that, whilst time can be extended by the court in the case of a final decision, no such extension is permitted under the rules in respect of interlocutory decisions. In effect unless one strictly complies and files his appeal against an interlocutory decision within 21 days, he is out of time and cannot be heard on the matter.\r\nFrom the recount of the facts so far it is clear that the appeal before this court has its roots in the summary judgment that was granted at the High Court. Since the appeal before the Court of Appeal was premised on the notice of appeal filed pursuant to leave granted extending time, this Court felt that there was the need to deal with whether or not the leave granted was proper or not depending upon whether the summary judgment was interlocutory or final.\r\nThis Court therefore invited both counsel to submit written arguments on the following points:\r\n1.	Is the summary judgment given by Ofori Atta J on 14th March 2007 not an interlocutory judgment?\r\n2.	If so, was the application for extension of time to file an appeal on 25th July 2007 competent?\r\n3.	If the application was incompetent, was the order by Asiedu]. dated 13"''August 2007 granting the defendants leave for extension of time to file an appeal valid?\r\n4.	If the application for extension of time was incompetent and the ensuing order by Asiedu J invalid, was there a valid appeal before the Court of Appeal when it purported to deal with it?\r\n \r\nme\r\n \r\nThis intervention of the court was premised on Rule 6 sub rules (7b) and (8) of the Supreme Court Rules C.I. 16 which provide as follows;\r\nNotwithstanding sub rules (1) to (6) of this rule the Court---\r\n(c) shall not, in deciding the appeal, confine itself to the grounds set forth by the appellant or be precluded from resting its decision on a ground not set forth by the appellant.\r\n(8) Where the Court intends to rest a decision on a ground not set forth by the appellant in his notice of appeal or on any matter not argued before it, the court shall afford the parties reasonable opportunity to be heard on the ground or matter without re-opening the whole appeal\r\nSee also the case of Asare v Brobbey r19711 2 GLR331,at pg 338 where ARCHER ]A(as then was)quoting Phillips v.Copping[193511KB15 at pg.21 said\r\n"It is the duty of the Court when asked to give judgment contrary to a statute to take the point although the litigants may not take it"\r\nAs expected, while counsel for the appellant has submitted that the summary judgment is final, counsel for the respondent has vehemently argued that the summary judgment is interlocutory.\r\nThe issue of whether an order is interlocutory or final has engaged the attention of practitioners over all jurisdictions over the years.\r\nOver the years the common law has recognized two alternative tests. The first test is whether or not the order as made disposes of the rights of the parties; if it does it is final, if it does not it is interlocutory.\r\npg. 7\r\n \r\nJUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHAN1.. DtC SERVICE C\r\n \r\nThe second test places emphasis on the nature of the application made to the court. To the proponents of this approach, an order remains interlocutory so long as a different order made in the same proceedings could have kept the litigation in being. It does not matter whether the order made disposes of the litigation. These two tests are called the IN	and "application" approaches, respectively.\r\nLord Denning''s famous words in the case of Salter Rex &Co.v Ghosh [19711 2 All ER 865 is often quoted by practitioners and text writers as encapsulating the divergent views and the apparent confusion surrounding interlocutory and final orders. He said at page 866:\r\n"There is a note in the Supreme Court Practice 1970 under RSC Ord 59, r 4, from which It appears that different tests have been stated from time to time as to what is final and what is interlocutory. In Standard Discount Co v, La Grange and Salaman V. Warnj. Lord Esher MR said that the test was the nature of the application to the court and not the nature of the order which the court eventually made. But in Bozson v Altrincham Urban District Council, the court said that the test was the nature of the order as made. Lord Alverstone 0 said that the test is: ''Does the judgment or order, as made, finally dispose of the rights of the parties?'' Lord Alverstone C] was right in logic but Lord Esher MR was right in experience. Lord Esher MR''s test has always been applied in practice. For instance, an appeal from a judgment under RSC Ord 14 (even apart from the new rule) has always been regarded as interlocutory and notice of appeal had to be lodged within 14 days. An appeal from an order striking out an action as being frivolous or vexatious, or as disclosing no reasonable cause of action, or dismissing it for want of prosecution - every such order is regarded as-interlocutory: see Hunt v. Allied Bakeries Ltd. So I would apply Lord Esher MR''S test to an order refusing a new trial. I look to the application for a new trial and not to the order made. If the application for a new trial were granted, it would clearly be interlocutory. So equally when it is refused, it is interlocutory. It was so held in an unreported cases Anglo-A uto Finance (commercial) Ltd v. Robert Dick, and we should follow it today.\r\npg.8\r\n \r\nThis question of ''final'' or ''interlocutory'' is so uncertain, that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way."\r\nIn a relatively recent case of Minister for Agriculture, Food and Forestry v Alte Leipziger [2000]1ESC; [2000141R 32 Hardiman J, in his opinion, recapped the confusion surrounding the two approaches adopted by the English courts and offered a relatively practical suggestion. He said at paragraps 66-70\r\n"In his judgment in this case the Chief Justice has thoroughly set out the diverse and sometimes inconsistent English authorities and I agree with him that, generally speaking the difference of judicial approach has been as to whether one looks to the order as made, or to the application for the order, and to ask in either case if the order itself or the application which ever way, it is decided, will finally dispose of the case.\r\nWhile it is possible to state the core of the divergence in the English authourities with some clarity it seems to me both the approaches which they have adopted are open to criticism. This indeed, was recognized by Denning M. R. in Salter REx and Company v Gosh(1 971 )IQ.B. 597."\r\nContrasting the order approach as propounded by Lord Alverstone in Bozso v Altrincham Urban District Council 1903 1 KB547 with the application approach propounded by Lord Esher in Salomom v Warner g1891!QB 734, he said\r\n"Lord Alverstone was right in logic but Lord Esher in experience. Lord Esher''s test has always been applied in practice .-so .50 I would apply Lord Esher''s test to an order refusing a new trial"\r\nIn a later passage in the same judgment, which almost echoes Buckley Li''s perplexity, he said:\r\n \r\nPg. 9\r\n \r\n''This quest/on of final or interlocutory is so uncertain, that the only thing for practitioners to do is to look up the practice on the point. Most orders have now been the subject of decision. If a new case should ar/se, we must do the best we can with It There is no other way.''\r\nThis is not an approach either commendable to logic or suggestive of any consistency of experience.\r\n70. I think the fundamental flaw in both these approaches lies in the requirement that the order, or the application (depending on which approach one takes), must finally dispose of the case as a whole if it is to be final and not interlocutory. In my view, it is quite sufficient if the order in question finally disposes of a particular issue between the parties, at least where that issue is discretely raised by some proper procedure."\r\nDespite the fact that our judicial system has its antecedents in the common law, it seems the courts in this country have been consistent in rejecting the application approach in favour of the order approach. Apalloo ]A(as he then was) in the case of State Gold Mining Corporation v Sissala 19711 GLR 359, Anin JA(as he then was)in the case of Okudzeto v Irani Brothers[ 197511GLR96, Jiagge JA in Tawiah v Badu 1977 1 GLR1, and Francois JA in the case of Kerletse-panin v Nuro [19791GLR194 all adopted the Lord Alverstone test of "order" approach\r\nIn the case of Pomaa v Fosuhene [1987-881 1 GLR 244, Taylor JSC contrasted the views of the English and the accepted view in the Ghanaian courts in the following terms;\r\n"The inherent contradiction in the English cases calls for a resolution of the problem in this country; and although the Supreme Court has not had an occasion to make any pronouncement on the matter nevertheless other courts that have exercised appellate jurisdiction in this country have consistently followed the test sponsored by Lord Alverstone; for instance Apa/oo IA (as he\r\npg. 10\r\n \r\nthen was) followed the precedent set by the West African Court of Appeal in Nkawie Stool v Kwadwo (1956) 1 WALR 241, CA, and app/led Lord Alverstone ''s test in his judgment in the Court of Appeal in State Gold Mining Corporation v Sissala [19711 1 GLR 359 at 362, C4. See also li/s similar approach in the subsequent Court of Appeal case of Atta Kwadwo v Badu [19771 1 GLR 1 at 4, CA. Jiagge IA also reading the judgment of the Court of Appeal in Tawiah v Brako 1197311 GL  483 at 486, CA took the same view when she gave the ambit of an interlocutory decision in this country In the following words:\r\n''An interlocutory decision does not assume finally to dispose of the rights of the part/es. It is an order in procedure to preserve matters in status quo until the rights of the parties can be determined.\r\nI agree entirely with that description which is consistent with Lord Alverstone''s test, a test which An/n IA (as he then was) accepted in his judgment in Okudieto v Irani Brothers [19751 1 GLR 96 at 104, CA in a decision in which Sowah IA (as he then was) concurred; and quite recently in Karletse-Panin v Nuro [19791 GLR 194 at 210, CA. Francois IA (as he then was) reading his judgment in the Court of Appeal after examining the relevant cases, stated the Ghana position succinctly when he concluded:\r\n"For Ghana then the test is not to look at the nature of the application but at the nature of the order made. This is one area where the courts of Britain and Ghana have already parted ways and the Ghana/an courts have shown remarkable consistency."\r\nI agree entirely with the views of the Ghana/an judges and 1 hold that they are right. I will accordingly approve the Alverstone test so consistently followed by the lower courts of this country"\r\nQuotes from some very recent decisions from this court will suffice to buttress the fact that the Ghanaian position is now finally settled in favour of the order approach\r\n \r\npg. 11\r\n \r\nIn the case of Attorney-General v Faroe Atlantic Co. ltd [2005-20061SCG1R271, at 288 DR. Twum JSC, said\r\n"My lords a judgment is final because it puts an end to the act/on by making an award of redress to a party, or discharge the other, as the case may be. That a summary judgment is a final judgment is too inverterate to be disputed today."\r\nThen in the case of Republic v High Court(Fast Track Division); Ex parte State Housing Co ltd(No.2)(Koranten-Amoako Interested Party 212009 1SCGLR 185 at 194, Georgina Wood Cl noted thus,\r\n"in our view, a judgment or order which determines the principal matter in question is termed "final", whilst an interlocutory order has also been defined in Halsbury"s Laws of England(4th ed) vol. 26 para.506 as:\r\n"an order which does not deal with the final r,ghts of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure; or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed interlocutory."\r\nFinally, I will refer to this court''s ruling in a review application in the case ofHALLE AND SONNS S.A v BANK OF GHANA AND ANOTHER Civil Motion No 17/11/2010 Coram Akuffo, Brobbey, Dr Date-Bah, Adinyira, Baffoe-Bonnie Aryeetey and Akoto-Bamfo, JJSC. (unreported)dated 15 1h December, 2010. The court ruled as follows:\r\n"There is no doubt in the mind of the Court that the Judgment of Kusi- Apou (as she then was) though summary was final in nature. It is not that a judgment if overturned on appeal would be sent back to the trial court on the merits that determines the quest/on of its finality. Rather:, in Ghana, the crystalised posit/on is that the determining\r\npg. 12\r\n \r\nIfactor is whether or not the court''s orders, by nature disposed of the disputed issues between the parties."\r\nSo from the state of the law as espoused by the Ghanaian courts over the years, it is obvious that the summary judgment granted by the trial judge, Ofori Atta J, was final. Even though the judge entered summary judgment for only a part of the amount admitted with the unadmitted part to be proved by evidence, as far as the admitted portion was concerned there was finality with the order and nothing else to be done save execution! Here Hardiman J''s statement in the Alte Leipzeger case (already cited) becomes very instructive. He said at para. 70,\r\n"I think the fundamental flaw in both these approaches lies in the requirement that the order or application must finally dispose of the case as a whole if it is to be ''final'' and not ''interlocutory In my view, it is quite sufficient if the order in question finally disposes of a particular issue between the parties, at least where that issue is discretely raised by some proper procedure "(emphasis mine)\r\nAs stated earlier even though there were still outstanding issues yet to be determined between the parties, as far as the admitted portion of USD 1,475,330 was concerned we hold that there was nothing else to be done. It was final even though the substantive suit was yet to be finalized.\r\nOur answers to the questions as posed will therefore be:\r\n1.	The summary judgment given by Ofori Atta J. on 14 March 2007 is final.\r\n2.	The application for extension of time to file an appeal on 25th July 2007 was competent.\r\n3.	The order granting leave to file for extension of time to file an appeal is valid. pg. 13\r\n \r\n4. There was a valid appeal before the Court of Appeal.\r\n	ESGDI	P. BAFFOE - BONNIE J.S.0\r\nJUSTICE OF THE SUPREME COURT\r\n	PROF.S. K. DATE-BAH, J. S. C.	I agree\r\n	FSGDI	DR. S.K. DATE-BAHJ.S.0\r\nJUSTICE OF THE SUPREME COURT\r\nB. T. ARYEETEY, J. S. C.	I agree\r\n	[SGDJ	B. T. ARYEETEY J.S.0\r\nJUSTICE OF THE SUPREME COUT\r\nowusu jsc.\r\nI have had the opportunity to read the Judgment of my brother Baffoe-Bonnie J.S.C. but I am inclined to disagree that the Judgment of Ofori-Atta J. delivered on14/03/07 is a final Judgment.\r\nThe plaintiffs, after issuance of the writ filed an application for interim injunction which was granted in substance and the court among other orders directed -\r\npg. 14\r\n \r\n"The managers of the above banks (i.e. Barclays, Tema) are to prepare and submit before this court statement of the respective accounts from January 2003 to date on 30/1/2007."\r\nThis order of the court was complied with by the banks.\r\nFollowing the filing of the accounts, the plaintiff/Respondent herein, filed an application for summary Judgment for the sum of $3, 042, 000.00 as deposed to in the supporting affidavit.\r\nIn an affidavit opposing the application for the sum claimed, one Cobbina Buabing, Managing Clerk of Amua Sekyl & Co., a law firm, the defendants admitted part only (emphasis supplied) of the claim averring that the amount claimed "has been grossly exaggerated."\r\nIn court, Mr. Amua-Sekyi, for the defendants, told the court:\r\n"My Lord, we admit owing the plaintiff the sum of $1,475,330 (one Million Four Hundred and Seventy Five Thousand Three Hundred and Thirty United States dollars as contained in our affidavit in opposition."\r\nThe court thereupon entered, summary Judgment for the plaintiff as follows:\r\n"Based on the process before me as well as learned counsel''s submissions summary Judgment is entered for the plaintiff for the recovery of the sum of one million four hundred and seventy five thousand three hundred and thirty United States dollars against the defendants. - - -\r\nThe outstanding balance of 1, 467.00 (one million four hundred and sixty seven thousand united states dollars) is set down for hearing, suit to take its normal course."\r\nIt was not until 18/06/07 that a Notice of Appeal was filed against this Judgment after the plaintiff has actually gone into execution. This Notice of Appeal was however withdrawn by Notice of withdrawal filed on 25/07/07 apparently same has been filed out of time.\r\nOn 13th August, 2007 an Application for extension of time to appeal against the Judgment of 14/3/ 07 was taken before Asiedu 3. who for stated reasons granted the extension and ordered the appeal to be filed within 30 days from the day of the Order.\r\n \r\npg. 15\r\n \r\nI''\r\n \r\nThe appeal was filed and determined by the Court of Appeal which by a unanimous decision, dismissed same on 31/7/08.\r\nDissatisfied with the judgment, the defendants further appealed to this court on the grounds that:\r\n1.	"The Judgment is not warranted by law."\r\n2.	"The Judgment is against the weight of evidence."\r\nIn considering the appeal before this court, it became necessary to decide whether the appeal to the Court of Appeal filed pursuant to the leave granted by Asiedu J. was properly before the court in compliance with the Rules of Court.\r\nThis became necessary because rule 9(1) of the Court of Appeal Rules C. I. 19 provides that:\r\nSubject to any other enactment for the time being in force, no appe	hall be brought after the expiration of -\r\n(a) Twenty one days, in the case of an appeal against an interlocutoi, decision; or\r\n(b)Three months, in the case of an appeal against a final decision unless the court below or the court extends the time."\r\nWhen the appellant filed the first Notice of appeal, it was withdrawn because it was filed out of time. Hence the application for extension of time.\r\nTo determine the fate of the appeal before the Court of Appeal, the court has to decide whether the summary Judgment of 14/3/07 by Ofori Atta 3. is final or interlocutory.\r\nThe implication being that if it is final, then in accordance with rule 9(b) of C. I. 19, Asiedu, J. could extend the time for filing an Appeal as he did and the appeal would have been properly filed. On the other hand, if it was interlocutory, then he had no jurisdiction to extend the time for filing the appeal in which case the grant of the extension would have been given without authority and therefore null and void.\r\nThe appeal filed pursuant to the grant would also be a nullity as "you cannot put something on nothing and expect it to stay there. It will collapse". These are the words of Lord Denning in the famous case of MACFOY VRS UNITED AFRICA COMPANY LTD [1961] 3 A. E. R 1169.\r\npg. 16\r\n \r\nWhereas my brother Baffoe-Bonnie J.S.C. is of the view that Ofori-Atta''s Judgment is final, I am of the view and support the view of my brother Gbadegbe J.S.C. whose Judgment is about to be read that it is interlocutory.\r\nThe question of final or interlocutory orders is as Lord Denning said in SALTER REX & Co. V. GHOSH [1971] 2A.E.R 865 "so uncertain, that .............''If a new case should arise, we must do the best we can with it.''\r\nTo Lord Dennings'' words, I would say that the question is not only uncertain but also confusing.\r\nI have examined the two tests used in determining whether a decision is final or interlocutory i.e. the Application and Order tests propounded by Lord Esher in the case of SALOMON VRS WARNER [1891]1QB 734 and Lord Alverstone in BOSZSO VRS ALTRINCHAM URBAN DISTRICT COUNCIL [1903]1 KB 547 respectively.\r\nThe first test places emphasis on the nature of the application made to the court whereas the second test places emphasis on the order made. If the order made disposes of the rights of the parties, it is final, if it does no, it is interlocutory.\r\nIn a recent case of MINISTER FOR AGRICULTURE, FOOD AND FORESTRY VRS ALTE LEJPZIGER [2000] 1 ESC; [2000] 41R 32 Hardiman J. in his opinion examined both tests used in the English courts and said both tests are open to criticism which Denning M. R. recognized in SALTER REX and Company VRS GOSH already referred to. HIS Lordship had this to say\r\n"Lord Alverstone was right in logic but Lord Esher in experience.\r\nLord Esher''s test has always been applied in practice . . . so I would apply Lord Esher''s test to an order refusing a new trial."\r\nHardiman 3. continued in his Judgment that - \r\n"I think the fundamental flaw in both these approached lies in the requirement that the order, or the application (depending on which approach one takes), must finally dispose of the case as a whole if it is to be final and not interlocutory. In my view, it is quite sufficient if the order in question finally disposes of a particular issue between the parties, at least where that issue is discreetly raised by some proper procedure." (Emphasis supplied)\r\n \r\npg. 17\r\n \r\nThe question that comes to my mind therefore is - Does the Judgment of Ofori-Atta J. delivered on 14/03/07 finally dispose of the rights of the parties or at least an issue between them?\r\nIn the application for summary Judgment, the sum claimed was $3,042,000.00. The issue therefore is whether or not the defendants were liable to pay this sum. Having regard to their admission, they accepted liability for only a part of the claim for which Judgment was entered against them. The judgment did not settle their rights with regard to the claim. Indeed, the trial court went further after entry of the Judgment to set the outstanding balance of $1, 467.00 (one million four hundred and sixty seven thousand united states dollars) down for hearing and adjourned the suit to take its normal course."\r\nGoing by the "order test" which our courts have consistently adopted in cases like STATE GOLD MINING CORPORATION VRS SISSALA[1971]1 OKUDZETO VRS IRANI BROTHERS [1975]1GLR 96 and the rest, I cannot say that by the judgment, the rights of the parties have been finally disposed of and therefore the Judgment is final. The issue as to whether the defendants are to pay the sum claimed in the application for summary Judgment is partially pending. I would not have any difficulty in coming to the conclusion that the judgment is final at least with regard to the sum claimed if the defendants had admitted the whole amount and the trial court had consequently entered Judgment against them. With regard to that amount, their rights would have been settled.\r\nThe Judgment did not assume finally to dispose of the rights of the parties. It was an order in procedure to preserve matters in status quo until the rights of the parties could\r\nbe determined. It is for this reason that I am of the view that the Judgment even though summary, is interlocutory.\r\nSee the case of TAWIAH VRS. BRAKO [1973] 1 GLR 483 at 484.\r\nAgain, in the case of P0MM VRS FOSUHENE [1987-88] the Supreme Court re-echoed the position when it held that:\r\n"an inference whether a decision or order was final or interlocutory was dependent essentially on the nature of the decision or order and consequently an answer to the question whether the decision or order finally disposed of the rights of the parties or the matters in controversy" - - -\r\n \r\npg. 18\r\n \r\nA summary Judgment is final if it finally disposed of the rights of the parties or matters in controversy. If it did not, then like in the instant case, I would say it is interlocutory.\r\nDepending on the nature of the order made I would say that it is a bit of generalisation to say that a summary Judgment is a final Judgment. It can be final as well as interlocutory.\r\nIn the case of ATTORNEY-GENERAL VRS FAROE ATLANTICE COMPANY LTD [2005-2006] 271, there is no doubt that the summary Judgment entered by the trial court had settled the matters in controversy and it was therefore final.\r\nIf Ofori-Atta J.''s Judgment is interlocutory, then the order granting the extension by Asiedu J. was null and void and therefore the appeal filed pursuant to that order is a nullity. The Court of Appeal could not pronounce upon it and should have struck out the appeal for want of jurisdiction.\r\n[SGD]	R. C. OWUSU (MS) J.S.0 JUSTICE OF THE SUPREME COURT\r\nGBADEGBE JSC:\r\nOn 20t) October 2010, when the appeal herein came before us for hearing, in the exercise of the powers conferred on us under rule 6 (7)(b) and 8 of the Supreme Court Rules, Cl 16 we directed the parties to respond to four points of law that were carefully formulated by us. The parties having fully complied with our direction, I now proceed to consider the submissions in respect of the said points which were in the nature of questions and are as follows:\r\n \r\npg. 19\r\n \r\n1.	Is the summary judgment given by Ofori Atta J on 14th March 2007 not an interlocutory judgment?\r\n2.	If so, was the application for extension of time to file an appeal on 25th July 2007 competent?\r\n3.	If the application was incompetent, was the order by Asiedu J dated l3" August 2007 granting the defendants leave for extension of time to file an appeal valid?\r\n4.	If the application for extension of time was incompetent and the ensuing order by Asiedu ] invalid, was there a valid appeal before the Court of Appeal when it purported to deal with it?\r\nIn my view those points are crucial to the exercise of our jurisdiction to inquire into the appeal and therefore were raised by us in order to satisfy us that we had jurisdiction to inquire into the appeal herein on the merits. In raising these points for the consideration of the parties, we had regard to the different time frames provided by law in respect of appeals from interlocutory and final judgments. It is settled beyond any conflict of opinion that having regard to the very clear words contained in Rule 9(1) of the Court of Appeal Rules, CI 19 of 1996 after the expiry of the period of twenty-one days that is allowed for interlocutory appeals, there is no power in the Court or the Court below to grant to any party extension of time within which to lodge an appeal from an order that is not final but interlocutory. There is in my view, a similar position in Rule 8(1) of the Supreme Court Rules, CI 16. These rules, in my thinking preserve for purposes of appeal the difference between interlocutory and final judgments. This, perhaps explains the different procedure relating to interlocutory appeals from District Courts to the High Court in civil matters as provided for in Order 51 rulel(3) and Order 51 rule 16 of the High Court ( Civil Procedure Rules), CI 19.