INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(536, 'NAA LAMILEY AMOAH  ... PLAINTIFF/APPELLANT\r\nVRS\r\n1.GLORIA QUARTEY (SUBSTITUTED FOR BOTH BETTY LOKKO & ALFRED QUARTEY)\r\n2.THE CHIEF REGISTRAR LAND TITLE REGISTRY,ACCRA\r\n3.SENSATIONS LIMITED  ... DEFENDANTS/RESPONDENTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nSUPREME COURT OF GHANA\r\nACCRA\r\nCORAM: ATUGUBA, J.S.C. (PRESIDING) DR. DATE-BAH, J.S.C.\r\nR. OWUSU, J.S.C.\r\n\r\n	\r\n\r\n\r\n	\r\n\r\nLand Law and Conveyancing: Sale of Land—Specific performance —setting aside sale—equitable lien—Refund of purchase money effect of— Execution of Conveyance. 5.2 Conveyancing Act 1973 NRCD 175.\r\nFindings of Fact by Trial Court—setting aside findings of fact by Court of Appeal - Circumstances/Factors to consider.\r\nJUDGMENT\r\nTHE PRESIDENT OF THE COURT, W.A. ATUGUBA J.S.0 INVITED B.T. ARYEETEY i. S.C. TO DELIVER THE JUDGMENT WHICH IS A UNANIMOUS DECISION.\r\nARVEETEY. J.S.0\r\nThis appeal is a straight fight between the plaintiff/appellant, Naa Lamiley Amoah, whom we refer to simply as appellant and the original 41h defendant company,\r\n\r\n \r\nappeal would be appropriate. Betty Lokko and her husband, the late Joseph Lokko\r\nwere owners of two contiguous plots of land at Osu, Accra which were covered by\r\ntwo separate title deeds. Betty Lokko''s title deed''s registered number at the Land\r\nRegistry was number 1751/1957 while the registered number of her husband''s plot\r\nwas 1750/1957. After the death of her husband she was appointed the administrator\r\nof his estate. In that capacity she sold her husband''s plot No. 1750/1957 to Naa\r\nLamiley Amoah, the appellant herein. This was accompanied by sale by her of her\r\nown plot No. 1751/1957 to the appellant. A receipt, exhibit B which Betty Lokko\r\nissued covered the sale of the two contiguous lands. According to the appellant,\r\nafter she had bought the two plots she made a gift of one of them, that is plot\r\nnumber 1750/1957, Betty Lokko''s late husband''s plot, to her sister the late Mrs.\r\nMajorie Welbeck. She then directed her lawyer, the late Cletus Amoah, who\r\nhappened to be her husband, to prepare conveyances to transfer the interest in plot\r\nnumber 1750/1957 to Mrs. Welbeck and plot number 1751/1957, Betty Lokko''s plot,\r\ninto her name. Her instructions were carried out by her lawyer. Thereafter it came to\r\nthe notice of the appellant that one Dr. Ahadzi claimed ownership of plot number\r\n1751/1957. Apparently fearing that her interest in plot number 1750/1957 would be\r\njeopardised Mrs. Welbeck, whom the appellant described as beneficiary, asked for\r\nthe purchase price of that plot to be refunded to her. With the support of her\r\nhusband, Mrs. Welbeck persisted in her demand for the refund of the purchase price\r\nin respect of plot number 1750/1957 to her. Eventually Betty Lokko refunded an\r\namount of 0,000,000 by cheque dated 30th December, 1993 to her. It is on record\r\nthat it was Mrs. Welbeck who encashed the cheque.\r\n \r\nO 331A	TII0flf VNVH5 dO 3OIMJS 113OflP\r\nI	.\r\nLater Mrs. Betty Lokko through her agent, Alfred Quartey, the original second defendant, now deceased, sold property number 1750/1957 to the respondent company, Sensations Limited. The plaintiff was not pleased about the sale by Betty Lokko of that plot to the respondent company. She therefore, by her amended writ of summons brought a claim against the defendants jointly and severally for the following reliefs:\r\na)	Specific performance of an agreement made on or about the 10th day of October 1991 whereby the I''t and 2nd defendants agreed to sell to the plaintiff a plot of land for 6,500,000 which agreement was part performed by the plaintiff paying the 1 and second defendants c6,500,000 full purchase price of the plot of land situate at X''tianborg, Osu - Accra against a receipt issued by	and 2nd defendants.\r\nb)	An order directed at the Chief Registrar, Land Title Registry, to rectify the Land Register of the said plot of land by deleting the name of the 3rd defendant and cancelling its Land Certificate and entering the name of plaintiff in the Land Register as the true and lawful owner of the said plot of land.\r\nc)	A declaration that the sale or purported sale to the 4th defendant by the 1st defendant was wrongful and or null and void; an order setting the purported sale aside or cancelling the same.\r\nd)	A declaration that the plaintiff has equitable lien on the said property and became entitled to be given possession thereof.\r\n \r\n" nonrVINIVRD JO 331AH3S ivoionr\r\ne)	Perpetual injunction restraining 3rd defendants their agents and assigns or workers from entering the land to carry out any building operations thereon or for any purpose whatsoever.\r\nf)	Further or other orders as to this honourable court may deem fit.\r\nThe defendants in their pleading denied the plaintiff''s claim and contended that even though the receipt for the payment of the two plots was issued in the name of the plaintiff it was Mrs. Welbeck who bought plot number 1750/1957. She later resiled from the contract of sale of the land in dispute and requested for a refund of the purchase price to her. The purchase price for that plot was therefore paid to her. The result was that at the time of sale of the land in dispute to the respondent company Betty Lokko was its owner and not the plaintiff.\r\nThe trial High Court dismissed the appellant''s claim in its entirety and granted the respondent''s counterclaim. She appealed to the Court of Appeal and filed as many as 17 Grounds of Appeal. These are substantially reflected in the five Grounds of Appeal before this court following the dismissal of her appeal by the Court of Appeal.\r\nTHE FINDINGS OF THE TRIAL COURT\r\nThe main issue of this litigation upon which all other issues could be founded is the ownership of plot No. 1750/1957 at the time of sale of that property to the respondent company. To us, therefore, the determination of that issue ought to settle the other issues which are premised on the ownership or otherwise of Betty Lokko of plot No. 1750/1957 at the time she sold the land in dispute to the\r\n \r\n1VIIfl VNVI1O dO 331AU3S 1v10aflr\r\nrespondent company. It would mean that if the court comes to the conclusion that at the time of sale of the land in dispute Betty Lokko was the owner of that property the appellant''s claim would have no legs to stand on and the respondent company''s counterclaim would succeed.\r\nThe trial court made the following findings which determined the ownership of the land in dispute at the time of sale by Betty Lokko to the respondent: (a) Following the payment for the two plots nos. 1750/1957 and 1751/1957 as shown in exhibit B, the receipt which was issued by Betty Lokko, the appellant made a gift of plot No. 1750/1957 to her sister Mrs. Majorie Welbeck who thereby became the owner of that plot. (b) Later Mrs. Welbeck became disinterested in plot No. 1750/1957 because of litigation in respect of plot No. 1751/1957 which was in the name of the appellant. (c)The claim by the appellant that the refund by Betty Lokko to Mrs. Welbeck was in respect of plot No. 1751/1957 cannot be true. (d) At the time of commencement of the action the appellant had no interest in the land in dispute for which she could sue for specific performance. (e) Since there was serious discrepancy between the description of the land in exhibit B, that is, the receipt by Betty Lokko covering payment for the two plots, and the description of the land in the Statement of Claim, the claim for specific performance could not be sustained. It is obvious that since the plaintiff had no interest in the land at the time that it was purchased her claim for specific performance would have no basis.\r\n \r\nAPPEAL BEFORE THE COURT OF APPEAL\r\n \r\nJ-39 ivlianr VNVHO o 33VA3S iviocr''\r\nAlso before the Court of Appeal the crucial issue to be looked into was the ownership of the plot No. 1750/1957 before the sale that culminated in this appeal. That is covered by Grounds 1 and 2 of the appellant''s grounds of appeal before that court. They read as follows:\r\n1)	The learned trial judge erred, when after holding that it was the plaintiff who was the purchaser of the land in dispute as evidenced by exhibit B, the judge went further and held that "the plaintiffs land was covered by conveyance with registration number 175111957 and that of her sister by document number 175011957"\r\n2)	The learned trial judge erred in law when he treated exhibits 1 and 2, the unexecuted documents which plaintiff instructed plaintiff''s husband to prepare, as if the said exhibits were executed conveyances capable of conveying any interest in land and therefore the trial judge''s holding that "Exhibits 1 & 2 also show that the plaintiff''s intentions were carried out into effect by PW1 preparing one of the documents, Exhibit 2 in the name of Mrs. Welbeck which document [was] duly executed by Mrs. Lokko and I agree with learned counsel for the 1" defendant that the gift was completed when the property was delivered to the donee" was wrong as exhibits 1 and 2 were never executed and no piece or part of the land covered by exhibit B was ever delivered to the plaintiff or plaintiff''s sister.\r\nThe Court of Appeal gave a clear response to the submissions of appellant''s counsel in the appellant''s Statement of Case. Reading the judgment of the Court of Appeal,\r\n \r\nNvHe JO 33IMLS W1OG1\r\nwhich supported the findings of the trial court, Irene Danquah, J.A. had this to say at pages 410 - 412 of the record of appeal:\r\n"I am in no doubt from the evidence on record that prior to the institution of the action, the plaintiff knew that her interest was in plot No. 1751/1957 and not plot No. 1750/1957. She was at all material times in the course of the transaction represented by a lawyer who happened to be her husband. On her own instruction her husband prepared the two conveyances for the signature of Betty Lokko. It is also not in doubt from the evidence that prior to the institution of the action Mrs. Welbeck had resiled from the agreement, had insisted for a refund of the purchase price for plot No. 1750/1957 and Betty Lokko had refunded by issuing a Cooperative Bank cheque for 46 million to her. What is worse the plaintiff admitted that the refunded sum of 6 million was subsequently given to her by Mrs. Welbeck and she accepted it.\r\nTo me that brought to an end whatever interest Mrs. Welbeck had in respect of plot No. 1750/1957 including the interest of the plaintiff if any. On the issue of whether Exhibits 1 and 2 were executed or not this is what the appellant''s husband testified to:\r\n''Q. You admitted in the course of your evidence in Exhibit N that after you prepared the two conveyances you sent them to Betty Lokko to sign?\r\nA. Yes, my Lord. I did so because at that point we thought we had two plots but Mr. Quartey admitted [in] criminal trial that even at the time of sale the plot covered by 1751/1957 had already been registered in the name of Dr. Hadzi.\r\nQ. When Alfred sent the documents to his mother she signed them?\r\n \r\n''11afltVNVHO JO 33tAS 1O]\r\nA. I said she signed part of them not all so I returned them to her to have them signed.\r\nQ. You admit she signed the two conveyances?\r\nA. Yes my Lord, I was under the apprehension that that they had two plots.\r\nQ, These two conveyances, which Mrs. Lokko signed were these prepared in the names of your wife and Mrs. Welbeck?\r\nA. Yes, my Lord.\r\nQ. And you said the respective site plans were not signed?\r\nA. Yes, my Lord.\r\nQ. So you returned the signed conveyances with the unsigned site plans to Alfred Quartey?\r\nA. Yes my Lord.\r\nQ. So that he would have his mother sign them?\r\nA. Yes, my Lord.''\r\nApart from the above evidence, I am of the view that Betty Lokko cannot be blamed for the default of the Appellant and her sister in not completing their portion in their respective conveyances. After all, what I understand an execution of a conveyance as required by the Conveyancing Decree (Act) 1973, (NRCD 175) S. 2 is the presence of the signature of the person against whom the contract is to be proven. In the instant case that person is Betty Lokko and as I observed earlier she executed her part as vendor in both\r\n \r\nexhibits 1 and 2. I am therefore not persuaded by arguments of counsel for the appellant on the first two grounds of appeal and refuse them."\r\nAPPEAL BEFORE THE SUPREME COURT\r\nBefore this court the appellant''s Grounds of Appeal are as follows:\r\n(1)The learned justices of the Court of Appeal erred when they held that the conveyance of the land in dispute by Betty Lokko to the respondent, Sensations Limited was valid.\r\n(2)The learned justices of the Court of Appeal erred when they held that the refund of the purchase price of the one of the two (2) plots of land bought by the appellant from Betty Lokko was made before the purported conveyance of the disputed property to the respondent by Betty Lokko.\r\n(3) The learned justices of the Court of Appeal erred in affirming the grant of the counterclaim of the respondent by the High Court.\r\n(4)The learned justices of the Court of Appeal erred in affirming the damages awarded against the appellant when there was no basis for the award of such damages.\r\n(5) The judgment is against the weight of evidence on record.\r\nCounsel for the appellant dealt with Grounds 1, 2 and 3 together. We intend to add Ground 5 to them and deal with the four at the same time. At page 6 of the Statement of the appellant''s case, counsel for the appellant made the following submissions:\r\n \r\ntnr VNVHO AO 33IM9S 1V13101\r\n"My Lords, it is very humbly and respectively submitted that their Lordships in the Court of Appeal, were clearly in error. The purported transaction which took place between the original 1" defendant, Betty Lokko and Mr. Lalu Dulani in July, 1993 which purportedly resulted in Mr. Lalu Dulani asking that the interest in the Land be transferred to the 3rd respondent Sensations Limited, took place at the time that the contract between the appellant and Betty Lokko in respect of the land was in force and no refund has been made as regards the encumbered plot! Therefore as at the date when Betty Lokko purported to sell the disputed plot to Mr. Lalu Dulani, she had no title in the land to convey to him. Indeed it was not surprising that no conveyance was given to Mr. Dulani. Thus the rule in Hadley vrs. London Bank of Scot/and Limited [1865] 2 De K7 SM 63 at 70 which was cited with approval in Amuzu v. Okilka [1997-98] 1 GLR 89 page 115 applied directly. Betty Lokko at the date of the purported transaction with Lalu Dulani was a bare trustee of the appellant and could not convey any title in the property to any other person. Therefore Mr. Lalu Dulani could not have legally conveyed No. 1750/1957 from Betty Lokko in July, 1993.\r\nIt is submitted that on the facts of this case, the decision of this court in the case of Amuzu v. Ok//ka [1998-99] SCGLR 141 is directly applicable. As at the date in July 1993, when Mr. Lalu Dulani purported to buy the plot of land from Betty Lokko, Betty Lokko had no interest in the property which she could sell to Mr. Lalu Dulani."\r\nAs it can be seen the substance of the appellant''s contention respecting Grounds 1,2 and 3 of the grounds of appeal is that Betty Lokko sold the land in dispute to the respondent at the time that there was in existence a valid contract of sale of that same land between her and the respondent company. That contention completely ignores the conclusions of the trial High Court which are affirmed by the unanimous verdict of the Court of Appeal that at the time of the sale Betty Lokko was the owner of the land in dispute with the contractual relationship between her and Mrs.\r\n10\r\n \r\ni''iionr YNVH o 101MS ivoanr\r\nWelbeck having been brought to an end upon refund of the purchase money to her by Betty Lokko.\r\nIn the appellant''s Statement of Case the judgment of the Court of Appeal, which supports the findings of the trial High Court, which formed the basis of its judgment, is under attack. What the contention of the appellant in this appeal amounts to is that the Court of Appeal was in error when it supported the findings of the High Court. First of all the Court of Appeal was obligated to consider whether the findings by the trial court, which is being assailed by the appellant in her Statement of Case, is supported by the evidence on record. It is only when the findings of the trial court are not supported by the evidence that the appellate court could interfere and substitute its own findings for that of the trial court. It is trite law that the trial court has the exclusive duty to make primary findings of fact which would constitute the means by which the final outcome of the case would be arrived at. For the trial court''s judgment or verdict to be irrefutable: 1) It must be supported by evidence on record. 2) It must be based on credibility of witnesses. 3) The trial court must have had the opportunity and advantage of seeing and observing the demeanour of witnesses. 4. It must be satisfied of the truthfulness of the testimonies of witnesses on any particular matter.\r\nIn the case of Cross v. Hillman Ltd. [1969] 3 WLR 787 at 798, C.A. Lord Widgery cautioned that an appellate court a... which sees only the transcript and does not see the witnesses, must hesitate for a very long time before reaching a conclusion different from the trial judge as to the credibility and honesty of a witness'' The appellate court can only interfere with the findings of the trial court if they are\r\n \r\nnr VNVH JO 1IA1 1V1OCi(\r\nwrong because (a) the court has taken into account matters which were irrelevant in law, (b) the court excluded matters which were critically necessary for consideration, (c) the court has come to a conclusion which no court properly instructing itself would have reached and (d) the court''s findings were not proper inferences drawn from the facts. See the case of Fofie v. Zanyo [1992] 2 GLR 475. However, just as the trial court is competent to make inferences from its specific findings of fact and arrive at its conclusion, the appellate court is equally entitled to draw inferences from findings of fact by the trial court and to come to its own conclusions. See also Kofi (Oppong) v. Fofie [1964] G.L.R. 174, S.C.; Praka v. Ketewa [1964] G.L.R. 423, S.C.; Azagba v. Negov [1964] G.L.R. 450, S.C.; Asibey III v. Ayisi [1973] 1 G.L.R. 102. In Adorkor v. Gatsi [1966] G.L.R. 31 at 34, S.C., the Supreme Court summed up appellate powers as follows:\r\n"The law governing this is that while findings of specific facts are within the competency of the trial court alone, a finding of fact which is an inference to be drawn from specific facts found is within the competency of an appeal court no less than the trial court; in other words, an appeal court is in as good a position as the trial court to draw inferences from specific facts which the trial court may find."\r\nIn effect in the instant appeal the Court of Appeal came to the conclusion that the findings of the trial High Court stood unchallenged by the appellant. For success in the three grounds of appeal the appellant would have to demonstrate what went wrong when it in effect supported and affirmed the findings of the trial court as listed above. It is not enough for the appellant in her Statement of Case to repeat the submissions that were made before the Court of Appeal. Her counsel is obliged to demonstrate how the Court of Appeal went wrong in affirming the findings and\r\n12\r\n \r\ndecision of the trial High Court. The appellant''s Statement of Case must come out with a reason why the Court should have substituted another finding of fact for the crucial finding that Betty Lokko was the owner of the disputed property at the time that she sold it to the respondent company, a primary finding of fact which the Court of Appeal was in agreement with.\r\nFrom the evidence on record the refund of the amount of 6,000,000 was only in respect of one plot. The appellant''s stand is that that amount, that was admittedly received by her sister, Mrs. Majorie Welbeck, was given to her. If that were the case it would be expected that the plaintiff would be aware that that amount represented the purchase money for the plot which had been in the name of her sister, Mrs. Welbeck. It is therefore surprising that the appellant still insists that the payment of that amount, that she was supposed to have eventually received, related to the land in respect of which there was litigation. I have taken some time to look at the criminal proceedings before the Circuit Court, exhibit N which involved both the appellant as complainant and Betty Lokko who with her son, Alfred K. Quartey faced a criminal charge of Fraud. In exhibit N the appellant testified as complainant in a criminal trial before the Circuit Court On 11th August, 1995. Her testimony boarded on the identity of the land in dispute. This is at page 310 of the record of appeal. It is as follows:\r\n"In November, 1993, I received a letter from accused''s lawyer to collect a refund on the other land in Dr. Ahadzie''s name. I have the letter here - wish to tender it - no objection - marked as exh. D, dated 1.11.93. I replied through my lawyer - and wish to tender this letter - no objection Exh. E dated 6/12/93. After this letter I sent my sister Mrs. Majorie Welbeck, to\r\n \r\n:fHO iO 3OIA83S 1''.\r\ncollect 6 million from the second accused representing the one plot registered in Dr. Ahadzie''s name. A cheque dated 3.12.93 was issued for the refund of 6 million, remainder of c6.5 million is still with the 2nd accused."\r\nIn the appellant''s testimony in exhibit N quoted above she links the refund of the purchase money, which Mrs. Welbeck received when she resiled from the land sale agreement with Betty Lokko, in respect of plot No. 1750/1957, to the offer of refund of the purchase price of plot No. 1751/1957 contained in Betty Lokko''s solicitor''s letter to her. Obviously that testimony was in line with the appellant''s insistence against all odds that the ownership of plot No. 1750/1957 never reverted to Betty Lokko after she made a refund to Mrs. Welbeck. The appellant''s testimony was that Betty Lokko''s solicitor''s letter offering refund of the purchase price related to the land in respect of which there was litigation, that is, the land with registration No. 1751/1957. According to her she sent her sister to collect that money. However, by the appellant''s solicitor''s letter in response she did not accept Betty Lokko''s offer for refund. In fact the offer of refund of the purchase money was never accepted by the plaintiff and was eventually paid into court. At the trial court the relevant letters which have been referred to in exhibit N are exhibits C, D and E.\r\nOn 1St November, 1993, Betty Lokko''s solicitor wrote to the plaintiff the following letter, exhibit C:\r\n"OFFER TO REFUND PURCHASE MONEY\r\nWe act for Mr. Alfred Quartey who arranged for you to purchase the piece of land situate at North-East Christiansborg, Accra.\r\n2. It is our information that since the said purchase, through no fault of our client, there had been several adverse claims. For example the Land Title\r\n \r\nd3 1V1IG(1( VNVH dO 33YS 1V13tc\r\nRegistry had mistakenly issued land certificate in respect of the particular land to one Alhaji who had [purportedly] bought it from Osu Alata Stool. Then on W. G. Darko and also E. N. Nortey - each of [whom] claims our client has been fervently dealing with.\r\n(3)	Naturally you feel unhappy and your husband takes the view that you have been defrauded by our client and he casts insinuation and insults our client at will.\r\n(4)	In the circumstances, we have advised our client to settle the purchase money since you are not in a position to abide the outcome of those false claims; and our client has reluctantly agreed provided you will indicate your acceptance within 2 weeks of date.\r\n(5)	It is our instruction to inform you and we hereby inform you that in the event of your failure to take up the opportunity within the said 2 weeks, and have your money refunded to you in due time, our client shall be compelled to return the necessary funds and it is a firm understanding that this opportunity shall never be repeated by our client''s benefactor.\r\n(6)	It is our further instruction to request and we hereby request that you take up the opportunity of refund now or you await and abide the outcome of the multiple claims as aforesaid."\r\nBy a letter dated 18th February 1994, exhibit D, the plaintiff''s solicitor rejected the offer for refund of the purchase price of the land which was obviously the subject matter of litigation referred to in exhibit C, that is, plot No. 1751/1957. The response from Betty Lokko''s solicitor was another letter (exhibit E) pointing out that till Betty Lokko clears a pending legal action, she would not be in the position to put the plaintiff in unencumbered possession. That makes it quite clear and unambiguous that the refund by exhibit C quoted above could only be in relation to the land about which there was litigation. Also on the whole, in the course of the trial the appellant was not candid with the court so far as the determination of the issue of the identity\r\n \r\n-a	NvHe JO 0IA3S 1V.\r\nof the land in respect of which the refund of the purchase price was made by Betty\r\nLokko to Mrs. Welbeck was concerned. This is what we have at pages 156 and 157\r\nof the record of appeal when she was cross-examined in the course of the trial:\r\n"Q. I put it to you that it was your late sister who asked for a refund of the purchase price of the area of the plot covered by the deed number\r\n1750/1957?\r\nA. I disagree.\r\nQ. Your sister asked for a refund because she said she did not want to be involved in my litigation?\r\nA. I disagree. The letters inviting us to the discussions at the Land Title Registry did not mention my sister as having any interest in the land. Q. I suggest to you that Betty Lokko was entitled to sell the portion of the land covered by deed no. 1750/1957 to the 4th defendant after the refund had been made to your sister?\r\nA. I disagree because Alfred Quartey had acted on my behalf. He knew that I had bought the land. He also acted for Sensations Ltd.\r\nQ. I suggest to you that at no time did Alfred Quartey act for Sensations Ltd? A. It is true. It was at the Land Title Registry that I got to know he was trying to register the land for somebody and I confronted him at the Land Registry. Q. Alfred Quartey is dead?\r\nA. Yes.\r\nQ. When your lawyer prepared the two conveyances he also prepared respective application forms for the registration of you and your sister''s titles at the Land Title Registry?\r\nA. I wouldn''t know.\r\nQ, I put it to you that your lawyer and husband applied in respect of plot covered by deed No. 1950/1957 in the name of your sister Majoarie Welbeck? A. I do not know.\r\nQ. I put it to you that your husband also applied in your name for the registration of the plot covered by the deed 1751/1957?\r\nA. I do not know.\r\n \r\nSince counsel for the appellant has not been able to demonstrate any error in the reasons by the Court of Appeal in supporting the decision of the trial court, the submissions that the judgment was against the weight of evidence cannot be sustained (See the cases of Kyiafi V. Wono. [1967] GLR 463, Benmax v. Austin Motor Co. Ltd [1955] 1 WLR 177, HL, Morris v. West Hartlejpool Steam Navigation Co. Lt. [1956] 1WLR 177, HL and Tonazzi Brunetti (1953) 14 WACA 403\r\nAlso in respect of the first three grounds of appeal the appellant''s counsel argued that on the evidence Lalu Dulani, being an Indian is not permitted under the 1992 Constitution to own a freehold interest in a landed property. That means the purported conveyance of the land in dispute was void. He relies on Article 266 (1) and (2) of the Constitution in support of his contention. Article 266 (1) and (2) read:\r\n266 (1) No interest in, or right over, any land in Ghana shall be created which vests in a person who is not a citizen of Ghana a freehold in any land in Ghana.\r\n266 (2) Any agreement deed or conveyance of whatever nature which seeks, contrary to clause (1) of this article, to confer for a person who is not a citizen of Ghana any freehold interest in or right over, any land is void."\r\nIn response counsel for the respondent submitted that the appellant''s contention based on Article 266 (1) and (2) of the 1992 Constitution should be dismissed in limine, firstly, because it was being raised for the first time before court. He referred to Order 25 rule 2 of the old High Court (Civil Procedure) Rules, 1954 (LN 140 A). A short answer to the appellant''s contention is that Lalu Dulani who happens to be an officer of the respondent company is not a party in this appeal and has no interest in\r\n \r\nthe land in dispute. Therefore the provisions of the 1992 Constitution quoted above are not relevant to this appeal.\r\nDAMAGES\r\nThe appellant''s challenge is that the Court of Appeal erred in affirming the damages awarded by the High Court since there was no basis for it. Since it is established that the respondent company was the owner of the property in dispute, after having paid for it and completed the registration process at the Land Title Registry, the conduct of the appellant in going to the land and ordering demolition of structures on it constituted trespass. That was indeed a proper basis for the award of damages by the High Court. The fourth Ground of Appeal is also dismissed. For the reasons given in this judgment we dismiss the appeal in its entirety.\r\n[SGD]	W. A. ATUGUBA\r\n[JUSTICE OF THE SUPREME COURT]\r\n[SGD]	DR S. K. DATE-BAH\r\n[JUSTICE OF THE SUPREME COURT]\r\n[SGD]	R. C. OWUSU(MS.) [JUSTICE OF THE SUPREME COURT]\r\n \r\n4	NVH\r\n[SGD]	B. T. ARYEETEY\r\n[JUSTICE OF THE SUPREME COURT]\r\n[SGD]		V. AKOTO—BAMFO [MRS.] [JUSTICE OF THE SUPREME COURT]\r\nCOUNSEL\r\nALBERT ADAARE FOR APPELLANT\r\nKIZITO BEYUO FOR THE 3RD RESPONDENT WITH NAA ODOFOLEY NORTEY\r\nUt6I16 PRUN I•fl\r\nMr COURT OF GMAA\r\n', '../links/cases/Document (3).pdf', 'Yes', 'DR. DATE-BAH,J.S.C., R. OWUSU,J.S.C., ARYEETEY,J.S.C., AKOTO-BAMFO,J.S.C', '2011', 'supreme', '<i><b><font face="Times New Roman" size="3">Land Law and Conveyancing:Sale of Land - Specific performance - setting aside sale - equitable lien - Refund of purchase money effect of - Execution of Conveyance.S.2 Conveyancing Act 1973 NRCD 175. Findings of Fact by Trial Court - setting aside findings of fact by Court of Appeal - Circumstances/Factors to consider.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'CA J4/20/2010', '', '', 'supreme', '2011-02-10', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(537, 'ELLIS TAMAKLOE  --- PLAINTIFFS\r\nVRS\r\nTHE REPUBLIC  --- DEFENDANT', 'IN THE SUPREME COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA - GHANA\r\nCORAM: ATUGUBA, J.S.C.\r\nANSAH, J.S.C.\r\nADINYIRA (MS), J.S.C.\r\nDOTSE, J.S.C.\r\nYEBOAH, J.S.C.	CM. NO: J7A/1/2010 B. BONNIE, J.S.C.\r\nARYEETEY, J.S.C.	20TH JANUARY, 2011\r\nELLIS TAMAKLOE	-	PLAINTIFFS VRS\r\nTHE REPUBLIC	DEFENDANT\r\nReview Jurisdiction of Supreme Court— a unitary jurisdiction with no need for special dispensation in criminal cases— invoked in special and exceptional circumstances arising from fundamental error which must lead to miscarriage of justice- no review where no miscarriage of justice even if exceptional circumstances found— Supreme Court Rules 1996 (Cl 16) Rule 54 (a) and (b).\r\nConstitutional Law-- Reversed onus of proof of lawful authority for possession of narcotic drug on accused not unconstitutional - not a violation of the right to presumption of innocence until proven guilty or right to fair trial— act 19 of 1992 Constitution; Section 2 of Narcotic Drug (Control Enforcement and Sanctions) Law 1990, PNDC Law 236.\r\nRULING ATUGUBA, J.S.C:\r\nThe applicant was convicted by the High Court (Fast Track Division) Accra of two charges of attempted exportation and possession of a narcotic drug, namely Cannabis Sativa weighing 695 grammes and Sentenced to a minimum mandatory Sentence of 10 year IHL on each count to run concurrently. His appeals to the Court of Appeal and to this court were dismissed. The applicant now applies for review of this court''s ordinary decision on the grounds that;\r\n \r\n''WHO JO 33AelS ivioicinr\r\n"(a) The Supreme Court occasioned a grave miscarriage of justice in its interpretation and application of the nature and quality of circumstantial evidence used in convicting an accused person.\r\n(b) The Supreme Court inadVertently fell into grave error in its consideration of the requisite mental blameworthiness for convictions under Section 2 of the Narcotic Drug (Control Enforcement and Sanctions) Law, 1990 (PNDCL 236), resulting in a grave miscarriage of justice."\r\nIn his supplementary statement of case he identifies the issues raised for review as follows:\r\n"Summary of the Argument\r\nYour Lordships, the gist of our argument is that on all four issues raised above, this Court committed fundamental errors of law that have resulted in a miscarriage of justice in the sense that its verdict, as a whole, undermined the constitutionally guaranteed liberty interest of the Applicant. On the issue of possession, this Court erred fundamentally when it held that the Applicant was in legal possession of a narcotic drug because he engaged in acts that were inconsistent with innocence. We submit that disbelieving the Applicant is not an automatic call to guilt- the defence may be incredible but that is not synonymous with proof beyond reasonable doubt, a burden squarely placed on the prosecution with respect to the offence of possession of a narcotic drug.\r\nWith respect to the second issue, Your Lordships, we argue that this Court fundamentally erred in its judgment when it glossed over the critical issue of the reversed burden of proof placed on the Applicant under section 2 of PNDC Law 236, to wit, proof of the /awfu/ness of the possession of a narcotic drug. The gravamen of our argument on this issue is that this Court should have held the aforesaid reverse onus clause unconstitutional because it is an unreasonable, arbitrary and disproportionate limitation on the right of the Applicant to be presumed innocent until proven guilty and his right to a fair trial under article 19 of the Constitution.\r\n \r\nI:	1vlI13nrNvH dooIAs1olcnr\r\nYour Lordships, we argue with respect to the third issue that this Court has power, ex proprio motu, to have held that a critical element of the offence created under section 2 of PNDC Law 236, to wit, proof of lawful possession of a narcotic drug, was not established at the trial and therefore the conviction and sentence of the Applicant were unlawful. Having glossed over that issue of law, this Court committed a fundamental error that has resulted in a miscarriage of justice.\r\nFinally, we argue that this Court erred fundamentally in law when it endorsed the unsubstantiated inferences drawn by the lower courts from facts which the prosecution patently failed to establish at the trial and in fact drew inferences itself from such facts and proceeded to make conclusions that were not supported by the Record of Appeal. In all this, this Court misapplied the law on the use of circumstantial evidence in criminal trials."\r\nIn view of the principles governing our Review jurisdiction the natural question is whether the application is within them. The relevant principles have been stated in several cases and have been forcefully summed up by Dr. Date-Bah JSC in Chapel f-/i/I Ltd v the Attorney-General & Anor,3711012010 (5/5/2010) as follows:\r\n"I do not consider that this case deserves any lengthy treatment. I think that it represents a classic case of a losing party seeking to re-argue its appeal under the garb of a review application. It is important that this Court should set its face against such endeavour in order to protect the integrity of the review process. This court has reiterated times without number that the review jurisdiction of this court is not an appellate jurisdiction, but a special one. Accordingly, an issue of law that has been canvassed before the bench of five and on which the court has made a determination cannot be revisited in a review app//cat/on, simply because the losing party does not agree with the determination. This unfortunately is in substance what the current application before this court is.\r\nx	x	X\r\nI would like to reiterate the view that I expressed in Gihoc Refrigeration (No. 1) v Hanna Assi(No. 1)[2007 - 2008] SC GLR 1 at pp. 12-13 that:\r\n \r\n"Even if the unanimous judgment of the Supreme Court on the appeal in this case were wrong, It would not necessarily mean that the Supreme Court would be entitled to correct that error. This is an inherent incident of the finality of the judgments of the final court of appeal of the land. The brutal truth is that an error by the final court of the land cannot ordinarily be remedied by itself, subject to the exception discussed below. In order words, there is no right of appeal against a judgment of the Supreme Court, even if it is erroneous. As pithily explained by WuakuJSCinAfrainie VQuarcoo[1992]2 GLR 561 at pp. 591-592:\r\n"There is only one Supreme Court. A review court is not all	court to sit in judgment over the Supreme Court."\r\nHowever, in exceptional circumstances and in relation to an exceptional category of its errors, the Supreme Court will give relief through its review jurisdiction. The grounds on which this Court will grant an application for review have been clearly laid out in the case law. Notable in the long line of relevant cases are Mechanical Lloyd Assembly Plant v Nartey [1987-88]2 GLR 598; Bisi and others v Kwayie [1987-88]2 GLR 295; Nasal! v Addy [1987-88]2 GLR 286; Abablo v Mensah (N6.2) [1989-90] 1 G LR 573; Quartey v Central Services Co. Ltd. [1996¬97] SC GLR 398; Pianim (No. 3) v Ekwam [1996-97] SC GLR 431; Koglex (Gh) Ltd. v Attieh [2001-2002] SC GLR 947; and Attorney General (No. 2) v Tsatsu Tsikata (No. 2) [2001-2002] SC GLR 620. The principles established by these cases and others are that the review jurisdiction of the Supreme Court is a special jurisdiction and is not intended to provide an opportunity for a further appeal. It is a jurisdiction which is to be exercised where the applicant succeeds in persuading the Court that there has been some fundamental or basic error which the Court inadvertently committed in the course of delivering its judgment and which error has resulted in a miscarriage of justice. This ground of the review jurisdiction is currently exercised by the Court pursuant to rule 54(a) of the Supreme Court Rules 1996 (CI 16), which refers to "exceptional circumstances which have resulted in miscarriage of justice." This is a high hurdle to surmount."\r\nThe public interest in avoiding the protraction of litigation requires that this Court should continue to uphold these principles."\r\n \r\n1cnl3lOflf NV}1 O 3OtA3s ,v13cnr\r\nHowever it has to be remembered that this court has consistently held that the categories of exceptional circumstances cannot be exhaustively stated. Thus in In Re Effiduase Stool Affairs (No. 3)'' Republic v Numapau, President of the National House of Chiefs and Others; Exparte Ameyaw II(No. 3) [2000]SC GLR 59; this court stated as in holding (1) of the headnote as follows:\r\n"the application herein was made under the first ground specified in rule 54(a) of the Supreme Court Rules, 1996 (C.I 16), namely, the existence of "exceptional circumstances which have resulted in a miscarriage of justice." Therefore, to succeed, the applicant must demonstrate to us the existence of exceptional factors which show that the decision of the majority has manifestly resulted in a miscarriage of justice. What constitutes exceptional circumstances cannot be comprehensively defined. It was incumbent on the applicant to show that his substantial rights in the matter that came before this court have been prejudiced by some fundamental or basic error made by the majority. Therefore, whatever factors the applicant relies on must be such that the exercise of our power of review becomes extremely necessary to avert irreparable harm to him. A mere re-arguing of his original application would not suffice."\r\nSince before an application for review can be brought the matter would have been argued invariably, it would be inconceivable that a Review application is entirely free from\r\nre- argument. The formulation in the In Re Effiduase case, supra, lends support to this line of reasoning. Obviously if the pursuant judgment does not contain a palpably serious error a review application in that situation can aptly be described as "A mere re¬arguing of his original application." However if that is not the situation the argument on Review cannot be described as "a mere re-arguing...."\r\nPerverse Decision\r\nIt would emasculate the Review jurisdiction if too much emphasis is put on the question whether the matter has previously been argued rather than on the character of the judgment emanating from the matter argued. If despite argument on the matter a court arrives at a decision that is so palpably unsustainable as to be describable as perverse, is that not an exceptional circumstance? One has only to consider the meaning of the word "perverse" in order to see its implications.\r\n \r\n\r\n\r\n\r\nThe Oxford Advanced Learners Dictionary (Fifth edition) defines perverse, inter af ia, as follows;\r\n"perverse adj. ( of people or their actions, intentions, etc) showing a deliberate and STUBBORN (1) desire to behave in a way that is wrong unreasonable or unacceptable ........a perverse decision /judgment (le one that ignores the facts or evidence)."\r\nEven judges have shown great revulsion to judgments that are so palpably wrong and unsustainable that they have described them as perverse. Thus in Adji & Co v Kuming (1982-83)2 GLR 1382 C.A. at 1394 Francois J.A said "The judgment appealed against is clearly perverse. Even the counsel for the respondent, hereafter called the defendant, could not help labelling the judgment as an "unhappy one." This charitable description stretches euphemism to extreme limits."\r\nAgain in Brutuw v Afeniba (1984-86)1 GLR 25 C.A at 30, Francois J.A (Edusei and Mensah Boison JJ. A concurring), said: "The judge decided firmly on what appeared overwhelming evidence in the defendants'' favour. As already pointed out, that judgment received the unalloyed support of the Court of Appeal. Indeed on the basis of the evidence on record it would have been bizarre and perverse had the judgment been otherwise"\r\nSo also in Gyamerah v Brefo (1984-86) 1 GLR 110 C.A. at 115, Abban l.A said "As matters stood, the defendant''s right to the house was based on documents which were proved to be nothing but forgery and we do not see how any court of law or equity could allow the defendant to hold on to the disputed house..."\r\nSee also Kambey v The Republic (1989-90) 1 GLR 213 C. A. at 220 and Akyea-Djamson v Duagbor (1989-90) 1 GLR 223 S.C. at 259.\r\nInadequate Consideration of a Case\r\nA decision may be the product of very serious inadequate consideration of the case presented and can be a ground for review. Let me hasten to clarify this proposition by saying that such a situation involves the overlooking of very material and practically decisive matters. As there are precedents on this aspect I better go on to them. Indeed r.54(a) of C.16 has no pretence to originality. It is a lift over from r.33 of the then Supreme Court Rules, 1962 L.I. 218 which provided thus:\r\n \r\na WNW VNYHO dO 33IM3S 1voGnr\r\n"The Court shall not review any judgment once given and delivered by it save where it is satisfied that the circumstances of the case are exceptionaland that in the interest ofjustice there should be a review."\r\nThis provision was first applied in Marfo v Adusel, Supreme Court, 24 February 1964 unreported, in which an application for review was granted by the court because as explained by Azu Crabbe CJ in Benneh v The Republic (1974)2 GLR 47 C.A (Full Bench) at 59:\r\n"... it was satisfied that it was influenced by some typographical errors on the record, and consequently it omitted to consider certain issues in the appeal. In its ruling the court said:\r\n"[T]his is a proper case for a review in compliance with the specific provision as contained in rule 33 of the Rules of Supreme Court, 1962. The judgment of this court [reported [1963]1 G.L.R. 225] is in our view per incur/am occasioned by incorrect court notes from the court below quite apart from incoherent passages in the plaintiff''s evidence in which there are also obvious omissions.\r\nAccordingly, we are of the opinion that there are spec/al circumstances and in the interest of justice the said judgment should be vacated and it is hereby vacated and the appeal will be relisted and heard de novo by this court as constituted."\r\nAgain in Swaniker v Adotei Twi II (1966) GLR 151 S.0 at 162 011ennu JSC held as follows:\r\n"As earlier pointed out, none of the reasons which the trial court gave for its judgment received any attention in the judgment which is now sought to be reviewed and that makes it apparent that it escaped the court to deal with the very task it set itself, i.e. to demonstrate the fallacy in the reasoning of the trial court. There is therefore an error evident in the judgment. Moreover, the arguments advanced and the points discussed in the judgment are so clear that the contention of counsel for the opposer that the matters omitted to be considered must be deemed to have been impiledly included in those points and arguments is, in my view, untenable, and must be rejected. In my opinion the circumstances of this case are obviously exceptional, and in the interest of justice warrant a revfew."\r\n \r\nVNVHO JO 1AS ivinr\r\nAt 163 Apaloo JSC (concurring) said:\r\n"I agree with my brother in thinking that it would not be wise to lay down what are exceptional circumstances for the purpose of this rule and that each case would be left to be judged on its own merits. But where litigants submit their dispute to a judicial tribunal which determines it with full reasons, I should myself regard it as exceptional if any appellate tribunal disturbed that conclusion without itself demonstrating the fallacy of the trial court''s reasoning.\r\nI think that is what happened in this case. The judgment of this court proceeded on the footing that the reasoning of the trial court on the various controverted matters on which it pronounced a decision was fallacious. That being so, it behoves this court to show this by its own independent reasoning. That clearly has not been done and this omission is apparent on the face of the judgment. In these circumstances, ordinary fairness requires that this court should make good its omission and have a fresh look at its judgment. Accordingly, like my brother 011ennu, I also think that the judgment of this court should be reviewed and I concur that orders be made in the manner he has proposed."\r\nObviously in such cases the record of appeal and not just the bare judgment delivered will be required for the determination of the Review application. See A/S Norway Cement Export Ltd. vAddison (1974)2 GLR 177 (Full Bench) at 181.\r\nIn In Re Gomoa Ajumako Paramount Stool (No.2); Application for substitution, Acquah Applicant; Kwa Nana v Apaa and Another [2000] Sc GLR 394 the facts of the case were as stated per Charles Hayfron-Benjamin JSC at 396 as follows:\r\nOrdinarily this court would not entertain an application for review unless such an application was brought within the ambit of the rules of this court, now clearly spelt out in the Supreme Court Rules, 1996 (CI 16), r 15(2). But in this case, the applicant by his statement of case prepared on his behalf by counsel, raises an important issue worthy of consideration.\r\nX	x	x\r\nTo buttress ......, counsel argued that if their lordships had carefully examined\r\nthe record, they would have noticed that by 20 August 1991, when the registrar\r\nS\r\n \r\nIOIont VNYH? O 33IAMS ivioicflr\r\nof this court issued the notice to strike out and directed the said notice for service on Kwa Nana, the said Kwa Nana was already dead, and in the submission of counsel, the registrar "therefore could not have taken any step in this case."\r\nUpon these facts this court held as per the headnote as follows:\r\n"Held, unanimously granting the application for review of the ruling of the court given on 26 June 1992, dismissing the applicant''s motion for substitution and an order of re-/istment in respect of the appeal which was deemed to have been struck out under rule 13(2) of the Supreme Court Rules, 1970 (Cl 13): the object of rule 13(2) of CI 13 was to notify all parties mentioned in the notice to strike out, that the appeal has been stuck out. In the instant case, even though the appeal was deemed to have been struck out for failure by the previous appellant to file statement of case as required by rule 13(2), notice thereof was never served on the appellant because he had died before the issue of the notice. The purported service of the notice on a person who was, in fact, dead was a nullity. Consequently, the applicant for the instant review is entitled ex debitojustitiae to have the earlier ruling set aside. The court would, therefore, order that the applicant be substituted for the deceased appellant and further order that the appeal be re-listed."\r\nAgain in Republic v High Court, Kumasi; Exparte Abubakari (No. 3) [2000]SC GLR 45 this Court reviewed its earlier decision mainly because this court had overlooked certain basic and material facts relating to the election of a Moshiehene. Thus it is stated in holding 2 thereof as follows:\r\n"(2) on the undisputed evidence or facts as found by the trial judge, the question of heads/up of the Moshie Community in Kumasi did not fall within the definition of "chief" under article 277 of the 1992 Constitution ''\r\nFurthermore in NT/-IC Ltd v Antw/ (2009) SC GLR 117 the Editorial Note thereto shows that this court was compelled to review its previous order as to interest because of certain factual errors relating to its duration and computation. In Baiden v Ghana National Trading Corporation [1989-90] 2 GLR 79 the headnote vividly states thus:\r\n \r\nliatonrVINIVH0 JO 331AN3S 1V1l\r\n"Held, granting the application for review: since exhibit P upon which the court relied to fix the period for the award of damages for wrongful dismissal was never brought to the know/edge of the plaintiff (as it never left the defendant- corporation) there was an obvious error on the part of the court when it assumed that from January 1985 the plaintiff had had notice of the regular/sat/on of his termination. There was therefore an error or mistake apparent on the face of the record in terms of Order 39, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), and that failure to review the judgment would amount to a denial ofjust/ce (e. s)\r\nI do not think that in view of the ratio decidendi therein it matters anything that the Review was made under 0.39 r.1 of L.N. 140A. See also Koglex Ltd. (No. 2) v Field (2000) SC GLR 175.\r\nAll this should not be surprising because as a matter of principle, since it is trite law that this court can review a decision which is per incur/am as to the law why can''t it also review a decision that is per incuriam as to compelling facts. After all the expression per incur/am simply means through oversight. It is also trite law that a statute must be construed as a whole and purposively. The second ground of this court''s Review jurisdiction, namely r.54 (b) relates to "discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicants knowledge or could not be produced by him at the time when the decision was given." Quite clearly then the legislature is anxious that any fact that could have altered the decision of the court, were it known, should be given effect even after judgment has been delivered. Very clearly then it stands to reason that if "important matter or evidence" was adduced but was overlooked by the court such a situation should qualify as an exceptional circumstance under r.54(a) of CI 16. After all it is trite law that the spirit of a statute cannot be divorced from its true construction. This means that if the substance of an application for Review is that a different decision from the earlier one is merely preferable and not that the earlier decision is starkly wrong, it is a proper matter for appeal not Review.