INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(568, 'NATIONAL LABOUR COMMISSION  ...  APPLICANT/APPELLANT/APPELLANT\r\nVRS\r\nGHANA COMMUNICATION LTD  ...  RESPONDENT/RESPONDENT/RESPONDENT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCCRA\r\nCORAM: WOOD (MRS) C.J (PRESIDING) BROBBEY, JSC\r\nOWUSU (MS), JSC\r\nYEBOAH, JSC\r\nBONNIE, JSC\r\nCIVIL APPEAL\r\n14/53/2010\r\n13TH January, 2012\r\nNATIONAL LABOUR COMMISSION APPLICANT/APPELLANT/APPELLANT VRS\r\nGHANA COMMUNICATION LTD	RESPONDENT/RESPONDENT/ RESPONDENT\r\nLabour Law	Wrongful dismissal - Order made by the Notional Labour\r\nCommission not followed— Application to High Court for enforcement of order\r\n- Whether the order must be evaluated before its enforcement Whether court exceeded its jurisdiction in re-examining Commission''s proceedings - LabourAct, 2003, s.172\r\nJUDGMENT\r\n \r\nOWUSU (MS.) J.S.C: \r\nThis is an appeal against the decision of the Court of Appeal which affirmed the decision of the High Court refusing to enforce an order of the National Labour Commission under section 172 of the Labour Act of 2003, (Act 651.)\r\nThe commission as Applicant had gone to the High Court to seek enforcement of its order against Ghana Telecommunications Ltd, the Respondent herein after hearing a petition settling a dispute between the Respondent one Williams Hayford Appiah an Ex-employee of the Respondent.\r\nAppiah was employed by the Respondent in January 2002 as Senior General Manager with the audit department of the company and later promoted to the rank of a chief officer.\r\nWhiles in the employment of the Respondent, Appiah was asked to furnish management with his curriculum vitae which was to include but not limited to an outline indicated in the request.\r\nIn the outline is schools attended set out as follows:\r\n"Name of Secondary/Technical/Commercial/Training College etc attended Year of Entry\r\nYear of completion\r\nSixth form?\r\nName of school\r\nYear of entry\r\nYear of completion"\r\nFollowing this request, Appiah submitted a curriculum vitae indicating that between 1974 and 1981, he attended Benkum Secondary School, Larteh where he obtained his GCE "0" and "A" levels Certificates.\r\nA follow up investigation revealed that Appiah did not attend Benkum Secondary School and indeed over the period stated by him, the school did not have a sixth form and has not offered a sixth form programme since its inception.\r\nRather, further investigations revealed that Appiah sat for and obtained the "0" and "A" level passes as a private student having attended private classes organized\r\n2\r\n \r\nby some teachers of Benkum Secondary School. The passes were obtained one at a time between 1973-8 1.\r\nFor his conduct, he was charged in accordance with regulation 144 (iv) of the Staff Rules and Regulation of the company and a Board of Inquiry set up to investigate the matter found him guilty of the charge of fraud or other acts of dishonesty.\r\nFollowing this, he was dismissed from the employment of the company by a letter dated 26th September 2007.\r\nBy a letter dated 51h February 2008, Appiah presented a complaint to the commission against his dismissal and prayed for the following orders -\r\n"a. A declaration that the dismissal of the complainant from respondent''s employment is unfair.\r\nb. An order compelling respondent to reinstate complainant with all his entitlements from 22/09/07 when complaint was dismissed or in the alternative;\r\nor in the alternative;\r\ni.	Order respondent to re-employ complainant either in the work for which complainant was employed before complainant''s employment was terminated.\r\nor in the alternative;\r\nii.	Order respondent to re-employ complainant in other reasonably\r\nsuitable work on the same terms and conditions enjoyed by\r\nrespondent prior to termination of his employment or in the\r\nalternative;\r\niii.	Order respondent to pay complainant compensation for unfairly terminating complaint''s employment."\r\nThe commission went into the complaint and decided that the petitioner''s conduct amounted to a breach of regulation 206 (b) of the Staff Rules and regulations the punishment for which is termination and not dismissal. It therefore decided that the purported dismissal be converted to termination in conformity with the company''s own staff Rules and Regulations.\r\nAccordingly the commission ordered the Respondent company Ghana Telecom to terminate the petitioner''s appointment with effect from the date that he was dismissed with all accrued benefits.\r\n\r\n \r\nGhana Telecom, was to comply with the decision within fourteen days of 21-08- 2008, the date of the order.\r\nThe company failed to comply with the order of the commission and therefore the commission took the necessary step to have the order enforced. Consequently, the commission applied to the High Court for an Order to enforce the order.\r\nUnder section 172 of the Labour Act of 2003, (Act 651) -\r\n"where a person fails or refuses to comply with a direction or an order issued by the commission under this Act, the commission shall make an application to the High Court for an order to compel that person to comply with the direction or order."\r\nIn the affidavit in support of the application, one Edward Briku-Boadu, executive secretary of the commission recounted the facts which led to the presentation of the complaint at the commission by the complainant and the fact that the company has failed to comply with its orders and that it has no intention to comply with the said orders unless the court steps in.\r\nThe Respondent opposed the application. In the affidavit in opposition, one Fitnat Adjetey the company''s solicitor averred among other things that for the application which is seeking to enforce the recommendations/orders of the commission to be heard, it is imperative that all documents relating to the case and that forms the basis of the recommendations/or orders be placed before the court.\r\nIn paragraph 8 of the affidavit the deponent averred that Ex "10" and "11" which were written after the recommendations of the commission cannot form part of the record or documents on which the honourable court should evaluate the recommendation. Paragraph 13 of the affidavit states -\r\n"that in answer to paragraphs 16 and 17 the Respondent says that the National Labour Commission in its investigative role makes orders in the nature of only recommendations, and like all other recommendations, it is susceptible to judicial scrutiny if not honoured by the Respondent."\r\nIn paragraph 21, the Deponent averred that -\r\n"by section 144 of the staff Rules and Regulations, ''fraud and other acts of dishonesty constitute major offences for which the punishment includes dismissal."\r\nParagraphs 23 and 24 state -\r\n4\r\n \r\n"that the National Labour Commission does not have the power to substitute its own charges for those against which the petitioner was charged and or its own discretion which acted in accordance with their laid down rules."\r\n24 "that even though the petitioner was charged under section 144 the National Labour Commission sought to regard his prosecution with (sic) section 206 of the staff Rules and Regulation 5 which the affidavit in opposition sought to justify the dismissal.\r\nThe High Court in its ruling delivered on 18-06-09 dismissed the Application for the following reasons:\r\n"a. applicant has no power to substitute the charge for another,\r\nb. the applicant has not made a finding of fact on unfairness or otherwise of the dismissal of the petitioner under regulation 144 (iv) of the Staff Rules and Regulations and;\r\nc. The decision of the applicant is incomplete."\r\nThis is so because when the commission recommended that the petitioner must be paid all his accrued benefits, it did not specify what constitutes these benefits and how much was to be paid to the petitioner.\r\nDissatisfied with the ruling, the commission appealed to the Court of Appeal on the grounds that -\r\n(i)	The Court below erred when it questioned the correctness or otherwise of applicant/ appellant''s decision instead of just enforcing the decision submitted to the court for enforcement.\r\n(ii)	The court below erred when it held that applicant/ appellant''s decision was incomplete and cannot be enforced.\r\n(iii)	The court below erred when it held that applicant/ appellant has substituted its own case for that of the petitioner.\r\n(iv)	Further grounds of appeal will be filed upon receipt of the record of proceedings.\r\nThe Appellant therefore sought a reversal of the ruling of the court below and an order enforcing the order of the Applicant/ Appellant.\r\n \r\n5\r\n \r\nOn 20-05-10, the Court of Appeal unanimously dismissed the Appellant''s appeal and held that the order which the Appellant sought to enforce was not justified in law or on facts and that same was manifestly wrong in that the petitioner was charged with acts of dishonesty and fraud under regulation 144(iv) of the staff Rules and Regulations yet the Appellant decided the matter under regulation 206 (b) of the staff Rules and Regulations.\r\nThe petitioner''s complaint was against unfair termination of employment as set out under section 63 of the Act and not against unfair labour practice as set out under sections 127 -131 of the Act.\r\nThe Court of Appeal found that the petitioner''s conduct amounted to fraud and therefore the charge preferred against him under regulation 144 (iv) was appropriate in the circumstances.\r\nIt therefore held that the High Court fell into no error when it refused to enforce the order of the Appellant.\r\nStill dissatisfied, the Appellant mounted this appeal seeking - a reversal of the judgment of the Court of Appeal.\r\n(ii) An order affirming the orders of the Appellant to the effect that the petitioner''s appointment ought to have been terminated by the respondent/respondent/respondent/\r\nThe Grounds of Appeal are that:\r\n"(i) The court of Appeal erred when it held that the High Court was right when it re-opened the matter and questioned the correctness or otherwise of applicant/appellant/appellant/ s decision instead of just enforcing the decision submitted to it (the High Court) for enforcement.\r\n(ii)	The Court of Appeal erred when it held that the applicant/appellant/appellant never made any order regarding the actual entitlements due to the petitioner before it (appellant).\r\n(iii)	The Court of Appeal erred when it held that applicant/appellant/ appellant had substituted its own case for that of the petitioner.\r\n(v) The Court of Appeal erred in law when it upheld the judgment of the High Court overturning the appellant''s decision in favour of the petitioner when respondent/respondent/respondent had failed to exercise its statutory right of appeal in respect of the decision sought to be enforced.\r\n \r\n6\r\n \r\nArguing the first ground of Appeal, counsel contended that the application before the High Court was simply for purposes of enforcing the decision of the Appellant. That it had nothing to do with the merits of the case before the commission. He submitted therefore that it did not lie in the Respondent''s mouth to attack the decision before the High Court when the Appellant sought to have it enforced. It is his case that every decision of the commission is appealable to the Court of Appeal. Hence any person aggrieved by the decision of the commission has a right to attack same only by way of an appeal to the Court of Appeal. If therefore a person refused to appeal against the decision/order of the commission, he must be deemed to have accepted the decision/order and cannot challenge the correctness or otherwise when the commission seeks to enforce it against him.\r\nBefore the Court of Appeal, counsel for the Appellant submitted that in an application before the High Court, the High Court has no appellate Jurisdiction over the commission and therefore the High Court cannot be called upon to examine the correctness or otherwise of the decision.\r\nAlternatively, the Respondent could have invoked the supervisory Jurisdiction of the High Court against the decision if respondent was aggrieved by same.\r\nCounsel thus submitted that the Court of Appeal erred when it held as follows:\r\n"In the present case, the respondent/ respondent did raise issues that called for the re-opening of the investigations or production of the investigation proceedings\r\nthe trial High Court was entitled to look at all the depositions filed in the proceedings before reaching its decision, and it did so. (Kindly refer to page 500 of the record).\r\nAppellant''s main complaint is with respect to that part of the High Court''s ruling which seeks to question the basis of Applicant''s decision rather than proceed to enforce it.\r\nIn reply, counsel for the Respondent argued grounds (i) and (iv) together. In support of these grounds, the Appellant has argued that the Appellant has power to enquire into and determine complaints of unfair labour practices brought before it. He (Appellant) relied on section 134 of the Labour Act to submit that the Respondent had 14 days within which to appeal against the commission''s decision failing which the Respondent was deemed to have accepted same and therefore would be bound by it.\r\nAppellant has also argued that in seeking the orders of the High Court to enforce its decision, the investigation proceedings cannot be laid before the High Court.\r\nCounsel submitted that these grounds must fail if it can be established that the above two premises are wrong.\r\n7\r\n \r\nHe contended that the Appellant''s argument that the only remedy available to the Respondent to question the correctness or otherwise of the decision of the Appellant is to appeal against the decision as provided for under section 134 of the Labour Act is misconceived and misplaced.\r\nIn quoting the section, the Appellant disingenuously omitted the crucial phrase "under section 133." Section 133 of the Act relates to unfair labour practices. Unfair Labour practice has been defined under section 127- 131\r\nHe submitted that the complaint of the petitioner in the instant case was not one of unfair Labour practice. It was rather one of unfair termination of employment.\r\nConsequently, section 134 of the Act is not applicable.\r\nHe referred to the dicta of His Lordship Brobbey JSC and Her Ladyship Wood JSC (as she then was) in the case of GHANA COMMERCIAL BANK LIMITED VRS COMMISSION FOR HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE [2003 - 20041 SCGLR 91.\r\nHe therefore submitted that the High Court exercised its powers correctly when it assessed the decision embodying the recommendation to see whether it was\r\nsupported by the proceedings.\r\nIt is also his case that since the enforcement proceedings were founded on affidavit evidence, the High Court was bound to look at all the depositions filed in the proceedings before reaching its decision whether to grant or dismiss the application. From the affidavits, if it can be established that the decision of the commission which is sought to be enforced is "unjustified in law or in fact, the High Court, cannot ignore it.\r\nCounsel submitted that the decision or order which the Appellant sought to enforce was not justified in law or fact and that it was manifestly wrong and perverse in that, even though the petitioner was charged with fraud or other acts of dishonesty under regulation 144 of the staff Rules and Regulations, the commission decided to substitute a case of its own under regulation 206 (b) and therefore based the decision on 206 (b) instead of 144 (iv).\r\nThis gave cause for the commission to decide that the punishment for that offence warranted termination of appointment but not dismissal which is warranted\r\nunder 144 (iv)\r\nHe argued further that the function of the Appellant, like all other investigative bodies are purely investigative and the decision is in the nature of recommendations. The commission has no enforcement power of its own and it is for this reason that the commission resort to the High Court for enforcement of its orders. Counsel submitted that the High Court is not a rubber-stamp which\r\n8\r\n \r\nmerely stamps these recommendations and orders regardless of whether such recommendation or orders can be supported by the evidence placed before the commission.\r\nThe petitioner''s complaint before the commission was unfair dismissal. What constitutes unfair dismissal? The position of the Law stated by Bamford-Addo JSC (as she then was) in the case of VIVIAN BANNERMAN VRS. STATE TRANSPORT CORPORATION, CIVIL APPEAL NO. 15/2001 and dated 2nd April 2002 is as follows:\r\n"The employer must first show that the principal reason for dismissal was one of four potentially fair reasons (capability, conduct, redundancy, statutory requirement) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held."\r\nCounsel concluded that the Respondent had shown that the principal reason for the dismissal was based on conduct.\r\nThe petitioner''s termination was in accordance with fair procedure having been charged, he was heard, and offered opportunity to be represented by counsel to put across his case.\r\nAPPEALS\r\nSection 134 of the Labour Act states that:\r\n"A person aggrieved by an order direction, or decision made or given by the commission under section 133 may within fourteen days of the making or giving of the order, direction or decision, appeal to the Court of Appeal."\r\nIt is clear from the provisions of section 134 that it is only in respect of orders made under 133 that a person aggrieved by the order is given the right of Appeal.\r\nSection 132 gives the commission power to inquire into and determine complaints of unfair labour practices brought before it in accordance with its rules of procedure.\r\nSections 127-131 provide for what constitutes unfair labour practice. Following thereafter is the power given to the commission to make orders. Section 133. Commission to make orders:\r\n"(1) Where the commission finds that a person has engaged in an unfair labour practice it may, make an order forbidding that person to engage or continue to engage in the activities specified in the order.\r\n9\r\n \r\n(2) Where the Commission finds that a person has engaged in an unfair labour practice under section 127 which involves the termination of\r\nemployment of a worker, the alteration of the employment or of the conditions of the employment, the Commission may, make an order requiring the worker''s employer\r\n(a)	to take the steps specified in the order to restore the position of the worker, and\r\n(b)	to pay to the worker a sum specified in the order as compensation for the loss of earnings attributed to the contravention.\r\n(1)	Where the Commission finds that a person has engaged in an unfair labour practice under section 128 by making a contribution to a trade union, the Commission may, order that the trade union refund the contribution.\r\n(2)	For the purposes of enforcing an order of the Commission under this section, the order shall have effect as if it were made by the High Court."\r\nThe petitioner''s case before the commission was not one of unfair Labour practice and thus the order made by the commission was not made under section 133.\r\nCounsel for the Appellant had relied on section 134 and argued that the Respondent should have appealed against the order it sought to enforce and if he failed to appeal, it should for ever hold its peace.\r\nUnder regulation 144 (iv) no room has been provided for Appeal. Regulation 144 deal with major offences under the staff Rules and Regulations.\r\nAmong such offences is the offence of fraud or other acts of dishonesty.\r\nRegulation 144 states that:\r\n"The following shall constitute major offences for which the punishment shall be dismissal, removal, reduction in rank or suspension without pay or not less than 14 days, except that embezzlement shall always attract dismissal.\r\n144 (iv) is the offence of\r\n"fraud or other acts of dishonesty"\r\nSuch a conduct constitutes major offence which warrants dismissal and the complainant''s dismissal was based on this Regulation.\r\nUnder Regulation 146 of the Staff Rules and Regulations -\r\n10\r\n \r\n"(a) Disciplinary authority for all offences shall be the Board or the Managing Director exercising the Board''s authority.\r\n(b) Subject to (a) above, disciplinary authority may be exercised for purposes of administrative convenience in accordance with relevant Administrative Instructions issued from time to time by the Managing Director.\r\nNaturally under the Regulation it is an employee who has a right of Appeal against any disciplinary action that may be instituted against him and this is to the Board of Appeal.\r\nUnder the Labour Act therefore, the Respondent Company has no conferred right to Appeal and I am inclined to agree with counsel for the Respondent that the Respondent could register his dissatisfaction by his failure to comply with an order and register his disapproval by opposing an application for its enforcement when the commission seeks to do so.\r\nThe next issue raised is whether the High Court has power to question the correctness or otherwise of the decision when the commission seeks to enforce same.\r\nOn this point, both counsel heavily relied on the case of GHANA COMMERCIAL BANK VRS CHRAJ, already referred to.\r\nIn that case, the commission had gone to the High Court for the enforcement of its decision and recommendations by the High Court. The High Court had granted the application and issued an order to enforce the decision and recommendation of the commission. The Court of Appeal upheld the decision of the High Court and this culminated in the appeal to the Supreme Court.\r\nThe facts related to termination of appointment of an employee of the Bank who was a manager. The reason for the termination was that he had contravened the regulation of the Bank by granting a loan facility to a customer of the bank without prior approval from its head office.\r\nDissatisfied with the termination of his appointment, he petitioned the Respondent commission for redress. After investigation, the commission decided in favour of the petitioner and made recommendations to the Bank which failed to comply with them.\r\nThe commission therefore applied to the High Court for enforcement. The High Court granted the application and issued an enforcement order which the Court of Appeal affirmed.\r\nOn appeal to the Supreme Court, the issue for determination, was whether the investigation proceedings before the Commission on Human Rights and\r\n11\r\n \r\nAdministrative Justice may have to be laid before the trial court. One of the grounds of appeal being that:\r\n"the trial court not having seen and examined the evidence adduced before the commission, erred in seeking to enforce a ruling based on the evidence."\r\nThe Labour Commission does not have power to enforce its decision, hence the application to the High Court. It is not for nothing that the decision must be sent to the court for its enforcement. The intendment of the Law maker to me is to ensure that due process was followed and that the decision is justified on the facts and the law.\r\nA court of law which seeks to do justice cannot make an order for the enforcement of the commission''s order without satisfying itself that the order sought to be enforced is justified in law especially where there is an affidavit in opposition as to why the order cannot be enforced. The affidavit in opposition did not only raise issues of facts but law as well and in my view the trial court fell into no error as the Court of Appeal held when it examined the depositions filed in the proceedings before reaching its decision.\r\nSince the application was to be determined on the affidavit evidence, the trial Judge had no option but to look at them. If satisfied with that kind of evidence, Judgment may be given by him on the basis of that evidence. To ensure that substantial justice is done to the parties, the trial Judge, depending on the facts of each case, may even on his own order the investigation proceedings of the commission to be laid before the court.\r\nWhere one party, usually the defendant, raises issues that can only be resolved by re-examination of the evidence before the investigation body or by production of the record of proceedings before the investigation body, i.e. the commission, then the investigation proceedings before the commission may have to be laid before the court.\r\nSee holding 3 of the court in the GHANA COMMERCIAL BANK case referred to above.\r\nI find no merit in this ground of Appeal.\r\nAs counsel for the Appellant argued grounds 1 and 4 together, my resolution covers both grounds I and 4.\r\nOn ground (ii), the commission did not make any recommendation or order as to what specifically the petitioner was entitled to by way of accrued benefits.\r\nThe trial Judge had asked in his ruling -\r\n12\r\n \r\n"So what decision am I to decide on? If the decision of the applicant is upheld, how can I then say that the parties should go and sit down to agree on what to pay?"\r\nIt is for this reason that the trial court concluded that the decision of the Applicant is incomplete and cannot therefore be enforced.\r\nEx "NLC 10" did not form part of the proceedings before the commission. The decision which the Appellant sought to enforce is as follows:\r\n"It is the view of the commission that a punishment of such a breach is termination and not dismissal, therefore the purported dismissal should be converted to termination to conform with your company''s own staff rules and regulations.\r\nAccordingly the commission orders the respondent company Ghana Telecom to terminate his appointment with effect from the date that he was dismissed with all accrued benefits."\r\nThe High Court''s jurisdiction was to enforce this order as made.\r\nIt is the case of the Appellant that the fact that the Appellant did not go to the trouble of calculating the specific sum due the interested party did not render its decision incomplete and for that matter unenforceable by the High Court.\r\nIn support of his case, counsel relied on the situation where after Judgment for a liquidated sum, the High Court makes a further order that the sum so awarded is to attract interest from a particular date to the date of final payment. What constitutes the interest is not specified by the court. The Judgment creditor calculates the interest and invokes the coercive powers of the High Court to ensure enforcement by the court.\r\nThe judgment of the High Court is not deemed incomplete and unenforceable because the High Court did not specify the exact sum due the Judgment creditor by way of interest.\r\nIn reply, counsel for the Respondent argued that the decision was not complete because without taking evidence on the entitlements, the petitioner sought an order to compel the Respondent to pay what is contained in Ex "NLC" prepared unilaterally by the petitioner after the orders of the commission.\r\nRegarding the Appellant''s argument inviting the court to use the analogy of the award of interest in recovery of the award of interest in recovery cases, counsel submitted that same is misconceived. He contended that the award of interest on recovery eases which is sanctioned by the court (Award of interest and post judgment interest) Rules, 2005 (C. I. 52) and case law is different from\r\n13\r\n \r\nentitlements due an employee which is based on conditions of service. The petitioner''s entitlements are indeed based on his conditions of service which needed to be proved. The award of interest is based on a fixed interest rate. The Appellant''s argument that what is contained in Ex "NLC 10" was not challenged and therefore is deemed to have been accepted by the Respondent is not borne out from the record.\r\nIn paragraph 13 of the affidavit in support of the motion, it is averred that the respondent company through its solicitors requested for a two week period to revert to the petitioner.\r\nAt least from Ex "NLC 11", the Respondent''s counsel had advised an out of court settlement in respect of the petitioner''s entitlement but not acceptance to pay what is contained in Ex "NLC 10" as the petitioner''s entitlement.\r\nIn the affidavit in opposition, the Respondent in paragraph 11 averred —\r\n"That in answer to Ex "NLC 10", the Respondent says that even if the recommendations were right, which is denied, the need for the proof of entitlement would have required evidence to be taken	\r\nIn paragraph 10, the Respondent averred that Ex "NLC 10" is self serving and therefore of no evidential value, the calculation of the petitioner''s entitlement is false. The Respondent before the High Court therefore disputed the entitlements as contained in Ex "NLC 10".\r\nThe case of IBRAHIM VRS ABUBAKARI [2001 -2] 1 GLR cited by counsel in support of his point with due deference to counsel is inapplicable in the instant case.\r\nAgain, the analogy drawn by counsel for the Appellant is misconceived and cannot sustain his case as argued and demonstrated by Respondent''s counsel.\r\nThis ground of Appeal also fails and same is dismissed.\r\nGround (iii) which should have been argued first would have disposed of the appeal. This ground of appeal attacks the court of Appeal decision affirming that of the High Court that the Appellant did substitute its own case for that of the petitioner.\r\nThe petitioner having been charged under Regulation 144 (iv) with an offence of fraud and other acts of dishonesty, the commission in investigating the petition, proceeded under Regulation 206 (b) of staff Rules and Regulations. Regulation 206 (b) is headed concealment of facts and reads as follows:\r\n \r\n14\r\n \r\n"Concealment of facts or any intentional false statement will be considered a sufficient ground for non-employment or for subsequent termination of employment."\r\nThe commission came to a conclusion that what the petitioner did amounted to a breach of the above Regulation hence its decision that his dismissal should be converted to termination under the Regulation.\r\nCounsel for the appellant contends that in determining a dispute, submitted to it, the commission is not bound to adopt any earlier proceedings involving the parties. That the commission was to hear the matter in the exercise of its statutory Jurisdiction under section 138 of the Labour Act. Among the functions of the commission is the settlement of Industrial disputes.\r\nCounsel submitted that it was erroneous for the Court of Appeal to hold that because the appellant disagreed with the respondent''s board of enquiry''s conclusions and decided the matter before it in its own way, on the authority of DAM VRS J.K. ADDO and Brothers [1962] 2 GLR 200, the Appellant substituted its own case for that of the petitioner.\r\nCounsel submitted that in hearing the matter submitted to it therefore the commission was entitled to look at the matter de novo and reach its own conclusions. It is the case of the commission that as earlier submitted, if the commission acted in error at all, the Respondent''s remedy was to appeal and not to raise it as a defence in an enforcement proceedings.\r\nIn reply, counsel for the Respondent stated the principle of law as laid down in DAM VRS ADDO already referred to.\r\nCounsel submitted that the Appellant fell into a grave error when it substituted the charge for which the Respondent proceeded against the petitioner by basing their decision on regulation 206 of the Staff Rules and Regulations instead of regulation 144 under which the petitioner was charged and investigated.\r\nRegulation 206 was not relied on by any of the parties.\r\nIn the case of DAM VRS ADDO the Supreme Court as at the time held that:\r\n"A court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with that which the party himself puts forward, whether be the plaintiff or the defendant."\r\nThe Appellant had sued the Respondent in the High Court for accounts and for money due and owing to him. The trial Judge after the consideration of the respective cases of the parties, resolved the issues as set out in the summons for directions and thereby rejected the respondent''s case. He did not however give\r\n15\r\n \r\njudgment for the appellant but gave judgment for the Respondents basing himself on details on which no evidence had been adduced since they did not form part of the Respondent''s case as disclosed by the pleadings.\r\nIn the proceedings before the commission, no reference was made to regulation 206 (b) of the Staff Rules and Regulations. The petitioner''s petition was against unfair dismissal based upon fraud or other acts of dishonesty. Fraud because he has misrepresented to the Respondent that he obtained his "0" and "A" Level certificates from Benkum Secondary School, a representation he well knew to be false.\r\nThe issue which the commission was called upon to determine is whether or not the petitioner''s dismissal was unfair.\r\nThe commission from its report, found as a fact that the petitioner gave a false information with regard to a secondary school he claimed he attended and obtained his "A" and "0" Level Certificates. What it should have decided upon was whether the dismissal was unfair or not.\r\nThe commission had no Jurisdiction to prefer its own charge against the petitioner and proceed against him for an offence for which he was not charged.\r\nThe Appellant''s contention that under its statutory Jurisdiction, the Appellant is not bound to adopt any earlier proceedings involving the parties and that it was entitled to look at the matter de novo is fallacious and untenable.\r\nThe commission could not substitute a case of its won for the petitioner and adjudicate on it when the dispute between the petitioner and the Respondent was not based on concealment of facts as laid down under regulation 206 (b).\r\nTo condemn the Respondent under regulation 206 (b) and order it to terminate the petitioner''s appointment instead in conformity with the said regulation will be acting without jurisdiction and a denial of justice for not giving the Respondent on opportunity to be heard on that charge.\r\n"To condemn a person on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded." Dictum of Lord Normand in ESSO PETROLEUM CO. LTD VRS SOUTH PORT CORPORATION [1956] A. C. 218 relied on and applied in DAM''s case.\r\nThis ground of Appeal does also not find favour with the court. Consequently, the appeal fails in its entirety and same is accordingly dismissed.\r\nIt is for these reasons that the court unanimously dismissed the appeal on 13-01 \r\n12.\r\n16\r\n \r\n(SGD) R. C. OWUSU (MS.) JUSTICE OF THE SUPREME COURT\r\n(SGD) G. T. WOOD (MRS)\r\nCHIEF JUSTICE\r\n(SGD) S. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) P. BAFFOE BONNIE JUSTICE OF THE SUPREME COURT\r\nCOUNSEL: \r\nTHADDEUS SORY FOR THE DEFENDANTS/ APPELLANTS.\r\nKWAKU GYAWU-BAFFOUR FOR THE PLAINTIFFS/RESPONDENTS.\r\n_ „„„,	•••••,,,;.,,\r\nc''t	\\ \\ __,-- r:,.1, II,. & '' -\r\n\\\\---"--\r\n\\\r\n,\r\n', '../links/cases/Document (217).pdf', 'Yes', 'BROBBEY, JSC, OWUSU (MS), JSC, YEBOAH, JSC, BONNIE, JSC.', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Labour Law - Wrongful dismissal - Order made by the National Labour Commission not followed - Application to High Court for enforcement of order - Whether the order must be evaluated before its enforcement - Whether court exceeded its jurisdiction in re-examining Commission''s proceedings - Labour Act, 2003, s.172</font></b></i><br>', ' WOOD (MRS), C.J.', 'Civil', '', 'J4/53/2010', '', '', 'supreme', '2012-01-13', ''),
(569, 'ANNA VICTORIA BART PLANGE  ---  PLAINTIFF/APPELLANT/APPELLANT\r\nVRS\r\nNANA EGYEI FOAH  ---  DEFENDANT/RESPONDENT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT OF JUSTICE\r\nACCRA 2011\r\nCORAM: ATUGUBA, JSC (PRESIDING)\r\nAKIJFFO (MS), JSC\r\nANIN-YEBOAH, JSC\r\nGBADEGBE, JSC\r\nAKOTO-BAMFO (MRS), JSC\r\nCIVIL APPEAL\r\nSUIT NO. 14/40110\r\nDATE: 23111) FEBRUARY, 2011\r\nANNA VICTORIA BART PLAN GE PLAINTIFF/APPELLANT/APPELLANT VRS\r\nNANA EGYEI FOAH	DEFENDANT/RESPONDENT/RESPONDENT\r\nLand Law	Proof of ownership of land	Whether land was acquired\r\nfraudently by the defendant - Possession of deed of conveyance by the\r\ndefendant for more than 20 years - Evidence Whether hearsay evidence adduced by plaintiff admissible in the face of the deed of conveyance Evidence Act, 1975,s. 130(2).\r\nIUDGMENT GBADEGBE ISC:\r\nThis is an appeal from the decision of the Court of Appeal that affirmed the decision of the High Court, Cape Coast in an action that turned on the ownership of a piece or parcel of land situate at Momofra Akyenim in the Central Region. It appears from\r\n \r\nthe judgment of the Court of Appeal that the leaned judges accepted the determination of the trial High court. Delivering the judgment of the court, Piesare JA (as he then was) said by way of a comment on the appeal before them as follows:\r\n"At the end of the day, the trial judge gave a straightforward and comprehensive judgment dismissing the plaintiff-appellant''s daim, and entered judgment in favour of the defendant on his counterclaim. We have carefully examined the judgment, and we have no good reason to disturb that judgment."\r\nIn our view the facts that led to the issue of the writ of summons herein in the trial court were as said by the learned judge of the Court of Appeal whose pronouncement has just been quoted relatively simple and turned on the question as to who owned the disputed land that on the admitted evidence was first acquired\r\nby the plaintiff''s family by purchase. The defendant while admitting the prior ownership of the plaintiff''s family pleaded a grant from the family to his predecessors in title on September 22, 1944. The said transaction of sale on which the defendant relied was covered by a deed that was registered as No 273A/1945. The relevant pleadings of the defendant on how they came to be possessed of the disputed land was averred to in paragraphs 7-10 of the statement of defence, which in our view provided the plaintiff with what we consider to be a full and frank disclosure of the reason why their claim of title to the land was being resisted. Reference is made shortly afterward in this delivery to the relevant pleadings for a better appreciation of the very narrow compass within which the action ought to have been contested in the trial court having regard to the case put forward by the parties. Since the defendant admitted the prior ownership of the plairil-iff but relied\r\n \r\non a purchase by his ancestors from the plaintiff''s predecessors in title, we think that the right to begin at the trial rested on the defendant and accordingly in considering the pleadings filed on their behalf in the trial Court, we commence with that of the defendant. The relevant pleadings of the defendant that answer the plaintiff''s averment as to title that is asserted in paragraph 4 of the statement of claim is contained in the following paragraphs.\r\n"7. In answer to paragraph 4 of the statement of claim, Defendant says that his great grand fathers; Atekye Panyiri, Nana Amba Kainbah and John Braham all Atekyem Quarters and members of the Anona family of Elmina acquired the land in dispute from Jacobus Vanderpuye Neizer and Elizabeth Ackon ekes Essi Kuhr! of Elmina.\r\n8.	Defendant further says that the said Jacobus Vanderpuye Neizer and\r\nElizabeth Ackon alias Essi Kuhr/ acted for and on behalf of the late Kwamina Amissah, Anona family of Elmina.\r\n9.	Defendant further says that his (Defendant) great grandfathers aforementioned in consideration of the land in dispute paid (twenty six pounds), a receipt for which was issued by the vendors and a deed of conveyance was then executed on September 22, 1944 to the purchasers and registered as No 273A /1945.\r\n10.	Defendant says that the land in dispute after its acquisition by the purchaser in 1944 became the property of the Nana Egyei Foah Anona family of Elmina and the family has since exercised uninterrupted right and control over same."\r\nParagraph 4 of the statement of claim to which the above pleadings refer was expressed as follows:\r\n \r\n"The said land was acquired in the late 15rn century by plaintiff''s ancestor George Emissang aka Kwamina Amissah who was a lawyer by profession."\r\nIn our thinking at the close of the pleadings the crucial issues for determination were correctly set out by the learned trial judge in the course of his judgment at page 164-165 of the record of appeal. We make reference in this regard to page 164 where the learned judge observed of the issues that turned on the pleadings for his determination as follows:\r\n"Basically, there are three issues, which issues are whether or not Jacobus Vanderpuye Neizer and Elizabeth Ackon Essi Kubil, members of the plaintiff, had alienated portions of the land, which land, ie the subject matter of the present suit If so whether or not they had the capacity to allenate the land Whether or not the land was given to the Defendant''s ancestor to cultivate coconut thereon. There is the issue whether or not the defendant had perpetrated fraud."\r\nThe learned trial judge then mentioned other issues for determination that included that of estoppel by the judgment in the case of Mary Conduah v Adzaye that was placed before him as part of the plaintiff''s case. Clearly the learned trial judge appreciated the nature of the task before him and we find no fault with the manner in which he set out to determine the issues for trial. After what we consider to be a careful evaluation of the evidence the learned trial judge accepted the defendant''s version of the matter in preference to that of the plaintiff. The evaluation to which we refer is found at pages 164 to 167 of the record of appeal. In partirular, at page 167 he observed by way of his concluding remarks of the respective cases of the parties as follows:\r\n \r\n"In this case the plaintiff did not adequately prove the boundaries of the land he is claiming, neither has he been able to show that his ancestors gave the land to Kweku Mensah to plant coconut It is not enough for a plaintiff to make certain depositions of fact in his statement of claim and mount the witness box to repeat those assertions without evidence of any corroborative evidenc3 in proof of his assertions. Consequently, I will dismiss the plaintiff''s claim in its entirety and therefore make a declaration in favour of the defendant to that entire piece or parcel of land situate lying between Mboframa and Akwandah, the boundaries of which are in exhibit 2. The defendants are already in possession of the land so there is no need to make an order of recovery of possession."\r\nWe think that the learned judges of the Court of Appeal came to the right conclusion on the evidence by dismissing the appeal. Having alleged by way of answer to the defendant''s claim to have acquired the land fraudulently, in the face of the due execution of the deed of conveyance and its proof before the Registrar of the Divisional Court, Cape Coast on 27 September 1944, we think that his failure to introduce any evidence to sustain the said crucial averment fractured his denial of the purchase on which the defendant relied and rendered his adversary''s case more probable than that which he asserted before the trial court. It appears that on the evidence and the recent acts of possession that were exercised on the land by the defendant, which acts were traceable to the purchase that they relied on the entire evidence pointed hugely in the direction of a verdict in favour of the defendant. It is observed that the document on which the defendant relied having been in existence for more than twenty years and acted upon by the possession of the\r\n \r\ndefendant rendered it a document that comes within the designation of an ancient document under section 130(2) of the Evidence Act, NRCD 323 which provides thus:\r\n"Evidence of a hearsay statement that is not made inadmissible by section 117 if the statement is contained in a writing more than 20 years old and the statement has since been acted upon as true by persons having an interest in the matter."\r\nWe are of the opinion from the admitted evidence that the defendant''s family have been on the land for several years consequent upon the grant to them by the predecessors in title of the plaintiff and this must explain why the plaintiff was unable to call any evidence to support his allegation that their family had granted the land to a member of the family of the defendant to cultivate coconut thereon as a tenant. It is surprising from the evidence that the plaintiff was unable to call any other evidence to support his claim that the coconut plantation was made on their land and that there was at the date he testified in the matter arrears 01 ground rent owing to their family in respect of the farm.\r\nThen there is the issue relating to the fact that the decision on appeal to us is one in which the Court of Appeal had affirmed the trial Court on findings of fact that turned on the pleadings. In line with settled judicial pronouncements, to succeed before us the plaintiff is required to satisfy us that the decision of the Court of Appeal that confirmed that of the trial court on issues of fact was one that contained an error or blunder resulting in a miscarriage of justice. We refer in this regard to the case of Achoro v Akanfela [1996-1997] SCGLR 209 per Acquah JSC (as he then was) at page 212 as well as Jass Co Ltdv Appau [2009] SCGLR 208.We have carefully read the statement of case submitted to us by the plaintiff on the grounds contained in the notice of appeal that originated these proceedings and\r\n \r\na\r\nhave come to the opinion after considering the record of appeal that there is no error or blunder that has the slightest effect of a miscarriage of justice. On the whole, we are satisfied with the decision of the Court of Appeal in the matter herein.\r\nWe say in regard to the purely legal ground of appeal that is numbered as one in the notice of appeal, which seeks to call in question the court''s reliance on exhibits 1 and 2, the receipt for the purchase of the land and the deed of conveyance that the substance of the complaint that touches and concerns the non-compliance with provisions of the Stamp Act as well as the Public Records and Archives Administration Act, (Act 535) of 1997 that the issues raised by the said points were correctly expounded by the Court of Appeal and accordingly we shall spend no further time in considering them. We add that the document having been in existence before the coming into being of the two statutes, the presumption against statutory retroactivity applies to them.\r\nOn the appeal generally, we have observed that the grounds of appeal to this court that is contained at page 240 Of the re cord of appeal is a repetition of those that were previously filed in the Court of Appeal at page 168 of the record of appeal before the Court of Appeal save that where there was in the previous notice a reference to the trial court in the new one the words "Court of Appeal" have been substituted. Having come to the view that the decision on appeal to us was right, we think this is sufficient to dispose of the instant appeal for the reasons above.\r\n \r\nThe result is that the appeal herein is dismissed and we proceed to affirm the\r\ndecision of the Court of Appeal.\r\n[SGD]	S. GBADEGBE J.S.0\r\nJUSTICE OF THE SUPREME COURT\r\nANIN YEBOAH JSC: \r\nI am unable to sit with my colleagues in this case as I have to travel to Kumasi to\r\nAttend to other "judicial" matters. I, however, agree with the opinion of my learned\r\nbrother Justice Gbadegbe that the appeal be dismissed.\r\n[SGD]	ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	W. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	S. A. B. AKUFFO (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n[SGD] V. AKOTO-BAMFO\r\nJUSTICE OF THE SUPREME COURT\r\n \r\nCOUNSEL:\r\nMAXWELL HALM REPRESENTS THE APPELLANT.\r\nHANkY WILLIAM KOBINA RESPONDENT PRESENT.\r\nJOHN MERCER (WITH COSMOS ANDOH) FOR THE APPELLANT. MICHAEL ARTHUR-DADZIE FOR RESPONDENT.\r\n', '../links/cases/Document (218).pdf', 'Yes', 'AKUFFO (MS), JSC, ANIN-YEBOAH, JSC, GBADEGBE, JSC, AKOTO-BAMFO (MRS), JSC.', '2011', 'supreme', '<i><b><font face="Times New Roman" size="3">Land Law - Proof of ownership of land - Whether land was acquired fraudently by the defendant - Possession of deed of conveyance by the defendant for more than 20 years - Evidence - Whether hearsay evidence adduced by plaintiff admissible in the face of the deed of conveyance - Evidence Act, 1975, s. 130(2).</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J4/40/10', '', '', '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