\r\npg. 20\r\n \r\nThe question as to the nature of orders and or judgments of Courts has not been an easy one to determine over the years. In order to distinguish between such orders, the common law courts have adopted two approaches that are generally referred to as the application and order approaches. The position regarding these varying approaches may be found in the words of Denning II in the case of Salter Rex & Co v Ghosh [1971] 2 All ER 865. At page 866 in the course of his judgment he pronounced as follows:\r\n"There is a note in the Supreme Court Practice 1970 under RSC Ord. 59. R4, from which it appears that different tests have been stated from time to time as to what, is final and what is interlocutory. In Standard Discount Co v La Grange and Salmon v Warner, Lord Esher MR said that the test was the nature of the application to the court and not the nature of the order which the court eventually made. But in Bonzon v Alttrincham Urban-District Council, the court said that the test was the nature of the order as made. Lord Alverstone C] said that the test is: Does the judgment or order as made finally dispose of the rights of the parties? Lord Alverstone was right in logic but Lord Esher MR was right in experience. Lord Esher MR''s test has always been applied in practice."\r\nIn expressing those views, Denning U was not alone but echoed the voice of many. Indeed in their very invaluable practice book entitled Atkin''s Court Forms, Volume 22 (2nd Edition), the learned authors writing on the subject "Interlocutory and final orders at page 297 state as follows:\r\nThe decisions of the Court of Appeal as to whether an order is final\r\nor interlocutory are difficult to reconcile. There is no precise rule of\r\nlaw or practice which lays down which orders are interlocutory. It\r\npg. 21\r\n \r\n\r\n \r\nhas been said that " This question of'' final ''or Ynterlocutory ''is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided in the past."\r\nIn our jurisdiction, there appears to be a leaning towards the nature of the order as made test as opposed to the nature of the application that resulted in the judgment or order of the court. I refer in this regard to the decision of the Supreme Court in the case of Koranteng v Amoako [2009] SCGLR, 185 at 194 where Georgina Wood, C] observed in the following words:\r\n"In our view, a judgment or order which determines the principal matter in question is termed " final" whilst an "interlocutory order has also been defined in Ha/sbury''s Laws of England( 4''1'' ed) Vol. 26 para 506 as.''\r\nAn order which does not deal with the final rights of the parties, but either (1) is made beforejudgment, and gives no final decision; or (2) is made after judgment and merely directs how the declarations of right already given in final judgment are to be worked out, is termed "interlocutory''\r\nThe sentiments expressed in the Koranteng case had been earlier on pronounced by Twum JSC ( as he then was) in the case of Attorney General  Faroe At/antic Company Limited [2005-2006] SCGLR 271 more particularly at 288-289 when the learned judge made the following speech:\r\n"My Lords, a judgment is final because it puts an end to the action making an award or redress to a party, or discharge the order as the case may be. That a summary judgment is a final judgment is too inveterate to be disputed today..."\r\npg. 22\r\n \r\nSpeaking for myself, the application test commends itself better to me because it looks not only at the order as made but the order which might have been made and in this connection looks at what the result would be if an appeal from the order should succeed. I think that the attitude of merely looking at the order as made may in certain situations elevate even judgments obtained in default of appearance on which for example assessment of damages have been made to acquire the attribute of finality. But we know that such judgments may be set aside upon an appeal and when this happens, the judgment together with all processes of execution founded thereon are set aside. Let us consider for example, the situation in an action where there is a claim for general and special damages for negligence in which summary judgment has been obtained on the issue of negligence leaving the assessment of damages. If the defendant in that case feels aggrieved by the determination of the question of negligence and desires to appeal, what time frame would apply to him? Is the summary judgment entered on the question of negligence final or interlocutory? I do not think that it is correct to say that once a judgment has been delivered and not appealed against even though there has not been a trial on the merits or what is sometimes described a full scale trial in which witnesses are called by the parties before the court''s decision on the controversy is rendered the judgment is final. To come to this view of the matter in my opinion would be unfortunate for it looks not at the nature of the order but the consequences of it; for a judgment obtained by default on which execution is founded that yields to the execution creditor all the reliefs that he sought by the action thereby becomes final and yet when on appeal therefrom the decision is set aside it immediately loses its finality. I observe in respect of summary judgments that may be appealed that while in the intervening period between the judgment that is appealed and the decision of the appellate court it has the character of finality, immediately the\r\npg. 23\r\n \r\nappeal succeeds it is transformed into an interlocutory judgment. But, we know that final judgments retain their nature notwithstanding the decision that is delivered on appeal. The absence of consistency in the order approach does not commend itself to me as in my opinion a final judgment when properly so described remains so even if an appeal from it succeeds. The attitude of our courts has been expressed in several judgments that have acquired over the years the force of precedent that requires to be re-examined in the future by us in the light of the inconsistency in the consequences that flow from the acceptance of the order approach. Notwithstanding my reservations, I echo that which was said by Lord Haisbury LC several years ago in the case of Pledge v White [1896] Ac 187 at page 190 as follows:\r\n"My Lords, I have had an opportunity of considering the judgment prepared by my noble and learned friend (Lord Davey) and I am not prepared to dissent from it. I use the form of expression because I confess I lament the conclusion to which it has been found necessary to come, although I believe the strict principle upon which it rests is founded in our law at present, and in dealing with a technical system it is better to adhere to principle when once established, than to create greater confusion by dissenting from it. I think the principle laid down in Vintv Padget(1) has been so firmly established now by authority in our technical system that I feel more mischief would be done by dissenting from it, than by acquiescing in it."\r\nNow, going by the approach that has run through cases on the matter in our jurisdiction, I can discern one firm principle which is as follows. If the order as made finally disposes of the matter then it matters not that even on appeal the\r\npg. 24\r\n \r\n\r\norder appealed is set aside resulting in the loss of finality. Thus, when a plaintiff obtains judgment under Order 14 of the High Court Rules, CI 19 it is for all purposes final and the right to appeal is not limited to twenty one days but three months and includes the grant of extension of time to appeal there from. But for the summary judgment to have the character of finality, in my view it should have conclusively determined the claim before the court and not have pending for determination certain reliefs indorsed on the writ of summons. I think this is the context in which the two Ghanaian cases that I have earlier on referred to in the course of this delivery may be understood. I do not think that a fair reading of the two cases is supportive of the position that even in cases where the order of summary judgment does not put an end to the action it can be described as final. To place a contrary meaning on the words of either Georgina Wood CJ in the case of Koranteng v Amoako (supra) or that of Twum JSC in the Attorney General v Faroe At/antic Company Limited (supra) is to strain the language employed by the two learned judges in their pronouncements.\r\nThis being the position, I next proceed to examine the record of proceedings on which the instant appeal is based to determine if the order of summary judgment in question had in the words of Twum JSC ( as he then was) "put an end to the act/on ....."It is to be noted that in determining finality, one has to examine the writ on which the action turns to find out whether at the date of the making of the summary judgment, there were other reliefs or redresses sought in the action that were pending before the court? In the case before us, apart from the fact that the monetary demand on which the summary judgment was entered did not put an end as it were to the entire amount claimed in the application and that the order of the court was based only on part of the claim it is useful to refer to the court notes for the proceedings for the day on which the\r\npg. 25\r\n \r\njudgment was entered that appears at pages 140- 141 of the record of proceedings as follows:\r\n"By Court: Based on the processes before me as well as learned counsel''s submissions, summary judgment is entered for the plaintiff for the recovery of the sum of $1, 475, 330........ The outstanding balance of $1,467, 000 is set down for hearing suit to take its normal course."\r\nMy Lords, it does not appear to me that the order as made by the learned trial judge finally disposed of even the claim contained in the application for summary judgment. The order itself reserved to the parties the right to have the outstanding balance determined subsequently. There cannot in my thinking be any question that the order did not finally and effectually dispose of the rights of the parties and that it was in its nature provisional in respect of the claim to which it related and therefore interlocutory. I pause here to examine the powers that are available to a court at the hearing of an application under Order 14 rule 5(1) of the High Court (Civil Procedure) Rules, 2004 ( CI 46).\r\n"On the hearing of the application the Court may\r\n(a) give such judgment for the plaintiff against the defendant on the relevant claim or part of a claim as may be just having regard to the nature of the remedy or relief sought, unless the defendant satisfies the Court with respect to that claim or part of It that there is an issue or question in dispute which ought to be tried or\r\npg. 26\r\n \r\nthat there ought for some other reason to be a trial of that claim or part of it.\r\n(b)	give the defendant leave to defend the action with\r\nrespect to the relevant claim or part of it either\r\nunconditionally or on terms such as giving security or\r\notherwise; or\r\n(c)	dismiss the application with costs to be paid forthwith by the plaintiff as it appears that the case is not within this Order or that the plaintiff knew that the defendant relied on a contention which would entitle the defendant to unconditional leave to defend the action."\r\nIn my view, the order that is on appeal to us was made by the court in the exercise of its powers under Rule 5(1) (a) and was in its nature one that gave the defendant leave to defend that part of the claim in respect of which the judgment was denied to the plaintiff as expressed in the court notes referred to above. That the rule recognizes that in cases where the plaintiff does not obtain judgment in respect of the entire claim in respect of which the application was made the matter may still be pending before the court for a trial is amply testified to by the provision in rule 5(2) that authorizes the Court in appropriate cases to make an order of stay of execution of the judgment so entered pending the determination of a counterclaim by the defendant. I must without any hesitation say that in the case before us there was no counterclaim but the point being made here is that in some instances such a judgment under Order 14 does not bring the action to an end. If this contention is right then it is not correct to generally categorize all instances of judgment under Order 14 of CI 46 as final. I think every case need to be considered having regard to the order as made in relation to the reliefs sought in the action as well as in the application to sign\r\npg. 27\r\n \r\nsummary judgment under Order 14. The court before which the issue as to the finality or otherwise of an order made under Order 14 is raised must patiently consider the relief granted at the hearing before proceeding to classify it as final or interlocutory; for there cannot be finality when part of the relief on which a claim is pending has been left to be determined by means of a hearing subsequent to an order for directions and for that matter enables the defendant to file a defence relating to that part of the claim in respect of which summary judgment was withheld by the court. In such cases, the court is authorized under rule 5.6 to\r\n"give such directions as to the further conduct of the action as may be given on an application for directions, and may order that the action be set down for trial forthwith or at such date as the Court considers proper.\r\nI think that it is not open to anyone considering the order made by the court to contend that it was in its nature final and not provisional. In my opinion, the order may in its consequence or operation be final but in its nature remained interlocutory as was decided in the case of In re Compton, Norton v Compton [1884] 27 Ch. 392 at 394 per Cotton U. Examining the order on appeal within the intendment of the rules, it is plain that the order even as made was not complete as the court did not advert its mind to the "directions as to the further conduct of the case" thus leaving it open to the parties to apply to it for a supplementary order to enable the requirements of rule 5(6) to be satisfied. This, in my opinion is yet another reason for saying that the order was not final but interlocutory. There cannot be finality in respect of a claim or part of it when to the knowledge of the parties the court has pending before it an aspect of the claim for determination subsequent to an order of directions in the matter.\r\npg. 28\r\n \r\nBut that in my view is not the end of the matter. The plaintiff in its writ sought certain reliefs, none of which had been finally disposed of at the time of the making of the summary judgment on which these proceedings are based. There were the reliefs for freezing the accounts of the defendants held by them with named banks. Although the reliefs that sought orders freezing the accounts may look unfamiliar to us, I think it may substantively refer to the court placing an injunction on the specified bank accounts in respect of which the claims were made and a careful study of the record of proceedings reveals that as at the date of the summary judgment pleadings had not closed in the matter and no application had been made to the court below for those reliefs to be struck out as disclosing no reasonable cause of action and therefore for all intents and purposes they were pending for determination. In the said circumstances to describe the summary judgment as a final decision is not appropriate and in my view runs contrary to the settled practice of the courts. Again, in determining whether an order is final or ir)terlocutory, one should have regard to the claims contained in the plaintiff''s writ. In the case before us, clearly what the plaintiff sought by the writ was to prevent the defendants from operating the designated bank accounts as from the pleadings it was averred against the defendant that the amounts lodged therein were from funds that properly belonged not to him but to the plaintiff company.\r\nIn the course of preparing this delivery, my attention has been drawn to a pronouncement by Hardiman J in the Irish case entitled Minister of Agriculture, Food and Forestry v Alte Leipzeger [2000] IESC 13, [2000] 4 JR 32 to the effect that where an order sufficiently disposes of particular issue then it is final and not interlocutory. The following words appear at page 17 of his judgment:\r\n \r\n[ think the fundamental flaw in both these approaches lies in the requirement that the order, or the application (depending on which approach one takes) must finally dispose of the case as a whole if it is to be final and not interlocutory. In my view, it is quite sufficient if the order in question finally disposes of a particular issue between the parties, at least where that issue is discretely raised by some proper procedure."\r\nIn my opinion, the above pronouncements are contrary to the settled judicial opinion in our jurisdiction and I must say at once that it is not binding on me. On the contrary as a persuasive authority, it runs contrary to the generally accepted approach to final and interlocutory orders as it seeks to chart a new and previously unthreaded path namely the issue approach. I think that to adopt a test that looks at whether the order as made sufficiently disposes of a single issue in a case for example that turns on multiple issues as is often the case is to create an unhealthy situation in which in a single case there might be more than one final judgment. This in my thinking would undermine the existing case law on the subject and additionally create for purposes of appeal more than one instance of a final judgment thereby rendering useless the different time rules contained in Rule 9(1) of CI 19 and indeed Rule 8(1) of the Supreme Court Rules, CI 16. I think that our jurisdiction like many others in the common law have preserved the distinction between final and interlocutory orders and judgments for the purposes of appeals and for that matter any decision from any other jurisdiction that is not only in conflict with the pronouncements of our courts but have the effect of blurring the different categorization of orders and judgments must be rejected.\r\n \r\nAgain, a careful reading of Hardiman''s judgment appears that it was based essentially on Order 58 rule 8 of the Super/or Courts Rules, 1986. Indeed, at page 10 of his judgment at paragraph 33 he observed as follows:\r\nThe sole issue in this appeal is whether or not that order was a final order or an interlocutory order for the purposes of 0. 58, r. 8 of the Rules of the Super/or Courts, 1986."\r\nIn order to better appreciate the limited scope of the above judgment, I wish to refer to the relevant rule on which the case was decided:\r\n"Such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon any appeal from a final judgment or order such further evidence (save as to matters subsequent as [*3] aforesaid) shall be admitted on special grounds only, and not without special leave of the Supreme Court (obtained upon application therefor by motion on not/ce setting forth such special grounds)."\r\nIn fact, the said point arose because subsequent to the judgment of the High Court that was appealed to the Supreme Court in the above case; the parties had filed further affidavits without leave from the court. This is patently clear from the delivery of the three judges who read their opinions as appears from Baron l''s delivery thus:\r\n"Since the order of the High Court the parties in the present proceedings have filed additional affidavits. No leave has been sought for such filing. Accordingly, an application for special leave to\r\n \r\na	-NHO JO 3OIA83S 101.11\r\nfile such affidavits should have been brought unless the order appealed from was an interlocutory order''\r\nThat the scope of the decision in the above case goes not beyond Order 58 rule 5 of the relevant Irish Rule appears in the concluding statement of Barron J in his judgment that was concurred in by two other colleagues-Murray and /vlcGuiness JJ as follows:\r\n"In all the circumstances of this case I consider that the order appealed from is for the purposes of Order 58, r (8) a final order. I would disallow the appeal."\r\nA similar point had previously arisen in the Compton case (supra) and at page 394, Cotton II said:\r\n"The question turns on Order L VIII, rule 4. In reading the clause permitting further evidence on appeals from interlocutory orders we must read it in connection with the alternative clause following it, which says that "upon appeals from a judgment after trial or hearing of any cause or matter upon the merits such further evidence shall be admitted on special grounds only. "That clause is wide enough to include a claim by a creditor in an administrative action. Though it is in form interlocutory, it is a final decision of the claim on the merits."\r\nThe head note of the said case in the following words:\r\n"Although an order made on a summons by a creditor in an administrative action is considered as if interlocutory for the purpose of determining the time within which an appeal may be brought, for\r\npg. 32\r\n \r\nVF4O O 33IM3S 1VOK11H\r\nother purposes it is a final order, and therefore fresh evidence cannot be given on the appeal without special leave of the court."\r\nThen there is the issue of what is generally described as a "split trial", in which questions of liability may be tried before and separately from other issues as to damages. Indeed, in the case of Ministry of Agriculture Food and Forestry vAlte Leipzeger (supra) the point for determination was in a split trial where the court had to deal with the preliminary issue of jurisdiction arising under an insurance policy that conferred jurisdiction solely on the Tribunal de Commerce, Paris. So raised, the point was one analogous to a split trial. In the course of his judgment in that case, Hardiman J at paragraphs 77-78 in considering the issue of jurisdiction made the following speech:\r\n"It seems to me that a jurisdiction issue, too, is quite independent of the merits of the action and should be got out of the way conclusively and finally as early as possible. I be//eve that the Court should focus on whether the jurisdiction issue and not the general issues in the litigation have been finally determined for the purpose of this action by the judgment of Laffoy I. The virtues of this approach seem to apply a fortiorori to, and indeed to be specifically mandated by, the procedural context of this appeal. The issue of jurisdiction arises for immediate determination by virtue of a special procedure whereby no. ...... other issue is dearer, the issue more precisely knit, and more expressly isolated from any other issue which might arise, than in any of the authorities to which we have been referred. Those cases feature split trials of liability and damages, a motion to dismiss an action as vexatious, a motion to dismiss on a point oflaw, and other special circumstances. None are\r\n \r\nto my mind at all usefully analogous to that arising here. Article 18 allows for the joining of issue on the limited question of jurisdiction and the order made after this has been done seems to me to be an order which is (subject only to appeal) final on that issue, and that was the only issue before the High Court."\r\nThe learned judge concluded his consideration of the point of jurisdiction in a manner that explained why he was unable to follow the English authorities on the question of final and interlocutory judgments. He said and I quote:\r\n"I believe that the approach I have proposed arises naturally from the article 18 procedure and the amended rules which followed from the underlying log/c of separating the fundamental quest/on of jurisdiction from many other matters which will arise only if jurisdiction is accepted. I am of the view that it is unnecessa,y to apply either of the tests emerging from the English authorities because the procedure involving the invocation of Article 18 and the service of a motion under Article 12 rule 26 is sui generis."\r\nMy Lords, it does not appear to me within the context of the above that we have before us any of the special circumstances that Hardiman J described as "sui generis". This being the position, I think that the ordinary tests applicable in distinguishing final and interlocutory judgments applies. There was no hearing in the trial High Court pursuant to an order for the separate trial of issues under Order 33.3 of CI 47. The application for summary judgment was filed pursuant to Order 14 as a matter of procedure and as such cannot be said to have been made within the scope of Order 33 rule 3 which provides as follows:\r\n \r\n"The Court may order any quest/on or issue arising in any cause or matter whether of fact or law, or partly of fact and partly oflaw, and raised by the pleadings to be tried before, at or after the trial of the cause or matter and may give directions as to the manner in which the question shall be raised."\r\nIn view of the above, it would be clearly wrong to extend the words of\r\nHardiman J beyond the scope of that which it was clearly intended. In answering the question whether the order was final or interlocutory, our attention must be directed at its form or nature as distinguished from its consequence or operation. Equally wrong in my opinion would be a decision that overrules the long line of decisions of our courts on the point in contention in favor of a single case from Ireland that was decided on a point of law that is not before us in the instant appeal. Thus, even if the said decision were to be binding on us, there is good ground for us not to follow it because the facts in the two cases are dissimilar. In my opinion in applying the principle in the said Irish case in favor of our own previously decided cases, it would have the effect of undermining one of the pillars of the common law namely the doctrine of judicial precedent that in its essence requires us not to do that which would have the effect of "unsettling the established order of things. "The doctrine of judicial precedent does not permit us based only on a single decision such as is revealed by the decision in the case of Minister for Agriculture, Food and Forestry v Alte L eipzeger (supra) to depart from the long line of previously decided cases in our jurisdiction that are to the contrary but binding on us. Our jurisdiction abounds with adequate remedies on the matter that are reasonable and as such we require not to journey elsewhere in order to reach a decision in the matter. Accordingly, I am unable to agree with my brethren on the other side that the decision on appeal\r\n \r\nto us is covered by the principle in the case of the Minister of Agriculture, Food and Forestry v Alte Leipzege r (sup ra).