\r\nFor all the foregoing reasons the submissions filed by the applicant''s counsel raise the questions whether (1) the ordinary decision of this court in this case was perverse or (2)\r\n \r\n1)IOflr VNVH JO 33lAflS 110I01t\r\nwhether it overlooked important and substantial matters of fact which, were they considered, would have compelled a different decision by this court. One such fact was that a similar fake air waybill standing in the name of Friesland West Africa had been used on the 30th day of August 2006 to dispatch a parcel described as containing documents by the DHL Company which found nothing suspicious about its alleged contents. Clearly therefore the use of a fake air waybill by the appellant does not necessarily point to a criminal purpose or mind in relation to the charges against him. Another fact is that the first accused indeed had with him several of such air waybills for the purpose of facilitating the theft of the postal fees of the parcels concerned.\r\nNonetheless every incident must be ultimately decided upon its own peculiarities if any. So far as the facts of this case are concerned the courts below have concurrently found that it was the appellant''s executed intent so to distance the identity of the sender from the criminal parcel as to avoid detection. For this purpose though the appellant supplied the consignee''s name and address on the fake exhibit ''A'' he never disclosed the name and/or address of the consignor, Harry Campbell in the documentation for processing and dispatching the said parcel. There is nothing on the evidence to show that these circumstances are the same as those surrounding the use on 30/8/2006 of the other fake Friesland West Africa airwaybill for the successful and unsuspected dispatch of a parcel allegedly containing documents.\r\nAssuming that the 15t accused used the fake airwaybills to steal the postal fees of the parcels to be dispatched by D.H.L. there is nothing in the evidence to suggest that the appellant was privy to that design of the 1st accused. Indeed the appellant alleged that he joined issue with the 1 accused over the use of that airwaybill. It follows that the residue of any improper intent on the part of the appellant with regard to the criminal parcel was for his own purposes either directly or as agent for and on behalf of his principal Harry Campbell. It is quite clear on the evidence that exhibit ''B'' the parcel containing the Indian Hemp, is clean shaven, as far as bearing any name and/or address of the consignor(be he the applicant or Harry Campbell) is concerned despite the contrary avowal by the appellant. Again the contention of the appellant that the 15t accused undertook to post the particulars of exhibit ''A'' unto a blank airwaybill at the DHL office is most incredible since if he did not sign exhibit ''A'' as he contends, the\r\n \r\nIlanrvNYHo JO 3311AHMIMNI 0''\r\nparcel would have had to be dispatched without any consignor''s signature on the airwaybill, a thing that is not done on his own evidence, since he positively testifies that he until this particular criminal parcel always filled in the requisite particulars on the air waybill and signed the same. In the alternative if he did sign exhibit ''A'' as contended by the 1st accused then his signature would have been incapable of being transferred unto the pursuant blank air waybill which the 1 accused is said to have promised to substitute for exhibit ''A'' by transferring the particulars of the parcel thereunto in carbon copies.\r\nA resort to the original exhibits transmitted to this court, inter alia, clearly establishes the foregoing facts against the appellant.\r\nThe anonymity of the consignor''s identity in the documentation for the purpose of the postage of the criminal parcel is explicable only in terms of the need for concealment thereof because of the criminal contents of the parcel in question. Therefore the presence of the Indian hemp in the criminal parcel to the knowledge of the appellant and the jst accused has been proved even before that parcel could reach the DHL offices. Therefore the possibility of any implanting of that narcotic drug in the parcel delivered by the appellant to the 15t accused by any of other persons who have to handle the same at the DHL offices has been eliminated before hand. Also as held in the head note in BonsucBenji//o v The Republic(2000) Sc GLR 112:\r\n"The proof of knowledge or mens rea is not capable of direct proof but same may be inferred from established facts as stated in Section 18(2) of the Evidence Decree, 1975, NRCD 323. S.18(2) states as follows: ''An inference is a deduction of fact that may logically and reasonably be drawn from another fact found or otherwise established in the action."\r\nWhether or not acts of an accused that are inconsistent with innocence necessarily point to guilt depends on the facts of each case. See Otsiba v The Republic (1978) GLR 290 C.A.\r\nIt is to be expected that narcotic drug traffickers would use very subtle methods in their dealings. Even the starkly plain divergence of the handwritings of the appellant in his statements to the Police and in exhibit ''A'' portrays the appellant as a person of no innocent ability. The foregoing analysis of the facts in this case only portrays the\r\n \r\njnr vv	o ueis ioi\r\ncontrivance of the appellant and the 1st accused in the words of Graham Paul C.) in George Mattouk v Elie Masad (1941) 7 WA CA 91 at 96 as "deliberate downright lying showing at once a marvellous though debased talent for invention and a total disregard of truth and of [their] oath to tell the truth". Consequently on the facts of this case even if exceptional circumstances have been established they are not exceptional circumstances "which have resulted in a miscarriage ofjustice'' as required by r.54(a) of C.I. 16."\r\nAs to the applicant''s counsel''s contention that the onus of proof has been unconstitutionally shifted to an accused person with regard to the requirement of lawful authority for the possession of a narcotic drug, we disagree. It is a fair onus since certainly the obtention of such authority would have been in the knowledge and possession of the accused person and in any event, it is trite law that its discharge is far easier than the discharge of any onus on the prosecution. As Edward Wiredu J. (as he then was) said in Donkor v. The Republic (1974) 2 GLR 254 at 258 "where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the offence which is a sine qua non to securing conviction. Unless the same statute places a particular burden on the accused, the fundamental and cardinal principle as to the criminal burden of proof on the prosecution should not be shifted even slightly: see Woo/mington v Director of Public Prosecutions [1935] A.C. 462 per Viscount Sankey L.C. at pp. 481-482, H.L. and R. V Abraham [1973] 3 All E.R. 694, C.A.". In any case if the appellant had lawful excuse for possessing the narcotic drug it is incomprehensible that he should take all the pains to ensure the anonymity of the consignor or sender of this parcel or of himself.\r\nAs to counsel for applicant''s contention as to the need for a special dispensation with regard to the principles for Review in this court in criminal cases, we think the principles expatiated above do adequately redress his concerns. The Review jurisdiction is a unitary one. The federal approach advocated by the applicant''s counsel was urged on this court unsuccessfully in P/an/rn (No.3) v Ekwam (1996-97) SC GLR 431.\r\nWe are however suspicious of the circumstances in which Harry Campbell the alleged Principal of the appellant escaped arrest. Indeed in her judgment at P.183 of the record\r\n \r\na	1oflr VNVHO JO 331AN3S 1V1OK\r\nthe trial judge said: "it is in evidence that an attempt was made to effect the arrest of Campbell but this was bungled by the police."\r\nWe are however not versed in police tactics in such matters. It is obvious however that if the cloudy escape of Harry Campbell is scrutinised with regard to the facts on record by those with the requisite expertise and found to have been orchestrated then some executive intervention by way of the presidential prerogative under article 72 of the constitution in respect of at least the appellant (as opposed to the 1st accused who on the evidence is a factory of criminality) might be relevant. This is however entirely a matter for the appellant and his advisors.\r\nIt is for the foregoing reasons that though we came close to granting this application, upon a full and anxious consideration of the same we are constrained to dismiss the same.\r\n(SGD)	W. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\nANSAH, J.S.C.	I agree:\r\n(SGD)	J. A. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\nADINYIRA (MS). J.S.C.	I also agree:\r\n(SGD)		S. 0. A. ADINYIRA (MRS.) JUSTICE OF THE SUPREME COURT\r\n \r\n~:AA839 iviionr VNVHO JO aDIA83S 1VIGl''\r\nYEBOAH. J.S.C.	I also agree:\r\n[SGD]	ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\nAYEETEY, J.S.C.	I also agree:\r\n[SGD]	B. T. ARYEETEY\r\nJUSTICE OF THE SUPREME COURT\r\nJONES DOTSE JSC:\r\nThis is to confirm that I have been privileged to have read the well considered and erudite opinion of my respected brother and president of this court, Atuguba JSC and I am in complete agreement that this review application must fail and should be dismissed.\r\nI am also in complete agreement with the reasons given for the dismissal of the review application.\r\nHowever, as I have been scheduled to be out of town on the date of the judgment, which is 20th January 2011, I have accordingly requested my respected brother Anin-Yeboah JSC to read this concurring opinion on my behalf to validate the opinion of the court, just delivered by the President of the Court, Atuguba JSC.\r\n \r\n:l3lGflf NVH do ]OlALS 1YIOKI(W\r\nDated in Accra at the Supreme Court, this 19th day of January 2011.\r\n(SGD)	J. V. M DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\nBAFFOE-BONNIE:,J.S.C.\r\nI have had the benefit of reading beforehand the judgment read by the president of the court Atuguba JSC and concurred in by my brothers and sister. I am unfortunately unable to agree with them in the conclusion for reasons which I will articulate hereafter.\r\nIn the case of Afranie v. Quarcoo Wuaku 1992] GLR 561at pgs 591-592 JSC said,\r\n"There is only one Supreme Court. A review court is not an appellate court to sit in\r\njudgment over the Supreme Court"\r\nThen in the case of GIHOC Refrigeration (no 1) V. Hanna Assi(1) (2007-2008) SCGLR 1 Dr. Justice Date-Bah said;\r\n"Even if the unanimous judgment of the Supreme Court on the appeal in this\r\ncase were wrong, it would not necessarily mean that the Supreme Court would\r\nbe entitled to correct that error. This is an inherent inc/dent of the finality of the\r\njudgments of the final Court of Appeal of the land. The brutal truth is that an\r\nerror by the final court of the land cannot ordinarily be remedied by itself, subject\r\nto the exceptions discussed below. In other words, there is no right of appeal\r\nagainst a judgment of the Supreme Court, even it is erroneous"\r\n \r\na\r\nlaiOn r VNV1A5 JO 33IM3SW''\r\nThese and a long line of cases are often cited as militating against the use of the review process to overturn decisions given by the Supreme Court except for exceptional circumstances that has occasioned a miscarriage of justice.\r\nOrdinarily one should not have any problem with any rule of procedure that seeks to bring finality to the adjudicatory process and which is based on a rule of law like Rule 54 of CI 16. But all these authorities harping on the need for the existence of\r\n•	exceptional circumstances, etc followed by this court have been on civil cases.\r\nThe Constitution 1992 which is the basic law of the land was promulgated to regulate and promote good governance and the rule of law. And at the heart of the rule of law is the liberty of the individual. I cannot see any rule of law or procedure which should take precedence over the promotion and sustenance of the liberty of the individual.\r\nI therefore cannot see my way clear refusing to review a decision of the regular court on the grounds that there must be finality in judgments of the final court of the land, even if clearly in my humble view the judgment was wrong\r\nFor my part, keeping the applicant in jail on the parroted grounds that there are no exceptional "circumstances that has occasioned a miscarriage of justice", and that to review means giving him a second chance to re-argue, is a violation of the constitution which we swore an oath to uphold.\r\nI believed then, and I still believe, that the applicant was wrongly convicted by the trial High Court and same confirmed on appeal. We piled a multitude of suspicions together and made proofs out of them. We failed to give the benefit of the doubt to the applicant and most importantly we misapplied the rule on the use of circumstantial evidence, which this court has laid in down in its previous decisions.\r\nSeethe cases of;\r\nLOGAN V. REPUBLIC [2007-2008] 1SCGLR 76\r\nANANE V FIADZO 1961 1 GLR 416\r\nDUAH V. REPUBLIC1987-881 GLR343 and a host of others.\r\n \r\niviianr VNVHO JO ]OIAS 7q.\r\nIt is my humble view that the applicant is in jail serving a term of imprisonment for an offence which the prosecution did not fully prove he committed. His continued incarceration is a breach of the constitution. If these are not exceptional circumstances that call for a review of our decision, then I do not know what else is.\r\nFor my part I humbly believe that, the desire to achieve the liberty of the human person should not be sacrificed on the alter of expediency of finality of judgments. After all it is often said that it is better to set free 99 guilty persons than to convict one innocent person.\r\nIt is for these reasons that I will grant the application and quash the conviction.\r\n(SGD)	P. BAFFOE-BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL:\r\nSAM OKUDZETO WITH NENE AMEGATCHER, ASINI OKUDZETO, PATRICK BOAMAH, KWESI KELLY DELATA FOR THE APPLICANT.\r\nEVELYN KEELSON (MRS) P. S. A. FOR THE RESPONDENT.\r\nhui ø•P\r\n$j1 COURT OF\r\n', '../links/cases/Document (113).pdf', 'Yes', 'ANSAH,J.S.C., ADINYIRA (MS),J.S.C., DOTSE,J.S.C., YEBOAH.J.S.C., B. BONNIE,J.S.C., ARYEETEY,J.S.C.', '2011', 'supreme', '<i><b><font face="Times New Roman" size="3">Review Jurisdiction of Supreme Court - a unitary jurisdiction with no need for special dispensation in criminal cases - invoked in special and exceptional circumstances arising from fundamental error which must lead to miscarriage of justice - no review where no miscarriage of justice even if exceptional circumstances found - Supreme Court Rules 1996 (CI 16) Rule 54 (a) and (b). Constitutional Law - Reversed onus of proof of lawful authority for possession of narcotic drug on accused not unconstitutional - not a violation of the right to presumption of innocence until proven guilty or right to fair trial - act 19 of 1992 Constitution; Section 2 of Narcotic Drug (Control Enforcement and Sanctions) Law 1990, PNDC Law 236. </font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'CM J7A/1/2010', '', '', 'supreme', '2011-01-20', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(538, 'DR. OWUSU AFRIYIE AKOTO  --- PETITIONER/APPELLANT/APPELLANT\r\nVRS\r\nADWOA ABREFI AKOTO  --- RESPONDENT/RESPONDENT/RESPONDENT', 'IN THE SUPREME COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA-.GHANA\r\nCORAM: ATUGUBA, JSC (PRESIDING) AKUFFO, JSC\r\nANIN-YEBOAH, JSC\r\nGBADEGBE, JSC\r\nAKOTO-BAMFO, JSC\r\nCIVIL APPEAL\r\nJ4/24/2010\r\n23PD FEBRUARY, 2011\r\nDR. OWUSU AFRIYIE AKOTO - PETITIONER/APPELLANT/APPELLANT VERSUS\r\nADWOA ABREFI AKOTO	- RESPONENT/RESPONDENT/RESPONDENT\r\nHusband and wife - Divorce - Property Ownership - Dispute as to distribution of matrimonial property.\r\nJurisdiction - determination of lex situs\r\nMatrimonial causes Act 1971, (Act 367)- Courts Act 1973 (Act 459)\r\nCompany Law - Principle of lifting the veil of incorporation - How applicable? JUDGMENT\r\nATUGUBA, JSC\r\nThe facts of this case as gleaned from the petitioner/appellant/appellant''s statement of case and the judgment of the Court of Appeal are as follows: the appellant and the respondent who were husband and wife got married by custom in July 1974. The marriage was converted into a monogamous marriage under ordinance in Cambridge England on July 16, 1976. After the said marriage, the couple cohabited mainly in the United Kingdom and apparently had a blissful relationship that was blessed with three issues from 1974 - 1997, when the respondent discovered two letters that causes the otherwise blissful marriage to unravel leading to the appellant filing for divorce on August 29, 1997 while the respondent\r\n \r\n.1	w=nrVNVHO JO 33WOS 1O1(urr\r\nwas still in England. Nineteen days later the Respondent filed a Cross Petition for the dissolution of the marriage and other ancillary reliefs which included properties both within and outside the jurisdiction, as follows:\r\n"(a) dissolving the marriage,\r\n(b)	declaring her a joint beneficial owner of House No. 38/39 BLK 01/115 East Legon, Accra\r\n(c)	declaring her a joint beneficial ownder of 5 Kingsfield Road, EALING W5 ILD London, U.K.\r\n(d)	declaring her a joint beneficial owner of 18 Chatsworth Avenue Wembley Middlesex U.K.\r\n(e)	declaring that she is entitled to one half of the net income from the rent of 5 Kingsfiled Road EALING W5 ILD London, a property jointly owned by both parties,\r\n(0 that the Appellant pays her a lump sum settlement\r\n(g)	that the Appellant maintains the children of the marriage\r\n(h)	that she be given custody of Owusu Akoto Jnr. the Minor child with reasonable access to the Appellant, and\r\n(i)	that she be granted such other reliefs as the Court may deem fit."\r\nl''he Respondent was successful both in the High Court and the Court of Appeal. The areas of the appellant''s dissatisfaction are as stated per Aduama-Osei J.A delivering the judgment of the Court of Appeal at p. 623 of the Record of appeal as follows:\r\n"1/ic settled principle which he Appellant contends have been disturbed by the trial court are in two areas: one is in respect of the jurisdiction of the court over immovable properties situated abroad and one in respect of the separate legal existence of a limited liability company froni its members. We find therefore that in their Written Submissions, Counsel for the Appellant question the jurisdiction of the trial court to deal with immovable properties situated in the United Kingdom, outside its jurisdiction and also question the validity of the trial court''s order giving\r\n2\r\n \r\nNVHD 30 33IA83S 1V1OCflI''\r\nthe Respondent certain properties registered iii the iianie of limited lulbilit)'' companies of which, the Respondent was neither a shareholder nor a director. The Appellant also invites this Court to review the trial court''s award of £150,000.00 in favour of the Respondent as financial settlement, as well as the cost o q80,000,000. 00 awarded the Respondent."\r\nAccordingly the appellant''s grounds of appeal to this court are as follows:\r\n"(i) The Court of Appeal erred in law when it confirmed the assumption of jurisdiction by the High court to determine rights relating to immovable properties situated outside the jurisdiction of the courts.\r\n(ii)	the Court of Appeal erred in law when in its judgment it gave certain percentages and properties that belonged to the company to the Respondent who was neither a shareholder nor a director nor a subscriber to the company''s regulations.\r\n(iii)	The financial settlement awarded to the Respondent in Pound Sterling was erroneous in law and excessive."\r\nThe issue of Jurisdiction\r\nThe appellant strenuously contends that it is the lex situs, that is to say the law of the country iii which the land is situated that governs it and therefore the High Court has no jurisdiction in so far as the immovable properties in England are concerned. The respondent contends that in matters of equity there is an exception to that rule in favour of the High Court''s assumption ofjurisdiction in this case. The appellant denies the validity of that exception.\r\nIn so far as assistance from the Matrimonial Causes Act, 197 1 (Act 367) is concerned the choice of law provisions as far as the issue herein is concerned are sections 33 and 35. They are as follows:\r\n \r\nivianr VNVHO JO E1A83S 13LCf1\r\n"33. Additional jurisdiction relating to financial provision\r\nIn addition to any other jurisdiction conferred by this Act the Court shall have jurisdiction, where a party who may be ordered to make financial provision has assets in Ghana, to order that party to make financial provision not exceeding the value of those assets.\r\n1135. Choice of law\r\nIn proceedings under this Act, except in proceedings for a decree of nullity of a void marriage, the issues shall be determined as if both parties to the marriage were domiciled in Ghana at the commencement of the proceedings."\r\nThe proceedings in this case were commenced in August 1997. The parties are Ghanaians.\r\nWe agree with the appellant''s counsel that though the course of the marriage between the parties herein evokes sentiments of sympathy towards the respondent, the law must prevail.\r\n"Conflict of law rules in matrimonial cases\r\nGlobal trends on the matter, are evolving the following questions and principles.\r\nIn divorce cases, when a court is attempting to distribute marital property, if the divorcing couple is local and the property is local, then the court applies its domestic law lex fori. This becomes much more complicated when local laws allow polygamy. The case becomes even more complicated ifforeign elements are thrown into the mix, such as when the place of marriage is different from the territory where divorce was filed; when the parties'' nationalities and residences do not match; when there is property in aforeign jurisdiction; or when the parties have changed residence several times during the marriage.\r\nDifferent jurisdictions follow different sets of rules. Before embarking on a conflict of law analysis, the court must determine whether a property agreement governs the\r\n \r\n%/NVHO JO 3IMLS 1V1OICuit\r\nrelationship between the parties. The property agreement must satisfy all formalities required in the country where enforcement is sought.\r\nMovable v. Real Estate - In general, applicable matrimonial law depends on the nature of the property. Lex situs is applied to immovable property (i.e., real estate), and the law of matrimonial domicile applies to movable property, provided there has been no subsequent change in the spouses'' domicile.\r\nThere are lurther issues relating to Mutability and Immutability Doctrines of Domicile.\r\nLex Fori - in many cases, courts simply avoid this complicated and expensive analysis by applying their local law to the parties'' entire property, even if there is a foreign element. This is based on the assumption that laws around the world are basically similar in their treatment of marriage as a co-partnership. Since the partnership can be placed in the forum, the forum ''s law applies to all its aspects.\r\nIn any event, a careful study of the cases of King v. Elliot (1972) 1 GLR 54 C.A and Youhana v Abboud (1974) 2 GLR 201 C.A and sections 33 and 35 of the Matrimonial Causes Act, 1971 (Act 367) as well as the choice of law rules in s.54 of the Courts Act, 1993 (Act 459) particularly Rule 6 thereof, since the customary laws of the parties is unknown, shows that it is the lex situs that governs the reliefs relating to the immovable properties in this case situate in England. That lex situs however refers to the conflict of laws nile of the situs. See Elliot v King at 57 per Bentsi-Enchill JSC and Youhana v Abboud, supra at 205 - 206 per Apaloo J.A (as he then was). That lex situs is part of the received common law of Ghana and is not different from English common law on the point. A recent exposition of the common law as to the lex situs is contained in the decision of the Singapore Court of Appeal (a common law jurisdiction) which applied the English law on the point, in Eng Liat Kiang v Eng Bak HernLiai Kiang [1995] 3 LRC 398.\r\n \r\n300-N3,ci ivonr ''VNYHD dO IA8S 1VlOK3flf\r\nThe facts of the case and the court''s decision thereon are as stated in the headnote thereto as follows:\r\n"The appellant and his son, the respondent, had interests in various companies and properties in Singapore and abroad. The parties fell out and the respondent filed a petition to wind up a company in Singapore and a similar petition in Malaysia to wind Lip a company there. The appellant filed an action in the Singapore High Court claiming, inter alia, a declaration that the respondent held on trust for him shares in four companies incorporated in Singapore, Malaysia and Hong Kong and various parcels of land in Malaysia. The respondent/lied a notice of motion for an order that the claims relating to the shares in the Malaysian companies and the land situated in Malaysia be stayed on the ground that the court in Singapore had no jurisdiction in relation to foreign immovable properties, and, alternatively, on the basis of forl.1111 non conveniens. The trial judge allowed the respondent''s application on the alternative ground. The appellant appealed to the Court of Appeal.\r\nHELD: Appeal dismissed\r\n(1) In general, except where an action was based on a contract or equity between the parties, a local court had no jurisdiction to entertain proceedings principally concerned with a question of title to, or the right of possession of immovable property situated outside of the jurisdiction. Since the appellant''s claim for a declaration of an express or resulting trust arose in equity, the court had jurisdiction over the matter even though the proceedings were concerned with foreign immovable properties. In addition the respondent did not show that the Malaysian court would never recognize a trust that was declared by a court other than its own, while there was nothing in Singapore law which made it impossible or illegal for such a declaration to be made or which would be an impediment to the relief sought. The appellant''s claim accordingly came within the exception and the court had jurisdiction to entertain the application (see pp 402, 403, 404 - 405, post). Cook Industries Inc v Galliher [1978] 3 All ER 945 and Webb v Webb 1199211 All ER 17 approved. "(e.$)\r\n \r\nIn similar circumstances in King v. Elliot supra, the facts and the decision of the Court of Appeal are as stated in the headnote as follows:\r\n"P. being the only child of her mother, a West Indian domiciled at Cape Coast, inherited her mother''s property on her death intestate. P. died in 1943, and by her will, she devised various properties to her relations and descendants. One of her properties was a house called "Pius House" which was devised to the plaintiff. Control over the house was however assumed by the defendants because a provision in the will of their father (who was a son of P.) had stipulated that the income derived from the Pitts House should for the next ten years be used in repayment of the cost of redeeming a mortgage on the property. On the expiry of the ten years, the defendants refused to surrender possession and continued to exercise control over the house on the ground that the plaintiff''s title was defective, being derived from the will of P. who had no power to dispose of the said property by will, as it was family property originally acquired by her mother who died intestate. Wherefore the plaintiff brought an action to claim mesne profits and a perpetual injunction against the defendants. .Judgment was given in favour of the plaintiff and the defendants appealed.\r\nHeld, dismissing the appeal: (1) Ghana law is the lex situs of Ghana and an alien who acquires a domicile of choice in Ghana does not become subject to a particular customary law unless he could be shown by positive evidence regarding manner of life to have embraced that system of customary law. In the absence of such evidence the law applicable to the estate in queslion is the English common law as it stood in 1874, (being the current Ghana law) and P. being the sole surviving daughter must be adjudged as having inherited the properties of her mother absolutely under the Statutes of Distribution.\r\n(2) The defendants, together with the whole family had, fully accepted, approbated and acted upon P. ''s testamentary dispositions. They could not, therefore, either in equity or at customary law, be allowed to approbate and reprobate."(e.$)\r\n \r\nIn the present case the facts indisputably show that the appellant has dealt most inequitably with the respondent as regards their jointly acquired properties by various stratagems and secret dealings. The Court of Appeal dealt at length with this situation but a few excerpts would suffice. ''Thus at p. 626 of the Record the court per Aduama-Osei J.A said:\r\n"There is also evidence on record that in many instances, without the knowledge of the\r\nRespondent, the Appellant used the properties which he had jointly acquired with the\r\nRespondent to take loans which he deliberately refused to service and thereby allowed\r\nthe properties to be repossessed by the lending financial institutions.\r\nCounsel for the Appellant agree that on the above state of the facts, the Appellant dealt most unfairly with the Respondent. I will again quote from counsel''s written submissions:\r\n"After carefully reading the record of proceedings and the trial judge''s summary of the facts of the case, we form the impression that evidence portrays the Respondent as a woman who has been short changed in a marriage that span about twenty three years, during which she gave her heart and soul and more. From a purely emotional perspective we are of the opinion that the learned trial judge gave the Appellant his just desert but from a legal perspective we submit that the judge committed certain fundamental errors of law and as such erred in law."\r\nAgain at p.627 the court per Aduama-Osei J.A said:\r\n"It is my view that the evidence on record supports a conclusion that the Appellant was fraudulent in his dealings with the Respondent regarding the properties and I reject the argument by Counsel for the Appellant that the facts do not warrant the orders made by the trial Court."\r\nIn these circumstances and having regard to the principles set out supra, the trial court rightly assumed jurisdiction in equity in this case.\r\nLifting the Veil\r\n \r\nThe ground of appeal relating to corporate personality must likewise fail. At p.627 of the Record the court of Appeal said:\r\n"There is no doubt from the evidence that in respect of the properties owned jointly by the parties, the Appellant stood in a fiduciary relationship with the Respondent. To my mind, what the Appellant did amounted to converting the East Legon and North Labone properties, which he owned jointly with the Respondent, into money and putting the money into his companies for the operation of the companies and for his exclusive benefit. I do not think that in the face of the facts the trial Court was precluded by any principle of law or equity from ordering that one or two vehicles registered in the name of one or the other qf the companies be given to the Respondent."\r\nIn Worldwide Shipping and Agencies (GH) Ltd v Darko [2001-2002] 2 GLR 488,C.A, Brobbey J.A (as he then was, his other brethren concurring), quoted with approval the views of Sanborn J in United States v Milwaukee Refrigeration Transit Co, 142 Fed 247 at 255 (quoted in Pennington''s Company Law (3`1 p.51 reflecting the position of the American courts as follows:\r\n"... A corporation will be looked upon as a legal entity as a general rule ... but when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons."\r\nAgain in Re Polly Peck International plc (in administration)[ 1996]2 All ELR 433 at 447 Robert Walker J said:\r\n"..J  was referred to quite a lot of authority touching on what is sometimes called lifting (or piercing) the corporate veil. That is a vivid but imprecise metaphor which has possible application in several different contexts, some far removed from this case. The most relevant, it seems to me, is where corporate personality is (in the\r\n \r\nwords of Lord Keith in Woolfson v Straithclyde Regional Council 1978 SLT 159 at 161) used as ''a mere façade concealing the true facts.''\r\nX	x	x\r\nFaçade'' (or ''cloak'' or ''mask) is perhaps most aptly used where one person (individual or corporate) uses a company either in an unconscionable attempt to evade existing obligations (Gilford Motor Co Ltd v Hone [1933] Ch 935, [1933] All ER Rep 109 and Jones v Lipman [1962] 1 All ER 442, [1962] 1 WLR 832) or to practice some other deception (a sort of unilateral sham, since the corporate façade has no independent mind). In Adams v Cape Industries plc [1991] 1 All ER 929, [1990] Ch 433 the establishment and interposition of the Liechtenstein corporation referred to as AMC was a façade in this sense, and ''no more than a corporate name".\r\nSee also Morkor v. Kuma (1998-99) SCGLR 620.\r\nIt is clear on these principles that the courts below, impliedly or in substance, if not in form did properly lift the veil of incorporation and granted the respondent the necessary reliefs. In any case this court could have itself done so upon its plenary appellate powers if necessary.\r\nThe ground of appeal relating to the financial settlement awarded cannot be upheld. It cannot be said to be based on any wrong principle or that it is based on irrelevant or insufficient considerations. However in the mixed situation in this case we order that the amount awarded be converted into the cedi equivalent. Save as to this, for all the foregoing reasons, the appeal is dismissed.\r\n[SGD] W. A. ATUGUBA\r\n[JUSTICE OF THE SUPEME COURT]\r\nLSGDI	S. A. B. AKUFFO [MS.]\r\n[JUSTICE OF THE SUPREME COURT]\r\n \r\n/NVHO JO IA13S 1OC1\r\n[SGD] ANIN YEBOAH\r\n[JUSTICE OF THE SUPREME COURT]\r\n[SGD] N. S. GBADEGBE\r\n[JUSTICE OF THE SUPREME COURT]\r\n[SGD] V. AKOTO-BAMFO [MRS.]\r\n[JUSTICE OF THE SUPREME COURT]\r\nCOUNSEL:\r\nPETER OKUDZETO FOR THE PETITIONER/APPELLANT/APPELLANT. GAYLORD KEMOVOR FOR THE RESPONDENT/RESPONDENT/RESPONDENT.\r\nUI .•py\r\nr4r COURT OFGIAI(A -\r\n', '../links/cases/Document (3).pdf', 'Yes', 'AKUFFO (MS),J.S.C.,ANIN-YEBOAH,J.S.C.,GBADEGBE,J.S.C.,AKOTO-BAMFO (MRS),J.S.C.', '2011', 'supreme', '<i><b><font face="Times New Roman" size="3">Husband and wife - Divorce - Property Ownership - Dispute as to distribution of matrimonial property. Jurisdiction - determination of lex situs Matrimonial causes Act 1971, (Act 367) - Courts Act 1973 (Act 459) Company Law - Principle of lifting the veil of incorporation - How applicable?</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J4/24/2010', '', '', 'supreme', '2011-02-23', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(539, 'CUSTOMS EXCISE & PREVENTIVE SERVICE  --- PLAINTIFF\r\nVRS\r\nNATIONAL LABOUR COMMISSION  --- DEFENDANTS\r\nPUBLIC SERVICES WORKERS'' UNION OF\r\nGTUC  --- INTERESTED PARTY', 'IN THE SUPREME COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA-GHANA\r\nCORAM: ATUGUBA, JSC (PRESIDING) ANSAH, JSC\r\nADINYIRA (MRS.), JSC\r\nDOTSE, JSC\r\nANIN YEBOAH, JSC\r\n\r\n	\r\n\r\nEmployment Law: Labour Act (2003) Act 651 section 1; - exclusion of Armed Forces, Police, Prison Service and Security and Intelligence Agencies from Act - whether CEPS falls under Security and Intelligence Agencies - constitutionality of section 1 of Act 651 - right of security services and CEPS staff to unionise; Expressio unius est exclusio alterius rule.\r\nJUDGMENT ATUGUBA, JSC\r\nThe facts of this case have been related by my brother Dotse, JSC and I would not repeat them except where necessary.\r\nThe plaintiff claims before us per its writ of summons as follows:\r\n \r\n"1. A declaration that on a true and proper interpretation of the Labour Act 2003 (Act 651), particularly s.1, the application or the purported application of the said Act to cover the Customs, Excise and Preventive Service (CEPS) as established by law is inconsistent with, or in contravention of Article 24(4) of the Constitution and to that extent the court ought to declare that restrictions prescribed by law and reasonably necessary in the interest of national security or public order require that Customs, Excise & Preventive Service be excluded from the application of the Labour Act 2003 (Act 651).\r\n1\r\nL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA\r\n \r\n11(6) of the Constitution the Court declares a Collective Bargaining\r\nCertificate dated 20111 March 1987 issued to cover the Customs, Excise & Preventive Service void and of no effect."\r\nIt is obvious that these claims could have been better drafted. However their substance is that\r\n(a)	insofar as the Labour Act 2003 (Act 651) applies to the workers of the Customs, Excise and Preventive Service, the same is inconsistent with or in contravention of Article 24(4) of the Constitution and to that extent is null and void.\r\n(b)	The continued operation of a Collective Bargaining Certificate dated the 20th day of March 1987 in respect of the Customs Excise and Preventive Service is for the same reason also null and void.\r\nPreliminary Points\r\nThe defendant objects that the plaintiff failed to appeal against the Ruling of the National Labour Commission dated the 7th day of June 2006 that it has jurisdiction over it and therefore is out of time in this court. But the plaintiff''s case is not an appeal but an original action in this court. As this court is the only competent court to entertain and if appropriate, to grant the reliefs claimed by the plaintiff in this action, it is difficult to fathom how there could be an objection to the initiation of the same. See Mens/ma v. Attorney-General (1996-97) SC GLR 676. New Patriotic Party v Attorney-General(Ciba Case) (19996-97) SC GLR 729, Sam (No. 2) v Attorney-General (2000) SC GLR 305, Adofo v. Attorney- General& Cocobod(2005 - 2006) SC GLR 42.\r\nSome other preliminary objections could, but were not raised as to the legal capacity of the plaintiff to institute this action. However they would not have defied resolution so as to allow this action to survive. See Republic v. High Court, Accra, Ex parte Attorney-General (Delta Foods Case) (1998-99) SC GLR\r\n595.\r\n \r\n\r\n \r\nThe Position of CEPS under ordinary Legislation\r\nThe Customs, Excise and Preventive Service (Management) Act, 1993 (PNDCL 330) has no direct provision precluding CEPS from unionizing. S.235 however provides as follows:\r\n"For the administration of this Act all officers shall have the same powers authorities and privileges as are given by law to Police Officers"\r\nThere has been much argument as to the proper scope of this provision as it applies to CEPS because s.17 of the Police Service Act 1970 (Act 350) provides:\r\n"It is a misconduct for a police officer\r\nX	x	x	x	x	x\r\n(f) to become a member of a trade union or of any other association, other than an association authorized by the Minister having similar objects. "(e.$)\r\nMisconduct is a liability. S.235 of PNDCL 330 does not say that the officers of CEPS should have the same liabilities as attach to police officers. Therefore s.17 of Act 350 does not apply to CEPS'' officers.\r\nEven assuming that by dint of s.235 of PNDCL 330 S.17 of Act 350 disentitles CEPS officers from unionizing, it is clear that the Labour Act, 2003 (Act 651) which is later in time has removed that disability against CEPS. This is the combined effect of ss,1 and 10(d) thereof. They are as follows:\r\n"S.1 This Act applies to all workers and to all employers except the Armed Forces, the Police Service, the Prison Service and the Security and Intelligence Agencies specified under the Security and Intelligence Agencies Act, 1996 (Act 526)\r\nX	x	x	x	x\r\n \r\nS.10 The rights of a worker\r\nThe rights of a worker include the right to\r\nX	x	x	x	x\r\n(d)	form or join a trade union"\r\nIt is clear that s.1 of this Act does not include CEPS by name. Its residue refers to the "Security and Intelligence Agencies specified under the Security and Intelligence Agencies Act, 1996 (Act 526)"\r\nThe preamble to the Security and Intelligence Agencies Act, 1996 (Act 526) is very revealing. It runs thus:\r\n"An Act to make provision in respect of the National Security Council, to provide for the establishment of regional and district security councils, to specify the state agencies responsible for implementing government policies on the security of the Republic and issues relating to internal and external security and to provide for related matters."\r\nSection 42 defines "Intelligence agencies" and also "security services," as follows:\r\nX	x	x	x	x	x\r\n"intelligence agencies" means the internal or external intelligence agencies referred to in sect/on 10"\r\nX	x	x	x	x	x\r\n"security services" means the services connected with national security as determined by the Council"\r\nS.10 provides:\r\n \r\n"National security intelligence agencies\r\n \r\n\r\nThe departments existing immediately before the coming into force of this Act and known as the Bureau of National Investigation and the Research Department respectively are hereby continued in existence under this Act as the internal and external intelligence agencies of the Republlc."(e.$)\r\n \r\nAs was said by Edward Wiredu J.A (as he then was) in Okwan and others v. Amankwa 11(1991) IGLR 123 C.A at 131 "... the general rule of interpretation is that where an enactment has clearly defined particular words in its interpretation section, it is uncalled for and most unnecessary to look elsewhere for the meaning of those words."(e.$) From the above extracts it is plain that Act 526 has not brought CEPS within the fold of the "Security and Intelligence Agencies specified under the Security and Intelligence Agencies Act, 1996 (Act 526)" as envisaged by s.10 of the Labour Act, 2003 (Act 651).\r\nIt is therefore clear that the Labour Act, 2003 (Act 651) does apply to CEPS and its workers.\r\nFurthermore, the defendant has in its statement of case dated 3/10/2007 raised the point that\r\n"Indeed Parliament on 31st October, 1996 during the consideration stage of the bill on "Security and Intelligence Agencies Bill [COL-780] and as part of the Constitution of the Republic of Ghana (Amendment) Bill, clause 7 voted against the inclusion of CEPS as part of the security and intelligence Agencies. See copy of Parliamentary Debates: OFFICIAL REPORT Thursday, 31st October, 1996 attached."(e.$)\r\nIt is revealing that in the said attachment marked "B" headed\r\n"PARLIAMENTARY DEBATES\r\nOFFICIAL REPORT\r\nCONTENTS\r\nTHURSDAY, 31 OCTOBER, 1996", it is stated as part of the "Constitution of the Republic of Ghana (Amendment) Bill as follows:\r\n \r\n"Clause 7: Article 190 (1) (a) of the Constitution sets out quite extensively the area of employment that constitutes the public service of Ghana. The list is not exhaustive and Parliament has power to provide for other areas of employment that should be classified as part of the public services of Ghana. One may note here that the Armed Forces is not class/fled in this fist.\r\nIt is also noteworthy that in the interpretation clause of the Constitution, i.e. article 295 the following definition is stated.—\r\n"public service" includes service in any civil office of Government, the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and service with a public corporation''.\r\nGovernment is of the considered view that services such as the Police Service, Prisons Service, National Fire Service, Customs, Excise and Preventive Service and the Immigration Service are of a para-military nature. Some of these services have a right to bear arms and could be given orders which they have to comply with in the interest of national security. These services are often called upon to perform quasi-military service. Looked at from this angle, these services cannot strictly be looked upon as a part of the public services serving in civil offices of government as defined in article 295.\r\nThe government is of the view that the removal of these para-military services from the public service will enable government give these services treatment similar to those of the Armed Forces for better ensuring the security of the state.\r\nFor these reasons, article 190 (1) (a) of the Constitution is being amended in clause 7 of this Bill to remove the said services from the list of Public Services stated in article 190 (1) (a) of the Constitution."\r\n \r\nIt is trite law that in Ghana under s.19(1) of the Interpretation Act, 1960 (C.A.4) the Memorandum accompanying a Bill is an aid to the interpretation of a statute but not the Debates of Parliament. However like the side notes of a statute, Adade J.S.C. said of Parliamentary Debates in New Patriotic Party v. Attorney¬GeneraI(31''t December Case) 1993-94) 2 GLR 35, S.0 at 68 71 as follows:\r\nThe question of the justiciability of the chapter on the Directive Principles of State Policy was debated at length in the 1979 Constituent Assembly. At its twentieth sitting on Friday, 2 February 1979 the assembly expressly resolved to make the chapter justiciable:\r\n"MR chairman [Justice VCRAC Crabbe]: Now I am going to put the question. And the question is the amendment as proposed by Mr. Zwennes that we should make chapter four non-justiciable be accepted by the house."\r\nThe question was then put. The result of the exercise was: "Question put and negatived."\r\nX	x	x	x	x	x\r\nThe debates confirm the interpretation that in the absence of anything in the Constitution to the contrary, chapter 4 (The Directive Principle of State Policy of the Constitution, 1992 is also justiciable.\r\nX	x	x	x	x	x\r\nThe debates themselves are inadmissible to contradict the language of the Constitution. That is not permissible. As was stated by Coleridge CJ in R V/-/ertfordCollege(1878) 3 QBD 693 at 707, CA:\r\n"We are not, however, concerned with what parliament intended, but simply with what it has said in the statute. The statute is clear, and the parliamentary history of a statute is wisely inadmissible to explain it, if it is not [clear]."\r\n \r\nThe maxim is parliamentum vo/u/sse quod dicit lex (what the law says is the wish of Parliament, ie the language of the statute expresses the intentions of Parliament)."\r\nX	x	x	x	x	x\r\nThus what the debates in the Consultative Assembly said cannot be admitted to contradict what chapter 6 of the Constitution, 1992 itself says or does not say." (e. s)\r\nIt is clear from the foregoing that the Executive through Parliament made an effort in October 1996 to pull CEPS away from ordinary governmental civilian circles but failed. Certainly they knew the facts that CEPS was represented on the National Security Council as well as on the Regional and District Security Councils. However some opportunity presented itself again with the passage of the Labour Act, 2003 (Act 651) to do so if they were still convinced that the security status of CEPS warranted it. It is clear that they did so in terms of the Armed Forces, the Police Service, the Prison Service and the Security and Intelligence Agencies aforesaid but plainly excluded CEPS. We may in these circumstances safely apply the maxim of statutory construction that expresslo un/us est exc/us/o alter/us.\r\nThe Position of CEPS as a unionizing body under the Constitution\r\nArticle 24(3) of the Constitution provides:\r\n"Every worker has a right to form or join a trade u/i/on of his choice for\r\nthe promotion and protection of his economic and social interests."\r\nThis is reinforced by articles 36(11) and 37(2) (a) of the Directive Principles of State Policy. This right is however qualified by article 24(4) which provides as follows:\r\n"Restrictions shall not be placed on the exercise of the right conferred by\r\nclause (3) of this article except restrictions prescribed by law and reasonably necessary in the interest of national security or public order or\r\nfor the protection of the rights and freedoms of others."\r\n8\r\n \r\n\r\n-	(a)	The need for a balancing act:\r\nIn construing these provisions it is necessary to bear in mind the powerful words of Akufo-Addo Ci delivering the judgment of the Court of Appeal in State v. General Officer Commanding the Ghana Army, Ex parte Barimah (1967) GLR 192 C.A. (full bench) at 200 - 201:\r\n"The court in the execution of its duty to protect the citizen''s liberty always proceeds on the well-known principle, at any rate as acknowledged in democratic countries, of the primary necessity in the administration of the law to establish a healthy balance between the need to protect the community against crime and the need to protect individual citizens against abuse of executive power. £uject to the limits imposed on this tw(qIprQtecticui_by the establishment and_maintenance of the requisite balance, the scales are to be held evenly, at any rate in normal times, between the community, that is the State and the individual and there can be no question of "leaning over backward" so to speak, to favour the State at the expense of the citizen or to favour the citizen at the expense of the community. And the courts'' vigilance in protecting the citizen against any encroachments on his liberty by the executive becomes meaningful and real only when pursued on the basis of this principle.\r\nNaturally any extension of the powers of the executive that tends to impinge upon the liberty of the citizen is viewed with the gravest suspicion, for such extended powers are in their operation fraught with serious dangers. "(e. s)\r\nAll this means that the legitimacy of a restriction on human rights depends on a balancing act, see Mensima v. Attorney-General, supra. Kpegah ]SC''s opinion in support of the majority decision in Republic v. Tommy J/iompson Books Ltd, Quarcoo & Coomson [1996-97] SCGLR 804 is instructive. The court upheld section 185 of the Criminal Code as a law reasonably required as a limitation on freedom of speech. In the words of Kpegah JSC at 846:\r\n \r\n\r\n \r\n"The denial of the balancing doctrine will place the individual outside society and make an island of him... there is the need for a meeting point between individual and societal rights for harmony. For, while an unbridled insistence on, and enforcement of personal rights have the great potent/al of leading to anarchy, so also has a similar insistence and enforcement of societal rights the potential of undermining the democratic values of a society"(e.$)\r\nAs was forcefully put by McLachlin J of the Canadian Supreme Court in the Canadian case of R v. Zundel JO CRR 2d 198 at 209: "Before we put a person beyond the pale of the Constitution, before we deny a person the protection which the most fundamental law of this land on its face accords to the person, we should, in my belief, be entirely certain that there can be no justification for offering protection"( e s)\r\nConsequently, what the Executive and Parliament prescribe even in terms of economic and security matters, is not uncritically endorsed by the courts when convinced that such prescription is contrary to the constitution. Hence the question whether CEPS has a right to unionise ultimately depends upon the proper construction of article 24(3) and (4) of the Constitution and not ordinary legislation.\r\n(b)	The discharge of the balancing act\r\nNo evidence was led in this case. But the central theme of the plaintiff''s worry about unionizing CEPS is what could happen if CEPS were to back a strike or other industrial action with their weapons. Some restrictions on CEPS'' rights to unionise are therefore called for. However is the plaintiff''s claim for a total exclusion of CEPS from unionising justifiable? When a similar problem with regard to public order arose in the celebrated case of New Patriotic Party v. Inspector-General of Police, (1993-94)2 GLR 459 S.C, this court held, as\r\n \r\nrecounted by Dr. Bimpong —Buta in his invaluable book "The Role of the Supreme Court In the Development of Constitutional Law In Ghana" at p. 409:\r\n"The Supreme Court unanimously granted the plaintiffs a declaration that certain sections of the Public Order Decree, 1972 ''NRcD 68) were inconsistent with and in contravention of article 21(1) (d) of the Constitution, 1992 and were to the extent of such inconsistency null and void. The nullified sections included: section 7 which gave the Minister of Interior the power to prohibit the holding of public meetings or processions for a period in a specified area; section 8 which provided that the holding of all public processions and meetings and the public celebration of any traditional custom should be subject to the obtaining of a prior police permit; section 12(a) which gave a police officer an unfettered power to stop and cause to be dispersed any meeting or processions in any public place in contravention of sections 7 and 8; and section 13(a) which made it an offence to hold such procession, meetings and public celebration without permission." (e.