(570, '1. DUODU AMOO\r\n2. MADAM NAADU  ---  PLAINTIFFS/RESPONDENTS/RESPONDENTS\r\nVRS\r\n1. BERNARD NIMAKO AKOWUAH\r\n2. SAMUEL NII OTU ANKRAH  ---  DEFENDANTS/APPELLANTS/APPELLANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCO RAM: WOOD (MRS) C.J, (PRESIDING)\r\nBROIIBEY, JSC\r\nOWUSU (MS.), JSC\r\nYEBOAH, JSC\r\nBONNIE, JSC\r\nCIVIL APPEAL\r\nNO 14/3612011\r\n13111 January, 2012\r\n\r\n	\r\n\r\nPractice and procedure— Execution of bail bond by illiterate— Whether due process was followed in the execution—Proof— Onus on party who seeks to bind the illiterate to document— Irregularities in document—Whether illiterate was a surety.\r\nExecution of Judgment Debt— Process that must be followed for due execution of debt— Error found in the initial entry ofjudgment— Duty of court to correct the error— Supreme [High] Court Civil Procedure Rules LN 14011, 1954, Order 28, Rules 11&12.\r\nJUDGMENT ANIN YEBOAH, ISC:\r\nThe facts of this appeal appear not to be in serious controversy. One Samuel Nii Otoo Ankrah commenced an action against one Joshua Kpakpo Allotey at the High Court, Accra. Before the case could be disposed of the plaintiff Samuel Nil Otoo Ankrah applied for absconding warrant against the said Joshua Kpakpo Allotey as he had information\r\n \r\nthat he was preparing to leave the jurisdiction. It was granted by Her\r\nLadyship Justice Emelia Aryee.\r\nThe claim was for refund of an amount of US$8, 850. The defendant in\r\nthat case was arrested with the warrant and was granted bail in the sum\r\nof 01,500,000.00 with two sureties.\r\nTwo persons namely: Eugene Darko Amoako and Benjamin Akwei\r\nAllotey executed bail bonds as sureties for Joshua Kpakpo Allotey. The\r\ntwo bail bonds were tendered in evidence at the trial court in this case.\r\nThe two sureties were named in exhibits Fl and F2. Exhibit F was the\r\nbail bond while exhibits Fl and F2 were the justification of sureties''\r\nforms. Exhibit F2 which was executed on the 3/12/1987 the same day\r\nexhibits F and Fl were executed, was amended by the cancellation of\r\nthe name and residential address of Benjamin Akwei Allotey and the\r\ninsertion thereof of the name of ADJIN OKWABI with his residential\r\naddress. There were other serious irregularities bordering on the\r\nthumbprint affixed to exhibit F2 and signature of Benjamin Akwei Allotey\r\nwhich was made before the purported amendment.\r\nIt was apparent that even though the name Benjamin Akwei Allotey was\r\ncancelled, his signature as one of the two sureties stood. Be that as it\r\nmay, the case against the said Joshua Kpakpo Allotey ended with a\r\n \r\nsummary judgment by which the defendant in that suit Joshua Kpakpo\r\nAllotey was adjudged to pay an amount of 02,508,903.28 inclusive of\r\ninterest and cost.\r\nIn the process of levying execution of the judgment against Joshua Kpakpo Allotey, H/N2 B182/12 Odorkor, Accra owned by Adjin Okwabi at\r\nthe time was sold at a public auction and purchased by one\r\nB.N.AKOWUAH who is the appellant in this appeal. The respondent\r\nherein who described herself as the beneficiary of the property sold at\r\nthe auction brought an action at the High Court, Accra to set aside the\r\nwrit of possession which culminated in the sale, declaration of title and\r\nrecovery of possession of the auctioned house and other ancillary\r\nreliefs.\r\nThe statement of claim and the evidence led appeared to be very brief.\r\nIn the statement of claim the respondent herein pleaded that in suit\r\nnumber 3626/87, one Samuel Nil Otu Ankrah as plaintiff was adjudged\r\nto recover a certain amount of money as judgment debt from Joshua\r\nKpakpo Allotey as defendant in a suit at the High Court, Accra. It was\r\nfurther pleaded that the entire judgment debt was paid to the said\r\nSamuel Nii Otu Ankrah (defendant/judgment-creditor), nevertheless he\r\nproceeded to levy execution against the property of Adjin Okwabi\r\nostensibly to satisfy the judgment debt.\r\n \r\n\r\nThe auction of the house numbered as B. 182/12 Odorkor, Accra took place and same was bought by one Bernard Nimako Ankowuah The evidence of the respondent sought to establish the relationship between her later father Adjin Okwabi and Joshua Kpakpo Allotey as uncle and a nephew. It does appear that the respondent herein is the cousin of Joshua Kpakpo Allotey. It was contended in her evidence that the entire judgment debt was paid before the auction sale was conducted out of which the appellant herein bought the house in dispute.\r\nThe defendant/judgment-debtor in the earlier suit one Joshua Kpakpo Allotey also gave evidence for the respondent herein and sated that he had to complete exhibits F, Fl and F2 in connection with the bail and was advised not to leave the jurisdiction until the said suit had been determined.\r\nIt was to secure his presence that his uncle Adjin Okwabi used his own house as security. According to him he had as at 31/1/1989 paid the entire judgment debt by sending money on regular basis from the United States of America for the defraying of the judgment debt as it appeared on the face of the entry of judgment filed on behalf of the judgment- creditor in that suit. Joshua Kpakpo Allotey (PW1) tendered exhibit M which is a statement of accounts of the payments made to the judgment/creditor in the earlier suit and claimed that he did not receive\r\n \r\n\r\nany reaction from the judgment/creditor.	His evidence on the\r\nsatisfaction of the judgment debt was corroborated by PW1 who\r\ntendered exhibit N and the Entry of Judgment [exhibit E] and an\r\namended Entry of Judgment subsequently filed as exhibit P which amended the judgment debt to 04, 413, 913.75 instead of the 02, 508,\r\n903. 28.\r\nOn the part of the appellant herein his case was very simple. In his\r\npleadings and the evidence led at the trial, he contended that H/1\\12\r\nB182/12 Odorkor, Accra was purchased by him at a public auction\r\nauthorized by a curt of law and had no notice of any interest in the property. He further contended that the judgment debt for which\r\nexecution was levied had not been paid and called a witness to give\r\nevidence of several unsuccessful attempts to set aside the sale.\r\nGiven the nature of the pleadings, few issues emerged for\r\ndetermination.	The learned trial judge in her judgment entered\r\njudgment in favour of the respondent herein declaring the sale unlawful\r\nand further, there was no liability incurred by the respondent as regards\r\nthe bail bond, as to her, the said Joshua Kpakpo Allotey attended court up to the finality of the case. Another point on which the respondent''s\r\nclaim was upheld was that there were serious irregularities apparent in\r\nexhibit F2 (Justification of Sureties) which according to the learned trial\r\n \r\n\r\njudge was not executed by Adjin Okwabi as it did not bear his thumbprint as an illiterate as required by law. She also found that the cancellation of the name of Benjamin Akwei and substitution thereof of Adjin Okwabi amounted to "definite irregularities in the whole execution" to hold Adjin Okwabi liable. The learned trial judge was of the view that the liabilities of the sureties was to the tune of 01,500,000.00 which they offered to pay upon default on the part of Joshua Kpakpo Allotey as spelt out in the bail bond executed by the sureties. Lastly, the Amended Entry of Judgment out of which the execution was levied was declared void by the trial judge.\r\nThe appellant herein lodged an appeal at the Court of Appeal on several grounds. The Court of Appeal on 29/07/2010, in a judgment which virtually sought to endorse all the fact findings and the law applied by the trial judge unanimously dismissed the appeal. This appeal before this court is the second appeal. Learned counsel for the appellant has filed three grounds of appeal to seek the reversal of the judgment of the Court of Appeal which affirmed the judgment of the High Court.\r\nIn arguing the first ground of appeal, learned counsel for the appellant disputed the concurrent finding by the two lower courts that the judgment debt was not fully paid. He attacks the Court of Appeal and the High Court''s judgments on the grounds that the two lower courts did not\r\n \r\n\r\naddress their minds to the fact that contrary to their finding that the whole judgment debt had been paid, paragraph 3 of the statement of claim in this case stated expressly that the judgment debt was paid during the pendency of this case at a time when the appellant had already bought the house. In as much as I agree with counsel that a party is bound by his pleadings the evidence led which in this case was basically documentary, established conclusively by reference to the payment made as per exhibits "G", "H", "J", "K", "L" and "M" that as at 31/1/89 the amount of 02,508,91 0.00 had been paid.\r\nIf indeed the whole amount of the judgment debt had not been paid before the execution was levied the sale would on that ground be regular and the appellant would have obviously raised this in the statement of defence. It was an issue set down in the summons for directions after close of pleading which was resolved in favour of the respondents based on the uncontroverted documentary evidence on record. As the trial judge found as a fact based on the evidence, which was concurred by the Court of Appeal, this court can only reverse the concurrent findings if the appellant demonstrates convincingly that the findings were not supported by the evidence. See ACHORO V AKANFELA [1996 - 7] SCGLR 209 and OBRASIWA II & ORS V OTU & ORS [1996-7] SCGLR\r\n618.\r\n\r\nAs this court concurs in the two lower courts finding that the judgment debt had been fully paid before the execution, the learned trial judge was right to declare the sale to the appellant void. In KARIMU V GHASSOUB [1970] CC 104 CA, a judgment debt of £1,816.00 in a previous suit was left unpaid and the judgment-creditor sought to levy\r\nexecution by fi.fa for the unpaid amount. The house was sold at a public auction. Unknown to the purchaser, the entire judgment debt had been paid two days before the auction sale, the money having been paid in two installments to the judgment-creditor''s solicitor. The High Court set aside the sale. On appeal, the defence of the appellant was that he was a bona fide purchaser for value without notice and that the sale was not void ab initio. In dismissing the appeal, the Court of Appeal held that the purpose of issuing a writ of fi.fa is not necessarily to sell the property of the judgment-debtor but to compel the judgment-debtor to pay the judgment debt and as the judgment debt had been paid in full before the sale, the execution was not void ab initio but was void ex post facto and passed no title to the purchaser. The Court of Appeal proceeded to lay down the law that the legal right to seize the property by way of writ of fi.fa ceased to exist after payment of the judgment debt in full. On this ground the court below was right in holding that the sale was void. In this case the judgment debt had been paid in full as at 31/1/89 and the "Notice of filing of Accounts pursuant to Order" of the court was filed on 2/3/89 before the sale took place on 12/06/1989, more than three\r\npg. 8\r\n \r\n\r\nmonths after the payment of the entire judgment debt. It stands on the authority of the above-cited case that the sale was obviously void and passed no title to the appellant who claims to be purchaser for valuable consideration. See KWABENAVANINKORA & OR [1964] GLR 299 SC\r\nAnother ground which was argued touches on exhibits "F", "Fl" and "F2" out of which the learned judge at the High Court found as a fact that the said Adjin Okwabi was not a surety in the case in which his nephew Joshua Kpakpo Allotey was arrested. The Court of Appeal also concurred on this and stated that exhibit "F2" stood contradicted and it was void as it did not in any case create any legal obligations on the said Adjin Okwabi. The two lower courts both advanced convincing reasons to support this finding. This was what the Court of Appeal said:\r\n"Now on the question of the sureties, from the evidence and exhibits F,F1 it is clear the plaintiff''s deceased father was not one of the sureties. However, on exhibit F2 one of the names on the Justification of Sureties was cancelled and the name of Adjin Okwabi written at the top and the address again at the top of the cancelled one. Here the crucial point is at the bottom of the form, and in place of the signature of Benjamin Akwei Allotey one of the original sureties, there is the writing "thumbprint" but indeed there was no thumbprint, (Adjin Okwabi being illiterate) which in effect\r\n \r\n\r\nmeant he had not executed it an it also still had the signature of\r\nthe surety who had earlier executed it. There were definite \r\nirregularities in the whole execution process which proved to be\r\nfatal"\r\nIt is settled on authorities like ZABRAMA V SEGBEDZI [1991] 2 GLR\r\n221, CA, BOAKYEM V ANSAH [1963] 2 GLR 223 and WAYA V\r\nBYROUTHY [1958] 3 WALR 413 that to bind an illiterate to a document\r\nevidence must be led to prove that same was read and interpreted to the\r\nilliterate in the language he understands before he made his mark or\r\nthumbprint. The onus is always on the party who wants to bind the\r\nilliterate to the document.\r\nIn this case, both courts from the evidence found as a fact that the cancellation of a court process and the serious irregularities associated\r\nwith document like non-execution of the bond by Adjin Okwabi makes the document bad in law as Adjin Okwabi never was not a surety as he\r\nnever executed the bail bond or the justification of sureties. These\r\nfindings are supported by the evidence and I think no convincing\r\nreasons have been urged on this court for us to set aside those findings.\r\nAn official court process or document like bail bond or Justification of\r\nSureties should be free from irregularities to leave no one in doubt that\r\n \r\n\r\nthe surety executed the bond. Cancellations and lack of signature or thumbprint or mark apparent on the face of the document as happened in this case would create serious doubts as to its authenticity in the minds of jurists as it occurred in this case.\r\nThe last ground of appeal which was argued was the finding by Court of Appeal that the appellant was not entitled to the sum stated on the Amended Entry of Judgment. In practice, judgment —creditors seeking to levy execution file Entry of Judgment and serve same on the judgment-debtor as a prelude to execution. It is a formal notification to the judgment-debtor of the reliefs granted by the court which the judgment-creditor may seek to enforce. Under the rules of court as it then stood after the judgment was delivered the judgment-creditor was enjoined by Order 41 rr 1,3 and 5 to officially notify the judgment-debtor the terms of the judgment and what was due to be paid. See NORA STORES V UNION INDUSTRIES (GHANA) LIMITED [1969] CC 123 and OTU & ORS V SOKODE [1969] CC 66 CA. In this case the judgment-debtor paid what he was requested to pay as per the Entry of Judgment served on him and subsequent to the payment in full filed a Statement of Account Pursuant to the order of the court on 21/3/1989 and same was tendered as exhibit "M" at the High Court. The Entry of Judgment filed later by the judgment-creditor in that suit was an Amended Entry of Judgment (exhibit "10") which computed interest on\r\n \r\n. 		•\r\n \r\nthe judgment debt which according to the learned High Court judge was\r\nalmost double the original amount on the first Entry of Judgment. The\r\nlearned trial judge did not find out when it was served. It is not clear on\r\nrecord whether it was indeed served on the said judgment-debtor\r\nJoshua Kpakpo Allotey to make him officially aware of the new amount\r\nhe was supposed to pay, even if he was to pay same.\r\nIt is not on record whether the judgment-creditor sought leave of the\r\ncourt to amend such a vital process in execution. Under the then\r\nexisting rules, the Supreme [High] Court Civil Procedure Rules LN 140\r\nA, 1954, Order 28 rules 11 and 12 required accidental slips and\r\nomissions to be amended by motion or summons. Indeed learned\r\ncounsel for the appellant in his written submissions in this appeal stated\r\nas follows:\r\n"There is no doubt that the ruling of Miss Aryee J found at RA/221-\r\n223 contained an error affecting the quantum of the judgment-\r\ndebt"\r\nAssuming without admitting, that here was an error in the initial Entry of\r\nJudgment, such error should be corrected by the judicial process. In my respectful view, a judgment-creditor who discovers his error in filing such\r\na vital process should not be permitted to amend the process on his own\r\n \r\nmotion without resort to the judicial process by invoking the court''s jurisdiction to correct the slip or omission through amendment with notice to the judgment-debtor who is the affected party. Unilateral step to amend the entry of judgment as it happened in the case should be frowned upon. Another vital point raised by the trial court was that there was no evidence of service. Indeed learned counsel for the appellant has not been able to point out when the said Joshua Kpakpo Allotey was served with the Amended Entry of Judgment.\r\nI find to miscarriage of justice in any manner or form in this appeal to warrant the reversal of the judgment of the Court of Appeal which affirmed the judgment of the High Court. I therefore proceed to dismiss the appeal.\r\n(SGD) ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) G. T. WOOD (MRS.) CHIEF JUSTICE\r\n(SGD) S. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n(SGD) R. C. OWUSU (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SO) P. BAFFOE-BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL\r\nKWAMENA BAIDEN FOR THE 1.51- APPELLANT.\r\nALBERT ADAARE FOR THE 2ND RESPONDENT.\r\n, , 410t	kfh /41:-‘1\r\n\\	-\r\nI "‘	c''C	r“.\r\n—\r\n', '../links/cases/Document (219).pdf', 'Yes', 'BROBBEY, JSC, OWUSU (MS), JSC, YEBOAH, JSC, BONNIE, JSC.', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and procedure - Execution of bail bond by illiterate - Whether due process was followed in the execution - Proof - Onus on party who seeks to bind the illiterate to document - Irregularities in document - Whether illiterate was a surety.<br>Execution of Judgment Debt - Process that must be followed for due execution of debt - Error found in the initial entry of judgment - Duty of court to correct the error - Supreme [High] Court Civil Procedure Rules LN 140A, 1954, Order 28, Rules 11&amp;12.</font></b></i><br>', 'WOOD (MRS) C.J', 'Civil', '', 'J4/36/2011', '', '', 'supreme', '2012-01-13', ''),
(571, 'GABRIEL JOANNE  ...  APPELLANT\r\nVRS\r\nTHE REPUBLIC  ...  RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE COURT OF APPEAL\r\n(CRIMINAL DIVISION)\r\nACCRA\r\nCORAM: R.K. APALUO, J.A (PRESIDING)\r\nK.A. ACQUAYE, J.A	19TH MAY 2011\r\nADUAMA OSE!, J.A	H2/8/2011\r\nGABRIEL JOANNE	APPELLANT VRS\r\nTHE REPUBLIC	RESPONDENT\r\nCriminal law and procedure	Narcotic Offence	Appellant charged with\r\npossession of narcotic drugs	Narcotic Drugs (Control, Enjbrcement &\r\nSanctions) Law, ss. 56(a), 1(i) - Trial Mistake in charge sheet Non- amendment of mistake - Whether it occasioned substantial miscarriage of justice Criminal Procedure Code, s.112 (2).\r\nPlea	Change in appellant''s plea Accepting plea in the absence of attorney\r\nwhether Court committed procedural error— Criminal Procedure Code, s. 199.\r\nJUDGMENT K.A. ACQUAYE I.A.\r\nThis is an appeal against the conviction and sentence of ten years imprisonment with hard labour imposed on the appellant by the Fast Track High Court, Accra on 411, May 2010. The appellant was charged with attempting to commit an offence of exporting narcotic drugs without licence contrary to sections 56(a) and 1(i) and possession of narcotic drug without licence contrary to Section 2(i) both of Narcotic Drugs (Control, Enforcement and Sanctions) Law PNDCL 236 of 1990.\r\n \r\n\r\n \r\nThe facts of the case were that on 9th September 2009 the appellant and two others all said to be Americans arrived at the Kotaka International Airport to board a Delta Airline to the United States of America. While going through pre-departure formalities for the flight officials of Narcotic Control Board suspected them of carrying narcotic drugs and conducted a search on them. The search revealed a powdery substance suspected to be narcotic drugs hidden in their pants, the soles of their shoes, and the 2'' and 3rd female accused persons in their vagina. On interrogation they admitted the offence and mentioned one Alhaji in Accra as their source of supply. The suspected drugs were sent to the Ghana Standards Board in Accra for analysis and the tests proved positive for narcotics hence the three were charged with the offences.\r\nOn their arraingment before the Fast Track High Court in Accra the 1st and 2nd accused persons pleaded not guilty but the 3rd accused who is the appellant herein refused to plead in the absence of her lawyer so they were all remanded in custody. On their second appearance before the court, the 3rd accused person then represented by a lawyer pleaded not guilty when the charges were again read to her and they were remanded in custody. The record of proceedings indicate that on 28th January 2010 when the accused persons were brought to the court their counsel pleaded for a short time to reconsider their pleas and the case was adjourned to 3rd February 2010. On the next adjourned date the 1st and 2nd Accused persons who appeared by their old Lawyer pleaded to change their pleas and on the charges being re¬read and explained to them, the 1st and 2nd persons changed their pleas and pleaded guilty to the two charges. They were accordingly convicted on their own pleas and sentenced to 10 years imprisonment on each count.\r\n \r\n\r\n \r\nThe 3rd accused now the appellant who was represented by a new lawyer had her case adjourned to 23'' February 2010. On that day the prosecution called their first witness who was cross-examined by the appellant''s lawyer and the case adjourned to 10th March 2010 for continuation. There is no record in the record of proceedings as to what transpired in March and June 2010 but on 4th May 2010 the appellant appeared in court without any lawyer and informed the court that she wanted to change her plea. The charges were re-read to her\r\nto which she changed her two pleas to guilty and was accordingly convicted on her own pleas and sentenced to 10 years imprisonment with hard labour to\r\ntake effect from the day of her arrest. The court also ordered that she should\r\nbe deported from the country after serving her sentence.\r\nIt is against this background that the appellant has filed five grounds of appeal\r\nwhich are:-\r\na)	The facts of the case do not support the charge levelled against the\r\naccused person.\r\n\r\nb)	The charge sheet was incurably bad and could not be the basis of the\r\nappellant''s conviction and subsequent sentence.\r\nc)	The learned judge erred when he accepted the plea of the appellant in\r\nthe absence of her counsel after she had refused to plead to the\r\ncharges.\r\nd)	The appellant never intended to plead guilty to any charge as she had\r\nwritten in her statement to the police and for that matter to the\r\nprosecution that she knew nothing about the drugs.\r\n \r\ne) The appellant did not understand the proceedings at the court below in that she is only 21 years, a U.S.A national as well as a student and she was without any relative in court or in Ghana.\r\nArguing the first ground of appeal that the facts do not support the charges Counsel stated that the kind of drugs was not stated in the particulars of offence and the facts. Counsel also stated that the facts suggest that each suspect''s drug was independent of the other yet the particulars stated all the three suspects held 491.8932 grams together as they walked. Counsel submitted that since two of the three suspects had pleaded guilty to carrying the 491.8932 grams of drugs, the facts are different from what the appellant was charged with and it is wrong in law for the appellant to plead guilty to a charge not supported by the facts. In his answer the Principal State Attorney admitted the error in not mentioning the kind of drug the suspects were carrying in the charge sheet but submitted the error was cured by the evidence of PW! and that it did not occasion a miscarriage of justice.\r\nIn page 76 of A.N.E. Amissah''s Criminal Procedure in Ghana the author Paraphrased Section 112(2) of the Criminal procedure Code Act 30/60 as "the statement [of offence] must describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence is one created by enactment must contain a reference to the enactment". Under "particulars of offence" the learned author wrote at page 77 "it is necessary to state under this head such particulars of the offence as may be necessary for\r\n \r\ngiving reasonable information as to the nature of the charge". The statement\r\nof offence of count one on the charge sheet of the appellant stated\r\n"Attempt to commit an offence of exportation of narcotic drugs without a licence issued by the Minister of Health contrary to sections 56(a) and 10) of the Narcotic Drugs (Control Enforcement and Sanctions) Law 1990 (PNDCL 236)".\r\nThe particulars of offence of count one also stated\r\n"1)	Shadrak Bamfo Ntiamoah: Fire Officer.\r\n2)	Abena Serwaa: Student.\r\n3)	Gabriel Joanne: Student.\r\nOn the 9th September 2009 at the Kotaka International Airport in the Greater Accra region and within the jurisdiction of this court attempted\r\nto export to the United States of America 491.8932 grams of cocaine a\r\nnarcotic drug without licence issued by the Minister of Health".\r\nThe statement and particulars of offence of Count Two were couched in similar fashion. An examination of the two counts show that they describe the offences and give particulars of the offences as to give reasonable information on the nature of the charges faced by the three accused persons. The particulars mentioned the type of drug carried by the accused person as cocaine. Before the Criminal Procedure Code Amendment Act 361 of 1965 there were authorities to the effect that if an essential particular was omitted from the particulars of offence on the charge as laid, the conviction had to be\r\nquashed on appeal as the accused would have been convicted on a non-existent charge. In the case of Andoh and Another vrs The Republic (1970) CC 42 the Court of Appeal considered what was meant by a "defect" in the particulars and held that the word should be given its ordinary dictionary meaning, namely "lack of something essential to completeness". In the words of A.N.E. Amissah if the omission does not cause any embarrassment or prejudice to the accused person''s case and the defect is cured by the evidence adduced at the trial the courts are bound to dismiss an appeal on this ground because no substantial miscarriage of justice would have been occasioned thereby". As already stated the particulars of offences stated the drug carried as cocaine but PW1 stated in his evidence that the drug carried was heroin. Even though this should have necessitated an amendment to the particulars it should be noted that the prosecution did not close its case before the appellant changed her plea to that of guilty. It should also be noted that the offence creating sections of the Narcotic Drugs (Control Enforcement and Sanctions) Law P.N.D.C.L 236/1990 does not speak of cocaine or heroin but Drugs. Since heroin and cocaine are all drugs the non amendment does not cause any embarrassment or prejudice the case of the accused and no substantial miscarriage of justice was occasioned thereby. Also in the case of Appiah vrs The Republic (1996-97) SCGLR 610 at 614 it was held that " a defective charge sheet has never been known to subvert the jurisdiction of a trial court. It was further held that Section 3(2) of the Court''s Act 453 of 1993 clearly provides for the dismissal of an appeal based on grounds of defective or error in the charge sheet provided there is available evidence to support the offence alleged in the statement of offence or in any other offence...". Counsel for the appellant also questioned under this ground whether the quantity of the drugs mentioned in both counts were for the appellant alone as she\r\n \r\npleaded guilty to the whole. The charge sheet shows that three persons were charged with possession of the whole 491.89 grams with each person holding a certain quantity of the whole. Even though it would have been better to charge each accused person with the exact quantity of drugs found on him or her the lumping together of the three accused and total quantity of drugs found on him does not make the charges defective. It is not the quantity of drugs carried which constitutes the offence but the carrying of any amount. It should be noted that where a charge states that the accused stole a certain sum and it is proved that he actually stole less, there is no need to amend, nor is there anything improper in the charge. See\r\nObeng alias Donkor and others vrs The State (1966) GLR 259.\r\nWe have examined the arguments canvassed on this ground of appeal and find no merit in them. We dismiss the first ground of appeal.\r\nThe second ground argued in this appeal is that the charge sheet was incurably bad and could not be the basis of the appellant''s conviction and subsequent sentence. Counsel for the appellant submitted that by Section 109(i) of Act 30 for every distinct offence of which any person is accused of there shall be subject to subsection (2) a seperate charge or count. Relying on the case of Donkoh vrs The State (1964) GLR 598 at page 601 Counsel submitted that the appellant was charged with carrying cocaine yet the evidence disclosed that she was carrying heroine hence the charge sheet was incurably bad. Counsel also argued that the nature, quality and quantity of the drug mentioned in the particulars of offence are not known. With respect to the accused being tried jointly Section 109(1) is stated to be subject to subsection (2). Subsection (2) of Section 109 states that "charges or counts for any offences may be joined in\r\n \r\n\r\n \r\nthe same complaint, charge sheet or indictment and tried at the same time if such charges or counts are founded on the same facts, or form or are a part of a series of offences of the same or a similar character". Section 110(1) also provides that "The following persons may be charged and tried together\r\nnamely:\r\na) Person accused of the same offence committed in course of the same transaction"\r\nSince the accused persons were said to have arrived in the country together on the same date and were leaving together on the same date with each carrying the same narcotic drug in almost the same manner we find nothing wrong with their being charged jointly for the same offences. We have already dealt with the issue of cocaine instead of heroin and the issue of quantity and quality of the drug found. Suffice it to repeat that by changing her plea from not guilty to guilty the appellant obviated the prosecution from leading evidence to establish all the ingredients of the offence. This ground of appeal also fails and we dismiss it.\r\nCounsel for the appellant next argued the third ground of appeal that the learned judge erred when he accepted the plea of the appellant in the absence of her counsel after she had refused to plead to the charges. Counsel submitted that Section 199 of the Criminal Procedure Code Act 30 of 1960 imposes a duty on the trial court in the absence of counsel to explain to an accused person who pleads guilty the nature of the charge and the procedure which follows such a plea before accepting such a plea. Relying on Yeboah vrs The State (1964) GLR 715\r\n \r\n\r\n \r\nat page 717 and Ross on Criminal Appeals (19th Edition at page 110) Counsel for the appellant submitted that the pleas of guilty was inconsistent with her earlier plea of not guilty and that the appellant''s mind and intention was not to plead guilty. To these submissions the Principal State Attorney for the Republic replied that on 15th September 2009 the appellant refused to plead because her counsel was absent and the trial judge adjourned the case to 23"'' September 2009 when she pleaded not guilty in the presence of her lawyer. It was after PW1 had testified that upon a sober reflection of the evidence the appellant decided to change her plea to guilty. Counsel for the Republic also pointed out that Section 199 of Act 30 comes under Part IV of the code which deals with trials on indictment and not summary trial under which the appellant was tried. We totally agree with Counsel for the Republic that there is no duty on a trial judge in a summary trial to explain the nature of the charges and procedures to an accused who pleads guilty as Section 199 of the code applies to trials on indictment. The appellant was in court and saw and heard what happened to her do-accused persons when they changed their pleas of not guilty to guilty. When she informed the trial court that she wanted to change her plea the charges were re-read to her and she, an American student aged over 21 years cannot be heard to say she did not understand the charges read nor the consequences of her plea of guilty, the absence of any relative in court notwithstanding. This ground of appeal also fails and it is dismissed.\r\nCounsel for the appellant lastly argued grounds (d) and (e) together. These are that the appellant never intended to plead guilty and did not understand the proceedings in the court below. As these grounds have\r\n \r\n\r\n \r\nalready been dealt with above and dismissed there is no point in re-stating them.\r\nOn the whole we have considered the grounds argued in this appeal and find them unmeritorious. The appeal is thus dismissed and we hereby confirm the decision of the trial court.\r\n••	.,v (JUSTICE OF APPEAL)\r\n \r\n\r\n \r\nR. K. APALOO, J.A\r\n \r\nI agree\r\n \r\n(JUSTICE OF APPEAL)\r\n \r\n\r\n\r\n \r\nADUAMA 05E4 J.A\r\n \r\nI also agree\r\n \r\nmuLJAMA OSEI (JUSTICE OF APPEAL\r\n \r\n,\r\n, -\r\ni 5 Z14 " I\r\n; ti\r\n/ti\r\n5 . 1;1\r\nn71\r\n,.\r\nIt	ti /\r\ni1 t. \r\nNg (7.) r r.,\r\n,I	.	!i.4,\r\n) k\r\n.7\r\n', '../links/cases/Document (220).pdf', 'Yes', 'K.A. ACQUAYE, J.A, ADUAMA OSEI, J.A', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Criminal law and procedure - Narcotic Offence - Appellant charged with possession of narcotic drugs - Narcotic Drugs (Control,Enforcement &amp; Sanctions) Law, ss. 56(a), 1(i) - Trial - Mistake in charge sheet - Non-amendment of mistake - Whether it occasioned substantial miscarriage of justice - Criminal Procedure Code,s.112 (2).<br>Plea - Change in appellant''s plea - Accepting plea in the absence of attorney - Whether Court committed procedural error - Criminal Procedure Code, s.199.</font></b></i><br>', 'R.K. APALOO, J.A', 'Criminal', '', 'H2/8/2011', '', '', 'appeal', '2011-05-19', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(572, 'KOFI ASIEDU  ---  APPELLANT\r\nVRS\r\nTHE REPUBLIC  ---  RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE COURT OF APPEAL\r\nCRIMINAL DIVISION\r\nACCRA, A.D. 2011\r\nCORAM: S.E. KANYOKE, J.A (PRESIDING)\r\nK.N. ADIJAMA OSEI, J.A	CRIMINAL APPEAL N0.1-12/16/2010\r\nDENNIS D. ADJEI, J.A	DATE: 28TH JULY 2011\r\nKOFI ASIEDU	APPELLANT\r\nVRS\r\nTHE REPUBLIC	RESPONDENT\r\nCriminal Law— Robbery— Appellant convicted for robbery— Proof of ingredients of robbery— Whether explanation offered by appellant sufficient to negate robbery charge— Whether failure to prove ingredients of robbery constitute serious miscarriage ofjustice— Criminal Offences Act, ss. 149& 150\r\nJurisdiction— Appellate Court— Power to set aside a higher offence and substitute with a lesser one— Criminal and Other Offences (Procedure) Act, £\r\n154— Courts Act, 1993,s. 11(9)\r\nJUDGMENT DENNIS D. ADJEI (IA)\r\nOn 280 February 2011, this Court granted an extension of time to the Appellant herein to file an appeal against both conviction and sentence imposed on him by the High Court, Koforidua on 1111, March 2011. The Appellant filed a petition of appeal against both conviction and sentence. The Appellant filed five (5) grounds of appeal namely:-\r\n1) The trial Court erred in entering a plea of guilty on both counts against the Appellant.\r\n \r\n2)	The trial Court erred in its assessment of the explanation given\r\nby the Appellant as nothing but a plea in mitigation of\r\nsentence.\r\n3)	The trial Court erred in not entering a plea of not guilty on both counts in the case of the Appellant upon the explanation\r\noffered by him.\r\n4)	The conviction of the Appellant was wrong in law on account of the explanation he gave in relation to the offences charged.\r\n5)	The sentence passed against the Appellant based on the wrong conviction was consequently wrong in law.\r\nThe brief facts of this appeal are that the Appellant and three (3) other persons were charged with the offences of:\r\n1)	Conspiracy to Commit Crime to wit robbery contrary to Section 23 and 149(1) of the Criminal Offences Act 29/60 and\r\n2)	Robbery contrary to Section 149 of the Criminal Offences Act, Act 29/60.\r\nThe Appellant was the 3r1 Accused person in the Court below. The 4th Accused person was also at large. The pleas of the lst, 2nd and 3rd Accused persons were taken and all of them pleaded guilty with explanation. The trial Court came to the conclusion that the explanations offered by the three accused persons amounted to plea of guilty and therefore convicted and sentenced them. The 1st accused person was sentenced to twenty-five (25) years I.H.L. on each count and were to run concurrently.\r\n \r\n2\r\n \r\nThe 1s1 and 2" accused persons did not appeal against the decision of the trial High Court. In the course of this judgment, the legal effect of this appeal on the is" and 2" accused persons would be discussed.\r\nThe facts of the case as given by the prosecution at the trial Court were that the complainant is a businessman living at Koforidua. The 1st accused person was his personal driver. The 2" accused person is a driver and at the time of the incident, he was the driver in charge of a taxi cab which was used by the 2", 31d and the accused persons to rob the complainant. The 3"1 accused person, the Appellant herein is a Carpenter. All the four accused persons live at Okrase, a suburb of Koforidua. On 8111 July 2009„ the 1st accused person who was the personal driver of the complainant and was on business trip conspired with the other accused persons to meet them at Berekusu where he would slow down for robbeiy operations to be carried out against the complainant. On reaching Berekusu, the 1s1 accused slowed down the Hyundai Mighty KIA Truck with Registration No. GT 523 F which the complainant was on board and they were Crossed by a taxi cab, which was being driven by the 2" accused person. They used cutlasses to attack the complainant and made away with GitS6,000.00, a mobile phone worth GH0300.00 and sonic personal effects of the complainant.\r\nA report was Made to the Police and the 1st, 2" and 3fd accused\r\npersons were arrested and an amount of G1-14,700.00 was retrieved\r\nfrom them.	The 411, accused person could not be arrested.\r\n3\r\n \r\nAccording to the prosecution, the 1st, 21 and 316 accused persons admitted the offences of conspiracy to commit robbery and robbery in their caution statement.\r\nWe will discuss grounds 1, 2 and 3 of the appeal together as they raise a common question of law. The effect of [lie three grounds of the appeal is that the explanation offered by the Appellant negates the charge of robbery and the trial Judge should have entered a plea of not guilty and failing to do that has occasioned serious miscarriage of justice to the Appellant. Robbery which is a first degree felony is defined in Section 150 of the Criminal Offences Act, 1960, Act 29 as follows: -\r\n"A person who steals a thing commits robbery.\r\na) If in, and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or\r\nl) If that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of other person to the stealing of the thing."\r\nFrom the above definitions, a charge of robbery could he proved where one uses force or causes harm to any other person in his effort to steal something or the person who is stealing must have used threat or criminal assault or harm to any person with intent to prevent or overcome the resistance of the other person to the stealing. Where a person steals and none of the ingredients of robbery as listed above is proved, the charge of robbery will Ihil but a charge of stealing would be sustained.\r\nrd\r\n \r\nFrom the facts given by the prosecution, the appellant and the other accused persons used cutlass in their operations. The use of cutlasses by the accused persons will constitute a threat and the conduct of the accused persons will come under the definition of robbery - See Section 150(b) of Act 29/60.\r\nThe appellant''s explanation to the offence of conspiracy lo commit robbery and robbery were as follows:\r\n"EXPLANATION OF 3R), ACCUSED PERSON - We did not use any cutlass in the operation. It was the 1st accused who was driving the\r\ncomplainant. He had no harmful implement. We plead for leniency.\r\nThis is our first time of doing such a thing."\r\nThe first accused person also offered his explanation as follows:\r\n"I did not see any cutlass being used in the operation. The total sum has been recovered as our family members have since made put the difference."\r\nThe 2nd accused person explained why he was not guilty as follows:\r\n"We did not carry along any cutlass for the operation as the\r\ncomplainant is an elderly man."\r\nApart from the allegation of use of cutlasses by the accused person, which would have grounded the charge of robbery, the accused persons were not said to have either used force or caused harm nor committed criminal assault or harm to any other person, with intent\r\n\r\n \r\nto prevent or overcome the resistance of the other person to the stealing of the thing. The trial Judge was therefore mandated by law to satisfy himself that the explanation given by the accused persons if proved at the trial would constitute a defence and the charge of robbery will fail. The issue of belief or disbelief of the explanations will not arise because it is not an evidence which the Court may have the discretion to believe or disbelieve. Instead of critically examining the explanations by the accused persons, the trial Judge erroneously concluded that their explanations constitute an admission of their guilt and convicted and sentenced them accordingly. Had the trial High Court Judge properly analysed the explanation by the appellant he would have been confronted with two legal positions being:\r\n(1)	To enter a plea of not guilty for the appellant and proceed to try the case for conspiracy to commit robbery and robbery and\r\n(2)	To convict him for conspiracy to steal and stealing.\r\nThe trial Judge''s neglect to consider the explanation offered by the appellant has occasioned serious miscarriage of justice and the conviction for robbery should be set aside. Grounds (a), (b) and (c) of the appeal succeeds. Grounds (d) and (e) of the appeal also succeeds.\r\nCounsel for the Appellant discussed extensively the cases of Gundaa vs. Republic [1989 -901 GLR 55 - 57 and Ofei vs The State t19651\r\n6\r\n \r\nGLR 680 -687 and concluded that if the explanation was not. consistent with guilt, a plea of not guilty must he entered by the trial Court for normal trial to take place. I do agree with Counsel for the appellant and the ratio in the authorities quoted by him and I would like to add that where the accused person could be convicted on a lesser offence based on his explanation, the Court may either, change his plea from guilty to not guilty and proceed to try him or convict him for the lesser offence. It is a discretion given to the Court and should be exercised judiciously.\r\nWe are further fortified by Section 154 of the Criminal and other ollenees (Procedure) Act, 1960 which clothes the Court with jurisdiction to convict an accused person for a lesser offence although not charged with it where it becomes clear that the facts di not support conviction for the higher offence preferred against him but rather supports the lesser offence. Section 154(2) of Act 30 provides thus:\r\n"Where a person is charged with an offence and facts and proved which reduce it to a lesser offence, that person may he convicted of the lesser offence although not charged with it."\r\nIs it trite learning that the facts in a case include the facts by the prosecution the pica of the accused persons and other explanations that would he offered by them and we are satisfied that the facts have proved the offence of stealing against the appellant. The explanation offered discloses that the appellant was guilty of conspiracy to steal and stealing.\r\n7\r\n \r\nAppeal is by way of rehearing and this Court has the Powers of the trial High Court and we will therefore proceed to rehear the matter. We are fortified by Section 11(9) of the Court Act, 1993 Act 459, which provides thus:\r\n"For the purposes of hearing and determining an appeal within its jurisdiction and the amendment, execution or enforcement of a judgment or an order made on an appeal, and for the purpose of any other authority expressly or by necessary implication given to the Court of Appeal by the constitution,\r\nthis Act or any other law, the Court of Appeal has the powers, authority and jurisdiction vested in the Court from which the\r\nappeal is brought."\r\nBy the powers vested in this Court by Section 11 (9) of the Court Act, 1993, We will set aside the conviction for robbery and substitute stealing. This Court could have ordered for retrial but it is our considered opinion that once the appellant''s explanation constitutes guilty of stealing we will opt for that one and retrial having taken into consideration the number of years spent by him in custody as a prisoner.\r\nThe 1st and 2nd accused persons even though did not appeal would suffer injustice if their erroneous conviction for robbery which has conic to the notice of this Court is not addressed. The explanation offered by the two of them is also the same as that of the appellant herein and that negates the offence of conspiracy to commit robbery and robbery.\r\n8\r\n \r\nSection 31 (1) of the Courts Act 1993, Act 459 permits an Appellate Court to allow air in a criminal matter if it considers that the verdict or conviction or acquittal ought to be set aside inter alia, on the ground that there was a wrong decision of any question of law and has occasioned miscarriage of justice. The variation of the judgment is to the benefit of the two accused persons and even though they were not joined to the appeal audi alteriin partem rule will not be breached.\r\nSection 31 (1) of the Court Act, Act 459 provides thus "subject to Sub Section (2) of this section, an Appellate Court on hearing any appeal before it in a criminal case shall allow the appeal if it considers that the verdict or conviction or acquittal ought to he set aside on the ground that it is unreasonable having regard to the evidence of that the judgment in question, ought to he set aside on the ground of a wrong decision of any question of law or fact or that on any grounds there was a miscarriage of justice and in any other case shall dismiss the appeal."\r\nThe Court erred by convicting the accused persons on the offences of conspiracy to commit robbery and robbery and it is a wrong decision and that should inure to the benefit of all the accused persons including those who appealed against the decision and those who did not appeal. Justice demands that the wrong decision which is being set aside must cover all those who are affected by that wrong decision.\r\n \r\n9\r\n \r\nWe will set aside the conviction for conspiracy to commit robbery and robbery and substitute conspiracy to commit stealing and stealing. The appeal succeeds. in part. The Appellant together with the lst and 2nd accused persons are convicted for conspiracy to steal which is contrary to Sections 23 and 124 of Act 29/60 and stealing contrary to Section 124 of Act 29/60.\r\nThe sentences imposed on the accused persons by the trial High Court are hereby set aside and in its place, we will substitute ten (10) years .	. for each count and are to run cipneurrently.\r\nI\r\nv\r\nII\r\nDENNIS D ADJEI\r\nI la [\r\ncs1+4LHISTICR OF APPFAT\r\natt\r\nS E KANYOKE	I agree	If-A- NV 0 K1,	\r\n[JUSTICE OF APPEAL]\r\n \r\nK N ADUAMA OSEI\r\nCOUNSEL\r\n \r\nI also agree	• UAMA OSEI [JUSTICE OF APPEAL]\r\n \r\nMR. SOMUAH ASAMOAH FOR THE APPELLANT\r\nMRS VALARIE EDUSEI POKU (CSA) FOR TIIE RESPONDENT\r\n', '../links/cases/Document (221).pdf', 'Yes', 'K.N. ADUAMA OSEI (JA), DENNIS D. ADJEI (JA)', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Criminal Law - Robbery - Appellant convicted for robbery - Proof of ingredients of robbery - Whether explanation offered by appellant sufficient to negate robbery - Whether failure to prove ingredients of robbery constitute serious miscarriage of justice - Criminal Offences Act, ss. 149&amp;150<br>Jurisdiction - Appellate Court - Power to set aside a higher offence and substitute with a lesser one - Criminal and Other Offences (Procedure) Act, s.154 - Courts Act, 1993,s. 11(9)</font></b></i><br>', 'S.E. KANYOKE,J.A', 'Criminal', '', 'H2/16/2010', '', '', 'appeal', '2011-07-28', '');

INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(574, 'THE REPUBLIC\r\nVRS\r\nNII ADAMAH THOMPSON & ORS, EX-PARTE NII TETTEH AHINAKWAH II\r\nSUBSTITUTED BY FRANCIS NII AYIKAI BY ORDER OF THE COURT OF APPEAL\r\nDATED 25/3/2009', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA, A.D. 2012\r\nCORAM:	AKIJFFO [MS] JSC [PRESIDING] ANSAH JSC\r\nADINYIRA (MRS) JSC\r\nDOTSE JSC\r\nBONNIE JSC\r\nCIVIL MOTION\r\nNO.1819212011\r\n15TIIFEBRUARY, 2012\r\nTHE REPUBLIC\r\nVRS\r\n1.	Nil ADAMAH THOMPSON\r\n2.	HUMPHREY Nil TEIKO ARYEE\r\n3.	ASAFOATSE CHRISTOPHER NETTEY\r\n4.	Nil TETTEH ANKAMAH II\r\n5.	OFFEL DODOO\r\n6.	Nil ANUM TETTEH\r\n7.	OTSIAME ALIMO\r\n8.	ATAA P. OKOE ARYEE\r\n9.	NAA AYIKAILE NADOBEN I\r\n10.	JOHN ARYEETEY ARYEE\r\n11.	PERCY OKOE ADDAY\r\nEX-PARTE Nil TETTEH AHINAKWAH II SUBSTITUTED BY FRANCIS Nil AYIKAI BY ORDER OF THE COURT OF APPEAL DATED 25/3/2009\r\nCourts - Supreme Court - Leave to amend statement of case - Whether court has power to a//ow party to amend statement of case - Leave to adduce fresh evidence - Applicable Rules— Appellate Court may permit fresh evidence in the interest of justice - Lower Courts —Jurisdiction - Lack ofjurisdiction to adjudicate an issue Aggrieved party raising for the first time issue of lack of jurisdiction on appeal - Whether appellate court should entertain plea not raised in court below.\r\nRULING\r\n \r\nRULING\r\nDOTSE,J.S.C. \r\nIn their application, filed on the 2nd day of September 2011 the applicants herein seek the following reliefs:\r\ni.	Leave to file additional grounds of appeal,\r\nii.	Leave for extension of time to file amended statement of case and\r\niii.	Leave to adduce fresh evidence\r\nBACKGROUND FACTS\r\nThe application herein has its genesis in an action which commenced in the Judicial Committee of the Greater Accra Regional House of Chiefs. In that action judgment was delivered on the 17th day of February 2003, in favour of the respondent herein which inter alia, ordered the Applicants herein to handover stool regalia of the Gbese Stool to the Respondents.\r\nFollowing the failure and or refusal of the applicants herein to comply with the orders of the Judicial Committee of the Greater Accra Regional House of Chiefs to deliver the stool regalia, the respondent herein, took steps to have them committed for contempt of court.\r\nThe High Court, Accra presided over by Dzakpasu J accordingly convicted the Applicants herein of contempt. An appeal lodged by the Applicants against their conviction for contempt to the Court of Appeal was by a unanimous decision of the court dismissed on the 19th November 2009.\r\nAggrieved by the decision of the Court of Appeal, the Applicants on the 1st of December 2009 filed an appeal against the said decision.\r\n2\r\n \r\nThe instant application should therefore be understood as one seeking to add the additional grounds of appeal to those already filed, seek leave for extension of time to amend the statement of case to reflect the additional grounds of appeal and leave to adduce fresh evidence.\r\nWe will now deal separately with each of the reliefs being applied for:\r\n1. LEAVE TO FILE ADDITIONAL GROUNDS OF APPEAL\r\nIn arguing this application, learned Counsel for the Applicants, Nii Akwei Bruce Thompson stated that there is a jurisdictional issue which is germane to the substance of the suit being commenced before the Judicial Committee of the Greater Accra Regional House of Chiefs and not before the Judicial Committee of the Ga Traditional Council.\r\nThe two additional grounds of appeal that Applicants seek leave to add to the original grounds have been stated as follows:\r\n(16)	The whole judgment of the Judicial Committee of the Greater Accra Regional House of Chiefs sought to be enforced by contempt proceedings were a nullity and so absolutely unenforceable,\r\n(17)	The Greater Accra Regional House of Chiefs had no jurisdiction to hear the matter in exercise of its original jurisdiction.\r\nResponding to the arguments for the filing of additional grounds of appeal, learned counsel for the Respondents, Mr. William Adumua-Bossman argued that being a jurisdictional issue, there is no need for it to be raised specifically for it to be considered by the court.\r\n3\r\n \r\nLearned Counsel for the Respondents'', after some brief exchanges with the court agreed that no harm would be caused if the grounds of appeal on jurisdiction are specifically added.\r\nWe are accordingly of the view that since the issue of jurisdiction is basic to the commencement of any suit before any adjudicating court or tribunal, it has to be considered at anytime of the trial or appellate process. This means that, this issue of jurisdiction can be raised by the parties or counsel at anytime of the trial or on appeal even for the first time. The authorities are quite certain on this issue. See case of Republic v Adansi Traditional Council ex-pafle Nana Akyie II & Anr [1974] 2 GLR 126 holden 2 where the C.A held as follows:\r\n"A plea as to the jurisdiction of an inferior court or tribunal could be taken and heard at any time even if the point was not raised in the court below if it appeared to an appellate court that an order against which an appeal had been brought had been made without jurisdiction and it would never be too late to admit and give effect to the plea that the order was a nullity. Chief Kwame Asante v Chief Tawia [1949] W.N. 40, P.0 applied."\r\nSee also Attorney-General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271.\r\nIt is therefore the view of this court that, this issue of jurisdiction, even though could have been raised as a legal point, or raised suo motu by the court, once the Applicants, who are the appellants to this court have raised the issue it ought to be considered and dealt with once and for all.\r\nBesides, it has to be noted that this is the final court of the land and has appellate jurisdiction as well in chieftaincy matters. This court accordingly grants leave to the Applicants to file the two\r\n4\r\n \r\nadditional grounds of appeal stated supra to their original grounds\r\nof appeal.\r\nii. LEAVE TO AMEND STATEMENT OF CASE\r\nBy parity of reasoning, once leave had been granted the Applicants\r\nto add two (2) new additional grounds, it follows that new\r\narguments must be made to incorporate these additional grounds\r\nin the statement of case.\r\nBesides, the new additional grounds raise entirely new issues, i.e.\r\non jurisdiction. It is therefore clear that the applicants will need to\r\namend their statement of case to reflect the new grounds of appeal\r\nfor which leave has been granted them to file. Reference is made to\r\nrule 15 (11) of the Supreme Court Rules 1996 C.I. 16 which states\r\nas follows:\r\n"Despite anything to the contrary contained in these Rules, a party to a civil appeal may at any time before judgment apply to the Court to amend a part of the statement of case or in answer of that party and the Court may, having regard to the interests of justice and to a proper determination of the issue between the parties allow the amendment on the appropriate terms."\r\nIt is therefore clear from the above rule that, this court has the\r\npower and the discretion to allow a party to amend the statement of\r\ncase when the justice of the case demands or requires it.\r\nWe are therefore of the considered view that, whenever an appellate\r\ncourt, grants leave to an appellant or cross-appellant to file\r\nadditional grounds and those grounds demand that fresh\r\narguments be made to support and incorporate the said grounds to\r\nenable the court deal with the appeal holistically, the court should\r\ngrant leave to enable the statement of case if already filed to be\r\namended to reflect the new status of the appeal in order to do\r\n5\r\n \r\njustice in the case as is captured in rule 15 (11) of the Supreme Court Rules (C.I. 16).\r\nWe will accordingly grant this relief as well. Leave is hereby granted the applicants to file an amended statement of case to reflect only the two new grounds of appeal.\r\nM. LEAVE TO ADDUCE FRESH EVIDENCE\r\nIt is provided by rule 76 (1) & (2) of the Supreme Court Rules, 1996, C.I. 16 as follows:-\r\n76 (1) "A party to an appeal before the court shall not be entitled to adduce new evidence in support of his original action unless the court, in the interest of justice, allows or requires new evidence relevant to the issue before the court to be adduced.\r\n(2) No such evidence shall be allowed unless the court is satisfied that with due diligence or enquiry the evidence could not have been and was not available to the party at the hearing of the original action to which it relates.\r\nThe above constitute the rules which regulate the circumstances under which this court may permit the adduction of fresh evidence in a matter before it.\r\nBefore we proceed any further, it is important to put in proper perspective what this new evidence is or ought to be.\r\nOur understanding of new evidence is that, it is such fresh evidence that is an addition to what is already on record. Being an appeal, the evidence on record must have commenced before any of the lower courts in this case, the High Court. This court is therefore bound by the records presented before it from the lower courts inclusive of the statements of case i.e. the arguments of the parties and or their counsel based on the record as they have it certified\r\n6\r\n \r\nbefore the lower courts. The parties or their Counsel therefore must\r\nbase their arguments on this record.\r\nIt has been time tested practice that, in an appeal, the parties and\r\nthe court are bound by the record and no one is permitted to\r\nmanufacture evidence or refer to any evidence that cannot be\r\nsupported by reference to evidence on record.\r\nTaking the provisions of rule 76 (1) and (2) of C.I. 16 as a guide, it\r\nmeans therefore that, this court can only allow a party to adduce\r\nfresh evidence under any of the following circumstances.\r\na. The Court must be satisfied that the said evidence could not\r\nhave been available to the party applying at the first instance\r\nafter:\r\ni.	due diligence or\r\nii.	enquiry was made\r\nb.	It must be in the interest of justice.\r\nc.	It must be relevant to the issue before the court.\r\nIn our mind, even before the court considers whether it is in the\r\ninterest of justice and or relevant for the new evidence to be\r\nadduced, the more fundamental and critical issue to consider is\r\nwhether the evidence could not have been available to the party\r\napplying after due diligence or enquiry of same had been made.\r\nThis principle was well addressed by Scrutton L.J. in Nash v Rochford Rural District Council [1917] I KB 384 at 393 where\r\nhe stated thus:\r\n"The principle which I have to apply is, I think, the principle stated by Lord Chelmsford in the case of Shedden v Patrick (1869) LR I HL SC 470 at 545 in these words: "It is an\r\n7\r\n \r\ninvariable rule in all the courts, and one founded upon the clearest principles of reason and justice, that if evidence which either was in the possession of parties at the time of a trial, or by proper diligence might have been obtained, is either not produced, or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by the granting (of) a new trial. That is the principle which was acted upon by this court in the first application in the case of HMS Hawke [28 Times LR 319] I take the reason of it to be that in the Interests of the state, litigation should come to an end at some time or other and if you are to allow parties who have been beaten In a case to come to court and say "Now let us have another try; we have found some more evidence, you will never finish litigation, and you will give great scope to the concoction of evidence".\r\nWe also take note of the reference by learned Counsel for the Respondent, Mr. William Adumua-Bossman to the well established rules in circumstances such as the instant one laid down by Denning LJ in the case of Nash v Marshall [1954] I WRL 1489 at 1491 CA or 1954 3 A.E.R 745 at 748 CA as follows:\r\n"First it must be shown that the evidence could not have been obtained with reasonable diligence for us at the trial."\r\nSecondly, the evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive.\r\nThirdly, the evidence must be such as is presumably to be believed or in other words it must be apparently credible, though it need not be incontrovertible."\r\nThe Supreme Court was called upon to make such a determination in the case of Poku v Poku [2007-2008] SCGLR 996 when it\r\n8\r\n \r\nconsidered rule 26 (1) 86 (2) of the Court of Appeal Rules, 1997 (C.I.\r\n19) which are in pan i materia to rule 76 of (C. I. 16) already referred\r\nto supra.\r\nThe Supreme Court held on the core issues raised in the appeal by\r\na majority decision of 4-1 as follows:\r\n"On construction, the adduction of fresh or new evidence in the interest of justice" as provided in rule 26 (1) of the Court of Appeal Rules, 1997 (C.I. 19) was clearly delimited by the factors delineated in rule 26 (2). Consequently, in an application to lead fresh or new evidence before the Court of Appeal, the first criterion, which an applicant ought to establish, was whether the evidence sought to be adduced, was neither in the possession of the applicant nor obtainable by the exercise of reasonable diligence or human ingenuity before the impugned decision was given by the lower court. It was only when that first hurdle had been surmounted, that the court should proceed to determine the other pertinent question of whether or not the intended evidence would have a positive effect on the outcome. If the first criterion was not met, no useful purpose would be served by examining the other factors".\r\nWhat is deducible from this Poku v Poku case referred to supra, is\r\nthat, the rule on adduction of new evidence exists to assist an\r\napplicant who has exhibited signs that he has made really\r\nstrenuous and genuine efforts at getting this evidence but has met\r\nobstacles or that the evidence was not available to the party at the\r\nmaterial time.\r\nThe rule on adduction of new evidence is therefore not one which is\r\nof general application to a party who desires same. The court is\r\nmandated under the rules, to be satisfied that the criteria set out\r\nabove are met before it can be considered.\r\n \r\n9\r\n \r\nNow, what is the evidence that the Applicants want to adduce in this case as new evidence?\r\nThe evidence which the Applicants are seeking to introduce as new evidence is made up of the following.\r\n1. EXHIBIT B\r\nHearts News, a sports paper of one of the leading football teams in Ghana and based in Accra of Tuesday 1st May, 2007 with the picture of one Nii Ayi Bonte II, under the caption "Hail the new Ubese Mantse, Nil Ayi Bonte II - Tommy, New Gbese Mantse"\r\nH. EXHIBIT C\r\nThe second is the Daily Graphic of Friday 8th June 2007 - which also contains a picture of one Nii Tetteh Ahinakwa II, described as Regent of Obese, beating divine drums to signify the lifting of the ban on noise making.\r\niii.	Exhibits D and E, are photographs of events that took place and reputed to be those of Nii Ayi Bonte II and his elders beating the drums to signify the lifting of the ban on noise making on 12/6/2008 at the forecourt of the Obese Palace, and of some youth reputed to be Obese Youth, conveying drums to an event.\r\niv.	By far, exhibit F is the most authentic record of the fact that on the 27th day of April 2007, those reputed to be kingmakers of Obese, installed a new Chief of Obese and accordingly informed the Minister of Chieftaincy Affairs and other stakeholders.\r\nThe explanation given by the Applicants for their inability to include all these facts or evidence in their original evidence or depositions before the High Court was that, they filed their affidavit in opposition as well as statement of case on 22nd January 2007 and\r\nin]\r\n \r\n14th February 2007 long before these publications and or events took place.\r\nOne hurdle that the Applicants must clear in their bid to adduce those fresh pieces of evidence is that, those pieces of evidence could not have been obtained with reasonable diligence at the trial.\r\nIf indeed, it is the contention of the Applicants that the Obese stool paraphernalia which they have been ordered to handover is already in the possession of the Respondents and that they made use of it in the installation of Nii Ayi Bonte II and on other occasions as depicted in Exhibits B, C, D and E, then it behoves on them to satisfy this court that despite the publication in these widely circulating newspapers they were unable after diligent and reasonable effort, to know about the said publications and state of facts.\r\nBesides, we have seen a copy of proceedings dated 4th July, 2007 held before the High Court, Accra, presided over by Dzakpasu J, wherein an application for bail for the Applicants herein, therein Respondents was moved by their Counsel, Nii Akwei Bruce Thompson after their conviction for contempt.\r\nThis proceeding is attached and marked as Exhibit A, to an affidavit sworn to by Nii Akwei Bruce Thompson on 4/11/2011.\r\nIn those proceedings, coming after the publications referred to as the source material for the new evidence had been published, the Applicants herein never informed the High Court which convicted them for refusing to release the stool paraphernalia that the stool regalia was rather with the Respondents and that they had used them on this and that occasion. Indeed that was a convenient occasion for the Applicants to have raised these issues of the new evidence if they had been diligent. Again in exhibit FNA7, the Applicants herein, therein Respondents at the Court of Appeal, on the 22nd day of December 2009, through their Counsel gave an\r\n11\r\n \r\n\r\nundertaking to the Court to comply with the orders of the Judicial Committee of the Greater Accra Regional Tribunal of 171h February 2003. This was the order directing the Applicants to surrender or release the stool of Obese and other paraphernalia to the Respondent and his elders.\r\nThe publications contained in exhibits B & C and the pictures in exhibit D and E really does not absolve the Applicants from compliance with the orders complained of In any case, it is too late in the day, for the Applicants to contend that the stool regalia they have been ordered to release to the Respondent is rather with them and which they had used on the occasions referred to.\r\nWe have also taken into consideration the effect the proposed new evidence will have on the case. To what influence then, would such an evidence as has been depicted in exhibits B, C, D, E and F have on this case where the Applicants have been convicted for contempt for refusing to comply with the orders of the Judicial Committee of the Greater Accra Regional House of Chiefs made on 17th February 2003? All the events took place after their conviction and could not have influenced the Committee in their decision.\r\nThe fact that a new Obese Mantse has been installed by the Respondent and the fact of performance of rituals using cloth and drums which perhaps form part of the stool regalia of the Obese Stool cannot on their own absolve the Respondents from the allegations which led to their conviction. Those events, if at all they are true, (which have been denied) occurred long after the orders being complained of had been made.\r\nIn essence, we are of the view that, the new evidence being sought to be adducted is not in the interest of justice and will also becloud the Issues before the court. That is to say, the new evidence apart from not advancing the course of justice in this case is also not relevant to the determination of the issues before this court.\r\n12\r\n \r\nTo this end, this court is of the considered view that the Applicants have not satisfied the established criteria based upon the rules of court and decided case law to enable them be granted leave to adduce fresh evidence in this case.\r\nCONCLUSION\r\nWhilst this court grants leave to the Applicants to add two additional grounds of appeal in terms set out supra and also grants them leave to file an amended statement of case to embody or incorporate the said two new grounds of appeal only, the application to adduce new evidence is refused as not having met the established standard required in law.\r\n(56Th J. V. M. DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) S. A. B. AKUFFO (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) J. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) S. 0. A. ADINYIRA (MRS).\r\nJUSTICE OF THE SUPREME COURT\r\n13\r\n \r\n(SCD) P. BAFF0E-BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL: \r\nNil AQUAYE BRUCE-THOMPSON FOR THE APPLICANTS. ADUMUA BOSSMAN FOR THE RESPONDENT\r\nI	,,i, It...Fr ., '',:•\\4.: ''	4. -‘,	.,..•....\r\n.,	\\\r\n.	,\r\n, 0 ,,!,...,	_\r\n\\	\\	t..0.,,,,\r\n \r\n14\r\n', '../links/cases/Document (223).pdf', 'Yes', 'ANSAH,J.S.C., ADINYIRA (MRS.),J.S.C., DOTSE,J.S.C., BONNIE J.S.C', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Courts - Supreme Court - Leave to amend statement of case - Whether court has power to allow party to amend statement of case - Leave to adduce fresh evidence - Applicable Rules - Appellate Court may permit fresh eviden in the interest of justice - Lower Courts - Jurisdiction - Lack of jurisdiction to adjudicate an issue - Aggrieved party raising for the first time issue of lack of jurisdiction on appeal - Whether appellate court should entertain plea not raised in court below.</font></b></i><br>', 'AKUFFO (MS), J.S.C', 'Civil', '', 'J8/92/2011', '', '', 'supreme', '2012-02-15', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(575, 'THE REPUBLIC\r\nVRS\r\nNATIONAL HOUSE OF CHIEFS  ...  RESPONDENT/RESPONDENT/RESPONDENT\r\nEX-PARTE: ODENEHO AKROFA KRUKOKO II  ...  APPLICANT/RESPONDENT/APPELLANT\r\nOSAGYEFO KWAMENA ENIMIL VI  ...  INTERESTED PARTY/APPELLANT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA -GHANA\r\n\r\n	\r\n\r\nCIVI APPEAL\r\n14/18/2009\r\n2N1) DECEMBER, 2009\r\n\r\n	\r\n\r\nOSAGYEFO KWAMENA ENIMIL VI ... INTERESTED PARTY/APPELLANT/RESPONDENT\r\nChieftaincy—Chief--National Register of Chiefs—Applicant applied for mandamus to Re-instate name - State Proceedings—Mandamus—Application for—Time frame for application—High Court (Civil Procedure) rules, 1954 (iN 140A) - Whether order 59 Rule 13 does not apply to mandamus—Time should run after demand to perform duty has been met with refusal —Stare Decisis - 1992 Constitution, art 136(5)—Decision of Higher courts binding on lower courts for certainty of law— Interlocutory judgments—Final and other interlocutory judgments - Distinction\r\nIUDGMENT DR. DATE-BAH ISC: \r\nWhat is before this Court is an appeal from proceedings that were initiated by an ex parte motion for leave to apply for an order of mandamus which was heard at the High Court, Kumasi. The motion was flied on 611, September 2004 and it\r\n \r\nsought liberty to apply for an order of mandamus requiring the respondent, namely the National House of Chiefs:\r\n"(1) to delete from the National Register of Chiefs the name and particulars of Osagyefo Kwamena Enimil VI as Omanhene of the Wassa Fiase Traditional Area, And\r\n(2) to re-instate in the said Register the name and particulars of the Applicant as the Paramount Chief of the Wassa Fiase Traditional Area,\r\nAnd for such further or other order as to this Hon. Court may appear just or proper."\r\nThe applicant claims to be the Omanhene of the Wassa Fiase Traditional Area in the Western Region. He deposed to an affidavit in support of his motion in which he affirmed that he was enstooled the Omanhene of that traditional area in June 1994 in accordance with custom and usage. His name and particulars were then duly recorded in the National Register of Chiefs by the National House of Chiefs. In November 1994, two cousins of the applicant brought a petition in the Western Region House of Chiefs challenging his nomination as Omanhene. The applicant''s affidavit evidence declared that this petition together with an interim injunction restraining him from holding himself out as Omanhene and President of the Wassa Fiase Traditional Council were never served on him. Nevertheless, in May 1995, the applicant together with his mother, the Queenmother, and all his kingmakers were convicted of contempt by the High Court, Sekondi, for infringing the said interim injunction. This conviction was subsequently quashed by the Supreme Court in December 1995. In November 1998, the applicant was again convicted of contempt of the Regional House of Chiefs by the High Court, Sekondi, in respect of an incident involving his receiving an oath of allegiance from a Divisional Chief. This conviction was also set aside by the Court of Appeal in April 1999. Finally, the applicant was convicted by the High Court, Sekondi, in April 2002 for continuing to hold himself out as Omanhene in spite of the interim injunction of 1994. The applicant was sentenced to 14 days imprisonment, without the option of a fine, and he served 14 days in the Central Prison, Sekondi. Whilst the applicant was in prison, he was informed that the Reverend William Chika Morgan had been nominated, elected and installed as the new Omanhene of Wassa Fiase by persons who, according to the applicant, had no right to do so. This new Omanhene is Osagyefo Kwamena Enimil VI, the interested party in this suit.\r\nOn his release from prison, the applicant learnt further that the name of the new Omanhene had been recorded in the National Register of Chiefs and the applicant''s name deleted from it, without the necessary consultation with the\r\n \r\nResearch Committee of the Western Region House of Chiefs and the Research Committee of the National House of Chiefs. In July 2003, the applicant''s conviction for contempt was also set aside by the Court of Appeal.\r\nIn November 2003, the interested party brought suit in the High Court, Sekondi, against the applicant and the Interim Registrar of the Wassa Fiase Traditional Council for an interim injunction and prohibition. These remedies were sought by the interested party to restrain the applicant from holding himself out as the Omanhene of Wassa Fiase, pending the determination of a declaratory suit that he had brought against the applicant in the High Court, Sekondi. The High Court granted him the reliefs but these were quashed by the Supreme Court in January 2004. Subsequently, the interested party withdrew his declaratory action from the High Court. Meanwhile in May 2002, the petitioners before the Western Region House of Chiefs discontinued their chieftaincy case against the applicant.\r\nIn the light of these developments, the applicant has been engaged, from about October 2002, in a process to persuade the National House of Chiefs to delete the name and particulars of the interested party from the National Register of Chiefs and to reinstate his name and particulars on that Register as the Omanhene of the Wassa Fiase Traditional Area. The applicant''s leading counsel wrote a letter dated 6th February 2004 to the Registrar of the National House of Chiefs, setting out a sequence of requests by various lawyers on behalf of the applicant that his name be restored to the Register. The letter of 6th February was expressed to be a final request. If the applicant''s name was not restored to the Register within 14 days, the applicant''s counsel indicated that legal action would be launched against the respondent.\r\nOn 6th September 2004, Ansu-Gyeabour J, sitting at the Nigh Court, Kumasi, granted the applicant leave to file an application on notice for mandamus. That application on notice was duly filed and, on 21st September 2004, the applicant was granted an order for substituted service of it on the interested party. The answer of the respondent and the interested party to that step was to file a motion on notice to dismiss the applicant''s suit as incompetent and misconceived. The respondent and interested party argued that on 28th November 2003 the applicant had applied to Abraham J. at the High Court, Kumasi, for extension of time to file mandamus. This application had been dismissed in a ruling of 15th December 2003 by Abraham 3. Secondly, the events in respect of which the applicant was seeking mandamus had occurred two years before the application for leave to apply for mandamus was filed. They contended that since the application for leave, which initiated the present proceedings, had been filed without first praying for an extension of time within which to file it, the application was incompetent and the whole action was void.\r\n \r\nHis Lordship Ansu-Gyeabour J. made two major rulings in this case. The first was on 20th May 2005 when he overruled the objections of the interested party and the respondent based on their argument that the mandamus application was in substance a cause or matter affecting chieftaincy and secondly that the case was estopped per rem judicatam on account of the earlier ruling by Abraham\r\non a motion for enlarging time within which to seek leave to apply for mandamus. This first tranche of litigation travelled through the Court of Appeal to the Supreme Court, which held that the application was not a cause or matter affecting chieftaincy, reversing the Court of Appeal''s decision to the contrary. The Court of Appeal had also held earlier that the suit was not estopped per rem judicatam. The Supreme Court confirmed this and remitted the case to the High Court to consider the application for mandamus on its merits.\r\nIt was when the High Court heard the remitted application for mandamus that the second major ruling by Ansu-Gyeabour J. was made on 18th February 2008. He again dismissed an application from the respondent that the applicant''s initial motion for leave to apply for mandamus was incompetent. The reason adduced this time by the respondent for its challenge was that the leave upheld in the first ruling of Ansu-Gyeabour J. did not cure the mischief in the application, namely that the applicant had not sought nor had he been granted an extension of time within which to apply for leave under the old 1954 civil procedure rules. The respondent appealed to the Court of Appeal, which upheld his appeal. It is from this second judgment of the Court of Appeal in this case that the applicant has appealed to this Court. The applicant''s grounds of appeal are as follows:\r\nI.	"The Court of Appeal erred by failing to make the primary findings that the remedy of mandamus is based on demand and refusal, and that the conventional 6 months time limit for commencing mandamus proceedings is reckoned from the date of refusal but not from the date of demand.\r\nII.	The Court of Appeal further erred by failing to find that since the Appellant''s earlier purported mandamus application before Mr. Justice Abrahams was not based on the Appellant''s failure to apply within 6 months of refusal by the National House of Chiefs of the demand for his name to be restored to the National Register of Chiefs, no issue estoppel arose from the said Justice''s Ruling of dismissing the Appellant''s said application for mandamus (not based on demand and refusal) so as to operate in bar of the instant application for mandamus based, as it was, on demand and refusal.\r\nIII.	The Appeal Court again erred by failing to appreciate that Order 59 r.3 of the former High Court Civil Procedure Rules (LN 140A), properly construed, applies only to certiorari and not to a mandamus application.\r\n \r\nIV.	The Court of Appeal misdirected itself by failing to appreciate that its earlier decision in Rep. v National House of Chiefs & Ors: Ex Parte Faibil III & Ors [1984-861 2 GLR 731, CA, was given per incuriam of weighty decided authorities holding that mandamus is based on demand and refusal.\r\nV.	The Court of Appeal misdirected itself by refusing to accept that in exercising its discretion to elect between its old decision on mandamus based on demand alone on the one hand and on the other hand its conflicting recent decision in mandamus based on demand and refusal, it ought to have properly chosen the modern judicial approach recognizing that mandamus is based on demand and refusal.\r\nVI.	The judgment was against the weight of the affidavit evidence."\r\nOn these grounds of appeal, a few general principles of law arise for consideration and elucidation before they are applied to the determination of this appeal. These include the scope of the doctrine of estoppel per rem lud/catam and whether it applies to interlocutory rulings and judgments. Also needing to be clarified is the scope of the doctrine of judicial precedent in Ghana and the extent to which the Court of Appeal is bound by its own previous decisions. Thirdly, there is need to examine the preconditions for the invocation of the remedy of mandamus.\r\nThe plea of resjudicata is a well-established part of our law and it is usually expressed to be based on a final judgment. Thus Acquah JSC, as he then was, delivering the judgment of the Supreme Court, said in In re Sekyedumase Stool: Nyame vKese alias Konto[1998-99] SCGLR 476 at p.478:\r\n"My lords, the plea of resjudicata is never a technical plea. It is part of our received law by which a final judgment rendered by a judicial tribunal of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action."\r\nHe goes on next to express a view on whether interlocutory judgments can found resjudicata in the following terms (also on p. 478):\r\n"As to how far interlocutory judgments can give rise to a successful plea of resfudicata, one has to distinguish between judgments by defaults (of appearance or defence) and summary judgment under order 14 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), (assuming this is regarded as interlocutory) which, if successful, would require a determination of the merits of the case. In Conca Engineering Ltd. v\r\n \r\nMoses [1984-86] 2 GLR 319, our Court of Appeal held, relying on New Brunswich Railway Co. v British & French Trust Co. Ltd. [1939] AC 1,HL that a default judgment is binding only as to defences which it has necessarily and precisely decided: see also Laryea v Oforiwah [1984-86] 2GLR 410, CA."\r\nThis statement of the law would at first sight appear to be in conflict with the following statement made in Republic v High Court, Accra (Commercial Division); Ex parte Hesse [2007-2008] SCGLR 1230 at p. 1247, where Wood 0, delivering the judgment of the Supreme Court, said:\r\n"And this court''s decision in Dahabieh v SA Turqui & Bros [2001-2002] SCGLR 498 at p. 507, undoubtedly earlier in time, reinforces these legal principles. It was stated (at page 507 of the Report) that:\r\n"it is well-settled under the rule of estoppel that if a court of competent jurisdiction has tried and disposed of a case, the parties themselves and their privies cannot, thereafter, bring an action on the same claim or issue. The rule covers matters actually dealt with in the previous litigation as well as those matters which properly belonged to that litigation and could have been brought up for determination but were not raised."\r\nThese legal principles are applicable not only to substantive actions, but interlocutory matters as well."\r\nThe wide statement of law embodied in the last sentence of this passage, however, needs to be narrowed down in the light of the actual facts of the case in relation to which it was formulated. The Ex parte Hesse case concerned litigation arising from a default judgment. The plaintiff in the case had obtained a judgment in default of defence in the High Court against the first defendant company for the reliefs claimed. The first defendant then applied to the High Court to set the default judgment aside. The High Court, in April 2007, dismissed the application. To simplify a more complicated story, my summary of the facts would indicate that the first defendant filed another motion to set aside the default judgment in February 2008 and for leave to file a defence. This was granted by the High Court in April 2008. It was on these facts that the Supreme Court had to determine whether the second application for the default judgment to be set aside was estopped per rem judicatam. Although the applicant argued that its reason for seeking the setting aside was different for the two applications, the Court was of the view that this was no reason to avoid the effect of estoppel. Wood 0 explained that (at p. 1245):\r\n \r\n"This argument suggests that parties are entitled to break up their defences into parts or segments only to present them as and when they wish. Our jurisdiction must frown on such practices. Parties must be held accountable to presenting all of their known and conceivable claims or defences at a go, not piecemeal; for an effectual resolution of all matters in controversy between them, for there must be an end to litigation. There is an urgent need to discourage piecemeal litigation; it ought not to be granted a foothold in our judicial arena, as it offends all the known principles of law and best practices."\r\nWhilst the learned Chief Justice is right to emphasise this policy objective, in relation to default judgments, the distinction that Acquah JSC makes in In re Sekyedumase Stool: Nyame v Kese alias Konto (supra) between default judgments and other interlocutory judgments is an important one and legally significant. Indeed, some default judgments are final judgments. The recent decision of this Court in Mensah & Anor v Intercontinental Bank (Cl,) Ltd, unreported judgment of the Supreme Court delivered on 26th November 2009, suit no. CA 34/13/2009, illustrates a final default judgment which was held to create an estoppel per rem judicatam. Her Ladyship Sophia Adinyira JSC, delivering the judgment of the Court, observed as follows:\r\n"It is settled law that a party is not estopped by default judgment except as to the matter directly decided. The rule therefore applies even to interlocutory matters. See dictum of the learned Chief Justice Georgina Wood in the case of Republic v. High Court, Accra (Commercial Division); Ex pafle Hesse (In vestcom Consortium Holdings SA & Scancom Limited, Interested parties) [2007-2008] SCG''LR 1230. We are however of the view that for estoppel to apply in such interlocutory matters, the issue or question involved ought to have been conclusively determined in one way or the other between the parties in the first action. The above principles have been followed by this court in cases such as Oforiwah v. Laryea [1984-86] 2GLR 410, In re Sekyeredumase Stool; Nyamev. Kesse alias Konto [1998-99] SCGLR 476, Dahabieh v. S.A. Turqui & Bros [2001-2002]SCGLR 498, In re Kwabeng Stool; Karikari v. Ababio II [2001-2002] SCGLR 15."\r\nIt is doubtful whether other interlocutory judgments create estoppel per rem judicatam. Indeed, Phipson on Evidence (15th Edition, Sweet & Maxwell, 2000) states (at p. 990) that:\r\n"The rule that a judgment is open to challenge unless final is of importance principally in other proceedings on different substantive questions between the same parties. It also has the important practical\r\n \r\neffect that the failure of an interlocutory application is no bar to its renewal."\r\nBy way of illustration, Phipson cites Buttes Gas & Oil Co. v Hammer [1982] AC 888, HL, where the House of Lords in 1975 refused leave to appeal against a decision of the Court of Appeal, but in 1980 granted leave to appeal out of time from the same decision. Thus the assertion in the Ex parte Hesse case that the legal principles on estoppel per rem judicatam are applicable not only to substantive actions, but also to interlocutory matters was probably phrased too broadly and is not part of the ratio decidendi of the case. A distinction needs to be drawn between interlocutory judgments that are final and other interlocutory judgments. Interlocutory decisions which determine an issue or question in the course of proceedings which are ongoing can be final and conclusive for res judicata purposes. It depends upon the particular facts of the case. A criterion for determining finality has been articulated by Lord Diplock. In D.S. V Silo-und Verwa/tungsgessellschaft mbh v Sennar (Owners), The Sennar (No. 2) [1985] 1 WLR 490, Lord Diplock there said that a decision is final if it "is one that cannot be varied, reopened or set aside by the court that delivered it or any other court of co-ordinate jurisdiction although it may be subject to appeal to a court of higher jurisdiction."\r\nIn the case of Pocklington Foods Inc. v. Alberta (Provincial Treasurer), (1995) 123 D.L.R. (4th) 141, the Alberta Court of Appeal determined that res judicata and issue estoppel did not apply to procedural interlocutory motions. I agree with this view of the law and I am not aware of any Ghanaian precedent to the contrary which is binding on this Court. I consider therefore that this Court should follow the persuasive authority of that decision. This view is also in accord with the opinion of the leading textwriter on the Ghanaian law of evidence, the late Justice Ofori Boateng, who in his The Ghana Law of Evidence (at p.18) spells out certain preconditions which have to be established first before estoppel per rem judicatam can apply. Among these he spells out the following:\r\n"(i) that the judgment was final, in that it determined the disputed rights of the parties in the case, and was not just an interlocutory judgment, for example, a preliminary matter such as interim injunction, or committal order in a criminal trial, or a coroner''s finding relating to cause of death.\r\n(iv) that the judgment was on the merits of the case. A judgment will not be on the merits of the case if, for example, the case was dismissed for want of prosecution, or in default of appearance or any procedural step. Nolle prosequi granted will not constitute a decision on merits. In a civil action a case discontinued before\r\n \r\n•\r\njudgment will also not be a judgment on the merits of the case. But a party to a suit who suffers an adverse judgment through default will be estopped from raising a defence in a subsequent judgment;..."\r\nHowever, even for those interlocutory decisions that are not final, the fact that res judicata does not apply to them does not imply that a party can endlessly apply for the same reliefs from the courts in those circumstances. The courts'' power to restrain abuse of process can be used to halt unmeritorious repetitive interlocutory applications.\r\nThe next legal issue that needs to be examined is the effect of a binding decision of the Court of Appeal on subsequent cases before the Court of Appeal itself and the High Court. This issue is poignantly raised and resolved by the judgment of the Court of Appeal (per Apaloo JA) in this case, as follows (at p. 156 of the Record):\r\n"It is of great concern also that when Ansu Gyeabour J. departed from the decision in Ex Parte Faibils case he chose to pose for consideration of his court three irrelevant questions concerning the interpretation of Order 59 Rule 3 which in our view, would be unnecessary if he had come to the conclusion that the Court of Appeal was superior to his Court and therefore that Court''s decision was binding on him. He rather chose to dissect the decision as if he was exercising concurrent jurisdiction with the Court of Appeal. The beauty in stare decisis is that we respect the views of our Senior Judges as well as ensuring that decisions handed down to us are followed for certainty in the law."\r\nThe view expressed in this passage represents orthodoxy and is reflected in Article 136(5) of the 1992 Constitution which provides that:\r\n"Subject to clause (3) of article 129 of this Constitution, the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decisions of the Court of Appeal on questions of law."\r\nThe clause 3 of Article 129 referred to in this provision deals with the Supreme Court''s right, while treating the Court''s own previous decisions as normally binding, to depart from its own previous decisions when it appears to it right to do so. Does the explicit recognition of an exception for the Supreme Court, which is allowed a more liberal doctrine of judicial precedent, imply that the Court of Appeal, and the High Courts when following that court, are bound by a\r\n \r\nstricter doctrine of judicial precedent? This would appear to be a logical and rational inference.