\r\nMy Lords, on the state of the authorities that are binding on us I do not think that it is right for us within the contemplation of Article 129(3) of the 1992 Constitution to depart from the principles inherent in the Ghanaian cases referred to in the course of this delivery. In my thinking based on the said cases the summary judgment, the subject matter of these proceedings was clearly interlocutory. This view of the matter appears to be in accord with the definition provided in Rule 82 of the Supreme Court Rules, CI 16 in relation to the word "interlocutory" as follows:\r\n"Interlocutory decision means a decision which is not a final decision in a cause."\r\nThis definition is substantially the same as that contained in Order 82 rule 3 of CI 46 to the following effect:\r\n"interlocutory decision" means a decision which is not a final decision in any cause or matter"\r\nIt is clear from the interpretation of the word interlocutory that finality relates to the effective disposal of a "cause" that brings an end to litigation and leaves nothing but the execution of the judgment. I do not think it is right to restrictively employ "final" to denote the determination of a single issue that arises in an action and in particular as unfolded from the circumstances of this case, a decision that settled only part of a subsidiary question. The effect of this is to say that the extension of time that was purportedly granted to the appellants herein to appeal out of time was incompetent and as a result the Court of Appeal had no valid appeal before it on which it pronounced. The issue\r\n \r\n	\r\n\r\non which this delivery turns, in my opinion is one of due process that enjoins parties who desire to appeal from decisions rendered against them within the time frame provided and where as in this case there has been a default in so doing we are constrained from inquiring into the merits of the appeal on the grounds of absence of jurisdiction. See: (1) Frimpong v Nyarko [1998-99] SCGLR 734;(2) Darkev DarkelV[1984-86]l GLR. 481.\r\nFor these reasons, the instant appeal should be struck out as incompetent; there being no jurisdiction in the High Court under rule 9(1)(a) of the Court of Appeal Rules CI 19 to extend time in respect of interlocutory decision, and consequently the order granting extension of time to the appellant herein should be set aside.\r\n[SGD]	S. GBADEGBE 1S.0\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL\r\nKWAME OWUSU ASAMANI FOR THE PLAINTIFF/RESPONDANT\r\nKWAME BOAFO AKU FF0 WITH AUGUSTUS ABEIKU BREW FOR THE DEFENDANT/ APPELANT\r\npg. 37\r\nU'' COUNT OF GftAXA\r\n', '../links/cases/Document (111).pdf', 'Yes', 'OWUSU (MS) JSC, BAFFOE-BONNIE JSC, ARYEETEY JSC, GBADEGBE, JSC', '2011', 'supreme', '<i><b><font face="Times New Roman" size="2">Practice and Procedure - Summary Judgment - final or interlocutory - test for determining same Appeal against summary judgment - time to bring appeal - Rule 9(1) of the Court of Appeal Rules,1997 (C.I.19) Application for extension of time to appeal - jurisdiction of court to entertain application Validity of appeal before the Court of Appeal.</font></b></i><br>', 'DR. DATE-BAH, JSC', 'Civil', '', 'J4/23/2008', '', '', 'supreme', '2011-01-26', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(529, 'DAASEBRE NANA OSEI BONSU II\r\n(@ ST.OSWALD GYIMAH-KESSIE)  ... PLAINTIFF/APPELLANT/RESPONDENT/\r\nVRS\r\n1.AKWASI MENSAH 2.BEN EPHSON 3.THE DAILY DISPATCH 4.ALLIED NEWS LIMITED  ... DEFENDANTS/RESPONDANTS/APPELLANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA - GHANA\r\nCORAM: ATUGUBA, JSC (PRESIDING) ANSAH, JSC\r\nBAFFOE-BONNIE, JSC\r\nARYEETEY, JSC\r\nGBADEGBE, JSC\r\nCIVIL APPEAL NO. J4123/2007 24T11 FEBRUARY, 2010\r\nDAASEBRE NANA OSEI BONSU II\r\n[@ ST. OSWALD GYIMAH-KESSIE]	PLAINTIFF/APPELLANT/RESPONDENT\r\nVRS.\r\n1.	AKWASI MENSAH\r\n2.	BEN EPHSON\r\n3.	THE DAILY DISPATCH\r\n4.	ALLIED NEWS LIMITED	DEFEN DANTS/RESPON DENTS/APPELLANTS\r\nFalse and Malicious Publication. Defences of qualified privilege, fair comment arising from pleading that facts were truly stated - Distinct from defence of justification which requires proof of truth of facts stated and correctness of comments success of defence of fair comment requiring publication of a mere opinion on a matter of public interest and based on facts stated without malice - Order 57 Rule 3, (High Court Civil Procedure Rules) 2004 C.1.47.\r\nPublic Interest - Position of Chief makes matters which affect him and touching his traditional office, of public interest to his subjects and public at large.\r\nConstitutional Law - Court to give meaning to, preservation and protection of the right to freedom of speech, the press and other media —Article 21 of the 1992 Constitution.\r\nPractice and Procedure Heading notice of appeal to the Supreme Court with ''IN THE COURT OF APPEAL'' Supreme Court to inquire into appeal lodged from decision of Court of Appeal in order to do substantial justice un-blinded by strict adherence to technicalities.\r\nJUDGMENT\r\nGBADEGBE, JSC:\r\nOn 9th April, 2003, the Daily Dispatch published an article of and concerning the respondent that had e following headline: "Mamponghene in 264 million cedis fraud". Following the said publication, the respondent on 22nd April 2003, caused the writ of civil summons herein to issue against the appellants before the High Court, Accra claiming\r\n\r\n \r\ngeneral and special damages for the "false and malicious publication" and an order of injunction restraining the appellants, their agents and workmen from continuing to publish the said materials of him. The action proceeded to trial at the end of which the learned trial judge of the High Court dismissed all the reliefs sought in the action. The respondent being aggrieved and dissatisfied with the delivery of the trial court launched an appeal therefrom to the Court of Appeal. The Court of Appeal after hearing the parties reversed the decision of the trial court and allowed the claims indorsed on the writ of summons herein including damages in the sum of one thousand Ghana cedis. The instant proceedings arise as a result of an appeal lodged from the decision of the Court of Appeal by the appellants to this court.\r\nWe think that the facts giving rise to the action herein have been sufficiently stated in the judgments of the trial court and the Court of Appeal and as such we desire not to spend any further time on it in this delivery which raises purely for our consideration whether on the admitted facts, the judgment that is on appeal to us was right? In our view having regard to the nature of the publication, the respondent was wounded in his self esteem and therefore the question that we have to decide is whether the defence of fair comment, which was one of the two defences raised by the appellants to the claim in the trial court was well made out? We are of the opinion that although the trial court and the Court of Appeal considered the effect of the appellants statement of defence as raising before it a plea of justification, a careful study of the relevant pleadings contained in paragraphs 8, 10 and 11 of the statement of defence only raise the pleas of qualified privilege and fair comment. See: (1) SUTHERLAND v STOPES [1925] AC 47; (2) JONES v KELTON [1963] 3 All ER 952 at 956; (3) LONDON ARTISTS LTD v LITTLER [1969] 3 All ER 193.These cases discuss the misconception as to the nature of the plea that is raised in the relevant paragraphs of the appellants'' statement of defence earlier on referred to in the course of this delivery. This form of pleading is also referred to as the "rolled- up plea". For precedents on this, see Atkin''s Court Forms, Volume 25(2nd Edition, Forms 58-61). The cases show that the averment that the facts were truly stated is merely to lay the necessary basis for the defence on the ground of fair comment. This averment is quite different from a plea of justification of a libel on the ground of truth, under which defendant has to prove not only that the facts are truly stated but also that any comments upon them are correct.\r\n2\r\n \r\nJUDICIAL SERVICE OF GHANA JU	L SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE C\r\n \r\nFor a precedent of a pleading in justification see Form 63 of Atkin''s Court Forms, Volume 25(2nd Edition.) In the form in which the plea existed before the coming into being of the High Court Civil Procedure Rules), 2004, CI 47 it did not require defendants to give any particulars of it. Today, however by virtue of Order 57 rule 3, the defendant is required to give particulars of which of the words are facts and which are comment. We think that with this new rule the defendant has simply to plead the plea of fair comment. It appears that with this new rule the "rolled-up plea" has become obsolete; there being nothing to be gained by it. See: LORD v SUNDAY TELEGRAPH [1970] 3 All ER 504 at 506-507 per Lord Denning M.R.Having regard to the fact that the statement of defence of the appellants, raised only the pleas of fair comment and qualified privilege, we shall in considering the appeal herein limit ourselves to the effect of the said pleas only. In our opinion, should the question that we have raised regarding the plea of fair comment succeed it would be sufficient to dispose of the appeal in which case no useful purpose would be served by proceeding to consider the plea of qualified privilege. See: SLIM v DAILY TELEGRAPH AND ANOTHER [1968] 1 All ER 497.For the said plea to be good, however, the appellants must not have acted maliciously. See: THOMAS v BRADBURY, AGNEW & CO. LTD [1906] 2KB 627 at 642.\r\nBut before considering the effect of that defence, there is one matter of substance raised by the respondent that we must turn our attention to. It relates to the question of the competency of the instant appeal. It was contended on his behalf that since the heading of the process that initiated the proceedings herein used the words "IN THE COURT OF APPEAL" instead of "IN THE SUPREME COURT" the appeal was improperly constituted and accordingly it should be dismissed in limine. We note regarding this point, which was contained in the respondent''s statement of case that the appellant chose quite strangely in our view not to respond to it. We have patiently considered the issue regarding the description of the court in the notice of appeal and attended to the considerable submissions urged on us by learned counsel for the respondent and have come to the view that notwithstanding the said irregularity the process that initiated the appeal herein substantively raises for our determination by way of judicial correction the questions that turn on the appeal herein. We think that a careful examination of the notice of appeal that initiated the instant proceedings dated\r\n3\r\n \r\n18 July 2007 sought from this court and not the Court of Appeal a rehearing of the matter herein and as such substantively there was filed an appeal that was lodged from the decision of the Court of Appeal that we must inquire into in order to do substantial justice to the parties unblinded by strict adherence to technicalities. While hoping that this would not be construed as a relaxation of the rules, we observe that leaned counsel for the appellants should have exercised greater care in settling the notice of appeal in the matter herein.\r\nWe now turn to consider the appellants'' plea of fair comment. There is in our opinion no conflict of authority that in a case such as this where the words complained of by the respondent as having been published of and concerning him are defamatory, a successful plea of fair comment relieves the publisher from liability. See: BENNEH v NEW TIMES CORPORATION [1982-83] G.L.R.302. To succeed, a party who raises the said defence must show that the publication was just an expression by him of a mere opinion and not assertions of fact. Whether the words complained of were reasonably understood as a comment or a statement of fact is determinable from the context of the publication. See: TURNER v METRO —GOLDWYN MAYER PICTURES LTD [1950]1 All ER 449 at 461. Additionally, he must show that the publication was on a matter of public interest based on facts that were in existence before the publication was made. See: SOUTH HETTON COAL LTD v NORTH-EASTERN NEWS ASSOCIATION LTD [1894]1QB 133 at 141, 143.,(2) COHEN V DAILY TELEGRAPH [1968] 2 All ER 407\r\nFrom the evidence adduced in the trial court the basic facts that were published by the appellants were contained in a petition addressed to the Asantehene.We think that the finding of the learned trial judge to that effect is amply supported by the admitted evidence. The next matter to consider is whether the publication complained of was just a mere expression of an opinion. The said question receives an affirmative answer; for in our opinion the headline of the story and its opening paragraph are the only matters that are not factual representations of matters that were already pending before the Asantehene. The comments are contained in the following words;\r\n"Mamponghene in 4264m fraud; the Asantehene and occupant of the Golden Stool, Otumfuo Osei Tutu II, has a difficult task before him. He has before him, an eight-page\r\n4\r\n \r\npetition against the occupant of the Silver Stool, the Mamponghene, Nana Osei Bonsu II. The petition, alleging gross injustice and fraud, has 25 pages of attachments including a note signed by the Mamponghene, acknowledging receipt of 30,000, the equivalent of over 264 million, as consideration for nominating one Mrs. Rosina Mensah as Queen mother of Asante Mampong. For doubting Thomases, the signed note acknowledging the receipt of 30,000 is scanned on the back page,"\r\nThen comes up for our consideration the question whether the matters contained in the publication were of public interest? The parties before us have taken rival positions on this. While the appellants contended that the substance of the publication was of public interest, the respondent quite naturally being the person of whom it was published contended otherwise.\r\nThere is no exhaustive definition of what constitutes "public interest" for the purpose of the plea of fair comment and is thus a matter in all cases to be decided by the judge.We think that having regard to the position that the respondent occupies what affects him must be of concern and public interest not only to his subjects but the public at large and reject any assertion to the contrary as was urged on behalf of the respondent in these proceedings. Indeed in the case of NSIAH V AMEYAW 11 [1994¬95] GBR 583 / the Court of Appeal expressed the opinion that once a person becomes a chief his life is subject to the expectations of the stool and his subjects. In our opinion, at the date of the publication on which this action is planked, the respondent occupied a position not only in his traditional area that was of concern and interest to his subjects and to Asanteman but taking into account the other positions that he held he was a huge public figure in respect of whom issues that affected him particularly matters that had been raised against him by his subjects and pending before the\r\noccupant of the golden stool, the Asantehene	for determination touching and\r\nconcerning his traditional office cannot be ignored by the public at large.\r\nRegarding the subject matter of the petition that was pending before the Asantehene, it was urged on behalf of the respondent that in exercising his functions in the resolution of disputes the Asantehene does not have the attributes of a court that is established by law and as such matters pending before him cannot be brought into the public domain. We make no accession to that contention and think that our courts must\r\n5\r\n \r\nby their decisions give recognition to institutions and procedures that are part of our existence such as customary arbitration and mediation that are continually held by our chiefs and note in particular the practice whereby issues involving our chiefs may be referred to other chiefs or those higher than them for settlement. In his book "CHIEFTANCY IN GHANA", BROBBEY described this function at page 35 as "adjudicatory functions" of which he observed as follows:\r\n"The adjudicatory functions engage the chief in the determination of private disputes that are sent before him, including breaches of certain customs or taboos......."\r\nAnd indeed our courts have always recognized such settlements and or determinations although they were not held by courts strictly so called. We are of the thinking that the fact that such matters are handled by bodies and or institutions that are not formal in their operation should not detract from the useful role that they play in maintaining social cohesion and indeed in the legal system. To accede to the urging that merely because they are not conducted before courts issues touching and concerning them cannot be in the public interest is too shy away from the truth.\r\nWe are of the view that at the time the publication was made the facts on which it was made were already in the public domain by virtue of the petition to the Asantehene; therefore there was a legitimate public concern or interest in its publication. As noted earlier on in this judgment regarding the publication beyond the heading and the opening paragraph that are comments the rest of the publication are repetitions of the substance of the petition that was pending before the Asantehene. In our opinion, in publishing those words the appellants did not expand the scope of the factual matters contained in the petition. This then leads us to the consideration of whether the publication was actuated by malice.\r\nWe have after a careful consideration of the entire evidence at our disposal that is contained in the record of proceedings come to the same conclusion as was reached by the learned trial judge of the High Court that the appellants acted honestly in expressing their opinion on a subject of public interest and do not think that the allegation of malice is borne out by the evidence. We think that on the facts on which\r\n \r\nLo\r\n \r\nthe comment was based the comments were fair and not mere abuse or invective From the existing facts contained in the petition together with the attachments, we are unable to come to the view that the said comments were published dishonestly for the purpose of injuring the respondent. Having decided the question of malice and fair comment in favour of the appellants the case against them crumbles. As we bring these proceedings to a close, we wish to refer to the following pronouncement of Lord Denning M.R. in the case of SLIM v DAILY TELEGRAPH (supra) at page 503:\r\n"In considering a plea of fair comment, it is not correct to canvass all the various imputations which different readers may put on the words. The important thing is to determine whether or not the writer was actuated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations; no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it................................I stress this because the right of fair comment is one of the essential elements which make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements."\r\nThese words were spoken several years ago but appear to be relevant to us today in Ghana. By Article 21 of the 1992 Constitution, we have been guaranteed the right to "freedom of speech and expression which shall include freedom of the press and other media. " We think that our decisions must bear out the duty to ensure that the provision of these fundamental human rights and freedoms are not in vain by giving meaning and teeth to them in order to better ensure for ourselves their preservation and protection. For these reasons, we think that the Court of Appeal erred by its decision of 13 July 2007 when it reversed the judgment of the trial court. We think that the decision of the High Court is amply supported by the evidence. It being so, we allow the appeal herein and proceed to set aside the decision of the Court of Appeal\r\n7\r\n \r\nand substitute therefore a decision dismissing the respondent''s claim as formulated in I	the writ of summons herein.\r\n1\r\nS. N. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\nW. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\nJ. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\nP. BAFFOE-BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nB. T. ARYEETEY\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL\r\nKWEKU PAINSTIL FOR THE DEFENDANTS/RESPONDENTS/APPELLANTS KWESI AFRIFA FOR-THE PLAINTIFF/APPELLANT/RESPONDENT\r\n		\r\n\r\nI1''CIAL SERVICE 01	NA JUDb	SERVICE OF CHM JUD!C!A1 SPI	M	4L SERVICE C.	AA\r\n', '../links/cases/Document (114).pdf', 'Yes', 'ANSAH,JSC,BAFFOE-BONNIE,JSC, ARYEETEY,JSC, GBADEGBE,JSC', '2010', 'supreme', '<i><b><font face="Times New Roman" size="2">False and Malicious Publication - Defences of qualified privilege,fair comment arising from pleading that facts were truly stated - Distinct from defence of justification which requires proof of truth of facts stated and correctness of comments - success of defence of fair comment requiring publication of a mere opinion on a matter of public interest and based on facts stated without malice - Order 57 Rule 3, (High Court Civil Procedure Rules) 2004 C.I.47. Public Interest - Position of Chief makes matters which affect him and touching his traditional office,of public interest to his subjects and public at large.Constitutional Law - court to give meaning to, preservation and protection of the right to freedom of speech,the press and other media - Act 21 of the 1992 Constitution.Practice and Procedure - Heading notice of appeal to the Supreme Court with ''IN THE COURT OF APPEAL'' - Supreme Court to inquire into appeal lodged from decision of Court of Appeal in order to do substantial justice un-blinded by strict adherence to technicalities.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J4/23/2007', '', '', 'supreme', '2010-02-24', ''),
(530, 'THE REPUBLIC  ... PLAINTIFF/APPELLANT/RESPONDENT\r\nVRS\r\nHIGH COURT (COMM.DIV.),ACCRA\r\nEX-PARTE:THE ATTORNEY GENERAL OF GHANA  ... APPLICANT\r\n1.BALKAN ENERGY GHANA LIMITED 2.BALKAN ENERGY LLC\r\n3.MR. PHILIP DAVID ELDERS  ... INTERESTED PARTIES', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT OF GHANA\r\nACCRA - GHANA\r\nCORAM: AKUFFO (MS.), JSC (PRESIDING)\r\nDATE-BAH (DR.), JSC\r\nADINYIRA (MRS.), JSC\r\nGBADEGBE, JSC\r\nAKOTO-BAMFO (MRS.), JSC\r\nCIVIL MOTION\r\nNO. J5134/2011\r\n2ND NOVEMBER, 2011\r\n \r\nTHE REPUBLIC VRS.\r\nJAK\r\nHIGH COURT (COMM. DIV.), ACCRA\r\nEX-PARTE: THE ATTORNEY GENERAL OF GHANA\r\n1.	BALKAN ENERGY GHANA LIMITED\r\n2.	BALKAN ENERGY LLC\r\n3.	MR. PHILIP DAVID ELDERS\r\n \r\nPLAINTIFF/APPELLANT/RESPONDENT\r\nAPPLICANT\r\nINTERESTED PARTIES\r\n \r\nConstitutional law - Referral to the Supreme Court questions relating to interpretation of a provision of the Constitution.\r\nDuty of court before which application is made - Act 129, 130, 132 and 181 of the 1992 Constitution applied.\r\nRULING\r\n \r\n''Mt13Rt	.:'':U	''iii''r''\r\n\r\nSOPHIA A. B. AKUFFO, JSC\r\nArticle 181 of the Constitution provides, in part, as follows:-\r\n"(1) Parliament may, by a resolution supported by the votes of a majority of all the members of Parliament, authorise the Government to enter into an agreement for the granting of a loan out of any public fund or public account.\r\n(2)	An agreement entered into under clause (1) of this article shall be laid before Parliament and shall not come into operation unless it is approved by a resolution of Parliament.\r\n(3)	No loan shall be raised by the Government oii behalf of itself or any other public institution or authority otherwise than by or under the authority of an Act of Parliament.\r\n(4)	\r\n(5)	This article, shall with the necessary modifications by Parliament apply to an international business or economic transaction to which the Government is a party as it applies to a loan...."\r\nThis is an application invoking the supervisory jurisdiction of the Court for the following reliefs: \r\n"i.	a declaration that the failure of the High Court (Commercial Division) to refer the constitutional issues arising in Suit No. BDC 32/2010 ... to the Supreme Court is a breach of article 130 of the 1992 Constitution of Ghana...."\r\n\r\n	\r\n \r\nNWO	dO	dO\r\nii.	a declaration that each of the power purchase agreement between the Government of Ghana and Balkan Energy (Ghana) Limited dated 27 1h July 2007 (''PPA'') and the arbitration agreement contained therein, being an international business transaction, neither is enforceable Parliamentary approval not having been obtained.\r\niii.	any further or other relief...."\r\nTaking into account the nature of the application, this Court can, at this juncture, deal properly with the first relief only since the 7nd relief presupposes the Court''s positive disposition of the 15t relief. And since the 2 ndrelief raises a more in-depth consideration of the substantive claim that came before the High Court, we may not simply deal with it as though it were merely a consequential relief necessarily flowing from our disposition on the 1st relief. In the circumstances of this matter, we must in the interest of justice make haste somewhat slowly.\r\nArticle 130 of the Constitution stipulates that:-\r\n"(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in -\r\n(a)	all matters relating to the enforcement or interpretation of this Constitution; and\r\n(b)	all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.\r\n(2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that\r\n \r\n\r\ncourt shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.\r\nThe application is, therefore, of a very narrow compass, and indeed, the only issue we need to determine herein is whether or not the learned High Court Judge should have stayed proceedings as prayed by the Honourable Attorney General and referred to this Court for determination the question of whether or not, on a true and proper interpretation of Article 181(5) (supra), the power purchase agreement (and the arbitration clause therein) in issue in the matter before it constitutes an international business transaction.