$)\r\nHe continues at pp.411-412 thus:\r\n"In assessing this positive development in the law of demonstrations, it must be borne in mind that Char/es Hayfron-Benjamin JSC emphasized the exceptions to the right to process and demonstrate. It must therefore be stressed that (contrary to general belief) the decision did not render the police entirely powerless in the maintenance of law and order in the country. Charles Hayfron-Benjamin JSC clearly indicated what he referred to as "inherent limitation" and restrictions on the enjoyment of the right as conferred by article 21(1) (0). First, the operation of the right to demonstrate without permission did not affect the continued operation of section 12(c) of the Public Order Decree, 1972 which dealt with the powers of the police and other authorized public officers to stop and disperse unlawful assemblies. In the words of the judge:\r\n \r\n"....we could not grant a declaration in favour of the plaintiff affecting section 12 (c) of NRCD 68. It would have been irresponsible for a court to order in the light of section 12 (c) ..... that the police should remain helpless on-lookers in a situation in which a "breach of the peace has taken or is taking place or is considered by the officer as likely to take place."\r\nSecond, there were inherent limitations to the enjoyment of the right of assembly, process/on or demonstration, namely, the obligation to observe the law - particularly the observation of the public peace under the Criminal Code.......\r\nIt should be observed that, subsequent to the Supreme Court dec/sian in New Patriotic Party v. Inspector-General of Police, the President signed into law, the Public Order Act, 1994 (Act 491), which repealed the Public Order Decree, 1972 (NRCD 68) and the Public Order (Amendment Law, 1983 (PNDCL 48). Sections 1- 3 of Act 491 govern the holding of what is referred to as "special events"...\r\nSection 1 of Act 491 of 1994 requires any person who desires to hold a special event to notify in writing the police of his intention to do so not less than five days before the date of the special event. The notification should give details of the place, hour, nature, time, the proposed route and destination, if any, and the proposed and the proposed time of the special event. Under section 1(4) where a police officer, notified of a special event, has reasonable grounds to believe that the holding of a proposed special event might "lead to violence or endanger public defence, public order, public safety, public health or the running of essential services or violate the rights and freedoms of other persons" he may request the organizers of the special event to postpone the event to any other date or to relocate It Under section 1(6), where the organizers of the special event refuse to comply with the request, the police officer may apply to any judge or a chairman of a tribunal for an order to prohibit the holding of the special event on the proposed date or at the proposed\r\n \r\nlocation. The judge or tribunal may issue the judicial order - prohibiting the holding of the special event on the grounds specified in section 1(4).\r\nIt is suggested that the provisions in section 1-3 of the Public Order Act, 1994 (Act 491) are constitutional as being in line with article 21(4)(a) as endorsed by the Supreme Court in New Patriotic Party v. Inspector- General of Police. "(e. s)\r\nAs regards similar decisions with respect to economic activity, see Merisima v Attorney-General supra , and New Patriotic Party v Attorney-General (Ciba case) (1996-97) SC GLR 729.\r\nFrom the position of CEPS under ordinary legislation as hereinbefore set out, it is clear that the Executive and the Legislature have so far found it safe to allow CEPS to unionise. I do not think that this court knows more about the security requirements of this country than the Executive and the Legislature, though as I have said supra, the courts do not follow them uncritically on such matters. For as was aptly put by the Sri Lankan Supreme Court in Joseph Perera v. Attorney¬General[1992] I SRLR 199: .......\r\nBut even though the Government''s purpose be legitimate and substantial that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved."\r\nThe security concerns in this case must not be blown out of proportions. They would seem to bother more on disruption of public order than touching on national upheavals. This difference should affect the character and extent of the restrictions called for under article 24(4) of the constitution. As was held by the Indian Supreme Court in the case of the Superintendent Central Prisons Fatehgarh v. Ram Mancliur Lohia (1960) 2 CSR 821 at 839:\r\n"Public Order'' is synonymous with public safety and tranquility; it is the absence of disorder involving breaches of local significance in contradiction to national upheavals, such as revolution, civil strife, war,\r\n \r\n\r\n \r\naffecting the security of the state." (e.$) See also Ekwam v. Plan/rn (No. 2) (1996-97) SC GLR 120.\r\nIn determining this case, it is necessary to bear in mind the powerful words of Lord Atkin quoted by one of his Ghanaian counterparts, Taylor J, in Republic v. Greater Accra Regional Commissioner; Ex Parte Naawu 111(1976) 2 GLR 25 at 41 as follows:\r\n"I recall the oft-quoted warning of Lord Atkin in his powerful and highly respected dissenting speech in Liversidge v. Anderson (supra) at p. 244, H.L. where he said:\r\nI view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive" (e.$)\r\nI also bear in mind the words of Lord Simon in his dissenting speech in D.P.P. v. Lynch (1975) A.0 653 at 695 which were subsequently followed in the unanimous judgment of the House of Lords in Regina v. I-/owe (1987) A.C. 417 thus:\r\n"I am all for recognizing frankly that judges do make law. And I am all for judges exercising this responsibility boldly at the proper time and place-- that is, where they can feel confident of having in mind, and correctly weighed, all the implications of their decision, and where matters of soc/al policy are not involved which the collective wisdom of Parliament is better suited to resolve (see Launchbury v. Morgans [1973] A.C. 127, 136F- 137A, 137G)."\r\nIn the circumstances I would hold, as this court held in New Patriotic Party v. Attorney-General, supra, that the restrictions prescribed by the Criminal Offences Act, 1960 (Act 29) designed for the maintenance of public order and security - see Part Two, chapter 1 (Justifiable Force and Harm), Part Four (Offences against Public Order, Health and Morality, Offences against the Peace) and the\r\n \r\nCriminal and other Offences (Procedure) Act, 1960, Parts 1 and 2, etc, and the Public Order Act, 1994 (Act 491) do apply, under article 24(4) of the Constitution "as restrictions prescribed by law and reasonably necessary in the interest of national security or public order or for the protection of the rights and freedoms of others." to CEPS'' workers'' right under article 24(3) and ss.1 and 10(d) of the Labour Act 2003 (Act 651) to unionise, with its incidentals.\r\nSince these restrictions are adequate ( I do not say that they are exhaustive), for the purposes and intendment of article 24(4) with regard to the security implications of unionizing CEPS, it will exceed the bounds of necessity to exclude CEPS from unionizing. Such excess would, in turn be a breach of the ambit of the restrictions required by article 24(4) and therefore rather unconstitutional. This accords with the ratio decidendi in New Patriotic Party v. Inspector General of Police, Mensima v. Attorney-General and New Patriotic Party v. Attorney- General (Ciba Case), supra. There is in this case no necessity so compelling as to warrant the virtual negation or recall of the very right conferred by the constitution as this court was constrained to do in Republic v. Independent Media Corporation of Ghana (Radio Eye Case) (1996-97) SC GLR 258.\r\nIf the Executive and Legislature deem it meet to prescribe further restrictions, e.g. prohibiting CEPS'' workers from embarking on a strike or otherwise, it is left to them, After all, as was noted by Charles Hayfron-Benjamin JSC in New Patriotic Party v. Inspector-General of Police, supra, at p.79 "...some restrictions as are provided for by article 21(4) of the Constitution, 1992 may be necessary from time to time and upon proper occasion." It is easier for judges to pronounce on the constitutional legality of the measures of the executive and legislature when taken than otherwise.\r\n \r\nCONCLUSION\r\n \r\nFor all the foregoing reasons, I would dismiss the plaintiff''s action subject to the restrictions on CEPS'' workers'' right to unionise as I have herein before set out.\r\nW. A. ATUGUBA\r\n(JUSTICE OF THE SUPREME COURT)\r\nSOPHIA ADINYIRA (MRS):\r\nI have the privilege of reading beforehand the very comprehensive opinions of my learned brothers Atuguba and Dotse. I find myself agreeing with the reasoning and conclusion reached by my brother Atuguba that the action be dismissed. I however wish to add a few words of my own.\r\nThe Labour Act, 2003, Act 651 by its preamble is an Act to amend and regulate the laws relating to labour, employers, trade unions and industrial relations; to establish a National Labour Commission and to provide for matters related to these" It is provided by section 1 of the said Act that:\r\n"This Act applies to all workers and to all employees except the Armed Forces, the Police Service, the Prisons Service and the Security and I telligence Agencies spçLLd_ijjid the Security and Intelligence Agencies Act, 1996 (Act) 526. ''Ernphasis mine)\r\nThis Court is being invited to interpret "Security and intelligence agencies" specified under Act 526 to include the Customs, Excise and Preventive Service, (CEPS). To accede to this request would have the effect of depriving the senior and junior staff of the Customs, Excise and Preventive Service, (CEPS) of their fundamental freedom of association and economic right to join or form a trade union of their choice.\r\nI am not persuaded by the views urged on this Court that by virtue of the fact that the Commissioner of CEPS is a member of the National Security Council under Act 526 supra it follows automatically that CEPS is a security service under the said Act, and hereby its workers are prohibited from joining a trade union of their choice.\r\n \r\nI Though the phrase "security services" has been defined under section 42 of Act 526 as: "security services means the services connected with national security as determined by council," (emphasis mine) the only security and intelligence agencies specified in the said Act 526 are the Bureau of National Investigation and the Research Department respectively.\r\nUnder our existing laws CEPS is considered as a revenue agency under the Revenue Agencies (Governing) Board Act, 1996, Act 558. The other agencies under this board are the Internal Revenue Service (I.R.S.), and the Value Added Tax Service (VATS). The primary function of CEPS is to safeguard and protect the economic security of the nation by the collection of duties, taxes, revenue and penalties payable under the Customs, Excise and Preventive ((Management) Act, PNDCL 330 and also to carry out border patrols on our frontiers and coastlines for the purpose of preventing smuggling and any other custom and excise offences. This role is as important and sensitive as the role of political security undertaken by the armed forces and the police service.\r\nI agree with my brother Atuguba JSC that it is not for this Court to assume the role of the legislature or the executive to convert CEPS into a security and intelligence agency in the absence of any express legislation. Such a role by the Court would be undemocratic as it may result in stifling CEPS workers from exercising their economic right of joining or forming an association of their own choice. This would not only be in contravention of articles 21(1) (e) and 24 (3) of the Constitution but also of article 2 of the International Labour Organisation (ILO) Convention C87 Freedom of Association and Protection of the Right to Organ/se Convention, 1948, to which this country subscribe as a member of the ILO. Article 2 of Convention C87 provides that:\r\n"Workers without distinction whatsoever shall have the right to establish and, subject only to the rules of the organ/sat/on concerned, to join organ/sat/on of their own choosing without previous author/sat/on.\r\nI believe that any restrictions on the fundamental freedoms aiid human rights of a citizen or any person ought to be by express legislation. In the absence of any express statutory restrictions, it is rather the duty of the Court to enforce these\r\n \r\n\r\nfundamental freedoms and rights and not to whittle them down. I accordingly endorse the views expressed by the learned Justice Bamford Addo JSC in the case of\r\nNew Patriotic Party vrs. Inspector General of Police [1993-94] 2 GLR 459 at 482 that:\r\n"This Court is therefore not permitted to give an interpretation which seeks to tamper in any way with the fundamental human rights but rather to see that they are respected and enforced."\r\nInternational norms and conventions recognise the need to regulate members of the armed forces and the police in the expression of their economic rights and freedom of association, due to the sensitive nature of their work and the implications for national security. Article 9(1) of ILO Convention CS/therefore provides:\r\nArticle 9 (1) "The extent to which the guarantees provided for in this Convent/on shall apply to the armed forces and the police shall be determined by national laws or regulations."\r\nIn consonance with the above convention, members of the Police and Prison Services are specifically restricted from joining or forming trade unions under the statutes establishing them under our domestic laws. See section 17 (f) of the Police Service\r\nAct, 1970, Act 350 and section 16 (f) of the Prison Service Act, 1972, NRCD 46. Even\r\nthen the members of these two services are permitted to join associations authorised\r\nby the minister with similar objectives. Section 17(f) of the Police Service Act, 1970, Act350 is reproduced for illustration. It states:\r\ns.17 ''It is misconduct for a police officer\r\n(0 to become or be a member of a trade union or of any other association other than an association authorised by the Minister having s/rn//ar objects."\r\nHowever, there is no such express restriction on the right of members of CEPS to\r\njoin or form a trade union in the Customs, Excise and Preventive Service (4lanagement) Act, 1993 PNDCL 330.\r\nIt is my considered opinion that section 1 of the Labour Act is clear and unambiguous and it is merely re-stating the existing laws by restricting the application of the Labour laws to the Armed Forces, Police and Prison Services respectively. The section does not call for any purposive and strained meaning. In\r\nthe unreported case of The Republic v. The High Court, Accra, Ex parte Paa Kwesi\r\n \r\nYar//ey and 2 Ors. S. C. Suit no. J71212007, dated.. her ladyship, Chief Justice Wood after reviewing the purposive rule of construction said:\r\nIt does appear to me that where the purposive and literalist approach, advocated by Benti/on, which in my view is synonymous with the subjective purpose theory of Justice Barrack, advances the legislative intent and does not lead to injustice, then it/s not proper to apply the purposive strained meaning or objective purposive rule"\r\nThis Court is under a duty to interpret the Constitution and statutes to conform to international legal norms and also to promote and encourage respect for human rights and freedom. It is therefore my considered view that section 1 of the Labour Act does not cover CEPS.\r\nI accordingly dismiss the action.\r\nS. 0. A. ADNIYIRA\r\n(JUSTICE OF THE SUPREME COURT)\r\nJONES DOTSE J.S.C)\r\nThe Plaintiffs'' claim against the Defendants'' the following reliefs as per their writ filed on 27th of August, 2007;\r\n1. A declaration that on a true and proper interpretation of the Labour Act 2003 (Act 651) particularly S.I, the application or the purported application of the said Act to cover the Customs, Excise and Preventive\r\nService (CEPS) as established by law is in-consistent with, or in contravention of Article 24(4) of the Constitution and to that extent the court ought to declare that restrictions prescribed by law and reasonably necessary in the interest of national security or public order require that Customs, Excise and Preventive Service be excluded from the application of the Labour Act 2003 (Act 651)\r\n \r\n2. That by virtue of the combined effect of Article 1(2) and Article 11(6) of the Constitution the Court declares a Collective Bargaining Certificate dated 20th March 1987 issued to cover the Customs, Excise and Preventive Service void and of no effect.\r\nOriginally, the plaintiffs'' writ was against the National Labour Commission the Defendants herein, but as the rules of procedure in the Supreme Court require i.e. Supreme Court Rules, 1996 C.I. 16 rule 45 (3) the Attorney-General was made a party for its opinions in the matter to be made known. Thereafter, the Interested party, the Public Services Workers Union of TUC was also made an interested Party, pursuant to rule 45(4) of the Supreme Court Rules, 1996 C.I. 16 already referred to supra.\r\nThe plaintiffs'' are the body that has been mandated under the Customs, Excise and Preventive Service (Management) Act, 1993 PNDC Law 330 to collect and account for the duties, taxes, revenue and penalties payable under this Act for and on behalf of the state.\r\nThe Head of the Plaintiffs'' organization is the Commissioner who shall be appointed by the President in accordance with article 195 of the Constitution. There shall also be Deputy Commissioners to head various departments of the Service as may be determined by the Sector Minister acting on the recommendations of the Board which shall include the following departments, Finance and Administration, Operations, Research, Monitoring, Planning and Preventive.\r\nSection 235 of PNCDL330 provides as follows:-\r\nFor the administration of this Act, all officers shall have the same powers, authorities and privileges as are given by law to Police officers".\r\nThe Law establishing the plaintiffs'' also lists some of the powers granted them as follows:-\r\n1.	Power to stop ships, aircraft and vehicle - section 245 of PNDCL 330.\r\n \r\n\r\n2.	power to board ship or aircraft - section 256.\r\n3.	Power to search persons and premises.\r\n4.	Power to patrol freely any part of Ghana etc etc.\r\nIt can therefore be seen that the powers granted to the plaintiffs'' under PNDCL 330 are really very extensive and penal in character.\r\nOn the other hand, the original defendants herein, the National Labour Commission had been established by the Labour Act, 2003 (Act 651) and Sections 135 - 152 thereof deal with the composition, functions and powers of the Commission. Of particular interest to this case are Section 139 (1) (a)-(d) and (2) of Act 651. Section 139 (1) (a) of (Act 651) provides as follows:-\r\n"The commission shall exercise the following powers:\r\na.	receive complaints from workers, trade unions, and employers, or employers organizations\r\ni.	on industrial disagreement and\r\nii.	allegations of infringement of any requirements of this Act and the Regulations.\r\nSection 139(2) provides thus\r\n"without prejudice to section (1) the commission shall in settling an industrial dispute have the powers of the High Court in respect of\r\na.	enforcing the attendance of witnesses and examining them\r\non oath, affirmation or otherwise\r\ncompelling the production of documents and\r\nthe issue of a commission or request to examine witnesses abroad.\r\n3.	The commission shall in respect of its proceedings enjoy the same privileges and immunities pertaining to proceedings in the High Court".\r\n \r\nWhat then are the brief facts of this case?\r\nBRIEF FACTS OF THE CASE\r\nDue to protracted and inconclusive legal battles between the PSWU and CEPS over an earlier directive in or about 1988 or 1989 which declared that the local union of PSWU had been proscribed at CEPS, the senior staff association of CEPS formally applied to the Labour Department to be allowed to unionize under section 1 of the Labour Act, 2003 (Act 651).\r\nThe Attorney General''s Department upon being requested to advise on whether CEPS staff association can form or join a trade union stated unequivocally as per a letter dated 25t"August, 2005 as follows:-\r\n"Customs, Excise and Preventive Service cannot form and or join trade union" citing section 234 of PNDCL 330 as authority and applying the "ejusdem generis "rule of legal interpretation.\r\nAfter the receipt of the advice from the Attorney-General''s Department, the Senior and Junior Staff Association of CEPS lodged a joint complaint with the National Labour Commission against the management of CEPS for unfair labour practices.\r\nThe management of CEPS raised the preliminary issue that the Labour Commission had no jurisdiction over CEPS. However, after reception of arguments, the Labour Commission held on 23rd May, 2006 that it had jurisdiction in the matter and concluded the matter thus:-\r\n.In the light of the foregoing, the commissions decision is that CEPS is not one of the security institutions listed under section 1 of the Labour Act 2003, Act 651 and therefore the commission\r\n \r\n\r\n \r\nhas jurisdiction to determine the complaint of unfair labour practices against the management of CEPS from its staff groups"\r\nIt is significant to note that the rationale for the Labour Commission''s decision referred to supra had been prefaced on the fact that CEPS is not mentioned anywhere in the Security and Intelligence Agency Act (1996) Act 526. With this background, the Labour Commission concluded that it is only the Bureau of National Investigations and the Research Department which had been redesignated as Internal and External Intelligence Agencies together with the Armed Forces, the Police Service and the Prisons Service that qualify to be referred to as security agencies and therefore fall outside the jurisdiction of the Labour Act 2003 (Act 651) section 1, thereof.\r\nAfter the decision of the National Labour Commission on 23rd May, 2006, even though the Management of CEPS did not accept the decision, they did not take any steps to set it aside or appeal.\r\nSince the adjudicatory process of the National Labour Commission is equated to that of a High Court, reference section 139 9(2) (a) (b) (c) and (3) of Act 651. It follows that any decision to appeal against it to the Court of Appeal must be done within three months of the original decision and that is 23d August, 2006. From the records available to me, it is clear the plaintiffs did not avail themselves of the appeal process. Finding themselves hopelessly out of time to file any appeal against the Labour Commission decision and faced with a further legal challenge by the Labour Commission seeking to compel the management of CEPS to negotiate with the PSWU pursuant to a motion filed in the High Court, the plaintiffs filed the instant writ.\r\nLEGAL SUBMISSIONS PLAINTIFFS''\r\nThe plaintiffs contention is that the interpretation by the Labour Commission of Section 1 of the Labour Act, 2003, (Act 651) to exclude CEPS from the list of\r\n \r\nsecurity agencies mentioned in that law is inconsistent with or in contravention of Article 24(4) of the Constitution 1992 and that the restrictions stipulated by law can reasonably be inferred in the interest of national security or public order to include CEPS such that they the plaintiffs be exempted from the application of the Labour Act 2003, (Act 651).\r\nThe plaintiffs further contend that grant of the Collective Bargaining Certificate is in breach of Section 3(6) of Act 299 the Industrial relations Act which was the operative law at the material time.\r\nAccordingly, the plaintiffs'' argue that the said Certificate is invalid and void for failure to have it published in the Gazette as is mandatorily required to be done in Act 299 just as it has been re-stated in Act 651.\r\nIt is provided in Article 1(2), 2(1) & (2) of the Constitution 1992 as follows:- Article 1(2)\r\n''This Constitution shall be the Supreme Law of Ghana and any other law found to be inconsistent with any provision of this constitution shall, to the extent of the inconsistency, be void." Emphasis is mine\r\nThen article 2(1) (a) and (b) provides: "A person who alleges that\r\na.	an enactment or anything contained in or done under the authority of that or any other enactment, or\r\nb.	any act or omission of any person\r\nIs inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect"\r\n \r\nThe plaintiffs therefore contend that the Constitution 1992 is Supreme i.e principle of the Supremacy of the Constitution.\r\nThe plaintiffs further contend that any law, or act or omission by anybody or institution which is inconsistent with or in contravention with the Constitution 1992 must be declared void.\r\nThere is no doubt in my mind that articles 1(2), 2 (1) (a) and (b) of the Constitution 1992 stipulates the Supreme Court as the defender of the Constitution 1992. To that extent, the instant writ by the plaintiffs should be considered as an exercise of their right in the Constitutional provisions in the articles of the Constitution 1992 referred to supra.\r\nThe CRUX of the plaintiffs'' submission is that, the interpretation by the Defendants that section 1 of the Labour Act does not permit the plaintiff to claim the status of being a Security or an Intelligence Agency is inconsistent with the Constitution. They further contend that such an interpretation is in contravention of Article 24(4) of the Constitution 1992.\r\nIt is note worthy to refer to the provisions of section 1 of the Labour Act, (Act 651) which provides as follows:-\r\n"This Act applies to all workers and to all employers except the Armed Forces, the Police Service, the Prison Service and the Security and Intelligence Agencies specified under the Security and Intelligence Agencies Act, 1996 (Act 651)''\r\nFrom the above provision, it is clear that the intendment of the scope of application of the Labour Act was clearly meant to cover and deal wit the Security and Intelligence Agencies. Put in another way, the Labour Act 1996 is clearly not referable and applicable to all staff of the Armed Forces of Ghana, the entire Police Service in Ghana as well as the Prison Service in additional to all other Security and Intelligence Agencies covered in Act 526.\r\n \r\n\r\n \r\nIt is perhaps pertinent at this stage to refer to constitutional provisions that guarantee and restrict the right to join or form a trade union. It is only when these rights are determined that it will be possible to conclude whether the decision of the defendants that the plaintiffs'' are a non security organization, and therefore cognizable under the Labour Act is right or wrong..\r\nArticles 24(3) and (4) of the Constitution 1992 which deal with economic rights and restrictions placed therein state as follows:-\r\n"24(3) "Every worker has a right to form or join a trade union of his choice for the promotion and protection of his economic and social interests".\r\nThis means that every worker in Ghana has an unfettered right of his choice to affiliate or join any trade union in pursuit of his or her economic or social rights.\r\nHowever, article 24(4) imposes some restrictions on the exercise of those rights in the following words.\r\n"Restrictions shall not be placed on the exercise of the right conferred by clause\r\n(3) of this article except restrictions prescribed by law and reasonably necessary in the interest of national security or public order or for the protection of the rights and freedoms of others."\r\nWhat this means is that, the provisions admit of the guarantee of the workers right to form and or join any trade union of his choice in pursuit of his or her economic or social rights. These are however subject to the restrictions imposed by law eg under section 1 of the Labour Act or under those conditions as are reasonably necessary in the interest of national security or public order to protect the rights and freedoms of others.\r\nIt therefore means that the list of those class of workers or of employers capable of being restricted in their quest to form or join trade union is flexible and capable of being expanded as and when the exigencies of national security or public order concerns demand.\r\n \r\nThis being the case, what then is the peculiar position of the plaintiff vis-à-vis the constitutional provisions referred to supra.\r\nCASE FOR DEFENDANTS\r\nThe defendants have beautifully set out the facts which are not different from the facts that have already been narrated supra.\r\nThey however contend that since there is no ambiguity, conflict or doubt in the meaning of the provisions of the statute referred to, no issue of interpretation arises thereby.\r\nAfter referring to the cases listed hereunder, the defendants invited this Court to dismiss the plaintiffs'' case and refer same back to the High Court where it properly belongs.\r\nThe cases are:\r\na.	EDUSEI vs A.G [1996-97] SCGLR 1\r\nb.	YIADOM I vs AMANIANPONG [1981] GLR 3\r\nC.	TAIT vs GHANA AIRWAYS CORPORATION [1970] G&G 527\r\nd.	GBEDEMAH vs AWOONOR WILLIAMS [1970] 2GLR 438\r\nThe defendants in a supplementary statement of case further argued that the Supreme Court has no jurisdiction in the matter since to attempt to do so would amount to this court legislating and not interpreting or enforcing as the Constitution 1992 requires of the Court.\r\nPOSITION OF THE ATTORNEY GENERAL\r\nThe Attorney General in his opinion stated clearly that the case before this court does not fall into any of the parameters set out by an earlier Supreme Court decision in the case of ADUMOAH II vs ADU TWUM II [2000]SCGLR 165.\r\n \r\nThe Attorney General therefore concluded that the instant suit is therefore not one in which the original jurisdiction vested in the Supreme Court under Articles 2(1) and 130(1) of the Constitution arises.\r\nCASE FOR INTERESTED PARTY\r\nAfter associating themselves with the submission of the Defendants, the Interested Party also concluded by inviting the Supreme Court to decline jurisdiction arguing that there is no real and genuine issue of interpretation to enable this courts exclusive original jurisdiction to be invoked.\r\nJURISDICTION OF SUPREME COURT\r\nDoes this Court, have jurisdiction in the matter?\r\nLooking at the memorandum of issues that has been filed, since the issue of jurisdiction is basic and goes to the root of the courts powers to determine the matter, it will be first be taken as a preliminary issue. Depending upon the outcome of that determination, all the other issues would be dealt with under only two headings to be formulated later.\r\nIn the case of GbedemahVs Awoonor Williams [1970]2 G&G 438 at 439 the Court of Appeal, sitting as the Supreme Court stated the limits within which the original and exclusive jurisdiction of the Supreme Court can be invoked and exercised thus:\r\n"It seems to us that for a plaintiff to be able to invoke the original and exclusive jurisdiction of the Supreme Court his writ of summons or statement of claim or both must prima facie raise an issue relating to\r\n(1)	the enforcement of a provision of the Constitution, or\r\n(2)	the interpretation of a provision of the Constitution, or\r\n(3)	a question whether an enactment was made ultra vfres Parliament, or any other authority or person by law or under the Constitution"\r\n \r\nThe Supreme Court rejected a similar invitation made to it to intervene in the\r\ncase of TAIT vrs Ghana Airways Corporation already referred to supra where it held that the plaintiffs case was essentially one of wrongful dismissal and rejected the contention that it was a case of Constitutional Interpretation.\r\nThis is how the Supreme Court summed it up all in the TAIl case:\r\n"In our view, unless the words of an article of the Constitution are imprecise and ambiguous, an issue of inteipretation does not arise. Where the language of the Constitution is not only plain but admits of but one meaning, the task of interpretation does not arise. In our opinion, the task of interpretation does not arise where.. it is manifestly clear that the dispute is not about the true meaning of ambiguous or vague words in the Constitution..."\r\nThe constitutional provisions which needs to be looked at critically in this case before a determination can be made in respect of relief (one) 1 of the Plaintiffs writ are articles 24(3) and 24(4). The words in article 24(3) admit of no controversy and are clear, unambiguous and straight to the point. Not so, however with article 24(4).\r\nThere are two indicators that have been stated therein, these are\r\n(i)	Restrictions imposed by law, and\r\n(ii)	Restrictions necessary in the interest of national security and public order.\r\nWhich body or institution is best suited under the circumstances to interprete the said provisions by making them applicable.\r\nI am also aware of the Practice Direction as contained in Judicial Circular No. 146112 dated 15 June 1981 and reported in [1981] GLR1 which\r\n \r\nadmonishes the assumption of jurisdiction by the Supreme Court as a Court of first instance in such cases. This is what is contained therein:\r\n"It is also to be noted that where a cause or matter can be determined by a Superior Court, other than the Supreme Court, the jurisdiction of the lower Court shall first be invoked. The Supreme Court may dismiss any such cause or matter, with punitive costs to be paid personally by Counsel or by the party responsible for bringing such cause or matter to the Supreme Court in the first instance".\r\nThe above statement in the Practice Direction was cited with approval by Kpegah ]SC as he then was in his dictum in the EDUSEI vs A.G case already referred to. As a matter of fact, the majority decision in the EDUSEI case held that\r\n"assuming the Supreme Court had concurrent jurisdiction with the High Court in enforcing the fundamental human rights and freedoms of the individual, the court was precluded from assuming jurisdiction in the matter as a court of first instance because of the 1981 Practice Direction" and by the said decision, declined jurisdiction in the matter.\r\nIt is my considered opinion that the facts in the EDUSEI case are significantly different from the facts in the instant case.\r\nFACTS OF EDUSEI CASE\r\nThe Plaintiff (EDUSEI) a Ghanaian citizen was before the corning into force of the Constitution 1992 allowed to leave Ghana with other Ghanaian citizens to the United States on allegations that they engaged in espionage activities on behalf of the U.S. His Ghanaian Passport was seized from him shortly before he left Ghana. After the Constitution 1992 came into force, the plaintiff wrote a letter to the Minister of Foreign Affairs and requested that his old Passport be returned to him to enable him apply for a new one. There was stoic silence to this\r\n \r\n\r\n \r\nrequest. The plaintiff then brought an action in the Supreme Court for a declaration that:-\r\n(I)	"Sections 5(1) and 12(3) of the Passports and Travel Certificates Decree, 1967 (NLCD 155) which sought to give the Minister for\r\nForeign Affairs wide discretionary	powers in the grant, refusal,\r\nrevocation, cancellation or impounding of passports and travel certificates, section 5(2) (a) and (b) (ii) and (iii) which provided that the Minister should not issue a Passport to specified categories of persons and also section 17(e) of the Decree were inconsistent with and in contravention of the letter and spirit of the Constitution, especially articles 17(1) —(3) and 21(1) (g) and thus void and unenforceable and\r\n(ii) That as a citizen of Ghana by birth, he had the Constitutional right to enter and leave Ghana and a fortiori to a passport to enable him exercise and enjoy that right".\r\nIn their statement of case, the defendant the Attorney-General among other reasons argued that, since the plaintiff was seeking an enforcement of his right of freedom of movement a fundamental human right, the court had no jurisdiction to determine the claim because it was the High Court, and not the Supreme Court that had exclusive jurisdiction to entertain the suit.\r\nThe Supreme Court by a majority decision dismissed the plaintiffs action and held that\r\n"the effect of articles 33(1) and 130(1) and 140(2) of the Constitution 1992 was to vest in the High Court, as a court of first instance, an exclusive jurisdiction in the enforcement of the fundamental human rights and freedoms of the individual. The Supreme Court had only appellate jurisdiction in such matters. It has no concurrent jurisdiction with the High Court in the enforcement of fundamental human rights contained in Chapter five of the Constitution".\r\n \r\nIn the Edusei case no matter how ingeniously the reliefs were couched, it is to be generally seen as a breach of the fundamental human rights of the plaintiff and therefore the right to seek enforcement of those rights.\r\nIn the instant case, the plaintiffs contend that an interpretation of a statutory provision in the Labour Act (Act 651), enacted after the Constitution 1992 came into force is inconsistent with or contravenes a Constitutional provision in article\r\n24(4).\r\nIs such a claim legitimate?\r\nTaking a cue from the decision of the Supreme Court in the case of ADUMOA II vs ADU TWUM II [2000]SCGLR 165 Where the court in answering the question, stated thus:\r\n"When then does a real or genuine issue of interpretation or enforcement of a provision of the Constitution arise for determination by the Supreme Court, either in the exercise of its original jurisdiction under article 130(1)\r\n(a) or in its reference jurisdiction under article 130(2) of the Constitution 1992" The Supreme Court itself answered the question b  referring to the decision of the TAIT case already referred to.\r\nIn my mind, the words in article 24(4) of the Constitution 1992 are ambiguous and capable of different meanings depending upon the circumstances of each case. This is because, whilst the article in question is dependent upon the general provisions of chapter five of the Constitution which deals with fundamental human rights, article 24 deals with economic and social rights.\r\nSecondly, whilst article 24(4) re-emphasizes the grant and enjoyment of the rights enshrined in article 24(1) (2) and (3) in particular, it also in another breadth takes away some of these rights. The scenario is that, whilst\r\nGhanaian workers have the right to work, to foirn and join trade unions of their choice, their rights to enjoy those freedoms can be curtailed by (1) operation oflaw, or\r\n \r\n\r\n \r\n(2) in the interest of national security and public order.\r\nIt does appear that by reference to operation of law would he easy to determine and might not admit of any ambiguity whatsoever.\r\nHowever, if one considers the contents of section 1 of the Labour Act, already referred to, it is clear that the provisions therein contained admit of some controversy and ambiguity. To that extent therefore, there is the need for judicial intervention to help solve the confusion.\r\nSecondly, who determines the issue of national security and public order?\r\nIn my mind, the Judiciary is best suited to determine such issues in an unbiased and impartial manner.\r\nTo what level then of the judiciary is such a delicate task to be entrusted?\r\nThe Edusei case just like the other cases TAIT, GBEDEMAH, VIADOM etc all referred to supra seem to suggest that the High Court is the commencement point or level. Thereafter, if there is the need for a referral of an interpretation or enforcement, then that would be made to the Supreme Court.\r\nI am however of the opinion that, where the interpretation of a Constitutional provision or statute is capable of different meanings, or where the provisions therein contained are ambiguous and admit of more than one meaning, and there is no existing Supreme Court decision or interpretation on the issue, it is better for the Supreme Court to assert its role as the defender and protector of the Constitution by assuming jurisdiction.\r\nWhat should be noted is that, in construing the Supreme Courts role as envisaged in Articles 1(2) 2(1) and (II) and 130(1) of the Constitution 1992 the magnificence of the supremacy of the Constitution should be allowed to work perfectly.\r\n \r\nWhen the Supreme Court functions like it is supposed to do, taking into consideration the policy measures that lie behind the enormous role assigned the Court against the historical background that gave birth to the Constitution 1992, the need of a robust, but fair minded court that transcends policy prejudices and preferences that may exist at any point in time in order for the purpose and will of the constitution itself to be clearly manifested have to be clearly distinguished and made functional and applicable.\r\nI am of the opinion that, it is better to leave this critical and crucial role to the Supreme court Justice who are at the apex of the judicial system and whose judicial oath among others is to preserve the core values of the Constitution 1992 and the Constitutional system.\r\nIn this respect therefore I will dismiss the contention that this Supreme Court has no jurisdiction in the matter. There is no matter for the High Court to decide in this case. The Supreme Court is therefore best suited to determine the remaining issues, which have been re-formulated as follows:-\r\nREMAINING ISSUES\r\n1.	Whether or not upon a true and proper interpretation of the Labour Act, (Act 651). especially section 1 thereof vis-â-vis the Security and Intelligence Agencies Act, 1996 (ACT 526) and the application of the said laws in respect of the Customs, Excise and Preventive Services as established by law denoting CEPS as a non-security organization is inconsistent with or in contravention of article 24(4) of the Constitution 1992.\r\n2.	Whether or not the Collective Bargaining Certificate issued to cover CEPS is valid.\r\n \r\nISSUE 1\r\n \r\n\r\n \r\nThe Labour Commission in their decision dated 23d May, 2006 concluded the aspect of their decision touching and dealing with Security and Intelligence Agencies Act, (Act 526) as follows:-\r\n"The law makers in the section 1 of the Labour Act, 2003, Act 651 unambiguously mentioned those institutions whose employees are not covered by the Act and it is trite learning that when a law expressly mentions a class as the Armed Forces, the Police Service, the Prison Service and the Security and Intelligence Agencies which in the Security Agencies Act 1996, (Act 526) refers to the Bureau of National Investigations and the Research Department without mentioning CEPS, it is conclusive in the absence of anything to the contrary that CEPS is not part of that class. Until the law makers amend the law regulating CEPS to change it from para-military institution to a full fledge Security agency, the Commission finds CEPS not to be part of the Security and Intelligence Agencies whose employees fall outside the scope of the application of the\r\nLabour Act 2003, CEPS cannot be said to be part of the Security Service by necessary implication of statutes"\r\nBased on the above reasoning the Defendants concluded that the Plaintiffs are not a Security Institution mentioned in section 1 of the Labour Act to qualify them to be exempted from unionization.\r\nWhat then is this security and Intelligence Agencies Act, (Act 526)?\r\nThe preamble to Act 526, states as follows:-\r\n"An ACT to make provision in respect of the National Security Council, to provide for the establishment of Regional and District Security Councils, to specify some of the state agencies responsible for implementing government policies on security of the state and attendant issues on or relating to the internal and external security of Ghana and to provide for related matters"\r\nIn making use of the preamble to Act 526, I am aware of the fact that a Preamble to an Act of Parliament is only a narrative of the facts that gave rise to\r\n \r\nthe passage of the Act and will give a semblance of the main objectives of the Act. It thus gives a historical basis for the passage of the Act and can be described as the gateway to understanding the reasons why the Act was enacted and the problems which it was meant to solve.\r\nThe authorities are quite certain that, even though a Preamble is not part of the Act of Parliament, the facts so stated in the preamble can be looked at by the courts although not without challenge.\r\nIn R v, Haughton (Inhabitants) {1853] 6 Cox. CC. 101, E & B, 501 at 506 Lord Campbell stated thus:\r\n"A mere recital of an Act of Parliament, either of fact or Jaw, is not conclusive, and we are at liberty to consider the fact or the law to be different to the Statement in the recital"\r\nUnder these circumstances, I will take the preamble to Act 526 into consideration in an attempt to fully comprehend the objects of the Act, and the mischief that the law was meant to cure. Such an approach will enable me to unravel any missing links if any that are needed to make the Act functional in practice. I am not to be understood to be attempting to legislate or insert new words into the Act when the legislature did not intend any such effect.\r\nFrom this standpoint, Act 526 must be understood to be an Act designed to specify some of the state agencies responsible for implementing government polices on security of the state and related issues bordering on internal and external security of Ghana.\r\nIn that respect therefore, sections 1, 6 and 8 of Act 526 establish and indicate the membership of the National, Regional and District Security Councils respectively.\r\nIt is significant to observe that Section 1(2)0) names the head of the Plaintiffs institution as one of the members of the National Security Council. Sections\r\n \r\n6(l)(h) and 8(i)(e) mention the	plaintiffs as an Institution comprising membership of the Regional and District Security Councils.\r\nA consideration of the functions of the National Security Council, as is stated in section 4 of Act 526 clearly shows that the functions of the plaintiffs as spelt out in PNDCL 330 the CEPS Management Law in theory and practice are in tandem with those of a Security apparatus as is spelt out in Act 526\r\nIt is also to be noted that Act 526 is divided into six parts as follows:-\r\n \r\n1.	Part \r\n2.	Part II\r\n3.	Part III\r\n4.	Part IV\r\n5.	Part V\r\n6.	Part VI\r\n \r\n-	National Security Council.\r\n-	Regional and District Security Councils.\r\n-	The Internal and External Intelligence Agencies.\r\n-	National Security Coordinator.\r\n-	Complaints Tribunal and Warrants.\r\n-	Financial And Miscellaneous provisions.\r\n \r\nIt is therefore certain that there are clear differences between a Security Service and an Intelligence Agency as is depicted in Section 42 of Act 526, the Interpretation Section.\r\nUnder this section, Intelligence Agency is defined as "Intelligence Agency" means the Internal or External Intelligence Agency established under this Act''\r\nWhilst security services is defined as "Security Services" "means such services connected with national security as the Council may determine\r\nThe above definitions re-enforces the divisions of Act 526 referred to', '../links/cases/Document (97).pdf', 'Yes', 'ANSAH,J.S.C., ADINYIRA (MRS.),J.S.C., DOTSE,J.S.C., ANIN YEBOAH.J.S.C., ', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Employment Law: Labour Act (2003) Act 651 section 1; - exclusion of Armed Forces,Police,Prison Service and Security and Intelligence Agencies from Act -whether CEPS falls under Security and Intelligence Agencies -&nbsp; constitutionality of section 1 of Act 651 - right of security services and CEPS staff to unionise; Expressio unius est exclusio alterius rule.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J1/5/2007', '', '', 'supreme', '2009-02-04', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(540, 'GEORGINA NAA AHINEY AMARTEY  ... PLAINTIFF/APPELLANT/RESPONDENT\r\nVRS\r\nMRS.WINIFRED IDDRISU  ... DEFENDANT/RESPONDENT/APPELLANT', 'IN THE SUPREME COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA-GHANA\r\nCORAM: DATE-BAH, JSC (PRESIDING)\r\nANSAH, JSC ADINYIRA, JSC DOTSE, JSC BAFFOE-BONNIE, JSC\r\nCIVIL APPEAL\r\nNo. J4/26/2007 29TH APRIL. 2009\r\nGEORGINA NAA AHINEY AMARTEY	PLAINTIFF! APPELLANT/ RESPONDENT\r\nVERSUS\r\nMRS. WINIFRED IDDRISU	DEFENDANT! RESPONDENT! APPELLANT\r\nPractice and Procedure Land Law, Pleadings, Objections to a reply pleading new matters - Amendments, Discontinuance by Plaintiff - grant of interlocutory injunction. Search disclosing absence of leave for filing further defence to reply and counterclaim - motion to strike out further defence to reply and counterclaim, invocation of Order 70 rule 1 of LN 140 A. Change of Solicitors, change of Judges, adoption of proceedings, clear violations of Civil Procedure Rules, consequences.\r\nJUDGMENT\r\nDOTSE, JSC\r\nThis is an appeal by the Defendant/Respondent/Appellant, hereinafter referred to as the defendant, against the judgment of the Court of Appeal dated November 26, 2006 wherein judgment was given in favour of the Plaintiff/ Appellant/ Respondent, hereinafter referred to as the plaintiffs. The plaintiff instituted action in the High Court, Accra on May 26, 2000 against the defendant, claiming the following reliefs:\r\n1. A declaration of her title to a .piece of land situate at Tesano in Accra in the Greater Accra Region of the Republic of Ghana described as parcel No. 376 Block 1, section 050 as delineated on Land Registry Map No. 004/050/88 in the Land Title Registry Victoriaborg, Accra and edged with pink colour on Plan No. 281198 annexed to Land Certificate No. GA 13477 issued by the Land Title Registry on January 22,\r\n1999.\r\n1\r\n \r\n2.	Damages for trespass committed by the defendant, her servants, workmen, agents and or privies on the said land.\r\n3.	An order of perpetual injunction restraining the defendant, her servants, workmen, agents and or privies from trespassing on the said land.\r\nAfter service of the writ of summons and statement of claim on the Defendant, she entered appearance and filed her Defence personally.\r\nThereafter she engaged the services of Counsel, James Ahenkora Esq. who subsequently filed NOTICE OF APPOINTMENT of Solicitor on her behalf and has remained her Solicitor to date.\r\nLearned Counsel for the Plaintiff filed a reply to which Counsel for the Defendant filed objections to the following effect:-\r\n1.	That the Plaintiff had used the reply to plead new matters which the Defendant would ordinarily not have the opportunity to react to because of the stage at which it had been introduced in the reply, which is the last pleading before summons for Directions.\r\n2.	The Defendant argued that the offending pleadings be removed from the Reply and instead form part of amendment so that the Defendant can also reply to same by filing an amended Defence.\r\nThe objections raised by Counsel for Defendant therefore sought to introduce amendments by the Plaintiff to enable the defendant also amend her Statement of Defence. Reference pages 20 and 21 of the appeal record.\r\nFrom the appeal record, it is clear that both Counsel for the parties briefly argued this case on the objections raised by learned Counsel for the Defendant.\r\nThereafter, the learned trial Judge at the time Ofoe J as he then was, adjourned the suit to the 9t"	of November, 2000 for Ruling. See page 23 of the appeal record.