\r\nThe applicant/appellant has sought to soften the rigidity of the stark strict doctrine of stare dec/s/s provided for in Article 136(5) by pointing to the effect of case law as follows:\r\n"The	Respondent/Appellant''s	complains	(sic)	of	the\r\nApplicant/Respondent''s breach or violation of the principle of stare decisis\r\nby reference to section 10(5) of the Courts Act, 1993. But it is immediately submitted that the Respondent/Appellant could not be more wrong. The application of the classic case of Young v Bristol Aeroplane Co. Ltd. [1944] KB 718, CA or [1944] 2 All ER 293, to decisions of the Court of Appeal in England has been accepted with approval and applied in Ghana: Kobina Osmanu v Kofi Amadu & 2 Ors. (1949) 12 WACA 437; Tanor v Dapomah [1960] GLR 241 (High Court); Reindorf & Ankrah v Amadu, Braimah & Nikoi Olai [[1962] 1 GLR 508, SC; Loga v Davordzi [[1966] GLR 530, SC; Asare & Ors v The Republic [1968] GLR 37 at 48¬49, CA, (Full Bench). So also the Supreme Court in Sarkodee I v Boatenci II [1982-83] GLR 715. The Bristol Aeroplane case (supra) decided (inter alia) that (in accordance with the principle of stare decisis):\r\nI.	The Court of Appeal is on principle bound to follow its own previous decisions.\r\nII.	Exceptionally, however, it is not bound to follow its previous decisions which were given per incuriam or in oversight of some relevant statutory provision or decided authority.\r\nIII.	In the event that there are two conflicting decisions of its own, the Court is entitled to choose which of the decisions it will follow: see [1944] KB 718 at 726 per Lord Greene, MR."\r\nWith respect, the reference to Sarkodee I v Boateng II (supra) is a little disingenuous, since the judgment in it which refers to the Bristol Aeroplane case is the dissenting judgment of Taylor ]SC, which is not necessarily a precedent to be followed. This is what the learned judge had to say (at pp. 763-764):\r\n"Azu Crabbe C.J. delivering the majority judgment in Sarkodee I v. Boateng II conceded at p. 348 that if it is shown that that his statement of the customary law is "contrary to a decision of the Court of Appeal or the highest court of the land for the time being" (the emphasis is mine) then it ought not to be considered a correct statement. Here is the decision of the highest court in the land delivered by the full bench on 7 September 1892, by Hutchison C.J. then the Chief Justice in Ghambrah v.\r\n \r\nKwamina Ewea (1892) Sar. F.L.R. 64 and Hayes Redwar Ag. J. so well known to the students of our legal system.\r\nAnd the decision contradicts Azu Crabbe C.J.''s majority decision and the majority decision in this case. My Lord the Chief Justice who has given the majority view in his judgment framed the Azu Crabbe C.J.''s proviso differently. He would only reject the statement of the customary law by the National House of Chiefs if "it is in conflict with a binding judicial decision." Well, here is a binding judicial decision, and if it is not binding the reason why it is not binding should be [p.764] shown. I think with respect, the decision of my Lord the Chief Justice acquiesced in by my brother Adade J.S.C. was given per incuriam for failure to consider the effect of Order No. 4 of 1904 on the Akwapim destoolment case and the 1892 Ghambrah case and this is so on the authority of Young v. Bristol Aeroplane Co., Ltd. [1944] 1 K.B. 718, C.A. With respect, I am not and would not consider myself as bound by the majority decision in this case: see article 116 (3) of the Constitution, 1979."\r\nAlthough the judgment of Taylor JSC was a dissenting one and therefore not necessarily an authoritative source of law, his reliance on the Bristol Aeroplane case and his view that the judgment of the Full Bench of September 1892 was binding on the Supreme Court of 1983 merits discussion. To rephrase the issue, the question for consideration is this: is the Court of Appeal under the 1992 Constitution bound by its previous decisions without exception or are the exceptions formulated by the Bristol Aeroplane case applicable to its decisions? Secondly, is the Court bound by its decisions given since the coming into force of the Constitution in January 1993 only or is it bound by all appellate courts that have exercised jurisdiction in relation to the territory of Ghana? When I refer to "bound", I mean a binding precedent, as opposed to a persuasive precedent. It is reasonable to contend that the only binding precedents are those handed down subsequent to 1993 and that the previous decisions are merely persuasive, although they carry a high degree of persuasiveness. Such a view of the operation of the doctrine of precedent in our jurisdiction would make for greater flexibility in adapting the law to social change and make the need to resort to the principles of the Bristol Aeroplane case less frequent, assuming that they have any applicability to the existing courts of Ghana.\r\nAddressing the second issue first, I think that the doctrine of precedent established by article 136(5) applies only to the Court of Appeal and the lower courts established by the 1992 Constitution. I consider that the pre-1993 cases are persuasively binding, but they do not fall into the strict doctrine of precedent underlying article 136(5).\r\n \r\nBut what of the cases decided by the Court of Appeal since the coming into force of the 1992 Constitution? Is the Court of Appeal absolutely bound by them or are the exceptions identified in the Bristol Aeroplane case applicable to them and, if so, on what basis?\r\nIf all the pre-1993 precedents are of merely persuasive authority, then a strict interpretation of article 136(5) as excluding the Bristol Aeroplane exceptions would be reasonable. (However, the exception relating to the right to choose between conflicting previous decisions is reasonable and adoption of a similar rule is probably almost inevitable.) Such an interpretation would vest the task of departing from previous binding decisions exclusively in the Supreme Court, in accordance with article 129(3). It would buttress certainty and predictability in the case law, alongside the flexibility coming from the clarification that pre-1993 cases are only of persuasive authority. It would also be in accord with some earlier judicial expressions of opinion in favour of deference for binding precedent. For instance, Francois 3 (as he then was) said in Sogbaka v Tamakloe [1973] 1 GLR 25 at p. 27\r\n"It seems therefore to some extent material to ascertain whether the suit is to be determined under customary law or the common law. Following Attiase v. Abobbtey (supra), I am of the view that a party need not elect which law he is proceeding with. If it appears on the consideration of the whole facts that the law applicable is customary law it should prevail. I have considered the criticism of Attiase v. Abobbtey on this method of resolving the applicable law, contained in Nkrumah v. Manu [1971] 1 G.L.R. 176. I do not think in principle such a criticism is well founded. Secondly, I feel that whereas I am bound by Attiase v. Abobbtey no such restrictions affect me with regard to the Nkrumah v. Manu case.\r\nIf I may borrow from judicial practice elsewhere, I would cite with approval the statement of Davies L.J. in Lane v. Willis [1972] 1 All E.R. 430 at p. 435, C.A. that it is undesirable for a lower court to criticise as wrong a binding authority of a higher court. In that case Lawson J.''s criticism of a judgment of Lord Denning M.R. in Edmeades v. Thames Board Mills, Ltd. [1969] 2 All E.R. 127, C.A. was condemned. And this is as it should be. I have always found it difficult to appreciate the reasoning which acclaims a decision as binding and authoritative and yet subjects it to criticism. The principle of stare decisis as I understand it, prohibits such public ventilation of dissent sometimes dragged to lengths of decrial. On this aspect, I would like to quote an observation of van Lare Ag.C.J. in the case of Kwami v. Quaynor [1959] G.L.R. 269, C.A. where the learned acting Chief Justice decried attacks on previous judgments of superior courts..van Lare Ag.C.J. said at p. 277, "I would not wish to be understood as agreeing with the obiter dicta in which the learned Judge\r\n \r\nunfortunately indulged when criticising the judgments which came under review by him." If this rule is not strictly enforced the authority of a precedent may be whittled away by gradual and piece-meal judicial nibbling. The judge''s duty to allay doubts with positive decisions would then have turned to the creation and multiplication of doubts.\r\nFrancois J, as he then was, of course, was right in asserting that a High Court judge must accept the authority of the Court of Appeal and follow its binding decisions, whether he or she agrees with it or not.\r\nOfori-Boateng JA, as he then was, also delivered himself of a dictum in Essiem v The Republic [1993-94] 1 GLR 457 at p. 462 that affirms a doctrine of precedent in consonance with what I have propounded above. This is what he said:\r\n"Article 136(5) of the Constitution 1992 provides:\r\n"(5) Subject to clause (3) of article 129 of this Constitution, the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decisions of the Court of Appeal on questions of law."\r\nArticle 129(3) of the Constitution, 1992 also provides:\r\n"(3) The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law."\r\nThe combined effect of these two articles of the Constitution, 1992 is that the Court of Appeal is compelled to follow its previous decisions, if those decisions are not in conflict with a Supreme Court decision on the same point of law."\r\nThus, Ofori-Boateng JA, as he then was, poignantly does not refer to any exceptions along the lines of the Bristol Aeroplane case. This is a reasonable doctrine of precedent reflective of the letter and spirit of the constitutional provisions on which he bases his view.\r\nHowever, in the light of the interpretation of the judicial precedent doctrine set out above, his Lordship Ansu-Gyeabour J. was not absolutely bound to follow the pre-1993 case of Republic v National House of Chiefs and Others; Ex parte Faibil III and Others [1984-86] 2 GLR 731. The case was, of course, of very high persuasive authority, but the stern reprimand by Apaloo JA (supra) of the\r\n \r\nlearned trial High Court judge was not justified. A current High Court judge may depart from a Court of Appeal decision, given prior to January 1993, if there are good grounds for doing so. Such decisions are of high persuasive authority and may not be departed from lightly, but if there are cogent reasons for doing so, a High Court may decide not to follow them.\r\nTo say that the existing courts of today may depart from pre-January 1993 cases is not to deny their status as precedents. They continue to be precedents, though only of persuasive value, and not binding. It is important to make this point in the light of an argument that was refuted by Abban 0 in P/an/rn (No. 3) V Ekwarn and Anor. [1996-97] SCGLR 431. Counsel had argued in that case that all the conditions and principles that had been laid down by the Supreme Court in cases decided before the coming into force of the 1992 Constitution should not be used as a yardstick when dealing with review applications brought after the 1992 Constitution. This argument was decisively rejected by the learned Chief Justice on the ground that the previous authorities remained law as part of the common law. He percipiently noted that (at p. 436 of the Report):\r\n"The term common law is used in contradistinction to statute law and denotes unwritten law, whether legal or equitable in its origin, which does not derive its authority from any express declaration of the legislature. It depends for its authority upon recognition given by the courts as recorded in the Law Reports which embody the decisions of the judges together with the reasons which they assign to them. And since the Constitution makes judicial decisions or case law part of the laws of Ghana, it will be absurd to refuse to make use of those authorities as precedents when the need arises."\r\nFor the avoidance of doubt, I must declare that I completely agree with the learned Chief Justice. Cases decided before 1993 in the Superior Courts remain precedents that should be followed. The only distinction that I have sought to draw above is between binding and persuasive precedents. In practice, most of the time our courts follow judicial precedents, not because they are absolutely binding on them, but because they are persuasive and a good source of the law. It is only in a few cases that the doctrine of binding precedents comes into play. This is the situation when a court, if it were free to do so, would decide otherwise than prescribed in a previous binding decision. Even in such situations, it will often be possible to distinguish the later case from the earlier case or interpret the ratio decidendi of the earlier case in such a way that it is not an impediment to deciding the later case in the way that the court wants to decide the issue concerned in the later case. The interpretation of the doctrine of judicial precedent which I have set out above will tend to keep the pool of absolutely binding precedents small and therefore there will be fewer occasions on which a superior court will declare that it thinks a previous decision is wrong,\r\n \r\nbut it is bound to follow it. I do not think that this outcome is achieved at too great a cost in certainty and predictability of the law, since the bulk of the judicial precedents will continue to be followed, as has always been the practice.\r\nIt is possible to argue that a successor court should be absolutely bound by the decided cases of the court to which it succeeded. However, I do not find that the provisions of the 1992 Constitution require me to reach this result and, for the policy reason already set out above, I consider that a more desirable purposive interpretation of the relevant provisions of the Constitution is to hold that the courts established under the 1992 Constitution are only absolutely bound by decisions of other courts established under the same Constitution. Article 126 of the 1992 Constitution establishes the Superior Courts of Judicature. I consider these to be new courts, although section 3(1) of the Transitional Provisions of the Constitution (the First Schedule) provides that:\r\n"The Supreme Court, the Court of Appeal and the High Court in existence immediately before the coming into force of this Constitution shall be deemed to have been established under this Constitution and shall perform the functions of the Supreme Court, the Court of Appeal and the High Court specified respectively in Chapter 11 of this Constitution."\r\nThis deeming provision does not alter the character of the courts established by Article 126 as new courts. Although the Supreme Court, Court of Appeal and High Court succeeded to previous courts bearing the same names, there is no logical necessity for the new courts to be absolutely bound by the cases decided by these previous courts. The cases of C.F.A.O. v Zacca [1972] 1GLR 366 and West African Bakery v Miezah [1972] 1 GLR 78 contain some tangential discussion relevant to this issue, they did not decide the issue. In the Miezah case, Azu Crabbe JSC, as he then was, held that by virtue of the 1969 Constitution, the Court of Appeal under that Constitution was a successor to the Court of Appeal set up under the Courts Decree, 1966 (NLCD 84), which in turn was a successor to the Supreme Court established under the 1960 Constitution. He held that the rule of stare decisis applicable to the former Supreme Court, to the effect that it was bound to follow its own decisions "in principle" was applicable to its successor courts and thus to the Court of Appeal under the 1969 Constitution. I do not consider that this authority stands in the way of the interpretation of the doctrine of judicial precedent applied above. Neither does the Zacca case. In article 125 of the 1969 Constitution the High Court and the Court of Appeal were each described as "successor" courts to their eponymous previous courts. In relation to the Court of Appeal, there was express language regarding the binding precedents of the previous court, which is missing from the equivalent provision in the 1992 Constitution. Article 125(2) provided that:\r\n \r\n"The Court of Appeal established under the provisions of clause (4) of article 102 of this Constitution, shall be the successor to the Court of Appeal of the Supreme Court of Judicature in being immediately before the coming into force of this Constitution; and accordingly the Court of Appeal as established by this Constitution shall be bound to follow the decisions on questions of law binding on the Court of Appeal as it existed immediately before the coming into force of this Constitution."\r\nSowah JA, as he then was, alluding to this Article 125, delivered himself of this relevant dictum (at p. 391 of the Report):\r\n"Successor" is the key word; though not a term of art, it is pre-eminently the language used in conveyancing; in the context of this article, it connotes the take-over by the present courts of the jurisdiction, rights and privileges of the displaced courts, subject of course, to such correlative restrictions upon jurisdiction as there existed before the take-over. This is in addition to any extension of jurisdiction that the Constitution might have given. In effect, the Constitution did not entirely abolish the courts but merged the old into the new and created a new hierarchy of courts."\r\nArticle 125 of the 1969 Constitution is to be contrasted with Article 136(5) of the 1992 Constitution (supra) which makes no express reference to the Court of Appeal being "bound to follow the decisions on questions of law binding on the Court of Appeal as it existed immediately before the coming into force of this Constitution". There is thus sufficient difference in the language of the two provisions to justify my view that the current Court of Appeal is not absolutely bound to follow the previous decisions of Courts of Appeal under different constituent instruments.\r\nThere were indeed good grounds for questioning the Ex Parte Faibil III case. Its holding that Order 59 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) had set down a six-month time limit within which an application for mandamus should be brought could not be supported in the light of the actual language used in the Order. Edward Wiredu JA, delivering the lead judgment in the Court of Appeal in 1986, said:\r\n"Our law has set down a six-month time limit within which an application for mandamus may be brought: see Order 59 of LN 140A. Where an applicant is out of time provision is made for him to apply for an extension. In the instant case the matter complained about occurred in 1975 and it was not until a lapse of seven years that the respondents presented their application without applying for an extension of time.\r\n \r\nI\r\nThey were statutorily out of court and their application should not have\r\nbeen entertained."\r\nThe provision on which Wiredu JA based this holding was Order 59 rule 3 states that:\r\n"Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any enactment; and where the proceeding is subject to appeal and a time is limited by law for the bringing of an appeal, the Court or Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired."\r\nClearly, there is no mention of mandamus in this rule. The learned judge''s reliance on Order 59 to prescribe a time limit for the invocation of mandamus does not seem justified.\r\nThe second Court of Appeal judgment in this case, given on 5th February 2009, refused to countenance the criticism by his Lordship Ansu-Gyeabour of the decision in Faith''s case. This refusal to countenance criticism was based on a strict doctrine of precedent propounded in the following terms by Apaloo JA (at p. 151 of the Record), after quoting section 10(5) of the Courts Act, 1993 (Act 459) which is in part materia with Article 136(5) of the Constitution 1992 (supra):\r\n"This substantive law requires the Court of Appeal to follow its own previous decisions which are binding on the Court itself. The High Court is equally bound by decisions of the Court of Appeal and cannot depart from such decisions (of the Court of Appeal) until and unless the decision is reversed by the Supreme Court. Obviously, all courts below are similarly bound to follow decisions of the Court of Appeal on questions of law. There is no doubt that certainty in the law is guaranteed by Section 10 of the Courts Ad."\r\nHe did not consider that the Court of Appeal should be able to depart from its previous decision, even if it was given per incur/am. He went on to express the Court''s conclusion as follows:\r\n"We have followed with keen interest the principles and arguments propounded by counsel that Order 59 Rule 3 of LN 140A applied only to the prerogative writ of certiorari and not at all to mandamus and that the application of a six months time limit to mandamus proceedings was clearly not by LN 140 of 1954, but entirely by operation of English\r\n \r\nCommon Law which has traditionally imposed a six month time limit for prerogative applications. Even though the arguments and the submissions are attractive, we believe this is not the Court or forum to canvass those submissions. Counsel himself for years has been using Order 59 R3 in legal practice. As High Court Judges of first instance, we have delivered many decisions mounted within the purview of that Order. The Court of Appeal had delivered several decisions based on Order 59 R3 of LN 140A without any litigant or a lawyer going to the Supreme Court to challenge the appropriateness of that particular order governing mandamus applications. LN140A the High Court Rules 1954 have been replaced by CI 47 and fortunately under Order 55 R3 adequate provisions have been made for mandamus. We do not feel inclined to depart from the principles enunciated in the Faibil''s case and arising therefrom cause judicial heresy in the sense of a departure from an opinion or belief held within the legal system. We accordingly state unequivocally that the trial High Court Kumasi presided over by Ansu-Gyeabour 3. was duty bound to follow the decision of the Court of Appeal in the case entitled Republic v National House of Chiefs and Anor; Ex Parte Faibil III [1984-86] 2 GLR 731. Failure on the part of the lower Court to be bound on questions of law was fatal to the decision reached by that Court."\r\nI am unable to agree with this conclusion since, as I have explained above, I do not consider that pre-1993 decided cases in the Ghanaian superior courts can be absolutely binding in the way that Apaloo JA portrays. They are of only persuasive authority and therefore where they seem patently wrong, as the Ex Parte faibil case appears to be, a court established under the 1992 Constitution can refuse to follow them.\r\nIn any case, even if the Fa/bil case were decided after 1993, this Court would have the authority to overrule it and we hereby do so. Order 59 Rule 3 of LN 140A should not have been interpreted to apply to applications for mandamus. Moreover, without necessarily here determining this point on time limits for mandamus applications under the 1954 Rules conclusively, even if there were a rule of practice or of the common law laying down a time limit, that time limit should run from the date of refusal to comply with a demand, as I will explain next in this judgment.\r\nThe final principle of law that this Court needs to examine relates to the contention by the applicant/appellant in his Statement of Case that the prerogative writ of mandamus depends on demand and refusal: that is, a demand by an aggrieved applicant on an official to perform a public duty owed to that applicant and a distinct refusal or reluctance to comply with the applicant''s demand. If this Court confirms that a demand and refusal are generally preconditions to the invocation of mandamus, this would have an\r\n \r\nimpact on the time limit within which an application for mandamus may be made. Time would begin to run not from the date of occurrence of the act or omission complained of, but rather from the date of refusal to comply with the demand made by the aggrieved applicant in relation to that act or omission.\r\nThe facts of the leading case of Republic v National House of Chiefs and Others; Ex parte Faith/ III and Others [1984-86] 2 GLR 731 illustrate what is at stake. In this case, two Divisional Chiefs from the Wasa Fiase Traditional Area in the Western Region applied to the High Court, Accra, for mandamus to remove the name of their Omanhene from the National Register of Chiefs. Their application was brought in 1982, but their complaint related to acts that took place in 1975. Their Omanhene had been enstooled in 1975. The Western Region House of Chiefs had transmitted a report of his enstoolment to the National House of Chiefs, together with a warning letter that a petition had been filed against his enstoolment and installation by the Queenmother of the Traditional Area. The Omanhene''s enstoolment, in spite of the warning letter, was published in the Local Government Bulletin of June 1975. The applicants in the case had supported the enstoolment of the Omanhene, in their capacity as\r\nkingmakers and divisional chiefs of the traditional area. Their application for mandamus in 1982 was based on the fact the Omanhene''s enstoolment was disputed and therefore should not have been Gazetted. There was no evidence that the applicants made any demand for the removal of the Omanhene from the Register and that this demand had been refused. Although, the trial court judge granted the applicants the mandamus they sought, the Court of Appeal allowed an appeal against his decision. The Court did not however advert to the issue of demand and refusal, when it decided to dismiss their application.\r\nIn contrast, in Republic v Chieftaincy Secretariat & Anor; Ex Parte Adansi Traditional Council [1968] GLR 736, Annan J. , as he then was, stated the law as follows (at p. 742):\r\n"Having regard to the clear language of section 1 (2) (a) and in the light of exhibit 4, I am compelled to say that there has been no positive refusal or conduct amounting to a refusal, on the part of the second respondent to perform the duty cast on him by section 1 (2) (a) to take a decision one way or the other. It is clear law that the court will not order mandamus to go where there has been no demand and refusal to perform the public duty enjoined by statute."\r\nTo Annan 3, therefore, a demand and refusal were preconditions to the grant of mandamus. Similarly, Asare Korang JA in the first judgment of the Court of Appeal in this case of The Republic v National House of Chiefs; Ex Parte Odeneho A. Krukoko II (Osagyefo Kwamena Enimil VI, Interested Party), a\r\n \r\ndecision of the Court of Appeal dated 11th November, 2005 (at p. 131 of the Record) explained his understanding of the law on mandamus as follows:\r\n"In this appeal, I would summarise the purport and scope of the reliefs sought by the Respondent and the Interested Party in this manner:\r\n"Is Mandamus a remedy available to the Applicant in all the circumstances of this case?"\r\nWhat then are circumstances? Before answering this question, I would first grant that since Mandamus requires as a precondition a demand for the performance of a duty and an unequivocal refusal of one party to not comply, the ruling of Abrahams J. cannot be regarded as Res Judicata since he did not embark on an enquiry as to whether there was a demand and a refusal, that is to say, an enquiry on the merits."\r\nThis statement of the law I consider sound. However, in the second judgment of the Court of Appeal in this case, given on 5th February, 2009, the Court found it unnecessary to dwell on this aspect of the law, preferring instead to base their decision on the doctrines of stare dec/s/sand estoppel per rem jud/catam.\r\nIt was a pity that the Court of Appeal did not take the opportunity of this case to clarify the law on the preconditions for the invocation of mandamus. That error should not be repeated in this court. I would like to adopt the statement on demand and refusal as a precondition to the grant of mandamus which is made in Halsbury''s Laws of England 4th Ed., para. 156 at p. 259 as follows:\r\n"156. Demand for performance must precede application. As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal. The requirement, however, that before the court will issue a mandamus there must be a demand to perform the act sought to be enforced and a refusal to perform it cannot be applicable in all possible cases, and does not apply where a person has by inadvertence omitted to do some act which he was under a duty to do, and where the time within which he can do it has passed."\r\nI have already demonstrated above that Ansu-Gyeabour 3. was not absolutely bound to follow the Fa/bil case (supra). Accordingly the Court of Appeal was in error when it held that he had to. Ordinarily, time within which to apply for mandamus should begin to run only after a demand to perform a duty has been\r\n \r\nmet with a refusal. Secondly, from the discussion above of whether non-final interlocutory decisions can estop per rem judicatam, it is obvious that the judgment of Abraham J in 2003 was no bar to Ansu-Gyeabour J.''s ruling in this case. Since stare decisis and estoppel per rem judicatam were the two legs on which the judgment of Court of Appeal read by Apaloo JA rested, we think that this appeal against it must succeed. Accordingly, the appeal is allowed and the order made by the learned trial High Court judge for leave to apply for mandamus is hereby restored. The case is remitted to the High Court, Kumasi, for the application for mandamus to be heard on its merits.\r\nDR. S.K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\nOWUSU (MS), J.S.C:-\r\nI have read the lead Judgment of my respected brother and I agree with the conclusion arrived at by him that the appeal be allowed.\r\nHe has sufficiently set down the facts and ably dealt with the issues raised in the appeal and in this wise I have nothing useful to add except that like my able brother Dotse whose Judgment I have had the opportunity to read, I also find myself unable to agree with the distinction drawn by my senior brother between the binding nature of the decisions of the pre — 1993 courts i.e. the courts in existence before the coming into force of the 1992 constitution and those which were established by the 1992 constitution.\r\nIn the lead Judgment, this is what my respected brother said:\r\n"Addressing the second issue first, I think that the doctrine of precedent established by article 136(5) applies only to the Court of Appeal and the lower courts established by the 1992 constitution. I consider that the pre-1993 cases are persuasively binding, but they do not fall into the strict doctrine of precedent under lying article 136 (5)."\r\nThe said Article reads as follows:\r\n"Subject to clause (3) of article 129 of this constitution the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decision of the Court of Appeal on questions of law."\r\nIt is for this reason that Apaloo JA said in his ruling that:\r\n"It is of great concern also that when Ansu Gyeabour J. departed from the decision in Ex parte Faibil case he chose to pose for consideration of his court three irrelevant questions concerning the interpretation of\r\n \r\nOrder 59 rule 3 which in our view, would be unnecessary if he had come to the conclusion that the Court of Appeal was super/or to his court and therefore that court''s decision was binding on him. (emphasis supplied)"\r\nUnder article 129(3) of the 1992 constitution,\r\nThe Supreme Court may while treating its own decisions as normally binding, depart from a previous decision when it appears to it right to do so, and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law."\r\nThe Court of Appeal is therefore bound to follow the decisions of the Supreme Court on questions of law and so is the High Court bound to follow decisions of the Court of Appeal on questions of law unless the lower court distinguishes the previous Judgment from the one before it both on the facts and law that it can get itself out of the strict Jacket to be able to extricate itself from the binding effect.\r\nThe provisions of P. N. D. C [Establishment proclamation, 1981 saved and continued in existence all the courts established under article 114 (5) of the 1979 Constitution which the P. N. D. C proclamation suspended.\r\nWhat this means is that once the Court of Appeal as established under the constitution of 1979 was continued under the same constitutional regime, it was saved with all that it stood for - its functions, composition, Jurisdiction etc remained intact despite the fact that the constitution was suspended thus destroying the legal order by the Military intervention of 31st December, 1981.\r\nThus if the hierarchy of the superior courts were saved and continued in existence, then with the coming into force of the 1992 constitution, these courts and the decisions handed down by them have the same binding effect as those established under the 1992 constitution.\r\nMy respected brother has in his Judgment referred to the case of PIANIM (No. 3) VRS EKWAM and Another [1996-7] SCGLR 431. In that case counsel''s argument that all the conditions and principles that had been laid down by the Supreme Court in cases decided before the coming into force of the 1992 constitution should not be used as a yardstick when dealing with review applications brought after the 1992 constitution was rejected. This argument did not find favour with the court per Abban C.J who decisively rejected same on the ground that the previous authorities remained law as part of the common law.\r\nThe eminent C.J. now of blessed memory delivered himself thus:\r\nIt depends for its authority upon recognition given by the courts as recorded in the Law Reports which embody the decisions of the Judges together with the reasons which they assign to them. And since the constitution makes judicial decisions or case law part of the laws of Ghana, it will be absurd to refuse to make use of those authorities as precedents when the need arises."\r\nIndeed my respected brother completely agrees with the learned chief justice that cases decided before 1993 in the superior courts remain precedents that\r\n \r\nshould be followed. He all the same sticks to the distinction that he sought to draw between binding and persuasive precedents.\r\nThis is where I part way with him as in my considered opinion, the pre and post 1993 cases have the same authoritative binding effect on all courts below them. Again, under Art 3 (1) of the Transitional provisions of the constitution (first schedule)\r\n"The Supreme Court, the court of Appeal and the High Court in existence immediately before the coming into force of this constitution shall be deemed to have been established under this constitution and shall perform the function of the Supreme Court, the Court of Appeal and the High Court specified respectively in chapter 11 of this constitution."\r\nTherefore if the Supreme Court, the Court of Appeal and the High Court in existence before the coming into force of the Constitution, shall be deemed to have been established under the constitution, where then do we draw the distinction between them vis-à-vis their binding effects on lower courts?\r\nIt is for these reasons that I add my voice to that of my brother. Dotse 3.S.0 in his opinion on the position of the binding effect of the pre and post 1993 cases on courts down the ladder.\r\nR. C. OWUSU (MS)\r\nJUSTICE OF THE SUPREME COURT\r\nDOTSE, J.S.C.:-\r\nCONCURRING OPINION\r\nI have had the privilege of having read before hand, the well thought out judgment of my distinguished brother, Dr. Date-Bah ]SC in the lead judgment just delivered. Even though I agree with part of the reasoning and the conclusions reached therein, there is however an aspect of the reasoning which I disagree with and also wish for purposes of emphasis and elucidation to comment upon the principle of demand and refusal as a criteria for the grant of Mandamus.\r\n \r\nIn his lead judgment, Dr. Date-Bah JSC has set out the facts of this appeal so graphically that it will be needless on my part to re-state them. I therefore adopt the statement of the facts as stated by my learned brother.\r\nBefore deciding the substance of the appeal, Date-Bah JSC, set out three general principles of law which he dealt with. These are\r\n1.	The scope of the doctrine of estoppel per rem judicatam and whether it applies to interlocutory rulings and judgments. I cannot but agree entirely with the discussions of this principle of law and how he dealt with It.\r\n2.	The second is the scope of Judicial precedent in Ghana and the extent to which the Court of Appeal is bound by its own previous decisions. Whilst I agree with the general statement of the principles and law applicable on the doctrine of judicial precedent or stare decisis as it is described in legal terminology, I disagree with the conclusions reached.\r\n3.	The third is the examination of the preconditions for the invocation of the remedy of mandamus.\r\nThis principle was classically and intellectually handled by my brother Date-Bah JSC but I feel the strong urge to make some humble contributions to that aspect of the law.\r\nWHAT IS JUDICIAL PRECEDENT OR STARE DECISIS\r\nThe Constitution 1992 is the document that has enshrined this principle of Judicial precedent in Ghana.\r\nArticle 129(1) of the constitution 1992 established the Supreme Court as the final Court of Appeal with appellate and other jurisdiction as may be conferred on it by the Constitution or any other law.\r\nArticle 129 (2) however states that the Supreme Court is not bound to follow the decisions of any other Court.\r\nThis therefore means that, the Supreme Court is at the apex of the Court Structure in Ghana and it is not subordinate to any other Court in Ghana.\r\n \r\nIn order to appreciate the binding nature of decisions of the Supreme Court on all other Courts in the country, it is necessary to quote in extenso, article 129 (3) of the Constitution 1992, which states:-\r\n"The Supreme Court may while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so, and all other Courts shall be bound to follow the decisions of the Supreme Court on questions of Law"\r\nIn effect, the application of this principle admits of no discretion whatsoever on the part of the Courts lower to the Supreme Court. Whilst the Supreme Court itself is not bound to follow its previous decisions (although in practice it does to a large extent) all other Courts must interpret the law to be what the Supreme Court states it to be, this is a mandatory requirement on all the Courts lower down the hierarchy of Courts to the Supreme Court. This will mean that, the Court of Appeal, High Court, Regional Tribunal, Circuit Court, District Courts and all lower adjudicating tribunals to wit Family Tribunal, Juvenile Court, Judicial Committee''s of the National and Regional Houses of Chiefs and also of the Divisional and Traditional Councils established under the Chieftaincy Act 2008, Act 759 are bound to follow it.\r\nThe principle is based first of all on the relevant likeness of the previous decisions or the relevance of the principle of law decided in the previous case and the instant one. If however, there is no likeness between the two, then there is no need to consider whether the previous one should be followed or not. It is the art of following the decision in the previous case or being able to distinguish the principle of law decided in the previous case from the one before the Court, that will determine its applicability.\r\nFor the purposes of the Court of Appeal which is what I am concerned with in this case, the relevant article in the constitution 1992 is 136 (5) which prävides as follows"\r\n \r\n"Subject to clause (3) of article 129 of this constitution the Court of Appeal shall be bound by its own previous decision; and all Courts lower than the Court of Appeal shall follow the decision of the Court of Appeal on questions of law"\r\nI have already dealt with aft/c/c 129 (3) of the Constitution. By parity of reasoning therefore, it means that, all Courts below the Court of Appeal are bound to follow the decision of the Court of Appeal. In essence, the Court of Appeal would itself have followed any Supreme Court decision on the subject matter, to avoid any conflict situation arising.\r\nWhat should be noted is that, whilst the Supreme Court has power to depart from its previous decisions, the Court of Appeal has no such privileges and rights, and is bound by any previous decision of that Court.\r\nIn the instant case, my brother Dr. Date-Bah (JSC) is of the view that the doctrine of judicial precedent established under aft/c/c 136(5) of the Constitution 12 applies only to the Court of Appeal and the lower Courts established under the Constitution 1992. He concludes thus:\r\n7 consider that the pre-1993 cases are persuasively binding, but they do not fall into the strict doctrine of precedent underlying article 136(5)"\r\nThis is the area where I disagree with my brother.\r\nConsidering the provisions of Sect/on 3 (1) of the transitional provisions of the Constitution 1992, the impression is that all the Superior Courts in existence before the coming into force of the Constitution 1992 are deemed to be in existence under the Constitution 1992.\r\nThis is how it is stated:\r\n3 (1) "The Supreme Court, the Court of Ap', '../links/cases/Document (224).pdf', 'Yes', 'OWUSU (MS), JSC, DOTSE,JSC, ANIN YEBOAH, J.S.C, BAFFOE-BONNIE. JSC, ', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Chieftaincy - Chief - National Register of Chiefs - Applicant applied for mandamus to Re-instate name - State Proceedings - Mandamus - Application for - Time frame for application - High Court (Civil Procedure) rules, 1954 (LN 140A) - Whether order 59 Rule 13 does not apply to mandamus - Time should run after demand to perform duty has been met with refusal - Stare Decisis - 1992 Constitution, art 136(5) - Decision of Higher courts binding on lower courts for certainty of law - Interlocutory judgments - Final and other interlocutory judgments - Distinction</font></b></i><br>', 'DR. DATE-BAH, JSC', 'Civil', '', 'J4/18/2009', '', '', 'supreme', '2009-12-02', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(576, 'FEDERATION OF YOUTH ASSOCIATION OF \r\nGHANA (FEDYAG)  ---  PLAINTIFF\r\nVRS\r\nPUBLIC UNIVERSITIES OF GHANA & ORS  ---  DEFENDANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCORAM: ATUGUBA, JSC (PRESIDING)\r\nAKUFFO (MS), JSC\r\nBROBBEY, JSC\r\nANSAH, JSC\r\nADINYIRA (MRS), JSC\r\nOWUSU (MS.), JSC\r\nANIN - YEBOAH, JSC\r\nGBADEGBE, JSC\r\nAKOTO-BAMFO (MRS) JSC\r\nWRIT NO.J 1/5/2009\r\n27/07/2010\r\nFEDERATION OF YOUTH ASSOCIATION\r\nOF GHANA (FEDYAG)	PLAINTIFF\r\nVRS.\r\nPUBLIC UNIVERSITIES OF GHANA &ORS	DEFENDANTS\r\nConstitutional law - 1992 Constitution art 25 - Universal Declaration of Human Rights (UDHR) art. 26 - Right to Education - Right subject to limitation - Whether fee paying policy in Public Universities is inconsistent with 1992 Constitution— Statutes - Construction - Art. 25 of Constitution must be interpreted guided by Directive Principles in Art. 38.\r\nJUDGMENT ADINYIRA (MRS) JSC\r\nThe case before this Court demands an interpretation of the extent of the citizen''s right to education as enshrined in article 25 of the 1992 Constitution. The right to education has been a cause for civil rights activists in the history of many nations. It is a common saying that education is the key to development. Education is also\r\n \r\n\r\n\r\n\r\nbreaking the cycle of poverty. Therefore in the quest to attain political and socio-economic development after independence, education was one\r\nof the core areas that Ghana and other African countries paid much attention. Education therefore offers an effective platform for national development and also "promotes understanding, tolerance, and friendship among all nations, racial or religious groups." See Article 26 (2) of the Universal Declaration of Human Rights.\r\nThe plaintiff, Federation of Youth Association of Ghana (FEDYAG)\r\ncommenced an action, by a writ filed on 22 April 2009, invoking the original jurisdiction of this court against the Public Universities of Ghana as the first defendants, and against the Ministry of education, the National Council for Tertiary Education, and the Attorney-General as the\r\nsecond, third and fourth defendants respectively, for the following\r\nreliefs:\r\n1.	A declaration that the fee paying policy being implemented by the public universities of Ghana is inconsistent with, or in\r\ncontravention of the letter and spirit of the 1992 Constitution and more particularly articles 17 (2) (3) (4) (a), 23, 25 (1) (c), 34 (1), 38 (1) (3) (a) (c) and 41(b) and (d) thereof\r\n2.	An order prohibiting any further implementation of the fee paying policy by the first defendants herein and quashing same.\r\nFacts and Plaintiffs Case\r\nApart from the bare assertions of facts made by the plaintiff in its\r\nStatements of Case, as verified by the accompanying affidavit, it\r\noffered no further proof of the facts alleged in them. For clarity I set\r\n \r\n\r\nout in full paragraphs i to 7 of the statement of case which are as follows:\r\n1.	The Public Universities of Ghana, the ist Defendants herein, for many years into the 4th Republic, have been implementing a policy called "Full Fee Paying Policy". The beneficiaries under the said policy are christened "The Fee paying Students."\r\n2.	How did this come about? As a country, like many states, within the comity of nations, we have an obligation of welcoming citizens of the world into our universities to\r\npursue knowledge. It means that space must be reserved by the institutions concerned for these foreign students as we call them. It has almost always been the case that the space so reserved has never been fully occupied by the targets. The Universities instead of returning the unoccupied space to the next most qualified prospective students then sell the space to Ghanaian citizens at the same price as the foreign students.\r\n3.	As if that is not enough, the universities realizing that a lot of money could be made out of this have decided to reserve more space than can ever be reasonably occupied by these foreign students.\r\n4.	Now this act of public universities has become an annual ritual. For e.g. they tell the world that we can only take 70% prospective students whiles in reality they can take up to 95%. They then cut the intake at say aggregate 12 instead of aggregate 15 and turn around and say, "Whoever can pay this much; come, we have a place for you".\r\n \r\nC\r\n5 This means that whilst some citizens of the country pay tuition fees others do not pay tuitions fees to access higher education in the country.\r\n6.	By acting in this manner, many qualified prospective students who could have had a place in their own capacity but for that much to pay are relegated to the background while those who have the means have their way.\r\n7.	It is our humble contention that this act in the name of full fee paying of public universities in Ghana betrays the letter and spirit of the supreme law of the land viz the 1992 Constitution.