\r\nIn disposing of the application for stay of proceedings and referral of the said question to this Court, the learned High Court Judge reviewed various decisions by this Court concerning the circumstances under which the High Court is required to proceed as prayed by the Attorney General and concluded that:-\r\n"In my view, the application by the PIaintff/Applicant for an order for referral of the very questions already determined by the Supreme Court is at variance with the benign advance heralded by the decision in Agyekum vrs. Boadi, and carried forward by the decision in the ''Anane case''.\r\nAccording to the learned High Court Judge, the constitutional provision the Attorney General sought to have referred to the Supreme Court for interpretation had already been interpreted by the Court in Attorney General v. Faroe Atlantic Co. Ltd 12005-20061 SCCLR 271. Consequently, according to his Lordship, on the authority of cases such as Republic v. Special Tribunal, Ex Parte Akosab 119801 GLR, 592, Agyekum v. Boadi 120001 SCGLR, 282, the Republic v. High Court (Fast Track Division) Accra, Ex Parte Electoral Commission (Mettle-Nunoo and others: Interested\r\n \r\n\r\nParties) 12005-20061 SCGLR, 514, and the Republic v. High Court (Fast Track Division) Accra, Ex Parte Commission on Human Rights and Administrative Justice (Richard Anane: Interested Party), 12007-20081 SCGLR 213, there could not be any genuine controversy concerning the meaning of Article 181(5) and, consequently, there was no need for referring any question concerning its interpretation to the Supreme Court. One cannot fault the learned Judge''s analysis of the purport of the abovementioned cases and we certainly do not desire to whittle away any benign benefits derivable from the cases of Agyekum v. Boadi and Ex Parte Commission on Human Rights and Administrative Justice. In our view, however, his Lordship completely missed the mark when he failed to apply the admonition afforded by the decision in Ex Parte Electoral Commission (supra) and favourably mentioned in Ex Parte Commission on Human Rights and Administrative Justice (supra) that:-\r\n"...the trial court should not presume there is no issue of interpretation; it will be a safer course of action for the trial court to refer the matter to the Supreme Court rather than assume there is no real issue of interpretation, or that his or her view of the constitutional provision is more likely to be correct than that of five or seven Supreme Court Justices put together."\r\nAt the core of the Attorney General''s application for referral lies the fact that, whilst in the abovementioned case of Attorney General v. Faroe Atlantic Company Limited, the agreement in question was between the Government of Ghana and a foreign company, in the matter before the High Court in Suit No. BDC 32/2010, the agreement in question was between the Government of Ghana and a company incorporated in Ghana but wholly owned by a foreign company and, as contended by the Attorney General, controlled by persons outside Ghana. Clearly, the parties were in disagreement as to whether, within\r\n \r\n\r\n-	the meaning of Article 181(5), the agreement was an international business transaction, and therefore should have been first laid before Parliament. In other words, the scope of a provision of the Constitution had come into contention and this necessitated further interpretation of article 18](5), to settle once and for all the question raised. In such circumstances, the best course of action (indeed the only lawful course of action), for the learned Judge, was to refer the issue to the Supreme Court in compliance with Article 130(2), to avoid the usurpation of this Court''s exclusive interpretative jurisdiction.\r\nAccording to the Merriam-Webster Dictionary of Law (1996) to interpret is to explain the meaning of something in order to determine intent. For the purposes of interpretation, ''intent'' more often than not also includes scope. Now, in Attorney General v. Faroe Atlantic Co. Ltd (supra), this Court expounded the meaning of the expression ''an international business or economic transaction to which the Government is a party'', as used in article 181(5), within a particular context, i.e., an agreement between the Government and a foreign company. Where, in a subsequent matter, a party contends that the scope of the provision is broader and covers an agreement between the Government and a domestic party of a certain type, then the intent and scope of the provision once again falls to be determined; not by the High Court, but by the constitutionally clothed court, the Supreme Court. The matter is not merely one of applying the provisions of article 18](5) in accordance with and along the lines of the previous interpretation.\r\nFor the foregoing reasons, we rule that the High Court should have referred to the Supreme Court the question raised in the proceedings before him concerning Article 181(5). Having refused to do so, the learned judge usurped the jurisdiction of this Court and breached the Constitution and accordingly, we grant to the Applicant herein the first relief claimed and hereby declare that the failure of the High\r\n \r\n.::	c..	4;	1Qfl\r\nCourt (Commercial Division) to refer to this Court for interpretation, pursuant to article 130(2), the question of whether or not the power purchase agreement dated 27th July 2007, between the Government of Ghana and the I St Interested Party, as well as the arbitration agreement contained therein, constitute ''an international business transaction'' within the meaning of Article 181(5) of the Constitution, amounts to a breach of the Constitution.\r\nNow, as was made patently clear iii the abovementioned case of Ex Parte Electoral Commission, the remedies available to the Supreme Court, when exercising its supervisory jurisdiction under Article 132, are not limited to the issuing of the conventional writs of certiorari, mandamus, prohibition, etc. We also have the power to issue orders and directions as shall be necessary to prevent illegalities, failure of justice and needless delays in the administration ofjustice, ''for the purpose of enforcing or securing the enforcement'' of our supervisory power. Additionally, under Article 129(4):-\r\n"For the purposes of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgement or order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and Jurisdiction vested in any court established by this Constitution or any other law."\r\nConsequently, in order to expedite the determination of the constitutional question at stake, we hereby refer to this Court the following questions:-\r\n1. Whether or not the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business\r\n \r\n9.: 41	#	W.\r\ntransaction within the meaning of Article 181(5) of the Constitution.\r\n2. Whether or not the arbitration provisions contained in clause 22.2 of the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution.\r\n[SGD]	S. A, B. AKUFFO (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\nISGDI	DR. S. K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\n \r\nS. 0. A. ADINYIRA (MRS.) JUSTICE OF THE SUPREME COURT\r\nN. S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\nV. AKOTO-BAMFO (MRS.) JUSTICE OF THE SUPREME COURT\r\n \r\nCOUNSEL\r\nTHE ATTORNEY -GENERAL IN PERSON, WITH THE SOLICITOR GENERAL,\r\nNAANA DONTOH, CSA AND GRACE AWOOL SSA FOR THE APPLICANT.\r\nMR. ACE ANKUMAH, WITH ESTHER D. AGBESI FOR THE INTERESTED PARTIES.\r\n', '../links/cases/Document (115).pdf', 'Yes', 'DR.DATE-BAH  JSC, ADINYIRA (MRS) JSC, GBADEGBE,J.S.C.,AKOTO-BAMFO (MRS.),J.S.C ', '2011', 'supreme', '<i><b><font face="Times New Roman" size="2">Constitutional law - Referral to the supreme Court questions relating to interpretation of a provision of the constitution. <br>Duty of court before which application is made - Act 129,130,132 and 181 of the 1992 Constitution applied.</font></b></i><br>', 'AKUFFO (MS), J.S.C', 'Civil', '', 'J5/34/2011', '', '', 'supreme', '2011-11-02', '');

INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(532, 'ASHIE NEEQUAYE (SUBT. BY JULIANA KOOTSO NEEQUAYE)\r\nH/NO.3/2/2 ABEBRESEM STREET OSU-ANORHOR,ACCRA  ... PLAINTIFF/RESPONDENT/RESPONDENT\r\nVRS\r\nADEE KOTEY\r\n218 EAST CHRISTIANBORG\r\nOSU-ACCRA  ... DEFENDANT/APPELLANT/APPELLANT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA - GHANA\r\nCORAM: AKU FF0 (MS.), JSC (PRESIDING)\r\nAD$NYIRA (MRS.), JSC\r\nOWUSU (MS.), JSC\r\nBAFFOE-BONNIE, JSC\r\nARYEETEY, JSC\r\nCIVIL APPEAL\r\nNO. J4126/2009\r\n10 FEBRUARY. 2010\r\nASHIE NEEQUAYE\r\n(SUBST. BY JULIANA KOOTSO NEEQUAYE)\r\nH/NO. 3/2/2 ABEBRESEM STREET,\r\nOSU-ANORHOR, ACCRA.	...	PLAINTIFF/RESPONDENT/RESPONDENT\r\nVRS.\r\nADEE l<OTEY\r\n218 EAST CHRISTIANBORG,\r\nOSU -ACCRA.	...	DEFENDANT/APPELLANT/APPELLANT\r\nPractice and Procedure - Capacity to sue as an administrator Estopped per rem judicata Limitation of Action -- 5.6 of Real Property Limitation Act 1883; Section 10(1) of the Limitation Decree, 1972 NRCD.\r\nJUDGMENT\r\nThe PL/RESP/RESP (hereinafter referred to as Plaintiff), originally instituted this action claiming among others:\r\n(a)	A declaration that the original house number 160 was allocated to Moses Neequaye which house was later exchanged for plot 218 renumbered F793a/2 and 801/2 East Christianborg, Osu and same formed part of his estate.\r\n(b)	A further declaration that the said house i.e. plot 218 ... was never allocated to Clifford Cudjoe but that he held the house in trust for the beneficiaries of the estate of Moses Neequaye (deceased).\r\n \r\nPage 2of9\r\nThe basis of their claim is simply that their father and predecessor in title Moses Neequaye, was allocated the subject matter of the suit by the State Housing Corporation when his own house was wrecked by the earthquake that rocked Accra and its environs in 1939. Subsequent to the allocation but before the completion of the instalmental payments of the building, the defendants father, one Clifford Cudjoe, was permitted to live in the houe on his return from Burma Campaign in the 2nd World War. He lived there with another son of Moses Neequaye. When the instailmental payment ended, the family sought to have the documentation on the building done in the name of Dina Neequaye. It was then that they got to know that Clifford Tagoe had earlier in 1949 attempted to have the documentation effected in his name through an affidavit he swore to that effect.\r\nThe affidavit of Clifford Cudjoe, notwithstanding, the SHC did the documentation in the name of Dina Neequaye and this has remained so till today. Clifford Cudjoe died and when the family of Moses Neequaye wanted to take over the property, the children of Clifford Cudjoe, with the active support of one Seth Neequaye, another son of Moses Neequaye, resisted this take over claiming, the property belonged to their father Clifford Cudjoe. The family sued Seth Neequaye who later died and was substituted by the current defendant.\r\nAt the end of the trial the trial judge dismissed the plaintiffs claim on the grounds that the plaintiff lacked capacity to bring the action. This was because at the time of the institution of the action the plaintiffs had not applied for L/A to administer Moses Neequaye''s estate and that since they were suing in a representative capacity it was only the head of family who could sue. On the basis of the evidence on record he also dismissed the defendant''s counterclaim.\r\nDismissing the defendant''s counterclaim the trial judge held;\r\n"On the evidence as a whole I find that preponderance probability(sic) would be in favour of the plaintiff in respect of the following:-\r\nThat the original house number 160 was allocated to Moses Neequaye, that it was later exchanged for plot 218.......\r\n \r\nPage 3 of 9\r\nNeither the plaintiff nor the defendant appealed against this judgment.\r\nThe plaintiff who had secured an L/A in respect of the estate of Moses Neequaye, even before the suit was actually dismissed for want of capacity, instituted the current action claiming virtually the same reliefs as those in the earlier action. The defendant raised 3 main issues in her statement of defence.\r\n1.	That since by their own showing the property passed on to Dina Neequaye on the death of Moses Neequaye the plaintiff should have applied for L/A to administer the estate of Dina Neequaye and not that of Moses Neequaye. And so they still lacked capacity to institute the action in respect of the property.\r\n2.	That by their failure to appeal against the decision of Justice Yakubu Armah with regard to lack of capacity the plaintiffs are estopped from relitigating on the property.\r\n3.	The action was statute barred.\r\nThe issues set down for trial at the High Court were as follows\r\n1.	Whether or not the plaint/ifs as administrators of the estate of Moses Neequaye(deceased) have capacity to institute the present action.\r\n2.	Whether or not the plaint/ifs are stopped from contesting the facts found by the trial judge in suit No. 175181\r\n3.	whether or not the action is statute barred\r\n4.	Whether or not the doctrine ofresjudicata is applicable to this case\r\nThe trial judge resolved all these issues in favour of the plaintiffs. Feeling aggrieved, the defendants appealed to the Court of Appeal. The appeal failed. The defendant has appealed to this court and, the difference in wording notwithstanding, I find that the issues before us for resolution are essentially the same as those ruled upon by the learned judges of the High Court and the Court of Appeal.\r\nSince an appeal is by way of rehearing , I propose to deal with the present appeal as if this court were a court of first instance and make the necessary orders as were\r\n \r\nPage 4 of 9\r\navailable to the trial High Court. I will however remind myself of the admonishment of Acquah JSC(as he then was) in the case of Achoro and Another v Akanfela and Another [1996-97]SCGLR 209 where he said,\r\n"In an appeal against findings of fact to a second appellate court like the Supreme Court, where the lower court had concurred in the findings of the trial court, especially in a dispute, the subject matter of which was peculiarly within the bosom of the two lower courts or tribunals, this court would not interfere with the concurrent findings of the two lower courts unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice, was apparent in the way in which the lower courts had dealt with the facts."\r\nSee also the case of Warne and Tarzan Transport [19731 IGLR 8 CA 9.\r\nRES JUDICA TA\r\nI am a little bit intrigued that even at this late stage, and in spite of the decision of trial judge and the learned Justices of the Court of Appeal, the defendant insists that Justice Yakubu Armah''s decision on capacity and his reasons for so finding operates as res judicata. The fact is, from the legion of authorities on res judicata, by no stretch of imagination can we say that Justice Armah''s judgment operates as resjudicata, That judgment did not touch on the merits of the case at all. If anything it is the findings that the learned judge made in dismissing the defendant''s counterclaim that could operate as resjudicata, because those findings touched on the facts of the case and the defendants did not appeal against the findings of fact made by Justice Yakubu Armah leading to the dismissal of their counterclaim.\r\nThe plea of res judicata is a well established part of our law and it is usually expressed to be based on a final judgment. In the case of In re Sekvedumase Stoll: Nyame v Kese alias Konto [1998-991SCGLR 476 at pg 478, Acquah JSC as he then was, delivering the judgment of this court said:\r\n"My lords, the plea of res judicata is never a technical plea. It is part of our received law by which a final judgment rendered by a judicial tribunal of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them\r\n \r\nPage 5 of 9\r\nconstitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action"\r\nIn the case of Dahabieh v SA Turgui &Bros 1''2001-200275CGLR498 this court reiterated the above cited position of the law in the following terms,\r\nit is well-settled under the rule of estoppel that if a court of competent jurisdiction has tried and disposed of a case the parties themselves and their privies cannot, thereafter, bring an action on the same claim or issue. The rule applies to issues actually dealt with in the previous litigation as well as those matters which properly belonged to that litigation and could have been brought up for determination but were not raised."\r\nYakubu Armah''s decision that the plaintiff lacked capacity to institute the action was borne out of the fact that since the property in dispute had become family property on the death of Moses Neequaye, the head of family was the only person customarily authorized to bring the action. Citing the case of Kwan vs Nyieni and another 1959 GLR 59 at page 72/73, he said,\r\nIt should be mentioned here that at the death of Moses Neequaye the house or whatever interest he had in the house in dispute would vest in the family. The customary law as I understand it has been clearly explained by the court of appeal in Kwan vs Nyieni and another as follows;\r\n''as a general rule the head of family is the proper person to institute suits for the recovery of family land;......\r\nIn the instant case the plaintiff in cross examination admitted that one Akwetey Palm was head of Moses Neequaye''s family and the said Akwetey Palm was alive when the action was taken. It is therefore clear that the said Akwettey Palm would have been the proper person to have taken this action."\r\nLater on he concluded as follows;\r\n"I have come to the conclusion that the plaintiff has failed to establish that she had been authorized by the family to take this action in a representative capacity or the\r\n \r\nPage 6 of 9\r\naccredited successor of her late father Moses Neequaye. It means she lacked capacity when she took the action. I would dismiss the plaintiff/s claim for want of capacity." These statements represent the true state of customary law. However, if the plaintiff later overcame this legal hurdle and secures the necessary authorization, either from the Head of family (power of Attorney)or the court (i.e L.A to administer a deceased person''s estate), such a person could return to court, and the earlier holding cannot operate as res judicata. It is my view that having secured the necessary Letters of Administration to administer the estate of Moses Neequaye, the plaintiff was vested with the requisite capacity now to relitigate.\r\nI will therefore not disturb the trial judge and the learned justices of appeal''s holding on this issue.\r\nCAPACITY\r\nEqually intriguing is the defendant''s insistence that the plaintiffs lack capacity to institute this action. The defendant/appellant insists that the plaintiff lacks capacity because, by their own showing, granted that the property was acquired by Moses Neequaye, the property had passed on to Diana Neequaye and therefore on the death of Diana the property vested in her estate and not that of Moses. So securing L.A. in respect of the estate of Moses will not confer on them capacity to bring an action in respect of the property which now forms part of the estate of Diana. This is how she put it in her statement of defence;\r\nIf the plaintiffs'' allegation in paragraph 8 of the statement of claim is to be accepted, it would follow that the said house had passed and vested in the estate of Dma Del Neequaye.\r\nThe plaintiffs have not applied for L/A to administer the estate of Diana Neequaye who died before 1981 the date of the first action in suit no1745181, hence they lack capacity to sue.\r\nIngenious as this argument may sound it really does not contain much to write home about. The plaintiff brought this action as administrator of the estate of Moses\r\n \r\nLÀ	Page 7 of \r\nNeequaye whose estate she claims, the subject matter of this litigation forms part of. She is not seeking to administer the estate of Dina Neequaye. She has all along insisted that the property was acquired by Moses Neequaye and that it was they the children who authorized their sister Dinah to have the documentation prepared in her name. Dina therefore holds the property only in trust for the other children. These facts are not disputed by the children of Dinah. And they couldn''t be controverted by the defendant either. Because after all they are consistent with the earlier findings of Yakubu Armah J in the earlier suit from which the defendant did not appeal. Therefore if any body could challenge the capacity of the plaintiff to institute an action in respect of this property it is the children of Dinah and not the defendant. The defendant has no LOCUS STANDI to challenge the plaintiffs'' claim of the property for the estate of Moses Neequaye as against that of Dinah Neequaye.\r\nSTATUTE BARRED\r\nThe appellant has referred copiously to the English Real Property Limitation Act of 1883 and said whatever interest Moses Neequaye had in the property was extinguished when the administrators failed to bring an action within twenty tears of the death of Moses Neequaye. Counsel relies on the dictum of Korsah C) in the case of Nsiah v. UTC (1959) GLR 79 at pg 85 where he said,\r\n''With regard to the last issue viz., whether or not the claim is barred by statute, I am in full agreement with the views expressed by the judge as follows:-\r\n"By section 6 of the real property limitation act 1883 where an administrator claims, the time runs from the time of the deceased death and the same limitation applies to the plaintiff who has sued in respect of the estate of the deceased intestate... ''7\r\nThe appellant had forcefully canvassed this argument at both the trial court and the Court of Appeal to no avail. Despite the reasons given for the dismissal of this argument by the two courts below he feels dissatisfied and has come before us. Clearly, from his argument it is the appellant who has failed to appreciate the import of the said section and the decision of the court in Nsiah v. UTC.\r\n \r\n\r\n \r\nPage 8 of 9\r\nThe section does not mean that accrual of cause of action in computing when limitation period starts. It does not mean that time starts running immediately a person dies, even if in his lifetime the deceased person''s title or interest in the property was not questioned! What it means is that if in the lifetime of a person his interest in a property is challenged, or he deals with the property in a manner detrimental to or inconsistent with his interest in the property, then any person claiming through him has to come to court within twenty years of his death. That in essence was the import of the decision of this court in the Nsiah v. UTC case.\r\nAs the facts of this case show and as the two lower courts rightly found, in the lifetime of Moses Neequaye there was no adverse claim by the father of the defendant to the property in dispute. On the death of Moses, the plaintiffs found that Clifford Cudjoe, the appellant''s father, had tried to gain access to the house through fraudulent means, but this was scuttled when the property was documented in the name of Dina Dei Neequaye on the insistence of her sibblings. Thereafter Clifford caved in, accepted his fate and only continued living in the house as licensee of the respondents. Therefore, the only time an adverse claim was made in respect of the property was after the death of Dina Neequaye in 1980 when, on the instigation of Seth Neequaye, the defendants and her sibblings started to claim that the property belonged to Clifford Cudjoe Section 10(1) of the Limitation Decree,1972 NRCD 54 which had then come into effect in 1972 provides that,\r\nNo action shall be brought to recover any land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or if it first accrued to some person through whom he claims.\r\nWe are not told of when the demand for the documents was made and refused. Suffice it to say that the refusal occasioned the institution of an earlier action in November 1981.That action was dismissed in 1991 for want of capacity. The current action was instituted in February 1993 which will still be within the limitation period of twelve years when the adverse claim was made. Therefore, on this ground too, the appeal is not sustainable.\r\n \r\nPage 9 of 9\r\nThe appeal therefore fails on all grounds and same is dismissed\r\nP. BAFFOE-BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nS. A. B. AKUFFO (MS)\r\nJUSTICE OF THE SUPREME COURT\r\nS. 0. A ADINYIRA (MRS)\r\nJUSTICE OF THE SUPREME COURT\r\nR. C. OWUSU (MS)\r\nJUSTICE OF THE SUPREME COURT\r\nB. T. ARYEETEY\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL:\r\nBRIGHT AKWETEY FOR THE PLAINTIFF/RESPONDENT/RESPONDENT DR. EKOW DANIELS FOR THE DEFENDANT/APPELLANT/APPELLANT\r\n•1\r\n''\r\n', '../links/cases/Document (117).pdf', 'Yes', 'ADINYIRA (MRS.), JSC, OWUSU (MS.), J.S.C., BAFFOE-BONNIE,JSC,ARYEETEY,JSC', '2010', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and Procedure - Capacity to sue as an administrator - Estopped per rem judicata - Limitation of Action - S.6 of Real Property Limitation Act 1883; section 10(1) of the Limitation Decree,1972 NRCD.54</font></b></i><br>', 'AKUFFO (MS), J.S.C', 'Civil', '', 'J4/26/2009', '', '', 'supreme', '2010-02-10', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(533, '1.MADAM AKOSUA DUFIE\r\n2.KINGSLEY ADU-POKU MENSAH  ...PLAINTIFF/RESPONDENTS/RESPONDENTS\r\nVRS\r\n1.MADAM AMMA FOSUA\r\n2.KOFI ADU POKU  ... DEFENDANTS/APPELLANTS/APPELLANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA - GHANA\r\nCORAM: WOOD (MRS.), CJ (PRESIDING) ATUGUBAH, JSC\r\nANSAH, JSC\r\nADINYIRA, JSC\r\nDOTSE, JSC\r\nCIVIL APPEAL NO. J4/25/2006 271H JULY, 2009\r\n\r\n	\r\n\r\nLand law - Family property as against self acquired property, claims against estate of deceased, documentary evidence prevailing over oral evidence. Demand for property rates, nature of evaluation evidence. The Evidence Act Sections 10, 11 and 12. Burden of Persuasion and Preponderance of Probabilities defined.\r\nJ U  G M E N T\r\nWOOD (MRS.), CJ:\r\nI agree with the opinions to be delivered by my learned brothers Atuguba, Ansah and Dotse, uSC and my learned sister Sophia Adinyira, uSC. I have nothing useful to add.\r\nG. T. WOOD (MRS.) (CHIEF JUSTICE)\r\nATUGUBA, JSC:\r\nThe surviving 2 ndPlaintiff/Respondent/Respondent together with her late sister who was then the 1 plaintiff got locked up with the defendants\r\n \r\nt\r\n- appellants/appellants in an estate dispute relating to the ownership of a house and two cocoa farms. Whilst the plaintiff claims that these are family properties the defendants clairn they are all self-acquired properties of their late father and husband respectively.