\r\nWe have perused the entire record of appeal spanning some 444 pages but there is no record of any such Ruling. We have also requested for the original case docket\r\n \r\n2\r\n \r\nfrom the Registry of the Supreme Court for perusal. We have not been able to get any assistance from that either, as there is a complete blank on what happened on November 9, 2000 the date the Ruling was supposed to have been given.\r\nDespite the absence of this Ruling in the appeal record, there is a process that had been filed on December 18, 2000 by the Defendant titled, "FURTHER DEFENCE TO REPL Y AND COUNTER CLAIM"- Pages 30-32 of the appeal record.\r\nA study of the appeal record indicates that the Plaintiff changed her Counsel shortly after the filing of the above process in rapid succession.\r\nOne of the plaintiff''s Counsel filed an application to wholly discontinue the Plaintiff''s suit. As a result, the court, this time presided over by Georgina Kusi-Appouh J, as she then was, on June 29, 2001 granted the Plaintiffs application in the following terms:-\r\nThe suit is wholly discontinued with liberty to apply, the injunction and counterclaim should proceed, till then, both parties, agents etc. are hereby restrained from dealing in anyway (sic) the property the subject matter suit is adjourned to July 6, 2001."\r\nAfter the discontinuance of the Plaintiffs suit, the case proceeded apace in rapid succession as follows:-\r\n1.	The Defendants application for interlocutory injunction which was pending at the time of the discontinuance was granted.\r\n2.	Learned Counsel for the Plaintiff Mr. F. K. Quartey then filed a search to determine the legitimacy of the process titled "Further Defence to Reply and Counterclaim".\r\n3.	The search result indicated that "there was no evidence on the docket concerning the grant of leave to file the "Further Defence to Reply and Counterdaim ".\r\n4.	With this search result, learned Counsel for the Defendant filed a motion before the court seeking to strike out the defendants'' pleading i.e." Further\r\n3\r\n \r\nDefence to Reply and Counterclaim. The basis of the motion was that the said pleading was alien to the rules of court and leave had not been granted before same was filed.\r\n5.	The application to strike out this offending pleading was opposed by Counsel for Defendant.\r\n6.	on December 4, 2001 Kusi-Appouh J, as she then was gave a ruling in the matter in which she decided that, "the process filed on December 18 was sanctioned by "court otherwise it could not have been filed or better still the first two Counsels for the Plaintiff would have objected to it''\r\nThe learned trial Judge as she then was further invoked Order 70 rule 1 of the High Court Civil Procedure Rules, 1954, LN 140A (which was then applicable) to cure whatever defect was apparent therein\r\n7.	Learned Counsel for the Plaintiff did not appeal against this Ruling but instead participated in the trial, filed a defence to the said offending process. Some proceedings then took place before Ebiasa 3, as he then was in respect of the Defendants counterclaim.\r\n8.	Further proceedings on the counterclaim were held before Agnes Dordzie J, and yet again Counsel for the Plaintiff changed hands with Mr. Charles Tettey taking over from Mr. Quartey.\r\n9.	After PWI and PW2 had all testified, the case went before Cecilia Sowah J, and with the consent of the parties, the proceedings so far held in the matter were adopted. See page 168 for order of adoption of proceedings. As a result, Cecilia Sowah 3, on June 8, 2004 made the following orders:-\r\n"The proceedings are hereby adopted as proceedings in this suit. "\r\n \r\n10.	The trial then proceeded before Cecilia Sowah 3, who delivered judgment on February 3, 2005 and gave judgment in favour of the Defendant upon her counterclaim, the Plaintiffs case having been discontinued.\r\n11.	Aggrieved and dissatisfied with the decision of Cecilia Sowah 3, in the case, the Plaintiff successfully appealed against it to the Court of Appeal. The Court of Appeal accordingly allowed the appeal on the grounds that the process filed on December 18, 2000 as "FURTHER DEFENCE TO REPLY AND COUNTERCLAIM "was filed without leave.\r\n12.	The appeal to this court has been filed by the Defendant against the Court of Appeal decision with the following as the grounds of appeal:\r\nL In view of the decision which was given by Justice Kusi Appouh J as she then was on December 4, 2001 to the effect that the process termed "FURTHER DEFENCE TO REPLY AND COUNTERCLAIM was properly before the court because it was filed with leave of the court, the Court of Appeal erred in law in nullifying that process on the ground that it was filed without leave of the court below. When that issue had become res judicata by reason of the decision of Kusi Appouh 3.\r\nii.	In view of the fact that the process was said by counsel who filed it to have been filed in pursuance of the leave granted by Ofoe 3, when he ruled on November 9, 2000 on the objection by that Counsel to certain portions of the reply which had been filed by the Plaintiff, the Court of Appeal was wrong in castigating the process as filed without leave when it did not see or read OIoe 3''s ruling.\r\niii.	In view of the fact after Kusi-Appouh had held that the process was not filed without (sic) of the court the Plaintiff accepted that decision and filed a defence to the counterclaim contained in the process, a summons for further directions was filed and taken in respect of the counterclaim before the counter claim went to trial. The Court of\r\n \r\n5\r\n \r\nAppeal erred in striking out the process and nullifying the entire trial of the counterclaim.\r\niv. The Court of Appeal in holding that if indeed the process was filed without leave, it created an irregularity by non-compliance with the rules which was cured by the failure of Counsel then acting for the Plaintiff to object when that process was served on him and Counsel who immediately followed him for the Plaintiff also did not object.\r\nV. The Court of Appeal in failing to appreciate the import of what Kusi-Appouh J said when she said that Peter Adjetey with all his experience did not object to that process when it was served on him.\r\nFrom these grounds of appeal, only one issue stands out clear for determination, and that is:\r\nWhether the process filed by the Defendant on December 18, 2000 termed as "FURTHER DEFENCE TO REPLY AND COUNTERCLAIM" is a process allowed by and under the Rules of Procedure prevailing at the material time and should be countenanced by the Court.\r\nThe formulation of the above issue is critical because, so far as we are concerned, whether or not leave was granted by the Court before the process was flied is immaterial. If the process is not warranted by the rules of procedure of the High Court, grant of leave cannot validate it.\r\nThe position is further worsened by the fact that there is no record of the said Ruling purported to have been delivered or was to be delivered by the Court on November 9, 2000. What must be noted is that, the High Court, just like all the other Superior Courts is a Court of record. What this means is that there must be a record of everything that is done and or directed by the Court. This will therefore encompass not only all processes tiled before the court, but also a record of arguments, submissions, evidence led by the parties and witnesses and the decisions, or orders and judgments of the Courts. Whenever the record of any such process or event\r\n6\r\n \r\nthat is deemed to have taken place in the court is not available to be referred to, then the record of such an event cannot be accepted as having taken place.\r\nWe are therefore surprised that learned Counsel for the Defendant is inviting this court to draw inferences from certain acts of omission and commission of Counsel, the parties and of the Court itself to conclude that leave was infact granted by the court before the process was filed.\r\nAt page 105 of the appeal record, the learned trial Judge Kusi Appouh J as she then was, delivered herself thus in the ruling when an objection was taken to the offending process of court termed "FURTHER DEFENCE TO REPLY AND COUNTERCLAIM" as follows:-\r\n"It is not disputed that the present Counsel is the 3"'' Counsel for the Plaintiff herein. It seems a bit strange to me that Mr. Ala Adjetey would have kept quiet for a process to be filed without leave of the court."\r\nContinuing further, the learned Judge held that,\r\n"1 therefore hold that the process filed on December 18 was sanctioned by the Court otherwise it could not have been filed or better still the first two Counsel for the Plaintiff would have objected to it"\r\nThe fact that Counsel for the Plaintiff at the material time, Mr. Peter Ala Adjetey is a competent and seasoned Legal Practitioner does not mean that whatever he does or condones in the court is the correct practice that must be followed and accepted.\r\nA Court of law cannot, and must not be seen to have abdicated its role in adjudicating disputes according to well established rules of civil procedure by making references to experience and competence of Counsel as a guide. This is unacceptable.\r\nAnother point raised by learned Counsel for the Defendant, subsumed under the issue formulated above is the submission that having failed to appeal against the\r\n \r\n7\r\n \r\ninterlocutory Ruling on the validity of the offending court process, the Plaintiff is estopped from re-opening the matter being a decision on a question of fact.\r\nThe law is certain that, appellate courts are slow in setting aside or departing from the findings of fact made by trial courts.\r\nAs a matter of fact, an appellate court will depart from a finding of fact if the said finding is perverse or is not warranted or supported by the record of appeal. See\r\ncases like Achoro vrs. Akan fe/a [1996-97] SCGLR 207 where the Supreme Court per Acquah JSC stated the principle in part as follows:-\r\n"In an appeal against findings of facts to a second appellate court,... 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 misc,rriage of justice was apparent in the way in which the lower tribunals had dealt with the facts"\r\nSee also cases like Thomas vi-s. Thomas [19471A.E.R. 582., Akufo Addo vrs. Cathilne [1992] IGLR 377per Osei Hwere JSC and Ntfri & ANR v. Essien & ANR [2001-20021 SCGLR 451.\r\nIn the instant appeal, we are of the considered opinion that there is sufficient evidence on record which the first appellate Court, the Court of Appeal could have used to come to the conclusion they came to. That is by setting aside the decision of the trial courts in this case.\r\nWhat must be noted is that, an appellate court must feel emboldened to interfere whenever a finding of fact by the trial court is so perverse that it cannot be suppprted having regard to the evidence on record.\r\nIn the instant appeal, care must be taken to ensure that the Court does not condone a nullity. The question which one has to ask and answer is whether the process filed on December 18, 2000 termed "FURTHER DEFENCE TO REPLY AND COUNTERCLAIM" is warranted by the prevailing rules of civil procedure at the time?\r\n \r\n8\r\n \r\nIf the answer is NO then it means that any process embarked upon after that void process is itself a nullity and cannot stand the test of time.\r\nUnder the circumstances, the answer must be No. this is because, civil Procedure in the High Court at all times material to the cause of this action was regulated by the High Court, Civil Procedure Rules, (1954) LN 140A.\r\nAs we have earlier on stated in this judgment, there is no process known by the term "FURTHER DEFENCE TO REPLY AND COUNTERCLAIM" under the Civil Procedure Rules.\r\nA perusal of the High Court, Civil Procedure Rules (1954) LN 140 A reveals that, whilst the following processes have been adequately provided for under the then prevailing rules there is absolutely no provision for the process "FURTHER DEFENCE TO REPLY AND COUNTERCLAIM":\r\n1.	Order 2 for Writ of Summons\r\n2.	Order 12 Entry of Appearance\r\n3.	Order 20 Statement of claim\r\n4.	Order 21 Defence & Counterclaim\r\n5	Order 23 Reply\r\n6	Order 30 Summons for Directions\r\nWe are therefore of the view that once the Civil Procedure Rules in operation at the time of the instant suit in the High Court do not permit and authorize the filing of the above process, our understanding is that, no Court could have validly granted leave to legitimize the filing of the said process. Since the process is alien and unknown to our rules of Civil Procedure, our conclusion is that even if the ruling purporting to have granted leave to file the process had been on record, this Court would still\r\n9\r\n \r\nhave struck out the said process as a nullity and not warranted by the rules of Court.\r\nThe processes a Court can grant leave to file are those processes that are legitimately provided for under the prevailing rules of Civil Procedure. It is when a party is unable for one reason or the other to file the said legitimate process within time provided under the rules that leave is granted extending time.\r\nA Court may also grant leave to a party to file a process in order to do substantial justice depending upon the circumstances of each case.\r\nThere is absolutely no justification to grant leave for the filing of the said process in this case The Rules do not permit Courts to invent new Rules of Procedure to take care of situations like happened in this case.\r\nSince the procedure adopted in the trial Court is not warranted by any rule of Civil Procedure and is definitely unknown in our civil procedure nomenclature, no Court can give legitimacy by granting leave to validate it. Under the principle of law enunciated by the Supreme Court in Mosi vrs BAGYIHA [1963] 1 GLR 337 the said conduct amounts to a nullity and must be set aside.\r\nThis brings to the fore the often cited decision of Lord Denning in Macfoy vrs. UAC [1961]3 A. E. R. 11 69PC wherein he stated in unequivocal language that "you cannot put something on nothing and expect it to stay there. It will collapse"\r\nSee also Mosi vrs BAG YIHA, [1963] I GLR 337 where Akuffo -A ddo JSC expanded this principle by stating as follows:-\r\n"The law as I have always understood it is that where a court or a Judge gives a judgment or makes an order which it has no jurisdiction to give or make or which is irregular because it is not warranted by any enactment or rule of procedy such a judqment or order is void and the court has an inherent jurisdiction, either suo\r\n10\r\n \r\nmotu or on the application of the party affected, to set aside the judgment or the order. The law does not limit the exercise of this inherent jurisdiction, as it does in the case of review to the Judge who actually gave the Judgment or made the order"\r\nOnce it has been settled that under the High Court, Civil Procedure Rules 1954 LN 140A, which was the applicable Civil Procedure Rules in application at the time, the process flied on December 18, 2000 headed "Further Defence to Reply and Counterclaim" is unknown to the Rules of Civil Procedure, it means the said process is void ab initio and all processes emanating thereafter or based upon the said process are a nullity.\r\nSimilarly, we cannot but agree with the Court of Appeal that Order 70 of the repealed rules of Civil Procedure cannot be used to cure any voidness therein contained. This is because once the entire process is void, it lacks legitimacy and no rule of practice can bring it back to life.\r\nOnce the procedural lapses are so fundamental, they go to the root of the case and for those reasons, the appeal must fail.\r\nFor the above reasons, vve will dismiss the appeal herein filed against the judgment of the Court of Appeal dated November 24, 2006. By this judgment, the Court of Appeal judgment of even date is hereby affirmed\r\nThe appeal is accordingly dismissed\r\nJ. V. M. DOTSE\r\n(JUSTICE OF THE SUPREME COURT) I agree\r\nS. K. DATE-BAH (DR)\r\n(JUSTICE OF THE SUPREME COURT)\r\n \r\n11\r\n \r\nI agree\r\nJ. ANSAI-I\r\n(JUSTICE OF THE SUPREME COURT)\r\nI agree\r\nS. 0. A. ADINYIRA (MRS) (JUSTICE OF THE SUPREME COURT)\r\nI agree	: BAFFQE-BONNIE (JUSTICE OF THE SUPREME COURT)\r\n\r\n		\r\n\r\n', '../links/cases/Document (3).pdf', 'Yes', 'ANSAH,J.S.C., ADINYIRA,J.S.C., DOTSE,J.S.C., BAFFOE-BONNIE,J.S.C., ', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and Procedure Land Law,Pleadings,Objections to a reply pleading new matters - Amendments,Discontinuance by Plaintiff - grant of interlocutory injunction. Search disclosing absence of leave for filing further defence to reply and counterclaim - motion to strike out further defence to reply and counterclaim,invocation of Order 70 rule 1 of LN 140 A. Change of Solicitors,change of Judges,adoption of proceedings,clear violation of Civil Procedure Rules,consequences.</font></b></i><br>', 'DATE-BAH JSC', 'Civil', '', 'J4/26/2007', '', '', 'supreme', '2009-04-29', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(541, 'TSATSU TSIKATA  --- RESPONDENT/APPELLANT\r\nVRS\r\nTHE REPUBLIC  --- APPELLANT/RESPONDENT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT OF GHANA\r\nACCRA\r\nCORAM: ATUGUBA, J.S.C. (PRESIDING)\r\n		\r\n		\r\n		\r\n\r\nTSATSU TSIKATA	RESPONDENT/APPELLANT\r\n\r\n	\r\n\r\n \r\n\r\n \r\n\r\n	\r\n \r\nhis treatment of it I do not regard this matter as moot especially as a constitutional issue is involved. In any case the appellant cannot raise this question of the immunity before the Court of Appeal again since it has been decided by it already. This means that in all probability that issue will come up before this court again unless decided now. It is therefore still a live and not a moot issue.\r\nThe appellant stood trial before the High Court, Fast Track Division, Accra, on charges of causing financial loss to the state and misapplication of public funds. In the course of the trial the appellant sought and obtained a subpoena by order of the trial judge, Mrs. Henrietta Abban, J.A. in these words:\r\n"Let the Registrar of the Court issue a Subpoena Duces Ad TeCum directed at the Country Director, I.F.0 to appear before this Court on the 151h of December 2005 instant, in respect of documents of the Valley Farms Project promoted by the African Project Development Facility for the period from 1987 to about 1990."\r\nPursuant to the issue of this subpoena but before its service, the International Finance Corporation (I.F.C) per their counsel, Mr. Kizito appeared before the trial court and objected to the issuance of the subpoena on the following grounds:-\r\n"Statutory Immunity from the courts processes. I understand that your order has not been served on them; that notwithstanding when it came to the attention through the dailies that the order had been made they asked us to inform the court that they do not on this occasion intend to waive their immunity. The immunity is derived under LN9 of 1958 Section 5 grants immunity to the archives of the IFC and section 8 grants immunity to the Governors, Executive Directors and officers of the IFC. My Lord, my clients do not intend to waive their immunity."\r\nThe Attorney-General (Mr. Ayikoi Otoo) associated himself with the objection and further relied oil	73 and 57(5) of the 1992 Constitution.\r\n2\r\n \r\nThe trial judge upheld the objection. The appellant''s counsel thereupon shifted his application for the same purpose but this time directed to the International Finance Corporation itself, but the same was refused. The appellant appealed against these rulings to the Court of Appeal without success, hence this ultimate appeal to this court.\r\nThe grounds of appeal and the arguments thereon were profuse but do not defy a summation. I will therefore with respect to both deal only with the essence.\r\nThe trust of the appellant''s contention is that the trial judge assumed, without the necessary factual basis that the claims to immunity were established and that no such factual basis could have, at any rate, been established in the circumstances of this case.\r\nThis appeal, I have urged, in my ruling on the appellant''s application for the IFC''s counsel to be invited to address this court on the question of this immunity, could be regarded as moot consequent upon an admission by the Republic in its "written Submissions by Counsel for the Respondent" dated 26/11/2007. At page 6 thereof the learned Acting Director of Public Prosecutions, Gertrude Aikins submitted as follows:-\r\n"It is my humble submission that there is no dispute between the respondent and\r\nthe appellant over the viability of the project. The prosecution''s own witness PW 1\r\nunder cross-examination gave evidence for the accused that the project was a good\r\none, Agence Francaise de Development also gave evidence to the same effect"\r\nShe reiterated this submission at page 9 as follows:-\r\n"My submission is that, the viability of the Valley Farms Project has never been in issue. That has never been the case of the prosecution. The crux of the matter is that the appellant invested outside the core functions of GNPC as prescribed by Law PNDCL 64 of 1983 and sustained a loss as a result. After all the evidence quoted above, what was the IFC coming to say?"\r\n \r\n3\r\n \r\nThe admission was stated in extenso but these excerpts capture its essence. The conspicuous purpose of the appellant in relation to the subpoena is stated by his counsel at pages 82-83 of the Record thus:\r\n"The order is for the IFC to testify and provide information regarding its role in a transaction in respect of which criminal charges have been brought against the accused. It is part of the case of the accused that having regard to the role played by a number of banking institutions including IFC in undertaking technical and economic studies of the project and given a positive evaluation of the project to potential investors, it was an appropriate exercise of good business judgment for the accused to authorize asset managers, holding assets on behalf of the Corporation which accused was Chairman and Chief Executive of, to make investment in the project on an agreed basis. The best evidence about the role of the IFC can only come from the IFC itself and the defence has to be afforded facilities for obtaining the attendance of the IFC to provide evidence."\r\nThe substratum of the whole controversy raging over the immunity yel non of the IFC to legal process having thus been removed by the admission of the Republic one wonders on what this appeal could continue to hang.\r\nNonetheless my colleagues (then), and counsel on both sides feel strongly that the question of this immunity must still be usefully decided. Very well then.\r\nSo far as the immunity of the directors, employees etc of the IFC is concerned, it is, as far as relevant, provided in section 8 of the schedule to The International Bank, Fund and Finance Corporation (Immunities and Exchange Contracts) Order, 1958 L.N.9 as follows: "all governors, directors, alternates, officers and employees of the Corporation shall (1) he immune from legal process with respect to acts performed by them in their official duty."\r\n''I\r\n \r\n.J1J........RVICE OF GHANA JUDICIAL SERVICE OF GHANAJUDCL\r\n \r\nLegal immunity from legal process may take various forms but the common legal thread that runs through them is that the facts upon-which it operates are preconditions to its successful invocation. See Littlewood v George Wimpey & Co. Ltd. (1953) 1 WLR 426, Armon v Katz (1976) 2 GLR 115 C.A. in which a certificate from the Ministry of Foreign Affairs was obtained to establish the diplomatic status of the 2nd defendant; Kwakye v Attorney-General (1981) GLR 9 S.C. at 14. I therefore agree that without taking evidence on the factual prerequisites of the immunity claimed by the country director the courts below erred in upholding that claim. To my mind the immunity in section 8 of LN 9 relates to protection for them while carrying out their functions relating to the affairs of the International Finance Corporation. That is the context of that provision. The purpose of the immunity is stated in section 3 of LN 9 as follows:- "to enable the fund, the bank and the corporation to fulfil the functions with which they are respectively extrusted, the provisions of the fund agreement, the bank agreement and the finance corporation agreement set out in the schedule to this order shall have the force of law". The immunity therefore is restricted to the extent therein revealed. I do not pretend to know International Law. I have never studied it. But whatever it is I do not think that the mischief or purposive rule of construction can be expelled from it. Humans are rational creatures and therefore the general rule of construction is that, no matter the use of wide words, effect must be given to them to no greater extent than their objective warrants. Thus in Rex v Dick Ogbulu Opia (1942) 8 WACA 114 at 116 the court passionately stated thus: "a passage in the 7 Edition of Maxwell on the Interpretation of Statutes at page 198 is pertinent:-\r\n"Where the language of a statute, in its ordinary meaning and\r\n"grammatical construction, leads to a manifest contradiction of the "apparent purpose of the enactment, or to some inconvenience or "absurdity, hardship or injustice, presumably not intended, a\r\n"construction may be put upon it which modifies the meaning of "the words, and even the structure of the sentence. This may be "done by departing from the rules of grammar, by giving an\r\n\r\n \r\nJUL	JF	j	MNi-.	.Ii\r\n \r\n"unusual meaning to particular words, by altering their collocation, "by rejecting them altogether, or by interpolating other words, under "the influence, no doubt, of an irresistible conviction that the\r\n"Legislature could not possibly have intended what its words signify, "and that the modifications thus made are mere corrections of careless "language and really give the true meaning. Where the main\r\n"object and intention of a statute are clear, it must not be reduced\r\n"to a nullity by the draftsman''s unskillfulness or ignorance of the law, "except in a case of necessity, or the absolute intractability of the "language used. The rules of grammar yield readily in such cases "to those of common sense.\r\nThe statement of the law set out in this text is fully supported by a long series of authorities commencing with Warburton v. Loveland (1828) 1 Hudson & B. Irish Cases 623, a case which is frequently cited in subsequent cases upon the point. Further the first and most material sentence of the text was quoted, obviously with approval, by Lord Alverstone, L.C.J. in the much more recent case of the King v. Vasey and Lally (1905) 2 K.B. 748."\r\nEven in respect of international treaties, Clarke J in Three Rivers District Council & Others v Bank of England (No. 2) (1996)2 All ER 363 said, as summarised in the headnote as follows:\r\n"Where the court is seeking to construe a statute purposively and consistently with any relevant European legislation, or the object of the legislation under consideration is to introduce into English law the provisions of an international convention or European directive it is of particular importance to ascertain the true purpose of the statute, and in those circumstances the court may adopt a more flexible approach to the admissibility of Parliamentary materials I/ian that established for the construction of a particular provision of purely domestic legislation"\r\n[''4\r\n \r\nI do not therefore see how the limited purpose for which the appellant seeks the subpoena in this case is inconsistent with "the true purpose of the statute" involved herein, so far as immunity from legal process is concerned. I have no doubt that the subpoena sought here no" fit injuria to the smooth operation of the IFC which is the bedrock of the immunity provision.\r\nI entirely agree with the appellant''s contention that a subpoena to the IFC''s country director to produce something which is not his act but is in the custody of the IFC does not infringe his immunity from legal process and legal processes can lie in respect of him as to such matters. Equally the trial judge''s holding that the documents sought to he produced are in the archives of the IFC without foundation for the same is erroneous.\r\nIn any event upon proper construction of the provisions of LN 9 in the light of the 1992 constitutional provisions particularly article 19(1), the provisions thereof cannot deprive a person of his right to subpoena the country director or other officer or employer of the IFC to produce documents necessary for his defence. That article provides as follows:- "19(1) A person charged with a criminal offence shall be given a fair hearing within a reasonable time." In the celebrated case of Tuffbur v. Attorney-General (1980) GLR 637 C.A. (sitting as the Supreme Court) it was held that a written constitution is a political document that minors the aspirations of the people, reflecting their past experiences and that it is an organic law capable of growth.\r\nArticle 11(6) mandatorily requires that "The existing law shall be construed with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this constitution". Clearly at the time LN9 was enacted there was no constitution in Ghana that provided so elaborately for the fundamental human rights as contained in the 1992 Constitution. The construction of\r\nI\r\n \r\nIUDICL&. .ERVICE OF GHANA JUDICIAL SERVICi	JUDICIAL SER\r\n \r\nLN9 must now reflect this new situation. This court''s decision in Tsatsu Tsikata v The Republic (2005-2006) Sc GLR 612 states the trite constitutional position that the Fundamental rights are "subject to respect for the rights and freedoms of others and for the public interest". See article 12(2). However it does not mean that every right and freedom of others or the public interest will in all cases uncritically override the fundamental rights. The nature, extent and quality of that respect depend on a balancing act of the competing rights and freedoms. See Republic v Tommy Thompson Books Ltd. (No.2) (1996-97) SC GLR 484.\r\nThis is clearly brought to the fore when article 12(2) is read in conjunction with articles 11(6) and 21(4). The latter provides that legislation qualifying the fundamental rights therein referred to shall not "be held to be inconsistent with, or in contravention of, this article . . .(e)... except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in terms of the spirit q/ this Constitution." I have already, supra, referred to the objects to be attained by I N 9 and its parent Act.\r\nIn matching them against the right to a fair trial in article 19(2) one is at a loss to understand how the mere testimony relating to and production of documents in the custody of IFC for the purpose for which they were sought in this case, when in the same trial, office copies of the relevant documents were tendered in respect of the records of AFD , is unacceptable. How could such a process impede the performance of IFC''s functions to such a degree that it ought to be disallowed? It must be remembered that LN9 was enacted pursuant to the Fund, Bank and corporation agreements of the United Nations Organization which same body now, if not in 1958, at the time of LN 9, is at the forefront of human rights defence. It is clear that in this new international order the fundamental right to a fair trial is ranked even above relationship with other states. In Algemene Bank Nederland v K. F. and others (1987) Vo. 96 ILR 344 the facts of the case as per the headnote are as follows:\r\nS\r\nJUu	OF GHANA JUDl(''''	..'',..\r\n \r\n"The International Tin Council ("the ITC") was an international organization constituted, at the relevant time, under the Sixth International Tin Agreement, 1982 ("the Agreement"). The members of the ITC were twenty-three States, including the Netherlands, and the European Economic Community. The object of the ITC was to promote an orderly market in tin. This was achieved by the operation of a buffer stock which entailed buying tin when the market price fell below a certain level and selling from the buffer stock when the market was too high. in September 1984, Algemene Bank Nederland ("ABN") lent the ITC £40,000,000 secured against various stocks of tin in order to finance the buffer stock price stabilization programme. In October 1985, the ITC announced that it was unable to meet its commitments to third parties and ceased trading.\r\nThe ITC subsequently held negotiations with its Member States and principal creditors, including ABN, with a view to reaching a settlement. Following the initial collapse of these negotiations in 1986, ABN became concerned that it ran the risk of suffering a substantial loss as the tin lodged as security for its loan had in the meantime fallen in value. In order to mitigate its losses ABN then considered the possibility of commencing proceedings against the Netherlands on the ground that it had helped bring about the ITC''s collapse. Prior to the commencement of proceedings, ABN, acting pursuant to the provisions of the Open Government Act, requested information from the Minister for Economic Affairs concerning meetings of the ITC and its sub-committees, the ITC buffet- stock price stabilization programme and reports of the Dutch representative attending the ITC. This request was refused. ABN appealed against this decision to the Judicial Division of the Council of State and, pending resolution of the case, applied to the President of the Division for provisional relief. In proceedings before the President, the Minister contended, inter alia, that as Rules 16(2) and 19 (3) of the ITC''s Rules of Procedure and Rules 12(5) of the buffer stock operational rules ("the Rules") , which had been issued pursuant to the provisions of the Agreement, restricted the publication of information concerning ITC meetings\r\n9\r\n \r\nJUDIt L SERVICE OF GHANA JUDICIAL S •Lt	.:JUthLS .i..	"\r\n \r\n\r\n \r\nand its buffer stock operations, the disclosure of the information sought would constitute a breach by the Netherlands of its obligations under the Agreement and thus have serious consequences for its relationships with the ITC and other Member States. The Minister further contended that he was not, therefore, required to release the information requested by ABN as Article 4(d) of the Act (5) allowed the Government to withhold information if this was required in the interests of maintaining the Netherlands'' relationship with other States." (e.$)\r\nUpon these facts, the Supreme Court of the Nederlands held as stated in the head note thus:\r\n"(1) Article 68 of the Constitution, Article 98-99 (b) of the Criminal Code and Article 4 of the Act did not grant persons who had represented the Netherlands in international consultations with other States exemptions from giving testimony concerning confidential matters arising out of those consultations (pp. 354-5).\r\n(2)	The obligation to maintain confidentiality that was incumbent upon the Dutch representatives to the IFC stemmed from their participation as representatives of the Netherlands and not necessarily from the Rules (p 356).\r\n(3)	The Court of Appeal had correctly held that the importance of ascertaining the truth in civil proceedings outweighed the ITC''s confidentiality requirements (p. 356)\r\n(4)	However, the importance of ensuring that the truth came to light in civil proceedings outweighed the need to ensure that the Netherlands was perceived as a reliable partner in relations with other States (p. 357)"\r\nt,J\r\n \r\nSurely if the Netherlands Supreme Court so held with regard to civil litigation the position is far stronger in a criminal case. It is not apparent whether the Agreement involved there had direct municipal application or was a municipally ratified one. But I do not think much turns on that in the face of our constitutional situation in Ghana. In any case the thrust of the reasoning therein is amply supported by two authorities filed by the appellant on the 28/10/2010 and to reflect them. I will at this stage amend my old judgment in this case as it stood before the arrestment of its delivery. They in my view, amply support the purposive approach to the construction of the immunity provisions of the IFC I had adopted. In Salah N. Osseiran, Appellee v international Finance Corporation, Appellant No.07-7122 United States Court of Appeals for the District of Columbia Circuit 552 F.3d 836;384 U.S. App. D.C. 183; 2009 U.S. App. Lexis 395 the facts as per the headnote are as follows:\r\n"PROCEDURAL POSTURE: Plaintiff investor sued defendant international Finance Corporation when their investment deal soured. The U.S. District Court for the District of Columbia held that the Corporation had waived its immunity under the International Organizations Immunities Act, 22 U.S.C.S. 288-288f, and it filed an interlocutory appeal."\r\nRandolph, Circuit Judge stated, inter alia, that:\r\n"The question in Mendaro was whether the World Bank had immunity from a former employee''s sexual harassment and discrimination suit. Although the waiver provision contained no exceptions for different types of suit, the court read a qualifier into it. The court reasoned that an organization would not give up immunity unless it would gain a "corresponding [***7] benefit which would further the organization''s goals. "Mendaro, 717 F.2/wiat 617. A waiver of immunity "with respect to the World Bank''s commercial transactions with the outside world" made sense, the court thought, because otherwise private parties would be hesitant to transact business with the Bank Id. at 618. The court thought language in the charter indicated that the waiver of immunity, like immunity itself\r\n11\r\n \r\nwas meant to aid the Bank in accomplishing its mission Id. The court went on to hold that the World Bank had not waived its immunity from its employee''s suit because the potential benefit of attracting qualified staff was offset by the Bank''s employee grievance process and outweighed by the disruption to its labour practices."\r\nAgain in Jeorge Vila, Appellee v. Inter-American investment Corporation, Appellant No. 08-7042 United States Court of Appeals for the District of Columbia circuit 570 F.3d 274; 386 U.S. App. D.C. 364; 2009 U.S. App. Lexis 13279 the facts as in the headnote are as follows:\r\n"PROCEDURAL POSTURE: Appellant, an international  organization (10) formed by countries to promote economic development through commercial lending, appealed the United States District Court for the District of Columbia''s denial of its motion to dismiss appellee independent banking consultant''s unjust enrichment claim, arguing for immunity under the international Organizations Immunities Act, 22 U.S.C.S. 288a(b), and asserting that the statute of limitations had run."\r\nSome of the pertinent holdings as per the headnotes are as follows:\r\n"International	Law>Iininunity>Sovereign	Imrnunity>Jnternational Organizations\r\n[HN3] An organization''s immunity should be construed as not waived under the International Organizations immunities Act unless the particular type of suit would further the organization''s objectives, if a lawsuit could significantly hamper the organization''s functions, then it is inherently less likely to have been intended. So too, when the benefits accruing to the organization as a result of the waiver would be substantially outweighed by the burdens caused by judicial scrutiny of the organization''s discretion to select and administer its programs, it is\r\n \r\n12\r\n \r\nlogically less probable that the organization actually intended to waive its immunity.\r\nX	x	x\r\nInternational Law>Immunity>Sovereign Iminunity>International Organization [HN6I Drawing a distinction between external activities and the internal management of international organizations, for purposes of the International Organizations Immunities Act, reflects well-established precedent without creating an artificial category of waived claims. The court still is required to engage in a weighing of the benefits and costs that a waiver may entail, by focusing on the nature of the panics'' relationship rather than the nature of the contested transaction and inquiring as to the reasons why the international organization would waive immunity for the type of suit involved."\r\nFrom the foregoing it is quite clear that the US courts can disentitle or require reliance on almost identical provisions on immunity as are involved herein according as the reliance advances or damages the interests of the donee. Quite clearly then when the credibility of the IFC report on the Valley Farms Project is involved in this case I do not see how a claim of immunity by them can advance their interests in any way. That being so the appellant''s appeal ought clearly to succeed.\r\nIn the English case of R v. Lord Chancellor, Ex parte Witham (1997))3 LRC 347 the court nullified subsidiary legislation by which the Lord Chancellor removed exemption of indigents from paying filing fees in certain cases as derogating from the right to fair trial. At page 358 Laws J forcefully said: ". . .1 cannot think that the right of access to justice is in some way a lesser right than that of free expression; the circumstances in which free speech might unjustifiably be curtailed in my view run wider than in which the citizen might properly be prevented by the state from seeking redress from ihe Queen''s Courts. Indeed the right to a fair trial, which of necessity imports the right of access to\r\n''3\r\n \r\nthe courts, is as near to an absolute right as any which I can envisage". Similarly in Norwich Pharmacal v Customs and Excise Commissioners (1974) A.C. 133 H.L the applicant sought discovery of confidential information concerning third parties obtained under statutory powers by Customs and Excise Commissioners. The House of Lords unanimously rejected the plea of crown privilege against production for the relevant documents. At page 182 Lord Morris of-Borthy-Gest forcefully said:\r\n"If there was some statutory prohibition (such as that contained in section 17(2) of the Agricultural Marketing Act 1931: see Rowel v. Pratt [1938] A.C. 101) then that, of course, would be conclusive, in the absence of any such prohibition it seems to me that in the special circumstances of this case, and with some support from authority, the interests of justice warrant the court in making the desired order unless there are some features of the public interest which are of such weight as to out-balance the public interest of advancing the cause of justice. I can well appreciate the importance of the considerations which were advanced and which undoubtedly carry some weight, but having considered them in relation to the very limited order now sought I am firmly of the view that the balance of tile public interest warrants the making of the order as now requested." (e.$)\r\nI have no doubt that but for the English constitutional principle that Parliament,,,,, omnia potest, the House of Lords would have reached the same conclusion were they to operate under a constitution such as ours.\r\nIt is clear that if Ghanaians are to be free from the effects of decisions such as the infamous case of Re Akolo (1961) 1 GLR 523 S.C. when an opportunity of upholding fundamental human rights was allowed to slip away from the Supreme Court, the courts of today should strive to uphold these rights whenever a construction in that regard is possible.\r\n14\r\n \r\nJUDICIAL SERVICE OF GHANA JUDICIAL SERVIC\r\n \r\nThe attitude of the 1992 Constitution towards international law and its proper application is clearly stated in article 40 of the constitution in Chapter 6, The Directive Principles of State Policy. It is as follows: \r\n"40.International relations\r\nIn its dealings with other nations, the Government shall\r\n(a)	promote and protect the interests of Ghana\r\n(b)	seek the establishment of a just and equitable international economic and social order,\r\n(c)	promote respect for international law, treaty obligations and the settlement of international disputes by peaceful means,\r\n(d)	adhere to the principles enshrined in or as the case may be, the aims and ideals of,\r\n(i)	the Charter of the United Nations,\r\n(ii)	the Charter of the Organisation of African Unity,\r\n(iii)	the Commonwealth,\r\n(iv)	the Treaty of the Economic community of West African States, and\r\n(v)	any other international organisation of which Ghana is a member."\r\nBut the core principle is in article 73, as follows\r\n"The Government of Ghana shall conduct its international affairs in consonance with the accepted principles of public international law and diplomacy in a manner consistent with the national interest of Ghana"\r\nTo ensure that the national interest is paramount, saliis pop:ili suprema lex, article 75 incorporates the dualist principle as follows:-\r\n"(1) The President may execute or cause to be executed treaties, agreements or conventions in the name of Ghana.\r\n(2)	A treaty, agreement or convention executed by or under the authority of the President shall be subject to ratification by -\r\n(a)	Act of Parliament or\r\n \r\n(b)	A resolution of Parliament supported by the votes of more than one- half of all the members of Parliament."\r\nAll these reflect our national history and aspirations as enunciated in Tuffuor v Attorney- General, supra. Clearly these provisions are designed to prevent the effects of the over concentration of the President on foreign or international policy perceived to have occurred under an otherwise very outstanding President Nkrumah of the First Republic of Ghana. The Netherlands Supreme Court has pre-empted such a situation in the Algemene Bank Nederland v K.F. and others, case, supra and the Ghanaian experience reflected in the above quoted constitutional provisions of our Constitution is thereby vindicated and strengthened.\r\nThe welfare of the people of Ghana in the democratic and modern sense is the grundnorm of Ghanaian law as stated in article 1(1) as follows:\r\nThe Sovereignty qf Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution."\r\nThese are the considerations which have pulled my mind to the construction I have arrived at.\r\nSection 3 of article VI of LN 9 of 1958 provides with regard to the IFC itself as follows: "Actions may be brought against the Corpora/ion only in a court of competent jurisdiction in the territories of a member in which the Corporation has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No action shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the corporation shall wheresoever located and by whomsoever held, be immune from all seizure, attachment or execution before the delivery of final judgment against the Corporation."\r\n16\r\n \r\nIt is clear from this provision that the IFC can he sued in the situation therein sated. The parties do not dispute that this situation obtains in Ghana in respect of the IFC. There is no other legal barrier with regard to legal process as to the IFC. Clearly then legal process like a subpoena duces tecum can issue to the IFC itself and the courts below erred in holding otherwise.See\r\nLzitcher SA. Celulose e Papel and F. Lutcher Brown, Appellants, v.\r\nInter-American Development Bank, Appellee\r\nNo. 20166\r\nUnited Slates Court Of Appeal/s For The District Of Columbia\r\n127 U. S. App. D. C. 238, 382 F.2d454, 1967 U.S App. Lexis 5639\r\nFor all the foregoing reasons I would allow the appeal.\r\n(SGD)	W. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\nAKOTO - BAMFO, J.S.C.\r\nI had the opportunity of reading before hand the opinion of my brother Atuguba JSC and I agree with his conclusion that the appeal be allowed in it entirety and I therefore have nothing useful to add.\r\n(SGD)	V. AKOTO-BAMFO JUSTICE OF THE SUPREME COURT\r\n''7\r\n \r\nSOPHIA ADINYIRA (MRS.) JSC:\r\nThis appeal against the ruling of the Court of Appeal dated 19 December 2006 was fixed for judgment on 11 June 2008 by this Court. On the said date the Appellant took the Court by surprise by praying that we arrest judgment due to some applications he has filed in respect of some other aspect of the substantive case that was pending before another panel. We obliged but unfortunately the judgment could not be delivered as one panel member later declined jurisdiction in the matter for reasons I need not discuss here. When the case was relisted the panel had to be reconstituted as a member of the original panel has since retired and so the appeal had to be heard de novo.\r\nMeanwhile this appeal was overtaken by events. The appellant was convicted and sentenced by the High Court and he was granted full presidential pardon in December 2008. There is also an appeal pending in the Court of Appeal against the conviction and sentence and consequently we might perhaps over-reach the decision of the Court of Appeal by our ruling.\r\nHowever my brother Atuguba is of the view that the matter is not moot so long as it involves a constitutional issue. Be it as it may, I have decided to express my opinion as I depart from my brother on one issue in his opinion.\r\nThe issue is whether a claim for diplomatic immunity from legal proceedings over-rides the constitutional right of an accused person to fair trial under Article 19 (2) (g) of the 1992 Constitution.\r\nThe facts of the case relevant to this appeal are that the Appellant, Mr. Tsatsu Tsikata one time the Chief Executive of Ghana National Petroleum Corporation (GNPC) was standing trial on 3 counts for willfully causing financial loss to the state contrary to section 179A (3) (a) of the Criminal Code of 1960, Act 29; and on one count for intentionally misapplying Public property contrary to section 1(2) of the Public Property Protection Decree 1977, SMCD 140.\r\n18\r\n \r\nOn 9 December 2005, the Fast Track High Court Accra presided over by Henrietta Abban J.A. (sitting as an additional High Court Judge), issued at the instance of the appellant, a subpoena directed at the country director of the International Finance Corporation (IFC) to produce to the Court documents on Valley Farms Project promoted by the Africa Project Development Facility from 1987-1990. Counsel for the IFC appeared in Court to raise an objection on the grounds that the said country director enjoyed diplomatic immunity from legal proceedings which he does not intend to waive. The trial judge upheld the claim of diplomatic immunity and rescinded the subpoena in respect of the country director of the IFC.\r\nCounsel for the appellant then applied to the Court to issue a fresh subpoena directed at the IFC as an institution to come to produce those documents. Counsel raised the same objection that the IFC was also claiming immunity from legal proceedings, and it was upheld. The Court of Appeal affirmed the ruling by the High Court.\r\nThe grounds of appeal and additional grounds of appeal were quite copious and I would refer to the salient issues that call for consideration in this opinion.\r\nOne of the main grounds of appeal urged on this Court was that:\r\n"the failure of the trial court to order the Country Director of the IFC to appear for the defence erred in failing to recognize and enforce the fundamental human right of the accused as expressed in clear and mandatory language in Article 19 (2) (g) of the 1992 Constitution to obtain in attendance and carry out the examination of witnesses to testify on the same conditions as those applicable to witnesses called by the prosecution."\r\nIt was counsel''s submission that, even if there was a right of the IFC country director "to immunity from the judicial process in Ghana conferred by statute, this would be subordinate to the fundamental human rights in the Constitution which cannot be derogated from by statute."\r\nIt is worthwhile to mention that this Court is committed to promote respect for and enforcement of fundamental human rights and freedoms. This Court has therefore in a significant number of cases declared as unconstitutional statutes and statutory provisions that are in conflict with the fundamental human rights and freedoms as enshrined in our 1992 Constitution. Counsel referred to some of these cases namely, the cases of\r\n19\r\n \r\nNPP V. IGP [1993-4] 2GLR 495, Osei v. The Republic (N6.2) and Maikankan v. The Republic. However the considerations that informed those decisions were different from what is presently before this court.