\r\nThough the plaintiff avers generally that the defendants'' fee paying policy "betrays the letter and spirit of the supreme law of the land viz the 1992 Constitution", it specifically and more particularly relies on articles 17(2)(3)(4)(a), 23, 25(1)(c), 34 (1), 38(1)(3)(a)(c) and 41(b)(d) thereof.\r\nCommon Submission by all of the Defendants\r\nIt was commonly submitted by all the defendants that the fee-paying policy is in no way discriminatory because the quota available to the students admitted on merit is not in any way diminished by the admission of fee-paying students. They further submitted that by the provision of article 25 (i) (c) of the constitution, the introduction of free education at the tertiary level should be by a gradual process.\r\n1st Defendants'' Response\r\nThe 1st defendants further submit that the plaintiff does not show in which way the defendants have violated the articles mentioned in the writ. They submit that university education in Ghana has been funded by\r\n \r\n\r\nthe government through annual bursaries. The number of non-paying students is tied to the size of the government bursaries made available each year. That by the ever diminishing size of government bursary the public universities cannot admit all qualified candidates. They claim that the quota given to fee-paying students does not affect the quota for non-\r\nfee paying students. They submit that the fee-paying policy enables qualified students who would otherwise not gain admission on account of not obtaining government bursaries, to pay and obtain education from the public universities. The 1st defendants submit further that the revenues from fees paid by the fee-paying students are added to the government subvention to increase the number of non-fee-paying students admitted each year. In the case of the Kwamc Nkrumah University of Science and Technology, such funds make it possible for the University to give scholarship to brilliant students from less endowed schools.\r\nThe 2nd'' 3rd and 4th Defendants'' Response\r\nThe 2nd, 3rd and 4th defendants on their part submit that, the government is unable to fully meet the financial requirements of the 1st defendants. As a result these subvented institutions have to supplement government efforts by resorting to the fee-paying policy. They also stated that the quota reserved for the intake of foreign students is a time\r\nhonored practice by universities around the world. This practice enriches the academic community and provides for global socio-cultural interaction, which by itself is education.\r\nCentral issues to be determined in the case\r\nThere is no doubt that in essence the plaintiffs contentions are based on provisions of the constitution falling under or relating to the\r\n \r\n\r\nFundamental Human Rights as set out in chapter 5 of the Constitution. The only articles which do not physically fall within the said chapter 5 are articles 34, 38 and 41. These fall (under chapter 6), the Directive Principles of State Policy, of which article 34 requires that in applying or interpreting the constitution, their guidance cannot he discounted and therefore article 38 relating to education cannot be discounted in considering educational rights under chapter 5. We however do not see the relevance of article 23, and 41 of the Constitution to the case.\r\nThe parties did not agree on the issues to be tried and each filed separate memorandum of issues which added up to 13. From the myriad of issues filed by the parties we see the following issues emerging from the pleadings:\r\ni.	Whether or not the full fee paying policy of the 1s1 defendant universities are in contravention of the letter and spirit of articles 25, (i) (c), 38 (i) () (a) (c) of the 1992 Constitution of Ghana.\r\nii.	Whether or not the 1st Defendant''s offer of admission spaces not taken up by foreign students to students who qualify but not admitted for lack of government subvention, amounts to discrimination, in contravention of article 17(2) (3) () (a) of the 1992 Constitution.\r\nBefore we determine the above issues we must interpret article 25 to discover the extent of educational rights guaranteed by the 1992 Constitution. The correct approach to the construction of constitutional provision has been amply expounded on in the case of A/iurnah Ocansey v. Electoral Commission; Centre for Human Rights & Civil Liberties (''cHURCIL) v Attorney-General & Electoral Commission\r\n \r\n\r\n(Consolidated); 2010 [SCGLR] 575 by our eminent lady Chief Justice Georgina Wood. She said at page 597 of the report as follows:\r\n"The correct approach to interpreting Constitutions generally and fundamental human rights provisions in particular, is clearly so well settled: it does not admit of any controversy. The jurisprudence of this court does show that these must be broadly, liberally, generously or expansively construed, in line with the spirit of the constitution, history, our aspirations, core values, principles, and with a view to promoting and enhancing human rights rather than derogating from it.\r\nThis court has clearly moved away from the doctrinaire approach adopted years ago in the case of In re Akoto [1961]2GLR 523 SC. The famed words of Sowah JSC as he then was in the celebrated case of Tufflior v Attorney General [1980] GLR 637 at 647-648, are very much still relevant for our purposes; not to mention the tall list of case law that was cited in one of the most recent decisions of this court given on 3 February 2010- to be reported as Brown v Attorney —General (Audit Service case) [2010] SCGLR 183. Two of the older decisions of this court are Mensima v Attorney- General [1996-7] SCGLR 676 at p. 714, and New Patriotic Party v Inspector —General of Police [1993-94] 459 at 482. In the latter case, Bamford —Addo JSC as she then was observed that:\r\n"...fundamental human rights are inalienable and can neither be derogated from or taken away by anyone or authority whatsoever. ...This  court is therefore not permitted to give an interpretation which seeks to tamper in any way with the\r\n \r\n\r\n\r\nfundamental human rights but rather to see that they are respected and enforced."\r\nThe learned Chief Justice Georgina Wood observed further that:\r\n"In Minister of Home Affairs v Fisher [1980] A C 319, Lord Wilberforce in delivering the judgment of the Privy Council\r\nstated at page 329 as follows:\r\n"A constitution is a legal instrument giving rise, amongst other things, to individual rights capable of\r\nenforcement in a court of law. Respect must be paid to the language which has been used and to the traditions\r\nand usages which have given meaning to that language.. .and to be guided by the principle of giving full effect to those fundamental rights and freedoms\r\nwith a statement of which the Constitution\r\ncommences."\r\nBased upon these principles of constitutional interpretation, we have to interpret Article 25 guided by Article 38 of the Directive Principles of State Policy as required by Article 34.\r\nArticle 25 provides:\r\nI. All persons shall have the right to equal educational opportunities and facilities and with a view to achieving the full realisation of that right -\r\n(a)	basic education shall be free, compulsory and available to all;\r\n(b)	secondary education in its different forms, including technical and vocational education, shall be made generally available and accessible to\r\n \r\n\r\nall by every appropriate means, and in particular, by the progressive introduction of free education;\r\n(c)	higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular, by progressive introduction of free education;\r\n(d)	functional literacy shall be encouraged or intensified as far as possible\r\n(e)	the development of a system of schools with adequate facilities at all levels shall be actively pursued.\r\n(2) Every person shall have the right, at his own expense, to establish and maintain a private school or schools at all levels and of such categories and in accordance with such conditions as may be provided by law.\r\nArticle 25 is based on Article 26 (1) of the Universal Declaration of Human Rights which states as follows:\r\nArticle 26 "(i) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merits [Emphasis mine]\r\nIt is noted that whereas Article 26 of the Universal Declaration of Human Rights simply states everyone has a right to education, our constitutional provision on the right to education states that: "All persons shall have the rig/it to equal educational opportunities and facilities". Why the difference? The difference is mainly due to our\r\n \r\n\r\nnational experiences, challenges and weaknesses in our educational system and economic imbalances, which needed to be addressed to\r\nprevent the erosion of the gains that have so far been made. There was the need to address the imbalances in the infrastructural development of\r\neducational facilities in the country and the urgency to improve the quality of education particularly in the field of science and technology; for effective national development. All these are reflected in Article 25.\r\nHayfron-Benjamin JSC in Edusei (No.2) v. Attorney General (1998-99) SCGLR 753 at 756 expressed a similar view as follows:\r\n"In the area of fundamental human rights, it must be said that the matters enumerated in the Constitution and in chapter 5 thereof are based firmly on the sum total of our national experiences and our nation''s subscription to international conventions and protocols on fundamental human rights."\r\nFrom the outset it is supposed that each word used in Article 25 is intended to have some effect, or be of some use. In terms of our constitutional provisions the word equal usually reflects the human right\r\nprovision of Article 17 which stipulates that:\r\n(I) All persons shall be equal before the law.\r\n(2) A person shall not be discriminated against on grounds of gender,\r\nrace, color, ethnic origin, religion, creed or social or economic status.\r\nThe word opportunity may be defined as: a favourable or\r\nadvantageous circumstance or combination of circumstances, or a\r\ngood chance for advancement or progress, or simply an advantage.\r\n \r\n\r\na\r\nThe phrase equal opportunities may thus be defined as a situation in which people have the same chance or advantage in life as other people without being treated in an unfair way because of their race, color, ethnic origin, religion, creed or social or economic status. [Emphasis mine]\r\nFollowing the basic principles of constitutional interpretation set out above we can conclude that the words in article 25 (1) confer on every Ghanaian the right to have the same or equivalent chance and opportunities for educational advancement; and also the right to the same educational facilities in which to achieve that purpose regardless of his/her social or economic status, place of origin, sex or religion.\r\nHowever there are inherent limitations that regulate and control the enjoyment of the right to equal educational opportunities and facilities. This right is subject to the capacity on the part of the student and the availability of educational facilities to be provided by the state. In the same Art 25 the right is qualified by clauses (a), (b), and (c) by the controlling words: with a view to achieving the full realisation of that right, a)basic education shall be free and compulsory and available to all, b) generally available and accessible at secondary, technical and vocational level, and c) in respect to university or higher education, equally accessible to all on the basis of merit of the students and the capacity of the institution; and in particular by progressive introduction of free education at all levels. The ultimate objective of article 25 is to make education free by a gradual and progressive introduction to free education at all levels.\r\nSince the right to education is for every person, the article 25 (d) requires that functional literacy be encouraged and intensified for those who for one reason or other are unable to pursue formal education. Also private\r\n \r\n\r\npersons have the right to run schools at all levels but at their own\r\nexpense.\r\nIt is therefore the duty of the state to formulate and execute policies to achieve this purpose. However by article 38 of the Constitution these educational objectives can only be implemented by the availability of resources.\r\nThis article 38 provides:\r\n(1) The State shall provide educational facilities at all levels and\r\nin all the Regions of Ghana, and shall, to the greatest extent feasible, make those facilities available to all citizens.\r\n(3) The State shall, subject to the availability of\r\nresources, provide-\r\n(a)	equal and balanced access to secondary and other\r\nappropriate pre-university education, equal access to university or equivalent education, with emphasis on\r\nscience and technology;\r\n(b)	a free adult literacy programme, and a free vocational training, rehabilitation and resettlement of disabled persons; and\r\n(c)	life-long education. [Emphasis mine]\r\nHowever, the reality is that since education comes with cost in terms of infrastructure, such as classrooms and lecture halls, well resourced library and research centres, teachers/lecturers, Ghana like other African countries cannot provide free education within the shortest possible\r\n \r\nU\r\ntime. Even the free universal basic education has not been fully achieved 19 years after the promulgation of the Constitution since educational opportunities and facilities in rural areas are not the same as those in the urban areas.\r\nBarely four decades ago, university education was virtually free, in terms of tuition fees, boarding and lodging, and there were well equipped libraries and laboratories and adequate lecture halls and enough lecturers. The failure of government allocations in the face of economic decline and structural economic adjustment programs has led to reduction in support for public universities. Increasing student enrolment without the corresponding expansion in facilities has created huge complex problems that called for an improvement in resources and administration which will greatly improve university education and as a matter of course enhance development efforts.\r\nThe public universities are obliged under the statutes establishing them to augment their resources. The Ghana Education Trust Fund (The GET Fund) was established in 2000 under the Ghana Education Trust Fund Act, 2000, Act 581, to assist nationwide financing of education. Yet we face the problem of limited access to university education because not all qualified applicants get access into the public universities.\r\nThe inadequate funding from government and the resultant deterioration in the educational system, led to the introduction of cost sharing and cost recovery principles into the education sector. These are the full fee-paying and user fee policies. User fees are charged for accommodation and academic facility use such as the use of laboratories and libraries and other educational facilities, and are paid by all\r\n \r\n\r\ncategories of students except perhaps by those on full scholarship awarded by the university.\r\nHowever, it seems that the plaintiff is not basing his claim on the right to free university education but rather on the right to equal access to the limited opportunities available to Ghanaians to public universities as required by article 25 (1) of the Constitution. The plaintiff complains that a significant part of the more qualified persons are not able to enter the institution because they are unable to raise and pay the fees charged by the i'' defendants and that the less qualified who are able to raise such fees charged get access into the university by their ability to pay. It seems to us that the plaintiff does not understand how the full fee-paying policy is implemented by the 1st defendants.\r\nThe 1st defendants in their statement of case explained how the fee paying policy is implemented. They stated that:\r\n"By 2002 the government approved intake quota was 5 percent for the foreign students and 5 percent for non-resident Ghanaians. It must be stated that these percentages were not in diminution of but in addition to the traditional spaces for local non-fee paying students . . .It is spaces that are not filled with respect to the above quota that are offered to other Ghanaian students who have qualified for entry into the universities but could not be admitted on account of they not having qualified for the government bursary."\r\nIn 2006 the quota for non-resident Ghanaians was raised to 10 percent. According to the 1st defendants:\r\n \r\n\r\n\r\n"Whereas the intake for the non-fee paying students is solely\r\ndetermined by the quantum of the bursary received from the government, the intake for the fee-paying students is determined as a percentage of, yet over and above, the already determined non-fee paying intake"\r\nThe defendants explained further that:\r\n"[T]he places available for fee-paying students would not in any\r\nevent be available for non-paying students as the 1st defendants\r\nwould not be able to recover the cost of training the extra\r\nstudents."\r\nThe 1st defendants stressed that the source of income from the fee-paying\r\nstudents has on the average over the past 8 years constituted 28 percent\r\nof the total revenue of the 1st defendant. They argued that:\r\n"In effect the fee-paying students the subject matter of this suit, are subsidizing the non-fee paying students, and are thereby making university education ''progressively free, ''equally accessible'' and to the greatest extent feasible ...available to all citizens'' towards the realization of the form and spirit of articles 25 (1) (c), 38 0), (3) (a) of the Constitution."\r\nThe ist defendant gave some statistics that showed that the quota for the non-fee paying students has not been reduced to the benefit of the fee-\r\npaying students as claimed by the plaintiff in paragraph 3 of their\r\nstatement of case. We reproduce the statistics for purposes of clarity.\r\nTable I: Kwame Nkrumah University of Science & Technology, Kumasi Admission Statistics for 2004-2009\r\nYear	Qualified Admitted	Foreign students	Ghanaian Fee Paying\r\nStudents	\r\n \r\nNo.	gy,No.\r\nC	2004/05	11723	6451	200	3.10	495	7.57\r\n2005106	16473	8771	275	3.14	761	8.68\r\n2006/07	17100	7988	203	2.54	566	7.09\r\n2007/08	11614	6952	152	2.19	490	7.05\r\n2008/09	10630	6800	132	1.94	339	4.98\r\nTable 2: University of Cape Coast - Admission Statistics for 2005-2009\r\n \r\nYear\r\n2005/06\r\n2006/07\r\n2007/08\r\n2008/09 -\r\n \r\nQualifiedI Admitted\r\n12166	5340\r\n13133	4270\r\n11046	4146\r\n9676	4319\r\n \r\nForeign students\r\nNo.\r\n56	1.05\r\n47	1.10\r\n51	1.32\r\n83	1.92\r\n \r\nGhanaian Fee Paying\r\nStudents\r\nNo.\r\n535	10.02\r\n182	4.26\r\n142	3.42\r\n128	I	2.96\r\n \r\nTable 3: University for Development Studies- Admission Statistics 2004-2009\r\n \r\nYear	Qualified Admitted\r\n2004/05	3575	1738\r\n2005/06	4103	1850\r\n2006/07	4808	2432\r\n2007/08	6935	3720\r\n2008/09	6128	4123\r\n \r\nForeign students\r\nNo.\r\n0	0\r\n2	0.1\r\n0_0\r\n0	0\r\n0.24\r\n \r\nGhanaian Fee Paying\r\nStudents\r\nNo.\r\n23	1.32\r\n4	0.47 - \r\n0	0\r\n0	0\r\n0	0\r\n \r\nTable 4: University of Education, Winueba- Admission Statistics 2005-2009\r\nYear	Qualified Admitted	Foreign students	Ghanaian FCC Paying Students\r\nNo.	No.\r\n2005/06	4825	3795	-	-	-	-\r\n2006/07	5793	4511	-	-	-	-\r\n2007/08	7159	3979	-	-	-	-\r\n2008/09	7964	4040	I\r\n \r\n\r\n\r\n\r\nTable 5: University of Ghana, Legon- Admission Statistics 2005-2009\r\n \r\n\r\n \r\nTable 6: University of Mines and Technology, Tarkwa- Admission Statistics 2004-2009\r\n\r\nYear	Qualified	Admitted	Foreign students	Ghanaian Fee Paying\r\nStudents\r\n		No.	No.	°A)\r\n2005/06	734	266	9	2-53	4	1.5\r\n2006/07	743	315	6	1.9	7	2.22\r\n2007/08	1067	361	15	4.16	8	2.21\r\n2008/09	1145	390	24	6.15	13	3.33\r\n\r\nThe 1s1 defendants also showed a statistics of admission of less endowed undergraduate students on scholarships funded from revenue accrued from the fee-paying policy by the Kwame Nkrumah University of Science and Technology, Kumasi.\r\nTable 7: Kwame Nkrumah University of Science &Technology, Kumasi- Less Endowed Admissions (Undergraduates)\r\n \r\n\r\n \r\n\r\nNo.	0/0\r\n2004/05	256	3.97\r\n	534	6.09\r\n2006/07	335	4.14\r\n2007/08	168	2.42\r\n2008/09	149	2.19\r\n \r\nThe above statistics clearly defeats the plaintiffs argument that the admission for regular students into public universities in Ghana has been reduced over the years in favour of the fee paying students. Although the quota for non-resident Ghanaians was raised to io% in 2006; the statistics shows that, that quota has never been fully used. For example in the Kwame Nkrumah University of Science and Technology, only 8.6% of the quota for full paying Ghanaian students was filled in the 2005/06 academic year. The percentage admitted dropped to 7.09% in 2006/07 academic year. The number has declined to 4.98 as at 2008/09 academic year. See Table 1. The unused quota cannot be allocated to non-bursary students as there are no funds to cover their fees.\r\nWe recall that Article 25(c) specifically provides that: "higher education shall be made equally accessible to all, on the basis of capacity, by ever appropriate means, and in particular, by progressive introduction of free education". So the real issue here is whether the full fee paying policy as being implemented by the public universities infringes the letter and spirit of Article 25 (i) (c). The proper test for determining an infringement to a fundamental right is to examine its effect and not merely its object.\r\nBy the provision of Article 38 (3) (a) of The Directive Principles of State Policy, equal access to university education is subject to the availability of resources to the state. The defendants who are charged by the Constitution to provide university education in Ghana are obliged to find and commit available resources to provide education to qualified students. The 1st defendants have demonstrated that the fee-paying policy was one of the means by which they have been able to offer\r\n \r\n\r\n\r\neducational opportunities to more Ghanaian students; who otherwise\r\nwould not have had access to public universities due to insufficient\r\nfunding from the government.\r\nIt follows from the foregoing that the fee-paying policy achieves a constitutionally valid purpose and that the chosen means are reasonably and demonstrably justified. We therefore hold on issue (i) that the fee- paying policy does not contravene the letter and spirit articles 25 1 (c) and 38 (1) (3) (a) (c) of the Constitution.\r\nThat takes us next to a consideration of the last issue. It appears that the\r\nplaintiff makes a legitimate point that the full fee-paying policy is to the disadvantage of persons with low economic status as they may not have the ability to opt for the fee-paying policy. On the other hand we do not think the fee-paying policy is discriminatory, considering firstly, the fact that it does not affect the quota for non-fee-paying students and\r\nsecondly, the fact that it creates more opportunity for qualified students\r\nto get university education. As the government cannot provide bursary for all qualified students to enter the university, the 1st defendants'' offer\r\nof admissions spaces not taken up by foreign students to students who qualify but are not admitted for lack of government subvention, do not\r\namount to discrimination.\r\nThe plaintiff did not substantiate his statement in paragraph 13 of his affidavit in the verification of fact that:\r\n13..."[T]his policy of fee paying by the defendants is as discriminatory as it amounts to granting advantage to some\r\nprospective students based on their economic status rather than their intellectual capacity."\r\n \r\n\r\nThe system has a level of transparency; as prospective students have to\r\n \r\n•\r\n \r\nopt for the full fee-paying policy at the time of applying for admission. In that respect it is expected that the admission of these full fee-paying students should be on merit rather than the ability to pay. There should however be decent and adequate facilities to support student intake into\r\nthe public universities.\r\nAccordingly I hold on issue (ii) that the full fee-paying policy is not discriminatory and as such does not infringe Article 17 of the\r\nConstitution.\r\nConclusion\r\nThe full fee paying policy is not unprecedented in Africa. It is implemented worldwide. What is required is that the defendants, students, parents and all stakeholders should develop adequate support mechanism such as, scholarships, grants, insurance schemes and adequate student loan schemes to lessen the harsh effect of cost sharing. Until the resources are available to the state to provide free education in Ghana, the full fee-paying option would have to continue to enable more qualified Ghanaians to access public universities.\r\nFrom the foregoing, we hold that the fee-paying system as implemented\r\nby the 1st defendants does not infringe Articles 17, 25 (i) (c) and 38 (i)\r\n(3) (a) and (c) of the Constitution.\r\nThe plaintiffs action fails and is hereby dismissed.\r\n(SGD) S. 0. A. ADINYIRA (MRS.) JUSTICE OF THE SUPREME COURT\r\n \r\n\r\n \r\n\r\nV\r\n\r\n \r\n(Scrn)	W. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	S. 0. B. AKUFFO (MS.) JUSTICE OF THE SUPREME COURT\r\n(SGD)	S. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	J. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	R. OWUSU (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n\r\n(SGD)	N. S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD)	V. AKOTO-BAMFO (MRS) JUSTICE OF THE SUPREME COURT\r\nCOUNSEL: \r\nDENNIS OFOSU-APPEA FOR THE PLAINTIFF.\r\nACE ANKOMAH (WITH HIM KWESI FYNN) FOR THE 151 DEFENDANT.\r\nCECIL ADADEVOH ( WITH HIM MS. HELENA FRENCH ASA ) FOR THE 2ND TO 411/ DEFENDANTS.\r\n\r\n', '../links/cases/Document (225).pdf', 'Yes', 'AKUFFO (MS)JSC,BROBBEY JSC,ANSAH JSC,ADINYIRA (MRS)JSC, OWUSU (MS),JSC, ANIN-YEBOAH,JSC, GBADEGBE,JSC, AKOTO-BAMFO (MRS)JSC', '2010', 'supreme', '<i><b><font face="Times New Roman" size="3">Constitutional law - 1992 Constitution art.25 - Universal Declaration of Human Rights (UDHR) art.26 - Right to Education - Right subject to limitation - Whether fee paying policy in Public Universities is inconsistent with 1992 Constitution - Statutes - Construction - Art.25 of Constitution must be interpreted guided by Directive Principles in Art.38.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J1/5/2009', '', '', 'supreme', '2010-07-27', ''),
(579, 'ABII INTERNATIONAL SAVINGS & LOANS  VS. \r\nSAM AMOFA ADU', 'IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) ACCRA HELD ON MONDAY, THE 18TH DAY OF JULY 2016 BEFORE HER LADYSHIP JUSTICE AKUA SARPOMAA AMOAH (MRS.) ==============================================================  \r\nSUIT NO. RPC/415/14 \r\nABII INTERNATIONAL SAVINGS & LOANS AVENOR JUNCTION ACCRA         …   PLAINTIFF  \r\n                            VS. \r\nSAM AMOFA ADU (TRADING UNDER THE NAME & STYLE MY KINDNESS GAS ENTERPRISE) NEAR GLORYLAND SCHOOL LABANON-ASHIAMAN          …   DEFENDANT \r\n==============================================================  \r\nPARTIES:         -          DANIEL AMANKWA REPRESENTS PLAINTIFF \r\nDEFENDANT PRESENT  \r\nCOUNSEL:        -            EMMANUEL ASARE HOLDING BRIEF FOR CLAUDE OPPON FOR PLAINTIFF PRESENT   \r\n              YAW KYERE AMPEM HOLDING BRIEF FOR NANA AKWASI AWUAH FOR THE DEFENDANT PRESENT \r\n\r\nBY COURT:     The terms of settlement filed by the Parties on the 13th day of July, 2016 and duly executed by the Parties to the suit and their respective Counsel are hereby adopted as the judgment of this Court. \r\n                                                                          \r\n                                                                            [SGD]               MRS. AKUA SARPOMAA AMOAH JUSTICE OF THE HIGH COURT  aey/   ', 'links/cases/ABII INTERNATION SAVINGS AND LOANS VRS SAM AMOFA ADU.pdf', 'Yes', 'AKUA SARPOMAA AMOAH(MRS.), J', '2016', 'High Court', '', 'AKUA SARPOMAA AMOAH (MRS.), J', 'Civil', '', 'RPC/415/14 ', '', '', '', '2016-07-18', ''),
(580, 'ABRAHAM KUMA VRS. SELASE AKABUO        ', 'JUDGMENT: The Petitioner and Respondent were married under the Marriages Act 1884 – 1985 (Cap 127), at the Accra Metropolitan Assembly in Accra, on 22nd December 2012.     \r\nThe husband – Petitioner filed this Petition against the Respondent his wife seeking a dissolution of the marriage on the grounds that same has broken down beyond reconciliation. The Petitioner averred that both parties are Ghanaian citizens, with the Petitioner currently domiciled in the United States of America, and there are no issues of the marriage. That when the Respondent secured her visa, and Petitioner made travel arrangements for her to join him in March 2013, the Respondent’s attitude changed and she became cold towards him. He averred further that contrary to the Respondent’s assurances that the age difference between the parties was not a problem, when she came to the United States of America, she started to complain about the age difference.  That a previous application filed in the High Court when the marriage was barely two years was not granted by the Court. Petitioner further averred that in September 2013, when he was out of \r\n2  \r\na job for October 2013, the Respondent informed her family and she was asked to return to Ghana. That a result of the Respondent’s representations that she did not know when she will return to the United States of America, he was compelled to buy her a one way ticket to Ghana and she returned to Ghana. That all attempts to reconcile the marriage have not been successful.  \r\nThe Respondent who was served with the Petition entered appearance to same by Counsel and filed an answer.  By her answer she traversed the averments in the Petition and contended that the application brought by Petitioner in the High Court to for leave to commence divorce proceedings, was dismissed because the assertions made therein were untrue. She averred further that the age was never a problem initially. That the Petition was frivolous and pleaded estoppel per res judicata upon the basis that the present  Petition raises same or similar issues on the basis of which the previous application was dismissed. That it was the Petitioner who refused to arrange for her to go back to the United States after she completed her exams in the University of Ghana, as he was peeved by the dismissal of his application by the High Court. She averred that the marriage has not broken down beyond reconciliation.  \r\n The suit was set down for trial. The parties subsequently filed terms of settlement on 6th April 2014. Being a matrimonial causes matter, the Court heard evidence of both parties to satisfy itself as to whether or not the marriage had broken down beyond reconciliation in accordance with sections 2 (2) and (3) of the Matrimonial Causes Act 1971 (Act 367).  \r\nThe testimony of the Petitioner was given by his Attorney. The Attorney testified that he is a brother of Petitioner. He tendered the Power of attorney as Exhibit A.  According to his testimony, the Petitioner and Respondent were married in December 2012, and only lived together for nine months as Respondent joined the Petitioner in the United States of America in March 2013, and returned to Ghana in December 2013 and the parties have since lived apart.  He tendered the marriage certificate as Exhibit B.  He testified \r\n3  \r\nfurther that there are no issues of the marriage. That though she had earlier indicated that she was not worried about the age difference between the parties, after the marriage she became cold and started complaining about the age difference. The Petitioner was born in 1972 and the Respondent in 1989. That this age gap resulted in differences between the parties and all attempts at reconciliation were unsuccessful.  That he was one of a group of family members who went to the Respondent’s father to attempt a reconciliation to no avail. That since the age gap will not change, it is not possible to reconcile their differences and prayed the Court to dissolve the marriage.   \r\nThe Respondent testified that she lives at Maledjor in Accra, and that she and Petitioner were married in December 2012 and she joined Petitioner in the United States of America in March 2013, and returned to Ghana in December 2013 and the parties have since been living apart. She stated that the parties have already filed a settlement and prayed for a dissolution of the marriage.  \r\nThe testimony of both parties were not controverted by cross- examination as there was none from either party. It is trite that facts not disputed are deemed to be admitted. As I have no reason to disbelieve the testimony of either party, I accept the evidence of the parties as being the facts pertaining to the marriage. \r\nBy section 1 (2) of the Matrimonial Causes Act of 1971 (Act 367), the sole ground upon which an order for dissolution of a marriage can be made is that the marriage has broken down beyond re-conciliation. Section 2 (1) of the said Act however, requires that the Petitioner prove one or more of the facts set down in the said section. \r\nSection 2(1) (f) of Act 367, supra provide as follows; \r\n (f) that the parties to the marriage after diligent effort have been unable to reconcile their differences \r\nAfter hearing the testimony of both parties, I am satisfied that efforts at reconciliation have failed. I am satisfied that there is no possibility of reconciliation between the parties and that the marriage has indeed broken \r\n4  \r\ndown beyond reconciliation. In the Circumstances, it is therefore decreed that the marriage celebrated between the Petitioner and the Respondent on 22nd December 2012 and evidenced by Marriage Certificate No                                    be and is hereby dissolved forthwith on the ground that same has broken down beyond reconciliation. As the parties filed terms of settlement on 6th April 2016 by which a sum of Twelve Thousand Ghana Cedis (GHC 12, 000) was paid to the Respondent, there will be no further order for ancillary reliefs, and no order as to costs.  \r\n         (SGD) HAFISATA AMALEBOBA (MRS) JUSTICE OF THE HIGH COURT.  \r\nCOUNSEL: ABRAHAM AMALIBA ESQ FOR PETITONER  JEAN MAURELLET ESQ FOR RESPONDENT.      \r\n              ', 'links/cases/ABRAHAM KUMA V. SELASE AKABUO.pdf', 'Yes', '', '2016', 'high', '', 'HAFISATA AMALEBOBA (MRS), J', 'Civil', '', 'BDMC 231/2015 ', '', '', 'High Court, Accra', '2016-04-19', ''),
(581, 'AGRICULTURAL DEVELPOMENT BANK\r\n    VRS  \r\nFIIFFI QUARTEY', ' \r\nRULING  \r\nThe Plaintiff/Applicant by this Ex parte application seems to root this motion under Order 10 Rule (1) of the High Court (Civil Procedure) Rules, C.I 47 and seeks final judgment against the defendant for his failure to enter appearance and file a defence upon service of the writ of summons and the statement of claim. When the application came on for hearing the court indicated to the counsel for the applicant that the present applicant was incompetent as not mandated by the rules of procedure. Counsel nonetheless, contested this claim and the court adjourned to give a reasoned ruling for describing the application as defective. The reasons of the court is provided as follows:  \r\nThe plaintiff claims for a liquidated sum being loans advanced to the defendant that Plaintiff contends defendant has defaulted in repayment. This should ordinarily bring it within the scope of order 10 Rule 1 (1) of C. I. 47 which states as follows:  \r\n “Where the plaintiff’s claim against the defendant is for a liquidated demand only, and the defendant fails to file appearance, the plaintiff may, after the time limited for appearance only to enter final judgment against the defendant for a sum not exceeding that claimed by the writ and for costs and proceed with the action against other defendants, if any” \r\n \r\n2  \r\n  At first glance, one would be tempted to conclude that the present action has justly and truly been mounted in pursuance of this rule quoted supra. But this suit is not just an action for recovery of monies due and owed. It is a mortgage action and mortgage actions have their own special rules and procedure that an applicant must follow when seeking a judgment in default of appearance. Counsel denied that his action is a mortgage action. What then is a mortgage action becomes crucial for determination in knowing if the present suit is one or not. Section 1 of the Mortgages Act, NRCD 96 defines what a mortgage is in law as follows:  \r\n “A mortgage … is a contract charging immovable property as security for the due repayment of debt and any interest accruing thereon or for the performance of some other obligation for which it is given, in accordance with the terms of the contract”  \r\nAnd Black’s Law Dictionary, 9th Ed defines Mortgage as a:  \r\n “lien against property that is granted to secure an obligation such as a debt and that is extinguished upon payment or performance according to stipulated terms”  \r\nAnd section 2 of the Mortgages Act notes that every transaction which is in substance a mortgage of immovable property whether expressed as mortgage, charge, pledge of title documents, outright conveyance, trust for sale on condition, lease, hire purchase, conditional sale, sale with right of repurchase or in any other manner, shall be deemed to be a mortgage of immovable property.  \r\nThe last relief of plaintiff is for an order for the judicial sale of residential property located at Sakumono, Tema in the Greater Accra Region. And how did plaintiff become vested with the cause to ask for a judicial sale of an immovable residential property? This can be found by paragraph 6 of the averment of plaintiff in his statement of claim wherein he states that:  \r\n“Plaintiff claims that as security for the loans, Defendant executed a deed of mortgage in favour of plaintiff over residential property situate at Sakumono estates”  \r\n \r\n3   \r\nThis clearly from plaintiff’s own case before the court is that he gave out loans and as security for the loans, there was a charge of immovable property at Sakumono. He describes it as a mortgage and even if he had not by section 2 of the Mortgages Act, supra such a transaction is a mortgage action. Rule 1(2) of Order 59 of the High Court (Civil Procedure) Rules also defines a mortgage action as:  \r\n“mortgage action” means an action in which there is a claim by the plaintiff for any of the following relief’s:  \r\n(a) Payment of moneys secured by a mortgage or charge (b) Sale of the mortgage property (c) Appointment of a receiver (d) Delivery of possession to the mortgagee or person entitled to the charge by the mortgagor or persons having the property subject to the charge or by any other person who is or is alleged to be in possession of the property; (e) Release of the property from the security (f) Delivery of possession by the mortgagee  \r\nThis is an action for payment of monies secured by a mortgage property at Sakumono or in the alternative order for the sale of the mortgage property. The action is within the four corners of (a) and (b) of the Rule 1 of Order 59 quoted supra. It is therefore not correct for counsel to suggest that the claim is not a mortgage action.   \r\nWhat then is the procedure for seeking judgment in a mortgage action when a defendant fails to file an appearance before the court.  \r\nThe answer is provided for by the Order 59 of the High Court Civil Procedure Rules, C. I. 47. Rule 5 states that:  \r\n“(1) In a mortgage action, judgment in default of appearance or in default of defence shall not be entered except with leave of the Court.  \r\n(2) Notice of an application for the grant of leave under this rule shall be served on the defendant”. \r\n \r\n4   \r\nThe applicant came by motion ex parte that clearly sin against the provisions supra as where the rules call for an application on notice an applicant  cannot disregard that and makes it ex parte without any just cause shown to the court.  \r\nBesides, the application was bedeviled with other substantial challenges such that even if the application had been on notice the court cannot ignore those deficiencies and grant the applicant its prayers. The writ of the plaintiff is within sections 15 and 18 of the Mortgages Act, NRCD 96 as it has sued the mortgagor for the performance of its obligations under the contract or for a judicial sale. If that is the case, then an action brought within the scope of sections 15, 16, 17, 18 and 20 of the Mortgages Act must fully comply with Rule 3 of order 59 with regard to some particulars that must be evident in the statement of claim as the rule states:  \r\n“Every statement of claim in a moneylenders or mortgage action shall state  \r\n(a) The date on which the loan  was made (b) The actual amount granted to the borrower (c) The percentage of interest charged (d) The date in which the contract for repayment was made (e) Evidence of a note or memorandum of contract with the borrowers signature (f) The date it was made and the date a copy of same was delivered or sent to the borrower (g) The amount repaid (h) The amount due but unpaid (i) The date the unpaid amount became due (j) The amount of interest accrued, due and unpaid on the sum”  \r\nExamining plaintiff’s claim I reckon that the plaintiff only complied with (a), (b) and  (c). There is no evidence of a memorandum of contract with the defendant/mortgagor’s signature on, the applicant has not shown how much the defendant/mortgagor has repaid, the principal amount unpaid, the amount of interest accrued and due and unpaid. It is therefore not for nothing that the court aptly described the application as \r\n \r\n5  \r\nirredeemably and incurably incompetent. The application for the reasons provided is accordingly dismissed.     \r\n     \r\n(Sgd) Eric K. Baffour, Esq. Justice of the High Court   ', 'links/cases/ADB v FIIFI QUARTEY.pdf', 'Yes', '', '2016', 'High Court, Acc', '', 'ERIC K. BAFFOUR, J', 'high', '', 'BFS/205/2015', '', '', 'High Court, Accra', '2016-02-04', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(578, 'ABI/KOFI OWUSU BOATENG TEMA, NEWTOWN    VRS:   1. THE CHIEF OF DEFENCE STAFF 2. THE ATTORNEY-GENERAL  ', '1   \nIN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, GHANA IN ACCRA ON MONDAY THE 12TH DAY OF OCTOBER, 2016 BEFORE HER LADYSHIP DORIS BEMPONG (MRS. ) HIGH COURT JUDGE  \nSUIT NO. BMISC 402/2013  \nABI/KOFI OWUSU BOATENG TEMA, NEWTOWN      : PLAINTIFF              VRS:  \n1. THE CHIEF OF DEFENCE STAFF 2. THE ATTORNEY-GENERAL    :   DEFENDANTS \n\nPlaintiff’s claim in this matter against the Defendant which was filed on 22/2/2013 is for: 1. A declaration that the circumstances surrounding the decision to release the Plaintiff from the Ghana Armed Forces were most unfair since he was very innocent and therefore, his discharge was wrongful.  \n2. A further declaration that after having detained the Plaintiff for the alleged offence for three months, the decision to release him amounted to double jeopardy and therefore unconstitutional.   \n2  \n3. General damages for the wrongful release from the Ghana Armed Forces.  \n4. Cost.  \nPlaintiff was enlisted in the Ghana Armed Forces on 27/1/2006 and was posted to the Ghana Navy where he served until his release from the Armed Forces in August 2012.   \nThe release, according to Plaintiff was based on an allegation that he did not properly account for a weapon that was released him for duty. He claimed that despite his innocence, he was tried and detained in custody for 90 days. He was subsequently released from the Armed Forces and this the Plaintiff claim amounts to punishing him twice for the same offence. The Plaintiff says that this is double jeopardy and it sins against the constitution.   \nThe Defendants filed a Statement of Defence which they subsequently amended to say that the Plaintiff was not entitled to any of the reliefs being sought in his Statement of Claim.  \nAccording to Defendants, the Plaintiff was indeed enlisted in the Army and posted to the Navy and was based at the Naval Base, Tema as an armourer.  \nAccording to Defendants, on 27/3/12, Command of the Naval Base, Tema, received a signal from the Naval Headquarters that an M16 Carbine Rifle with serial number, A00057681 had been received from some armed robbers by the police and the inscription on the rifle showed that it belonged to the Naval Base, Tema. A Search was conducted in the armoury and temporal log books of the base. \n3  \nThe Search revealed that even though the rifle had been signed off as returned, it was not physically present in the armoury.  \nThe base ordered an investigation which revealed that the last person to have signed for the rifle was the Plaintiff herein on the 27/2/2012. The “sign-off” column of the temporal log book however had a different signature from the one in the “sign in” column. Further checks indicated that the signature in the sign off column belong to DW2, OS BAAH.  \nIt is the case of the Defendant that a Board of Inquiry was consequently constituted with the main mandate to find out the circumstances that led to the disappearance of the rifle and the culprit.  \nUpon completion of its work, the Board of Inquiry determined that the Plaintiff and the armourer on duty on the day in question i.e. One AB ALISI should be held responsible for the disappearance of the rifle and to be duly punished.   \nA Disciplinary Committee was set up and it recommendation the charging and trial of the two officers with 2 counts of the offence of negligence to the prejudice of good order and discipline contrary to section 54 of the Armed Forces Act 1962 (Act 105).  \nThe Plaintiff was tried by a Disciplinary Committee and found guilty on both counts and was sentenced to 90 days detention which he served.  \nAccording to the Defendant, the Ghana Armed Forces, the employer of the Plaintiff upon considering the circumstances surrounding the incident and the magnitude of the offence for which \n4  \nPlaintiff had been found guilty, took a decision to release the Plaintiff from the service. The employer was of the opinion that it was in the best interest of the Armed Forces since the Plaintiff’s position as an armourer was a sensitive one and if he couldn’t be trusted to properly account for a single rifle, he could not be trusted with a full armoury filled with firearms.  \nThis decision they said was an administrative one and not a punitive measure. His release came with his due benefits being paid to him.  \nAt the close of pleadings, the issues set down for determination were: i.  Whether or not the Plaintiff was duly tried by the Armed Forces. ii. Whether or not the release of the Plaintiff from the Armed Forces amounted to double jeopardy. iii. Whether or not indeed Plaintiff committed an offence. iv. Any other relief arising from the pleadings.  \nThe Armed Forces Act 1962 (Act 105) mandates the Armed Forces to investigate and prosecute any of its employees for offences committed under the Act and in accordance with due process.  \nFrom the pleadings of both parties, when the disappearance of the M16 rifle was detected, investigation were conducted and a Board of Inquiry set up to go into the matter. Upon the completion of the work of the Board of Inquiry, a disciplinary Committee was set up with the mandate of trying the Plaintiff and one AB1 Alisi, who were believed to be responsible for the said disappearance of the rifle.  \n5  \nIndeed, the Plaintiff was tried, found guilty and sentenced to a 90 day detention. A sentence which the Plaintiff served. Plaintiff did not appeal against the conviction and sentence and did not question the authority of the Armed Forces to try him.  \nIt is worthy to note that the Plaintiff was charged under section 54 of the Armed forces Act 105. Section 54(1) provides that: “Any act, disorder or neglect to the prejudice of good order and discipline shall be an offence and any person convicted thereof shall be liable to dismissal with disgrace from the Armed Forces or to any less punishment provided by this Act”.  \nSubsection(3) of section 54 goes further to describe what constitutes an act conduct, disorder or neglect to the prejudice of good order and discipline as follows: (3)  An act or omission constituting an offence under section 13 or          a contravention by a person of; (a)    Any provision at this Act. (b)    Any regulations published for the general information and           guidance of the Armed Forces to which that person belongs or            to which he is attached or seconded; or  (c) Any general, garrison, unit, section, standing, local or other orders, shall be an act, conduct disorder or neglect to the “prejudice of good order and discipline”.  \nIn the Court’s view, all due processes were followed in the investigation, trial and conviction of the Plaintiff and conviction of the Plaintiff that cannot be faulted.  \n6  \nThe military did what it had power to do and judiciously too. The summary trial was in conformity with the provisions of Act 105 as amended by Armed Forces Law 1983, specifically section 63(1) which provides for the constitution of the disciplinary committee. He was therefore properly tried and convicted.   \nThe Plaintiff as part of his claim wishes the court to declare that his subsequent release for the Armed Forces was most unfair and amounts to double jeopardy.  \nThe criminal code 1960 Act 29 at section 9 provides that; “A person cannot be punished twice for the same offence”.  \nIt is not the law that he cannot be punished twice for the same act.  The legal principle of double jeopardy is one that has been established as a common law principle that ensures that a person must not be punished or vexed twice for the same wrong doing.  The principle of double jeopardy may avail a person where an attempt is made to prosecute a person for an offence for which he has already been prosecuted and either found guilty or acquitted. The person must have been through the rigors of a prosecution on which final judgment has been passed.   \nIn the case of REPUBLIC VRS: THOMAS (1950) 33 CR APPL R. 200: HUMPHERY J stated: “It is not the law that a person shall not be punished twice for the same act. No one has ever said so. In any case, the Interpretations Act does not say so. What the Act says is that a person shall not be liable to be punished twice for the same offence.”  \n7  \nThe dictum was quoted in the Ghanaian case of ABABIO VRS: REPUBLICE (1972) 1 GLR @ 344.  \nThe elements to look out for in double jeopardy is for there to have been a legitimate prosecution which was final. Therefore, where a person has undergone the ordeal of a trial at which a verdict has been pronounced by a court of competent jurisdiction, whether found guilty or not should not be vexed by another trial but left undisturbed to lead a normal life.  \nIn the present case, the Plaintiff was charged with 2 counts of the offence of conduct to the good order and discipline contrary to section 54 of the Armed Forces Act 105 and was duly tried by the Disciplinary Board which found him guilty and sentenced him accordingly.  \nThe Armed Force considering the gravity of the circumstances surrounding the whole incident and the offence were of the view that it was not in their best interest of maintaining order and discipline within the ranks to release the Plaintiff.  \nI am also of the opinion that given his position as an armourer, his employers must be certain of the utmost discipline and trustworthiness of their employee. Where they are not sure that they can completely trust the employee, they have every right to terminate his employment with full benefits.  \nThis release or discharge from the Army is only an administrative action and does not carry any sanctions. The Plaintiff was released and paid his entitlements/gratuity in full in accordance with article 206. 85 of the Armed Forces Regulations 1970 (C.I. 12. \n8  \nIf the Armed Forces had intended to punish the Plaintiff, they would have dismissed him summarily without any gratuity. In the light of the foregoing this Court is of the view that the Plaintiff has not been able to adequately prove his case against the Defendants and that the claims against the Defendants are (UNMERITUOUS).  \nThe claims of the Plaintiff are therefore dismissed and judgment is entered for the Defendants. No Order is made as to costs.  \nParties:   Plaintiff absent.       Defendant present   \nCounsel: Augustine Asafo Adjei for Respondent present.       Cynthia Ofori for the Defendant.   \n  H/L DORIS BEMPONG MRS. JUSTICE OF THE HIGH COURT                              \n9  \n ', '../links/cases/ABI KOFI OWUSU BOATENG.pdf', 'Yes', 'DORIS BEMPONG (MRS. ), J', '2016', 'High Court', '1   \nIN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, GHANA IN ACCRA ON MONDAY THE 12TH DAY OF OCTOBER, 2016 BEFORE HER LADYSHIP DORIS BEMPONG (MRS. ) HIGH COURT JUDGE  \nSUIT NO. BMISC 402/2013  \nABI/KOFI OWUSU BOATENG TEMA, NEWTOWN      : PLAINTIFF              VRS:  \n1. THE CHIEF OF DEFENCE STAFF 2. THE ATTORNEY-GENERAL    :   DEFENDANTS \n\nPlaintiff’s claim in this matter against the Defendant which was filed on 22/2/2013 is for: 1. A declaration that the circumstances surrounding the decision to release the Plaintiff from the Ghana Armed Forces were most unfair since he was very innocent and therefore, his discharge was wrongful.  \n2. A further declaration that after having detained the Plaintiff for the alleged offence for three months, the decision to release him amounted to double jeopardy and therefore unconstitutional.   \n2  \n3. General damages for the wrongful release from the Ghana Armed Forces.  \n4. Cost.  \nPlaintiff was enlisted in the Ghana Armed Forces on 27/1/2006 and was posted to the Ghana Navy where he served until his release from the Armed Forces in August 2012.   \nThe release, according to Plaintiff was based on an allegation that he did not properly account for a weapon that was released him for duty. He claimed that despite his innocence, he was tried and detained in custody for 90 days. He was subsequently released from the Armed Forces and this the Plaintiff claim amounts to punishing him twice for the same offence. The Plaintiff says that this is double jeopardy and it sins against the constitution.   \nThe Defendants filed a Statement of Defence which they subsequently amended to say that the Plaintiff was not entitled to any of the reliefs being sought in his Statement of Claim.  \nAccording to Defendants, the Plaintiff was indeed enlisted in the Army and posted to the Navy and was based at the Naval Base, Tema as an armourer.  \nAccording to Defendants, on 27/3/12, Command of the Naval Base, Tema, received a signal from the Naval Headquarters that an M16 Carbine Rifle with serial number, A00057681 had been received from some armed robbers by the police and the inscription on the rifle showed that it belonged to the Naval Base, Tema. A Search was conducted in the armoury and temporal log books of the base. \n3  \nThe Search revealed that even though the rifle had been signed off as returned, it was not physically present in the armoury.  \nThe base ordered an investigation which revealed that the last person to have signed for the rifle was the Plaintiff herein on the 27/2/2012. The “sign-off” column of the temporal log book however had a different signature from the one in the “sign in” column. Further checks indicated that the signature in the sign off column belong to DW2, OS BAAH.  \nIt is the case of the Defendant that a Board of Inquiry was consequently constituted with the main mandate to find out the circumstances that led to the disappearance of the rifle and the culprit.  \nUpon completion of its work, the Board of Inquiry determined that the Plaintiff and the armourer on duty on the day in question i.e. One AB ALISI should be held responsible for the disappearance of the rifle and to be duly punished.   \nA Disciplinary Committee was set up and it recommendation the charging and trial of the two officers with 2 counts of the offence of negligence to the prejudice of good order and discipline contrary to section 54 of the Armed Forces Act 1962 (Act 105).  \nThe Plaintiff was tried by a Disciplinary Committee and found guilty on both counts and was sentenced to 90 days detention which he served.  \nAccording to the Defendant, the Ghana Armed Forces, the employer of the Plaintiff upon considering the circumstances surrounding the incident and the magnitude of the offence for which \n4  \nPlaintiff had been found guilty, took a decision to release the Plaintiff from the service. The employer was of the opinion that it was in the best interest of the Armed Forces since the Plaintiff’s position as an armourer was a sensitive one and if he couldn’t be trusted to properly account for a single rifle, he could not be trusted with a full armoury filled with firearms.  \nThis decision they said was an administrative one and not a punitive measure. His release came with his due benefits being paid to him.  \nAt the close of pleadings, the issues set down for determination were: i.  Whether or not the Plaintiff was duly tried by the Armed Forces. ii. Whether or not the release of the Plaintiff from the Armed Forces amounted to double jeopardy. iii. Whether or not indeed Plaintiff committed an offence. iv. Any other relief arising from the pleadings.  \nThe Armed Forces Act 1962 (Act 105) mandates the Armed Forces to investigate and prosecute any of its employees for offences committed under the Act and in accordance with due process.  \nFrom the pleadings of both parties, when the disappearance of the M16 rifle was detected, investigation were conducted and a Board of Inquiry set up to go into the matter. Upon the completion of the work of the Board of Inquiry, a disciplinary Committee was set up with the mandate of trying the Plaintiff and one AB1 Alisi, who were believed to be responsible for the said disappearance of the rifle.  \n5  \nIndeed, the Plaintiff was tried, found guilty and sentenced to a 90 day detention. A sentence which the Plaintiff served. Plaintiff did not appeal against the conviction and sentence and did not question the authority of the Armed Forces to try him.  \nIt is worthy to note that the Plaintiff was charged under section 54 of the Armed forces Act 105. Section 54(1) provides that: “Any act, disorder or neglect to the prejudice of good order and discipline shall be an offence and any person convicted thereof shall be liable to dismissal with disgrace from the Armed Forces or to any less punishment provided by this Act”.  \nSubsection(3) of section 54 goes further to describe what constitutes an act conduct, disorder or neglect to the prejudice of good order and discipline as follows: (3)  An act or omission constituting an offence under section 13 or          a contravention by a person of; (a)    Any provision at this Act. (b)    Any regulations published for the general information and           guidance of the Armed Forces to which that person belongs or            to which he is attached or seconded; or  (c) Any general, garrison, unit, section, standing, local or other orders, shall be an act, conduct disorder or neglect to the “prejudice of good order and discipline”.  \nIn the Court’s view, all due processes were followed in the investigation, trial and conviction of the Plaintiff and conviction of the Plaintiff that cannot be faulted.  \n6  \nThe military did what it had power to do and judiciously too. The summary trial was in conformity with the provisions of Act 105 as amended by Armed Forces Law 1983, specifically section 63(1) which provides for the constitution of the disciplinary committee. He was therefore properly tried and convicted.   \nThe Plaintiff as part of his claim wishes the court to declare that his subsequent release for the Armed Forces was most unfair and amounts to double jeopardy.  \nThe criminal code 1960 Act 29 at section 9 provides that; “A person cannot be punished twice for the same offence”.  \nIt is not the law that he cannot be punished twice for the same act.  The legal principle of double jeopardy is one that has been established as a common law principle that ensures that a person must not be punished or vexed twice for the same wrong doing.  The principle of double jeopardy may avail a person where an attempt is made to prosecute a person for an offence for which he has already been prosecuted and either found guilty or acquitted. The person must have been through the rigors of a prosecution on which final judgment has been passed.   \nIn the case of REPUBLIC VRS: THOMAS (1950) 33 CR APPL R. 200: HUMPHERY J stated: “It is not the law that a person shall not be punished twice for the same act. No one has ever said so. In any case, the Interpretations Act does not say so. What the Act says is that a person shall not be liable to be punished twice for the same offence.”  \n7  \nThe dictum was quoted in the Ghanaian case of ABABIO VRS: REPUBLICE (1972) 1 GLR @ 344.  \nThe elements to look out for in double jeopardy is for there to have been a legitimate prosecution which was final. Therefore, where a person has undergone the ordeal of a trial at which a verdict has been pronounced by a court of competent jurisdiction, whether found guilty or not should not be vexed by another trial but left undisturbed to lead a normal life.  \nIn the present case, the Plaintiff was charged with 2 counts of the offence of conduct to the good order and discipline contrary to section 54 of the Armed Forces Act 105 and was duly tried by the Disciplinary Board which found him guilty and sentenced him accordingly.  \nThe Armed Force considering the gravity of the circumstances surrounding the whole incident and the offence were of the view that it was not in their best interest of maintaining order and discipline within the ranks to release the Plaintiff.  \nI am also of the opinion that given his position as an armourer, his employers must be certain of the utmost discipline and trustworthiness of their employee. Where they are not sure that they can completely trust the employee, they have every right to terminate his employment with full benefits.  \nThis release or discharge from the Army is only an administrative action and does not carry any sanctions. The Plaintiff was released and paid his entitlements/gratuity in full in accordance with article 206. 85 of the Armed Forces Regulations 1970 (C.I. 12. \n8  \nIf the Armed Forces had intended to punish the Plaintiff, they would have dismissed him summarily without any gratuity. In the light of the foregoing this Court is of the view that the Plaintiff has not been able to adequately prove his case against the Defendants and that the claims against the Defendants are (UNMERITUOUS).  \nThe claims of the Plaintiff are therefore dismissed and judgment is entered for the Defendants. No Order is made as to costs.  \nParties:   Plaintiff absent.       Defendant present   \nCounsel: Augustine Asafo Adjei for Respondent present.       Cynthia Ofori for the Defendant.   \n  H/L DORIS BEMPONG MRS. JUSTICE OF THE HIGH COURT                              \n9  \n ', 'DORIS BEMPONG (MRS. ), J', 'Civil', '', 'BMISC 402/2013', 'DORIS BEMPONG (MRS. ), J', '', '', '2016-10-10', ''),
(582, 'AGRICULTURAL DEVELOPMENT BANK LTD.\r\nVRS  \r\n1. RENAIZANCE SUPPLY CHAIN LTD. TEMA  \r\n2. CHARLES SENYO YOUNG ACCRA  \r\n3. KENNETH KPEDOR    ====        DEFENDANTS/RESPONDENTS  ACCRA  ', '  \r\nRULING  \r\nOn June 28, 2016, this Court granted the application on notice for mandatory injunction filed by the Plaintiff/Applicant (hereinafter, the “Plaintiff”) and reserved its reasons for today, which I proceed to give. \r\n[1] PROCEDURAL BACKGROUND \r\nThe Plaintiff is a bank duly registered under the laws of the Republic of Ghana.  The 1st Defendant is a customer of the Plaintiff bank and has its registered office in the Greater Accra Region of the Republic of Ghana.  On 5th August, 2015, the Plaintiff \r\n2  \r\ntook out a writ of summons at the registry of this court claiming the following reliefs against the Defendants: \r\ni. Recovery of the sum of GH¢3,385,156.71 (Three Million, Three Hundred and Eighty-five Thousand, One Hundred and Fifty-six Ghana Cedis Seventy-one Pesewas) against the Defendants jointly and severally. ii. Interest on the said sum of GH¢3,385,156.71 (Three Million, Three Hundred and Eighty-five Thousand, One Hundred and Fifty-six Ghana Cedis Seventy-one Pesewas) from 3rd August, 2015 at the rate of 40% per annum till date of final payment against the Defendants jointly and severally. iii. An Order directed at the 1st Defendant to immediately return or re-deliver the Leased Assets to the Plaintiff by sending same to Plaintiff’s Warehouse at Adenta on the Adenta Aburi road near Geowags Limited. iv. Costs inclusive of solicitors’ fees. \r\nSubsequent to the issuance of this writ, the Plaintiff has brought the instant application under Order 25 of the High Court (Civil Procedure) Rules, 2004 (CI 47), for an order of mandatory injunction directed at the 1st Defendant to immediately return or to re-deliver to the Plaintiff the twenty-two (22) tractor heads and trailers it leased out to the Defendants, (hereinafter, the “Leased Assets”).  Accompanying the Application is an Affidavit and a Statement of Case filed on Plaintiff’s behalf by its Solicitor, Mr. Bannerman Williams, Jnr., of Sackodar Chambers setting out the grounds for the prayer and also urging the Court to grant the application.  The Defendants resist the grant of this application in the affidavit in opposition filed by the 3rd Defendant on their behalf on the ground that the application cannot be supported in law as it will be unfair to order the 1st Defendant to return the Leased Assets. \r\n3  \r\n[2] ARGUMENTS OF THE PARTIES: \r\nPlaintiff claims that it entered into a finance lease of some twenty-two (22) tractor heads and tractor trailers with the Defendants on or about July 23, 2015, (hereinafter, the “Finance Lease”).  According to the Plaintiff, by the terms of the Finance Lease, the lease term was for six (6) months and the payment of the lease rental was to be by bullet payment.  It is the further claim of the Plaintiff that it was agreed in the Finance Lease that the Leased Assets would remain the property of the Plaintiff while the Defendant was to have no right or interest therein otherwise than as lessee.  Plaintiff alleges that as a result of the persistent default by the 1st Defendant in the repayment of the lease, the Plaintiff terminated the Finance Lease on July 8, 2015 and demanded, inter alia, the return of the Leased Assets to the Plaintiff at such place as it may appoint in good working order and condition (fair war and tear excepted), as provided for in the Finance Lease.  The Plaintiff, however, claims that the 1st Defendant has ignored all the demands made on it by the Plaintiff for the return of the said Leased Assets.  It further alleges that all efforts by the Plaintiff to trace and repossess the Leased Assets have proven futile.   \r\nOn account of the foregoing facts, Plaintiff argues that the only legal strand that connected the Defendant to the Leased Assets, the Finance Lease, has since been terminated, the Defendant has effectively been stripped of any legal basis for the wrongful continuous detention and or use of the said Leased Assets.  Plaintiff further argues that the Leased Assets are of a wasting nature, suffering increasing depreciation in their values with each passing day the 1st Defendant continues to use them. Plaintiff, therefore, contends that unless ordered by this Honourable Court, the Defendants will not return or redeliver the Leased Assets to it. \r\n4  \r\nThe Defendants oppose the grant of this application for the reasons set out below.  It is the case of the Defendant that after taking possession of the Leased Assets, the 1st Defendant realised they were not in the condition which the Plaintiff and the 1st Defendant believed they were at the time of negotiations.  Thus, the contract was entered into as a result of a mistake and/or a misrepresentation of the state of the Leased Assets.  It is the Defendants further claim that the said mistake and/or misrepresentation caused the 1st Defendant to incur unexpected expenditure, which state of affairs was communicated to the Plaintiff.  The Defendants further contend that the relationship between the parties was originally envisaged as one of outright sale and purchase agreement and its subsequent conversion into a loan by the Plaintiff Bank was done contrary to law and same is void and of no effect.  The 1st Defendant, has since, successfully secured equity partnership, partly in order to help settle its indebtedness to the Plaintiff Bank, according to the Defendants.  For the foregoing reasons, therefore, the Defendants argue that it will be unfair to order the 1st Defendant to return the Leased Assets and the application for the mandatory injunction cannot be supported in law. \r\n[3] ANALYSIS AND OPINION OF THE COURT: \r\nOrder 25 r 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47) states that: \r\n “[t]he court may grant an injunction by an interlocutory order in all cases in which it appears to the court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the court considers just.”  \r\n It is trite that an injunctive order is an equitable remedy and it lies only within the discretion of the court to decide whether or not to grant same.  Yet, the court shall \r\n5  \r\nonly grant it upon carefully considering the justness and convenience of the order requested for.   \r\nIn Halsbury’s Laws of England Vol. 24, 4th edition, paragraph 819 at page 429 it is stated that:   \r\n“the words just and convenient in the statutory provision do not mean that the court can grant an injunction simply because it thinks it convenient but mean that it should grant an injunction for the protection of the rights or the prevention of injury according to legal principles.  They confer neither arbitrary nor unregulated discretion on the court, and do not authorise it to invent new modes of enforcing judgments in substitution for ordinary modes.” \r\nIn that regard, an injunctive order would only be granted where there is a legal right that can be asserted either at law or in equity, for the protection of such a right.  The Applicant must, prima facie, demonstrate, therefore, a legal right that is in danger of continuous threat if the status quo ante was or was not to be maintained.  Also, the Applicant is to demonstrate that, on the balance of convenience, irreparable damage shall be caused to him or her if that legal right was not protected for the time being.  See the case of PUNJABI BROTHERS v. NAMIH (1958) 3 WALR 381.  This further principle, in the case of FRIMPONG v. NANA ASARE OBENG II, [1974] 1 GLR 16, was proposed in the following terms, that is, the Court must also consider the  \r\n“… hardship that would be caused if the application is granted or refused; in other words, the relative convenience or inconvenience which might result to the parties from granting or withholding an interlocutory injunction…”.   \r\n6  \r\nThe basic purpose of interim injunctions is, as was discussed in the Supreme Court case of ODONKOR v. AMARTEI (1987-1988) GLR 578, to hold the balance evenly between the parties pending the final resolution, as much as is possible, of matters in difference between them, and also to ensure that the victory of the successful party is not rendered nugatory or one that brought him more problems than blessings.  In the English case of AMERICAN CYANAMID CO. LTD v. ETHICON LTD (1985) AC 396, applied by the Court of Appeal in the local case of VANDERPUYE v. NARTEY (1977) GLR 428, at 431, Lord Diplock advanced the opinion that where the court was considering the application for interim injunction while the substantive suit was still pending for determination on its merits, it was more appropriate for the court, at that stage of the litigation, to resolve the conflict between the parties on the affidavit evidence before it and refrain from making pronouncements which would pre-determine the issues for trial.  Amissah, JA, stated in VANDERPUYE v. NARTEY, supra, that: \r\n“[T]he governing principle should be whether on the face of the affidavits there is need to preserve the status quo in order to avoid irreparable damage to the applicant and provided his claim is not frivolous or vexatious”. \r\nPlaintiff asserts that it is the legal owner of the Leased Assets, which assertion is not denied by the Defendants.  Defendants also do not deny Plaintiff’s further assertion that the Finance Lease, the agreement on the strength of which the 1st Defendant came to be in possession of the Leased Assets has been terminated, for which reason the 1st Defendant has no legal basis to keep the Leased Assets..  Yet, the Defendants on the other hand deny that by the terms of the Finance Lease, the 1st Defendant is required to return the Leased Assets to the Plaintiff and rather claim that the Finance Lease was executed ultra vires the law and therefore of no effect. Thus, there are \r\n7  \r\nserious issues to be tried between the parties, as to whether or not the Plaintiff is entitled to its reliefs as claimed on the writ of summons.  Considering the pleadings and the affidavit evidence before me, I find, therefore, that the claim of the Plaintiff is neither frivolous nor vexatious.   \r\nAs stated earlier, where the court takes the view that the case was neither frivolous nor vexatious, the court must then proceed to determine the application for the interlocutory injunction by considering the balance of convenience as between the parties. \r\nIn considering the balance of convenience, I must, however, first determine what is the status quo currently existing as between the parties.  From the affidavit evidence before me, it is a fact that the Leased Assets which are the legal property of the Plaintiff are currently in the possession of the 1st Defendant.  Further, the Plaintiff has terminated the Finance Lease because of the persistent default of the 1st Defendant in making the agreed rental payments for the use of the Leased Assets.  The Defendants do not deny these assertions, yet they insist on keeping the Leased Assets.  What will happen to the legal right of the Plaintiff in the Leased Assets if the status quo ante is maintained?  The foregone conclusion is, while these Leased Assets remain in the possession of the 1st Defendant, the Plaintiff is being denied the funds which would have accrued to it from hiring out the equipment to other potential or prospective customers.  Plaintiff, seeks to protect its proprietary/ownership interest in the Leased Assets against the danger of the continuous threat of depreciation physically and/or in value of the Leased Assets and limit its inability to realise the rents from the Leased Assets while they remain in the possession of the Defendants and while the substantive suit has not been heard.    \r\n8  \r\n[4] CONCLUSION \r\nI find that Plaintiff’s apprehension that should the Court refuse to grant it this interlocutory injunction, the Leased Assets will suffer a depreciation physically and/or in their value is real.  These assets are of a depreciating nature and while they are in the possession of the 1st Defendant, nothing prevents the 1st Defendant from continuing to use them to advance its business activities, while at the same time failing to make any financial payments to the Plaintiff for their continued use.  It is my opinion, then, that the Plaintiff stands to suffer more hardship by the continued retention of the Leased Assets in the possession of the Defendants.  What would the Defendants, on the other hand, suffer if the interlocutory injunction is granted?  To my mind, the Defendants stand to lose the benefit of working with the Leased Assets, assets they admit they do not own and whose continued use they do not deny failing to pay for.  In other words, the Defendants stand to lose nothing that rightfully belongs to them if the interlocutory injunction is granted.    The foregoing brings to mind what the Supreme Court said in the case of IN RE YENDI SKIN AFFAIRS; YAKUBU II v. ABUDULAI [1984-86] 2 GLR 231-238, that: “the courts had consistently operated on the principle that where two parties were litigating, every care must be taken to ensure that the party who eventually won did not find his judgment useless in his hands.  Hence, at first instance, there were rules for interim preservation of the subject of litigation, and for injunction to prevent waste.  At the same time the courts have tried to hold the balance evenly between the parties so that one did not take undue advantage of the other during the course of the litigation.  Those principles have been \r\n9  \r\napplied, subject to the balance of the convenience in a particular situation and to the hardship which the making or the refusal of an order might have on one or the other of the parties.”    \r\nIn considering the competing claims of the parties in the light of the evidence before me and on the balance of convenience, therefore, I am of the view that it shall be rather unjust and/or inconvenient to maintain the status quo as between the parties.  I also find that taking into consideration the peculiar circumstances of this case, the Plaintiff will not be adequately compensated for in damages, should the court refuse to grant the interlocutory injunction pending the final determination of the suit.  In the AMERICAN CYANAMID CO. LTD v. ETHICON LTD case, supra, the court stated at page 509 thus:  \r\n“The object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the Plaintiff’s need for such protection must be weighed against the corresponding need of the Defendant to be protected against injury resulting from him having been prevented from exercising his own legal rights for which he could not be adequately compensated under the Plaintiff’s undertaking  in damages if the uncertainty were resolved in the Defendant’s favour at the trial.”  \r\nAfter giving my thoughtful consideration to the rival contentions put forward by the parties to the suit in the light of the relevant provisions of the C.I 47, the case law and the principles underlying the grant or otherwise of an interlocutory injunction, I \r\n10  \r\nconclude that it would rather be fair to grant the Plaintiff the order of mandatory injunction prayed for, directed at the 1st Defendant to immediately return or to redeliver to the Plaintiff the Leased Assets.  The Court grants this order with a view to preserve the security and the integrity of the Leased Assets, they being of a wasting nature, to protect them from depreciating physically and/or in value and to prevent further financial loss to the Plaintiff, which may be occasioned by the failure of the 1st Defendant to make the agreed rental payments for the continued use of the Leased Assets in the interim pending the final determination of the suit.  See the decision of Benin JA (as he then was) in the Court of Appeal case of GENERAL DEVELOPMENT CO. LTD v. RAD FOREST PRODUCTS LIMITED & OTHERS [1999 - 2000] 2 GLR 178.  It is the considered view of this court, therefore, that the justice of the matter requires that the application be granted.  \r\n[5] ORDER:  \r\nLet the 1st and 3rd Defendants convey the said tractor heads and trailers to the Plaintiff by sending same to the Plaintiff’s warehouse at Adenta on the Adenta-Aburi road near Geowags Limited, Accra, on or before 12th July, 2016 for the purpose of preservation pending the final determination of the suit.  \r\nI make no order as to costs.     \r\n   Sgd ……………………………………………… JUSTICE JENNIFER ABENA DADZIE JUSTICE OF THE HIGH COURT (COMMERCIAL DIVISION) \r\n11  \r\nCOUNSEL:  \r\nBANNERMAN WILLIAMS, JNR. ESQ., OF SACKODAR CHAMBERS, ACCRA, FOR PLAINTIFF TUINESE AMUZU, (HOLDING BRIEF FOR DR. AZZIZ BAMBA, ESQ.) OF AB & M LEGAL CONSULT, ACCRA, FOR 1ST AND 3RD DEFENDANTS  \r\nCASES REFERRED TO:  \r\nPUNJABI BROTHERS v NAMIH (1958) 3 WALR 381 FRIMPONG v. NANA ASARE OBENG II, [1974] 1 GLR 16 ODONKOR v. AMARTEI (1987-1988) GLR 578 AMERICAN CYANAMID CO. LTD v. ETHICON LTD (1985) AC 396 VANDERPUYE v. NARTEY (1977) GLR 428, at 431 IN RE YENDI SKIN AFFAIRS; YAKUBU II v. ABUDULAI [1984-86] 2 GLR 231-238 GENERAL DEVELOPMENT CO. LTD v. RAD FOREST PRODUCTS LIMITED & OTHERS [1999 – 2000] 2 GLR 178 ', '', 'No', '', '2016', '', '', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'BFS/176/1', '', '', 'High Accra, Accra', '2016-07-04', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(583, 'ALHAJI SALIFU HARUNA OTINSHIE,                            \r\nNUMO ADJEI KWANKO II OSABU AND AYIKU WOLOMO OF THE KLEMUS                                                                                \r\nVS  \r\nMRS. ASHAMI TETTEH                                                                                    OTINSHIE                     ', '\r\nJUDGMENT:  \r\nBy a Motion on Notice, brought under Order 50 r 1 of the High Court Civil Procedure Rules, 2004 (CI 47), the Defendant/Applicant (hereinafter referred to as the Applicant,  seeks an order for the committal of the 1st Plaintiff/Respondent (hereinafter referred to as the Respondent) for contempt of Court. The motion was supported by an affidavit and supplementary affidavit. The circumstances preceding this application are that the Respondent commenced an action against the Applicant for the reliefs endorsed on the writ of summons, namely; Declaration of Title to the land in dispute, an order of perpetual injunction against the Applicant, damages for trespass, costs and any other reliefs the Court may deem it just to grant. The \r\n2  \r\nRespondent also filed an application for an order of interlocutory injunction against the Applicant to restrain her acting by herself, or her workmen, assigns among others from carrying out or continuing construction works on the land pending the final determination of the suit. The Applicant entered appearance and filed a Defence and an affidavit in opposition to the application for injunction.   Before the injunction could be heard and determined, the Applicant filed the present application seeking an order to commit the Respondent, for contempt. Subsequent to the filing of this present application, the 2nd Plaintiff was joined to the suit, and at the time of hearing of this application, the Writ of summons had been amended to include the 2nd Plaintiff as a party to the suit. The 2nd Plaintiff is however not a party to the present contempt proceedings. The gravamen of the Applicant’s case is that by a Judgment of the High Court, the Defendant was declared owner of the land in dispute and was put into possession of same by execution of a Writ of possession, whereupon she built a wall around the property. According to the Applicant while the application for injunction was pending the Respondent engaged in conduct which amounted to disrespect to the authority of the Court, its Judgments and orders by pulling down the walls of the Defendant. The Respondent filed an affidavit in opposition, in which he denied pulling down the walls of the Applicant, alleging that it was rather the Applicant who pulled down his structures, and further that he was never a party to any suit instituted by the Applicant. He contended that he instituted the present suit when he became aware of the said Judgment in the Applicant’s favour. Upon the Court’s direction, oral testimony was heard for the determination of the application, and written submissions filed. One Curtis Nortey Sowah testified on behalf of the Applicant, and called no witnesses, while the Respondent testified and called one witness. Before proceeding to examine and evaluate the oral and affidavit evidence before the Court, I will examine the principles governing the law of contempt and the circumstances in which the Respondent can be held by the Court, to have committed contempt. Contempt of Court is defined by Black’s Law Dictionary 6TH Edition as  “Any act which is calculated to embarrass, hinder, or obstruct [a] court (sic) in administration of justice or which is calculated to lessen its authority or its dignity. Committed by a person who does any act in wilful contravention of its authority or dignity, or tending to impede or frustrate the administration of justice, or by one who, being under the courts authority as a party to a proceeding therein, wilfully disobeys its lawful orders or fails to comply with an undertaking which he has given”. \r\n3  \r\nIn the case of RE; EFFIDUASE STOOL AFFAIRS (NO 2 ) REPUBLIC V. NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS AND OTHERS ,EX PARTE AMEYAW II (NO 2),[1998-1999] SCGLR 639, holding 1, the Court in defining contempt, held among others as follows; “Civil contempts are those quasi – contempts consisting in failure to do something which the party was ordered by the Court to do for the benefit or advantage of another party to pending proceedings, while criminal contempts was that done in respect of the Court or its process, or which obstructed the administration of Justice or tended to bring the Court into disrepute.” An applicant who alleges that a Respondent has committed contempt of Court carries the burden to prove same. Contempt being quasi criminal, the burden of proof is strict and beyond reasonable doubt. This position of the law was re- stated in the case of RE; EFFIDUASE STOOL AFFAIRS (NO 2 )  supra at page  665 and 666 per  ACQUAH JSC ( as he then was) where the learned Justice stated at page 666 as follows; “…. Now from the standard of proof required to sustain liability, an Applicant must make out a prima facie case against each of the Respondents before the Court can turn to consider the defences put up. And in this regard, an admission or proof of the actual allegation does not imply an admission on the liability in Contempt, as it would still be the burden of the Applicant to establish that the factual allegations constitute contempt.” The basis for the application brought by the Applicant for committal of the Respondent for contempt, is not the breach of an order of the Court, but acts which the Applicant alleges are a disrespect to the authority of the Court and an obstruction of the Administration of Justice. In the case of AMEGA KOFI TOGODO & 3ORS V. TOGBUI NYAHO TAMAKLOE OF WHUITI & 4 ORS , SUIT NO HI/211/2003  decided on 15th APRIL 2005 C.A,(unreported),  the Court per Asare Korang J.A  at pages 4 and 5 of the Judgment stated thus ; “What was the contempt alleged to have been committed in this case? It was not that the appellants had breached or disobeyed any order of injunction made against them by the judicial committee of the Volta Regional House of Chiefs. The basis for the charge of contempt was that the Appellants with full knowledge of the pendency of the litigation in the Judicial committee of the Volta Regional House of Chiefs, bearing on the qualification of the 4th Appellants Awoamefia undermined and tended to bring the authority and administration of the law into disrespect , and also interfered with pending litigations. The principle is that if a party knowing of the existence of a case – a writ , a petition or a motion pending before an adjudicating body seeking to restrain an act , makes a decision himself to deal with and \r\n4  \r\ngrant the very remedy to himself without giving opportunity to the adjudicating body to hear the matter , he commits contempt.” The Supreme Court per Acquah JSC in RE; EFFIDUASE STOOL AFFAIRS (NO 2 )  supra at page  663 per  ACQUAH JSC ( as he then was) could not have made this anymore clearer when he stated thus; “Counsel takes a narrow view of the meaning of contempt of court and would restrict same to disobedience to court order. I think the point is now clear that any conduct that tends to bring the authority and administration of the court into disrespect or disregard and /or to interfere with or prejudice parties, litigants or their witnesses is a contempt.”  From the above, therefore, it is settled law that contempt does not arise only as a result of flouting an order of the Court, but also out of acts which tend to bring the authority and administration of justice into disrespect or disrepute. These principles already stated will be applied in the determination of this application presently before this Court. According to the Applicant, pursuant to obtaining a Judgment from the High Court dated 10th July 2013, in her favour declaring her owner of the land in dispute, she caused her lawyers to write to the occupiers of the land including the 1st Plaintiff inviting them for discussions on the way forward, which invitation was not honoured by the Occupiers. She therefore entered into possession of the land by a Writ of possession and commenced building a wall on the land. The Applicant attached to her affidavit as Exhibit CS’’, her Deed of lease, the Judgment of the Court in suit No, L169/99, an order of injunction, Order for leave to issue writ of possession, writ of possession and certificate of possession.  The Applicant contended that though the Respondent was aware of the Judgment in her favour and inspite of the pending injunction brought by him, he proceeded to demolish the wall of the Applicant. The Applicant attached to her affidavit in support, Exhibits SQ1 and SQ2 as evidence of the demolition of her wall. The duty of this Court on this application is not to determine the merits of the substantive suit but to determine whether or not the Respondent has engaged in acts amounting to contempt of Court.  One Curtis Nortey Sowah testified on behalf of the Applicant. According to him, the Applicant is his Aunt, and he was engaged in construction on the land in dispute. In his own evidence – in- chief, he admitted that he did not see the Defendant demolishing the land. On the 13th Of July 2015, his evidence – in- chief was in part, as follows; Q Did you witness the Plaintiff conducting this demolition?  \r\n5   \r\nA To say the truth I did not witness the said demolition by the plaintiff, but he was the one always coming to the property to give us warning over the land.  \r\nIn cross –examination by Counsel for the Respondent on 15th July 2015, he  affirmed his earlier testimony as follows;  \r\nQ     You told this Court you never saw Alhaji Haruna destroying anything on           the land.  \r\nA     Yes, I never saw him demolishing the structure but he was the one always coming to the site to question us  \r\nQ      You did not see anyone being directed by him to demolish the structures?   \r\nA     No I did not.  \r\nThe Applicant did not call any witness to corroborate the testimony given on her behalf.  \r\nThe Respondent gave testimony consistent with his affidavit in opposition, that he never demolished a wall, and that he had his structure demolished by persons he called thugs hired by the Applicant. According to him the said thugs may have demolished the Applicant’s wall mistaking it for his. Though Counsel for the Applicant suggested to the Respondent that he was the only one with reason to demolish the wall, the Respondent never changed his story and his testimony was not impeached under cross- examination. The Respondent tendered in evidence Exhibits 1 and 2” which were photographs depicting the state of the land and the portions which were demolished.  \r\nCounsel for the Applicant by her written submissions urged the Court not to attach any importance to the testimony of the Respondent’s witness, DW1, because of her inconsistent statements. I do not share Counsel’s view. The witness was clear in her testimony that she was in the structure of the Respondent when some persons came to demolish same, but was not on the premises when policemen and Court bailiffs came to the land in dispute, since she never saw them. She further stated that since the demolition, she has been living in a wooden kiosk on the land.  She testified that the Respondent was her landlord who had put her in possession of the land. She corroborated the Respondent’s testimony that there were structures on the land which were subsequently demolished. Contrary to the case of the Applicant, that there were no structures on the land when she went onto same, Curtis Nortey who testified on her behalf, admitted that the Photograph, Exhibit 1 was reflective of the structures on the land when he went unto same to commence construction work and that at the commencement of construction work on the Applicant’s behalf, the structure in Exhibit 1 which shows a partly demolished structure, had not been demolished at the time. The witness \r\n6  \r\ntestified under cross- examination that he completed the wall before he became aware of the injunction that had been filed by the Plaintiff.  \r\nFrom the evidence before the Court, it is indeed clear that some demolition took place, and it seems to me that the said demolition affected both the Structures of the Respondent and the walls of the Applicant.  Since it is the Applicant who has brought this application before the Court, this Court will seek to determine contempt relative to the Respondent only. That there was a demolition that affected the walls of the Applicant is not in doubt. However has the Applicant been able to prove that it was the Respondent who demolished or authorised the demolition of her wall? From the Applicant’s own testimony by Curtis Nortey, he never saw the applicant either by himself or directing any person to demolish structures on the land. No evidence before this Court implicates the Respondent in the demolition of the Defendant’s wall during the pendency of tis suit or the application for injunction or at any other time. The assertion that the Respondent is the only person with reason to demolish the wall is at best speculative, and cannot in my view discharge the onerous burden placed on the Applicant by law, to prove the factual allegations beyond reasonable doubt and to further prove that those acts amount to contempt and are wilful, to enable this Court punish the respondent for contempt. Counsel for the Applicant in her written submissions stated that the Plaintiff had obtained a Judgment in her favour, given notice to the Respondent and been put into possession of the land.  That the Respondent lodged a complaint at the police station and subsequently came to Court, and yet kept on going unto the land to threaten the workers of the Applicant without waiting for the action to be determined. Counsel submitted that the conduct of the Respondent in continuing to visit the land to threaten the Applicant’s workers amounted to an abuse of the Court’s process and constitutes contempt. Counsel for the Applicant urged on the Court that if the Court does not find the Respondent guilty of contempt on account of the broken walls of the Applicant, it should so hold him in contempt over the threats to the Applicant’s workers. It seems to me that the above allegation that the respondent had gone unto the land to threaten the workers of the Applicant, and that same constituted contempt in the face of the pending suit, and the judgment obtained by the Applicant, was neither canvassed by the Applicant in her affidavit in support, nor her supplementary affidavit in support of this Application.  The Respondent denied that he went unto the land to threaten the workers of the Applicant. More importantly, he did not have the opportunity to contest the new ground first raised by Counsel for the Applicant in her written submissions. Since Contempt is a quasi - criminal action, the Respondent ought to be aware of all of the grounds on which the Applicant seeks his committal, to enable him have a fair opportunity to respond to \r\n7  \r\nsame.  Since this was never one of the grounds upon which the application was brought, this Court will not consider this new ground in the determination of this application. Order 50 r 3 (3) of the High Court Civil Procedure Rules 2004, (CI 47) states expressly as follows:  \r\n“Without prejudice to the powers of the Court under Order 16 rule 7, no grounds except the grounds set out in the affidavit in support of the motion shall be relied upon at the hearing of an application for an order of committal”  \r\nThe burden of proof requires the Applicant to prove beyond reasonable doubt that the Applicant’s walls were demolished by the Respondent, that the said act constitutes contempt of Court, and that same have been committed wilfully in order for same to be punishable. \r\nFrom the totality of the evidence before the Court, I am of the view what the Applicant has not proved beyond reasonable doubt that the Respondent is guilty of contempt, thereby failing to discharge the burden of proof required of her by law. The Application therefore fails and is hereby dismissed.  \r\nI award costs of 1, 500 against the Applicant and in favour of the Respondent    \r\n(SGD) HAFISATA AMALEBOBA (MRS) \r\nJUSTICE OF THE HIGH COURT.  \r\nCOUNSEL: \r\nMR. LESTER OHEMENG, MS. MELISSA AMARTEIFIO, MS VELDA A. ATTUAH, LED BY MR. ERIC MENSAH FOR THE APPLICANT, HOLDING THE BREIF OF NENE AMEGATCHER. \r\nMR. NATHANIEL MYERS FOR THE RESPONDENT (WITH MS. IRENE MARIA QUARSHIE).   \r\n    \r\n8   ', 'links/cases/ALHAJ HARUNA VS. ASHAMI TETTEH.pdf', 'Yes', '', '2015', 'high', '', 'HAFISATA AMALEBOBA (MRS), J', 'Civil', '', 'FAL 119/15', '', '', 'High Court, Accra', '2015-12-22', ''),