\r\nThere are concurrent findings of fact on these matters in the High Court and Court of Appeal in favour of the plaintiff.\r\nIt is trite law that an appellate court is not entitled to reverse concurrent findings of fact unless there are, in effect, strong legal or factual reasons to the contrary.\r\nIt is also to be borne in mind that claims against the estate of a deceased person are to be viewed with caution and very cogent evidence is necessary to sustain the same.\r\nThe plaintiff''s case is that when he was about leaving the country for Britain he handed over to the defendants'' late father and husband respectively a document covering a piece of land which later by substitution, became the plot on which the disputed house stands. He also owned a store and .a beer bar which he left in the care of the same person, i.e. the late Kwaku Poku. He later instructed his said late brother to sell the store and beer bar and construct a house for him on the said plot of land.\r\nOwnership of the disputed house\r\nThe courts below came to the conclusionthat the house was not financed only by the late Kwaku Poku.\r\nOne matter that did not receive critical attention by the courts below is the date\r\nof the construction of the house. The plaintiff is quite definite that the house was\r\ncompleted in June1955 whereas exhibits 2 and 4 dated 9/5/1958 and 23/6/1958\r\nbeing an undertaking by KWaku Poku to develop the said land within 2 years and\r\na receipt for payment for the preparation of a development permit in respect of\r\nthe said land, tend to show otherwise. Also at p. 42 of the record between lines\r\n1 to 4 the plaintiff, admitted thus: "Yes I know that in the 1950s the\r\ncolonial authorities insisted on strict compliance with building\r\nregulations. Yes without a development permit, you could not\r\ncommence, the development of any plot'' These pieces of evidence point to\r\n2\r\n \r\nthe high probability that the disputed house could not have been built in 1955 as contended by the plaintiff. This is especially so because as laid down in Atadi v Ladzekpo [1981] GLR 218 CA and Republic v Nana Akuamoah Boateng II, Ex parte Dansoah (1982-83) 2 GLR 913 S.C. documentary evidence should prevail over oral evidence. And in Guardian Assurance v Kyat Trading Store (1972) 2 GLR 48 C.A. at 55 Amissah J.A. (his brethren concurring), held that the supportive evidence of an opponent is as strong as the documentary evidence of the other party in proof of the latter''s case. However, as was held in Ahiabley v Dorgah (1984-86) 2 GLR 537 C.A., where documents support one party''s case as against the other, the court should consider whether the latter party was untruthful or truthful but with faulty recollection. In this case the trial judge saw the relevance of exhibit 2 only in terms of it being evidence of the acquisition of title to the property ye! non. That exhibit was also relevant in the terms I have hereinbefore set out.\r\nThe trial judge said of exhibit 2 at p. 136 of the record thus: "It is significant to note that the defendants did not produce for tender the allocation note. It is an undertaking allegedly made by the late Kwaku Poku. Whether the contents of Exhibit 2 are true or false is not clear on the evidence on the record". Given the high evidential protein which documentary evidence contains, in the eyes of the law, the trial judge should have given cogent reasons for doubting the veracity of exhibit 2. The only discoverable reason is the non production in evidence of the allocation note. But given that the documents pertaining to grants of Kumasi lands were meticulously kept and processed by the Asantehene''s Lands Office as clearly shown by exhibits 2 and 4 which clearly show that the lease document was yet to be prepared for execution by the parties, what does the allocation note matter? What could it in such circumstances have evidenced which exhibits 2 and 4 do not evidence? In any case I know of no law that mandatorily requires an allocation note. Even in Ghanaian popular parlance, it is a maxim that "Book no lie."\r\nApplying the principle in Ahiabley v Dorgah, supra, could it be said in the face of exhibits 2 and 4 that the plaintiff is truthful but with a faulty recollection? The plaintiff in his evidence was so specific in terms of months and years and even in\r\n3\r\n \r\nsome cases of days of the week that he cannot be debited with faulty recollection. How then was he visiting a non-existent house in 1955? It stands to reason that since as per exhibits 2 and 4, not until as late as 9'' May 1958 the late Kwaku Poku was still battling for a development permit he could not have commenced let alone completed he said building much earlier.\r\nFurthermore the documents tendered in evidence tend strongly to show that the plot on which the disputed house stands was acquired in or around 1958. For several receipts show that the earliest demands and payments for ground rent date back only as far as 1958.\r\nAlso the earliest demand notices and payments in respect of property rate, then known as general rate, are dated between 1963/64-1971/72. See pp 156-194 of the record of appeal. Again, on the evidence, the best known time when occupation of the house began, with tenants renting it is 1964 when PW3 rented some rooms and connected electricity to it and thereafter the l late plaintiff herself came in there. If the house was completed in 1955 was it lying idle all this long?\r\nThe Star Witnesses\r\nThe courts below were highly captivated by the evidence of PWS 1 and 5 in particular. Their evidence however requires closer scrutiny.\r\nPW 1\r\nPW1''s evidence at p.45 between lines 31-36 is as follows: "One day I and my husband came to Kumasi from a cottage where we were farming. When we came the 2 "d plaintiff approached my husband and told him he had acquired a plot at Krofofrom and so he had come to see him build a house on the plot for him." This evidence stands alone and is not even supported by the plaintiff himself. The nearest support for it is when the plaintiff at p. 30 of the record, in cross-examination and obviously as an afterthought, between lines 31-37 said thus: "I left the allocation sheet with my elder brother because I was leaving the country and I wanted him to use the proceeds of my shop to develop the land for me." He does not even indicate where this took place. In any case from these two extracts the house was to be built not for the family but for the plaintiff.\r\n4\r\n \r\nAgain the evidence of PW1 on this issue lost compressure under cross- examination at p.46 lines 39-46 thus: "Q: When you said 2nd plaintiff sent money to your husband, did he send the money from abroad.\r\nA: I cannot tell. What I know is that 2"d plaintiff gave money and some documents to my husband.\r\nQ: Did you know what those documents were.\r\nA: No, what I know is that 2nd plaintiff told my husband that he had acquired a plot."\r\nThen at p.47 between lines 4-10 she continued thus: "Q: Did you know the purpose for which the money was given to your husband?\r\nA: What I know is that 2" plaintiff told my husband that he had acquired a plot at Krofofrom and that he should take the money and the documents and build a house for him. "One cannot fathom any consistency in such evidence. Nor should it be forgotten that though she admits that PW5 used to visit them at the Abompe farm, she maintained that he used only to come for school fees but did not help on the farm. PW5 sharply challenges that evidence at p.78 lines 1 to 10 thus: "Q: Afua Manu (P.W.1) has told this court that no member of Kwaku Poku''s family assisted in the cultivation of the Abompe Cocoa Farm.\r\nA: If PW 1 said so, that is not correct because I was there and I assisted in the cultivation of that cocoa farm." Naturally PW1 at least would have helped in the way he claims at p.74 of the record to have done. Between lines 20-21 thereof PW5 said: "I was assisting him to plant the cocoa trees."\r\nIt is quite clear that the courts below glossed over all these material considerations.\r\nPW 5\r\nIn one breath at p. 74 lines 20-27 PW5 claims that only he and his grandmother assisted the late Kwaku Poku on his Abompe cocoa farm but in another breath at\r\n \r\n5\r\n \r\np.78 admits between lines 1 to 4 that Afua Manu (PW1) also assisted on that farm.\r\nAt p. 73 of the record PWS''s trend of evidence clearly is that when plaintiff was leaving the country he entrusted the store to him PW5. He was running it and "using the proceeds of the sale to replenish the store." Later he tries to rope in the late Kwaku Poku by saying that it was he that put him in charge of the store before the plaintiff left the country for Britain. But not even the plaintiff himself has said that before leaving the country he entrusted his store to the late Kwaku Poku!\r\nIt is also amazing that though at p.34 of the record the plaintiff claimed between\r\nlines 29-30: "My daily earnings ranged between £25-E30. Yes, up to\r\n1952," he could not even start developing his alleged plot of land before he left for Britain. His explanation at p. 40 between lines 23-24 that "I did not develop the plot before I left because I was busy working on my shoji'' is very strange indeed since PW5 his nephew in whose charge he left it before leaving for Britain was around till he also left for Britain in 1958. In any case it is difficult to see how a vibrant store business'' proceeds could only be used as PW5 said to replenish it.\r\nThe only indisputable evidence is the connection of water and electricity to the house by the deceased first plaintiff. But in my view such contributions to an already completed house can at best be a claim for restitution in equity but not co-ownership of the house. Even there she and her daughter enjoyed free accommodation in that house. This aside, it is incredible that the only two members of the family, particularly the plaintiff, who claims to have been the chief financier of the house, should have to leave that house especially as the plaintiff is quite clear that he has no other house.\r\nThe courts below did not consider all these matters.\r\nOwnership of the Cocoa Farms\r\nThis issue is the easiest to determine in this case. It is quite clear on the evidence that the Abompe farm is the earlier of the two farms and indeed the thrust of the evidence is that the second farm (the Siiso farm) is an offshoot of\r\n \r\n6\r\n \r\nthe Abompe farm. It therefore follows that if the earlier one is not family property then the Siiso farm cannot be family property.\r\nPW1, testified at p. 45 of the Record between lines 31 and 37 thus: "One day I\r\nand my husband came to Kumasi from a cottage where we were farming..." Again at p.46 between lines 16-26 she said: "Yes I took part in cultivating the Abompe farm. I was the only one who assisted to cultivate the Abompe farm- no member of my husband''s family assisted in cultivating the Abompe farm. We used the proceeds at the Abompe farm to finance the Siiso farm". She maintained this under cross-examination.\r\nPW5, a nephew of both the plaintiff and the late Kwaku Poku was also clear both in examination-in-chief and cross-examination that the late Kwaku Poku owned the Abompe farm. At p.73 between lines 39-40 he said "When 1 was operating the store, I used to render accounts to my uncle Kwaku Poku anytime he came from his farm. The store was sold for £400. My uncle Kwaku Poku said the plaintiff had instructed him to use the proceeds from the sale of the store to build a house on his (2 plaintiff) plot and use the rest to finance his (Kwaku''s farm). That farm is atAbonipd''\r\nAt p.74, between lines 23-27, still under examination in chief he continued thus: "Yes I have been to the Abompe farm. I was even living there with my uncle Kwaku Poku. I was assisting hin, to plant the cocoa trees. My grandmother Yaa Mensah also went to Abompe. Apart from me and my grandmother nobody else went to Abompe to assist my uncle."\r\nMore clearly under cross examination at p.76 between lines 39-47 he said "Q: When did Kwaku Poku start cultivation of the Abompe Cocoa farm. A: In about 1949\r\nQ: At what point in time did you go to assist him.\r\nA: I wasthen a student so I used to go and assist him during the holidays.\r\nQ: So he started cultivating the Abompe Cocoa farm before 21d1 plaintiff tra veiled abroad.\r\nA: Yes"\r\n7\r\n \r\nPW1 admitted under cross-examination that PW5 used to come to them at Abompe during holidays. PW2''s evidence is clearly confused. Granting that PW5 assisted in the Abompe farm in the manner claimed by him, such casual filial vacation assistance cannot count as any serious contribution towards the family character of that farm. There is no other affirmative and meaningful assistance from any other person other than PW1, the deceased''s ex-wife. As to the alleged financial assistance by the plaintiff towards the acquisition of that farm, the least said of it the better. In one breath all the proceeds of the plaintiff''s beer bar and provisions store were to be used to construct the disputed house.\r\nIn another breath it was £100 of those proceeds that was to assist in the cultivation of that form. Yet in another breath it was simply the residue of those proceeds that was to so assist. In any event one wonders how there could be spare money from a house that was without electricity, water and a fence wall, to be spent on a farm.\r\nThe clearest pointer of the evidence is that at least the principal or founding farm at Abompe long predated the proceeds of the sale of plaintiff''s business.\r\nIt is however felt that the plaintiff and PW5 stand to gain from the disputed properties and so their evidence is not disinterested. But so also do the defendants under the Intestate Succession Law, PNDCL 111, 1985, though the latter have the benefit of the rule of caution about claims against the estate of a deceased person, on their side.\r\nCONCLUSION\r\nFor all the foregoing reasons including the rule about caution regarding claims against the estates of deceased''s persons it is quite clear that the concurrent findings of the two courts below suffered, in the respects indicated, from material misdirections and inadequate considerations as to the law and the evidence.\r\nSuch circumstances warrant the reversal or variation of such concurrent findings. See Adu v Akamah (2007-2008), SCGLR 143, In re Fianko Akotuah (Dec''d) Fianko v Djan (2007-2008), SCGLR 165.\r\nAccordingly I will allow the appeal.\r\n8\r\nJUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA jC\r\n \r\nLi\r\n \r\nW. A. ATUGUBA\r\n(JUSTICE OF THE SUPREME COURT)\r\nANSAH, )SC:\r\nThis is an appeal from the judgment of the Court of Appeal dated 17 May 2005 which dismissed an appeal brought before it from the judgment of the High Court, Kumasi, where the plaintiffs sued for certain reliefs.\r\nThe facts and issues in dispute as well as the respective cases of the parties have been stated so accurately in the opinions read my brother Atuguba JSC that I have anything to add to them, lest I create unnecessary boredom. I agree with them and adopt them as my own.\r\nI only wish to add a few words of my own to the opinion just read.\r\nThe respective cases for the parties adumbrated in their pleadings, evidence and submissions, have been stated with equal accuracy.\r\nThe plaintiffs are the uterine sister and brother respectively of the late Kwaku Poku who died intestate on 215t July 1996; the 2nd plaintiff was his customary successor, whilst the defendants are his personal representatives, the first being his widow and the second, his son.\r\nThe pleadings concerning the acquisition of the land in dispute by the parties have also been referred to by my esteemed brethren. I will not repeat them here.\r\nThe trial judge entered judgment for the plaintiffs on their claims as endorsed on the writ of summons and on the strength of the evidence before him. The defendants felt aggrieved by the judgment and appealed against it, first to the Court of Appeal which affirmed the decision of the trial Court and further to this court, on the grounds that:\r\n1) "The Court of Appeal in its leading judgment erred in law when it''s (sic) accepted as facts that the subsequent plot acquired by Opanin Kwaku Poku was replacement of the plot acquired earlier by the 2nd Plaintiffs.\r\n\r\n \r\n2)	The Court of Appeal again erred in not giving adequate consideration to the inconsistencies of the evidence given by the Plaintiffs/ Respondent as to the acquisition of the properties.\r\n3)	The Court of Appeal erred in not bringing the issue of capacity witness''s exception of Kwan v Nyenia (sic) principle.\r\n4)	The Court of Appeal erred in holding that the 2nd Plaintiff could sue in respect of thee properties as customary successor to the late Kwaku Poku (sic) when he was claiming same as family properties, as a responsibility that, in the actual head of family of the family of the plaintiff /Respondent."\r\nIt is obvious this was a typical dispute between a family on one hand and the survivors of a deceased family member and his immediate family on the other, over title to a house and other properties. This being an action for the declaration of title to land and recovery of possession the issue is what must a plaintiff do in order to succeed?\r\nSection 10, 11 and 12 of the Evidence Decree, 1973, (NRCD 323), come in handy in answering this question. Section 10 provided that:\r\n1)	"For the purposes of this Decree, the burden of persuasion means the\r\nobligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.\r\n2)	The burden of persuasion may require a party\r\n(a)	to raise a reasonable doubt concerning the existence or non \r\nexistence of a fact, or\r\n(b)	to establish the existence or non-existence of a fact by a\r\npreponderance of the probabilities or by proof beyond a reasonable doubt, or that he establish the existence or non-existence of a fact by preponderance of the probabilities, or beyond a reasonable doubt."\r\nSection 11 on the definition of the burden of producing evidence provided in the relevant portions that:\r\nX x x	x x	x x x\r\n10\r\n \r\n(4) In other circumstances the burden of producing evidence requires a party to\r\nproduce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.\r\nSection 12 of the Decree also defined proof by a preponderance of the probabilities as:\r\n(1)	"Except as otherwise provided by law, the burden of persuasion requires\r\nproof by a preponderance of the probabilities."\r\n(2)	"Preponderance of the probabilities" means that degree of certainty of\r\nbelief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence."\r\nBrobbey JA (as he then was) wrote in explanation of these provisions of the Decree in Yorkwa v Duah [1992-93] GBR 278, at 282 that:\r\n"Part II of NRCD 323 which deals with the burden of proof covers on'' one hand the burden of producing evidence under sections 11, 12 and 13. Considering the wording of section 10(1) in the light of the Commentary on the Evidence Decree.. .1 am of the view that the expression burden of persuasion should be interpreted to mean the. quality, quantum, amount, degree or extent of evidence the litigant is obligated to adduce in order to satisfy the requirement of proving a situation or a fact. The burden of persuation differs from the burden of producing evidence.\r\nUnder sections 11, 12 and., 13, particularly section 179(1) of the Decree, the burden of producing evidence means the duty or obligation lying on a litigant to lead evidence. In other words, these latter sections cover which of the litigating parties should be the first to lead evidence before the other''s evidence is led.\r\nTherefore it is the plaintiff who will lose first, who has the duty or obligation to lead evidence in order to forestall a ruling being made against him. This is clearly amplified in section 11(1) of NRCD 323 which provides that:\r\n"For purposes of this Decree, the burden of producing\r\nevidence means the obligation of a party to introduce\r\nsufficient evidence to avoid a ruling against him on the\r\nissue."\r\n\r\n \r\nThe learned justice went further to explain that:\r\n"The Evidence Decree makes provision for the duty or obligation to adduce evidence to shift from one party to the other. In a situation ...the duty or obligation could shift from the plaintiff to the defendant. If and when it is shifted, the defendant would be required to lead evidence to establish the sale once he claimed to have had possession by reason of sale of the house to him. When the duty or obligation to adduce evidence shifts, and the defendant fails to adduce evidence or any evidence on the sale, the ruling of the court on the sale white against the defendant. This is the reason for the provision in section 14 which says that:\r\n"Except as otherwise 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\nApplying these legal provisions, explained in such details by the learned Judge to the facts of this appeal, it becomes clear that the respective positions have been that whereas the plaintiffs asserted title to the properties in dispute to have belonged to the family, the defendants laid it in the late Kwaku Poku as his self- acquired properties. Section 11(4) of the Decree putthe obligation in civil proceedings like the present, of producing evidence on 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. It was all a question of which of the parties was better able to prove its case than the other on all the evidence led at the trial?\r\nIn Odoi v Hammond [197112 GLR 375, (''A, Azu Crabbe JA, (as he then was), said at p 382 that:\r\n"it is now common learning in this country that in an action for declaration of title to land the onus is heavily on the plaintiff to prove his case, and he cannot rely on the weakness of to the defendant''s case. He must indeed ''show clear title'': per Yates- Ag C.J. in Kuma v Kuma 1934 2 WACA 178 at  179. In Kponüg/o v Kodadja 1933 2 WACA 24 at p. 25, the Judicial Commitee of the Privy Council observed that in an action for a declaration of title the "first question logically and chronologically, to consider in the appeal is the traditional evidence regarding the acquisition of a title to the disputed territory." For a stool or family to succeed in an action for a declaration of title it must prove its method of acquisition\r\nIp\r\n \r\nconclusively, either by traditional evidence, or by overt acts of ownership exercised in respect of the land in dispute."\r\nAs stated the plaintiffs led evidence to discharge of the onus that lay on them./// as outlined above in this opinion. There was evidence from the PW1 Afua Manu the widow of the late Kwaku Manu that the original plot was eaten up or swallowed by the newly constructed road, PW5 operated the provisions store that was sold for #400.00 by Kwaku Poku out of which #300 was used for the building and #300 for developing the Abompe farm; PW2, Kofi Adu, supported the claim that Kwaku Poku cultivated the Abompe farm; PW3, Charles Kusi and the PW4 Amma Ode, corroborated the plaintiff''s evidence that the second plaintiff''s sister, the deceased 1st plaintiff contributed to the acquisition of the house, which consisted of providing electricity power and other utilities to the building, and also cement blocks for a fence wall around the building.\r\nThe plaintiffs having led that kind of evidence in favor of the family as owners of the disputed properties, the onus shifted to the defendants who laid ownership in the properties in Kwaku Poku, to lead that kind of evidence that would tilt the balance of the probabilities in their favor.\r\nThe defendants accepted the gauntlet and led evidence by the DW1 Dauda Ali a caretaker for Kwaku Poku''s cocoa farm at Siiso and a house in the Stadium area in Kumasi. It is common knowledge that that is not the same as New Amakorn where the disputed house is situated. The DW2 Isaac Asare Lartey said he was a tenant and the first defendant his landlady as per the tenancy agreement in Exhibit D.\r\nIn this appeal, the learned trial judge properly directed himself in resolving the dispute before him by referring to the principle in Kodi/nye v Odu (2 WACA), explained in Ricketts v Addo [197512 GLR, before coming to his judgment.\r\nIt is trite that an appeal to this court is by way of a rehearing and this court will consider the evidence led at the trial to see whether or not it supported the judgment of the lower courts, and the submissions before it in support of or against the appeal. I must observe from the record that the 1St plaintiff died in the course of the trial but was never substituted, thus leaving the second as the lone crusader.\r\nIn support of ground one of appeal, the appellant submitted that the Court of Appeal confirmed the findings of the trial judge relying on the evidence adduced at the trial by the second plaintiff, supported as it were by the PW1, Afua Nianu the widow of Kwaku Poku and the PW5, Yaw Agyei his nephew. The Court of Appeal considered the evidence as corroborating each other; for example, the\r\n13\r\n \r\nevidence of the second plaintiff was that the construction of the house started before the second plaintiff left the shores of Ghana for the United Kingdom (UK), whereas the evidence on the record showed that it took place whilst he was in the UK. The trial judge found as a fact that Kwaku Poku built the house in dispute.\r\nThe implication was that the house was under construction before the second plaintiff left for the UK, for there was evidence that the plot acquired by the second plaintiff was eaten up by the construction of the Kumasi-Accra road; whilst the second plaintiff was in the U.K; there was no development on the land for if there had been any that would have been eaten up as well by the said construction. But the evidence was that whilst the second plaintiff was in Ghana, the construction had not even started. That was why he only asked Kwaku Poku to take a replacement plot and not a replacement house. If his evidence were to be true, that would have been also eaten up during the construction of the road. In another consideration, the evidence of the second plaintiff/ respondent was not too creditworthy. Why did he ask Kwaku Manu to take the replacement plot in his Manu''s name but not his if he was truly the owner of the lost plot?\r\nOn the acquisition of the house and the cocoa farms, the trial judge found that proceeds from the Abompe farms were used to acquire the Siiso farms and the house in dispute; and also that the family contributed substantially towards the 1.acquisition. Besides this, the second plaintiff asserted in his evidence that proceeds from his store and stock-in-trade was used for the same purpose.