\r\nIt appears to me that the issue before us brings to the fore the relationship between municipal (domestic) law and international law and how far the courts can invoke international and regional human rights norms in deciding human rights issues. It also touches on how the Courts are constitutionally required to hold in balance the scales of justice between competing individual fundamental freedoms and human rights on one hand and national or public interests on the other hand.\r\nArticle 19 of the 1992 Constitution of Ghana on the fundamental human right to fair trial provides in part that:\r\n"(1) a person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court.\r\n(2) A person charged with a criminal offence shall -\r\n(g) be afforded facilities to examine, in person or by his lawyer, the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on the same conditions as those applicable to witnesses called by the prosecution" (Emphasis mine)\r\nThe right to fair trial has been described in international law as jus cogens, a peremptory norm of general international law which is defined under Article 53 of the Vienna Convention on the Law of Treaties as:\r\n"A norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character"\r\nSome other examples of jus cogens norms are genocide, crimes against humanity and slavery.\r\nSimilarly, diplomatic immunities and privileges accorded to diplomatic agents and international organizations as provided by Articles 22, 23, 24, and 27 to 40 of the Vienna Convention are also assented to and recognized and adopted by the international Communities of States of which Ghana is no exception. Signing a treaty imposes a moral obligation on the state not to do anything that would deviate from the object and purpose of the\r\n20\r\n \r\ntreaty. A state becomes legally bound to a treaty after ratification, accession, acceptance, approval or. signature where the treaty so stipulates. See Article 2 (b), 12 (1) (a) of Vienna Convention on the Law of Treaties.\r\nIn fulfillment of its international obligations, Ghana has incorporated into its domestic laws the Vienna Conventions on diplomatic immunities and privileges. This domestic statute is the Diplomatic Relations Act, 1962, Act 148. These provisions on diplomatic immunities and privileges of the Vienna Conventions as contained in the First Schedule of Act 148, therefore have the full force of law in our courts.\r\nSection 1 of Act 148 provides:\r\n''Articles 22, 23, 24, and 27 to 40 of the Vienna Convention (which regulate the immunities and privileges, including exemption from taxation, freedom of communication, inviolability of premises and immunity from civil and criminal jurisdiction, to be conferred upon diplomatic agents) shall have the force of law and references therein to the receiving State shall, for this purpose, be construed as references to the Republic."\r\nAnd section 2 provides that:\r\n"Section 2—International Organisations\r\nThe President may, by legislative instrument, make Regulations extending any or all of the immunities and privileges conferred on diplomatic agents by virtue of this Act to prescribed organisations and prescribed representatives and officials, subject to such conditions and limitations as maybe pre scribed."(Emphasis mine)\r\nPrevious to that the International Bank, Fund and Finance Corporation Act 1957 was passed followed by a promulgation of the International Bank, Fund and Finance Corporation (Immunities and Exchange Contracts) Order, 1958 LN 9, whereby diplomatic immunity was conferred on the directors and officers of IFC.\r\nFor our purpose, Article 31(2) of the Vienna Conventions on Diplomatic immunity states that:\r\n"A diplomatic agent is not obliged to give evidence as a witness."\r\nAlthough, LN 9 is a subsidiary legislation it forms part of the laws of Ghana as stated in Article 11(1) (c) of the 1992 Constitution. It is enforceable so\r\n \r\n21\r\n \r\nlong as it is consistent with the provisions of the Constitution. Though an opinion has been expressed that [NY is a subsidiary legislation and therefore cannot override a Constitutional right to fair trial when an accused person is requesting such an officer to appear as his witness, I am of the view that this Court cannot overlook or disregard other considerations such as the rights of others and what has been described as "relevant counterbalancing public interest considerations" per Justice Date- Bah J.S.C. '' The 1992 Constitution that guarantees these fundamental human rights and freedoms in Chapter 5 at the same time limits its application, by the proviso of Article 12 (2). It is an established principle of interpretation that constitutional provisions just like any statute, should not be interpreted in isolation but must be interpreted in their entirety taking into account other provisions of the same Constitution. Thus the enforcement of the rights conferred under Article 19(2) (g) is subject to Article 12 (2).\r\nPublic interest in relation to the rights and freedoms enshrined in Chapter 5 of the Constitution has been discussed extensively in the case of Awun/ V. West African Exam/nation Council [2003-2004] 1 SCGLR 471. Justice Sophia Akuffo JSC at page 505 said in respect of these rights and freedom that:\r\n"Thus, the Judiciary is also required to do everything constitutionally and legally possible to assure that in the exercise of its function, these rights and freedoms are upheld and respected; subject of course to a concomitant respect for the rights and freedoms of others and for public interest." [Emphasis mine]\r\nJustice Date-Bah at page 564 also has this to say:\r\n"Article 12 (2) of the Constitution contains, inter alia, a public interest proviso to the enforcement of the fundamental rights and freedoms of the individual enshrined in Chapter 5 of the Constitution. Article 12 (2) is in the following terms:\r\n"(2) Every person in Ghana, whatever his race, place of origin, political opinion, co/our, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual\r\n''Lecture delivered at the 4I'' J.B. Danquah Lectures: ON LAW AND LIBERTY IN CONTEMPORARY GHANA, February 2008\r\n22\r\n \r\ncontained in this Chapter but subject to respect for the r/qhts and freedoms of others and for the public interest. "(The emphasis mine)\r\nMy understanding of this provision is that an individual''s entitlement to a fundamental human right is to be interpreted in such a way as not to impair public interest."\r\nI fully endorse the views expressed by my learned sister and brother Justices in the Awuni case that some degree of balancing between the enforcement of the rights of an individual and that of other individuals and public interest respectively has to be respected. Wood JSC (as she then was) in the case of The Republic v, Court of Appeal, Accra: Ex parte Tsatsu Tsikata [2005-2006] SCGLR 613, where in an application for certiorari the same submission has been that the appellant''s fundamental rights under Article 19(2)(g) have been violated by the trial court''s acceptance of the plea of immunity commented that:\r\n"The right envisaged under Article 19(2) (g) is like all other rights unbridled or unlimited, the court cannot be said to have been in error. Indeed it is trite learning that the right to compel a witness to testify in court is clearly subject to the witness''s rights and privileges, which include the right to immunity and such other protection as is provided under the Evidence Act, 1975, (NRCD 323)"\r\nFrom the foregoing, I hold that the appellant''s constitutional right to call any witness of his own choice to testify on his behalf is not absolute but limited to the rights and privileges of that witness as required under Article 12 (2). I consider section 8 of LN 9 on diplomatic immunity of IFC officials as one of such restrictions envisaged under Article 12 (2) of the Constitution. The country director of the IFC is not a compellable witness under both our domestic and international laws by virtue of his diplomatic immunity. In that respect it is my considered opinion that once the country director of IFC has declared his intention through counsel that he did not intend to waive his immunity, his claim of right to immunity has to be respected and that should over-ride the corresponding right of the appellant to compel him to be his witness by the issue of a subpoena.\r\nIn addition, there is the balance of public interest to be considered as required by Article 12 (2). As said earlier, Ghana as a member of the U.N. is a signatory to major international conventions, treaties, protocols and agreements including the Vienna Conventions under reference and is\r\n23\r\n \r\ntherefore obliged to keep to her commitments. The Government of Ghana is also obliged by Article 73 of the 1992. Constitution:\r\n"[T] conduct its international affairs in consonance with the accepted principles of public international law and diplomacy in a manner consistent with the national interest of Ghana."\r\nIt is the opinion of my esteemed brother Justice Atuguba JSC that the fundamental human right to a fair trial is ranked above relationship with other states. With due respect, I regard this statement as too sweeping. My point of departure from his opinion is that the case of The Algernene Bank Nederland v. KF. and Others (1987) 96 ILR 344 cited by the appellant in his submissions is clearly distinguishable from the facts of this appeal before us. In the Algemene case the minister was not claiming diplomatic immunity but rather claiming that the information sought was privileged by confidentiality.\r\nThe Judiciary as the arm of government entrusted under the Constitution with the responsibility to administer justice is obliged to apply international norms in the administration of justice. This Court, by recognizing the claim to immunity by the Country Director of IFC is thereby affirming an internationally acceptable norm of diplomatic relationships among states and international organizations which has been incorporated in our domestic laws, viz. The Diplomatic Relations Act, 1962, Act 148. This Court ought to promote respect for international law, and treaty obligations. It is my considered opinion that such an approach is in the national interest. This is one area where the Court in balancing the interest of an individual as against the national or public interest should allow public interest to prevail.\r\nFrom the foregoing I hold that the Country Director of IFC enjoys diplomatic immunity under LN9 and therefore having indicated to the court through counsel that he did not intend to waive such immunity, he was not a compellable witness. I accordingly hold that the Court of Appeal did not err in affirming the decision by the trial court in rescinding the subpoena she had earlier issued. The appeal is therefore dismissed on this ground.\r\nThe second major issue raised in this appeal is whether IFC as an international financial institution is entitled to the same immunity from any form of judicial process like other international organizations and its directors and officers.\r\n\r\n \r\nJUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF.	JUDICIAL SERVICE OF GHA	JDICIAL SERVICE OF GHANA\r\n \r\nIt was a ground of appeal that the Court of Appeal gravely erred when it relied on a statutory provision granting immunity to the International Monetary Fund (IMF) from judicial processes to decide the issue before the Court about immunity of the IFC.\r\nI agree with the conclusion reached by my brother Justice Atuguba that the IFC has no immunity under [NY and therefore the appeal on this ground be allowed.\r\nFrom the foregoing the appeal succeeds in part.\r\n(SGD) S. 0. A. ADINYIRA\r\nJUSTICE OF THE SUPREME COURT.\r\nAKUFFO, J.S.C.\r\nI have previously read the opinion of my learned sister Justice Adinyira and agree with her reasoning and conclusions.\r\n \r\n(SGD)	S. A. B. AKUFFO (MS.) JUSTICE OF THE SUPREME COURT\r\n \r\nANSAH, J.S.C.\r\nI read the judgment by my brother Atuguba JSC as well as what my sister Adinyira ]SC\r\nis about to read and I agree with her judgment, reasons and conclusions that the appeal be allowed in part.\r\n(SGD)	J. A. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL:\r\nE. V. 0. DANKWA FOR THE APPELLANT\r\nMERLEY WOOD O.S.A (WITH HER MRS. SEFAKOR BATSE AND RICHARD GYAMBIBY A.S.A) FOR RESPONDENT.\r\nv-. WN	110001,111\r\n--,1 lZTSu\r\nI''1 ., 0! GI?''\r\nI\r\n', '../links/cases/Document (96).pdf', 'Yes', 'AKUFFO,J.S.C.,ANSAH,J.S.C.,ADINYIRA (MS),J.S.C.,BAMFO,J.S.C.', '2011', 'supreme', '<i><b><font face="Times New Roman" size="3">Criminal Law - Arrest of judgment - Whether delivery of judgment by High Court and pendency of appeal therefrom renders appeal moot - Constitutional Law - Statutory immunity and waiver - International Bank, Fund and Finance Corporation (IFC) 1958, s.8 of Schedule to LN 9 - Interpretation of statutes.International Law - Immunity international organizations.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Criminal', '', 'J3/3/2010', '', '', 'supreme', '2011-01-19', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(542, 'SUMAILA SANUNU  ... PLAINTIFF/RESPONDENT/RESPONDENT\r\nVRS\r\nFRANKLIN GADO SALIFU ... DEFENDANT/APPELLANT/APPELLANT', '\r\n\r\n\r\n\r\n	\r\n\r\nFRANKLIN GADO SALIFU	DIFENDANT/AIPELLArNI''/APPELLANJ\r\nPractice and Procedure - Application for Summary Judgment - Factors to consider - Whether statement of defence disclose reasonable defence/existence of triable issues - Leave to defend action honajIde defence. High Couri (Civil Procedure) Rules, 2004 Cf. 47 Order 14 rule I.\r\nJUDGMENT BAFFOE-BOrNNIE, JSC\r\nThe defendant/appellant (appellant herein) a contractor, was awarded a contract by Ghana Telecom to build Payphone Shelters and Telephone Stand structures in the Wa District. As the appellant''s company was cash strapped, he approached the plaintiff/respondent (respondent herein) to assist him financially to execute the contract. The appellant made a statutory declaration to jointly execute the contract and share the profit from the contract sum. The appellant claims in paragraph 4 of his statement of defence that the statutory declaration was between Franksali Enterprise Ltd. of which the appellant is the Managing Director and the respondent.\r\nUpon completion of the contract a total sum of 0137,286,033.50 was paid to the appellant''s company. The respondent claimed he alone financed the entire project to the tune of 0107.627,000 (paragraph 8 and 9 of the statement of claim) and this was denied by the appellant (paragraph 8 of the statement of defence). The appellant stated that the respondent informed one Mr. Ibrahim Sefa that he spent an amount of 095,000,000 on the execution of the project. Despite the respondents refusal to give receipts to the appellants to show how much he, respondent actually spent, the appellant paid an amount of 094,074,631 to the respondent.\r\n \r\nOn the appellant''s failure to pay what the respondent deemed to be due him on the agreement he brought an action at the High Court claiming a number of reliefs. After the appellant had entered appearance and filed a defence the Respondent applied for summary judgment claiming the Appellant had no defence to the action. To the affidavit supporting the application for summary judgment was annexed a document titled CONTRACT/AGREEMENT in which the defendant was admitting liability and promising to pay certain sums of money within a certain period. The application for summary judgment was granted. The appellant''s appeal to the Court of Appeal against the summary judgment was equally dismissed.\r\nThe Court of Appeal held (page 8)\r\n"-considering that the statement of defence does not disclose any real grounds of defence, we are of the view that the learned trial judge was right in coming to the conclusions he did based on the findings of facts before him i.e. the documentary evidence exhibited. We will therefore not disturb his judgement."\r\nIt is this decision that the Appellant is contesting.\r\nAfter special leave to appeal had been granted by this court, the appellant filed the\r\nfollowing grounds of appeal.\r\n1 The Court of Appeal erred when it held that the document headed CONTRACT/AGREEMENT dated 13th day of april 2004 constituted the basis of this suit\r\nand that the action is one on a promissory note\r\n2 The court of appeal erred when it failed to consider the circumstances in which the\r\ndocument headed CONTRACT/AGREEMENT was procured by the plaintiff and the part the hearing notice issued in the Circuit Court ,Wa on 8th April 2004 by the Circuit Registrar Wa, before the institution of the action on 10th may 2004, played in the\r\nprocurement of that document\r\n3 The Court of Appeal erred when it held that the statement of defence did not\r\ndisclose any real grounds of defence\r\n4 The Court of Appeal failed to consider adequately or at all the case for the\r\ndefendant\r\n5 additional grounds of appeal may be filed upon the receipt of the record of appeal.\r\n2\r\n \r\nNo additional grounds were filed\r\nIn spite of the long list of grounds of appeal I think the main issue to be determined is whether the trial court acted in accordance with the law when it granted an order for summary judgment on the face of pleadings at that stage of the trial, and whether the court of appeal''s confirmation of same is justifiable.\r\nOrder 14, r. 1 of the High Court civil procedure rules as amended by LI 1129 states:\r\n"1. Where in an action begun by writ a defendant has been served with a statement of claim and has entered an appearance, the plaintiff may apply to the Court for judgment against him on the ground that he has no defence to a claim included in the writ, or to a particular part of such a claim, or that he has no defence to such a claim or part except as to the amount of any damages claimed."\r\nAs Jessel M.R. said in Anglo-Italian Bank v. Wells (1878) 38 L.T. 197 at p. 199, C.A.\r\nOrder 14,\r\n"is intended to prevent a man, clearly entitled to money from being delayed, where\r\nthere is no fairly arguable defence to be brought forward."\r\nIt was also noted by my learned brother Kpegah J, as he then was in YARTEL BOAT\r\nBUILDING CO. v. ANNAN [1991] 2 GLR 11, that Order 14\r\n%‘... prescribes the procedure to be followed by a plaintiff who wishes to obtain summary judgment against his adversary. It does not confer on a plaintiff an absolute right to proceed for summary judgment in every case. Its purpose or aim is to permit a plaintiff to obtain summary judgment without necessarily going to trial if his claim is clear and the defendant is unable to set up any bona fide\r\ndefence, or create a sitdation indicating there are triable issues between him and the\r\nplaintiff "(emphasis added)\r\nAt pages 14 and 15 of the report His lordship went ahead to state the conditions under which the court''s jurisdiction can be invoked under Order 14. He said,\r\n"The first is that the defendant must have been served with a statement of\r\nclaim.. .The important consideration is whether the plaintiff''s claim is clear\r\nand whether the defendant has any defence to it.\r\n3\r\n \r\n1\r\nAnother important prerequisite is that the defendant must have "entered an appearance" to the plaintiff''s writ.. If there is no appearance judgment by default may be entered under Order 13....\r\nAn averment that the defendant has no defence to the action should be an integral part of the affidavit; not to downplay the fact that facts must be deposed to indicating that the plaintiff''s claim is real and considerably unimpeachable."\r\nWhat this means is that a judge must come to conclusion that on the face of the claim there is no defence to the action. A defence set up need only show that there is a triable issue; and leave to defend ought to be given unless there is clearly no defence in law and no possibility of a real defence on the question of fact.\r\nSee also the case of AtlantaTimber Co vs Victoria Timber Co Ltd 1962 1 GLR 221 where Charles 3 said:\r\n(1) the purpose of Order 14, rule 1 of the rules of court is to enable a plaintiff to obtain summary judgment without trial, if he can prove his claim clearly. Thus even though a statement of defence may have been filed, the court is not\r\nprecluded from entertaining an application for summary judgment under Order 14, rule 1;.\r\nIn the instant case the Respondent (then plaintiff) in his statement of claim averred that he financed the entire project personally and went ahead to quote the figure. This was denied by the appellant. The amount with which the Respondent financed is also not certain. The Respondent claims it amounts to 4:107,627,000 and to the Appellant it is 4:95,000,000. This amount that was used to finance the project by the Respondent is an issue that the trial court had to determine.\r\nIt is also quite interesting to note that the evidence of "Promissory Note" which seemed to have influenced both the Trial Judge and Their Lordships at the Court of Appeal was never averred to in the Respondent''s statement of claim. To me this was a material fact that the Respondent should have averred to in his statement of claim and not in the subsequent affidavit seeking summary judgment..\r\nIn this court the Appellant is raising issue of duress in executing the "Promissory Note" as he did at the Court of Appeal. This is an issue that would have been properly\r\n4\r\n \r\nresolved at the trial court if the opportunity had been given. And this opportunity would have arisen if the plaintiff had made it a part of his case that he was relying on a promissory note in his statement of claim. Unfortunately he sought to rely on this document only when he brought his application for summary judgment. He thus failed to give proper notice to the Appellant\r\nFurther, the Appellant, in his statement of defence and at all material times, has contended that the Agreement was between his company, a distinct legal entity,\r\nand the Respondent. He only signed as a Managing Director of the company. This position is borne out from the wording of the statutory declaration signed by the parties before the contract works was executed.\r\nParts of the said statutory declaration read;\r\n1.	That I am the Declarant herein\r\n2.	That I make this solemn declaration for and on my own behalf as Managing Director of Franksali Enterprise Wa.\r\n3.	That the said enterprise have been awarded a contract to construct 4 NO PAY-PHONE SHELTER, 20 NO TELEPHONE STAND STRUCTURES FOR GHANA TELECOM WA, UPPER WEST REGION.\r\n4.	That the said enterprise is to execute the said contract jointly with Mr. Sumaila Sanunu of Wa.\r\nIf this claim of the respondent is true then it would seem the wrong party has been sued and that would not entitle the respondent to summary judgment. It matters not whether the Appellant owns all the shares in the company; the company is distinct from the Appellant. Salomon v. Salomon & Co. Ltd. [1897] A.C. 22.\r\nAll the foregoing are veritable triable issues that take this case outside the realm of summary judgment application.\r\nIn YIRENKYI V. TORMEKPEY [1987-88] 1 GLR 533 - 539 when the defendant''s defence raised triable issues as to whether or not, for instance, the plaintiff himself or by his agent inspected the vehicle before the price was paid, and whether or not the failure to effect the proper transfer did not make the plaintiff owner of the vehicle the court held that the application for summary judgment under Order 14\r\n5\r\n \r\nof the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) as amended by rule 2 of the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 1977 (Li. 1129) was incompetent.\r\nIn this case it is my considered opinion that the trial judge and the learned justices of the court of appeal were unduly influenced to consider the strength of the parties'' claim by what they felt was overwhelming documentary evidence, in the form of a promissory note instead of considering whether there were real issues to be tried.\r\nBowen L.J. said in Blaiberg v. Abrams (1910) 77 L.T.J. 255, CA.,\r\n"in deciding whether the defence, set up is a real defence or not, all the circumstances must be looked at."\r\nWhen all the circumstances are looked at in this case, what emerges to me is that the Appellant has put forward a defence, which if it can be proved, the action against him must fail. It may be that he will not be able to prove it at the trial, that is not the question. The question is the outcome of the action on the assumption that he is able to prove what he alleges. Since the action could end differently if he is able to substantiate his defence, I am firmly of the view that summary judgment was inappropriate and ought to have been refused and the defendant given unconditional leave to defend.\r\nI will therefore grant the appeal and remit the case for trial on the merits.\r\nP.BAFFOE-BONNIE\r\n(JUSTICE OF THE SUPREME COURT)\r\nW. A. ATUGUBA\r\n(JUSTICE OF THE SUPREME COURT)\r\nS. A. B. AKUFFO(MS) (JUSTICE OF THE SUPREME COURT)\r\n \r\nS. K. DATE-BAH (DR)\r\n(JUSTICE OF THE SUPREME COURT)\r\nR. C. OWUSU (MS)\r\n(JUSTICE OF THE SUPREME COURT)\r\n\r\n	\r\n\r\n', '../links/cases/Document (95).pdf', 'Yes', 'AKUFFO (MS),J.S.C.,DATE-BAH (DR) J.S.C., OWUSU (MS) J.S.C., BAFFOE-BONNIE,J.S.C.', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and Procedure - Application for Summary Judgment - Factors to consider - Whether statement of defence disclose reasonable defence/existence of triable issues - Leave to defend action - bona fide defence. High Court (Civil Procedure) Rules, 2004 C.I. 47 Order 14 rule 1.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J4/13/2008', '', '', 'supreme', '2009-04-22', ''),
(543, 'IN THE MATTER OF \r\nTHE REPUBLIC\r\nVRS\r\nAUTOMATED FAST TRACK HIGH COURT NO.4(ACCRA)  - RESPONDENT\r\nEX-PARTE: STATE HOUSING COMPANY LTD  - APPLICANT\r\nMRS. DINAH KORANTEN AMOAKO  - INTERESTED PARTY', 'IN THE SUPREME COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA-GHANA\r\nCORAM: WOOD, CJ (PRESIDING) BROBBEY, JSC\r\nDOTSE, JSC\r\nANIN YEBOAH, JSC\r\nBAFFOE-BONNIE, JSC\r\nCIVIL MOTION\r\nJ5/30/2008 26TH_FEBRUARY,_2009\r\nIN THE MATTER OF\r\nTHE REPUBLIC\r\n\r\n	\r\n\r\nSupervisory jurisdiction of court - certiori to quash judgment of High Court delivered on 20'' March, 2008 - whether judgment of trial court on 2501 October, 2007 interlocutory or final - whether application time barred - scope and effect of Supreme Court rules C.I. 16 Rules 61 & 62 as amended by Supreme Court (Amendment) rules 1999, C. I. 24- date of first accrual of cause of action - rule not intractable.\r\nRULING\r\nWOOD (MRS.L JSC\r\nIn this motion to invoke the supervisory jurisdiction of this honourable court, the applicant prays for an order of certiorari directed at the Automated/Fast Track High Court (No. 4) presided over by Her Ladyship, Mrs. Irismay Brown. The purpose is to bring up to this court and to have quashed the judgment of that court dated 20th March, 2008 granting GH100,000.00 to the plaintiff (Interested Party herein) without notice to the defendant.\r\nThe facts which triggered the present application are not complex. On the 25th day of October, 2007, the learned trial Judge sitting in the Fast Track High Court 4 delivered herself in the case of\r\n1\r\n \r\n\r\n \r\nDinah Koranten Amoako	Plaintiff Vs\r\nState Housing Company Ltd	Defendant. as follows:\r\n"The verdict of the court is that the dismissal of Plaintiff was motivated by factors other than the alleged misconduct of the Plaintiff and therefore wrongful. The behaviour of management gives credence to the allegation by Plaintiff that she had been harassed, persecuted and treated in a discriminatory fashion by management in respect of the purchase of her house. She has led evidence to show that officers of lower designations had benefited from both the land and house purchase concessions offered by the Company.\r\nThe Court has taken judicial notice of the frantic attempts made by management to evict Plaintiff and her family from the said accommodation soon after the institution of this suit and intends to take this into account in the award of damages which in any case plaintiff is deemed to be entitled to as a result of the finding by the court, that the purported termination of Plaintiff''s employment was wrongful.\r\nApart from being allowed to purchase her house, Plaintiff is seeking to be reinstated and the award of all benefits she is entitled to or alternatively for an\r\naward of damages. Since the Court is not versed with the current state of affairs, the final award of the court, will be suspended pending further evidence:"( Emphasis ours)\r\nClearly dissatisfied with this decision, the applicant, acting through his counsel, filed a Notice of Appeal on the 20"''of December 2007. On the 5U1 February 2008, when the matter came up before the trial judge for further hearing as she had directed at the previous hearing, the applicant refused, as he was legally and perfectly entitled to do; to participate in the proceedings, as the record of the day clearly reveals. It reads thus:\r\n"By Court: The matter before the court today.\r\nPA\r\n \r\n\r\n \r\nI Aidoo: My Lord, as I pleaded on the last time, not yesterday, we think that having regard to the settlement of the matter the Defendant /Judgment/Debtor (not audible) and again, they have filed an appeal against the matter, and therefore we think that, we don''t want to involve our self in this and that the court can proceed to deliver judgment.\r\nBy Court: I merely wanted to know, first of all she is still in her house, whether you are going to reinstate her, and whether she is in employment. These are the three things that should influence the court in delivering the final verdict in this matter. So there is the question of whether they are still living in the property or they have vacated the property? Whether she has obtained alternative employment or whether she is waiting to be reinstated. So these are the things that you should address me on, before I deliver a final verdict.,."\r\nUnperturbed by their refusal to participate in the hearing, the trial judge proceeded to obtain the information she thought necessary to bring closure to the proceedings, and on the 20 of March, 2008, made the orders complained of. We find however that the facts, on which the impugned decision was based, were obtained from legal counsel at the bar, and not under oath or affirmation as the statutory evidentiary rules mandate.\r\nThe instant application is predicated on the following self-explanatory grounds:\r\na.	"(a) that the trial judge having pronounced or passed final judgment on 2 5th October 2007, in favour of the Plaintiff (Interested Party) she was functus officio and could not therefore cause any further evidence to be led by the said Plaintiff (Interested Party) or her lawyer(s) to state her claim on 6th February, 2008;\r\nb.	that after pronouncing final judgment as aforesaid the trial Judge lacked the jurisdiction to suo motu recall the Plaintiff (Interested Party) or afford her the opportunity to lead fresh evidence on her claims thereby enabling the court to award her reliefs on 20 March, 2008;\r\n3\r\nV.	''\r\n \r\nc.	that the judgment of the trial court on 20th March, 2008 granting reliefs to the Plaintiff (interested Party) after delivering final judgment as aforesaid was a flagrant abuse of the rules/process of court and therefore illegal.\r\nd.	That the Defendant/Applicant herein, not having been served any hearing notice to appear in court on 20 March, 2008 the court breached the audi alteram partern rule of natural justice by conducting a hearing on the matter after final judgment had been delivered by the same court on 25"''October, 2007;\r\ne.	that any proceedings after 25th October 2007 for the purpose of further hearing or evidence as aforesaid, is ultra vires the court and without jurisdiction as same was functus officio;\r\nf.	that a further or second judgment of the trial court dated 20th March 2008, wherein the court awarded GH 100,000.00 without any express reason, explanation, ground or justification being offered, is without jurisdiction and therefore null and void and of no effect."\r\nThe application is therefore based on two main grounds, firstly, that the judge having pronounced final judgment, she became functus officio and lacked jurisdiction to call further evidence and secondly that she breached the rules of natural justice in that she did not give the applicants the opportunity to be heard before delivering the impugned decision of 20th March, 2008. This latter complaint is the most unmeritorious. A party who disables himself or herself from being heard in any proceedings cannot later turn round and accuse an adjudicator of having breached the rules of natural justice.\r\nIndeed, the applicant''s own Exhibit "G" contradicts this unjustified attack. The record demonstrates that it was the applicant who disabled himself from being heard when in clear and unambiguous terms, he expressed his intention not to participate any further in the proceedings complained of. The Applicant''s own supplementary affidavit of 8th of August 2008, confirms this finding.\r\n \r\nIS THE CERTIOARI APPLICATION TIME-BARRED?\r\nOne of the defences raised in response to this application, is a jurisdictional and consequently fundamental objection that the motion be dismissed in limine on the ground that the application is clearly time barred. The argument is that since on the applicant''s own showing, the trial judge assumed jurisdiction to call for the further evidence on the 6th of February 2008, the grounds for this instant application first arose on that date. It was thus urged that the computation of the statutory time limit of 90 days within which the application may be brought, as mandated under Rules 61 & 62 of the Supreme Court Rules CI 16, as amended by Supreme Court (Amendment) Rules, 1999 CI 24, starts from the 6th of February and not the 20111 of March, 2008, the day on which the second or final judgment was delivered.\r\nNot surprisingly, the applicant''s counter-argument is that the grounds for the application arose after the judgment of the 20"''March, 2008, specifically, as soon as the Plaintiff! Interested Party filed a Judgment After Trial to indicate "his readiness to proceed on judgment against the Defendant,"\r\nThe arguments on both sides therefore raise the question of what is the true scope and effect of rule 62 of the Supreme Court Rules CI 18 as amended by the Supreme Court (Amendment) Rules, 1999 CI 24, regarding particularly the determination of the date on which the grounds for an application to invoke our supervisory jurisdiction can be said to have arisen for the first time, that is a cause of action has accrued. Stated differently, what are the indicators a cause of action has accrued, namely that grounds exist for invoking the jurisdiction, the date from which the 90 day statutory time limit begins to run.\r\nThe rule provides:\r\n"62 An application to invoke the supervisory jurisdiction of the court shall be filed within 90 days of the date when the grounds for the application first arose unless time extended by the court."\r\n5\r\n \r\nUnder the amended rule, the statutory period of 90 days was determinable by reference to the date when the grounds of the application first arose and not the date of the decision as existed under the previous rule.\r\nA plain reading of the rule presupposes that the legislature envisages a situation where the grounds could even arise a second or some other subsequent time, but clearly, the time limit begins to run from the date the grounds first arose. It is therefore important that we do set some legal principles for identifying that critical first time. Therefore the following critical question arises for our consideration: how do we determine that grounds for invoking the jurisdiction of the court have indeed, at least for the first time arisen?\r\nIt is indeed impossible, if not imprudent to lay down set criteria for a determination of this vexed question. It is therefore determinable on a case by case basis, guided by some very broad principles, some of which I had occasion to allude to in the relatively recent decision in the case of Republic v High Court, Kumasi; Ex Parte Mobil Oil (Ghana) Ltd (Hagan Interested Party) [2005-2006] SCGLR 312. We had opportunity to determine the scope of the rule 62 and spoke with one voice.\r\nDr. Twum JSC delivering the lead opinion observed that:\r\n"With the amendment effected by CI 24, the time limit within which an application to invoke the supervisory jurisdiction of the court may be filed is determined by reference to the date when the grounds for the application first arose and not the date of the decision against which the jurisdiction is invoked. It is possible the two bases of reckoning may achieve the same result in a few cases but it is most probable that a different time limit will be determined if the amended rule 62 is used."\r\nSome of the general guiding principles I thought should prove useful in determining the existence, for the first time, of sufficient grounds for invoking this jurisdiction are discernible from the observation I made, which is at page 335 of the Ex Parte Mobil case (supra). I stated:\r\n\r\n \r\n\r\n \r\n"It follows that until it has become firmly established that a judge has been entrusted with the actual hearing of a case under consideration, and that he or she has evinced a clear intention not to disqualify himself or herself , when matters which call for his or her recusance are brought to his or her attention or formal objections are raised as to his or her impartiality, or (sic) a party might be acting prematurely or even lack sufficient grounds to invoking our supervisory jurisdiction for the appropriate orders to be made."\r\nIt is to be understood that these are not intractable rules, cast in iron, but guiding principles; with room for expansion and which also allows for reasonableness, flexibility and adaptability in their application. They include the following:\r\n(a)	an applicant must not act prematurely, but have sufficient grounds for invoking this special jurisdiction,\r\n(b)	the judge must evince, for the first time, a clear intention that he or she is clothed with jurisdiction, put in other words manifest a clear intention that he or she will not disqualify himself or herself on the jurisdictional ground complained of.\r\n(c)	ordinarily, such an intention is made manifest when a formal or informal objection to jurisdiction is raised and the judge firmly rules against the objection.\r\nIt does appear to me then that ordinarily, a judge''s first conclusive claim to jurisdiction, whether express or implied, is the date of the decision that he or she does indeed have jurisdiction, not the date on which an objection, if any, whether formal or informal is raised. I would not make the date on which the objection is raised the reference point, the reason being that even when a formal legal objection to jurisdiction is raised, under normal circumstances, the judge must assume jurisdiction to determine that jurisdictional question. The date the judge proceeds to hear and determine that jurisdictional question then cannot be the reference point, but the date on which the judge rules that he or she has jurisdiction and perhaps proceeds to exercise it. Even so I hesitate to present this as the inflexible rule of law.\r\n \r\n\r\n \r\nOn the plaintiff''s own showing, the reference date is the 20th of March, 2008, the date on which the court delivered its final decision, implying that it had jurisdiction not merely to collect the relevant information and even more importantly using the information so gathered to make the impugned orders. The 90 day statutory period thus runs from this date, in which case the applicant is out of time as regards this instant application, albeit for only one day. The motion must therefore be dismissed in limine.\r\nIn this instant case, the judge clearly had jurisdiction to take further evidence before ruling on the case finally. It was indeed obvious from her ruling of 25th that the decision was not a final but an interlocutory judgment. On that day she had ruled:\r\n"Apart from being allowed to purchase her house.(sic) Plaintiff is seeking to be reinstated and the award of all benefits she is entitled to or alternatively for an award of damages. Since the court is not versed with the current state of affairs the final award of the court, will be suspended pending further hearing."\r\nThe 2 Edition, Volume 19 of Halsbury''s Laws of England, defines a final judgment as follows:\r\n"A Judgment or order which determines the principal matter iii question is termed "final" An order which does not deal with the final rights 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)/s made after judgment, and merely directs how the declarations of right already given in the f/na/judgment are to be worked out is termed Ynter/ocutoiy"\r\nIn POMAA AND OTHERS v. FOSUHENE [1987-881 1 GLR 244-265 S. C, the court declared: 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 on\r\n\r\n \r\n\r\n \r\nthe answer to the question whether the decision or order finally disposed of the rights of the parties or the matter in controversy. An interlocutory decision 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 be determined. The test was not to look at the nature of the application but at the nature of the order made..."\r\nCould the judgment of Justice Irismay Brown therefore be said to be final, thus rendering her functus officio? Certainly not! She never effectively determined the substantive matter to finality. In other words, she never dealt with the final rights of the parties. The judge therefore had jurisdiction to admit further evidence-facts she believed was crucial or relevant to the assessment of damages for wrongful dismissal. The application therefore fails on this ground also.\r\nIn applications to invoke the supervisory jurisdiction of this court, the mere failure of the stated ground on which the application is purportedly based, does not end the matter. If there exists on the record some other legally justifiable or sufficient ground for the grant of the order sought or indeed any other order, the applicant is clearly entitled to the appropriate order.\r\nConsequently, although the objection to jurisdiction on the specific ground that the judge was functus officio is not maintainable, the applicant may, if he finds that other grounds exist for invoking the supervisory jurisdiction of this court to have the decision quashed, set the necessary processes into motion to achieve the desired results.\r\nG. T. WOOD(MRS) (CHIEF JUSTICE)\r\n \r\nI agree\r\nS. A. BROBBEY\r\n(JUSTICE OF THE SUPREME COURT)\r\nI agree\r\nJ. V. M. DOTSE\r\n(JUSTICE OF THE SUPREME COURT)\r\nI agree\r\nANIN YEBOAH (JUSTICE OF THE SUPREME COURT)\r\nI agree\r\nP. BAFFOE-BONNIE\r\n(JUSTICE OF THE SUPREME COURT)\r\nCOUNSEL:-\r\nFRANK DAVIES WITH Nil AYITEY OKAI FOR THE INTERESTED PARTY JOHN AIDOO FOR THE APPLICANT\r\n~~rlf\r\nk.\r\n', '../links/cases/Document (94).pdf', 'Yes', 'BROBBEY JSC, DOTSE,JSC, ANIN YEBOAH,JSC, BAFFOE-BONNIE JSC', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Supervisory jurisdiction of court - certiori to quash judgment of High Court delivered on 20th March, 2008 - whether judgment of trial court on 25th October,2007 interlocutory or final - whether application time barred - scope and effect of Supreme Court rules C.I. 16 Rules 61 &amp; 62 as amended by Supreme Court (Amendment) rules 1999, C.I. 24 - date of first accrual of cause of action - rule not intractable.</font></b></i><br>', 'WOOD C.J', 'Civil', '', 'J5/30/2008', '', '', 'supreme', '2009-02-26', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(544, 'THE REPUBLIC\r\nVRS\r\nHIGH COURT, FAST TRACK 2,  - RESPONDENT\r\nEX PARTE: GHANA LOTTO OPERATORS\r\nASSOCIATION.  - APPLICANT\r\nNATIONAL LOTTERY AUTHORITY  - INTERESTED PARTY', 'IN THE SUPREME COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA-GHANA\r\nCORAM: ATUGUBA, JSC (PRESIDING)\r\nDATE-BAH, JSC\r\nANSAH, JSC\r\nADINYIRA (MRS.), JSC\r\nOWUSU, JSC\r\nCIVIL MOTION J5/7/2009\r\n11TH FEBRUARY, 2009\r\n\r\n	\r\n\r\nState Proceedings - certiorari - ground - lack of jurisdiction - exceptions to exercise of discretion - where no useful purpose would be served - exceptional circumstances - not applicable.\r\nATnbit of power of transfer of cases given to Chief Justice - S. 104 (1) - (3) of Act 459 - Directions from Chief Justice Secretariat in contrast with order of transfer by Chief Justice.\r\nRULING ATUGUBA, JSC\r\nI agree with the Ruling of my able brother Dr. Date-Bah, JSC. However, I find it necessary to express my views on certain aspects of this case.\r\nThe first is the ambit of the power of transfer of cases given to the Chief Justice under S.104(1) —(3) of the Courts Act, 1993 (Act 459) as amended.\r\nIt provides thus:\r\n1\r\n \r\n"104 (1) Subject to the provisions of the Constitution, the Chief Justice may by order under his hand transfer a case at any stage of the Proceedings from any Judge or Magistrate to any other Judge or Magistrate and from one court to another court of competent jurisdiction at any time or stage of the proceedings and either with or without an application from any of the parties to the proceedings.\r\n(2)	The order may be genera'' or special and shall state the nature and extent of the transfer and in any case of urgency the power of transfer may be exercised by means of a telegraphic, telephonic or electronic communication from the Chief Justice.\r\n(3)	A transfer of a case made by telegraph, telephone or electronic communication and not confirmed immediately by order signed and sealed in a manner specified by the Chief Justice or any other person authorized in that behalf by him shall be of no effect."\r\nThese provisions are not new: They are a carry over from the inception of our legal system. They came up for consideration in Ose/ v. The Republic (1968) GLR 704 C.A. The issue arose and was dealt with by Apaloo J.A. (as he then was) delivering the judgment of the court at 711 as follows:\r\n"The last submission which was made on behalf of the first appellant is supposed to be a plea to the jurisdiction of the court below as constituted. It is said that as the case originally came before the court constituted by Edusei J. he was lawfully "seised" of it and he could therefore not be divested of jurisdiction without a formal order of transfer made by the Chief Justice in accordance with paragraph 38 of the Courts Decree, 1966 (N.L.C.D. 84). As no such order was made Amissah J.A., who eventually heard the case, had no jurisdiction.\r\nThis argument, whatever its attraction, is not new. It was made in almost identical language in Akairiyah v. The Republic [1968] G.L.R.\r\n \r\n548, C.A., a case in which Mr. Adade was junior counsel, and was rejected in a judgment delivered by this court on 1 July 1968. Learned counsel for the first appellant did not profess ignorance of this decision. His point is, that the Aka/nyah decision claimed its authority from a ruling of the full bench in Asare v. The Repb//c [1968] G.L.R. 37. Mr. Adade says, the Asare ruling did not decide the point and the decision in the Aka/nyah case on this point was therefore given per incuriam. Accordingly, Mr. Adade submits in effect, that the point at issue is re integra and invited us to decide it afresh\r\nWe think, on reflection, that the point in question was not wholly decided in the Asare ruling and some observations made by the court on N.L.C.D. 84, para. 38, may well be obiter in view of the ratio of the ruling. But this court expressed its independent view in the Akainyah case and used the Asare ruling as merely fortifying it, It may be the Asare ruling is not as solid a fortress as the court thought, but that seems a different thing from saying that the decision given in the Aka/nyah case was per incuriam.\r\nIn any event, what Mr. Adade invited us to accept, was that as the case appeared on the list of Edusei J. he was either "seised" of it or it was pending before him and that unless recourse is had by the Chief Justice to his power under paragraph 38 of the Courts Decree, 1966, the case cannot lawfully be "pending" before any other judge of that court. And in the submission of Mr. Adade, the judge will be lawfully "seised" of a case or it will be pending before him, if it ever appeared on his list for whatever purpose. It is perhaps a tribute to legal ingenuity that a provision of an enactment which confers absolute discretion on the Chief Justice to transfer a case from one judge to another, is sought to be interpreted to derogate frorn the authority of judges whom paragraph 29 of the courts Decree, 1966, invests with "equal power and jurisdiction."\r\n \r\nBut in so far as the contention of Mr. Adade is a temptation to us to lay down when and in what circumstances the power of transfer conferred on the Chief Justice by paragraph 38 of the Courts Decree may be properly exercised, we resist that temptation. It would be unwise to hamstring the exercise of a blanket administrative power by a needless judicial interpretation. All we need do, is to state what "seised" of or "pending" of a case before a judge can mean in the context of the practice of our courts. In our opinion, a case can only be said to be properly "pending" before a judge or "seised" of by him if he actually commenced the hearing thereof. We decline to define the word IN or "seised" in vacuo. It can be of no assistance to anyone if we did.\r\nIn this case, in so far as the record of proceedings can be said to be any guide, this case appeared on the list of Edusei J. on six occasions. He did no more than adjourn it on each such occasion. It then came on the list of Azu Crabbe J.A. on two occasions. It suffered the same fate. In our view, this case was at no time "pending" before either of these judges nor was it ever lawfully "seised" of by them. What seems incontrovertible, is that this case was pending in the High Court, There was therefore no need for the Chief Justice to go to the trouble of making a formal order of transfer in exercise of his power under paragraph 38 of the Courts Decree, 1966. We hold therefore that Mr. Adade''s contention fails and this disposes of the appeal of the first appellant.\r\nSections 38 and 39 of N.L.C.D. 84 which wee involved in that case provided as follows:\r\n"The chief Justice may by order under his hand at any time or stage and either with or without application from any of the parties, transfer any cause or matter from a judge of a Court referred to in this Decree to any other Judge of such Court and from a Court referred to in this\r\n \r\nDecree to any other competent Court. The order may be general or special, and shall state the nature and extent of such transfer, and in any case of urgency the power of transfer may be exercised by means of a telegraphic or telephonic communication from the Chief Justice.\r\nNothing in this Part shall validate the transfer of a cause made by telegraphic or telephonic communication and not confirmed forthwith by order signed and sealed in a manner specified by the chief Justice or any other person authorized in that behalf by him."\r\nIt is a trite rule of construction of statutes that when the same or similar words of a statute which have received construction by a superior court are retained in a subsequent statute in pari mater/a, they are presumed to carry the same meaning to which they were earlier given. If this rule were to be applied in this case a different result would have had to be reached. However the said rule is not of inflexible application.\r\nBesides, this court is not bound by the 1968 decisions of Osei v. The Republic and others, though they are of persuasive authority, see In re Agyepong (Decd); Donkor v Agyepong (1973) I GLR 326, C.A. But even if this court were bound by those decisions it could depart from them if necessary under article 129(3) of the constitution.\r\nWith the greatest respect I find the reasoning in Ose/ v. The Republic to the effect that in Ghana a judge is said to be seised of a case oi that it is pending before him only when the judge has actually commenced hearing it difficult to accept, at any rate in relation to the power of transfer of cases by the Chief Justice. I should have thought that a judge is seised of a case when he has power to take any step in relation to the case and that such power begins from the moment the case is listed before him. Therefore in Durston v. O''Keefe (1974) I WLR 775 Forbe J. even held that once the registrar made an order referring a cause to an official referee he became seised of it. See also Taylor J.S.C. in Darke IX v. Darke IV (1984-86) IGLR 481 S.C. at 498. No\r\n \r\nsuch words as "commenced" or "part-heard" are used in sJ04(1)-(3) of Act 459 and should not be read into that section, see Republic v. Fast Track High Court Accra, Exparte Daniel (2003-2004) ISC GLR 364.