(584, 'ATTAH BEMPAH  \r\n    VRS  \r\nDANIEL AGYAPONG', 'JUDGMENT  \r\nPlaintiff in a writ issued on the 22/7/2009 sought the following reliefs:  \r\na. Declaration of title to all that  piece or parcel of land containing an area of 0.32 acres more or less lying being and situate at North Gbawe, Accra that is known and called Plots Nos 202 and 204 (Sector B) that is bounded on the north by Plot Nos 201 and 203 measuring on that side 140 feet more or less and on the east by plots 206 measuring on that side 100 feet more or less and on the south by a proposed road measuring on that side 110 feet more or less and on the south west and on the west by a proposed road measuring on that side 115 feet more or less which piece and parcel of land is delineated and marked with red on the site plan dated 31/07/96 attached to the indenture b. A further declaration that the defendant’s action of erecting a building on the said land without the plaintiff’s permission or consent amounts to trespass on same.  \r\nc. Recovery of possession from the defendant of the portion of the said parcel of land trespassed on by the defendant. \r\n \r\n2 | P a g e    \r\nd. Recovery from the defendant the sum of Gh¢3.600.00 plus interest from the date defendant received same from the said tenants till date of final payment being advance for rent paid by tenants to the defendant in respect of stores they occupy on the said land.  \r\ne. Damages against the defendant for trespass.  \r\nf. Perpetual injunction restraining the defendant, his agents, assigns workmen or any person claiming by, through or for the defendant from entering, building on, or interfering in any way with the plaintiff’s use, quiet enjoyment and possession of the piece or parcel of land the subject matter of this suit.  \r\nThe thirteen paragraphed statement of claim that accompanied the writ can be summarized as follows: that by means of an indenture between the plaintiff and one Nii Adam Quartey, of the Gbawe Kwatei family he acquired two plots of land. Defendant who was once a friend of the plaintiff has without his consent erected a building on a portion of the land and has also collected an amount of Gh¢3.600 from the tenants of the plaintiff.  \r\nAccording to the Plaintiff as he is ordinarily resident outside Ghana he made the defendant his supervisor and caretaker only for him to visit Ghana in one of his visits in 2008 to find out that the defendant has erected another building beside that of his own on a portion of the land as his personal property. After confronting the defendant he agreed to vacate the building he had erected on condition and terms which defendant unilaterally set out in letters defendant wrote to the plaintiff. Defendant has persisted in his acts of trespass by bringing sand, gravel and stones onto the land notwithstanding his assurances to vacate the land and has continued in his acts of trespass. Plaintiff according prays for the reliefs set out in his writ.  \r\nDefendant has resisted the claim of the plaintiff and instead set out a cross action in the nature of a counter claim for the following two reliefs: \r\n \r\n3 | P a g e   \r\na. A declaration that plaintiff is estopped by conduct from challenging defendant’s possession of the premises occupied by defendant and his family or  \r\nb. In the alternative an order that the property occupied by defendant and his family be valued at the expense of plaintiff and a further order that plaintiff pays to defendant the cost of valuation.  \r\nIn his statement of defence the defendant has set out a different version of what transpired between them. He claims that he was in a business dealings with the Plaintiff when the latter travelled abroad by selling vehicles shipped by plaintiff to him and also supervised plaintiff’s transportation business as well as disbursing monies at the directions of the plaintiff. And that he mooted the idea of purchasing land for Plaintiff out of the proceeds of the sale of vehicles for the construction of a house. He approached the original owners of the land being Gbawe Kwatei family and acquired two plots of land on behalf of the plaintiff. In one of the visits of Plaintiff to Ghana when construction started he became pleased with the work done by defendant that in the presence of witnesses, Plaintiff asked the defendant to take one of the two plots of land as a gift in appreciation for the good work done and further requested him to get two separate land documents for the two plots of land.  \r\n Defendant accordingly executed two documents on the instructions of the plaintiff and proceeded to complete a four bedroom house for the plaintiff which Defendant and his family moved in to occupy. Plaintiff had no difficulty in sharing the house with them anytime plaintiff happened to visit Ghana. To defendant plaintiff was fully aware of the house he started constructing in 2000 and never challenged him on that.  \r\nTo defendant he gave out two stores upon completion as rent to tenants and upon plaintiff’s direction disbursed the Gh¢3.600. And it was therefore untrue that he had embezzled monies due to the plaintiff. Plaintiff ordered him to cause a valuation to be done on the house he had put for the purposes of a refund of his monies to him which he did and his property valued at \r\n \r\n4 | P a g e  \r\nGh¢19.100. He did that and made plaintiff aware but plaintiff has refused to refund the monies to him. To him he was compelled by health reasons to complete the house and has incurred further expenses.  \r\nThe following were settled as issues for determination by the trial Judge:  \r\ni. whether or not the disputed plot of land belong to the Plaintiff or to the defendant.  \r\nii. whether or not plaintiff made a gift of one of the plots of lands described in the statement of claim and the subject matter of this dispute to the defendant.  \r\niii. whether or not the plaintiff gave his consent and permission for the defendant to erect a building on plaintiff’s plot aforesaid.  \r\niv. whether or not plaintiff is entitled to recover from the defendant the sum of Ghc3.600.00 being rent defendant received for and on behalf of the plaintiff.  \r\nv. whether or not the plaintiff is stopped from challenging defendant’s occupation and possession of plaintiff’s premises.  \r\nvi. whether or not plaintiff is entitled to the reliefs endorsed on their writ of summons and statement of claim.  \r\nvii. whether or not the defendant is entitled to his counterclaim  \r\n   ANALYSIS OF THE EVIDENCE AND EVALUATION OF THE LAW  \r\nAs there is a claim and a counter claim both parties have obligations to prove their claims and counter claims on the balance of probabilities. The dictum of Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS [2003 – 2004] SCGLR 420 is very instructive that: \r\n \r\n5 | P a g e   \r\n “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…”   \r\nIn respect of thedefendant’s counter claim it is to be viewed with the same scale of measurement as if he was the plaintiff. As far back as the case of AMON v BOBBETT (1889) 22 QBD 543 where Browne LJ noted that:  \r\n “a counter claim is to be viewed and to be treated for all purposes for which justice requires it to be so treated as an independent action”.  \r\nDotse JSC came to the same conclusion on counter claim actions in the case of JASS CO. LTD v APPAU [2009] SCGLR 269 at 271 that:   ‘whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant’  \r\nBefore commencing the evaluation of the evidence, I must place on record the real and substantial difficulty that afflicts me even though as a trial Judge I have not had the benefit of listening to any of the evidence of the parties in court. Not presiding as an appellate Judge, nonetheless, my evaluation is limited to only the evidence on record same as the task that confronts any \r\n \r\n6 | P a g e  \r\nappellate court. And that does not in any way derogate or detracts or steal the glow out of the findings to be made upon analysis of the evidence.  \r\nI now begin the analysis and evaluation with the evidence of the Plaintiff. The Plaintiff testified through his lawful attorney Kwaku Akosah and Pw1 Osei Bempah, an uncle of the Plaintiff. The attorney testified and tendered the power of attorney that vest in him the capacity to be in court as Ex “A”, the indenture of the two plots in dispute as Ex “B”. The Ex “B” shows a transfer of two plots of land from Gbawe Kwatei family to the Plaintiff with the defendant acting as the authorized representative. This piece of evidence finds corroboration in the evidence of the Defendant when he stated in his evidence on the 11th of May, 2011 that the Plaintiff made him purchase the land for Plaintiff in 1994 and that they were two plots from the Gbawe Kwatei family. It is therefore clear from the evidence that there is no dispute at all regarding the initial purchase of two plots of land on behalf of the Plaintiff by the defendant from the Gbawe Kwatei family.  The court guided by the trite principle of law that where a party makes an averment and that averment is admitted or is not denied then no issue is joined on that matter for determination. See Brobbey J. (as he then was) in HAMMOND v AMUAH [1991] 1 GLR 89.  \r\nWhat then comes up for determination as gleaned from the substance of the first three issues is to the effect as to whether at any point in time the Plaintiff made a transfer of one of the two plots of land to the Defendant either through a gift or otherwise as the defendant seems to assert and the Plaintiff denies. Being a trite rule of evidence that one cannot prove a negative, the defendant claiming that the Plaintiff divested himself of the ownership of the one plot being the res litiga, the burden is cast on the defendant to prove to the court how he became the owner of the land.  \r\nHow did the defendant discharge his burden? Defendant states in his evidence in chief on record that he became the owner of the res litiga in this manner:  \r\n“In 1996 when he [plaintiff] came to Ghana, one evening we were \r\n \r\n7 | P a g e  \r\ntogether when one Sampson Adjei came to us in the house and we sat down and plaintiff said that in appreciation of all that I had done for him I should take the other plot”.  \r\nThe following material information were elicited from the defendant in his further evidence before the court:  \r\nQ: So what happened from there?  \r\nA: We thanked him ...  \r\nQ: So what happened to the land he gave to you.  \r\nA: I started developing it.  \r\nQ: Which year was it.  \r\nA: 2000  \r\nQ: Was any documentation prepared in respect of the land given to you  \r\nA: Yes”  \r\nThe evidence of transfer of the land was tendered by the defendant as Ex ‘2’. The court will need to take a critical examination of Ex ‘2’ as to whether it meets the standard of a document that purports to transfer ownership of land. Ex ‘2’ seems or appears to have two parties to the transaction. The first party is the plaintiff and the second party is the defendant. Curiously enough the defendant admits that he signed the document as defendant and at the same time signed the document on behalf of the plaintiff. As to how this can be, this is what the defendant states in answers to questions:  \r\nQ: Look at Ex ‘2’, it is the document between Attah Bempah and Daniel Dwomoh Adjapong, who executed this document for Attah Bempah  \r\n \r\n8 | P a g e  \r\nA: Daniel Dwomoh Adjapong, myself  \r\nQ: Who signed for Daniel Dwomoh Adjapong?  \r\nA: Myself  \r\nQ: Can you tell the court why you are not Attah Bempah but you executed it for him  \r\nA: The authority he gave to me to sign Ex ‘B’ is the same authority I used to sign Ex ‘2’  \r\nSo can a party to a transaction sign in his own name and change its morphology and sign on behalf of the other party to the transaction, that is the transferor?   \r\nSection 1 of the Conveyancing Act, NRCD 96 states as follows:  \r\n‘A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorised in writing, unless relieved against the need for such a writing by the provisions of section 3. (2) A transfer of an interest in land made in a manner other than as provided in this Part shall confer no interest on the transferee’.  \r\nDefendant has stated emphatically that he signed for on behalf of the Plaintiff based on an oral instructions. This is against the clear terms of the requirement for a document affecting land to be signed by the transferor or a person authorized by the transferor in writing to sign on his behalf. The authorization of the transferor for the document to be signed on his behalf should be in writing and not an oral one. The admission by the defendant that no such authorized writing exist makes Ex ‘B’ void and of no effect.  \r\nSection 2 of Conveyancing Act again states that: \r\n \r\n9 | P a g e   \r\n“No contract for the transfer of an interest in land shall be enforceable unless— (a) it is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorised to sign on behalf of such person; or (b) it is relieved against the need for such a writing by the provisions of section 3”.  \r\nCan it be said as indeed the defendant claims that the transfer of the interest in the res litiga was a gift such that depending on the nature of the gift, say if it was a customary gift, it would be excused from the necessity for writing. For section 3 of the law list among others an oral grant under customary law as one of the transfers of an interest in land which is permitted without writing. In proving an oral gift of the land to the defendant, the latter procured Sampson Adjei, DW1 to testify on his behalf. As part of the substance of the testimony of DW1 he claims that Plaintiff called him in the presence of Agartha, the wife of defendant and told them that he was gifting one of the two plots to defendant in appreciation for his good works. And he continued that:  \r\n“Mr. Agyapong tried bringing a schnapp to thank Mr. Attah Bempah but he said no, the schnapp is not needed because of the numerous assistance he has offered him”   Plaintiff’s attorney has denied this claim of the defendant and so also is the uncle of the Plaintiff, Pw1 who has denied the claim of any customary gift to the defendant. For when Pw1 came under cross examination this is what transpired  \r\nQ: I am putting it to you that in appreciation of the good work the Plaintiff gave to the Defendant a plot out of what he had  \r\nA: I do not believe it. If he had given him anything of that sort he would have \r\n \r\n10 | P a g e  \r\ntold me considering how close I am with him”.  \r\nWhat then is the law on customary gift regarding land?  \r\nJustice Dennis Adjei, in his work – Land Law and Conveyancng in Ghana notes at page 53 that any personal gift of a land must be done in public and not in secrecy and that the immediate family of the donor are preferably to be present in the making of such gift of land. This position is supported by the case of AKUNSAH v BOTCHWAY & RIVER FARMS LTD [2011] SCGLR 288 that:  \r\n “In the case of a personal gift the owner’s decision is not subject to approval or consent from anyone. The only condition is that it should not be done in secret. It should be witnessed by others, preferably by members of the immediate family of the donor who are not entitled to question his decision provided they have no interest in the property which he intends to give away”. It does not end there. The beneficiary of the gift expresses his acceptance and gratitude for the payment of “aseda” in any form depending on the circumstances of each case”  \r\nAlso in the case of YOGUO v AGYEKUM & ANOR [1966] GLR 482520; the court gave the essential elements of a valid customary gift of land to include the following: ceremony of transfer of ownership, publication to the living and the dead that ownership in a property had as from the date moved from the donor to the donee, pouring of libation and finally “aseda” to indicate acceptance of the gift.  \r\nThough in modern times some of the strict requirements have been watered down yet one cannot discount the provision of “aseda” which is an essential element of a valid gift as both parties are Ashantis having grown up together at Asante Mampong. I do not find that there was any valid gift of the res litiga to the defendant under customary law. There being no such gift under customary law and having earlier found that there was no valid transfer of the property to the defendant in a manner that meets the minimum \r\n \r\n11 | P a g e  \r\nrequirements under the Conveyancing Act, the net effect is that the property is the property of the Plaintiff and was never transferred to the Defendant.  \r\nHaving then been in possession of the land of Plaintiff since 2000, should the court make the Plaintiff pay the defendant the cost that the defendant has incurred so far in erecting the structure which he now occupy?. Ordinarily, a trespasser who has been on another’s land without permission is even supposed to pay damages for trespassing. However, the defendant in his Ex ‘1” tendered in court which Plaintiff did not deny being the author of that letter; Plaintiff unequivocally accepted to refund any monies spent on the land after the value of the land has been ascertained.  The valuation done based on the agreement between the parties was tendered as Ex ‘3’ where the cost of the building put up by the defendant was estimated to be Gh¢19.614.70. The courts are not in the business of drawing up agreements for parties and a party may decide to compromise his rights under the law and it is not the duty of the court to assert a right that a party himself has decided to waive. Notwithstanding the trespassory acts of the defendant, Plaintiff decided to pay defendant whatever monies expended. Plaintiff did not deny being the author of Ex ‘1’ and it was based on that letter that a valuation of the building was undertaken.  \r\nSection 26 of the Evidence Act, NRCD 323 provides:   \r\n “Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest”.     \r\n  This has been termed as the irrebuttable presumption of estoppel by conduct. By the very statement through the letter of Plaintiff he had caused the \r\n \r\n12 | P a g e  \r\ndefendant to believe and act upon it that he was going to refund his monies to him. The catch is that for the doctrine to operate it must relate to existing facts, the conduct must be clear and unambiguous and third the other party should have acted upon it to his detriment.  I find that the plaintiff having agreed to refund the value of the monies spent by defendant on the land which was found to be Gh¢19.100.00 at the time, plaintiff must refund the monies as its value as at today. It would not be helpful to order for another valuation on the property as subsequent to the time defendant was told to halt further development, he ignored it and continue to develop the property on the flimsy ground of ill health. And it will not be just to make plaintiff pay for expenditure on the building beyond which he had clearly accepted to pay.  \r\nThis then bring the court to the issue as Plaintiff’s claim to an amount of Gh¢3.600 which he claims are monies defendant collected from tenants and had not accounted for it. In the evidence of the defendant he admitted receiving Gh¢3.600 and this is how he accounted for them:  \r\nQ: What happened to that money  \r\nA: He directed me to use GH¢1.800 to procure electricity meters and also use part for telephone installation  \r\nQ: What happened to the remainder  \r\nA: He asked me to give the remaining amount of Gh¢1.800 to one Alhaji who is a contractor engaged to do some work on the premises   Q: What happened to the other Gh¢1.800 to Alhaji, did you give it to him  \r\nA  Yes  \r\nQ: Did you give all the Gh¢1.800 to him  \r\nA: I gave him Gh¢1.000 \r\n \r\n13 | P a g e   \r\nQ: What happened to the remainder  \r\nA: It got missing”  \r\nAgain here with the admission of defendant that the total monies of Gh¢3.600 came into his hands as rent from tenants of plaintiff and claim to have disbursed the monies on the instructions of plaintiff, the burden was on defendant to have backed his claims in court with the necessary receipts from the electricity company and also the payment made to Alhaji. There is also no evidence that he lost an amount of Gh¢800.00 beyond the mere assertion made in court. This is also a departure from his pleadings that he disbursed all the monies as per the instructions of plaintiff. From the evidence on record I find as a fact that defendant received an amount of Gh¢3.600 on behalf of plaintiff and failed to account for same and defendant is liable to refund the monies to the plaintiff.  \r\nThis brings the court to the final issue worth determining in this suit and that is whether the Plaintiff is stopped from challenging defendant’s occupation and possession of the plaintiff’s premises. The defendant claim that he started building on the res litiga in the year 2000 and that plaintiff had been visiting Ghana every two years and never raised any issue until 2006 when he asked him to stop further developments on the land. The court is not clear as to the specific estoppel that defendant is claiming. Granted that defendant started construction in 2000 and it was in 2006 that he was told to stop would that be enough to invoke a claim of estoppels?.  \r\n First if it is matter of a claim bordering on Statute of Limitations that the right of Plaintiff has been extinguished; Limitations Act, NRCD 54, specifically section 10 which states as follows:   “10(1) a person shall not bring an action to recover a land after the expiration of twelve years from the date on which the right of action accrued \r\n \r\n14 | P a g e  \r\nto the person bringing it or if it accrued to a person through whom the first mentioned claims to that person  \r\n(2) a right of action to recover land does not accrue unless the land is in the possession of a person in whose favour the period of limitation can run”  \r\nFor the plea of limitations to be entertained it must expressly be pleaded or a party must plead facts such as would evince intention to rely on the plea of limitations. See the case of DOLPHYNE (NO 3) v SPEEDLINE STEVEDORING CO. LTD [1996-97] SCGLR 514. Looking at paragraphs 27 and 28 of the statement of defence this first hurdle requirement of pleading is satisfied. However, defendant started a building in the year 2000 and being told to stop in the year 2006 will not meet the requirement of the minimum number of years set out in the law. And any purported claim under the Limitations Act fails.  \r\nWhat of the claim of the defendant falling under section 26 of the Evidence Act, NRCD 323 quoted supra which is to the effect of being estoppel by conduct. What statement or conduct, acts, omissions either intentionally or otherwise caused the defendant to believe that the property he now occupies, had been given to him by the plaintiff. From the evidence it seems that anytime the Plaintiff was on a visit in Ghana he used to put up in the house and did not complain as he shared the property with the defendant. But would that be enough to amount to estoppels by conduct?  \r\nOccupying a property because the owner is not in Ghana in itself when the owner comes and fails to comment will not give rise to a conclusion that the \r\n \r\n15 | P a g e  \r\nowner has by conduct encouraged the person in occupation to believe that he now assumes ownership of the property. As the one that was overseeing the construction of the house, having moved to occupy part of the property does not raise an estoppel by conduct. And as noted for the claim of that estoppel to operate the conduct complained of must be unequivocal and unambiguous, the other party must have relied on it to his detriment. I do not think that the conduct of Plaintiff here before 2006 did in any way raise the irrebuttable presumption of estoppel by conduct and I so find and hold.   \r\nThe court summarizes its judgment in conclusion as follows: Plaintiff succeeds in his action for declaration of title to the res litiga, recovery of possession of the land as well as recovery of an amount of Gh¢3.600 together with interest from the time the monies got into possession of defendant till date of final payment at the commercial bank rate. And an order of perpetual injunction to restrain the defendant and his agents and privies from claiming or interfering with plaintiff’s enjoyment of the property. As stated the plaintiff must pay the today’s value of an amount of Gh¢19.100 to be assessed by the Registrar together with the parties. This amount could be off set against any monies Plaintiff is entitled.  \r\nFinally the plaintiff asked for general damages. In the Supreme Court case of DELMAS AGENCY GHANA LTD. V FOOD DISTRIBUTORS INTERNATIONAL LTD [2007 – 2008] SCGLR 748 on the award of general damages the court held that:    ‘General damages is such as the law will presume to be the natural \r\n \r\n16 | P a g e  \r\nand probable consequence of the defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded’  \r\nOn the whole I will award an amount of Gh¢15.000general damages.  \r\nIn terms of cost, this matter has been in court since 2009 and the cost of litigation with many adjournments must have taken its financial toll on the plaintiff. On the whole I will award cost of Gh¢15.000.00 in favour of Plaintiff.     \r\n              (SGD.) Eric Kyei Baffour, Esq. Justice of the High Court     \r\nRepresentations:   \r\nPlaintiff’s Lawful attorney – Present  Defendant – absent   \r\nRosemary Hayford, (Mrs) for Sampson Obeng, Esq for Plaintiff – Present   \r\nDefendant’s Counsel absent  ', 'links/cases/ATTAH BEMPAH v DANIEL AGYAPONG.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'IRL/451/09 ', '', '', 'High Court, Accra', '2016-03-18', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(585, ' BEATRICE ABLA AVEGE\r\n              VRS  \r\nFRANK BEDU AVEGE', '\r\nJUDGMENT \r\nPlaintiff’s claim against the defendant is for  \r\n1) The payment of a total amount GHC 257,698.35 and  $7000 being an outstanding of money expended by plaintiff on a building project for  defendant and the cost of a bailing machine,  \r\n2) Interest at bank rate from 15th February 2011till date of final payment.  \r\nThe defendant entered appearance and also counterclaimed for the following  1. A declaration that defendant is a 50% equity shareholder of the plaintiff’s used clothes business and therefore entitled to 50% of profits accruing to the business since 1989. 2. A declaration that plaintiff pays 50% of profits in the used clothes business to defendant 3. A declaration that plaintiff’s conversion of defendant’s two storey to a single storey house without his permission is wrongful and unlawful. 4. An order that defendant recover from plaintiff an amount of GHC 120,000 being the amount used to demolish and restore the building to the state in which it was before. \r\n2  \r\n5. An order for recovery of $50.000being capital and accrued profits from bailing business set up by parties but solely run by plaintiff. 6. An order for audit an account to determine the plaintiff’s user of the bailing ma and defendant paid $chine and the warehouse as well as rents received from date of completion to date of handover by plaintiff. 7. A declaration that defendant has fully paid the GHC 100,000 business loan advanced by plaintiff in cash and stocks. 8. A declaration that transfer of Koshi Kutsienyo’s plot to Timothy Avege’s property to defendant. 9. An order directing plaintiff to deliver up to defendant the title deeds, building permits and all document relating to plot no RP/16/C3 and 16 belonging  to defendant to him. 10. Legal fees and cost.  \r\nThe plaintiff, a businesswoman who lives in Accra is the uterine sister of the defendant who also lives in the United States of America. According to the plaintiff she undertook to cause the construction of a two bedroom and another three bedroom furnished apartments for the defendant at Community 16, Lashibi Sakumono, Accra.   \r\nThe plaintiff avers that the defendant has taken over the two buildings together with her warehouse containing a baling machine, even though the warehouse belongs to her.   \r\nPlaintiff said that she repurchased the land from the Nungua at GHC700.00 on defendant’s behalf, but defendant couldn’t pay for the land. She however agreed and undertook to build for the def. According to plaintiff she expended an amount of GHC 257,698.35 on the project together with furnishing and defendant paid an amount of $17,000 out of the project cost. Plaintiff said that the warehouse belonged to her but the defendant had also taken it with her bailing machine.   \r\nPlaintiff denied the defendant being a 50% shareholder in her bailing business and denied owing the defendant $50,000. She also stated that Koshi Kutsienyo was alive and had not mandated the defendant to sue on his behalf. Plaintiff said \r\n3  \r\nshe was ready to hand over documents on the project as soon as she is paid what is due her,  \r\nThe defendant in his statement of defense stated that the plaintiff had lost her business capital when her husband died and her stepchildren siphoned all her money,  \r\n According to defendant in 1989, the plaintiff approached him in the UK to help salvage her business. He thus abandoned his schooling, job and pursuit of resident permit to come to Ghana to help to revamp the used clothes business for the plaintiff. He relocated to the US and also managed the plaintiff business dealings there. He said he continued organize the selection of good stock, supervise the bailing, purchasing and shipping of used clothing for the plaintiff. By virtue of the reorganization of the plaintiff’s business and his relocation to the US, the plaintiff promised him 50% of the profits of the business which made him a 50% equity owner of the business.  \r\nDefendant stated that before leaving Ghana he bought two double plots of land for himself and his bosom friend Koshi Kutsienyo and requested plaintiff to start developing in one corner of each plot a two storey semi-detached house to lintel level. He further stated he continued to render services to plaintiff and in 2002 gave an amount of $12,000 as capital contribution to the business, in 2004 plaintiff informed him that his investment had grown to become $15,000.  \r\nDefendant says that the parties had an agreement for the plaintiff to complete the project with her own resources and to rent the place out to recoup whatever she spent on the project. He said plaintiff has not rendered an account for the rental from1991 to 2006. Again since the building was not put up the way he wanted it and had to spend GHC 120,000 on demolishing and remodeling of the house.  \r\nDefendant disputes the balance of GHC 149.291 being claimed because the various sums of money he transferred to plaintiff as well as rents collected had offset whatever he owed. He however admitted collecting financial help of GHC 100,000/00 from the plaintiff.  \r\n4   \r\nThe issues for determination adopted on 29/18/12 were as follows. ? Whether or not plaintiff undertook a building project for the defendant including the warehouse ? Whether or not defendant has taken possession of the project including a warehouse and bailing machine ? Whether defendant has paid for the buildings including the warehouse and the baling machine. ? Whether or not defendant refunded the outstanding balance of the financial assistance. ? Whether on the account of the defendant’s substantial contribution to the rebuilding and revival of plaintiff’s business and upon representation by plaintiff is an owner in equity of 50% of plaintiff’s business. \r\nThe fact of the agreement between the parties as to the construction    of the houses by plaintiff for defendant is not in contention, however the parties are both not in agreement on what is owed and to whom it is owed.        \r\nThe plaintiff has led evidence to show the cost of the apartments built for defendant as well as the warehouse with the baling machine. This evidence was corroborated by the plaintiff’s witness Augustus Kuma Tsorgali. Both plaintiff and her witness admitted that defendant had sent two used cars to be sold and proceeds put towards the project. Again they have both admitted $17000 being paid by defendant. This evidence went unchallenged.   \r\nThe burden of proof and persuasion remains on a plaintiff to prove unless and until the plaintiff is able to produce evidence of relevant facts and circumstances from which it can be said that they, defendant therefore counterclaimed was the view of Brobbey JSC in the case of OSAE VS ADJEIFIO (2007-2008) SCGLR @ 499.  \r\nThe defendant has admitted taking over the warehouse and apartments as alleged by the plaintiff and it therefore not in issue. What is in issue therefore is whether indeed the defendant has paid for the project fully.   \r\n5  \r\nFrom the defendant’s evidence, he said that at a point in time he had to give up his job and studies in the UK to come and salvage the plaintiff’s business and plaintiff promised him 50% of profits in the business. Defendant is also counterclaiming for a declaration that he is a 50% equity shareholder of plaintiff’s business and for an audit of the business and a declaration that it is illegal for plaintiff to transfer Kutsienu’s land to another brother’s name,  \r\nThe court did not consider anything about Kutsienu’s land since defendant did not have a power of attorney to sue plaintiff on his behalf. However the burden of proof shifts with the counterclaim. Adinyira JSC in the case of DON ACKAH VS PERGAH TRANSPORT ( 2010) SCGLR @728 stated that “it is a basic principle of the law of evidence that the party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the facts is more probable than its non-existence”.   \r\nSections 10 and 12 of NRCD 323 Evidence Act gives credence to the above statement.  \r\nI have carefully considered the evidence and exhibits produced and I am satisfied that the plaintiff has adequately led evidence to establish her claim, the defendant on the other hand has failed to adequately prove his case. defendant’s  counterclaims are therefore dismissed, judgment is entered for the plaintiff in the sum   of amount GHC 257,698.35 and the cedi equivalent of $7000 being an outstanding of money expended by plaintiff on a building project for  defendant and the cost of a baling machine,  \r\nInterest at bank rate from 15th February 2011 till date of final payment. Cost of GHC 5000 is awarded to the plaintiff.  \r\n                                                         (SGD) DORIS BEMPONG (MRS.) JUSTICE OF THE HIGH COURT ', 'links/cases/BEATRICE AVEGE.pdf', 'Yes', '', '2015', 'high', '', 'DORIS BEMPONG (MRS), J', 'Civil', '', 'BC/255/2012', '', '', 'High Court, Accra', '2015-12-16', ''),
(586, 'BIZZACO LTD. \r\n    VRS  \r\nACCRA METROPOLITAN ASSEMBLY   ', '  \r\nJUDGMENT  \r\nOn the George Walker Bush motorway, otherwise called N1at the section at Abelemkpe is a piece of land by the highway which until the 3rd and 23rd of May, 2014 was occupied by the Plaintiff and had been converted into a washing bay. Acting on concerns that the activities of Plaintiff on the land poses threat to motorist coupled with a feud between Plaintiff and residents of Abelemkpe, National Security was compelled to demolish the property of Plaintiff on that piece of land.  \r\nThe plaintiff company claims per the reliefs endorsed on its amended writ of summons the following reliefs originally against National Security, the Attorney General and Accra Metropolitan Assembly:  \r\ni. An amount of Ghc486.190.19 being the total amount expended by the Plaintiff on its business operations on the aforesaid land from the date when the land was given it to the date of the final demolition.  \r\nii. Interest on same at the prevailing Bank rate from the date of the issuance of this suit to the date of final payment of same.   \r\n \r\n2  \r\niii. Damages and compensation to be assessed by the court on a quantum meruit basis.  \r\niv. Perpetual injunction restraining the Defendants their agent privies and servants and by extension, any other person or persons and or entity from dealing with the land in any manner detrimental to the interest of the Plaintiff pending the determination of all matters before the Court.  \r\nv. Costs incurred by the Plaintiff inclusive of legal fees. \r\n  \r\nvi. Any other reliefs which may be ordered by this honourable court.  \r\n The suit was amended to delete the name of National Security as a party to the suit. Eventually the Plaintiff discontinued the action against the Attorney General making the AMA the only defendant in the suit. In view of the change in parties to the suit Plaintiff indicated that it has abandoned reliefs (iii) and (iv) endorsed on the writ.  \r\n In the amended statement of claim the Plaintiff describes itself as a company that deals in the sale and rental of vehicles as well as the operation of washing bays. And that it applied for a parcel of land at Abelemkpe from the Defendant in October 2011 to be used as a washing bay. The defendant initially granted it a temporary permit to be on the land to operate a washing bay. Plaintiff had to spend GH¢25.000.00 to make the land suitable for a washing bay. Defendant became satisfied with the good use the Plaintiff had put the land and decided to execute a lease for Plaintiff in January, 2014 for a period of five years.  \r\n Based on the five year lease, Plaintiff claims to have secured two loans of GH¢40.000 and GH¢35.578.00 to inject into the business on the land. Plaintiff claim to have used the loans secured to build summer huts for clients, drill a borehole and fence round the land. That he was doing brisk business employing forty two persons when on May 2nd 2014 one Major Awuni of the National Security came to the land where Plaintiff is operating its business and indicated that they were there to demolish the property. The National Security carried out the threats of \r\n \r\n3  \r\ndemolition and destroyed the Plaintiff’s property on the land. To Plaintiff National Security intimated to him that the land does not belong to AMA for it to have given it to the Plaintiff. Plaintiff claims that the demolition exercise was completed on 28th May, 2014 when the National Security finally raised every property on the land to the ground.   \r\n Plaintiff claim that based on the representations made by AMA it expended all those monies and after the demolition it contracted a management company to assess the cost of the damage which came up to GHc486.190.19 and as it has suffered this huge financial loss due to the representations of the AMA it seeks those reliefs against it.   \r\n In the amended statement of defence filed by the defendant it denied the essential averments of the Plaintiff and gave a different version of the events between the parties regarding the damage caused the Plaintiff’s property on the land. Defendant claim to have granted a temporary permit for the Plaintiff to be on the land on condition that Plaintiff was not to put up any permanent structure on the land. Besides that defendant was to vacate the land anytime the government needed that land. It further averred that the grant of the land to Plaintiff on temporary basis was in furtherance of its mandate under the Local Government Act, 1993 Act 462 which mandates Assemblies to be responsible for reserved lands of the government.  Again, the Defendant set out in its defence that Plaintiff breached the material terms set out in the agreement it entered into with Plaintiff as it failed to obtain permit for the structures Plaintiff put up on the land.  \r\nTwo main issues emerged after defendant spurned the opportunity to partake in the pretrial conference and these were:  \r\n1. Whether or not Defendant’s grant of the land to plaintiff was lawful.  \r\n2. Whether or not the Plaintiff is entitled to its claim or reliefs against the defendant. \r\n \r\n4   \r\nThe court is not unaware of two additional issues filed by counsel for AMA. I am afraid the court is unable to incorporate those two additional issues as leave of the court was not formally granted. And with the procedure of trial at the Commercial Courts as spelt out under Order 58 of the High Court (Civil Procedure) Rules, C.I 47, with the failure of a pre trial conference to resolve the issues, when the matter is to proceed to trial, the lawyers for the parties are by practice supposed to assist the Judge in settling the issues for trial. Indeed rule 8 of Order 58 states as follows:  \r\n “If no amicable settlement is reached, the pre trial judge shall at the time settlement broke down, direct the parties to the Administrator who shall immediately fix a date before another judge on the issues set down for hearing at the pre-trial settlement conference. The hearing date shall not exceed twenty-one days from the time settlement broke down.”   Having disabled itself from participating in the pretrial conference and the issues for determination having been set down by the pretrial Judge together with the Plaintiff, I do not think it necessary to admit of any other additional issues that had been filed by the counsel for defendant as that had been done in violation of the rules. Before me will be the two issues set down for determination at the pretrial between the two parties.  \r\nEVALUATION OF THE EVIDENCE AND ANALYSIS OF THE LAW  Plaintiff bore the onus to discharge the claim he made before the court in terms of alleging that defendant had led him to be on the land when defendant knew that it had no right to make any grant of the land. Besides, that Plaintiff went on the land based on the representations made to it by defendant which representations had turned out to be false and that he Plaintiff had relied on them to his detriment of having its business brought to its knees by the demolition that was undertaken by operatives of National Security.  \r\n Plaintiff in its attempt to prove its claim called two witnesses. The first being the director of Plaintiff’s company, Bismarck Agyapong and Pw1, Nathaniel Ebo Yawson, a quantity Surveyor, who did an assessment of the value \r\n \r\n5  \r\nof the damage caused to the properties on the land. Defendant on other hand called two witnesses in its quest to fend off the claim of the Plaintiff. These were Twumasi Ankrah and Victor Mensah. Plaintiff tendered the following material evidence that will be useful in evaluating the substance of its case. There is Ex ‘A’ being an application letter written by Plaintiff company to defendant for approval to use the land at Abelemkpe, a government land. Ex “B” is the response of the defendant granting the Plaintiff what it called a temporary permit to be on the land. Pertinent to Plaintiff’s case is also Ex ‘E’ being what it termed an assignment of the land to it by defendant almost two years after the grant of a permit to Plaintiff to be on the land. Though called an assignment, Ex ‘E’only grants Plaintiff the right to be on the land for five years. There is also Ex ‘H’ which is a letter from defendant to Lands Commission for the consent of the Lands Commission to the grant made by defendant.  \r\n My first duty is to resolve the issue as to whether the grant of the land by AMA to Plaintiff was lawful, Plaintiff in its Ex ‘A’ written to defendant for the right to be on the land admits that the land was government land but was only being used as a refuse damp. In both Ex ‘B’ and ‘C’ defendant also concedes that the land is government land and further notes that it is a reservation. And yet in Ex ‘E’ defendant makes a claim in recital two that:  \r\n“whereas AMA has a piece of land located and being at Abelemkpe…”.   \r\nAnd it was based on this assumption of ownership that defendant in Ex ‘E’ makes an allocation to Plaintiff to be on the land for five years. Does government land becomes the land of a Metropolitan or Municipal or District Assembly? Or put in another way does an Assembly such as AMA controls and grants lands that are termed as government lands?  \r\n Learned counsel for defendant has cited sections 10 and 130 of the Local Government Act, Act 462, 1993 that the Assembly has powers over government lands not allocated to anybody. This is in support of the claim made by its DW1 Victor Mensah under cross examination that AMA has powers over such government lands in the following exchanges:  \r\n \r\n6  \r\nQ: If you look at paragraph 3 of the deed of assignment that recital will therefore be wrong  \r\nA: The recital is correct  \r\nQ: When the AMA says that it has land which is the subject matter of this litigation the AMA is misstating the fact of ownership  \r\nA: AMA has jurisdiction over government lands that are not being used immediately by the government of Ghana, and it can grant for the purposes it deems fit subject to certain terms and conditions…  \r\nQ: I put it to you that the AMA cannot make any such grant without the consent of Lands Commission  \r\nA: This is a convention that exists between the agencies of government like AMA and Lands Commission”  \r\nI do not think that the exercise of powers of an Assembly under Act 462 to enter unto any land to carry out inspection, inquiry or execution of works or the improvement and management of human settlement as well as the environment in the district includes the alienation of an Assembly of a government land. All public lands in Ghana under article 257 of the 1992 Constitution has been vested in the President on behalf and in trust for the people of Ghana. Article 258 which creates the Lands Commission and gives it the following functions, among others, as:  \r\n“(1) There shall be established a Lands Commission which shall, in co-ordination with the relevant public agencies and governmental bodies, perform the following functions - (a) on behalf of the Government, manage public lands and any lands vested in the President by this Constitution or by any other law or any lands vested in the Commission; It is therefore clear that the mandate for managing public lands is a function of the Land Commission and not that of the District Assembly.  