\r\nThis finding has been severely criticized by the appellants. To their counsel, the evidence by the plaintiffs was inconsistent with each other on fundamental issues before the court, like the acquisition of the disputed properties and so the plaintiff''s claims should have been dismissed. I shall come back to this aspect of submissions by the appellant.\r\nThe admitted fundamental issues are issues of fact, and the law is settled that all issues of facts are for the trial judge to determine. Counsel cited Doku v Doku &\r\nAnother [1992-93] GBR 367, CA, and B/si v Tab/ri al/as Asare [1987-88] 1 GLR\r\n360, to buttress his point. The facts in Doku v Doku (supra) were that each party claimed sole ownership of the property in dispute, but at the end of the trial, the trial judge made definite findings of facts and upheld the claim by the 2nd defendant on his counterclaim for a declaration of title. The plaintiff appealed against the judgment on several grounds a summary of which was that the judgment was against the weight of evidence on record. Dismissing the appeal, the Court of Appeal stated the settled principles governing appeals on such grounds to be that:\r\n14\r\n \r\n"The generally accepted principle of law is that findings of fact made by a trial judge should not be disturbed unless they are perverse or not supported by the evidence on record. In Bruce v Attorney General [1967] GLR 170, it was held, inter alia, that an appellate court should not disturb findings of fact made by a trial judge, but it was equally true that an appellate court was not precluded from doing so."\r\nThese principles of law were correctly stated by the Court of Appeal and ought to be affirmed.\r\nIn B,s/ v Tab/ri a//as Asare [1987-88] GLR 360, this court reiterated this principle when it held that:\r\n"I cannot believe that it was ever intended that the Court of Appeal (or any other appellate court for that matter) should move into a new era of regular questioning of decisions of trial judges on issues of fact, as distinct from law, which are supportable. For this reason there could be no ground for caviling at the judge''s exercise of discretion or duty in the selection of witnesses to believe or in stating his findings of fact."\r\nIn stating his the SC did not make any reference whatsoever to what was stated in Bruce v Attorney General.\r\nOn the sore question whether Kwaku Poku acquired the plot of land on which the Amakom house stood by himself, the trial judge minced no words when he found as a fact that it was given as a replacement to the plot that had been given out to him previously but was eaten up as a result of the construction of the Kumasi- Accra road. I think the judge had enough evidence to make his finding and for that reason was not so perverse as to be reversed on appeal. The question was where was the evidence led to corroborate this claim of replacement plot? The second plaintiff said in his evidence in chief that he obtained an allocation paper from the Amakom stool, but he did not tender it in evidence saying he left it with Kwaku Poku. Dead men do not speak. The second plaintiff also made a startling statement in his evidence in chief that there were no title deeds to the house. He was literate who knew the importance of such documents; he would have taken them from Poku if he truly owned or even built the house. He could have changed all names on all documents on the house into either his or the family as he said be had wanted to have built the house for. He did not and left a huge credibility gap in his evidence concerning the ownership of the house. I therefore have some disquiet about how the Court of Appeal affirmed the findings of ownership of the house by the trial court.\r\n15\r\n \r\nIt must be borne in mind in this appeal that the Court of Appeal unanimously affirmed the judgment of the trial court on all facts and concurred in its judgment. An appeal from such a judgment is governed by the principle stated in\r\nKog/ex No 2 v Field [2000] SCGLR 175 that:\r\n"(2) Where the first appellate court had confirmed the. findings of the trial court, the second appellate court would not interfere with the concurrent findings unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice, was apparent in the way in which the lower court had dealt with the facts." Authorities on this principle abound in our books and Achoro v\r\nAkan fe/a [1996-97] SCGLR 209, Obresiwa II v ON [1996-97] 628 are\r\ncited for further elucidation and support.\r\nA second appellate court would justifiably reverse the judgment of a first appellate court where the trial committed a fundamental error in its findings of fact but the first appellate court did not detect the error but affirmed it and thereby perpetuated the error. In that situation it becomes clear that a miscarriage of justice had occurred and a second appellate court will justifiably reverse the judgment of the first appellate court.\r\nThus stated, it cannot be said an appellate court cannot set aside a judgment where two lower courts had made concurrent findings of facts.\r\nAn appeal this court is by way of a rehearing meaning this court is entitled to review the evidence on the record to ascertain whether there is enough satisfactory evidence in support of both the findings and conclusion which was supported by the Court of Appeal since an appeal is by way of a rehearing of the\r\ncase: see Wangara Gyato v Gyato Wangara [1982-83] GLR 639, holding 1; Akufo-Addo v Cath/ine [1992] GLR 377, holding 3; F(ja/ Stool v Effia Stool,..\r\nIn the present appeal the appellant assayed to demonstrate why the judgment of the Court of Appeal ought to be reversed by submitting before us that there were inconsistencies, and contradictions in the evidence proffered by the plaintiffs in support of their case.\r\nThe above submissions deserve some analysis. In Effisah v Ansah [2005-2006] SCGLR 943, one of the issues in the appeal was the submission by the appellant that there were inconsistencies and contradictions in the evidence of the plaintiff. This court had no difficulty in dismissing the appellant''s complaint and said, in stating the law, in the opinion delivered by Mrs. Georgina Wood JSC (as she then was, but now Cl) that:\r\n"In the real world evidence led at any trial which turns principally on issues of fact and involving fair number of\r\n16\r\n \r\nwitnesses, would not be entirely free form inconsistencies, conflicts or contradictions and the like. In evaluating evidence led at a trial, the presence of such matters per se should not justify a wholesale rejection of the evidence to which they may relate. Thus, in any given case, minor, immaterial insignificant or non-critical inconsistencies must not be dwelt upon to deny justice to a party who has substantially discharged his or her burden of persuasion."\r\nThe learned Chief Justice then went on to give a proper direction which I find very useful in guiding a court in the face of such criticisms in a judgment as a ground of appeal, at page 960 of the judgment that:\r\n"Where inconsistencies or conflicts in the evidence are clearly reconcilable and there is a critical mass of evidence on crucial or vital matters, the court would be right to gloss over these inconsistencies."\r\nIn this appeal, the Court of Appeal observed that the events about which the witnesses testified took place over 40 years earlier and in circumstances as these there were bound to be inconsistencies in the narratives without any intention to tell a lie, as explained in Adjeibi Kojo v Borisie..\r\nI have examined the so called inconsistencies and found the criticism to have been well founded. They were not inconsistencies at all, or even if they were any, they were not so monumental or irreconcilable that the evidence must be rejected. At the highest, the most important part of the evidence was that the house was built by Kwaku Poku and whether it was before or after the second respondent journeyed to Europe was of a little or no significance. At any rate this was an issue of fact entirely within the province of the trial judge to determine one way or the other. Provided he resolved the issue in favor of or against one side based on the evidence before him, the settled law is that an appellate court would be slow to interfere with or set aside the finding of fact so made. I//And that corroborative evidence was not lacking for it was provided by the PW1, Afua Manu, the widow of Kwaku Poku and the PW5, Yaw Agyei, his nephew. The trial judge not only had the benefit of hearing these witnesses in their viva voce evidence in court, he also saw their demeanor as they did so. He came to the conclusion that their evidence was credible and worthy of belief. The veracity or otherwise of a witness is a function reserved exclusively for the trial judge and will ordinarily not be interfered with except it was proved he did not take advantage of seeing the witnesses as they testified before him, or drew the wrong inferences from the evidence. That appears to have been the case here.\r\n \r\nI \r\n \r\nFrom the nature of the facts and issues before the court, all the evidence must be considered dispassionately. The appellants relied heavily on the fact that documents on the house like building plans and permits, demand notices and receipts for payments of rents were in the name of Kwaku Poku but though in law that, per Se, was no proof of title to a property in dispute, they are not be glossed over for they serve as strong acts of ownership which may be spokes in a claim for declaration of title by a plaintiff.\r\nI am bold to say that in the face of the strong challenge by the defendants on the title to the house in dispute, it was not enough for the plaintiffs to have relied on only the viva voce evidence by the plaintiffs no matter who how many they are. Corroborative evidence that was likely to exist were their evidence to be believed as true; official documents from official or public sources could have been produced, see Majolagbe v Larbi [1959] GLR ... But in this case nothing like that came from the plaintiffs.\r\nThe respondent led no sufficient evidence to show how the second plaintiff acquired the plot of land on which the house stood. The evidence in the documents in his name must be matched against the totality of the evidence on record that even if Kwaku Poku built the house, the family made contributions, substantial or otherwise, towards the acquisition, for the store run by the PW5 and the stock in trade were sold and the proceeds or part thereof were pooled together for the acquisition, proceeds from the farm at Siiso was utilized in acquiring the Abompe farm.In circumstances like this the legal conclusion was that the house at New Amakom Extension, Plot Number 11, Block 24, so acquired are stamped with the family character, or badge was against the weight of the evidence . The case that they were acquired by the second plaintiff was not supported by the evidence on record as found by the trial court. The appeal by the respondent must fail.\r\nThe sum total of grounds one and two of appeal was that the judgment of the trial court was against the weight of evidence. It requires no authority to be cited in support of the proposition that an appeal to this court is by way of a re-hearing and even though it is not the function of the appellate court to assess the veracity, truthfulness or otherwise of the witnesses in a civil case, it is incumbent on the court to take into account the testimonies and all the evidence, documentary or oral, adduced at the trial before arriving at its decision so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence: see Tuakwa v 5050177 [2001-2002] SCGLR 61.\r\nAccordingly the Court of Appeal erred in affirming the findings of fact by the trial court and grounds 1 and 2 of Appeal are both allowed.\r\n18\r\n \r\nGrounds 3 and 4 of appeal touching and dealing with the plaintiffs'' capacity to sue raise important issues of law and will be considered together.\r\nThese grounds of appeal were that:\r\n3.	"The Court of Appeal erred in not bringing the issue of capacity within the reception (sic) of /(wan v Nyieni principle and the Court of Appeal erred in holding that the 2" plaintiff could sue in respect of these properties as customary successor to the late Kwaku Poku when he was claiming properties a responsibility that, in the prerogative of the actual Head of family of the Plaintiff/ Respondent.\r\n4.	The issue of capacity is fundamental to our law and being a question of law can be raised at anytime eveflon appeal. The Court therefore erred in holding that the Defendants/Appellants did not raise that issue at the trial court and therefore could not do so at the Appellate Court."\r\nThe material holding in Kwan vNy/en/ [1959] GLR 67 was:\r\n"as a general rule the head of family, as representative of the family\r\nis the proper person to institute suits for the recovery of family land;\r\n(1)	to this general rule there are exceptions in certain special\r\ncircumstances, such as:\r\n(i).where the family property is in danger of being lost to the family, and it is shown that the head either out of personal interest will not make a move to save or preserve it;\r\n(ii). where owing to a division in the family, the head and some of the principal members will not take any step;\r\nOr\r\niii. where the head and the principal members are deliberately disposing of the family property in their interest, to the detriment of the family as a whole.\r\nIn any such special circumstances, the Court will entertain an action by any member of the family, either upon proof that he has been authorized by other members of the family to sue, or upon proof of necessity, provided that the Court is\r\nELI\r\n \r\nsatisfied that the action is instituted in order to preserve the family character of the property."\r\nThe grounds of appeal quoted above sum up much of the dispute in this appeal.\r\nThere is no paucity or dearth of authority on this point. Nyarnekye v Ansah [1989-90] 2GLR 152 CA considered who qualifies to be head of family and made it clear at page 162 of the report, that when a successor is appointed by the family he/she automatically becomes the head of family; he can also be appointed by popular acclamation or by virtue of the fact that he/she is the oldest member of the family. Again, any person who the family permits to deal with family property for and on behalf of the family, or to exercise the functions of a head of family, is deemed to be the head of family until the contrary is proved: see M1//s v Addy (1958) 3 WALR 357, and also Sarbah''s Fanti Customary Laws (1897 ed).\r\nIn Nyame vAnsah (supra), the Court of Appeal held further that:\r\n"As a general rule, the head of family as representative of the family is the proper person to institute suits for the recovery of family land: see Kwan v Ny/eni [1959] GLR 67 at 72, CA. And where the authority of a person to sue in representative capacity is challenged, the onus is on him to [prove] that he has been duly authorized. He cannot succeed on the merits without first satisfying the court on that important preliminary issue.\r\nThe plaintiffs/appellants sued as the "customary successor of the late Kwaku Poku for themselves and on behalf of the family of the late Kwaku Poku" for reliefs itemized above. They sought declarations that the properties were for the family, pleaded facts and led evidence in support. In those circumstances the exception in the proviso to the principle in Kwan v Nyieni (supra), does apply as respondents acted to claim and protect the family character of the properties in dispute.\r\nAt the application for directions the parties settled, inter alia, the following issues for trial:\r\n"3 Whether or not the purchase price of the Beer Bar and provisions Shop was given to the late Kwaku Poku to put up house on Plot 11, Block 24, New Amakom, for the family.\r\n5 Whether or not the house in dispute is family property.\r\n8 Whether H/No. Plot 11, Block 24, New Amakom extension is family property.\r\n9 Whether or not the Abompe and Siiso cocoa farms are family properties\r\n20\r\n \r\n12 Whether or not the plaintiffs are entitled to the reliefs being sought by them."\r\nThus, whether the plaintiffs had the requisite capacity to sue was made an issue for trial. That issue was raised by virtue of the general traverse in the statement of defense.\r\nIt is unfortunate the trial judge did not consider the issue of capacity anywhere in his entire judgment. When he considered whether or not the properties in dispute were for the family he should have gone forward to also consider if they were family properties then whether or not the plaintiffs were clothed with the requisite capacity to sue in respect thereof. That was irrespective of whether or not the parties made that an issue for trial. Capacity to sue was a matter of law and could be raised at any stage of the proceedings even on appeal. It can be raised by the court suo motu.\r\nIt was the Court of Appeal which raised the issue and resolved itby holding that the plaintiffs pleaded in paragraph 4 of their statement of claim that the second plaintiff was "the customary successor of the late Kwaku Poku." The respondents admitted the averment in the said paragraph 4 and with that there was no need to prove the fact any further. Akamba JA, concurring with the opinion of Anin Yeboah J.A (as he then was, who read the leading judgment), said that in Akan customary law, a person appointed a customary successor to a deceased in the family becomes the head of the immediate family and is the proper person to sue and be sued in respect of that particular family\r\nProperty. The Court relied on Atta vArn/ssah (1970) CC 73, that:\r\n"The person appointed successor to the deceased becomes, under customary law, the head of the immediate family, and is as such head, the proper person to sue and be sued in respect of that particular family property" N.A. 011ennu''s invaluable Customary Land Law in Ghana made the same point at page 151.\r\nIn Sarkodie I v Boateng 11[1982-83] GLR 715, SC, this court said that\r\n"It was elementary that a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence. And it was no answer, for a party whose capacity to initiate proceedings has been challenged by his adversary to plead that he should be given a hearing on the merits because he had a cast-iron case against his proponent. "(es)\r\nThe Supreme Court considers the question of capacity in initiating proceedings as very important and fundamental and can have a catastrophic effect on the fortunes of a case. Thus, in Republic v High Court, Accra, Ex parte Aiyeetey (Ankra Interested Party, [2003-2004] SCGLR 398, the brief facts were that the\r\n21\r\n \r\ninterested party knew that his father had died testate and the will had been read, though probate had not been taken, he failed to disclose to the court that he was one of the executors of the said will, and that probate had not been taken. In suing, therefore as a beneficiary and customary successor, of his late father the interested party lacked the capacity to sue, rendering the writ and subsequent proceedings thereon null and void.\r\nThe Court held that:\r\n"Any challenge to capacity therefore puts the validity of a writ in issue. It is a proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is not concerned with the merits so that if the axe falls, then a defendant who is lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled to insist upon his rights: see Akrong v Bu/ley [1965] GL  469 SC."\r\nIt must be pointed out that in the present appeal, there was no issue raised on the position of the plaintiff as a head of family for that was admitted on the pleadings.\r\nThus, it became clear that the Court of Appeal did consider all the issues at stake including the capacity of the plaintiff to sue, took into consideration all the relevant authorities governing the issue before concluding that any attempt by the appellants at this stage to question the Respondent''s capacity after the initial admission thereof, is unfounded, uncalled for and a mere waste of time and effort.\r\nIn my opinion, the Court of Appeal did err on grounds 1 and 2 of the appeal, as the findings by the trial court were not supported by the evidence on record, and the conclusion was not proper. The Court of Appeal disabled itself from coming to the proper conclusion in affirming the decision of the trial court.\r\nWith that I am persuaded that the appeal ought to succeed and is consequently allowed.\r\nI may remark now that in United Products Ltd. v Afari (1929) D.C. 29-31 at p11, Deane CJ held that:\r\n"the (frequently adopted) presumption with regard to land in this country is that it is family land." Lingley J made the same point in Andoh & Anor. v Franklin & Ors. D, C. (Land) 52-55 see also Codjoe v Kwatchey 1935 (2) WACA 371, and more recently, Nt! v Amina [1984-86] 2 GLR 135 at 146-147, C.A. With the passage of time the presumption reduced in strength and became rebuttable. By 1935, it had become not too strong a presumption as it used to be in time past, so however that in 1960 the then Court of Appeal summed up the situation in Larbi vCato [1960] GLR 146 that:\r\n \r\n22\r\n \r\n"Whilst it is true that customary law requires that the presumption in favor of family property should be rebutted by evidence and that the onus is on who asserts sole ownership, that onus shifts once it is shown that that person has been dealing with the property as his own...."\r\nIn 1986, the Court of Appeal held at p 147 that: "in modern Ghana the said presumption should not be a strong one and the burden of proof on the one who asserts sole ownership should be very light and that any slight but reliable evidence should be sufficient to rebut that presumption." see Nti V Am/na (.cupm) The defendants in this appeal bore the onus of rebutting the presumption in favour of the plaintiffs even though it may be weak now.\r\nNow, it is common knowledge that statute has given more recognition to the ownership of property by the individual than the family. See The Intestate Succession Law, 1986, PNDCL 111. In this appeal, the defendant who assumed the burden of proving on the preponderance of the probabilities that the properties were for the estate of Kwaku Poku and not:the family, was able to rebut the presumption with evidence that was more than slight and reliable. Now, the old order has changed giving way to the new.The lower courts did not pay proper regard to the law applicable to the facts of this case, and came to the wrong conclusions and gave judgment in favor of the plaintiffs on their claims. This is a proper case to interfere with and to set aside the concurrent judgments of the lower courts.\r\nThe judgment of the Court of Appeal is hereby set aside and the appeal allowed.\r\nJ. ANSAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nADINYIRA (MRS), JSC:\r\nI have had the privilege of reading the judgments of my brothers Ansah JSC and Dotse JSC, and I agree that the appeal be allowed. After a careful scrutiny of the record, I find it very difficult to accept the concurrent decisions of the trial and\r\nappellate court that the properties in dispute were family properties. The\r\n23\r\n \r\nprinciples governing appeals against concurrent findings of fact by two lower courts is well grounded and expounded in the case cited by my brother Dotse, ACHORO & Anr v. Akanfela & Anr [1996-97] SCGL 209. In support I wish to add the cases of Kpoglex Ltd. No. 2 v. Field [2000] SCGLR 175 and the more recent case of Adu v. Ahamah [2007 -2008] SCGLR 143. Boateng (No.2) v. Manu (No.2) [2007-2008] SCGLR 1117. Social Security Bank Ltd. V. CBAM Services Inc. [2007-2008] SCGLR 894. Applying the principle to this case I agree that there was overwhelming evidence both documentary and overt acts of ownership by Opanin Kwaku Poku which if the Court of Appeal had properly appreciated and evaluated, they would have come to a different conclusion from the trial court. Had the lower courts applied the rule of evidence of presumption of title raised by acts of ownership under section 48 (2) of the Evidence Decree, 1975 NRCD 323 their conclusion would have been different.\r\nI wish to cite one example of overt acts of ownership, to add to what my brOther Dotse enumerated in his well written opinion. The 2nd Plaintiff who claimed he bought the land and provided money to put up the house in dispute was ejected from this same house by the late Opanin Kwaku Poku. Yet during Opanin Kwaku Poku''s Lifetime, the 2'' plaintiff did not lift a finger to protest nor assert his right even if not as the owner but as a member of a family that is alleged to own the house. Clearly the 2'' Plaintiff''s conduct exposes the hollowness of his claim against the widow and children of Opanin Kwaku Poku. The preponderance of the evidence weighs heavily against the findings of the courts below and accordingly this Court ought to interfere and reverse the finding of the lower courts. The appeal accordingly succeeds.\r\nS. 0. A. ADINYIRA (MRS) (JUSTICE OF THE SUPREME COURT)\r\n24\r\n \r\nDOTSE, JSC:\r\nFACTS\r\nThe Plaintiffs/Respondents/Respondents, hereinafter referred to as the Plaintiffs instituted action against the Defendants/Appellants/Appellants, hereinafter referred to as the Defendants in the High Court, Kumasi claiming reliefs in the nature of Declarations in respect of three immovable properties as their family properties, namely;\r\ni.	House No. Plot II Block 24 Amakom Kumasi\r\nii.	Cocoa farm situate at Siiso on Kwapong Stool lands and\r\niii.	Farmstead situate at Abompe and Kunso stool lands.\r\nThe Defendants did not counterclaim before the trial court.\r\nFACTS OF THE CASE\r\nThe Plaintiffs are the sister and brother of one Opanyin KWAKU POKU who died intestate in Kumasi on the 21 day of July 1996.\r\nFollowing his death intestate, the Defendants herein, who are the widow and son respectively of the said OPANYIN KWAKU POKU successfully applied for and obtained Letters of Administration in respect of the estate of their deceased husband and father.\r\nIncluded in the inventory of the properties listed in the application for the grant of the letters of Administration are the properties referred to supra. The Plaintiffs contending that the said properties are family properties, initiated the suit against the Defendants in the High Court Kumasi.\r\nThe Defendants denied the claims by the Plaintiffs and asserted that the properties in dispute were the self acquired properties of the deceased Opanyin Kwaku Poku.