\r\nI should think that this view of the matter is inherent in the words "...transfer a case at any stage of the Proceedings [and].. .at any time or stage of the proceedings... "To restrict these words to the stage where a judge has actually commenced the hearing of a case would render these words partly inoperative.\r\nSince, however it appears that no objection was taken to the proceedings heard by Armissah J.A. in the Ose/ case, supra, they could have been saved by the principle in Price v. 1-/umpries (1958) 2 Q.B. 353 applied in Ababio v. Tutu (1962) IGLR 489 at 492 S.C. and Rupbl/c v. Ada Traditional Council Ex partie Nene Okunno 11 (197 1) IGLR 412. In the latter case at p.416 Abban, J commenting on Price v. Humpries aforesaid, stated: "The court made it clear that where what is in issue is simply the question whether proceedings are properly authorized, then it is a matter of procedure. So that if the defence was to challenge that and take objection, the objection should be taken before the case for the prosecution is closed...". (e. s)\r\nIt is also known that these days a lot of malpractices with regard to listing cases before judges occur in our courts. For all the foregoing reasons I would sill endorse the principles with regard to the transfer of cases by the Chief Justice as stated in the case copiously referred to by my brother Dr. Date-Bah J.S.C.\r\nAs regards exceptional circumstances that may be outside the strict application of section 104, the question of urgency has been confessed and provided for by S.104(2) of the Courts Act, 1993.\r\nNonetheless in construing a statute whether it concerns jurisdiction or otherwise it is always necessary to bear in mind what Archer J.A said in\r\nL	6\r\n \r\nShardey v. Adamptey and Shardey v. Martey (1972) 2 GLR 380 C.A. At 386 he quotes the words of Sir W. Scott in The Reward(1818) 2 Dod, 265 at 269¬270 that '' the court is not bound to a strictness at once harsh and pedantic in the application of statutes." (e. s)\r\nOne also has to bear in mind the implications of s.104 conferring the power of transfer on the Chief Justice by the designation of that office. Article 297(h) of the constitution provides: "In this constitution and in any other /a\r\nX	x	x	x	x	x\r\n(h) words directing or empowering a public officer to do any act or thing, or otherwise applying to him by the designation of his office, include his successors in office and all his deputies and all other assistants;"\r\nThis adopts the position under administrative law. See Attorney-General of Gambia v. IVJIë (1961) 2 A11ER 504 P.C. and my views in Agbevor v. Attorney-Genera/(2000) SC GLP. 403.\r\nHowever in this case there is no satisfactory evidence of authorization of transfer of the case by the office of the Chief Justice and the facts do not also disclose any exceptional circumstances so as to obviate the application of s.104 (1) —(3) of Act 459.\r\nFor all the foregoing reasons I would also grant this application.\r\nW. A. ATUGUBA,\r\n(JUSTICE OF THE SUPREME COURT)\r\n \r\n\r\n \r\nDATE-BAH JSC:\r\nThe facts in this case are undisputed and relatively simple. The Interested Party in this case applied to the High Court to dismiss an action that had been brought by the applicant and other plaintiffs in this case. Its reason for bringing that application was that because of the opinion expressed by the Supreme Court on 23 td July 2008 on certain constitutional issues referred to it by the High Court in this case, no cause of action survived that the applicant could legitimately pursue. Although the reference had been made by His Lordship Justice Abada, the Interested Party''s application was placed before His Lordship Justice Edward Amoako Asante, by an order of transfer made by the Chief Justice. Justice Asante ruled on 20 August 2008 upholding the Interested Party''s application and characterising the applicant''s suit in the court below as "unmeritorious and an abuse of the judicial process to unlawfully challenge a legally sanctioned act." Aggrieved by this outcome, the applicant filed an appeal and filed an application for an interim injunction on 21st August 2008, which was fixed for hearing on 3rd September 2008. On 3rd September 2008 the case was called before Asante J, who adjourned it to 22 nd October 2008 for hearing. However, on the 22nd October, when the applicant and the other plaintiffs in the suit appeared in the High Court, Fast Track 1, Justice Asante was not available and so his clerk adjourned the case to 6th November 2008. On the same day, however, the case was also called in the High Court, Fast Track 2, presided over by Justice Ofori-Atta. He heard submissions by counsel for the Interested Party, in the absence of the applicant and its counsel, and fixed 4th November 2008 for his ruling.\r\nOn 4 1h November, the applicant and its counsel appeared before Ofori-Atta J and raised an objection to his delivering a ruling in the case on the ground that the case had not been transferred to him by the Chief Justice. Justice Ofori-Atta nevertheless proceeded to give his ruling, dismissing the application for interim injunction. The applicant contends that this ruling and the hearing of the application on 22nd October should be quashed by this Court as having been made without jurisdiction by Ofori-Atta J, since there\r\n8\r\n \r\nwas no order of the Chief Justice transferring the case from Justice Asante to Justice Ofori-Atta.\r\nWhat this Court has to determine is whether certiorari lies to quash the proceedings of 22 nd October and the ruling delivered by Ofori-Atta J on 4th November. From the facts narrated above, it would appear that certiorari should lie, unless a matter restraining the exercise of this Court''s jurisdiction can be established. This is because the clear meaning of section 104 (1) to (3) of the Courts Act, 1993 (Act 459), as amended by the Courts (Amendment) Act, 2002 (Act 620) section 7 and its schedule is that the Chief Justice may by an order under his or her hand transfer a case at any stage of proceedings before any Judge or Magistrate. The clear implication of this is that nobody else, including Registrars, is authorised to transfer a case between judges once proceedings have cnmmced before them. The applicant has relied on case law that reinforces this necessary and obvious implication. The cases he cites are: Soro v Frans [2005-2006] SCGLR 1003; Republic v High Court, Kumasi; Ex parte Mobil Oil (Ghana) Ltd (Hagan Interested Party) [2005-2006] SCG LR 312 and Republic v High Court Judge (Fast Track Division), Accra, Ex parte Quaye and Another (Yovonoo and Others - Interested Parties) [2005-2006] SCGLR 660. I am persuaded by section 104 of the Courts Act and the cases cited above that a Registrar, without an order from the Chief Justice, has no authority to move a case, including interlocutory applications, from one High Court judge to another. If the Registrar does that, the receiving High Court judge acquires no jurisdiction and therefore proceedings before him or her would be null and void. In support of this proposition, I would like to cite the following passage from Wood JSC''s judgment in Soro v Frans (supra) at p. 1008, where she says:\r\n"The power to transfer and thereby take away the jurisdiction of any judge to hear and determine any cause or matter pending before him or her, be it part-heard or a fresh matter, is in stricto sensu reserved exclusively in the Chief Justice under section 104 of the Courts Act,\r\n \r\n1993 (Act 459). A supervising High Court Judge and the Chairman of the Regional Tribunal are also empowered to order the transfer of cases, but their powers are understandably subordinate to that of the Chief Justice."\r\nThe Interested Party seeks to avert this logical conclusion by asserting, through an affidavit deposed to by its counsel, that the action of the Registrar in placing the case before Ofori-Atta J was as a result of directives received from the Chief Justice''s Secretariat. By a letter dated 91ti January 2009, which is annexed to the affidavit of Mr Beyuo, counsel for the Interested Party, Mr. Rexford Gyimah, the Registrar, states that:\r\n"I was not specifically instructed to transfer the suit, the substantive suit was sat on by His Lordship Justice F. Amoako Asante sitting at court one (1) of the Fast Track Division of the High Court and gave judgement.\r\nA motion for Stay of Execution pending Appeal was filed when the said Judge was on leave.\r\nI therefore referred the docket to the Chief Justice Secretariat for directives. Directives from the Chief Justice Secretariat indicated that the case be assigned to His Lordship Ofori Atta, J sitting at Fast Track Two (2) who subsequently gave his ruling on the motion."\r\nIt seems clear from this evidence that the directives from the Chief Justice''s Secretariat fell short of an order of transfer from the Chief Justice, within the intendment of section 104(1) of the Courts Act. Indeed, the facts presented to the Chief Justice''s Secretariat that elicited the response referred to above were inaccurate, since the affidavit sworn to by the applicant''s representative, which was unchallenged, and indeed confirmed, on this point by the Interested Party, indicates that the interim injunction application was placed before Justice Asante before he proceeded on leave. The Registrar seems to\r\n \r\nhave conveyed to the Chief Justice''s Secretariat the impression that the applicant had filed a motion for stay of execution whilst Justice Asante was on leave. It would have been legitimate on that assumption for the fresh application to have been placed before a different judge. But those were not the true facts.\r\nIs there then any factor that should restrain this court from exercising its discretion to quash the proceedings of 2211(1 October and the ruling of 4th November? As is well-known, certiorari is a discretionary remedy and will thus not be automatically applied by this court, except probably in cases of want of jurisdiction. Acquah JSC, as he then was, articulated this principle well in Republic v 1-ugh Court, Accra; Ex parte Attorney-Geiieral (Delta Foods Ltd. —Interested Party) [1999-2000] 1GLR 255, where he says (at p. 273):\r\n"From the above observations what would be the benefit of granting the prayer of the Solicitor-General? No useful purpose at all! It would be a futile grant that would neither vitiate the liability of the State as same was conceded to by the Solicitor-General and pronounced in the judgment of Akoto-Bamfo J, nor advance the course of justice in any way. It would rather lead to unnecessary multiplicity of suits.\r\nIt is indeed important to appreciate that the prayer for the grant of certiorari must be considered from a very broad perspective. -For. being a discretionary remedy it must be, demonstrated that there is real justification and benefit for its'' grant.'' Accordingly, where the results of granting the order achieves no real or just result, the discretion is not exercised. Thus in Haisbury''s Laws of England (3rd ed,) Vol 11, p 141, para 266 it is stated: "Where grounds are made out upon which the Court might grant the order, it will not do so where DO benefit could arise from granting it." See R v Newboioug/i (1869) LR 4 QB 585 at 589; R v Bristol and Exeter Rail Co (1838) 11 Ad & El 202,n; R v Lancaster & Preston Rail (1845) 6 QB 759; R v Un win (1839) 7 Dowl 578; Peak Joint Planning Board v Secretary Stale for Environment\r\n \r\n(1980) 39 P & CR 361; and Republic v Agboka IV; Ex parte Deh III [1984-86] 1 GLR 581, CA.\r\nIndeed, in Miller v Weymouth and Melcombe Regis Corporatian (1974) 27 P&CR 468 at 480-481, the court refused to quash a void decision because the applicant was in no way prejudiced by the said decision. Now by virtue of his involvement as solicitor for the minister, and further participation even in the out-of-court settlement, the Attorney- General was in no way prejudiced by the mere use of the minister as the defendant. Neither did the decision of Nana Gyamera-Tawiah J.\r\nIn the circumstances, the interest of justice dictates that the proper course to take is to amend the title by substituting the Attorney- General for the minister as the defendant in suit No C495/98 so as to save the proceedings and the judgment delivered therein. Especially as such an amendment will not cause any surprise, prejudice and injustice to the Attorney-General who was the solicitor for the minister right from the inception of the suit to its conclusion. For as Bowen Li said in Cropper v Smith (1884) 26 Ch D 700 at 710, CA: "... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct if it can be done without injustice to the other party."\r\nOf course, if the error is fundamental or goes to the jurisdiction of the court in that it exposes the court''s lack of jurisdiction in the matter, then the court is incompetent to correct the error. For a court has no power to grant itself jurisdiction or authority where the statute creating it did not vest it with that power. For instance, if the Supreme Court determines a civil appeal from the circuit court, such an error cannot be corrected to save the judgment of the Supreme Court since by statute the appeal ought to have been determined by the Court of Appeal. Or again if a court gives judgment against a defendant who was never given notice of, nor served with, the writ of summons, the error arising from lack of service or notice of the writ,cannot be\r\n12\r\n \r\ncorrected to save that judgment. In the circumstances of this case, the error arising from the use of the minister as the nominal defendant instead of the Attorney-General as demonstrated above, is neither fundamental nor goes to the jurisdiction of the High Court."\r\nThe facts of the current case are materially different from those in which Acquah JSC made these remarks. The most significant difference is that on the facts of the present case we are dealing with a want of jurisdiction by the High Court. There is, moreover, a public policy as well as a statutory reason that justifies the want of jurisdiction. In the interest of the efficient administration of justice, discipline has to be applied to the actions of the Registrars of the High Courts, through enforcing the regime established by the Courts Act 1993.\r\nIn issue is whether there is any sufficient counterbalancing factor to prevent the quashing of the proceedings and ruling complained of. A factor that arises for consideration in this connection relates to the weakness of the substance of the applicant''s appeal and the fact that the interim injunction it seeks is intended to defy the will of Parliament, which will has been declared to be constitutional by the Supreme Court. This factor is evident from the papers filed before us. Nevertheless, this Court should be careful not to do anything that will prejudge the applicant''s appeal. Although certiorari is a discretionary remedy, it is clear, even from the dictum of Acquah JSC quoted above, that this Court cannot deny it in such a clear case of lack of jurisdiction. Although, on the affidavit evidence placed before us, there is ground for suspicion that the applicant may be abusing the judicial process to delay the implementation of the new statutory regime for gaming, this is not a sufficient basis on which to deny certiorari where it is manifest that a learned High Court judge has exercised a jurisdiction that he did not have. Also, the existence of alternative remedies is one of the factors that the courts have said they will take into account to deny resort to certiorari. On the facts here, I do not see any alternative remedy.\r\n \r\nThe Interested Party has argued that the facts before us present a situation where the "exceptional cases" exception articulated by my learned brother Atuguba JSC in Republic v High Court (Fast Track Division) Accra, ex parte Qua ye and Another (Yovonoo and other - Interested Parties) [2005-2006] SCGLR 660 at p. 664 is triggered. This is what my learned brother said:\r\n"The need to observe administrative and procedural mechanisms in the interests of the smooth administration of justice has been upheld: see Republic v High Court, Cape Coast I; Ex parte Marwan Kort [1998-99] SCGLR 833 and recently stressed by Wood JSC in Republic v High Court, Kumasi; Ex parte Mobil 0/I (Ghana) Ltd. (Hagan Interested Party) [2005-2006] SCGLR 312 at p334 - 335:\r\n"In the administration of justice in our jurisdiction, and I believe that to a large extent the same holds true for other jurisdictions, no one particular judge has exclusive monopoly or ownership rights over any given case. Thus, at the pre-trial stage in particular, a case may, for any sufficient cause be taken away from a judge before whom it was pending. For example, the judge might be asked to proceed on transfer, in which case he loses the privilege of having anything further to do with the case(s) pending before him or her. Again, the Chief Justice''s power of transfer of cases under section 104 of the Courts Act, 1993 (Act 459), from one judge to another, a prerogative meant for the smooth and efficient administration of justice, cannot also be overlooked or treated lightly."\r\nWe think the above dictum of Wood JSC in Ex parte Mobil Oil (Ghana) Ltd (supra) is a realistic view to take of the course ot administration of justice in our judicial system and that, always saving exceptional cases, this should be adhered to."\r\n \r\n14\r\n \r\n\r\n \r\nThe Interested Party''s argument in support of an exceptional case was in the following terms (in its Statement of Case):\r\n"18. It is submitted on behalf of the Interested Party that given the circumstances of this case, the placing of the application before Ofori-Atta J in the absence of Asante J was in accord with the administration of justice.\r\n19.	There was the need to have an expeditious determination of the\r\nplaintiffs'' motion for injunction. This was to guide the Interested Party in carrying out its statutory functions under Act 722. Whilst the application for injunction was pending, if the Interested Party had attempted to enforce the provisions of Act 722, the self-same plaintiffs would have cited the Interested Party for contempt.\r\n20.	Since the matter was referred to Ofori-Mta J for the sole purpose of determining only the application for injunction pending appeal, pending the return of Asante 3 from leave, it is submitted it was not necessary for Her Lordship the Chief Justice to comply with the provisions of section 104 of the Courts Act.\r\n21.	Even if we be wrong in our argument above it is our submission that that no useful purpose will be served in granting the instant application therefore this court ought to refuse it."\r\nI must say that I am not persuaded by this argument. What the Registrar should have sought when he referred this matter to the Chief Justice''s Secretariat should have been an order of transfer. Not hiving got such an order, he had no authority to move the case from one judge to another. The delay in the State''s mobilisation of revenue under Act 722, which has been\r\n \r\n\r\n \r\nurged on us by counsel for the Interested Party, cannot be a relevant consideration in determining a matter of jurisdiction affecting the High Court. Accordingly, I think that the proceedings and ruling before Justice Ofori-Atta should be brought to this court to be quashed and the same are hereby quashed. The application for interim injunction is hereby remitted to Justice Asante for urgent consideration. The Registrar of this Court should ensure an expeditious dispatch of this case back to the High Court for the application to be re-heard.\r\nIt would be inappropriate for this Court itself to decide on the interim injunction application, as requested by the Interested Party. This is because what was argued before this Court was the certiorari application and not the interim injunction application. Although this Court has the powers of the High Court in dealing with consequential matters arising from exercising its supervisory jurisdiction, I think that the interest of justice would be better served, on the facts of this case, for the case to be remitted to the High Court for the interim injunction application to be properly argued before the High Court.\r\nDR. S. K. DATE-BAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nI agree\r\nJ. ANSAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nI agree\r\nS. 0. A. ADINYIRA (MRS)\r\n(JUSTICE OF THE SUPREME COURT)\r\n \r\n\r\n \r\nI agree\r\nR.C. OWUSU (MS)\r\n(JUSTICE OF THE SUPREME COURT)\r\nCOUNSEL\r\nKIZITO BEYUO FOR THE INTERESTED PARTY.\r\nAURELIUS AWUKU WITH ANDREW OBENG FOR THE APPLICANT.\r\n \r\n\r\n \r\n17\r\n', '../links/cases/Document (93).pdf', 'Yes', 'DATE-BAH,J.S.C., ANSAH,J.S.C., ADINYIRA (MRS),JSC, OWUSU,J.S.C.', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">State Proceedings - certiorari - ground - lack of jurisdiction - exceptions to exercise of discretion - where no useful purpose would be served - exceptional circumstances - not applicable. Ambit of power of transfer of cases given to Chief Justice - S. 104 (1) - (3) of Act 459 - Directions from Chief Justice Secretariat in contrast with order of transfer by Chief Justice.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J5/7/2009', '', '', 'supreme', '2009-02-11', ''),
(545, 'MERCHANT BANK GHANA LTD  --- PLAINTIFF/APPELLANT\r\nVRS\r\nSIMILAR WAYS LTD  --- DEFENDANT/RESPONDENTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\ni1it.1JJti\r\nACCRA, A.D. 2011\r\nCORAM ATUGUBA, J.S.C. (PRESIDING)\r\nANSAH, J.S.C.\r\nOWUSU (MS), J.S.C.	29/3/2011\r\nGBADEGBE, J.S.C.\r\nA.BAMFO (MRS), J.S.0\r\nCIVIL MOTION	J8/38/2011\r\nMERCHANT BANK GHANA LTD.	PLAINTIFF/APPELLANT VRS\r\nSIMILAR WAYS LTD.	DEFENDANT/RESPONDENTS\r\nPractice and Procedure— Application for interlocutory Injunction pending appeal\r\nta against the Judgment of the High Court— Repeat application to the Court of Appeal and appeal to the Supreme Court— Invoking the inherent jurisdiction of the Superior Courts— 1992 Constitution, art. 126(2) - Cl 19, rule 7—Cl 16, rule 5.\r\nATUGUBA, J.S.C:\r\nThe plaintiff/Appellant/Appellant/Applicant sued the Defendants/ Respondents in the High Court, Accra claiming:\r\na)	The recovery of$ 30,808.30 or its cedi equivalent being the balance of the Pre-Export Facility account at 1st December, 2000.\r\nb)	Interest on the said sum at the current bank rate from 15t December 2000 till date of final payment.\r\nc)	In addition to or in the alternative the judicial sale of the mortgage property used by the 211d defendant to secure the Pre-Export Facility.\r\n \r\n\r\n\r\n\r\n \r\nAfter the conclusion of the hearing judgment, after several adjournments was delivered on the 81h day of January 2009, for inter alia, $80,000 or its cedi equivalent and Gh5,000.00 costs on the defendants'' counterclaim.\r\nThe applicant, claiming non service on it of any notice of the date for judgment first moved the High Court on 10/9/2009 to set aside both the delivery of judgment and its entry and for interim stay of execution of the same. This application was dismissed on 21/1/2010. On 29/1/2010 the applicant filed an appeal against the Ruling dismissing its said application and also against the judgment dated 8/1/2009 aforesaid. It thereupon as a second step, applied to the High Court for stay of execution but same was dismissed. The applicant''s third step was to repeat its application for stay before the Court of Appeal, but withdrew the same.\r\nIts forth step was to file on 15/4/2010 an application for interlocutory injunction pending appeal. In the meantime it obtained, (having earlier failed in the High Court), leave of the Court of Appeal on 16/6/2010 to amend its notice of appeal by deleting that part thereof relating to the original judgment dated 8/1/2009.\r\nWhen its application for interlocutory injunction in the High Court was dismissed on\r\n28/7/2010 the applicant repeated its application for the same at the Court of Appeal. The\r\nCourt of Appeal dismissed the application, holding per Akamba J.A as follows:\r\n"The only appeal referable to the present application is that filed on 29" January 2010 which, at best, is an appeal against the ruling of His Lordship Ahdullah Iddrisu J, delivered on 21s'' January 2010 refusing to stay execution of the decision of the High Court dated 8h1 January 2009. Incidentally this ruling of 21'' January 2010 is not executable and could not ground the interlocutory application befbre us. The present application being an application for interlocutory injunction pending appeal should properly be premised upon an appeal before us. As would be observed the applicant failed to file an appeal against the decision of the High Court sought to be restrained i.e the decision delivered on 8'' January 2009. We have no option than observe that in the absence of such an appeal the present application for interlocutory injunction is not\r\n \r\nproperly premised. As indicated supra, the peculiar jurisdiction of the Court of Appeal demands that this court''s jurisdiction be invoked upon the filing of an appeal, properly so called."\r\nPursuant to this Ruling the applicant on 21/12/2010 appealed to this court. The applicant then unsuccessfully repeated in the Court of Appeal its application for interlocutory injunction pending appeal. Hence the present application before this court "for an order of interim injunction to restrain the Defendants/Respondents/Respondents and the Deputy Sheriff from enforcing the judgment of the High Court irregularly delivered by Her Ladyship INKUMSAH ABBAN dated 8th January, 2009..." (e.$)\r\nThe applicant relies particularly on the decision of this court in In Re Yendi Skin Affairs; Yakuhu II v. Abdulai (1984-86)2 GLR 231 S.0 in which this court granted a stay of execution pending appeal subject to ternis including injunctions. This court held as stated inter alia in holding (1) of the headnote that "Where, however, an appeal had to delay from one cause or another, either party was entitled, by applying to the court, to seek such interim remedies as would protect his interests, if he should eventually win the appeal."\r\nIt is to be observed however that this court did not in the In re Yendi case seek to overthrow the statutory framework for stay of execution of judgments. Indeed the applicant''s application for stay of execution was based on rule 20 of C113.\r\nRemedies not expressly provided for\r\nNonetheless the Rules of Court cannot cover every conceivable situation that may arise pending the determination of an appeal. Clearly, for example, the judgment creditor who has had a stay of execution granted against him may, like his counterpart in the In re Yendi case, be faced with certain serious detriments from the judgment-debtor''s activities. Yet there is no provision in CI.16 offering him relief. In such a situation as was held, it is reasonable to grant\r\n \r\n\r\n\r\n \r\nan injunction to protect his interests pending the determination of an appeal even though no express rule in Cl. 16 warrants such a course.\r\nSome other examples of interlocutory reliefs granted though not expressly covered by the Rules of Court are, a suspension of a disciplinary sanction imposed on a lawyer pending the determination of his appeal - see Republic v. General Legal Council Disciplinary Committee; Ex parte Aboagye dci Costa (1989 - 90) 2 GLR 164 C.A. or the suspension of a fine for contempt pending appeal, see Republic v High Court, Tema, Ex parte Kofi (1999-2000) I GLR 61 C.A., Lee v. Walker (1985) 1 All ER 781 C.A. Further examples are a suspension of execution pending the determination of an application for review of an order granting leave to levy execution see Baiden v Ansah (1973) I GLR 33, a registrar''s suspension of execution pending the hearing of a pending motion for stay of execution, see Joseph v Jebeile (1963)! GLR 387 SC and Republic v Circuit Court Registrar; Ex parte Arthur (1980) GLR 309 C.A at 312, 315 or even stay of proceedings pending appeal in another case, the outcome of which is relevant to the case at hand, see Vanderpuije v. Akwei (1971) 1 GLR 242.\r\nSettled Powers of the Courts\r\nThe foregoing instances of power of suspension of execution or of proceedings can be justified in several ways. They maybe settled practices of the court. They may be inherent powers. They may be determined or justified under the residual powers of the court under r.7 of CI. 19 in the case of the Court of Appeal or under r.5 of CI. 16 of this court. Furthermore they are covered by article 126(2) of the 1992 Constitution which provides thus: "(2) The Superior Courts shall be superior courts of record and shall have the power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of'' this Constitution." (e.$). It is such powers as have been referred to strongly by judges of high authority in such cases as Secretary of State for Trade and Industry v Bannister (1996) 1 All ER 993 C.A.\r\n \r\n\r\n\r\n \r\nAs was hItLntly put by Lord Wilberforce in A v. Liverpool City Council (1982) AC 363 at 372 concerning a local authority''s statutory powers over children''s welfare:\r\n"In cases (and the present is an example) where the court perceives that the action sought of it is within the sphere of discretion of the local authority, it will make no order and the wardship will lapse. But in some instances, there may be an area of concern to which the powers of the local authority, limited as they are by statute, do not extend. Sometimes the local authority itself may invite the supplementary assistance of the court. Then the wardship may be continued with a view to action by the court. The court''s general inherent power is always available to fill gaps or to supplement the powers of the local authority: what it will not do (except by way of judicial review where appropriate) is to supervise the exercise of discretion within the field committed by statute to the local authority."\r\nCourt Lapses\r\nOne of the most settled and fundamental principles of justice is that no one should be prejudiced by a default of a court. Thus in R v. Criminal Injuries Compensation Board (1977)1 All ER 171 C.A at 174 Denning M. R forcefully said: "It is a general principle of our law that no one should suffer by the delay of the court or its officers. The maxim is: actus curiae nemini Jàcit injurial?z" (e.$) See also Ameyibor v. Komla (1980) GLR 821 C.A. Consequently when a court has by itself, for example, made an invalid order no rule of law or constitution of the court can prevent it from setting aside such an order. See Mosi v. Bag yina (1963) 1 GLR 337 S.C. In the common law world the non service on a party of proceedings affecting him gravely affects the pursuant decision, even as a matter of discretion, such as under the new 0.81 of the High Court Civil Procedure Rules, CI 47 and in most cases will result in its being set aside. See Republic v. High Court, Accra; Ex parte Ailgate Co. Ltd (Amalgamated Bank Ltd Interested Party) (2007-2008) SC GLR 1041.\r\nIn this case the applicant applied to the High Court to set aside the delivery (rather a novel idea, instead of the judgment itself), of the judgment on the ground that it was not served with\r\n \r\n\r\n \r\nany hearing notice for the same. it has appealed from the High Court''s dismissal of that application and pending its determination applied unsuccessfully to the High Court and Court of Appeal for an interim injunction to restrain the execution of the judgment. It has sought that relief from this court pending its appeal from the adverse ruling of the Court of Appeal. All along, it is obvious that its applications and appeals do not relate to any executable order. That however does not mean that it has no interest in holding off the enforcement of the substantive judgment to which its processes relate.\r\nIf a stay of execution cannot lie other remedies may lie. One of such remedies can be the suspension of the entry of judgment. In that event the effect of the judgment itself is temporarily frozen and incidental processes such as execution can''t fly not because execution thereof is stayed but that the life of the judgment itself is in coma. This measure will prevent the eventual success of the applicant''s appeal being rendered nugatory.\r\nThis measure will protect the applicant from being injured by the prima facie default of the trial court having delivered its judgment without notice to the applicant, pending the determination of its appeals.\r\nWe have already, Ut supra,set out the legal basis for such an order. But its plenitude need not be curtailed. Apart from powers of stay of execution the Court of Appeal has other interlocutory powers under r.31 of the Court of Appeal Rules C. 1 19 which could cover the kind of order made herein. This court can also exercise those powers of the Court of Appeal by reason of article 129(4) of the 1992 Constitution. Thus in Secretary of State for Trade and Industry v Bannister, supra, at 996-997 Morritt L.J (Sir John May and Glidewell L.JJ concurring) lucidly stated thus:\r\n"The only case to which we were referred in which these and related questions have arisen is Re Auto Eleciro and Powder Finishers, Secretary of State for Trade and Industry v Price (5 May 1995, unreported) in which Chadwick J gave judgment. In that case a disqualification order had been made and suspended pending an\r\n \r\napplication for leave to act as a director of a specified company under s 17. That company went into liquidation, so that the application was not pursued. Chadwick J was concerned with an application for a further disqualification in relation to that company. At the conclusion of his judgment he inade a number of comments on the suspension of the earlier disqualification order. First, he doubted whether the court had had jurisdiction to make it. Second, he expressed the view that it was not an order which should have been made, since as the court could not alter the date at which the disqualification order commenced the effect of the suspension was to shorten the period of the disqualification. He suggested that an interim order giving leave to act as a director would have heen more appropriate.\r\nIt is not disputed that an appeal lies to the Court of Appeal from a disqualification order made in the High Court or the county court. As with any appeal, the Court of Appeal has power to make any order which the court below might have made. Thus the period of the disqualification may be extended or reduced or discharged altogether. In those circumstances it would be surprising if the court did not possess the lesser power to stay or suspend its order pending the appeal.\r\nIt is true that the court has power to alleviate the efftct of the order pending appeal by giving leave to act as a director pending appeal as permitted by ss 1 and 17. But although this power may be sufficient in the normal run of cases it is not necessarily adequate for dealing with the extreme case in which the court below wemit badly wrong and the very existence of the disqualification order causes irreparable hill-in to the person apparently disqualified. In such hard though rare cases the power conferred by s 17 would not be sufficient to achieve justice. Accordingly, in my view this question must be approached on the basis that clear words are needed to exclude the usual and necessary power to stay or suspend an order pending appeal.\r\n \r\nIn form the words said to have achieved this effect are part of a definition of a disqualification order, for they follow the words ''that is to say''. I do not accept the submission for the Secretary of State that the definition ends with para (d), for the period is necessarily part of the definition as the court has no power to disqualify for an unlimited period. It would be surprising if a definition had the effect of excluding the inherent jurisdiction of the court in the way contended for. In my view it does not. The definition, without more, cannot exclude the jurisdiction to stay or suspend the order being defined. Thus the words ''beginning with the date of the order'' do not preclude the suspension of that order. Accordingly, that effect must he derived, if at all, from the use of the words ''and under section 6 shall''. But again, these words cannot be sufficient to exclude the usual power to stay an order pending appeal, for a statutory duty to snake the order in prescribed circumstances has never, without nzore, been considered sufficient to exclude or restrict the powers of the Court of Appeal in respect of the order made" (e.$)\r\nWe have not unnoticed the procedural meanderings indulged in by the applicant, but we are here confronted with an originating vice of a court which in a suit biter panes has delivered its judgment ex parte thereby infringing the hallowed principles of natural justice as to fair notice and hearing (here even if as to the issue of costs) and that justice must not only be done but must also manifestly and undoubtedly be seen to be done. In such compelling situations procedure takes a back seat see Jonesco v. Beard (1930) A.C. 298 H.L.\r\nIt is trite law that when a judgment is passed and entered it becomes the final operative judgment of the court, see Republic v. Court of Appeal, Ex parte Ghana Commercial Bank Pensioners Association (2001 - 2002)1 GLR 502 S.C.\r\nIn the special circumstances of this case the entry of judgment in the High Court filed on 28/7/2009 dated the 8Lh day of January 2009 is hereby suspended pending the determination of the applicant''s appeal to this court from the Ruling of the Court of Appeal.\r\n \r\n* Ak\r\nI	(SGD)	W. A. ATUGUBA\r\nJUSTICE OF THE SUPEME COURT\r\n(SGD)	J. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)		R. C. OWUSU(MS.) JUSTICE OF THE SUPREME COURT\r\n(SGD)		S. GBADEGBE J.S.0 JUSTICE OF THE SUPREME COURT\r\n(SGD)		V. AKOTO-BAMFO [MRS.] JUSTICE OF THE SUPREME COURT\r\nCOUNSEL:\r\nANASTASIA AKUOKO FOR APPLICANT.\r\nA. A. SOMUAH ASAMOAH FOR DEFENDANT/RESPONDENT.\r\n-\r\n\r\n', '../links/cases/Document (92).pdf', 'Yes', 'ANSAH,J.S.C, OWUSU (MS.),J.S.C., GBADEGBE, J.S.C., A.BAMFO (MRS),J.S.C.', '2011', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and Procedure - Application for interlocutory Injunction pending appeal against the Judgment of the High Court - Repeat application to the Court of Appeal and appeal to the Supreme Court - Invoking the inherent jurisdiction of the Superior Courts - 1992 Constitution, art. 126(2) - CI 19,rule 7 - CI 16, rule 5.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J8/38/2011', '', '', 'supreme', '2011-03-29', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(546, 'THE REPUBLIC\nVRS\nCENTRAL REGIONAL HOUSE OF CHIEFS\nEX-PARTE: OPANYIN KOBINA AMOAH  ... APPLICANTS/RESPONDENTS/APPELLANTS\nKOJO NKRUMAH  ... INTERESTED PARTY (APPELLANT/RESPONDENT)', 'IN THE SUPREME COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA-GHANA\r\nCORAM: WOOD, CJ (PRESIDING)\r\nBROBBEY, JSC ANSAH, JSC DOTSE, JSC BAFFOE-BONNIE, JSC\r\nCIVIL APPEAL\r\nNo. J4/8/2008\r\n14TH JANUARY, 2009\r\n\r\n	\r\n\r\nChieftaincy Act 971 (Act 370) sec 23(1) and sec 15(1) - Chieftaincy Dispute - factors to be considered in determining choice of judicial committee forum to hear chieftaincy petition.\r\nJUDGMENT BROBBEY, JSC\r\nThe undisputed facts in this application were that the occupant of the Adonteng Stool of the Twifo Hyeman Traditional Area died: Succession to that Stool was\r\nthe prerogative of the Aberadze family of that Traditional Area. It was alleged that the Obaapanyin and Head of that family were acting on the instructions of the paramount chief of Twifo Heman Traditional Area, the first respondent herein, to impose on the stool as an Adontenhene, one Mensah Marfo who did not hail from the right lineage of the Adonten Stool.\r\nThe litigation started by the Stool elders filing a petition in the Central Regional House of Chiefs for a declaration to prevent the installation of Mensah Marfo as Adontenhene. The appellants in the instant appeal then filed an application in the Cape Coast High Court to restrain the Regional House from hearing the\r\npetition on the grounds of want\r\n1\r\n \r\n\r\nof jurisdiction. The basis of the application was this; the general rule is that Regional Houses of Chiefs are mandated to try disputes involving the Asantehene and paramount chiefs as stated in the Chieftaincy Act, 1971(Act 370), s. 23(1) which provides that\r\n"Each Regional House of Chiefs shall have the following original and appellate jurisdiction:-\r\n-I	(a) Original jurisdiction in all matters relating to a paramount stool or the occupant of a paramount stool..."\r\nOn the other hand, traditional councils are mandated to try disputes involving chiefs\r\nbelow paramount chiefs. The authority for this is Act 370, s. 15(1) which reads: "Subject to the provisions of this Act and to any appeal therefor, a Traditional Council shall have exclusive jurisdiction to hear and determine any cause or matter affecting Chieftaincy which arises within its area, not being one to which the Asantehene or a paramount chief is a party."\r\nThe Adonten stool is a divisional one which is below a paramount stool: The applicants therefore argued that a dispute involving it should be tried in the Twifo Heman Traditional Council but not the Regional House of Chiefs. The respondents opposed the application by contending that since disputes involving a paramount chief were triable in Regional Houses of Chiefs and the first respondent was a paramount chief, the dispute involving him should be tried in the Central Regional House of Chiefs.\r\nThe High Court, presided over by B. 0. Tetteh J., granted the applicants'' application by ruling that the Twifo Heman Traditional Area and not the Central Regional House of Chiefs had jurisdiction to try the petition. The respondents to the application appealed to the Court of Appeal. By a split decision of two against one, the Court allowed the appeal and reversed the decision of High Court. It was against that split decision that the appellants have appealed to this court.\r\nThe grounds of the appeal were as follows:\r\n"(a) The majority misdirected itself when it held that the Judicial Committee of the Central Region had jurisdiction to hear the petition titled\r\n''Kojo Nkrumah\r\nJoseph Etse Kwaw\r\n \r\nJoseph Kyeremea Yaa Kyerewa\r\nV.\r\nNana Amoa Sasraku 111\r\nObaapanyin Abena Emuyaa''\r\nmerely because Nana Amoa Sasraku II was a party.\r\nb) The majority misdirected itself when it distinguished the decision in Republic v Western Region House of Chiefs; Ex parte Aduhene II [1994-95] GBR 903.\r\nC) The majority was in error in its decision in the face of the relevant provisions of Act 370, the Chieftaincy Act of 1971.\r\nd) the majority misdirected itself when it based its decision on portions of the 1992 Constitution."\r\nIn arguing the appeal on behalf of the appellants, counsel for the appellants contended that the subject matter of the petition related to the "Adonten" stool of Twifo Heman Traditional Area. That stool was a divisional one. Therefore disputes involving it should be tried in the Twifo Hernan Traditional Council: Reliefs (a), (b) and (c) of the petition (which are quoted below) should have been tried in that Council. On the other hand, they contended further that since the Vt respondent was a paramount chief, the dispute involving him could only be tried in the Regional House of Chiefs. Relief (d) (also quoted below) which was against him should have been pursued in the Central Regional House of Chiefs and not the Twifo Heman Traditional Council.\r\nThe petition which triggered off the instant litigation claimed the following reliefs:\r\n"(a) A declaration that the purported intentions of the respondents to install one Mensah Marfo as the next Adontenhene of the Twifo Heman Traditional Area is contrary to the customary practices of Twifo Heman.\r\n(b) A declaration that the next Adontenhene should be someone appointed and approved of by the Aberadze family of Twifo Heman\r\n© An order for perpetual injunction to restrain the 2 n and 3rd respondents or any person lawfully claiming through them from installing one Mensah Marfo as the next Adontenhene.\r\n \r\n(d) An order for perpetual injunction to restrain the l respondent from participating in any ceremony relating to the installation of or swearing one Mensah Marfo as the next Adontenhene."\r\nA simple reading of the reliefs will disclose that the real issue raised by the petition was the installation of the Adontenhene of Twifo Hemang. That issue involved the nomination, election, selection and installation of the right person as the Adontenhene. This is what is required by the 1992 Constitution, art 277. The article provides for the definition of a chief but it at the same time outlines the processes for the making of a chief. Article 277 provides that:\r\n"In this Chapter unless the context otherwise requires, ''chief'' means a person who, hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled, enskinried or installed as a chief or queenmother in accordance with the relevant customary law and usage."\r\nFrom this passage, it can be deduced that it is out of the appropriate family that an individual can be made a chief. It is that family who knows who constitute its members and its royals and those who should be in the right lineage.\r\nWhen a chief has to be installed, there are designated elders of the family in the position of kingmakers who are entrusted with the power to take decisions on the processes to be followed. In practice, king makers have the authority to "nominate, elect or select and enstool , enskin or install a chief or queenmother." This was\r\nexpatiated upon in In re Kwabeng Stool; Karikari v Ababio[2001-2002] SCGLR\r\n515 in holding three of the report. That case involved the installation of a queen\r\nmother but it expounded the general principles on installation as follows:\r\n"There are three processes involved in the enstoolment of a chief or queen mother, namely, nomination, election and installation. While the right to nominate the omanhene (paramount chief) or ohene (chief) lies with the queenmother, the right to nominate the queenmother lies with the omanhene or ohene. After the nomination, the election is made by the kingmakers with all the relevant sections of the family; and the installation is done with the people (including the elders) who take turns to swear the oath of allegiance to the omanhene or ohene after he has sworn to them."\r\n4\r\n \r\nThis passage, like that of article 277 quoted above, also emphasizes the fact that a person is made a chief by his kingmakers who must necessarily be members of his family.\r\nily.\r\nThe definition in article 277 and the decision in In re Kwarbeng Stool alluded to raise the issue of installation. Installation is the formal enstoolment of the chief elect onto the stool. It takes various forms and the ceremony differs from one tribe or clan to the other. In the Akan areas of which the Twifo Heman Traditional Authority is one, it takes the form of the chief elect swearing the oath of allegiance to his overlord or paramount chief while the overlord or paramount chief in turns swears to him, after which he will be lowered thrice on the stool.\r\nThe most significant feature of the installation is that it climaxes the enstoolment ceremony. It is does not begin the enstoolment and it does not take place in the middle of the enstoolment. In essence, the individual is nominated first, and then he is elected and selected as the chief. Each process has its own requirements and preconditions which must be satisfied. The thrust of all the three processes of nomination, election or selection is that it is after the individual has gone through them that he is made a chief. He is made a chief by the stool elders and king makers who are members of the Aberadze family. It is the contention of the appellants that the first respondent is not a member of the Aberadze family which has the prerogative to nominate, elect and select the Adontenhene. That has not been denied by the respondents. He cannot participate in the decision to nominate, elect or select the candidate as a chief, let alone take it upon himself to decide who should be the Adontenhene of Twifo Heman.\r\nAt customary law, the individual to be sworn does not appear before the paramount chief in his capacity as a contestant applying to be made a chief. He appears before him after he has gone through the three main processes of being made a chief: Simply stated, by the time he appears before the paramount chief to swear before him, he is already a chief. The ex post facto function of having to be sworn in by the paramount chief will not be enough to transform the swearing in ceremony before the chief into a function of the paramount chief who is performing the swearing in ceremony.\r\n \r\nThere is the temptation to argue that without the swearing in by the paramount chief, the installation of the Adontenhene is invalid. That argument will imply that even after the chief has been nominated, elected, selected and installed by his people, his status as a chief can be invalidated by the paramount chief. That argument will not be correct because the customary rule is that it is only those who enstool who have the capacity to destool. Authority for this can be found in Essilfie v Anafo [1993-94] 2GLR 1 in which the customary law principle was stated as follows in the headnote:\r\n"The power to destool a chief was a customary right vested in the kingmakers\r\nwho alone have the power to make and unmake a chief at customary law."\r\nThe principle that it is only those who enstool who can destool makes a great deal of sense. This is because that aspect of chieftaincy disputes is like the feeling of pain in the body of a person. No-one can feel pain for another person. A person is a chief over those who have nominated, elected, selected and installed him as their chief. For the purpose of determining the validity of his capacity as a chief, he is not a chief over people outside his paramountcy or division. This is the position, notwithstanding the courtesies accorded him by every one who encounters him in his official capacity after he has been installed as a chief. It follows that people outside the paramountcy or division cannot take it upon themselves to depose a person who is not their chief. The paramount chief of Twifo Heman is outside the people who are within the division of the Adontenhene and who can make the Adontenhene: He therefore cannot take it upon himself to nullify the installation of the Adontenhene or invalidate the installation by his refusal to swear in the Adontenhene. To hold otherwise would imply giving the paramount chief the power to decide who should be the chief for the people of Twifo Heman traditional area. That will be contrary to customary law.\r\nStatutorily, the principle that only those who enstool have the power to destool used to be covered by the Chieftaincy Act, 1971(370), s 33 which has now been replaced by the Chieftaincy Act, 2008 (759), s40(1). Section 40(1) reads as follows:\r\n"A person is not entitled under this Act to institute proceedings for the\r\ndeposition of a chief unless that person is entitled to do so under the custom of\r\nthe area concerned."\r\nEven if the paramount chief had the capacity to destool a chief, the rule now is that no one can be destooled unless the law as contained in Act 759, s 40(3) is complied with. Section 40(3) provides that:\r\n\r\n \r\nRIP-\r\n\r\n \r\n"Except where the deposition is accepted without challenge, and subject to an appeal, a chief is not deposed, unless\r\n(a)	Deposition charges have been instituted against the chief and\r\n(b)	The appropriate customary practice of deposition in the area concerned have been complied with."\r\nMerely refusing to allow the divisional chief to swear before him cannot constitute deposition within the law as stated above.