\r\n \r\n25\r\n \r\nOn 23-09-03, judgment was entered for the Plaintiffs on all their reliefs in the trial court and aggrieved by that decision the Defendants filed a notice of Appeal in the Court of Appeal. The Defendants main ground of appeal was that the judgment was against the weight of the evidence. The Defendants subsequently argued two additional grounds of appeal namely that the learned trial judge shifted the burden of proof onto the Defendants and the Plaintiffs lacked the capacity to institute the action in the first place.\r\nOn the 17th day of May 2005, the Court of Appeal by a unanimous decision dismissed the appeal on the grounds that the appeal in its entirety lacked any merits whatsoever.\r\nFurther aggrieved by the decision of the Court of Appeal the Defendants appealed to the Supreme Court by filing a notice of Appeal on the 15th of July\r\n2005.\r\nGROUNDS OF APPEAL\r\nThe grounds of appeal were as follows:\r\n1.	The Court of Appeal in its leading judgment erred in law when it accepted as fact that the subsequent plot acquired by Opanin Kwaku Poku was replacement of the plot acquired earlier by the 2d Plaintiff.\r\n2.	The Court of Appeal again erred in not giving adequate consideration to the inconsistencies of the evidence given by the Plaintiffs/Respondents as to the acquisition of the properties.\r\n3.	The court of Appeal erred in not bringing the issue of capacity within the reception of Kwan v Nyieni principle.\r\n4.	The Court of Appeal erred in holding that the 2 Plaintiff could sue in respect of these properties as customary successor to the late Kwaku Poku, when he was claiming same as family properties, a responsibility that is the prerogative of the actual Head of family of the Plaintiff- Respondent.\r\nAt the trial court, both parties testified and called witnesses.\r\n26\r\n \r\nWhilst it was the 2nd Plaintiff who testified for and on behalf of the Plaintiffs, and called five witnesses, both Defendants testified and also called witnesses.\r\nPLAINTIFFS CASE\r\nWhat was the evidence led by the Plaintiffs to prove the method of acquisition of the property in dispute? According to the 2'' Plaintiff sometime around 1949, he acquired a piece of land from the Amakomhene on orders from the Asantehene Prempeh II. In 1952, he traveled to the United Kingdom and whilst there, hewas informed by his mother that the plot of land he had acquired had been affected by the construction of the Accra-Kumasi highway. According to the Plaintiff, his mother assured him that she had informed the Otumfuo and the Amakomhene who promised to give him a replacement plot but his absence from Ghana at the time was going to pose a problem. He therefore instructed his mother to let his brother, the late Kwaku Poku to act on his behalf.\r\nHe also led evidence that he owned a beer bar and a provision store which he left in the care of his late brother when he departed for the UK. He later directed that the bar and the stock in it be sold and the proceeds used to fund the construction of the house. According to the 2nd Plaintiff, he came back from England in 1955 and the Deceased took him round to show him the completed house. He said the property had not been fenced at the time. He left again for the UK and came back in 1960 where the house was in the same condition as he had seen it in 1955 except that a fence wall had now been built around the house. He said the fence wall had been constructed by the 1st Plaintiff out of her own resources. Later in 1974, he visited again and the 1st Plaintiff informed him that she had moved into the house and had connected water and electricity to the House. He tendered in Evidence Exh Al which is a receipt from the Ghana Water and Sewerage Corporation dated January 1994 and in the name of Akosua Dufie who until her demise was the 1st Plaintiff in this matter.\r\nFrom the record, this was the only evidence tendered by the Plaintiff in support\r\nof his case of proving title to the land. The 2nd Plaintiff also said in his evidence\r\nthat he had been given an "allocation paper" evidencing the acquisition of the\r\n27\r\n \r\nfor England after explaining to him what it was.\r\nDEFENDANTS CASE\r\n2nd Defendant in his evidence stated that the properties in dispute were the self acquired properties of his late father. In support of this, he tendered in exhibits 1-13. Exhibit 1 was a goldsmith''s license even though it was not in dispute that the deceased had been a goldsmith before becoming a farmer. Exh 2 entitled "undertaking" was dated 23rd June 1958 and attested to by the deceased and an officer from the Asantehene''s Land office. It was also copied to the Amakomhene. Also tendered in evidence were copies of site plans and receipts for the payment of tribute to various stools and property and ground rent all issued in the name of Kwaku Poku the deceased.\r\nFrom the grounds of appeal filed by the Defendants in this court, coupled with the Statement of Case filed by Counsel for the parties, it is clear the thrust of the appeal revolves around the rival contentions of the Plaintiffs that the properties in dispute are family properties in contrast to the Defendants claims that that the properties were the self-acquired properties of the deceased, KWAKU POKU.\r\nFrom the evidence on record, the resolution of this dispute will revolve around\r\n1.	Assessment of the conflicting pieces of evidence adduced by the parties at the trial court.\r\n2	The source of funding as determined by the learned trial judge at the trial court and;\r\n3	Since the issue of CAPACITY has been argued, it will be considered first as a matter of procedure.\r\nSUBMISSIONS ON CAPACITY\r\nThe Counsel for the Appellants argued doggedly the issue of capacity of the Plaintiffs to institute the present action. Counsel advanced the argument that as the Plaintiffs were claiming family property, they had to be clothed with the\r\nrequisite capacity. The endorsement on the Writ of Summons read as follows:\r\n28\r\n \r\n1.	MADAM AKOSUA DUFIE	PLAINTIFFS\r\n2.	KINGSLEY ADU POKU-MENSAH\r\n(Customary successor to the late Kweku Poku For themselves and on behalf of the family of the late Kwaku Poku)\r\nIt is apparent that the 2 nd Plaintiff was the customary successor of the late Kwaku Poku and this was admitted by the Defendants in their defence and testimony. Capacity is a point of law which if raised goes to the root of the action. The law on the position of a customary successor must then be examined to determine whether or not the 2 nd Plaintiff was clothed with the capacity.\r\nIn GHANA MUSLIMS REPRESENTATIVE COUNCIL AND OTHERS v SALIFU AND OTHERS 119751 2 GLR 246-265, the learned Judges held that in a representative action it was necessary, both in the writ and all subsequent pleadings to state clearly that the parties were suing or being sued in their representative capacity on behalf of the members of a defined class.\r\nIt must be stated that the Plaintiff/Respondent had endorsed their Writ and pleadings as such and therefore no issue could be raised about the procedure or the capacity in which they sued.-\r\nIn NYAMEKYE v ANSAH 11989-901 2 GLR 152-163 it was held that as a general rule, the head of a family as representatives of the family was the proper person to institute suits for the recovery of family land. And where the authority of a person to sue in a representative capacity was challenged, the onus was upon him to prove that he had been duly authorized. He could not succeed on the merits without satisfying the court on that important preliminary issue. The customary law position was that when a successor was appointed, he was ipso facto the head of the immediate family. In the instant case, the 2iU Plaintiff had been appointed the successor and therefore he became the head of the immediate\r\n29\r\n \r\nfamily. He therefore had the capacity to sue and the judgment of the court of Appeal in that respect ought not to be disturbed.\r\nWhat weight then ought to be put on the conflicting evidence adduced by both parties?\r\nIn the case of Yorkwa v Duah [1992-931 GBLR 278, CA, it was held that whenever there was in existence a written agreement and conflicting oral evidence over a transaction, the practice in the Court was to lean favourably towards the documentary evidence, especially if it was authentic and the oral evidence conflicting. See also Nsiah v Atuahene, [1992-93] GBLR 897 C.A\r\nIt is interesting to note that in an action for a declaration of title to land, all the Plaintiffs were able to produce in support of their claim was a utility receipt dated January 1994 especially also as the burden of proof and persuasion rested firmly on them.\r\nThe Defendants on the other hand have been able to produce enough compelling evidence to support their claim that the properties were the self acquired properties of the deceased. The Plaintiff claimed that the building was completed in 1955 whereas the Defendant tendered in Exh 4 dated 9-5-58 which was a receipt for the preparation of permit to develop Plot No 11 Block 24 which is the property in dispute.\r\nOther pieces of evidence which go to confirm that the deceased exercised overt acts of ownership more than the Plaintiffs were able to prove, are the following;\r\n	1.	It was not disputed that the deceased exercised overt acts of ownership\r\nover the properties without challenge from either the 1" or 2 Id Plaintiff.\r\nHe rented out the property to tenants and was never once called to\r\naccount for the proceeds of the rent.\r\n	7.	He paid all the ground rent and property rates by himself without any help from anyone. All these acts go to support the assertion of the Defendants ''IC\r\n \r\nthat indeed the properties were the self acquired properties of Kwaku Poku.\r\nIn cross examination, the 2 nd Plaintiff was asked if he ever asked his brother about the title deeds to the properties and his answer was that he never did because the deceased was his elder brother and he didn''t have to ask him for the title deeds.\r\nIndeed this flies in the face of reason especially if as he claims he only put the deceased in charge because he was outside the country at the time. This assertion by the 2 nd Plaintiff is contrary to logic and his subsequent conduct in seeking to establish that the properties were family properties. His conduct any time he came back from the UK was inconsistent with someone who was financing or had financed the acquisition of the disputed properties.\r\nIndeed in the Defendants statement of ', '../links/cases/Document (118).pdf', 'Yes', 'ATUGUBA,JSC,ANSAH,JSC,ADINYIRA (MRS),JSC,DOTSE,JSC.', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Land law - Family property as against self acquired property,claims against estate of deceased,documentary evidence prevailing over oral evidence.Demand for property rates,nature of evaluation evidence.The Evidence Act - Sections&nbsp; 10, 11 and 12.Burden of Persuasion and Preponderance of Probabilities defined.</font></b></i><br>', 'WOOD (MRS), CJ', 'Civil', '', 'J4/25/2006', '', '', 'supreme', '2009-07-27', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(534, '1.BEN MIREKU\r\n2.GABRIEL TETTEH MIREKU\r\n3.KWASI BADU  ... PLAINTIFFS/RESPONDENTS/APPELLANTS\r\nVRS\r\n1.ARCHIBALD OKPON TETTEH\r\n2.VICTORIA ATSWEI\r\n3.ELIZABETH AJORKOR\r\n4.ADMINISTRATORS OF THE ESTATE OF ADJEI TETTEH  ... DEFENDANTS/APPELLANTS/RESPONDENTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\n \r\nIN THE SUPREME COURT\r\nACCRA - GHANA\r\nCORAM: SOPHIA AKUFFO (MS.), JSC (PRESIDING) SOPHIA ADINYIRA (MRS.), JSC\r\nANINYEBOAH, JSC\r\nBAFFOE-BONNIE, JSC\r\nSULEY GBADEGBE, JSC\r\nCIVIL APPEAL NO. J4/23/2010\r\n9TH FEBRUARY, 2011\r\n1.	BEN MIREKU\r\n2.	GABRIEL TETTEH Mt REKU\r\n \r\n3. KWASI BADU\r\nVRS\r\n1.	ARCHIBALD OKPON TETTEH\r\n2.	VICTORIA ATSWEI\r\n3.	ELIZABETH AJORKOR\r\n4.	ADMINISTRATORS OF THE ESTATE OF ADJEI TETTEH\r\n \r\nPLAINTIFFS/RESPONDENTS/APPELLANTS\r\nDEFENDANTS/APPELLANTS/RESPONDENTS\r\n \r\nLease Agreement - Renewal of lease not implied covenant, must be expressly stated. Absence of renewal clause in lease agreement does not render agreement unconscionable. Refurbishment and expansion of leasehold property not ground to order renewals of expired lease.\r\nLaw of Contract: Trial court lacks power to make new contract for parties on terms lu.''l mutually agreed upon by parties.\r\nJUDGMENT\r\nSOPHIA ADINYIRA (MRS.), J.S.C: Delivered the Judgment of the Court. FACTS\r\nThe Plaintiffs/Respondents/Appellants hereinafter (Plaintiffs) are the beneficiaries and successors of the estate of the late Kwaku Mireku, a Kwaliu businessman. The 1st, 2nd and 3rd Defendants/Appellants/Respondents (hereinafter Defendants) are the children of the\r\n \r\nINYHO JO 331A5 1IOft''\r\nlate Abraham Narh Tetteh, the original owner of Plot No. D 774/3 Okaishie, Accra, (the subject matter in dispute,) who died in 1941. In November 1965,\r\nthe late Kwaku Mireku took a lease of the said land for a term of 32 years from Adjei Tetteh a son of the original owner. In accordance with the terms of the said lease agreement, the late Kwaku Mireku demolished existing structures on the land and constructed a three-storey building with stores for his own use which he named Mireku House; and a two storey-house for the use of the lessor. The definite term of the lease was for 32 years without any renewal clause.\r\nBy a letter dated 15 May 1996, the Defendants had their solicitor give notice to the Plaintiffs of the expiry of the lease on 31 October 1997 and their intention to recover possession of the Mireku House by 1 November 1997. The Plaintiffs by a letter dated 26 November 1996 acknowledged receipt of the letter and pleaded for a new lease of 50 years which the Defendants rejected.\r\nThereafter, the Plaintiffs on 7 August 1997 instituted an action before the High Court Accra claiming the following reliefs:\r\n1.	"An order varying the terms of a lease dated 2 October 1965 between Adjei Tetteh and Kwaku Mireku on grounds of unconscionability; or\r\n2.	In the alternative, a declaration that Plaintiffs are statutory tenants\r\n3.	Any further order(s) or relief(s) as the Court may deem fit."\r\nIn their statement of claim the Plaintiffs averred that they have had cordial relationship with the defendants and also created goodwill for their business in the area. That in 1984/85 there was a fire outbreak that destroyed a substantial part of the building. The building was not only\r\n \r\nIN V140 dO 331,1183S 1V3,\r\nrepaired and refurbished but a fourth floor was added to it to the knowledge of the defendants. The Plaintiffs claimed per Paragraph 12 of their statement of claim that:\r\n"Paragraph 12: "The Plaintiffs aver that it will be unconscionable to terminate the lease and seek relief under section 18 of the Conveyancing Decree, (NRCD 175).\r\nPARTICULARS OF UNCONSCIONABILITY\r\n1.	The lease agreement did not contain any covenant or term against renewal and therefore entitled the lessees to renewal.\r\n2.	The Lessee built a 2 storey building for the Lessor for his own use free of rent which building is now occupied by the family of the Lessor and strangers.\r\n3.	The lease required the Lessee to build a 3 storey building for him to enjoy a term of 32 years thus working into 10 years 8 months for each storey.\r\n4.	The extension of the 3 storey building into a 4 storey by the Lessee to the knowledge of the Lessor entitled it to a further term of 10 years 8 months on the basis of the 4 storey alone."\r\nThe 1st, 2nd and 3rd Defendants in defence claimed they "were never made aware of any fire outbreak and of any extension", and that there was a clear understanding that the lessor would take over the property at the expiration of the lease. They therefore counterclaimed for the following reliefs:\r\n \r\nns VWIOflr VNVHO JO 3IM3S 131fl\r\n1. An order for immediate recovery of possession of\r\nH/No.D774/3,Kimberly Avenue, Accra, and structure known as H/No. 1167/4 Kimberly Beach Avenue, Accra.\r\nDamages for trespass from 1 November 1997.\r\n3 Perpetual Injunction restraining the Plaintiffs from in any way dealing with the said H/No.D774/3,Kimberly Avenue, Accra, otherwise known as H/No. 1167/4 Kimberly Beach Avenue,\r\nAccra.\r\nThe 4th1 Defendant who is the administrator of the estate of the late Adjei Tetteh filed a separate statement of defence. He claimed that any repair or refurbishment of the said premises was an obligation on the lessee under the lease agreement. The extension of the building to a four-storey building was done without the prior written or consent of the defendants or the family and it was therefore a breach of the terms of the lease. The 4th Defendant claimed further that the Plaintiffs have let out the 4 th floor of the building to tenants for their sole benefit and can therefore not use the extension upon which to base their claim. He also counterclaimed for recovery of possession, damages for trespass and mesne profits from 1/11/97 to the date defendants recover possession of the premises.\r\nThe issues set down for determination at the trial were several but the High Court Judge after hearing of evidence set down only two issues arising for determination. These were:\r\n1.	Whether or not the agreement was unconscionable\r\n2.	Whether the Plaintiffs and others occupying the disputed property could properly be declared statutory tenants.\r\nThe High Court resolved both issues in favour of the Defendants, and dismissed the first and second reliefs sought by the Plaintiffs. He held that the lease agreement between the lessor and the lessee was not\r\n \r\nLS 1Vl3Oflr VNVHO dO 3JAS 13Kfl\r\nunconscionable because it was prepared for the parties by a lawyer and the parties appended their respective signatures to the document indicating their acceptance of the terms agreed upon. The trial judge further held that from the nature and terms of the expired lease, even though the Plaintiffs have remained in possession of the premises after the expiry of the lease, they could not be declared statutory tenants by virtue of Section 1 subsection 2 (2) (c) of the Rent Act, 1963, Act 220. The said section reads:\r\n1. "Application of the Act\r\n(i) Subject to subsection (2), this Act applies to all premises. (2) This Act does not apply to\r\n(c) a lease after the erection of the new premises, where the lease, whether entered into, before, or after the date of commencement of this Act was entered into as a lease of land on which there were premises but the premises were demolished and new premises erected within five years after the grant of the lease."\r\nOn the third relief the trial judge at page 218 of the record of said:\r\n"The third relief is stated as follows: ''Any further order[s] or relief as the Court may deem fit.'' This is not a specific relief. The Plaintiffs are as it were, throwing themselves upon the Court to grant them any relief as the justice of the case required. Taking the whole circumstances of the case into consideration especially, the fact that the Plaintiffs predecessor in title put up two buildings at his own expense, one of which was given to the lessor; the Plaintiffs repaired the building when it was gutted by fire and added another story to the original three at their expenses; the Defendant do not need the premises for their own personal use and are likely to let out the premises to other\r\n \r\niV)IOft VNVH IO 331AN3S 110101r\r\ntenants; the goodwill built by the Plaintiffs over the years and the hardship that would be caused the Plaintiffs if they are asked to quit among others..."\r\nThe trial judge therefore ordered that the Defendants should renew the lease within three months of the judgment at a recoverable rent to be agreed by the parties or failing that to be fixed by the Rent Officer and all rent arrears to be paid to the defendants. He dismissed the counterclaims of the Defendants except the claim for mesne profits equivalent to the rent for the period iNovember 1997 to the date of the judgment.\r\nThe Defendants being dissatisfied appealed against the judgment to the Court of Appeal on the ground:\r\n"The judge erred when he ordered the Defendants to renew the lease of the premises when indeed there is no renewal clause contained in the leasehold document governing the premises."\r\nThe Plaintiffs on the other hand cross-appealed on the grounds that:\r\n1.	"The trial court erred in law when it held that Exhibit ''A'', the lease agreement between the lessor and the lessee was not unconscionable because it was prepared for the parties by a lawyer and the parties appended their respective signatures to the document indicating their acceptance of the terms agreed upon.\r\n2.	The trial Judge erred in his finding that the agreement was not unreasonable in any way without taking into account the totality of the circumstances of the lease notwithstanding the fact that the lease did not provide an option of a renewal."\r\nThe Court of Appeal dismissed the cross-appeal and upheld the appeal by the defendants and set aside the orders of the trial court and granted the\r\n \r\n\r\n	\r\ndefendants their counterclaim. Their lordships were of the view that once the trial judge held that the lease agreement was not unconscionable and the Plaintiffs were also not statutory tenants, he erred in ordering the Defendants to renew the lease agreement. It is against this judgment that the Plaintiffs have lodged a further appeal to this Court.\r\nThe grounds of appeal filed by the plaintiffs before this court are:\r\n1.	That the judgment is against the weight of evidence.\r\n2.	That the Court of Appeal erred when it failed to give effect to the mandatory provision of section 18 of the Conveyancing Decree 1973, NRCD 175 and thereby misdirected itself on the law aforesaid.\r\n3.	That the judgment of the Court of Appeal was delivered per incuriam of section 18 of the Conveyancing Decree 1973, NRCD 175.\r\n4.	The Court of Appeal erred in law when it failed to consider the bargaining conduct of the parties their relative bargaining positions with respect to the commercial setting of the property in dispute and also the Appellants as lessees built a two-storey apartment for the lessor from their own resources which the lessor has remodelled into shops and rented out to tenants."\r\nGrounds 2, 3, and 4\r\nGrounds 2, 3, and 4 were argued together by counsel for the Plaintiffs in his statement of case which related to the issue as to whether the lease agreement was unconscionable. For purposes of clarity and brevity we will consider these grounds first.\r\nAlthough in grounds 2 and 3 of the appeal Counsel complained that the judgment of the Court of Appeal was delivered per incuriam of section 18 of\r\n \r\nthe Conveyancing Act, 1973, NRCD 175, he did not mention the section in his statement of case even once. We find counsel''s criticisms rather scandalous and frivolous and it is an indication that the Plaintiffs did not frilly appreciate the judgment. The Court of Appeal did consider section 18 of the Conveyancing Decree of 1973 which we find unnecessary as it was not applicable to this case as the leasehold agreement under consideration was concluded in 1965. Nevertheless the said section was more or less a codification of the common law and practice in existence then and which both the trial and appellate courts considered and applied.\r\nThe learned trial judge''s conclusion that the lease agreement was not unconscionable was endorsed by the Court of Appeal. The learned justices did avert their minds to section 18 of the Conveyancing Decree 1973, NRCD 175 as well as decided cases on the issue unconscionability. They referred to Black''s Law Dictionary 8tI1 Edition at page 1561 for guidance on the definition of the word unconscionable as contained in section 18. The dictionary described an unconscionable act or transaction as "showing no regard for conscience, affronting the sense of justice, decency of reasonableness".\r\nAyebi J.A. who delivered the judgment of the court referred to the old English case of Fry vs. Lane [1888] 40 Chan. Div. 312, and the Ghanaian cases of Attitsoybe vs. CFC Construction Co. (WA)Ltd. & Read [2005¬2006] SCGLR858 and Shahin vs. Cofie 11994-951 iGBR 398, where the Supreme Court per Amuah-Sakyi J.S.C. held that:\r\n2. "The issue of unconscionability ought to be determined by reference to the circumstances prevailing at the time the agreement was entered into, not at any later date; otherwise, few agreements would escape censure."\r\n \r\nAfter exhaustively evaluating the evidence and the law Ayebi J.A. said:\r\n"The lease Exhibit A was granted to Plaintiffs'' predecessor on 2/10/65. There is no evidence of any procedural abuse on the part of the lessor during the transaction. There is no evidence that the terms of the lease are abusive of the need, ignorance or the means of the lessee, Mr. Mireku. The complaint of the plaintiffs is rather about the absence of a renewal clause in the lease. The Plaintiffs on the evidence did not blame the lessor for the absence of a renewal clause.\r\nIndeed the parties to the lease were literate. The lease was prepared for them by a lawyer and they appended their signatures thereby agreeing to the terms. The first Plaintiff at page 63 of the record of proceedings boasted that his father Mr. Mireku was an astute businessman who is well-known in the business community in Accra. As a Kwahu man, the business acumen of Mr. Mireku as published by the son cannot be doubted. From the terms of the lease, Mr. Mireku appeared to be a man of substance financially. The lessor rather appeared to be a poor land owner. The lessee agreed to and indeed built a three storey building on the land for himself and a two storey building for his lessor within the stipulated time frame at his own expense. He also agreed to pay the annual ground rent on the property. Finally he agreed to surrender the land together with the buildings he has put up for his own use to the lessor at the end of the 32 years.\r\nUntil Mr. Mireku died in 1983, he did business in the three storey building he was permitted by the lease to put up for his own use. No questions were raised about the absence of a renewal clause in the lease... .The three storey building put up by Mr. Mireku for his own use now called MIREKU HOUSE consists of shops which he gave out\r\n \r\n..\r\n1••	d9S 1v0I0fl VNVHO JO 3Ni3S 1iiOK\r\nto his children and family members and then tenants. As at 1965 when he was granted the lease, it is my view that Mr. Mireku found the terms commercially reasonable. He thus lived and worked with the lease throughout. Indeed any objective bystander in 1965 will hold this arrangement under the lease fair and reasonable."\r\nIn effect there is a concurrent finding by the two lower courts that the lease agreement was not unconscionable. We find no basis to reverse this decision based on the facts which the High Court and Court of Appeal have founded their conclusions. See the cases of Aclioro v. Akanfela [1996-97] SCGLR 209 and Koglex Ltd. (No.2) v. Field [2000]175\r\nA lease agreement is a contract for the lease of land and thus the terms of the contract has to be by mutual agreement. Whereas some covenants by the lessor/ transferor and the covenants by the lessee/transferee are implied by common law and statute, the option for renewal is not. Examples of such implied covenants on the part of the lessor/transferor are covenants for right to convey, quiet enjoyment, freedom from encumbrances; and on the part of the lessee/transferee, covenants relating to payment of rent, repair to adjoining premises, alterations and additions assignment or subletting, nuisance and sub-lease. See also sections 22 and 23 of the Conveyancing Act. Accordingly the option for renewal can only be conferred on a tenant by express mutual agreement of the parties and ought to be an express term in the lease agreement.\r\nWe affirm the decision of the Court of Appeal that the absence of a renewal clause in Exhibit A did not render the agreement unconscionable.\r\nWe find no merit in grounds 2, 3, and 4 of the appeal and they are hereby dismissed.\r\nGround One\r\n \r\nThe remaining ground of appeal to be considered is whether the judgement is against the weight of evidence. Counsel for the Plaintiffs urged upon this Court that the trial judge in making an order for the renewal of the lease:\r\n"...did not seek to make a contract for the parties but took into consideration the events that happened which was not within the contemplation of the parties at the time of the execution of the said agreement and for which the Plaintiffs! Respondents/ Appellants adequately responded by committing substantial resources to same."\r\nCounsel for the Plaintiffs concluded that:\r\n"My Lords, it is our humble submission that the trial judge order which he made after he had taken into consideration all the circumstances of this suit, was in accord with the principles of fair justice, fairness and good conscience and it is our prayer that the said order be restored".\r\nThe events or the circumstances that Counsel refers to are the refurbishment of the house after fire has destroyed part of it, the addition of an extra storey to three storey building, and the goodwill that the Plaintiffs have established in the area.\r\nCounsel for the Defendants in their statement of case submitted that these same grounds were unsuccessfully canvassed at the trial court to have Exhibit ''A'' to be varied as unconscionable but the trial judge refused. Counsel argued that, consequently there was no reason for the trial judge to turn about and order a renewal of the lease. It was for that conduct that the Court of Appeal chastised the trial judge and set aside the order for renewal.\r\n \r\n4NVH0 dO 331AUaS ivioianr\r\nWe do not find any merit in this ground of appeal. The evidence that the Plaintiffs are basically relying on here are the facts that they repaired the three storey-building after the fire disaster and added a fourth floor to it. In respect of the repairs we note that there was an express covenant under the lease agreement for the plaintiffs as lessees to keep the three storey- building in repair by the Plaintiffs. There was also a covenant by the Plaintiffs to insure the house against any damage, fire, earthquake etc. and to use all monies received by virtue of such insurance in rebuilding or rehabilitating the said building to make up any deficit out of their own money. We consider these acts of the Plaintiffs as fulfilling their tenancy obligation under the lease agreement. Consequently the Plaintiffs could not stand on these repairs to insist on a renewal of the lease agreement.\r\nThe addition of the fourth storey is clearly an improvement on the building but once again there was no express term in the agreement for improvement or extension and compensation/re-imbursement for such. Moreover the Defendants denied granting any permission to the Plaintiffs for the extension. The Plaintiffs were unable to discharge the onus on them. There was evidence that the Plaintiffs rented out the fourth floor for commercial purposes for a period of 13 years before the expiry of the lease. We therefore do not see any inequity here as the Plaintiffs have economically benefited from the addition to the Mireku House.\r\nAccordingly, the trial judge erred by relying on the refurbishment and expansion of Mireku House to order a renewal of the lease which he has ruled to be conscionable and cannot therefore vary. The Plaintiffs have merely repeated arguments that did not succeed at the appellate court. They have been unable to demonstrate that the appellate court''s rejection of their submissions constituted such an error to warrant, the intervention by this Court.\r\n \r\n•	.\r\n \r\nWe further agree with the learned justices that the order by the trial judge to the Defendants to renew the lease for the Plaintiffs was an imposition. It is not the duty of the Courts to make a new contract for parties on terms they have not mutually agreed upon. Addison v. A/S Norway Cement Export Ltd. [1973] 2 GLR 151; City and Country Waste Ltd. vs. Accra Metropolitan Assembly 22oj,008] SCGLR 409. We accordingly dismiss this ground of appeal.\r\nFor the above reasons the appeal fails and is accordingly dismissed. The judgment of the Court of Appeal is hereby affirmed.\r\n[SGD] S.O.A. ADINYIRA (MRS.)\r\n[JUSTICE OF THE SUPREME COURT]\r\n[SGD]	S. A. B. AKUFFO\r\n[JUSTICE OF THE SUPREME COURT]\r\n[SGD]	ANIN YEBOAH\r\n[JUSTICE OF THE SUPREME COURT]\r\n[SGD]	P. BAFFOE- BONNIE\r\n[JUSTICE OF THE SUPREME COURT]\r\n[SGD]	N. S. GBADEGBE\r\n[JUSTICE OF THE SUPREME COURT\r\n \r\nCOUNSEL\r\nGEORGE AGBEKO FOR THE APPELLANT\r\nHON. J. AYIKOI OTOO FOR THE DEFENDANT/ APPELLANTS/ RESPONDENT.\r\nW"P''M COIJPT or\r\n', '../links/cases/Document (112).pdf', 'Yes', 'SOPHIA ADINYIRA (MRS.),JSC,ANIN YEBOAH,JSC,BAFFOE-BONNIE,JSC.,SULEY GBADEGBE,JSC.', '2011', 'supreme', '<i><b><font face="Times New Roman" size="3">Lease Agreement - Renewal of lease not implied covenant,must be expressly stated.Absence of renewal clause in lease agreement does not render agreement unconscienable. Refurbishment and expansion of leasehold property not ground to order renewal of expired lease.Law of contract:trial court lacks power to make new contract for parties on terms not mutually agreed upon by parties.</font></b></i><br>', 'SOPHIA AKUFFO (MS.),JSC', 'Civil', '', 'J4/23/2010', '', '', 'supreme', '2011-02-09', ''),
(535, 'NOVA COMPLEX LIMITED  ... PLAINTIFF/RESPONDENT\r\nVRS\r\nGHANA PORT & HARBOURS AUTHORITY  ... DEFENDANT/APPELLANT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\n\r\n	\r\n\r\nNOVA COMPLEX LIMITED	PLAINTIFF! RESPONDENT VRS\r\nGHANA PORT & HARBOURS AUTHORITY	DEFENDANT! APPELLANT\r\nInterest Rate— Applicable Iegislation---whether appellate court can apply Cl 52 at time of its judgment on appeal when judgment of lower court entered before January 2006; Applicable legislation on interest is legislation in force at time of any judgment, whether judgment of lower court or appellate court— Application of Cl 52 post judgment interest to judgment of Court of Appeal entered after January 2006 not a retroactive application of Cl 52 even if original judgment entered before January 2006.\r\nJUDGMENT\r\nDR. DATE-BAH, J.S.C:\r\nThis is the Unanimous judgment of the Court. FACTS\r\nThis case relates to a dispute about the amount of interest due from a judgment-debtor to a judgment creditor. The respondent in this case filed a motion ex parte on 161hi July 2007 for a garnishee order nisi directed at banks where the appellant has accounts. In her affidavit in support of this motion, the Managing-Director of the respondent deposed to the fact that the respondent had obtained judgment in the Supreme Court against the appellant on 15th November 2006 and that the appellant had on 3rd January 2007 paid into court 905,735,855.00 cedis and a further $ 1,535,437.50 by March 2007. These payments had been made in satisfaction of a Supreme Court order in this case which was in the following terms:\r\n"The decision of this court is unanimous. The appeal fails in part and succeeds in part only i.e. on the ground dealing with the award of the sum of $2,658,300 as an indemnity for the respondent''s tort, as well as interest etc.\r\n \r\nThe cross appeal succeeds in part only, that is on question of costs only and fails on all the other grounds. In this regard, the cost awarded in the Court of Appeal is assessed as c50 million cedis.\r\nCosts would be assessed at c50m,\r\nThis Court awards interest only on the replacement value of the vessel assessed at $600,000 at the US dollar rate as stipulated by the Bank of Ghana and as per the Court of Appeal decision; from the date of beaching - 9 March 2001- to the date of judgment, 29th July 2004 or its cedi equivalent and at the 440,649,992.25 cedis together with interest at the prevailing bank rate from the date of beaching - gth March 2001 - to the date of judgment, 29 July 2004.\r\nLoss of Use\r\nThis Court assesses the loss of use as $900,000 (NINE HUNDRED THOUSAND DOLLARS ONLY)."\r\nOn receiving copies of the letters accompanying the appellant''s payments into court, the respondent wrote to the appellant drawing its attention to the fact that post judgment interest was also payable on the amounts and, in the case of the US dollar amounts, not at the Bank of Ghana dollar base rate, but at a US dollar prime rate, The deponent referred to above stated that the appellant did not reply to this letter. The deponent further averred that as at 29th January 2007 what remained unpaid of the judgment debt was US £204,095.00 and 690,959,127.00 cedis (being mainly post-judgment interest and the use of the wrong rate of interest in the calculation of the US dollar interest rate.) It was in relation to these amounts that the respondent had applied for the garnishee order nisi.\r\nThe order nisi was granted by the High Court on 17th July 2007, but it was subsequently discharged, on 31''t July 2007, by the court subject to the court''s order that interest be paid on the sum of 440,649,992.25 cedis at the 91 day treasury bill rate from 1''t August 2004 to 31st December 2006 and further that interest be paid on the sum of $600,000 at the US dollar rate as stipulated by the Bank of Ghana from Pt August 2004 to 315t December 2006. The respondent, being aggrieved by the ruling of the High Court containing these orders, appealed to the Court of Appeal. It complained about the learned trial judge''s application of "the US dollar rate as stipulated by Bank of Ghana" as the applicable post-judgment rate of interest, instead of what it considered to be the statutorily sanctioned post-judgment rate of interest. It also complained about the trial judge''s refusal to apply the statutorily sanctioned\r\n2\r\n \r\npost-judgment rate of interest on the damages of $ 900,000 awarded it for loss of use. The Court of Appeal allowed the appeal and set aside the orders of the High Court relating to the dollar component of the judgment debt. It ordered that post judgment interest be paid on the dollar component at the current prevailing rate in the United States of America till final payment.\r\nIt is from this unanimous judgment of the Court of Appeal that the appellant has appealed to this Court. Before this Court, the appellant has based its case on the following two Additional Grounds of Appeal:\r\n"ADDITIONAL GROUND A\r\nTheir Lordships erred in applying Court (Award of Interest and Post Judgment Interest) Rules 2005 (CI52) retroactively.\r\nADDITIONAL GROUND B\r\nTheir Lordships holding that post judgment interest rate payable is the rate prevailing as at the date of payment is unsupportable in law."\r\nTHE LAW\r\nThe appellant''s case in its appeal to this Court is constructed on a false premise, namely, that the judgment referred to in the Court (Award of Interest and Post Judgment Interest) Rules, 2005 (CI 52) is necessarily the judgment of the trial court, rather than that of the appellate court which gave the final judgment in the case. Rule 2(1) of the Court (Award of Interest and Post-Judgment Interest) Rules 2005 provides that "Subject to subrule (2) each judgment debt shall bear interest at the statutory interest rate from the date of delivery of the judgment up to the date of final payment." Because an appeal, in the Ghanaian jurisdiction, is by way of rehearing, the operative judgment for the purposes of this provision of CI 52 should ordinarily be the final judgment of the appellate court. There are several Supreme Court judgments which impliedly affirm this proposition. The statutory pre¬judgment interest rate applies between the date of accrual of the cause of action till the date of final judgment by the final appellate court, when so ordered by the court. The post- judgment interest rate then applies from that date, by operation of law. Thus, for instance, in CCWL v Accra Metropolitan Assembly 12007-2008] SCGLR 440-441 the Supreme Court said:\r\n3\r\n \r\n"Accordingly, we order that the defendant should pay the plaintiff the net award made by the learned trial court judge in the passage quoted above. In accordance with the Court (Award of Interest and Post Judgment Interest) Rules, 2005 (CI 52), the Defendant is ordered to pay interest on the amount awarded to the Plaintiff at the bank rate prevailing today with effect from the date of termination of the contract, that is, 29'' June 2001 till the date of payment."\r\nClearly, the Supreme Court''s holding here implies that the judgment by reference to which any post-judgment interest rate should apply is its own judgment. It holds that the pre-judgment interest rate should apply from the date on which the cause of action arose till the date of its own judgment, not the date of the High Court judgment. There are other Supreme Court judgments to the same effect.\r\nFor instance, the Supreme Court in Da Costa v Ofori Transport Ltd. [2007-2008] SCGLR 602, unanimously held (at p. 609-610) as follows:\r\n"In the result, after a diligent perusal of the plaintiffs'' Statement of Case, we have not found any reason why the judgment of the Court of Appeal should, subject to the order we are about to make on interest, be disturbed and we accordingly dismiss this appeal as being without merit.\r\nHowever, we have decided to modify the judgment of the Court of Appeal by awarding interest on the damages ordered by the Court. In accordance with Rule 1 of the Court (Award of Interest and Post Judgment Interest) Rules, 2005 (CI 52), we order that the damages of four million cedis awarded by the Court of Appeal are to bear interest at the prevailing bank rate from the date of the accrual of the cause of action, namely, the date of the first breach of the covenant to inform about sublets, till judgment today.\r\nFrom today, the plaintiffs are, of course, automatically entitled to the payment of interest on the judgment debt at the post-judgment statutory interest rate specified in Rule 2 of CI 52, namely, the prevailing bank rate again, or where there is doubt as to the prevailing rate, the 91 days Treasury Bill rate as determined by the Bank of Ghana, till the date of payment.\r\n4\r\n \r\nThe appeal is dismissed, subject to this new order as to interest."\r\nOther Supreme Court decisions to like effect include: Dupaul Wood Treatment (Ghana) Co. Ltd & Duffour v Asare [2005-2006] SCGLR 667 at p. 695; AnEw! v NTHC (Suit No. 54/12/2008, unreported judgment, delivered on 4th February 2009 and Yungdong\r\nIndustries Ltd v Roro Services & Ors [2005-2006] SCGLR 816, at p. 848 where Justice Date- Bah said:\r\n"Accordingly, the damages that I would award are what would be equivalent to the value, as at 25 March 1994, of the goods converted, together with interest from that date to the date of the final orders of this court."\r\nThese cases show that the application of CI 52 to the facts of this case does not involve retroactivity. The relevant legislation applicable on the date of the judgment of the Supreme Court, on 15th November 2006, was CI 52. That legislation authorised the Supreme Court to award pre-judgment interest on the judgment debt that it adjudged. Post-judgment interest would then follow as a matter of law. The fact that the Supreme Court chose to limit the period of the pre-judgment interest it awarded so that it would terminate on the date of the judgment of the High Court does not take away its statutory authority to award the said pre-judgment interest rate. In view of the interpretation given by the Supreme Court to CI 52 (supra), it was open to the Supreme Court to have decided that the interest payable by the appellant should be up to the date of the judgment of the Supreme Court. The fact that it did not do so does not derogate from the applicability of CI 52 to its judgment, even though the enactment came into force after the giving of the High Court judgment in this case. Accordingly, in our view, the appellant''s Additional Ground A is misconceived, Additional Ground A, as already stated, is to the effect that: "Their Lordships erred in applying the Court (Award of Interest and Post Judgment Interest) Rules 2005 (CI 52) retrospectively." The appellant''s case is that\r\nthe judgment of the High Court was given on 29th July 2004, at which date the Court (Award of Interest and Post Judgment Interest) Rules, 2005 (CI 52) had not yet come into force. The applicable rate for post-judgment interest rate at the date of the High Court judgment was 4% interest under Order 42 r15 of the High Court (Civil Procedure) Rules 1954 ([N 140A).\r\nThe appellant expresses the quintessence of its argument as follows (in paragraphs 2 and 3 of its Statement of Case):\r\n5\r\n \r\n "2. The controversy between the parties concerned the post judgment interest payable on the above debts. The controversy arose because on 29 July 2004 when the High Court pronounced its judgment, the post judgment interest rate was no more than 4% under Or 42 r 15, LN 140A. In the course of the appellate proceedings, the High Court (Civil Procedure) Rules 2004 (CI 47) repealed LN 140A on 3 January 2005 and substituted a higher rate of interest in the Court (Award of Interest and Post Judgment Interest) Rules 2005 (CI 52). In its written submissions in the Court of Appeal, the respondent herein insisted on the application of CI 52 from 29 July 2004 although it came into effect much later. The respondent explained the basis of such retroactive application of C152 in its written submissions in the Court of Appeal that:\r\n"though the judgment was dated 29 July 2004, and at the relevant time\r\nOrder 42 r 15 of the High Court (Civil Procedure) Rules 1954 (LN 140A)\r\nwas applicable, as yet by virtue of the appeals lodged by the\r\nrespondent, by the time execution or the enforcement of the judgment\r\nwas sought to be performed, [N 140A had been repealed. And CI 52 is\r\napplicable and no court of law could allow a repealed legislation to be\r\nused. It would amount to a situation of suing a dead person ..."\r\n 1. Their Lordships in the Court of Appeal held that CI 52 was a procedural legislation and operated retroactively from 29 July 2004 to date; further, that post judgment interest was payable at the current prevailing rate in the USA as at the date of payment."\r\nThe culmination of the appellant''s argument is that the Court of Appeal''s alleged retroactive application of CI 52 is unconstitutional. This is how it puts its case in its Statement of Case (at paragraph 6):\r\n"Indeed, the retroactive application of CI 52 is unconstitutional. For, article 107 of the 1992 Constitution prohibits such retroactive legislation as would impose a burden, obligation or liability on any person except as permitted under the Constitution. The provision in effect prohibits retroactive interpretation and application of any statute. Admittedly, there would be no objection to retroactivity so long as no burden, obligation or liability is imposed on any person, and this explains the exception of procedural legislation..."\r\n6\r\n \r\nThere are at least two answers to this argument. The first is that article 107 is inapplicable to the facts of this case, since it refers exclusively to Parliament, whilst CI 52 is made by the Rules of Court Committee, pursuant to power conferred upon it by Article 157(2) of the 1992 Constitution. Article 107 provides as follows:\r\n"Parliament shall have no power to pass any law -\r\n(a)	to alter the decision or judgment of any court as between the parties subject to that decision or judgment; or\r\n(b)	which operates retrospectively to impose any limitations on or to adversely affect the personal rights and liberties of any person or to impose a burden, obligation or liability on any person except in the case of a law enacted under article 178 to 182 of this Constitution."\r\nIt is obvious from the express language of this provision that it has no applicability to this case. Secondly, the statutory power to award interest that was exercised by the Supreme Court in its order quoted supra was not deployed retroactively. Rule 1 of CI 52 provides as follows:\r\n"If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated\r\n(a)	at the bank rate prevailing at the time the order is made, and\r\n(b)	at simple interest\r\nbut where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner."\r\nWhen the Supreme Court decided on 15th November 2006 to award pre-judgment interest on the sum representing the replacement value of the vessel the subject-matter of the original suit in this case, it was in effect exercising power under rule 1 of CI 52, which was in force then, although it did not say so expressly. It was open to the Supreme Court to award interest from the date the cause of action arose up until the date of their judgment, pursuant to rule 1. The fact that the court, in exercising its discretion, limited the period for the payment of interest to end on the date the High Court gave its judgment does not convert its award into a retroactive award. This Court has no power in this appeal to disturb that award by the Supreme Court. In my view, however, any post-judgment interest which is payable by operation of law (under rule 2 of CI 52) became payable from the date of the Supreme\r\n7\r\n \r\nCourt''s judgment (and not that of the High Court). Therefore, the interpretation put by the respondent on rule 2 of CI 52 for the purposes of levying execution in this case was erroneous and should not have been supported by the Court of Appeal. Kusi Appiah JA, delivering the unanimous judgment of the Court of Appeal on this point said (at p. 109 of the Record):\r\n"Guided by the decision in DUPAUL WOOD TREATMENT case (supra), I hold that the sums or judgment debt, (i.e. $600,000.00 replacement value of vessel and US $ 900,000.00 damages for loss of use) adjudged payable by the Supreme Court to the Plaintiff/Appellant are to bear post judgment interest in accordance with the Court (Award of Interest and Post Judgment Interest) Rules, 2005 (CI 52) from 29 July, 2004 to date of final payment that is January, 2007."\r\nClearly, the starting date for the calculation of this post-judgment interest is erroneous. It is hereby amended to 15th November 2006, the date of the delivery of the Supreme Court''s judgment and orders. Subject to this amendment, we would dismiss Additional Ground A of the appellant''s appeal. The Court of Appeal was not in error in applying CI 52 to this case and, in any case, that application was not retroactive.\r\nWe will next consider Additional Ground B. There is merit in this ground in that the Court of Appeal erred in ordering that "Post Judgment interest on the Dollar component should be paid at the current prevailing Bank rate in the USA as at the date of payment." (See p. 109 of the Record.) Rule 2 of CI 52 provides that each judgment debt shall bear interest at the statutory interest rate from the date of delivery of the judgment up to the date of final payment. This statutory interest rate is defined in Rule 4 as "the bank rate prevailing at the time the judgment or order is made by the court." On the facts of this case, that would be the bank rate prevailing on 15th November 2006, when the Supreme Court made its order. The appeal thus partially succeeds on this point and the Court of Appeal''s order is hereby varied to conform with rule 4 of CI 52. In other words, the US dollar rate of interest to be applied to the dollar component of the judgment debt should be that prevailing as at the date of the delivery of the Supreme Court''s judgment and orders.\r\nThe appellant also sought to argue its original ground (i) to the effect that the Court of Appeal erred in awarding post judgment interest rate on the US dollar debt at the prevailing interest rate in the US and urged that the 4% exigible under Order 42 rule 15 of LN 140A should be the applicable rate. In the light of the exposition of the law above, it is obvious that this ground has no merit and it is hereby dismissed.\r\n8\r\n \r\nThus, subject to the variations (supra) of the Court of Appeal''s orders relating to the payment of post-judgment interest on the dollar component of the judgment debt, the appeal is dismissed.\r\nDR. S.K. DATE-BAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nS. 0. A. ADINYIRA (MRS) (JUSTICE OF THE SUPREME COURT)\r\nJ.V. M. DOTSE\r\n(JUSTICE OF THE SUPREME COURT)\r\nANIN YEBOAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nP. BAFFOE-BONNIE\r\n(JUSTICE OF THE SUPREME COURT)\r\n \r\nCOUNSEL:\r\nTETTEH & CO. FOR THE APPELLANT E. S. GOKA FOR THE RESPONDENT\r\n \r\n\r\n \r\n9\r\n', '../links/cases/Document (119).pdf', 'Yes', ' ADINYIRA (MRS) JSC, DOTSE, JSC, ANIN YEBOAH,JSC,BAFFOE-BONNIE,JSC', '2010', 'supreme', '<i><b><font face="Times New Roman" size="3">Interest Rate - Applicable legislation - whether appellate court can apply CI 52 at time of its judgment on appeal when judgment of lower court entered before January 2006; Applicable legislation on interest is legislation in force at time of any judgment,whether judgment of lower court or appellate court - Application of CI 52 post judgment interest to judgment of Court of Appeal entered after January 2006 not a retroactive application of CI 52 even if original judgment entered before January 2006.</font></b></i><br>', 'DR. DATE-BAH, JSC', 'Civil', '', 'J4/24/2009', '', '', 'supreme', '2010-01-27', '');