\r\nIn areas where the custom of swearing in is said to be an integral part of the installation, it is argued that the installation ceremony will be incomplete until the chief elect has been sworn in. That cannot be correct because such swearing in ceremony will only enable the chief to perform certain customary or statutory duties. The fact of his not being sworn in cannot have the effect of unmaking him as a chief. In such areas, the fact will remain that the person to be sworn in becomes a chief before he is sworn in and he will continue to remain a chief of his people even if the swearing in does not take place for one reason or the other.\r\nIn my opinion, it cannot be correct to describe the swearing in by the paramount chief as a function of the paramount chief warranting the determination of its dispute by the Regional House of Chiefs. This can be illustrated by divers swearing in analogies: The most obvious one is when a new President is elected: He is sworn in by the Chief Justice. Does the fact that the swearing in ceremony is conducted by the Chief Justice make the ceremony that of the swearing in of the Chief Justice? Further, when justices of the Supreme Court are appointed, they are sworn in by the President; does the ceremony become the swearing in of the President merely because he is the one conducting the swearing in, so as to warrant a dispute involving the ceremony or a dispute involving the judges to be decided with rules made for resolving Presidential disputes? The answer to both situations will be in the negative.\r\nBy parity of reasoning, the fact that the first respondent who has to conduct the swearing in of the divisional chief elect happens to be a paramount chief is no reason why the swearing of the divisional chief of Twifo Heman should be described as a ceremony of a paramount chief warranting any dispute involving it to be determined by the Regional House of Chiefs. The peripheral or perfunctory ceremony conducted\r\n \r\nt by the paramount chief cannot justify describing the issues in the petition - either in whole or in part - as paramount stool disputes which should be sent to the Regional House for determination,\r\nThe relevant section 23(1) of Act 370 (already quoted in full above) provides that the Regional House of Chiefs shall have\r\n"Original jurisdiction in all matters relating to a paramount stool or the occupant of a paramount stool."\r\nIf the case were to be sent to the Regional House of Chiefs, what is the nature of the paramount stool dispute that will have to be determined? None of the parties controverts the fact that the first respondent is a paramount chief. There is therefore no dispute about the status or capacity of the first respondent as a paramount chief which has to be determined. His role in the entire enstoolment process is to swear in the chief elect. He does so in his capacity as the Omanhene or paramount chief in charge of that paramountcy. It has been held in Ansu-Agyei v Fimah [1993-94] I GLR 299, SC that the refusal of the Omanhene to allow the sub chief to swear before him is not a cause or matter affecting chieftaincy but is a "purely customary" matter. That case concerned the refusal of a paramount chief to allow a chief to swear before him. If the apprehension of respondents in the instant case is that the first respondent would not allow the chief elect to be sworn in as demanded by custom, that issue is not a cause or matter to be determined by the Regional House of Chiefs.\r\nIt is equally untenable, as contended by the respondent, to argue that the disputes should be divided into two so that the portion concerning the paramount chief will be sent to the Regional House while the portion concerning the divisional chief is sent to the traditional council. As explained above, there is no issue or dispute about a paramount chief that can be determined by the Regional House for which reason the case may be sent there. The Central Regional House of Chiefs therefore has no jurisdiction over the disputes raised in the petition.\r\nThe disputes to be raised in the petition concern the making of an Adontenhene for Twifo Heman Traditional Area. All the parties agree that the stool of Adontenhene is a divisional one. It follows that it is the Twifo Heman Traditional Council that has jurisdiction to hear the petition. The majority of the Court of Appeal judges erred in deciding that the dispute should be determined by the Regional House of Chiefs.\r\n \r\nThis decision is consistent with the decision in the Republic v Western Regional House of Chiefs; Ex parte Aduhene [1994-95] GBR 903, SC which held that in determining the jurisdiction of the appropriate judicial committee forum, the relief claimed and the facts relied on are the determining factors. In the instant case, the reliefs were as contained in the petition quoted in this judgment. The facts relied upon however indicated that the real dispute before the court concerned the Adonten stool which is a divisional one.\r\nThe decision in this case is also consistent with the final outcome of the Aduhene case. In that case, like the instant one, the plaintiff issued a writ claiming that the nomination and installation of the Ankobeahene of Sefwi were void, and so were all installations made by him. The writ was issued in the Western Regional House of Chiefs but the Ankobeahene was a divisional chief. Since the relief did not involve a paramount chief, this court held that it could not be tried in the Regional House of Chiefs. In the case of Ansu-Agyei v Firnah (supra), it was also held that since the action did not involve a paramount chief, it could not be tried in the Brong Ahafo Regional House of Chiefs.\r\nThe instant case further illustrates that to determine the nature of a dispute for the purpose of deciding which judicial committee has jurisdiction to try or hear it, one has to consider the parties, the nature of the relief claimed and the facts adduced in support of the claim. It can be misleading to rely only on the reliefs claimed or the names appearing as parties. The facts relied upon have to be given due consideration as well.\r\nThe most important principle established in this case is that the mere naming of a party on a chieftaincy petition will not be conclusive in determining the nature of the case for the purpose of deciding on the jurisdiction of the judicial committee to hear or try the chieftaincy dispute raised in that petition.\r\nThe appeal succeeds and is allowed.\r\nS. A. BROBBEY\r\n(JUSTICE OF THE SUPREME COURT)\r\n \r\n\r\n\r\n \r\nBAFFOE-BQNNIE 3 S C;-\r\nI have had the benefit of reading beforehand the lucid opinion read by my learned brother and I am wholly in agreement with the decision to allow the appeal I will begin my short opinion with a quote\r\n"Where the original jurisdiction of the regional house of chiefs is invoked, it must be shown on the face of the petition that the matters alleged pertain to a paramount stool or its occupant. So for example, I should think that matters affecting the nomination, election or destoolment of the occupant himself would be covered, so also for example matters in relation to that paramount stool''s properties. Thus I think the pertinent question to ask in such a matter is; does the matter pending before the Regional House of Chiefs relate to a paramount stool or its occupant? I think one helpful way of answering such a question is to look at the reliefs together with the facts upon which reliefs are founded and more particularly the reliefs sought. In this case we look at the reliefs together with the facts which the respondent alleges that he is capable of proving and we find they do not relate to either a paramount stool or occupant thereof." (emphasis added)\r\nIf this quotation sounds familiar it S a quotation from the judgment delivered by our esteemed sister, Lutterodt JA( as she then was ) in the case of Republic v Western Regional House of Chiefs Ex parte Aduhene II [1994-95 GBR 903.\r\nIn this case the reliefs being sought for in the original petition are as follows;\r\n1 A declaration that the purported intention of the respondents to install one Mensah Marfo as the next Adontenhehe of twifo /-Iemang Traditional Area is contrary to the customary practices of Twifo Hemang\r\n2 A declaration that the next Adontenhene should be someone appointed and approved of by the Aboradze family of Twifo Hemang\r\n3 An order for perpetual injunction to restrain the 7" and jd Respondents or any person or persons lawfully claiming through them from installing I''lensah Marfo as next Adontenhene.\r\n \r\n4 An order for perpetual injunction to restrain the Ist respondent from participating in any ceremony relating to the installation of or swearing in of the said Mensah Marfo as Adontenhene\r\nIf one examines the reliefs being claimed in the petition which gave rise to these proceedings, with ex parte Aduhene as a guide, it becomes clear that the respondents case is untenable. Of the four reliefs being claimed in the petition it is my view that it is only the fourth one that genuinely could ground the application under certain circumstances and given certain facts. The second and third reliefs do not mention the 15t respondent at all. Even though the first relief relates to the occupant of a paramount stool it could be dismissed just with the wave of the hand on the grounds that the l respondent, not being a member, of the royal Aboradze family of Twifo Hemang and therefore not a king maker of that family cannot, acting alone or in concert with others, install a chief. Obviously, as the ovei lord he may have his preference and may even scheme to have his preferred choice accepted. But until such an intention crystallizes I do not think a cause of action against him arises.\r\nWith regard to the fourth relief, in the present circumstances of this case and given the facts, that too cannot form a basis of conferring jurisdiction on the regional house of chiefs. The ceremony of swearing of a chief actually is in two parts; ie. swearing to his people (subjects) and swearing to his overlord. Swearing to his people is part of his installation process and failure to do it could be deemed to be a failure to complete the process and could lead to annulment of his enstoolment. The same thing cannot be said of the swearing of a chief to his overlord. A sub chief who refuses, or is not permitted to swear to his overlord cannot on that score alone be destooled by his overlord. The simple reason is that the overlord not being his king maker cannot destool him.See the case of Essilfue v Anafo [1993-94] 2 GLR 1 where this court speaking through Ampiah JSC said at page 8,\r\n"Even if there had been evidence to support the charges, the traditional tribunals as established by law, have no power to destool a chief or to make an order for his destoolment. The power to destool a chief is a customary right vested wholly in king makers who alone have the power to make and unmake a chief customarily"\r\n\r\n \r\nAnd in any case as was held in the case of Ansu-Agyei v Fimah[1993-94] 1 GLR 309 SC , the refusal of an Omanhene to allow his sub-chief to swear before him is not a cause or matter affecting chieftaincy but is a "purely customary matter"\r\nSince the crux of the petitioners'' claim is to question the propriety of Mensah Marfo, a non royal, being imposed on the royal Aboradze family as Adontenhene their actual plaint is against the other two respondents. The paramount chief is only nominal to the action. In fact the action can conveniently go on without him!\r\nIt is for these reasons that I agree with the decision that the right forum is the Judicial Committee of the Twifo Hemang Traditional Council and so the appeal be allowed and the majority decision at the court of appeal be reversed.\r\nP. BAFFOE-BONNIE\r\n(JUSTICE OF THE SUPREME COURT)\r\nI agree\r\nG. T. WOOD (MRS) (CHIEF JUSTICE)\r\nI agree\r\nJANSAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nI agree\r\n3. V. M. DOTSE (JUSTICE OF THE\r\nCOUNSEL\r\nKWABENA OWUSU FOR THE APPLICANT/RESPONDENT/APPELLAN GUSTAVA ADDINGTON FOR THE INTERESTED PARTY/RESPONDE\r\n', '../links/cases/Document (91).pdf', 'Yes', 'BROBBEY JSC, ANSAH JSC, DOTSE, J.S.C., BAFFOE-BONNIE,JSC', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Chieftaincy Act 971 (Act 370) sec 23(1) and sec 15(1) - Chieftaincy Dispute - factors to be considered in determining choice of judicial committee forum to hear chieftaincy petition.</font></b></i><br>', 'WOOD (MRS), CJ', 'Civil', '', 'J4/8/2008', '', '', 'supreme', '2009-01-14', ''),
(547, 'THE REPUBLIC\r\nVRS\r\nTHE HIGH COURT JUDGE,SUNYANI  ... RESPONDENT\r\nEX PARTE: ALHAJI COLLINS DAUDA  ... APPLICANT\r\nYIADOM BOAKYE BOATENG  ... INTERESTED PARTY', 'IN THE SUPERIOR COURT OF JUDICATURE\r\n \r\nIN THE SUPREME COURT\r\n\r\nCORAM: ATUGUBA, J.S.C. (PRESIDING)\r\n \r\nAKUFFO (MS), J.S.C. DATE-BAH (DR), J.S.C. OWUSU (MS), J.S.C. B. BONNIE, J.S.C.\r\nCIVIL MOTION\r\nTHE REPUBLIC\r\nVRS\r\nU THE HIGH CORT JUDGE, SUNYANI EX PARTE: ALHAJI COLLINS DAUDA VIADOM BOAKYE BOATENG\r\n \r\nElection Petition— When cause of action arises Jurisdiction of the High Court to entertain petition Time for presenting petition 1992 Constitution, art. 99— Representation of the People Law 1992 (PNDCL 284), 55. 16, 18, 19 and 20\r\nRULING\r\n	kA	DR. DATE-BAH JSC: - UNANIMOUS RULING\r\nThis case raises an important issue of jurisdiction in relation to election petitions. It is this: does the High Court have jurisdiction to entertain any election petition under the Representation of the People Law 1992 (PNDCL 284) before the Electoral Commission has declared the results of that election?\r\nTHE FACTS\r\n .M Before we provide an answer to this question, let me set out the material facts of this case. This is an application by Alhaji Collins Dauda, the Parliamentary candidate for the National Democratic Congress for the Asutifi South Constituency in the Brong Ahafo Region. The application seeks to invoke the supervisory jurisdiction of this court to quash, by an order of certiorari, the ruling of His Lordship Justice Francis Kwabena Opoku of the Sunyani High Court, dated 6th\r\n \r\nJanuary 2009, and to prohibit the said learned judge from going on with the suit number C11/01/09, intituled: The NPP Parliamentary Candidate, Yladom Boakye-Boateng v 1. The Electoral Commissioner Per the Chairman Through the Regional Director, B/A Region 2. The NDC Parliamentary Candidate, AIhaji Collins Dauda 3. The District Electoral Officer, Asutifi District.\r\nThe ruling complained of was made in a suit brought by Mr. Yiadom Boakye-Boateng, the NPP Parliamentary candidate for the Asutifi South Constituency. He presented an election petition to the High Court, Sunyani, on 16" December 2008, complaining that the election results in his constituency had been tampered with and praying the court either to discount two ballot boxes, whose post-ballot custody and transmission arrangements to the collation centre, the petitioner maintained, left much to be desired, and declare the winner, or to annul the entire Parliamentary results of the constituency and order fresh Parliamentary elections. The petitioner on the same day as he filed his original petition filed an amended petition which spells out the petitioner''s prayer as:\r\n"(a) An order of the Honourable Court declaring that the circumstance under which the two (2) ballot boxes of Twabidi No. 1 and 2 went to Kenyasi No. 1 and their contents swapped respectively is/was illegal and same is void.\r\n(b)An order of perpetual injunction restraining the Respondents from releasing the two ballot boxes (Parliamentary) to the other 66 ballot boxes to declare a winner."\r\nThe petitioner also filed an application for an interim injunction, on 15th December 2008 seeking an order to restrain the Respondents from declaring the Parliamentary election held in Asutifi South Constituency on 7"'' December 2008.\r\nThe second respondent and also the first and third respondents in the petition separately brought applications to set aside the petition. The second respondent argued, inter a/ia, that the petitioner''s petition and application for interlocutory injunction were incompetent as the petitioner could only bring the election petition within 21 days after the publication in the Gazette of the results of the election to\r\n\r\n \r\nwhich the petition relates. Similarly, the first and third respondents argued that the Gazette notice containing the results of the election was yet to be published and therefore the petitioner''s petition was premature. They contended further that by reason of the premature filing of the petition and the motion for interim injunction and the service of them on the respondents, the first respondent (that is, the Electoral Commission) had been prevented from performing its constitutional duty of declaring the results of the Parliamentary election held for the Asutifi South Constituency on 7'' December, 2008.\r\nOn the 6th or January, 2009, the petition, along with the applications to set it aside, came on for hearing before His Lordship Justice Opoku at the Sunyani High Court. He overruled the objections of the respondents and affirmed that the petition was properly before the court. He indicated that he would give the reasons for his decision on 12th January 2009 and directed the respondents to file their responses to the petition. In the end, he gave his reasons on 30th January 2009. Those reasons were appended to the affidavit in opposition to the application before this court sworn to by the interested party herein. In his ruling, Justice Opoku makes a distinction between the two limbs of section 18(1) of the Representation of the People Law, 1992 (PNDCL 284). Section 18 of the Law reads as follows:\r\n"(1) An election petition shall be presented within twenty-one days after the date of the publication in the Gazette of the result of the election to which it relates, but a petition questioning an election on an allegation of corrupt practice and specifically alleging a payment of money or any other award to have been made by the person whose election is questioned or to have been made on behalf of and to that person''s knowledge, may be presented within twenty-one days after the date of the alleged payment.\r\n(2)	The presentation of an election petition under subsection (1) is not\r\nvalid unless within the time specifieo iii subsection (1), the petitioner\r\ngives as security for costs an amount of money determined by the\r\nHigh Court.\r\n3\r\n \r\nelection petition shall not be extended."\r\nJustice Opoku considers that the allegations made by the petitioner, if true, would come under the category of a corrupt practice and they should be considered in relation to the second limb of section 18(1) above. This is what he said:\r\nThe 2'' limb deals with where corrupt or illegal practice has been alleged by the petitioner. From the facts presented supra it is my considered opinion that they are proceeding under the 2nd limb or the exception. Clearly there are two avenues for seeking the court''s intervention. Mr. Otu¬Essel for the 2 nd respondent cited the case of Republic v High Court. Bolgatanga, Ex parte Hawa Yakubu [2001-2002] SCGLR 53 to buttress his contention. The law is clear on this point. If the basis of an election petition was that of corrupt practice in which money or other award was alleged to have been paid, then the petition should be prosecuted within 21 days after the date of the payment or date of detection of the corrupt/illegal act. Otherwise the petition must be commenced within 21 days after the declaration of the results in the Gazette. In the instant case the corrupt/illegal practices complained of allegedly occurred and were detected on December 7 and 8 respectively."\r\nHe then proceeds to hold that the petition was properly before him.\r\nIt is against this ruling by His Lordship Justice Opoku that the Applicant before this court is seeking to invoke the supervisory jurisdicLion of this Court.\r\nThe arguments of the parties\r\nThe applicant''s case as argued in its Statement of Case is as follows:\r\nSection 18(1) of PNDCL 284 confers jurisdiction on the High Court to hear petitions only after the result of an election has been declared. The learned High Court judge, therefore, wrongly assumed jurisdiction when he decided to hear the\r\n4\r\n \r\nH\r\npetition before the declaration of a result by the Electoral Commission, in spite of his attention having been drawn to an obvious infringement of the statute.\r\nFurthermore, the petition sins against the provisions of Article 46 of the Constitution that:\r\n"Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission shall not be subject to the direction or control of any person or authority."\r\nThe applicant contends that by this provision no one can bring an action to restrain the Electoral Commission in the performance of its duty of declaring an election. What any aggrieved person should do is to wait for the results to be declared and then bring a petition to question the results.\r\nThe applicant also relies on article 295(8), which says:\r\n"No provision of this Constitution or of any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under this Constitution or that law, shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or the law."\r\nThe applicant interprets this provision, when read together with Article 46 (supra), as meaning that the court should wait for the Electoral Commission to declare the result before it can entertain a suit by an aggrieved party questioning the results. Moreover, the applicant submits that this position is true even in relation to alleged corrupt electoral practices which take place before the results are declared and gazetted. The applicant submits further that if the High Court assumes jurisdiction over an election petition that is commenced before the results are declared and gazetted, this would amount to a breach of the statutory and constitutional\r\n\r\n \r\nprovisions referred to supra, namely, sections 18 and 20 of PNDCL 284 and articles 46 and 295(8) of the 1992 Constitution.\r\nAccordingly, the applicant argues that certiorari is available to quash the ruling of the learned High Court judge, in accordance with settled case law. He cites in support of his case: In re Appenteng (deceased). Republic v High Court, Accra; Ex parte Appenteng /2005-2006] SCGLR 18; RepuLl/c v High Court, Denu, Ex parte Kumapley (Dze/u IV Interested Party) [2003-2004] SCGLR 79; Republic v High Court, Ex parte Soku [2001-2002] SCGLR 901; Republic v Court of Appeal, Ex parte Ghana Cable Limited [2005-2006] SCGLR 107; and Republic v High Court, Exparte CHR4] [2003-2004] SCGLR 312.\r\nIn response, the interested party has argued in his Statement of Case that certiorari does not lie on the facts of this case, since there is no egregious breach or an error so fundamental as to go to the very roots of justice. The interested party also relies on section 18(1) of PNDCL 284, but his interpretation of the second limb of that provision is that an 1-ion petition can be brought immediately there is evidence of a corrup, practice without waiting for a declaration of results by the Electoral Commission. He declares:\r\n"In other words, where you have evidence that some CORRUPT PRACTICE in the nature of payment of money to influice the election in favour of one candidate, you MUST act TIMEOUSLY by inging an election Petition within twenty one days.\r\nAnd so, my Lord, this whole applcation boils down to a determination as to whether or not the Petition in the court below concerns a CORRUPT PRACTICE."\r\ne Law\r\nIt is clear from the language of section 18 (supra) of the Repre''entation of the People Law 1992 that an election petition may ric be presented before the results of the election concerned have been declared by the Electoral Commission and, in some cases, gazetted. Where the petition is based on an allegation of corrupt\r\n6\r\n \r\npractice and specifically alleges a payment of money or other award on behalf of the "person whose election is questioned", the petitioner need not wait till the publication in the Gazette of the election result. Rather, he or she may bring the election petition within twenty-one days after the date of the alleged payment. It is this provision which has probably misled the interested party in this case into presenting his election petition before the High Court. We say misled because the time limit of twenty-one days, if not read in its context, could be interpreted literally to mean that the petitioner can bring his petition within 21 days of the alleged corrupt practice, whether or not the election result has been declared. This is in fact the interpretation that the interested party has urged on this court in the passage (supra) quoted from his Statement of Case.\r\nThe obstacle to this interpretation is the expression "the person whose election is questioned" in section 18(1). This expression has to be construed, in its context, as logically implying that an election must have taken place and its results declared by the Electoral Commission. Otherwise, there would be no person whose election is being questioned. Accordingly, we have to treat with caution the ob/ter dictum of our respected departed brother, Acquah JSC, as he then was, in Republic v Hlgll Court, Bolgatanga and Anor; & parte 1-lawa Yakubu [2001-2002] 1 GLR 311 at p. 316 where he said:\r\nThe language of section 18(1) of PNDCL 284 is very clear. If the basis of the petition is that of corrupt practice in which money or other award is alleged to have been paid, then the petition should be presented within twenty-one days after the date of the alleged payment. In all other situations, the election petition is to be filed within twenty-one days after the date of the Gazette publication of the results of the disputed election."\r\nTo the extent that our learned brother did not advert his mind to the construction of the expression "the person whose election is questioned", this ob/ter dictum is, with the greatest respect, per incur/am and should not be followed by this court. A necessary implication from that expression, as already noted, is that a person must have been declared elected. One can hardy question the election of a person before that person has been declared elected.\r\n7\r\n \r\nThe drafting of section 18(1) is however not felicitous and poses a problem in that a situation may arise under it whereby the time limit within which the petition must be brought could run out before the declaration of the results. In other words, the payment of the money corruptly may have taken place more than twenty-one days before the declaration of the results by the Electoral Commission. This defect in the drafting of the subsection can render the right to petition accorded to an aggrieved party under this limb of section 18(1) illusory. The lawmaker therefore needs to revisit this provision. Nevertheless, this consideration does not alter our interpretation of section 18(1).\r\nOur interpretation of section 18 of PNDCL 284 as impliedly requiring the declaration of the election result, even in the case of an allegation of corrupt practice, is buttressed by the provisions in sections 19 and 20 of the Law. The language of section 19 impliedly asserts that an election petition can be brought only after a candidate has been declared elected. It is in the following terms:\r\n19. After the hearing of an election pctidon the High Court may make any of the following orders:\r\n(a)	declare that the election to which the petition relates is void;\r\n(b)	declare that a candidate other than the member whose election is questioned was duly elected, or\r\n(c)	dismiss the petition and declare that the member whose election is questioned as duty elected."\r\nThe reason why we consider that this provision assumes that an election petition may be brought only after a declaration of the results is that an election can hardly be declared void, under paragraph (a) above, if it has not been completed and declared by the Electoral Commission. It can be cogently argued that an election whose results have not yet been declared is an inchoate or incomplete election, rather than an election. Section 19(b) contains the expression "member whose election is questioned". This expression, in our view, implies that the member''s results have been declared. Section 19(c) also contains the expression: "member\r\n8\r\n \r\nwhose election is questioned" which, to us, again implies that the member''s results\r\n• have been declared. Similarly, section 20 of the Law assumes that a candidate has been declared elected and gives the High Court power to declare the election void on the grounds set out in its subsections.\r\nAccordingly, our conclusion from reading these provisions of PNDCL 284 together is that, even in the case of an allegation of a corrupt practice, an election petition may only be brought after the Electoral Commission has declared a result in relation to the election. This means that the interested party''s petition before the Sunyani High Court was premature and the High Court lacked jurisdiction to enter into its merits.\r\nThis conclusion is consistent with, and derives support from, the earlier Supreme Court decision in NPP v NDC [1999-2000] 2 GLR 506, where the Supreme Court similarly held that the election petition procedure can be triggered only after an election has been held. Acquah JSC, as he then was, said (at p. 547):\r\n"Election petition under our law, therefore, arises after an election has been held and not before. In the instant cases the elections have not been held, neither have the second and third defendants been elected to Parliament. The validity of their election cannot therefore arise for same to be enquired into."\r\nSimilarly, Atuguba JSC said (at pp. 567-8) that:\r\n"As article 99 is plainly and obviously addressed by the Constitution, 1992 to a situation of an electio''i had and gone, I cannot stretch it to cover the converse situation here, when an election has not even commenced, though other aspects of the electoral process are in full swing. I must emphasise that article 99 of the Constitution 1992 merely restricts itself to the right to question the validity of an election after it has in fact takLIl place. But that does not mean, as already earlier pointed out, thau questions as to whether the person elected was prior to or at the time of his purported election qualified\r\n9\r\n \r\nto be so elected, are irrelevant to an action thereunder. But an action under article 99 of the Constitution, 1992 aforesaid can only lie after and not before a parliamentary election."\r\nIt should be explained that article 99 is the provision that vests jurisdiction in the High Court to hear and determine any question whether a person has been validly elected as a member of Parliament or the seat of a member has become vacant. Though she was not ad idem with her brothers on all the issues in this case, on this issue of when an election petition could be brought, Bamford-Addo JSC, as she then was, agreed with them and, in explaining her position, said (at p. 517):\r\n"Can an election petition be brought before or after an election and what is an election petition? It is any dispute as to the validity of a particular election which is raised on an election petition and which is decided by a court having jurisdiction to determine same, iiamely the High Court as provided in section 16(1) and (2) of PNDCL 284. This section states as follows:\r\n16(1) The validity of an election to Parliament may be questioned only by a petition brought under this Part.\r\n(2)		Every election petition shall be presented before the High\r\nCourt for hearing."\r\n(The emphasis is mine.) An election petition can be brought only once after an election has been held and the reliefs which could be granted by the court are specified in section 19 of PNDCL 284..."\r\nThis general approach to the challenge of an election that is adopted in our Constitution and electoral law is derived from the English approach to the questioning of elections. (See, for instance, jury''s Laws of England. Third Edition, Vpiun!e 14 Elections Part 4).\r\nA further general principle articulated by the majority in the NPP v NDC (supra) case which is of relevance to the case before us is that a party, before suing, must\r\n10\r\n \r\nsatisfy himself or herself that he or she has a cause of action at the time of the institution of the suit.\r\nOn the facts of this case, the applicant has succeeded in persuading this court that at the time of the filing of the interested party''s petition he had no cause of action yet, by the operation of section 18(1) of PNDCL 284. The High Court, in equal measure, lacked jurisdiction to investigate the premature petition launched by the interested party. Wrongful assumption of jurisdiction is, of course, a ground for the grant of certiorari. That is settled law that does not require the citation of authority,\r\nConclusion\r\nAccordingly, certiorari lies to quash the High Court''s ruling in this case and it is hereby ordered that the ruling and the proceedings preceding it be brought before this court to be quashed and the same are hereby quashed. Furthermore, His Lordship Justice Francis Kwabena Opoku is hereby prohibited from any further hearing of this case.\r\nS. K LATE-BAH (DR)\r\n(JUSTICE OF THE SUPREME COURT)\r\nW. A. ATUGUBA\r\n(JUSTICE OF THE SUPREME COURT)\r\nS. A. B. AKUFFO (MS)\r\n(JUSTICE OF THE SUPREME COURT)\r\n\r\nR. C. OWUSU (MS)\r\n(JUSTICE OF THE SUPREME COURT)\r\nII\r\n \r\n\r\n1•\r\n \r\nP. BAFFOE-BONNIE\r\n(JUSTICE OF THE SUPREME COURT)\r\nCOUNSEL\r\nSAMUEL CODJOE FOR THE APPLICANT WITH TONY LITHUR JAMES QUASHIE - IDUN FOR ELECTORAL COMMISSION\r\nSYLVIA ADUSU (PRINCIPAL STATE ATTORNEY) FOR THE ATTORNEY GENERAL\r\nNKRABEAH EFFAH-DARTEY FOR THE INTERESTED PARTY\r\n\r\n-	V SUP*\r\n', '../links/cases/Document (90).pdf', 'Yes', 'AKUFFO (MS),J.S.C.,DATE-BAH (DR) J.S.C., OWUSU (MS) J.S.C., B.BONNIE,J.S.C.', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Election Petition - When cause of action arises - Jurisdiction of the High Court to entertain petition - Time for presenting petition - 1992 Constitution, art. 99 - Representation of the People Law 1992 (PNDCL 284), ss. 16,18,19 and 20.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J5/12/2009', '', '', 'supreme', '2009-04-08', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(548, 'WILLIAM G.K. THOMPSON  --- PLAINTIFF/RESPONDENT/RESPONDENT\r\nVRS\r\nTOTAL GHANA LIMITED  --- DEFENDANT/APPELLANT/APPELLANT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\n\r\n	\r\n\r\nCORAM: WOOD (MRS.), C.J. (PRESIDING)\r\nBROBBEY, JSC\r\n...& Là.	DOTSE, JSC	11TH AUGUST, 2010 YEBOAH, JSC\r\nGBADEGBE, JSC\r\nCIVIL APPEAL	NO.J4/3/2010 aato\r\nWILLIAM G.K. THOMPSON	PLAINTIFF/RESPONDENT/RESPONDENT VRS\r\nTOTAL GHANA LIMITED	DEFENDANT/APPELLANT/APPELLANT\r\nContract of employment— Suspension of employee— Basis of suspension to be proved by employer Burden of proof— Admission of inadmissible evidence during trial— Duty of the judge when giving judgment— Evidence Act 1975,5s. 11 (4), 14, 52 and 118.\r\n \r\nJUDGMENT YEBOAH, JSC: \r\nThis is an appeal from the judgment of the Court of Appeal dated 31 July 2008, which affirmed the previous decision of the trial High Court, Accra.\r\nThe respondent herein, who commenced the action as plaintiff at the High Court, Accra was at the time material to the action The Retail Network Development Manager of the appellant''s company. He has been in this official position for sixteen years and was a Senior Officer, In November of 2005, the Acting Manager Director of the appellant''s company, informed him that some\r\n \r\n\r\nemployees of the company had been arrested and that the respondent should go to the Police Station at Legon to give a statement to the Police. It turned out that two mechanics who were employees of the company at East Legon filling Station had been arrested. The respondent gave a statement to the Police and reported later to the Police Station on subsequent days.\r\nOn the 1st of November 2005, the respondent was at work when the Acting Managing Director of the appellant company handed a letter to him which sought to suspend him as an Officer of the company. In the course of the trial, this letter was tendered in evidence as Exhibit V. The reason canvassed in Exhibit ''B'' for the respondent''s suspension was that he had been implicated in the ongoing police investigations. The respondent contended that the Police did not make any adverse findings against him and did not charge him with any offence. It was further contended by the respondent at no point in time did the appellant company invite him to confront him with any allegations of impropriety before he was suspended. The respondent''s Solicitor wrote to the appellant company to reconsider the decision to suspend the respondent as according to the Solicitor, the decision sinned against the basic rules of natural justice. The appellant justified the decision to suspend the respondent.\r\nFollowing the response from the appellant company, the respondent caused the action herein to be commenced against the appellant seeking among other reliefs a declaration that his suspension from the employment was null and void and of no effect.\r\nThe matter proceeded to a full scale trial at the end of which the learned trial Judge of the High Court, Accra made a determination in favour of the respondent. The appellant, claiming to have been aggrieved by and dissatisfied with the judgment of the trial court lodged an appeal there from to the Court of Appeal. In its judgment, the Court of Appeal held that the appeal was without merit and consequently dismissed same. The instant proceedings are as a result of the exercise by the appellant of its statutory right to appeal to this court from\r\n \r\nthe decision of the Court of Appeal. In its appeal, the appellant quite naturally seeks a reversal of the decision of the Court of Appeal in its favour and in particular, an order dismissing the claims of the appellant as formulated in the writ of summons herein.\r\nBefore us, the appellant has challenged the decision that is on appeal on several grounds. In our view, since the action arises from a contract of employment, the fundamental issue to be decided in the matter herein is whether the letter of suspension earlier on referred to in the course of this judgment was justified under the contract between the parties herein? This requires us to examine the reasons contained in the said letter of 1 November 2005. Since the appellant was the author of the said letter, it was incumbent upon it to prove that the allegation on which the suspension was based was true.\r\nUnfortunately, at the trial before the High Court, the appellant relied only on bare allegations to sustain a charge which was in its nature criminal. The appellant neither called the police who were alleged to be investigating the complaint, nor the persons who had according to them, made statements that implicated the respondent. The proceedings held in the course of the trial on 26 January 2007 that appears at page 136 of the record of appeal has the following entry that we consider decisive against the appellant on the burden of proof that it assumed having regard to its defence to the action herein.\r\n"BOA DU: We have subpoenaed the IGP and served Hearing Notice on them but they have not come to help us. We cannot ask that they be arrested so we	are dosing our case.\r\nBY COURT, Defendant having announced the closure of their case counsel should file addresses on or before 6 February 2007 and plaintiffs counsel\r\nhis address on or before 1 February 2007. Adjourned to 270'' February for mention."\r\n \r\nO	iane VPM 4fl	M.m'' V	>\r\nWe think that by its conduct, the appellant may be said to have admitted the respondent''s claim that the allegations made against him were untrue. In the peculiar context of this case, there was, in or thinking, an obligation on the part of the appellant to provide credible evidence to the trial court that would render the allegation on which its suspension of the appellant was based more probable than the version of a denial which was the pivot of the appellant''s case. By the operation of the relevant rules of the Evidence Act the burden of leading evidence and in particular sections 11(4) and 14 the appellant left the trial court with no option than coming to the conclusion that the allegation made against the appellant that had informed his suspension was untrue. We refer to the said sections as follows:\r\n"11 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.\r\n14 Except as provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is	essential to the claim or defence he is asserting."\r\nSee Brown v Rolls Royce Limited [1960] 1 ALL ER 577.\r\nThe above conduct of the appellant can only be construed to mean that it did not have the evidence to support the allegation. It being so, we are surprised that the appellant invites us to come to a different conclusion on the matter than that which was reached on the admitted evidence by the Court of Appeal and indeed the trial Court. It is interesting to note that in its bid to prove the allegation against the respondent, the appellant introduced in Evidence Exhibit 1, a report by the Legon Police that is headed;\r\n"Re-Malpractices at the A & C Shopping Mall Total Filling Station at East Legon "\r\n \r\nVYH	4) r•:.	1{fl	"M)W:rU''	10Mnr\r\nThe said document that was admitted in evidence, despite objections from\r\n\r\ncounsel for the appellant, in our view not only offends against the hearsay rule contained in section 118 of the Evidence Act, 1975 NRCD 323 but was prejudicial to the case of the appellant within the intendment of section 52 of the same legislation and ought not to have been received in evidence at all. Consequently, we proceed to expunge from the evidence although we observe that neither the trial court nor the Court of Appeal acted upon it in reaching their verdict in the matter herein. See Tormekpey v Aliiable [1975] 2 GLR 432. Delivering the opinion of the Court, Anin JA quoting with approval from Phipson on Evidence (lQthl Edition) at page 855, paragraph 2053 said at page 434 thus:\r\n''7f inadmissible evidence has been received (whether with or without\r\nobjection), it is the duty of the Judge to reject it when giving judgment, and if he has not done so, it will be rejected on appeal, as it is the duty of courts to arrive at their decision upon legal evidence only."\r\nSee also the case of Bonsu v The Republic [1999-2000] 1 GLR 199.\r\nSince the allegation on which the respondent''s suspension was based was not proved, the effect is that the appellant acted rashly and unfairly towards the respondent and renders anything founded on it without justification and unlawful.\r\nWe think that the reasonable inference to make from the failure of the appellant to provide the crucial evidence that was needed to sustain it suspension of the respondent is that the allegation never existed and consequently the suspension was without foundation. This being so, we do not think it is necessary to inquire into the other issues raised in the appeal such as the issue of fairness and or the denial of the respondent the right to be heard before suspending him. In our view, no useful purpose would be served by a consideration of those points as there is no foundation in the allegation.\r\n \r\n5\r\n \r\nFor the above reasons, we dismiss the appeal herein and proceed to affirm the decision of the Court of Appeal.\r\nANIN YEBOAH JUSTICE OF THE SUPREME COURT\r\nG. T. WOOD (MRS)\r\nCHIEF JUSTICE\r\nS.A. BROBBEY JUSTICE OF THE SUPREME COURT\r\nJ. V. M. DOTSE JUSTICE OF THE SUPREME COURT\r\n\r\n		\r\n\r\nCOUNSEL:\r\nPEASAH-BOADU FOR THE DEFENDANT/APPELLANT/APPELLANT.\r\nROCKSON	NELSON	DEFEAMEKPOR	FOR	THE PLAT NTIFF/RESPONDENT/EtESPON DENT.\r\n', '../links/cases/Document (89).pdf', 'Yes', 'BROBBEY JSC, DOTSE,JSC, YEBOAH,JSC, GBADEGBE,JSC', '2010', 'supreme', '<i><b><font face="Times New Roman" size="3">Contract of employment - Suspension of employee - Basis of suspension to be proved by employer - Burden of proof - Admission of inadmissible evidence during trial - Duty of the judge when giving judgment - Evidence Act 1975,ss.11(4),14,52 and 118.</font></b></i><br>', 'WOOD (MRS), CJ', 'Civil', '', 'J4/3/2010', '', '', 'supreme', '2010-08-11', ''),
(549, 'DR. CLEMENT APAAK  ...  PLAINTIFF\r\nVRS\r\n1. THE ELECTORAL COMMISSION\r\n2. THE ATTORNEY-GENERAL  ...  DEFENDANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA, A.D. 2012\r\nCORAM: ATUGUBA, AG. C.J. (PRESIDING)\r\nDR. DATE - BAH, J.S.0\r\nADINYIRA (MRS), J.S.C.\r\nOWUSU (MS.), J.S.C.\r\nANIN - YEBOAH, J.S.C.\r\nGBADEGBE, J.S.C.\r\nAKOTO-BAMFO (MRS) J.S.C.\r\nWRIT NO.1112712012\r\n17" OCTOBER,2012\r\nDR. CLEMENT APAAK	PLAINTIFF\r\nVRS.\r\n1.	THE ELECTORAL COMMISSION\r\n2.	THE ATTORNEY -GENERAL	DEFENDANTS\r\nStatute - Legislative Instruments —Local Government (Ketu North District Assembly) (Establishment) Instrument, 2007 (LI 1843)— Whethers.2 (4) ofLI 1843 creates new electoral areas - Constitutional law - 1992 Constitution art. 45— Whether first defendant could be restrained from conducting national elections in lawfully designated electoral areas.\r\n \r\nDR. DATE-BAH JSC:\r\nThis is the unanimous judgment of the Court. In this case, the plaintiff challenges the authority of the Minister responsible for Local Government to create electoral areas in districts, municipalities and metropolises, which, according to the plaintiff, he has purported to do under what he has construed to be enabling power under the Local Government Act 1993 (Act 462). The plaintiff has therefore brought this action invoking the original jurisdiction of the Supreme Court, seeking a declaration that various legislative instruments specified in a Schedule attached to his Writ were made in contravention of Article 45(b) of the 1992 Constitution. Article 45 of the Constitution reads as follows:\r\n"The Electoral Commission shall have the following functions -\r\n(a)	to compile the register of voters and revise it at such periods as may be determined by law;\r\n(b)	to demarcate the electoral boundaries for both national and local government elections;\r\n(c)	to conduct and supervise all public elections and referenda;\r\n(d)	to educate the people on the electoral process and its purpose;\r\n(e)	to undertake programmes for the expansion of the registration of voters; and\r\n \r\n(f) to perform such other functions as may be prescribed by law".\r\nThe first defendant, which, from the above provision, is to be interpreted to have the exclusive constitutional authority to create electoral areas, admits that the Minister has no authority to create electoral areas. It, however, argues that the Minister responsible for Local Government did not, in fact and in law, establish or create electoral areas as contended by the Plaintiff.\r\nThe fact is, however, as illustrated by LI 1843, the Local Government (Ketu North District Assembly) (Establishment) Instrument, 2007 (which is appended, by way of a sample, as an exhibit to the plaintiff''s Statement of Case), the Legislative Instruments do contain a subsection 2(4) in the following terms:\r\n"For the purpose of election to the Assembly the area of authority of the Assembly shall be divided into the electoral areas specified in the First Schedule to this Instrument."\r\nThe issue is whether this provision (and similar provisions in the other Legislative Instruments listed in the plaintiff''s schedule) can reasonably be interpreted as amounting to the creation of electoral areas by the Minister. The first defendant''s contention is that by the Representation of the People (Parliamentary Constituencies) Instrument, 2004 (C.1.46), the Electoral Areas specified in the Instruments made by the Minister had already been earlier created by the first defendant. Accordingly, in spite of the language of subsection 2(4), quoted above, the Minister was not really creating an electoral area, but\r\n \r\nmerely referring to one already in existence.	In paragraph (5) of the first defendant''s Statement of Case, it affirms as follows:\r\n"We admit that Section 2(4) purports to divide the area of authority of the Assemblies into the electoral areas specified in the ft Schedule to the Instrument. This may seem to be ultra vires the powers of the Minister for Local Government or attributed to inelegant drafting."\r\nThis is a clear admission by the first defendant that there is a problem. This court can help to solve the problem by affirming that the Minister responsible for Local Government does not have authority to create or establish electoral areas and that to the extent there is any language in the Instruments listed in the Schedule to the plaintiff''s writ that suggests that he has any such authority that language is void to the extent of its inconsistency with Article 45(b).\r\nThe first defendant argues that because section 3(2)(e) of Act 462 empowers the Minister responsible for Local Government to specify "any other matters that are required to be included in the instrument or are consequential or ancillary to it", the inclusion of the electoral areas in the offending Instruments should be construed as consequential or ancillary to the establishment of the Assemblies set up by the Instruments pursuant to enabling power under Act 462. There is danger in this ambivalence. This Court should make it clear that, to the extent that section 2(4) of the Instruments gives the impression that the Minister is establishing the electoral areas, this is ultra vires and unconstitutional. Accordingly, this court should so declare. The Minister needs to use language which makes it plain that the electoral areas he refers to in the Instruments are pre-existing and already created by the first defendant. Any ambiguity in this\r\n \r\nregard should be resolved against him and any offending statutory language struck down to the extent of its inconsistency with the first defendant''s powers under Article 45(b) of the Constitution.\r\nFor the reasons given above, we would grant the plaintiff the first two reliefs endorsed on his Writ of Summons, namely:\r\n1.	"A declaration that the various legislative instruments specified in the Schedule attached to the writ, laid in Parliament by the Minister of Local Government, and which came into force after 21 Parliamentary sitting days, were made by the Minister in contravention of Article 45 (b) of the Constitution to the extent that those legislative instruments purported to create electoral areas for various districts, municipalities or metropolises in Ghana;\r\n2.	An order declaring the said legislative instruments null, void and of no legal effect to the extent that they sought to create electoral areas in said districts, municipalities or metropolises in Ghana."\r\nHowever, it would be unreasonable to restrain the first defendant from conducting national or local elections on the basis of the electoral areas specified in the impugned legislative instruments, if those electoral areas coincide with electoral areas that the first defendant has lawfully designated. We would thus only grant the third relief sought by the plaintiff subject to a qualification. The third relief sought is in the following terms:\r\n \r\n3. "An order of perpetual injunction restraining the 1" Defendant from conducting any national or local elections on the basis of the electoral areas specified in the impugned legislative referred to in the Schedule until those electoral areas are properly constituted in accordance with law in a manner that is not inconsistent with Article 45 (b) of the Constitution;...\r\nIt is granted subject to the qualification that the said injunction shall not apply where any national or local elections are held on the basis of any enactment by the first defendant which complies with the Constitution.\r\nIn sum, subject to the qualification noted above, the plaintiff''s action succeeds.\r\n(SGD) DR. S. K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) W. A. ATUGUBA\r\nACTING CHIEF JUSTICE\r\n(SGD) S. 0. A. ADINYIRA (MRS.)\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n(SOD) R. C. OWUSU (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) ANIN -YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) N. S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) V. AKOTO — BAMFO (MRS.)\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL\r\nDR. ABDUL BAASIT AZIZ BAMBA FOR THE PLAINTIFF.\r\nJAMES QUARSHIE-IDUN (WITH HIM ANTHONY DABI) FOR THE 1sT DEFENANT.\r\nSYLVESTER WILLIAMS ( PRINCIPAL STATE ATTORNEY) FOR THE 2ND DEFENDANT.\r\n_\r\n)\r\n', '../links/cases/Document (200).pdf', 'Yes', 'DR.DATE-BAH, JSC, ADINYIRA (MRS) JSC, OWUSU (MS.),J.S.C, ANIN - YEBOAH,J.S.C. GBADEGBE,J.S.C. AKOTO-BAMFO (MRS.) J.S.C', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Statute-Legislative Instruments-Local Government (Ketu North District Assembly) (Establishment) Instrument,2007 (LI 1843) - Whether s.2 (4) of L I 1843 creates new electoral areas - Constitutional Law - 1992 Constitution art. 45 - Whether first defendant could be restrained from conducting national elections in Lawfully designated electoral areas.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J1/27/2012', '', '', 'supreme', '2012-10-17', ''),
(550, 'GLADYS AKU AGBENU  ...  DEFENDANT/RESPONDENT/APPELLANT\r\nVRS\r\nIN THE MATTER OF THE ESTATE\r\nOF ROBERT AGBENU (DECEASED) AND IN THE\r\nMATTER OF GODWIN AGBENU  ...  PLAINTIFF/APPELLANT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA - GHANA\r\nCORAM:	ATUGUBA, JSC (PRESIDING)\r\nAKUFFO (MS), JSC\r\nANSAH, JSC\r\nOWUSU (MS), JSC\r\nBAFFOE - BONNIE, JSC\r\nCIVIL APPEAL NO. 14/26/2008 17T11 IUNE. 2009.\r\n\r\n	\r\n\r\nPractice and Procedure - Appeal - Dispute over Landed Property - Circumstances which Appellate Court can upset findings of Trial Court - Evidence —5. 80 of NRCD323 - Factors for Evaluation of Evidence —Whether TrialJudge rightly admitted evidence.\r\nU DC MEN ''I'' ATUGUBA ISC:\r\nThis is an appeal by special leave of this court from the judgment of the court of Appeal reversing the judgment of the circuit court, Accra presided over by his Ilonour Judge C.k.Minta\r\n \r\nThe facts of the case as stated by the Court of Appeal per Quaye J.A. are as\r\nfollows:\r\n"Robert Agbenu died intestate on 13th December, 1979. The\r\nPlaintiff/Appellant herein, claiming to be one of only two surviving children of Robert Agbanu filed an action in the Circuit Court, Accra on 15th n August, 2001 against the defendant/respondent, whom he identified as the other child of his father, claiming three heads of relief.\r\nThese reliefs are:-\r\na) a declaration that the subject- premises forms part of the estate of their deceased father, Robert Agbenu\r\naforementioned.\r\nb)	an order appointing the Registrar of the Court to gather-in the estate and distribute it to the parties herein;\r\nc)	Defendants/respondent to render accounts of all rents and proceeds from the disputed house with effect from 1980.\r\nThe averments in the accompanying statement of claim sought to assert the plaintiff''s capacity, the blood (paternal) relationship between him and the defendant/respondent, the extent of the estate of Robert Agbenu and the attempts that had been made to call the respondent\r\nto account.\r\nIn her pleadings however, the respondent denied substantially the averments of fact made by the appellant. Apart from denying any blood relationship with the appellant, the respondent asserted ownership of the disputed house No.E 119/14 Nima and counter claimed for a declaration to that effect.\r\nAt the end of the trial, the lower court dismissed the claims of the appellant, found in favour of the respondent and made orders upholding the counterclaim".\r\nThe plaintiff failed at the trial court but prevailed in the Court of Appeal. The defendant/respondent has appealed to this court on the following grounds:\r\n \r\n".That the judgment of the Court of Appeal is against the weight of evidence addressed at the trial.\r\nThat the judgment of the Court of Appeal cannot be supported by evidence adduced at the trial.\r\n•That the learned Court of Appeal Judges erred in law when they\r\nadjudged the deceased to be the owner of the disputed land and house.\r\n•The Court of Appeal failed to give the appropriate weight to the Defendant''s title Deeds (Exhibit A)".\r\nThe parties gave evidence themselves and by two witnesses each. The trial judge however took the view that once the defendant holds a registered document evidencing title in herself that is conclusive of the case. Thus at p. 69 of the record of appeal he stated as follows:\r\n"From the evidence adduced in court, the court finds as a fact that the\r\nplaintiff surprisingly tendered an indenture in respect of the house in dispute bearing the name of the defendant The indenture was tendered and marked as exhibit ''A''. It was dated 26th\r\nJanuary 1978, stamped as AC 5426/85 and registered at the Land Title Registry as 4565/1985 of 6th August 1985"\r\nContinuing at p. 70 he said:\r\n"In so far as the ownership of the plot has been registered at the Land Registry, it amplifies the position of the defendant as the owner of the land. Her ownership therefore cannot be Impugned or disputed Furthermore she is the house-owner collecting rent from the tenants as the landlady. The defendant is thus\r\nin legal and physical possession of the property. X X X XX\r\nWith the type of registration effected by the defendant it can be conclusively presumed that she is the owner of the house\r\n \r\nin dispute. The question to be asked by this court is by what stretch of imagination can the plaintiff claim a property for which he does not have any document to support his claim?\r\nThe plaintiff, however, must fail in his claim on two different grounds, namely (a) that he did not prove sufficient possession and (b) the defendant proved beyond all reasonable doubts that she was the\r\nowner of the House in dispute. As the equity maxim goes "equity follows the law" Therefore inasmuch as the defendant has been wise enough to register the plot as her property, she is\r\nthe owner of the plot Again any claim by the plaintiff is defeated by the provision of the Limitation Decree of 1972 (SMCD 54)."\r\nConsequently though he set out in extenso the evidence led in the case between pages 66-69 of the record, he regarded it as virtually irrelevant and did not assess the same. As to the Limitation Decree, the same was never in issue as it was not pleaded.\r\nThe Court of Appeal for its part rightly held that registration of purported documents of title per se does not necessarily establish the validity of the title in question. Beyond this however they also did not evaluate the evidence on record to any penetrating degree.\r\nIf the trial court had discharged its function properly that would have been the end of the matter. That function has been well known since the days of Majolagbe v Larbi (1959) GLR 190 and Quaye v Mariamu (1961) GLR 93 C.A. That function with regard to the facts in issue, has been restated in more recent times. Thus is NU v Amina (1984-86) 2 GLR 13 C.A. at148 Abban J.A. (as he then was with the concurrence of his other brethren) said: "As I said\r\nearlier on, the learned trial judge made a thorough and critical analysis of the evidence in the light of the issues raised before him, and the decision he arrived at was correct and should not be disturbed."\r\nAgain in Bisi v Tabiri (1984-86) 2 GLR 282 C.A. at 287 Adade JSC (his other brethren concurring) said: "As a judge of fact, it is his peculiar province,\r\n \r\nlistening to the evidence and having the witnesses before him, to weigh the\r\nseveral statements on each issue and to decide which to believe and which to reject And so long as his conclusions can find support from statements on record, it is not open to an appellate tribunal, except for\r\njust and compelling reasons, to disturb them." All this must be done in the light of S.80 of the Evidence Decree, 1975 (N.R.C.D. 323) relating to factors for the evaluation of evidence.\r\nWith regard to the Court of Appeal they should have also, as aforesaid critically evaluated the evidence since the trial judge had failed to do so, in order to render their decision on the facts supportable. Thus in Appiah v Takyi (1982-83) GLR 1 C.A at 3 Mensa Boison J.A. (his other brethren concurring), said: "though an appellate court may not lightly upset findings of fact made by a trial court, it may properly do so where, especially in a non-\r\njury trial, all the circumstances are adverse to such finding of fact see George Mattouk v Ellie Massad (1941) 7 WACA 91 at 93".\r\nSimilarly in Kofi v Kumansah (1984-86) 1 GLR 116 C.A. at 121 the court stated:\r\n''In the case of Codjoe v Kwatchey (supra), Webber 0 said at 374: "The Appeal Court is not debarred however from coming to its\r\nown conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the\r\nAppeal Court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from\r\noverruling it if on full consideration it comes to the conclusion that the judgment was wrong..."\r\nFrom all the foregoing it is clear that with respect, neither the trial court nor the Court of Appeal directed itself satisfactorily by critically evaluating the matters of fact in issue. Of course the incidence and degree of these\r\nprinciples may vary on the facts of a particular case.\r\n \r\nAll this apart, we have detected much confusion in the proceedings. It appears from the record that counsel for the parties adopted the question and answer form of leading their witnesses in evidence rather than the free narrative style. However, recording such evidence in the form of question and answer is the appropriate method with regard to cross-examination. When the same method is applied, to the adduction of evidence in chief, as was done in this case, it makes the same clumsy and disjointed and impedes a fluent perusal of the evidence so led.\r\nThen also, on 1211112003, after the conclusion of the evidence of DWI at p 42 of the record the following note appears:\r\n"BY COURT: Adjourned to t December, 2003 for continuation"\r\nHowever for some inexplicable reason the evidence of PW2 commences on 2011112003 at p.43 and concludes at p. 46 on 1111212003.\r\nThat is not all. Although this case related to land situate at Nima, Accra there is between pages 91 to 110 a judgment of the Court of Appeal in a case intituled J.K.Nyamekye versus Kofi Yeboah, C.A. No. 93/95 dated 15th April,\r\n1999 relating to land "known and called Asanteman Council... "on Mim Stool Land in the Brong Ahafo Region of Ghana.'' How did this case get into the proceedings of this case and for what purpose?\r\nIt is trite learning that where the facts have not been satisfactorily found by the lower courts this court can itself do so upon the recorded evidence. However in the circumstances of this case where counsel in the case were unable to unravel the facts of the case to the court by evidence and there is little to choose from the two cases as to the facts, the demeanour of the\r\nwitnesses might have been of help. See Atsu v. The Republic(1968) GLR\r\n716 C.A. at 720. Unfortunately there is no indication as to the incidence of this factor in the trial court''s judgment and with the added confusion in the proceedings as earlier alluded to supra we think the best and benign course to take in this case is to order a retrial. See Khoury v Choitel (1964) GLR 100 SC. Quagraine v Davies (1962) 1 GLR 104 S.C. of course is authority\r\n \r\n\r\n\r\n \r\nfor retrial based on confusion in a case. See also Commissioner of Police\r\nv. Tunday Lagos (1962) 1 GLR 127 S.C.\r\nWe accordingly allow the appeal, set aside the judgments of the Court of Appeal and the Circuit Court and remit this case for trial below before a Circuit Court, Accra, differently constituted.\r\nW. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\nS.A.B. AKUFFO (MS)\r\nJUSTICE OF THE SUPREME COURT\r\nJ. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\nR. C. OWUSU (MS)\r\nJUSTICE OF THE SUPREME COURT\r\nP. BAFFOE-BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL\r\nFREDERICK ASAMOAH FOR THE APPELLANT\r\nWILLIAM ANTHONIO FOR THE RESPONDENT\r\n', '../links/cases/Document (201).pdf', 'Yes', 'AKUFFO (MS),J.S.C.,ANSAH,J.S.C.,OWUSU (MS),JSC,BAFFOE-BONNIE,JSC', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and Procedure - Appeal - Dispute over Landed Property - Circumstances which Appellate Court can upset findings of Trial Court - Evidence - S.80 of NRCD323 - Factors for Evaluation of Evidence - Whether Trial Judge rightly admitted evidence</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J4/26/2008', '', '', 'supreme', '2009-06-17', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(551, '1. ARNOLDUS MARIA VAN DE MAST\r\n2. ELIZABETH MARIA VAN DE MAST-VAN DER WAL  ---  PETITIONERS\r\nVRS\r\n1. PATRICK HARRO KOOLEN\r\n2. NICOLE MARIA ESMERALDE KOOLEN-HEIJ  ---  RESPONDENTS', 'IN THE SUPERIOR COURT OF IUDICATURE, IN THE HIGH COURT OF IUSTICE ACCRA, COMMERCIAL DIVISION, HELD ON THURSDAY THE 26Th DAY OF IANUARY, 2012 BEFORE HIS LORDSHIP IUSTICE RICHARD ADIEI¬FRIMPONG\r\nSUIT NO. MISC/0512011\r\nIN THE MATTER OF KOSA BEACH RESORT LTD AND ANNINOPA LTD\r\nr. aYisJ\r\nIN THE MATTER OF THE BODIES CORPORATE (OFFICIAL LIQUIDATOR)\r\nACT, 1963 (ACT 180)\r\nBETWEEN\r\n \r\n\r\n \r\nVRS\r\n \r\n\r\n \r\n\r\nCOUNSEL: MARIETTA BREW APPIAH OPPONG FOR PETITIONERS --PRESENT FREDERICK I3OAMAI I FOR RESPONDENTS PRESENT\r\nCompany Law - Winding up - Voluntary - Petitioners seeking for winding up under the Bodies Corporate (Official Liquidations) Act 1963 (Act 180) - Winding up relief sought on just and equitable grounds - Each side prepared to buy out the other - Whether action properly brought before court— Alternative relief available - Claim for winding up dismissed - Petitioners allowed to buy out Respondents.\r\n \r\n\r\n \r\nIUDGMENT\r\nTwo Small Private Limited Liability Companies are in focus in these proceedings. "They are KOSA BEACH RESORT LTD AND ANNINOPA LTD. Henceforth in this delivery they shall be simply called "KOSA" AND "ANN INOPA".\r\nThe two Companies are wholly owned by the parties herein, Dutch nationals who had travelled to settle in Ghana purposely to do business.\r\nThe Petitioners are a husband and wife. They together hold a simple majority of 56% of the total shares in KOSA. The Respondents, also a husband and wife together hold the remaining 44% and from the records available the four (4) are the only directors of KO-SA. It is not in doubt that the object of KO-SA is mainly to operate a beach resort as a hospitality facility.\r\nThe share structure in Anninopa is 50% each for the Petitioners and the Respondents who are as well the first directors. Anninopa was incorporated from its regulations to carry on "Farming, food processing and manufacturing of Agricultural equipment". There is no evidence that any of these businesses has been carried out. The only known asset of Anninopa is the 1.96 acre land situate along the beaches of Ampenyi, a community in the Komenda Edina Eguafo Abrem District of the central Regional of Ghana. It is on this land that KOSA is situate and operated. I do observe that the issues that this court is called upon to determine and which it s!-,all endeavour to do, render the history of the formation of the companies significant to state and I state them briefly.\r\n \r\n\r\nThe Petitioners whilst in their home country planned to travel to Africa to invest in the hospitality industry. It was part of their intention to do this in association with others and they appeared to have discussed the idea with a friend. Co incidentally, I presume, the Respondents also shared a similar vision which fact became known to the same friend of the petitioners. It could therefore have only been a perfect opportunity for the two couples to associate to realize their common vision. The two sides eventually met in the Petitioners house back home to marry their plans together.\r\nThe Petitioners subsequently searched on the internet and found that KOSA was for sale. It was then known as KOSA CULTURAL CENTRE AND BEACH RESORT LTD.\r\nWith the consent of the Respondents the Petitioners negotiated with the former owners and settled on the price for the acquisition of that entity. The business was purchased for €222,500 out of which the Petitioners invested €124,600 and the Respondents €97,600.\r\nThis proportion in investment reflect the shareholding structure in KO-SA whose name they changed by a special resolution from the former to the present. The transaction was concluded some time in June 2007. When they commenced business, the parties as directors agreed to manage the business themselves and accordingly shared their roles as follows:\r\nPt Petitioner in charge of Finance and Administration. 2'' Petitioner in charge Marketing and Reservation, 1st Respondent in charge of Gardening and Cleaning and 2nd Respondent in charge of Shopping and Kitchen matters. Anninopa did not exist before. The parties incorporated it some time in May 2007 when they came to Ghana.\r\n \r\nThese are facts that are not in any controversy and from them the conclusion should not be remote to draw that the acquisition and incorporation of the companies in particular and the intention of the parties to invest and do business in the country in general must have been founded on mutual understanding, trust and projected harmony.\r\nIn recent times however, the relationship appears to have fallen on evil days and the result of all is the instant action by which if the facts the evidence and the law will warrant it, could, beyond the strained relationship between the two couples, occasion the demise of the corporate entities of KOSA and Anninopa.\r\nThe Petitioners have sought the following reliefs:\r\na)	An order of the court directed at the Respondent to sell their 44% share\r\nin KOSA and 50% share in Anninopa to the Petitioners at the price of\r\nUSD 98,245.00 in accordance with the valuation report or in the\r\nalternative.\r\nb)	That the companies be wound up by the court under the provisions of\r\nthe Bodies Corporate (official Liquidations) Act 1963 (Act 180)\r\nc)	Costs\r\nd)	Further or other reliefs.\r\nThe Respondents have also cross petitioned as follows:\r\na)	An Order to buy out the Petitioners shares of 56% of KOSA and 50% of\r\nAnninopa for an amount of 115,000 Euro from the companies.\r\nb)	Interim injunction to restrain the petitioners from winding up the\r\ncompanies.\r\n \r\ncJ Costs\r\nSection 246 (1) of the Companies Act 1963 Act 179 provides:\r\n1. "The winding up of a company may be either\r\na)	By an official liquidation in accordance with the provisions of the Bodies Corporate (official liquidations) Act 1963, Act 180 or\r\nb)	By a private liquidation in accordance with the provision of this part of the code".\r\nBoth the long and short titles of the Bodies Corporate (Official Liquidations) Act 1963 Act 180 indicate that the provisions therein govern official liquidation in accordance of which the jurisdiction of this court has been invoked. The relevant provisions are in Section 4 subsections 1, 2 and 5 which state:\r\n"4 (1) The Registrar or any other person who is\r\na)	A creditor of the company\r\nb)	A member or contributory of the company or\r\nc)	The Attorney General, but only on the grounds specified in paragraph (c) of subsection 2 may present a petition to the High Courtfor the official winding up of the Company.\r\n2) The High Court may order the official winding up of a company on a Petition presented under subsection 1 where,\r\na) The company does not within a year from its incorporation, commence to carry on all of the businesses which it is authorized by\r\n \r\nits Regulations to carry on, or suspends any of those businesses for a year.\r\nb)	The company does not have members;\r\nc)	The business or objects of the company are unlawful, or the company is operated for an illegal purpose, or the business being carried on by the company is not authorized by its regulations;\r\nd)	The company is unable to pay its debts or\r\ne)	The court is of the opinion that it is just and equitable that the company be wound-up.\r\n(5) Where the Petition is presented by members or contributories of the company on the grounds that it is just and equitable that the company should be wound up the High Court, if it is of the opinion\r\na)	That the Petitioners are entitled to relief by winding-up the company or by some other means and\r\nb)	That in the absence of any other remedy it will be just and equitable that the company should be wound up,\r\nShall make a winding up order unless it is of the opinion that another remedy is available to the Petitioners and that they acted unreasonably in seeking to have the company would up instead of pursuing that other remedy".\r\nThe Petitioners have sought the winding up relief on the just and equitable ground under the above Section 4 (2) e and S.\r\nBENIN I. (as he then was) noted in the Case of BILLY VRSKUWOR (1991)1 GLR 522 at page 529 that\r\n \r\n"When it comes to consider the just and equitable rule, it is a question of fact and as such each case must depend on its own circumstances. The court therefore has unfettered discretion in this exercise since it is not possible to lay down a general guide to the solution of what are essentially individually cases".\r\nSee also In RE BLERIOT MANUFACTURING AIRCRAFT (1916) 32 TIMES LR\r\n253.\r\nIn their pleadings, the petitioners have levelled several allegations against the Respondents to form the grounds for their winding up relief. For the sake of brevity I sum them up as follows:\r\n1)	The Respondents failure to perform their obligations in the business of the company and showing no interest in the progress of the business.\r\n2)	Poor business relationship between the Respondents and employees of the business and neighbours.\r\n3)	Bad human relations between the Respondents and client.\r\n4)	Finding the Regulations and laws of Ghana absurd. Hence difficulty in handling company matters with government officials and institutions and\r\n5)	Making unsubstantiated accusation of fraud against the Petitioners\r\nresulting in the breakdown of trust and cooperation in the running of the company.\r\nIn consequence of these allegations the Petitioners further pleaded as follows in paragraphs 25 and 26 of the petition.\r\n \r\n"25. Petitioners state that the mutual trust based upon which the parties entered the business has broken down, the business relationship has turned sour and there is no communication between the parties.\r\n26. The Petitioners shall contend that it is not their intention to have the companies wound up but having regard to the circumstances of the matter it is just and equitable that KO-5''A and Anninopa be wound up".\r\nIt is right to state that these allegations made by the Petitioners against the Respondents must be proven before they can ground the conclusions drawn for the relief sought.\r\nBut before examining the evidence adduced, I shall reiterate the point I earlier made that two companies are involved in these proceedings. It is true that the members and the Directors of the two entities are the same. That however does not intermix their separate and distinct legal status. This is moreso when their authorised businesses do differ. It seems to me that relating to the evidence and the facts established, this dichotomy seems to have been lost on the parties and even on Counsel.\r\nLearned Counsel for the Respondent in his address had made an introductory remark which appeared to have highlighted the distinction. He submitted\r\n"My Lord the facts and background to this case is straightforward. The Petitioner and the Respondent are Dutch nationals who met and agreed in 2005 to invest in a common business KOSA Beach Resort Ltd and Anninopa Ltd. Regrettably however the fact of the two businesses having separate and distinct legal personalities separate from the personalities of the Petitioners and the Respondents seems lost on the Petitioners".\r\n \r\nWhilst I agree with the principle as indicated by Counsel, he also seems to have, down the line mixed up the implications of the distinction as the conclusions in his address did not reflect the corporate divergence he had drawn initially.\r\nI establish that the grounds urged on this court for the winding up of KOSA may and as the facts will show could not be the same for the winding up of Anninopa. As a matter of fact Anninopa as a Company has never been operational.\r\nIn the Regulations of Anninopa which is part of Exhibit ''B'' before me, the\r\nauthorised business of Anninopa are:\r\n"a) Farming b) Food Processing and\r\nc) Manufacturing ofAgricultural equipment".\r\nThere is no evidence, none at all to show that any of these has ever been carried out. It comes out clearly that when the parties sat down and shared their responsibilities in the management of the business it related to KOSA. Anninopa has nothing to do with Reservations, Kitchen, Gardening and Cleaning. Indeed all we are told of Anninopa as far as business is concerned is the fact that it owns the land on which KOSA operates. That has nothing to do with farming food, processing and manufacturing of Agricultural equipment.\r\nI entertain no doubt that all the events resulting in the controversy, the allegations and counter allegations, relate to the business of KOSA. None can apply to Anninopa. Those allegations even if proven cannot in my opinion be relied upon to order the winding up of Anninopa.\r\n \r\nTherefore "The just and equitable" provision in Section 4(5) of Act 180 is inapplicable to Anninopa. But then the fact which has come out clearly and which this court cannot gloss over is that Anninopa since its incorporation has not carried on its authorised business and that is since May 2007. There is no indication that any of the objects of farming, Food Processing and Manufacturing of Agricultural machinery is intended to be carried out. The provision in Section 4 (2) ( c) of 180 is clear that the court may order the winding up of a company if it has failed to carry on its authorised business within 1 year of its incorporation or suspends any of those businesses for 1 year. The view of the court is that if Anninona is to be wound up, it could only be done under Section 4 (2) ( c) and not 4 (2) (e) which states the just and equitable ground.\r\nIn any case however, the power vested in this court under Order 4 (2) ( c) just like that under the "just and equitable" ground is permissive and discretionary. And like any discretionary authority, the power ought to be exercise in the manner the justice of the case shall dictate.\r\nAn element of complexity of this case is that because KOSA is situate and run\r\non the land owned by Anninopa, any winding up order of Anninopa will\r\ncertainly affect the business of KOSA.\r\nI shall therefore proceed to consider the case of KOSA before making any\r\norders about Anninopa.\r\nIn considering KOSA, I think that the reliefs being sought by the parties should be put in perspective. As far as the Petitioners are concerned the winding up order is an alternative relief. The primary relief if may describe it so is for an order to buy out the Respondents. For the Respondents, winding up is out of\r\n \r\nthe question. They want to buy out the petitioners. Let me state that the fact that each side is prepared to buy out the ether does not mean a winding up order cannot be made. In the case VUJNOVICH AND ANOR VRS VUJNOVICH (1989) LRC 634, the court found just and equitable grounds to wind up the company even though either side was prepared to buy out the other.\r\nIt all depends as indicated earlier on the circumstances of each case.\r\nLord Cozens-HARDY MR. highlighted this position clearly in the case of YENIDJE TOBACCO LTD. (1916) CH 4,.6. In that case the only two shareholders and Directors with equal management and voting rights became so hostile as to refuse to speak to each other. Despite this the company still made high profit. The court held that the company ought to be wound up because there was a complete deadlock. His Lordship states at page 432 thus\r\n"If ever there was a case of deadlock! think it exists here, but whether it exists or not, I think the circumstances are such that we ought to apply, if necessary the analogy of partnership law and to say that this company is now in a state which could not have been contemplated by the parties when the company was formed and which ought to be terminated as soon as possible. We are told that we ought not to do it because the company is prosperous; making large profits, rather larger profits than before the disputes became acute. I think ones knowledge of what one sees in the street is sufficient to account for that, having regard to the number of cigarettes that are sold for that, and we can take judicial notice of that in judging whether the business is much larger than it was before. Whether such profits would be made in circumstances like this or not, it does not seem to me to remove the difficulty which exists. It is contrary to the good\r\n \r\nfaith and essence of the agreement between the parties that the state of things which we find here should be allowed to continue"\r\nLord Warrington in the same opinion stated:\r\n''lam prepared to say that in a case like the present, where there are only two persons interested, where there are no shareholders other than those two, where there are no means of overruling by the action of the general meeting of shareholders the trouble which is occasioned by the quarrels of the two directors and shareholders, the company ought to be wound up if there exist such ground as would be sufficient for the dissolution of a private partnership at the suit of one of the partners against the other. Such ground exists in the present case. I think, therefore that it is just and equitable that the company should be wound up".\r\nAlso in LOCH & ANOR VRS JOHN BLACKWOOL LTD. (1924) AC 783 LORD SHAW in his judgment refers to the case of BAIRD VRS LEES (1924) SC 83 in which the just and equitable rule was made manifest in the following words.\r\n"I have no intention of attempting a definition of the circumstances which amount to a just and equitable" cause. But I think I may say this. A shareholder put his money into a company on certain conditions. The first of them is that the business in which he invests shall be limited to certain objects. The second is that it shall be carried on by certain persons elected in a specified way. And the third is that the business shall be conducted in accordance with certain principles of commercial administration defined in the statute, which provide guarantee of commercial probity and efficiency. If shareholders find that these conditions or some of them are deliberately and consistently violated\r\n \r\nand set aside by the action of a member and official of the company who wields an overwhelming voting power and if the result of that is that, for the extrication of their rights as shareholders they are deprived by the ordinary facilities which compliance with the companies Act would provide them with, then there does arise in my opinion a situation in which it may be just and equitable for the court to wind up the company".\r\nThere is no way paucity of authorities demonstrating the myriad of circumstances which render the just and equitable principle applicable. Learned Counsel for the Petitioners in inviting this court to wind up the companies referred me to the cases of IBRAHIM VRS WESTBOURNE GALLERIES LTD (1973) AC 360;\r\nIn RE ZINOTTY PROPERTIES (1984) 3 LL ER 754;\r\nRE: WORLDHAMS PARK GOLF GOURSE LTD (1998) 1 BCLC; and\r\nVIJJNOVICH VRS VUJNOVICH supra all of which are excellent authorities on the subject of the applicability of the principle. I need not go through them because of the view I shall express in a moment.\r\nAs I read Section 4 (5) of the Bodies Corporate (Official Liquidation) Act 1963 Act 180, my understanding is that where there is the availability of another remedy, the court may not wind up a company on the just and equitable ground. And the court will not so do where it is plain and obvious that the Petitioner has an adequate alterative remedy but is unreasonably pursuing a winding up petition. I suppose the position of our law only emphasizes the\r\n \r\nD\r\npopular view that winding up a company should be done as the last resort by a court.\r\nIn Re A Company (No. 003028 of 1987) (1988) BCLC 282, the majority shareholder purported to remove the minority from office as director on the ground of serious misconduct. The minority commenced on action by a writ claiming inter alia damages for breach of contract and also presented a winding up petition. The court struck out the winding up petition because in the view of the court the action commenced by the writ would be determinative of the parties rights.\r\nSimilarly in RE A (No. 004415 of 1996) (1997) 1 BCLC 497 the Vice Chancellor struck out the claim for winding up, holding that a share purchase order would be an adequate remedy and that the retention of the winding up claim could damage the business of the company.\r\nIn the instant case, the issue is simpler. The winding up claim is an alternative remedy. The Petitioners also seek a share purchase order. The Respondents not only resist the winding up claim but seek an order to buy the petitioners out. I am of the view that by their respective claims the parties have taken the position themselves that there exist some alternative remedy which will address their grievances. They have indeed specifically sought and pursued that remedy. Within the context of Section 4 (5) of Act 180 therefore, ordering that KOSA be wound up is not an order this court should make. Although in certain cases the authorities have shown that it will not matter, I am in this case further persuaded by the undeniable fact that KOSA is doing well as a business, making some profit and generating employment. In an economy where the level of unemployment is towering I doubt whether if\r\n \r\nthere are no statutory or other special reasons for it a court in Ghana today should be happy in pronouncing the demise of a hiring company like KOSA. Law should aid development and those of us who interprete them should be the apostles.\r\nI have given thought to the reasons assigned by the Petitioners for the winding up of the companies. I have considered the evidence adduced by the Petitioners to prove them and that by the Respondents in rebuttal. In the light of my findings on Anninopa Ltd and the conclusion I just drew that its sister company KO-SA ought not to be wound up I do not find it necessary to determine in any detail the merit of the individual allegations proffered by the Petitioners for the winding up order sought. However for the reason that some of them relate to the integrity of the parties, I shall make a few comments on them. Generally I find some of the allegations, petty, some unfounded and unproven. For instance the allegation that the Respondents left the business of the Company and went on their holiday without leaving a contact address turned out to be devoid of merits. The evidence adduced\r\nshowed that just as the Respondents went on their planned holiday, the Petitioners also subsequently went on their planned holiday. The following exchange which took place when Counsel for Respondent cross-examined the 2" Petitioner should amplify the point being made.\r\nQ:	During the Construction of the restaurant, Respondents embarked on\r\ntheir annual planned holiday.\r\nA:	It was the first time in three (3) years so it wasn''t an annual holiday\r\nwhich they spent in the Netherland.\r\n \r\nQ:	And as you rightly put it being in the country for two (2) years plus they\r\nhad pre-informed you that they will be taking their annual holiday at\r\nthat time of the year.\r\nA:	They informed us that they would take a holiday\r\nQ:	Before they went on that holiday also the work on the restaurant was\r\nalmost completed.\r\nA:	the work on the restaurant was not completed\r\nQ:	I didn''t say it was completed; I said it was almost completed they had\r\ndone a substantial part of the construction at that time\r\nA:	They had done a lot of work at that time\r\nQ:	This holiday was four (4) weeks\r\nA:	That is correct\r\nQ:	When the Respondents returned to Ghana and do the business not quite\r\nlong you also took your planned holiday.\r\nA:	We did take a holiday\r\nQ:	And if you recollect, you took your holiday for eight (8) weeks\r\nA:	The holiday was for seven (7) weeks\r\nQ:	In your absence the Respondents also had to hold the fort\r\nA:	They were at that moment responsible\r\n \r\nRespondents abandoned their schedule and travelled for a holiday. A:	I haven''t mentioned the word abandoned".\r\nIt is clear from the above that the parties took their planned holidays in turns and in the absence of one couple, the other held the fort. The Petitioners even took a longer period of holidays and from the evidence on record at the time they did the restaurant was yet to be roofed with the raffia. It was not as if it was fully completed. There is also the evidence that whilst on holidays, the respondent exchanged e-mails with the Petitioners. This makes untrue the claim that the Respondent left for the holidays without a contact.\r\nAgain when the Petitioners alleged that the Respondents found the laws of Ghana absurd and hence had difficulty in handling company matters with Government Officials and Institutions I would have thought that they would substantiate it, serious as it was. But no single event was cited in an attempt to establish it. For me that was an accusation that sought to put the Respondents in a bad light. I deem this unfair. My observation in all this however is that the allegations are all symptoms of total breakdown of mutual trust and confidence. It all started when the Respondent resisted the Petitioners proposal to put up a private residential facility at the premises of the resort for their personal use.\r\nObviously, that was what led to the mediation process which turned abortive in resolving their differences and which eventually culminated in the decision to communication by email. Regrettably it will now not be far from the truth to describe their relationship as near rivalry. But for the fact that there is an\r\n \r\nalternative relief which could be granted, this could have passed for a classical factual situation to order a winding up.\r\nHaving weighed all the facts and considered the law, I think I should reject the Petitioners claim that ROSA be wound up. Earlier in this judgment, I stated that because ROSA is situate and operated on the land owned by Anninopa Ltd, any winding up order of Anninopa will certainly effect the business of ROSA. By this kind of operational linkage, the view of the court is that if ROSA should stay then, Anninopa should stay. Therefore whilst I recognize the fact that Anninopa could be wound up because it had not carried on any of its objects, seven ( 7) years or so after its incorporation I do not consider it a good exercise of this court''s discretion to wind it up. ROSA survives on Anninopa''s land and for that reason Anninopa must live for ROSA to survive. The two should either die together or live together.\r\nI shall therefore similarly dismiss the claim for the winding up of Anninopa.\r\nI shall however recommend to the future shareholders to consider merging the two companies or take immediate steps to commence the object of Anninopa.\r\nHaving dismissed the winding up claim, the obvious relief to grant is the order for either the Petitioners to buy out the Respondents or for the Respondents to buy out the Petitioners. The two sides can simply not co exist any longer to run the companies.\r\nThis obviously is a difficult decision to make having regard to the apparent fact that each side is strenuously prepared to take over the stake of the other. But before deciding on the options, let me determine the issue about the value\r\n \r\nof the business and the valuation report that was prepared and tendered at the trial. This valuation report, Exhibit]'' forms the basis of the price quoted by the Petitioners for the acquisition of tne Respondents shares. For the Respondents, the report means nothing to them. It does not reflect the realities of the business in terms of total assets and hence the value of the business. To the Respondent therefore the report cannot form the basis of any good offer. So when the Petitioners had the report in evidence through their PW1, the Respondent also brought in their expert to review the report. Exhibit ''3'' is the review report tendered by DW1.\r\nThe issue for determination is whether in its present form the valuation report reflects the true value of the business so as to form the basis of any good offer. I should point one thing out that the Asenta Property consulting, which did the valuation, was engaged to value the assets of KOSA. In their own executive summary in Exhibit ''Y it is stated:\r\n"Asenta Property Consulting, a firm of Chartered Surveyors, Valuers and property consultants has been appointed by KOSA Beach Resort Ltd to advise the company on the open market value of the resort".\r\nOne controversy which arose in the course of the trial was the addition of the asset of Anninopa i.e. the land to the value of the assets of KOSA. The Respondents position which this court appeared to share was that if Asenta valued the assets of KOSA, then it was wrong for the value of the asset of Anninopa to be added up because the two were separate business entities. Whilst I still believe in the logic of this argument, I take the view however that given that presently the two businesses must necessarily be kept and run together, and given also that the only known asset of Anninopa is the land\r\n \r\nwhose value has been indicated in the report, the controversy dwindles and the court can conveniently assess the valuation report within the scope of the two companies. The first point to make is that by quoting their offer on the basis of the value stated in the valuation report, the Petitioners have proceeded from the premise that the report was prepared for purposes of the sale of the business. But was the valuation prepared for the purpose of the sale of KOSA?\r\nThere is nothing in the evidence to show that when Asenta was engaged it was told that the purpose of the exercise was for the sale of the business. It is said of valuation that one particular asset can have different values at one particular point in time depending upon the purpose of the valuation. So that for instance, talking about one and the same property and the same time, its value for say insurance purpose will be different from its value for sale purpose. Again its value for mortgage purpose will be different from its value for balance sheet purposes. I came across this information in a book titled\r\nINTRODUCTION TO PROPERTY VALUATION (A.F MILLINGTON) 5th edition page 49-50.\r\nThe Defendants witness Mr. Amofa Agyemang made the same point in his evidence as follows.\r\nQ: On number 4 of your findings you have indicated that it is not clear what the initial purpose of the valuation was..........would you mind explaining that one too to the court\r\nA:	I was just being fair to do the valuer because when you are consulted to value a property the person would have to indicate the purpose for\r\n \r\nwhich he needs the valuation report. If a valuation for example is requested for account purposes the values may be different from valuation for sale. For account purposes you are interested in the value of the asset minus depreciation in the books of the company so all those details are taken away. When it comes to value for sale, they are essentially different because you are selling out everything. So the purpose is to indicate how much I can sell this thing to day...............so it is important that the client indicates to the valuer the purpose for which they require the report that would enable the valuer to do exactly what the client wants".\r\nThis enlightenment from the authors of the book and from the witness affords me sufficient basis to raise the question as to the extent to which Exhibit ''J'' the report does reflect the real value of the companies for purposes of sale, there being no indication that that purpose was made known to Asenta and there being no evidence to show that the exercise was done for that purpose.\r\nSecondly the report also indicates clearly that Asenta valued the fixed assets of ROSA. It is stated in the executive summary under "JOB UNDERSTANDING" as follows:\r\n"The Job involves the identification, survey and the determination of the open market value of all the fixed assets of the resort which includes land and buildings, chattels and equipment based on their existing use value......\r\nThe simple question to ask is does the business not have any assets apart from fixed assets? And if there are other assets, are they valueless?\r\n \r\nKOSA is a beach resort that hosts guests on regular basis. I doubt if there were no current assets like stock and consumables. There is no mention of cash deposits. But the evidence of the Pt Respondent indicates that the company has a considerable cash deposit. Infact, a portion of the Pt Respondents evidence on this issue which is not controverted will not only show that the business has a strong liquidity position but will also demonstrated how wobbly the report is in terms of the asset value of the business. He said:\r\n"Coming back to the amount, we bought KO-SA for €248,000 and even the former owner''s price quoted on the internet was €410,000. After that we made further investments like buying a car for €10 000 doing some maintenance work on some buildings and we also had to pay the elders about GHt4,000 because of a small piece of land in front of KOSA. We did all these investment on 50/50 basis. I looked at the figures for the past nine (9) months for example, the average income of KOSA is GI-11.32,000 and profit for each month is GHt8,000. And even now we have about G11026,000 so when you compare that to the amount mentioned in the report then for me I don''t take it very serious'': This evidence makes much sense to me.\r\nEven though, there is no evidence to show how much cash deposit the business had at the time of the valuation, I think I can safely infer that the business at that material time could boast of a sum considerable enough to render unrealistic any asset valuation which did not take it into account.\r\nAssuming the property is to be sold today on the basis of the valuation report\r\nand for that matter the quotation indicated by the Petitioners, what happens\r\nto the GHC126,000 deposit which constitutes about 85% of the total value of\r\n \r\nthe whole business using the investment approach indicated by Asenta? (US$92,207.00).\r\nApart from the current assets, mention was also made of intangible assets like goodwill which was not factored. The PW1''s explanation is that goodwill comes in when a facility has really made a name. 1 find this explanation unpersuasive. It is in the same report that the property has been described as having a "unique location". As the Respondents witness pointed out location is a unique attribute one cannot easily copy or reproduce. I strongly believe that if the property were to be sold, the fact that its location is unique will in some measure enhance its value and price. This is the sense in which I appreciate the position of the Respondents witness. If this did not matter to Asenta, then maybe it was on account of the method they adopted. With the valuation report considered, against the background of the other evidence on record I am not satisfied that the report gives the real total value for purpose of sale of the business. I find that the businesses have been woefully undervalued and Exhibit ''J'' cannot form the basis of any realistic quotation.\r\nFor the purpose of one side buying out the other therefore, I strongly hold that a more comprehensive valuation should be conducted.\r\nNow who should buy out the other? Counsel for the Petitioners has laid out three main grounds for me to consider and order that the Petitioners buy out the Respondents. These are in brief as follows:\r\n1.	That the Respondents are the cause of the mistrust and the breakdown of the parties business relationship.\r\n2.	That the Petitioners are the majority shareholders of KOSA\r\n \r\n3. That the Petitioners have exhibited more interest in seeing the companies grow and achieve its full pitential.\r\nOn the other hand Counsel for the Respondent has pointed out the following:\r\n1.	That the Respondents have shown that they have a passion to run the\r\nbusiness having resigned their lucrative jobs in Holland and relocated in\r\nGhana.\r\n2.	That the Respondents have not shown any rule of law that allows them\r\nas majority shareholders in KOSA to buy them out.\r\n3.	That the Respondent have worked diligently and tireless and shown\r\ncommitment to buy out the Petitioners if they wanted to opt out.\r\nI must confess that there is scarcity of local authorities on this area of our law. Counsel for the Petitioners invited me to draw an analogy from Section 218 of our Companies Act 1963 Act 179. However the provision there offers no assistance. The relevant provision is Section 218 (2) which confers on this court the power to make an order for the purchase of shares or debentures of members by other members or debenture holders on grounds of oppressive conduct. The provision does not prescribe that the majority should purchase the shares of the minority or vice versa.\r\nThere is therefore no analogy to draw. In the case of SCOTTISH CO OPERATIVE WHOLESALE SOCIETY LTD. V MEYER (1959) AC 324, the court ordered the majority to buy out the minority on grounds of oppressive conduct but it was for the reason that it was the majority that had perpetrated the oppression and not for the reason it was the majority shareholder. That case therefore gives only a little assistance.\r\n \r\nI am of the opinion that, this court has discretion in the matter. And the object of this discretion for me should be; in whose hands can the companies do well.\r\nThe claim that the Respondents are the cause of the mistrust and break down is not established. I strongly think both sides share in the blame. It takes two to tango and the impression that the Petitioners always did right does not attract me. I also find that each side has contributed its fair due to the progress of the company. But let me say that, even though being the majority shareholder is not an established yardstick, it is also a fact which is difficult to wish away.\r\nI also notice that when the parties sat down to share their management roles the Petitioners took the roles of finance and Administration and marketing and Reservations.\r\nThe Respondents took the roles of gardening and cleaning and shopping and kitchen. Comparatively, the roles taken by the Respondents are low keyed in the scheme of the business.\r\nIt is my view that the Petitioners, aside their majority shareholding in KOSA have also handled the more essential and key roles in the management of the business. These two factors give them a slight urge over the Respondents and they inform my decision that they are better placed to buy out the Respondents.\r\nAccordingly, I rule that the Petitioners buy out the Respondents. This is subject to a comprehensive total asset valuation done for the purpose of the sale of Respondents shares and/or interest to the Petitioners. The cost of the valuation shall be at the expense of KOSA. Pending the valuation and the take\r\n \r\nI to lb •\r\nover, I order that the parties continue with the respective roles and remain entitled to all benefits in the business as they exist presently. I order further that upon the valuation the Petitioners shall pay what is accruable to the Respondents in full within 30 days; and upon such payment, the Respondents shall with immediate effective cease to be members and Director of the companies. I charge the lawyers of the parties to agree on a valuation firm to conduct the valuation within 14 days from today. If the lawyers cannot agree on one then both or any of them may bring an application before me for the appointment of a valuer.\r\nIn the circumstance of this case, I order the parties to bear their costs in these\r\nproceedings.\r\n(SGD.)\r\nRICHARD ADJEI-FRIMPONG\r\nJUSTICE OF THE HIGH COURT\r\n\r\n', '../links/cases/Document (202).pdf', 'Yes', '', '2012', 'high', '<i><b><font face="Times New Roman" size="3">Company Law - Winding up - Voluntary - Petitioners seeking for winding up under the Bodies Corporate (Official Liquidations) Act 1963 (Act 180) - winding up relief sought on just and equitable grounds - each side prepared to buy out the other - Whether action properly brought before court - Alternative relief available - Claim for winding up dismissed - Petitioners allowed to buy out Respondents.</font></b></i><br>', 'JUSTICE RICHARD ADJEI-FRIMPONG', 'Civil', '', 'MISC/05/2011', '', '', 'high', '2012-01-26', '');