And that the Lands \r\n \r\n7  \r\nCommission performs that role in co-ordination with the relevant government agencies and institutions. The land has been termed by the defendant as a reserved land. Such powers of the State to create a reserved is by virtue of Land (Statutory Wayleaves) Act, 1963, Act 186. The law gives the power to the President of Ghana to acquire a right of way or any similar right over land whenever the President is of the opinion that it is in the public interest to do. Such a statutory wayleaves may be created in respect of a highway or any other structure by means of an Executive Instrument. In respect of this land it became the land of government in pursuance of Act 186 by the issuance of an Executive Instrument called Lands (Statutory Wayleaves) Accra – Tema Motorway (Phase 11) Instrument, 1973 where in the schedule the land acquired for the extension of the motorway encompasses the land the plaintiff occupied.  \r\nThis land being government land, I find that the only agency or body or authority that is constitutionally mandated to deal with in terms of alienation is not the defendant but rather the Lands Commission. It is the Lands Commission that has the power to deal with the land but not an Assembly who may engage in alienation and later seek the blessings of the Lands Commission. There is no dispute at all between the parties that defendant did grant the land to plaintiff and no issue is joined on that fact. As it is trite that where a party makes an averment and that averment is admitted or is not denied then no issue is joined on that matter for determination. See Brobbey J. (as he then was) in HAMMOND v AMUAH [1991] 1 GLR 89. From the analysis supra I find as a fact and answer in the negative to the first issue that the grant by AMA of the land to Plaintiff was unlawful as it had no such mandate to make an alienation as is seen in Ex ‘E’.  \r\nBut having found the unlawfulness of the grant of the land to plaintiff by defendant; does it make plaintiff entitled to its claim of recovery of the cost of investment on the land. Put differently the court will have to determine whether as plaintiff’s counsel claim that plaintiff was deluded into entering on the land by defendant and if it was any representation made by defendant that caused the plaintiff to invest on the land. Plaintiff’s representative had claimed through its witness statement at paragraph 13 that AMA had made Plaintiff aware of AMA’s title to the land and their right to grant the land to the Plaintiff. Plaintiff further support its claim with Ex ‘E’ that AMA had represented to it that it had title to the land and it was that representation that deluded it to enter the land and caused it to invest there.  \r\n \r\n8   \r\nA look at the exhibits tendered by the parties and also the cross examination of the Plaintiff’s representative seems to show that Plaintiff was fully aware that defendant was not the owner of the land before Plaintiff applied for the right to be on the land. Before examining the exhibits on record, the cross examination of Bismarck Agyapong revealed the following:  \r\n“Q: If you look at the heading it reads “Application for Usage of Government land which presupposes that you are aware that it is a government land  \r\nA: Yes my Lord”  \r\nThe document counsel for defendant was referring to here is Ex ‘A’ written by Plaintiff and it is important that I quote the first paragraph of that exhibit. It reads:  \r\n“The above company has sited a piece of land at Abelemkpe near the overpass. The said land which is a government land is being used as a refuse dump and a hide out for thieves. We think we can put the land into meaningful use at the same time generate income for the sub metro and get the unemployed in the sub metro work to do”.  \r\nFrom the answer of Plaintiff’s representative whiles under cross examination as quoted supra and Ex ‘A’ written by Plaintiff itself,  I find as a fact that Plaintiff was fully aware that the land it made investment on did not belong to defendant but was a government land. And if it knew it to be a government land and not for the defendant the right body to apply for allocation of government land was the Lands Commission and not the AMA. Long before Ex ‘E’ was entered into between the parties in 2014, on 7th August, 2012 defendant had issued Ex ‘B’ to Plaintiff and had told Plaintiff among others that:  \r\n“be reminded that the space is a reserved land and no permanent structure is to be constructed on the land. The government had the right to revoke this temporal [sic] permit without any cost to it, when the government decides to use the space for any purpose”.   \r\n \r\n9  \r\nI have already detailed out how the land became a government reserved land by virtue of an Executive Instrument and Ex ‘B’ reminding Plaintiff that it is such a government land was to put Plaintiff on notice that defendant was not representing that it was the owner of the land. So if Plaintiff had been told in unequivocal terms that the land it was seeking was a government land and its representative in the person of its Managing Director has admitted in court that Plaintiff knew that the land was a government land, and per its own showing and exhibit it state that the land was a government land; could defendant be held liable for making representations that Plaintiff now claims has turned out to be false?  \r\nRepresentation according to the Law of Contract by Chesire & Fifoot, 15th Ed at page 332, the learned authors states that:  \r\n“is a statement of fact by one party to the contract (the representor) to the other (the representee) which while not forming a term of the contract is yet one of the reasons that induces the representee to enter into the contract. So a misrepresentation is simply a representation that is untrue”.   \r\nMisrepresentation could either be a fraudulent one, or a negligent misrepresentation or could be an innocent one. I have found that defendant did not represent to plaintiff that it was the owner of the land and even if in Ex ‘E’ defendant purports to claim to be the owner, that is completely irrelevant as plaintiff knew all along that defendant was not the owner. It is the law on misrepresentation that knowledge of the untruth of a representation is a complete bar to relief to a claim since a Plaintiff cannot assert that he has been misled by the statement. As it was noted in the English case of IRVINE v KIRKPATRICK [1950]7 BELL APP 186 that   \r\n“the misrepresentation and the concealment go for just nothing, because it is not dolus qui dat locum contractui”.  \r\nPlaintiff being fully aware that defendant had no authority to make any alienation of government land whatever losses Plaintiff has incurred for the demolition of its property cannot be blamed on the defendant. Plaintiff’s counsel in his address cited section 28(1) of the Sales of Goods Act, Act 137 that AMA did not have good title to the land and could not have protected the Plaintiff. With the greatest respect to the \r\n \r\n10  \r\nsubmission of counsel for Plaintiff, I fail to appreciate the import of the citing of the Sale of Goods Act. As goods in the Sale of Goods Act, Act 137 is defined under section 81 as:  \r\n“movable property of every description, and includes growing crops or plants and other things attached to or forming part of the land which are agreed to be severed before sale by or under the contract of sale”  \r\nAnd under section 74 of the law it notes that “ “This Act applies to every contract of sale of goods made after the commencement of this Act”.  Illustration of this provision by some few authorities in England and Ghana will show that it is not every contract of sale that comes within the scope of sale of goods. In the English case of MORGAN v RUSSELL [1909] 1 K. B 357; where there was an issue as to whether or not the sale of cinders and slag which were affixed to the land but not detached from the soil was a sale of goods, the court held that it was not a sale of goods, but a sale of an interest in land. Coming home in the Ghanaian case of HALABY v WIREDU [1973] 2 GLR 249 where the plaintiff sold his business and stock-in-trade together with the business premises to the defendant by two separate agreements, Koranteng –Addow J held that it was not every contract of sale that came within the scope of the Sale of Goods and that:  \r\n“The sale of a business was not the sale of goods within the meaning of Act 137. The sale of a business was a sale of more than the goods that were sold by the businessman. It included the sale of goodwill and a whole business organisation. … what was sold consisted also of an interest in land and this could not be the sale of goods”.  \r\nClearly then, alienation of an immovable property is not within the scope of the Sale of Goods Act. With the Plaintiff having failed to prove that defendant misled it into coming unto the land, defendant cannot accordingly be held liable for the destruction to the property or investment made by Plaintiff and the latter has no cause of action against AMA. In the premises it would be futile for the court to proceed to vet the bill of quantity submitted by PW1.  \r\n \r\n11  \r\nThe action of Plaintiff against AMA is accordingly dismissed in its entirety. I will award cost of GH¢6.000.00 against Plaintiff.  \r\n   \r\n            (sgd.) Eric Kyei Baffour, Esq.  Justice of the High Court     \r\nRepresentations:   \r\nPlaintiff represented by Bismarck Agyepong Present  Defendant Absent  Felix Quartey, Esq., for plaintiff Present  Samuel Mensah Akrong, Esq. for defendant present  ', 'links/cases/BIZZACO v AMA.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'RPC/365/2014 ', '', '', 'High Court, Accra', '2016-04-05', ''),
(587, 'BSIC (GHANA LIMITED) SAHEL SAHARA BANK \r\n          VS.  \r\n1. CANDY-LOVE QUARMNYE,  \r\n2. COMFORT NIMAKO DOME ', '\r\nJUDGEMENT  \r\nThe Plaintiff has sued the Defendants jointly and severally for the following reliefs endorsed on its writ filed on the 1st day of March, 2013.  \r\na) Recovery of the sum of One Hundred and Thirty-One Thousand, Six Hundred and Forty-Two Ghana Cedis , Seventy -Four Pesewas (GH?131,642.74) being as of the 17th day of January, 2013, the outstanding balance in respect of the said credit facility granted by Plaintiff to the 1st Defendant b) Recovery of the agreed rate of interest of 30.5%per annum plus a margin of 3% per annum on a) above from the 17th January, 2013 till date of final payment. c) Recovery of the agreed penal rate of 10% on facility amount above the agreed interest rate on ( a) and (b ) above from the 17th day of January, 2013 to date of final payment  d) An order for the judicial sale of the residential property belonging to the 2nd Defendant at Plot No. 853 Block 23, Section 171/2, Dome, Accra e) Costs including legal fees.  \r\nPlaintiff avers that it is a limited liability company engaged in the business of banking. On or about the 29th day of January, 2010, it granted a credit facility to the 1st Defendant, a customer of Plaintiff bank.  As security for the repayment of the said loan, the 1st Defendant provided the following: a) A Mortgage of 2nd Defendant’s property situate in Dome, Accra  b) Assignment of all receivables in an Assignment between the Plaintiff and 1st Defendant. c) A Personal Guarantee of the 1st Defendant valued at One Hundred and Sixty-Eight Thousand, Two Hundred and Eighty-Four Ghana cedis (GH?168, 284.00).  d) A Floating Charge dated the 3rd day of February, 2010.             By the terms of the facility, the principal amount, the interest and other charges became due and payable immediately upon a failure by the 1st Defendant to pay the facilities on the due dates or whenever called in. According to the Plaintiff, by a letter dated the 18th day of February, 2011, it  reminded the  1st Defendant of the expiry date for the facility which was the 28th day of February, 2011 and also informed the 1st Defendant of its level of indebtedness, which stood at Sixty-Three Thousand, Two Hundred and Seventy-Three Ghana Cedis , Six pesewas (GH? 63,273,06)  at the time  but the 1st Defendant  failed to \r\n3  \r\nhonour its obligations such that its indebtedness stood at  One Hundred and Thirty-One Thousand, Six Hundred and Forty-Two Ghana Cedis, Seventy -Four Pesewas (GH?131, 642.74) as at the 17th day of January, 2013 . It is for this reason that Plaintiff has instituted the present action.  \r\nThe 1st Defendant on the 16th day of August, 2013 entered conditional appearance to Plaintiff’s writ and on the 27th day of November, 2013 filed a defence to same. The 2nd Defendant however, though served by substituted service with the Writ and Statement of Claim failed to enter appearance. The Court therefore, on the 27th day of October, 2014 entered judgment in default of appearance against her.   \r\nSubsequently, following the Parties’ inability to settle at the pre-trial settlement conference, this matter was set down for trial.  The Court accordingly, on the 11th day of March, 2016 gave directions regarding the further conduct of the suit. Counsel for 1st Defendant, though duly notified of this Court’s orders regarding the filing of witness statements failed to comply with same. Hearing notices were thereafter served on Counsel for 1st Defendant to attend the case management conference on the 18th day of May, 2016 but he failed or refused to appear without offering any explanation for his absence.  In the light of the persistent default on the part of 1st Defendant, this Court on the 18th day of May, 2016 struck out 1st Defendant’s Statement of Defence and Counterclaim in accordance with Order 32 Rule 7A(3)b of the High Court Civil Procedure Amendment Rules, 2014 CI 87. Copies of the order striking out the Defence and Counterclaim were served on both 1st Defendant and her Counsel but this drew no reaction from them.  The Plaintiff’s suit therefore stood uncontested at the trial. It however remained for this Court to determine whether or not Plaintiff is entitled to the reliefs endorsed on its Writ of Summons, for Section 14 of the Evidence Act, Act 323 states as follows: Except as otherwise provided by law, unless it is shifted a Party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.  \r\nThe effect of this provision is to cast the burden of proof and of persuasion on the Plaintiff who in this case, is required to adduce satisfactory evidence to substantiate its assertions, failing which its action must fail.  \r\n4  \r\nKwaku Dzidepo, a loans recovery officer of Plaintiff bank, testified on Plaintiff’s behalf.  His evidence was essentially in line with Plaintiff’s pleadings.  In support of his evidence he tendered the following documents: EXHIBIT A - a copy of a Credit Facility Offer Letter dated the 29th day of January, 2010 addressed to 1st Defendant who duly signified her acceptance of the terms of the facility by the execution of same. EXHIBIT B - a copy of an agreement dated the 3rd day of February, 2010 and entered into between Plaintiff and 1st Defendant whereby 1st Defendant assigned all receivables of Candy-Love Enterprise to Plaintiff. EXHIBIT C - a copy of a Guarantee executed by the 1st Defendant in favour of Plaintiff. EXHIBIT D - a copy of a Floating Charge dated the 3rd day of February 2016 made in favour of Plaintiff by the 1st Defendant EXHIBIT E - a Deed Of Mortgage dated the 4th day of March, 2010 and entered into between Plaintiff and 2nd Defendant in respect of 2nd Defendants property situate at Dome together with a memorandum of registration of the said mortgage deed. EXHIBIT F - a copy of a Statutory Declaration sworn to by the 2nd Defendant confirming her consent to her property being used as security for the loan facility granted 1st Defendant. EXHIBIT G - a copy of the Land Title Certificate covering the property of 2nd Defendant used as security for the loan facility. EXHIBIT H - a Valuation Report issued in February 2010 in respect of 2nd Defendant’s property. EXHIBIT J - a copy of letter dated the 19th day of April 2010 notifying the 1st Defendant of the Disbursement of the Credit Facility to 1st Defendant on the 16th of February 2016. EXHIBIT K - a letter dated the 18th day of February 2011 reminding the 1st Defendant of the impending Expiry of the Credit Facility on the 28th day of February 2011. EXHIBIT L - 1st Defendant’s Statement Of Account covering the period 1st February, 2010 31st March, 2016 which indicate that the 1st Defendant has failed or refused to make any payments on the facility since the 1st day of February 2011. EXHIBIT M - a Final Demand Notice dated the 14th day of June, 2012 addressed to 1st the Defendant, informing her of her level of indebtedness to Plaintiff at the time and calling on her to settle same within Seven (7) days of receipt of the notice or face legal action.  \r\nI have carefully examined the above listed exhibits and find that they amply support the case of the Plaintiff.  The evidence adduced also stands unchallenged. The Plaintiff’s claim therefore succeeds. \r\n5   \r\nI accordingly enter judgment for the Plaintiff against the Defendants jointly and severally for the following reliefs: a) Recovery of the sum of One Hundred and Thirty-One Thousand, Six Hundred and Forty-Two Ghana Cedis, Seventy -Four Pesewas (GH?131,642.74) being as at 17th   January 2013, the outstanding balance owed  by the 1st Defendant on the credit facility granted the 1st Defendant by Plaintiff.  \r\nIt would appear that reliefs (b) and (c) endorsed on the Writ of Summons are at variance with the reliefs prayed for in the witness statement of Plaintiff’s representative.   As regards relief (b) indorsed on the Writ of Summons, Plaintiff seeks an order for the “Recovery of the agreed interest of 30.5% per annum plus a margin of 3% per annum on (a) above from 17th January 2013 to date of final payment.”  However, in the witness statement filed by Plaintiff’s representative, Plaintiff prays for “Recovery of the agreed interest rate of 35% per annum on (a) above from January, 2013 to date of final payment.”  \r\nAgain, with respect to relief (c), where the endorsement on the Writ of Summons seeks an order for the  “Recovery of the agreed penal rate of 10% on facility amount above the agreed interest rate on  (a) and (b) above from 17th day of January, 2013 to date of final payment”, Plaintiff’s representative in his testimony prayed for the “Recovery of the agreed penal rate of 12% on the credit facility amount above the agreed interest rate on (a) and (b) from the 17th day of January 2013 to date of final payment”.   I find from EXHIBIT A that the Parties agreed on an interest rate of 35.5% and a penal rate of 12% per annum and not the rates indicated on the Writ of Summons.  \r\nIn any event, this discrepancy in my view, is resolved by Order 11 Rule 15(2) of the High Court Civil Procedure Rules (CI 47) which states that the “Plaintiff may in the Plaintiff’s statement of claim  alter, modify or extend any claim made by the Plaintiff in the endorsement of the writ without amending the indorsement .”  This is subject of course, to the rule that the allegations made in the Statement of Claim should arise from the same facts giving rise to the cause of action mentioned in the Writ of Summons.    \r\n6  \r\nApplying the said rule to the facts of this case, paragraphs 6 (a) and (b) of the Plaintiff’s Statement of Claim in my view, will serve to override the above mentioned defects in Plaintiff’s writ.   In the premises, judgement is further entered in favour of Plaintiff against the Defendants for:  b) Recovery of the agreed interest rate of 35.5% per annum on (a) above from the 17th day of January, 2013 to date of final payment. c) Recovery of the agreed penal rate of 12% on the facility amount above the agreed interest rate on (a) and (b) above from the 17th day of January 2013 to date of final payment.  \r\nIn addition to the above reliefs, relief (d) prays for the judicial sale of residential property belonging to 2nd Defendant situated at Plot No. 853 Block 23, Section 171/2, Dome, Accra. I do not think relief (d) can be granted in addition to reliefs (a) (b) and (c).  The essence of securing the loan facility with the 2nd Defendant’s property was to ensure that the said property could be sold to offset any amount owed Plaintiff, in the event of a default on the part 1st Defendant.  This Court cannot therefore, order the Defendants to pay the amount outstanding on the loan facility in addition to ordering the sale of 2nd Defendant’s property.  Reliefs (a), (b) and (c) on the one hand and relief (d) on the other, can only be granted in the alternative. I will accordingly order in the alternative, the judicial sale of 2nd Defendants property situated at Plot No. 853, SECTION 171/2, DOME, ACCRA in event of a failure by the Plaintiff to recover the amount owed as granted per reliefs (a) (b) and (c).   \r\nIn conclusion, I must say that the work of this Court would have been much easier, had Counsel for Plaintiff applied a little more diligence in the presentation of Plaintiff’s case to this Court. It is my hope that Counsel will in future do the necessary to assist the Court in doing its duty.  \r\nI award costs of Thirteen Thousand Ghana Cedis (GH?13,000.00) in favour of Plaintiff    \r\n         (SGD)            MRS. AKUA SARPOMAA AMOAH             JUSTICE OF THE HIGH COURT aey/ ', 'links/cases/BSIC GHANA LIMITED V CANDY LOVE QUARMYNE 2.pdf', 'Yes', '', '2016', 'high', '', 'AKUA SARPOMAA AMOAH (MRS), J ', 'Civil', '', 'BFS/52/2013 ', '', '', 'High Court, Accra', '2016-10-28', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(588, 'COMFORT Y. BOAMPONG, MARGARET MENSAH  \nVRS MARGARET AMANKWAH', '1  \r\nIN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, GHANA IN ACCRAON MONDAY THE 29TH DAY OF APRIL, 2016 BEFORE HER LADYSHIP DORIS BEMPONG MRS.  HIGH COURT JUDGE  \r\nSUIT NO. BFA 41/2013 \r\n1. COMFORT Y. BOAMPONG 4  LAKE POOL STREET    KANESHIE, ACCRA               PLAINTIFFS 2. MARGARET MENSAH E.P. SCHOOLS  PEKI-BLENGO       \r\nVRS: MARGARET AMANKWAH    4 LAKE POOL SCHOOL         DEFENDANT SANTA MARIA, ACCRA ------------------------------------------------------------------------------------------------------ J U D G M E N T ------------------------------------------------------------------------------------------------------  \r\nParties: Present.  Counsel: Ntony for Plaintiff with Cynthia Ohene present.  \r\nPlaintiff’s claim against the Defendant is for: 1. An Order of Interlocutory Injunction, restraining the Defendant, her agents and servants from collecting further rent from the occupants of 6 hall and chambers until Letters of Administration is obtained and from doing any construction in the house until the property is shared. 2. A declaration that the Plaintiffs and Defendant and her children have equal interest in the estate of the late Nelson Boampong and that the 2nd Plaintiff is a Co-owner of the 1st block with the late Nelson Boampong. 3. An Order to the Defendant to account for the rent collected since 2011. 4. Costs.  \r\n2  \r\nThe Plaintiffs case as gleaned from their statement of claim was that the Plaintiffs were beneficiaries of the estate of the late Nelson Boampong who was the father of 1st Plaintiff and husband of the 2nd Plaintiff.  \r\nThe estate includes two blocks of buildings consisting of 6 Units of hall and Chamber apartments. According to 1st Plaintiff, the Defendant who is her stepmother upon the death of her father, in 2010, rented out the rooms in the house without Letters of Administration.  She said Defendant brought out a document she presented as the Last Will and Testatment of the deceased and went ahead to distribute the estate according to the alleged will. Plaintiff says that the 1st block of building was put up by the 2nd Plaintiff and she is therefore beneficiary and especially so when she had a subsisting marriage with the deceased (Nelson Boampong).   \r\nPlaintiff contends that the will was a fake and forged one and that Letters of Administration should be taken to administer the estate of her father. 2nd Plaintiff corroborated the evidence of 1st Plaintiff and stated that the marriage between her and the deceased was still subsisting and that she was an only child and when her father fell sick she had to go to her hometown to go and look after him. She said that deceased kept sending her money and visiting her as a wife until he died.   \r\nShe gave evidence to show that she was in the charcoal business in her husband and out of the proceeds at their business she bought the piece of land at Santa Maria and built the 1st block comprising 4 hall and chamber units. She contends that since she is a surviving wife and helped to build the 1st block she is entitled to a portion of the estate.  \r\nDefendant’s case is that upon the death of her husband she discovered a will which had been prepared by the deceased and she handed same to the family.   \r\nAccording to her the will was read at the court and the property was distributed per the dictates of the sand will. Defendant stated that the 2nd Plaintiff had left the \r\n3  \r\nmarriage and relocated to her hometown. She denied that the 2nd Plaintiff was a wife and therefore a beneficiary.   \r\nShe again denied that the 2nd Plaintiff was a contributor to the construction of the house she had already left in the 1980’s when the house was built.  \r\nAt the close of pleadings, the issues identified and raised for determination were; 1) Whether the 2nd Plaintiff was a wife of the late Nelson Boampong and therefore a beneficiary to his estate. 2) Whether the 2nd Plaintiff contributed in the construction of the 1st block of the houses at Santa Maria and consequently a joint owner with the late Nelson Boampong. 3) Whether the late Nelson Boampong made a valid will on the disputed property which could be proved in common form and admitted to probate. 4) Whether the Defendant could deal with the deceased person’s property without probate or Letter of Administration.  \r\nEvidence in the matter so far indicates to the court that there was no dissolution of Marriage between the 2nd Plaintiff and Nelson Boampong. The 2nd Plaintiff was emphatic that she was still married to Nelson Boampong at the time of his death and that she had relocated to her hometown to take care of her sick father.  \r\nAccording to her, Nelson used to visit her and send her money for her upkeep during the whole time that she was in her hometown.  \r\nEvidence of Magaret Nkasiah (PW1) and Ken Opoku Asiedu, Customary Successor of Mr. Boampong was to the effect that they knew of no customary dissolution of the said marriage. Defendant also was unable to challenge the existence of the marriage or prove otherwise. The Court therefore finds as a fact that the marriage between Nelson Boampong and the 2nd Plaintiff was still existing at the time of his death and that made her a surviving spouse who in entitled to a share in his estate.  \r\n4  \r\nOn the question of whether 2nd Plaintiff contributed to the building of the house especially the 1st block, the Court is of the view that since the 2nd Plaintiff and the deceased worked together in the charcoal business and it has been confirmed that the land was purchased with proceeds from the business, the 2nd Plaintiff must have contributed.   \r\nPW1 confirms that on several occasions that she visited the couple on her own antenated trips, she saw building materials in their home in Mamprobi and 2nd Plaintiff had told her that she and her husband were building a house at Santa Maria. This was also confirmed by DW2. Mary Anokye Duah under cross examination.  \r\nThe Court is convinced that the 2nd Plaintiff is in so far as she is a spouse entitled to a share in her husband’s estate. In case of MENSAH VS MENSAH 2012 SCGLR 311, The Supreme Court did away with the requirement of substantial contribution of a wife to jointly owned property. Again Article 22 (1) of the 1992 constitution provides that;  “A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will”.  \r\nThe supposed will of Nelson Boampong was exhibited in Court and the question is whether or not it was a valid will which was proved in common form.  \r\nEvidence adduced so far indicates that the supposed will was alleged found by the Defendant and presented to the family of Late Boampong.  \r\nEvidence of DW2 Ken Opoku Asiedu who is the customary successor of the deceased said he was shown a copy of the will but it had no witnesses or mentioned no executors. He again said that though no probate was taken and no Letters of Administration taken, the family went ahead to distribute the estate according to the dictates of the “Will”.  \r\n5  \r\nThe Wills Act 360 of 1971 lays out the requirements of a valid Will. Section 2 of Act 360 provides that, a Will is not valid if the signature or sign of the testator is not made in the presence of 2 or more witnesses and theirs in turn made in the presence of the testator. Section 3 of Act 360 also requires that an executor or executors be named in the will to execute the said Will. These are important requirements and the Court is convinced that since Nelson Boampong’s will did not satisfy these requirements, it was incomplete and therefore not a valid will that could have been proved in common form. Since no probate to the said will was taken the family could not deal with the estate of the deceased.  \r\nOrders 66 rule 3 of CI 47, (High Court Civil Procedure) rules 2004 provides that;            “Where any person other than the person named as an executor in a will or appointed by Court to administer the estate of a person takes possession of and administer or otherwise deal with the property of a deceased person, the person shall be subject to the same obligation and liabilities as an executor or administrator and shall in addition be guilty of the offences of intermeddling or liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or both”.  \r\nEvidence adduced shows that the Defendant and her witness without obtaining Letters of Administration or Probate went ahead to distribute the estate of the late Boampong.    \r\nIt has also been shown that the Defendant collects rents and was trying to construct an extension in the house. It was also been shown that the 1st Plaintiff has also been receiving parts of the rent accruing to the hall and chamber that was given to her in the supposed distribution.   \r\n6  \r\nThis was not denied by both 1st Plaintiff and Defendant. Defendant said she paid school fees with the rents collected. Both parties cannot under law deal with the deceased person’s estate without obtaining probate or Letters of Administration.  \r\nIn the light of the foregoing, I hold that, the Defendant, her agents and assigns are restrained from dealing with the estate of the deceased Nelson Boampong until such time that the Letters of Administration shall be obtained and the property lawfully distributed in accordance with PNDCL 111.  \r\n(2)  It is hereby declared that the Plaintiffs, Defendant and her children by Nelson Boampong are all equal beneficiaries in the estate of Nelson Boampong.  \r\n(3)  Both parties i.e. 1st Plaintiff and Defendant are to account for the rents since 2011.    \r\n             (SGD)    H/L DORIS BEMPONG MRS. JUSTICE OF THE HIGH COURT       \r\nE.L……..  ', 'links/cases/COMFORT YAA BOAMPONG.pdf', 'Yes', '', '2016', 'high', '', 'DORIS BEMPONG (MRS), J', 'Civil', '', 'BFA 41/2013', '', '', 'High Court, Accra', '2016-04-29', ''),
(589, 'DALEX FINANCE & LEASING CO. \r\nVRS  \r\n1. DEES & D INVESTMENT LIMITED \r\n2. STEPHEN DEE LARBI   TEMA  \r\n3. AMELE DEE LARBI ', ' \r\nRULING  \r\nThe main issue requiring my adjudication in this application is whether or not the Plaintiff is entitled to summary judgment on its reliefs as endorsed on the writ of summons and the statement of claim. \r\nA brief facts of the case is that the Plaintiff, a finance and leasing company, granted a loan facility to the Defendants which was disbursed in three (3) tranches.  As security for the loan, the 2nd and 3rd Defendants guaranteed separately to be personally liable either jointly or severally with 1st Defendant in the event of default by the 1st Defendant.  As further security for the loan, 1st Defendant mortgaged its filing station situate at Ashaley Botwe, Accra, in favour of the Plaintiff.  The relationship between the parties subsequently went sour as the 1st Defendant, as alleged by the Plaintiff, failed to meet its repayment commitments in respect of the 1st and 3rd tranches resulting in the suit before this court.   \r\nThe Plaintiff in its writ asked for the following reliefs: \r\n2  \r\n(a) The sum of GH?674,923.27 (Six Hundred and Seventy Four Thousand, Nine Hundred and Twenty Three Ghana Cedis, Twenty Seven Pesewas) which said sum is the outstanding balance of two facilities granted to 1st Defendant and guaranteed by 2nd and 3rd Defendants as at the 8th day of October, 2014. (b) Compound monthly interest of 4.5% from the 9th day of October, 2014 till the date of final payment. (c) Cost inclusive of legal cost. \r\nAnd also for   (d)  Judicial sale of 1st Defendant’s mortgaged property situate at Ashaley Botwe, Accra, covering an area of 0.995 acres. \r\nI have read the application for summary judgment, the supporting affidavit and examined the various exhibits put in evidence by the Plaintiff and the defence filed by the Defendants to this suit.  I have also given thoughtful consideration to the provisions of the High Court (Civil Procedure) Rules, 2004, C.I. 47 (hereinafter, “C.I. 47”) and the principles governing the grant or otherwise of summary judgment.  It may be useful to reproduce the relevant extract from the C.I 47, which in Order 14 rule 1 provides as follows: \r\n“14.1. Where in an action a defendant has been served with a statement of claim and has filed appearance, the plaintiff may on notice apply to the court for judgment against the defendant on the ground that the defendant has no defence to a claim included in the writ or to a particular part of such a claim, or that the defendant has no defence to such a claim or part of a claim, except as to the amount of any damages claimed.” \r\nThe essence of summary judgment was echoed by the Supreme Court in the case of BALLAST NEDAM BV vrs. HORIZON MARINE CONSTRUCTION LTD [2010] SCGLR 435 where the court held that  \r\n“… although the procedure for summary judgment under Order 14 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), enables the plaintiff to obtain speedy and summary judgment without a trial even in cases where the defendant to the action expresses an intention to defend the action, the court may only grant the application in cases where the defendant is unable to set up a good defence or raise an issue which ought to be tried …” \r\nIn the earlier decision of SANUNU vrs SALIFU [2009] SCGLR 586, the Supreme Court held that under Order 14 rule 1 of C.I. 47, a trial judge  \r\n“… must come to the conclusion that on the face of the claim there is no defence to the action. A defence set up need only show that there is a triable issue; and leave to defend ought to be given unless there is clearly no defence in law and no possibility of a real defence on the question of fact.” \r\n3  \r\nElaborating on the objectives of summary judgment under Order 14, Akuffo, J.S.C., had this to say in the unreported Supreme Court case of SAM JONAH v. DUODU-KUMI [2003-2004] SCGLR 50: \r\n“The objective of Order 14 is to facilitate the early conclusion of actions where it is clear from the pleadings that the defendant therein has no cogent defence. It is intended to ‘prevent a plaintiff being delayed when there is no fairly arguable defence to be brought forward.” (See Halsbury’s Laws of England, Fourth Edition, 516). What we are, therefore, required to do in this appeal is to ascertain whether, on the totality of the pleadings and all matters before the High Court at the moment it delivered the Summary Judgement, the Respondent had, demonstrably, any defence, in law or on the available facts, such as would justify his being granted leave to defend the Appellant’s claim.” \r\nIn reliance on what Kpegah J, (as he then was) stated in the case of YARTEL BOAT BUILDING CO. v. ANNAN [1991] 2 GLR 11,   at pages 14 and 15 of the report, I find that there is no denying the fact that the Applicant has met the preliminary requirements provided under Order 14 of C.I. 47 for an application for summary judgment.  That is, (i) the statement of claim was served on the defendant; (ii) The defendant entered appearance; and (iii) the affidavit in support of the application complied with the requirements of Order 14 rule 2 in providing a verification of the fact on which the relevant claim was based and stating that in the deponent’s belief, the Defendants have no defence to the claim.   \r\nWhat then is the Plaintiff’s case?  In the instant case, it is the Plaintiff’s contention that the Defendants have not materially denied the substance of its claim and merely stating in their statement of defence that they do not owe Plaintiff the sum claimed and alleging that they have not been given a statement of account does not constitute a defence.   \r\nThe Defendant has not filed any affidavit in opposition to this application for summary judgement.  Per the provisions of Order 14 rule 3(1) which states as follows: “3. (1) A defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court” (emphasis added), \r\nthe Court shall rely on the statement of defence filed by the Defendants to ascertain their case. In contrast to the Plaintiff’s claim, the issues raised as the grounds of defence in Defendant’s statement of defence can best be summarised in the following terms: \r\n(i) The ownership of the fuel station situated at Ashaley Botwe, which property was used in securing the loan.   (ii) Defendants contend that they have made substantial payments to the Plaintiff, which, if accounts are gone into would render their outstanding balance to be either far below the amount stated by the Plaintiff to be due and owing or would indicate that Defendants are not indebted to the Plaintiff at all; and   \r\n4  \r\n(iii) Defendants request for the appointment of an independent reputable accounting firm to ascertain the true amount owed to the Plaintiff. \r\nTo challenge an Order 14 application, a defendant needs to show that there is a triable issue as to the facts.  In this respect, a defendant must raise an arguable issue that requires a trial in order to determine it once and for all.  See the BALLAST NEDAM BV vrs. HORIZON MARINE CONSTRUCTION LTD case, supra, where the court stated that “…where the defendant to the action expresses an intention to defend the action, the court may only grant the application in cases where the defendant is unable to set up a good defence or raise an issue which ought to be tried …”.  In other words, where the defendant raises an issue which ought to be tried, the court may not grant the application for summary judgement. \r\nThe issue of the ownership of the fuel station which was mortgaged by the Defendants to secure the loan facility is not an issue that can simply be disposed of on affidavit evidence only.  A trial may have to be gone through to determine this issue once and for all.  Further, per the pleadings, it appears that there is a dispute regarding the amount of money that has been paid in relation to the balance that is due and outstanding.  Again, by requesting for accounts to be gone into, Defendants have raised a defence known in law.  In this regard, I am reminded of the dictum of Lord Coleridge C. J., in the case of SHEBA GOLD MINING CO., LTD. vrs. TRUBSHAWE [1892] 1 Q.B. 674 found at p. 682 of the report which was referred to by her Ladyship, Justice Cecilia Koranteng-Addow in the local case of GHANA COMMERCIAL BANK v. BINOO-OKAI [1982-83] GLR 74-81.  The latter case involved an application to enter final judgment on a specially indorsed writ and to claim interest up to final payment upon the defendant’s failure to settle its debt to the Plaintiff bank, under Order 14, r.1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A).  In her decision, Justice Cecilia KorantengAddow quoted Lord Coleridge C. J., as follows:  \r\n“…We think this is as it should be.  It is important that a man, who is to be proceeded against summarily for judgment, should know exactly how much he has to pay if he wishes to stay the action, and should not be called upon to take the risks of calculation.” \r\nIndeed, on the authority of Order 29 rule 2 (1) of C.I. 47, any party to a suit may apply to the court at any stage in the cause or matter for any necessary accounts to be taken. \r\nI am of the candid opinion, therefore, that upon examining the entirety of the pleadings so far filed in the case, it is clear that there are triable issues (that is, the issue of the amount due and outstanding and the ownership of the fuel station) between the Plaintiff and the Defendants.  These are issues which cannot simply be swept under the rag and ignored and when taken together make the applicability of Order 14 impossible against the Defendants.  As noted by Kpegah J (as he then was) in the YARTEL BOAT BUILDING CO. v. ANNAN case, supra, Order 14 “… prescribes the procedure to be followed by a plaintiff who wishes to obtain summary judgment against his adversary. It does not confer on a plaintiff an absolute right to proceed for summary judgment in every case….” \r\n5  \r\nI therefore refuse the application and award costs assessed at GH? 1,000.00 against the Plaintiff in favour of the Defendants jointly. \r\n    \r\n         ……………………………………………….. JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION)    \r\nCOUNSEL:  SAMUEL M. CODJOE, ESQ., OF LAW TRUST COMPANY FOR PLAINTIFF/APPLICANT THOMAS ACQUAH, ESQ., OF LAW TEMPLE FOR DEFENDANTS/RESPONDENTS  \r\nCASES REFERRED TO: BALLAST NEDAM BV v. HORIZON MARINE CONSTRUCTION LTD [2010] SCGLR 435 \r\nSANUNU v. SALIFU [2009] SCGLR 586 \r\nSAM JONAH v. DUODU-KUMI [2003-2004] SGLR 50: \r\nYARTEL BOAT BUILDING CO. v. ANNAN [1991] 2 GLR 11, at pages 14, 15 \r\nGHANA COMMERCIAL BANK v. BINOO-OKAI [1982-83] GLR 74-81 \r\nSHEBA GOLD MINING CO., LTD. V. TRUBSHAWE [1892] 1 Q.B. 674 at p. 682  ', 'links/cases/DALEX V. DEE''S AND INVESTMENT LTD.pdf', 'Yes', '', '2016', 'high', '', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'BFS/274/2014', '', '', 'Hgh Court, Accra', '2016-01-19', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(590, 'DANAA NANTOHMAH\r\n  VRS THE RESIDENT DIRECTOR', 'JUDGMENT \r\n  Plaintiff in a writ issued on the 11th of March, 2013 claimed per the endorsement the following reliefs against the defendant:  \r\ni. A Declaration that the purported termination of the employment is tantamount to wrongful dismissal and or termination and is unlawful.  \r\nii. Damages for wrongful dismissal and or termination.   \r\niii. An order that the Defendant shall pay to the Plaintiff all entitlements due to him at the date of dismissal and or termination under his employment contract and or Conditions of Service in the workplace. \r\n2 | P a g e  \r\niv. Damages for discriminatory and unfair labour practice.  \r\nv. Any other relief found due   \r\nPLAINTIFF’S CASE  Plaintiff recounts the grounds upon which he mounts the claim he seeks in the statement of claim that he was employed by the Defendant as its Programme Coordinator in April 2009, and was made a permanent staff two years afterward in 2011.  \r\nPlaintiff claim that during his employment he spearheaded the unionisation of the employees of the Defendant even though the Resident Director was opposed to the idea of the unionisation of the employees. Plaintiff avers that without any prior consultation with or input from the employees, the management of the Defendant company drafted and served on the employees new Conditions of Service which the employees were required to sign. \r\nPlaintiff asserts that he and other leaders of the local union resisted the management’s efforts and this made him a specific target of Defendant’s Resident Director. \r\nPlaintiff states that in or about 2012 he coordinated a programme which involved a visit of a member of Parliament of Germany to Ghana, Dr. Barbel Kofler. At the conclusion of the programme the Resident Director orally reviewed the programme with the Plaintiff.  Plaintiff states further that subsequently the Resident Director of the Defendant in her determination to find fault with the Plaintiff served on him a letter terminating his employment. \r\nIt is the case of the Plaintiff that the action of the Resident Director is in breach of the rules of natural justice- audi alteram partem and is clearly a punitive action against him. Plaintiff avers that the acts of the Resident Director amount to wrongful dismissal. Plaintiff therefore claims that he has been denied his lawful \r\n3 | P a g e  \r\nentitlements under his contract of employment and conditions of service, and has suffered substantial damages.  \r\nDEFENDANT’S CASE \r\nDefendant denies all the material averments made by the Plaintiff, and makes the case that it had at all material times treated the Plaintiff fairly.  \r\nDefendant avers that the employees of the Defendant were unionised in 2003 long before the Plaintiff was employed, and that it was only in 2011 that the Plaintiff was appointed the Local Union Chairman and that it was not opposed to unions in Ghana.  \r\nDefendant asserts that the Plaintiff had failed to discharge his duties properly in respect of the programme organised by him on the 17th February, 2012 to Bonwire in the Western Region. The Defendant contends further that on the 27th February 2012 the Resident Director invited the Plaintiff to a hearing on the alleged misconduct in respect of the events that took place during the visit of the German MP on the 17th February 2012, and that at the said hearing the Plaintiff did not admit his mistakes or apologize. Defendant says that the Plaintiff was given a fair hearing and is not entitled to any of its reliefs. \r\nPlaintiff joined issues with the defendant in his reply and noted further that the meeting held cannot be claimed to be the hearing as that was only a standard practice after such visit. \r\nISSUES FOR TRIAL \r\nThe following issues were filed by the counsel for Plaintiff and with additional issues by the defendant and same were adopted by the court for determination: \r\n1. Whether the Defendant’s then resident director exhibited hostility and or resentment towards trade union activities by the Plaintiff and other staff at the workplace. \r\n4 | P a g e  \r\n2. Whether the Plaintiff as local union chairman in response to popular staff sentiments led the resistance to the Defendant’s attempt to impose a new or revised Conditions of Service without prior consultation or negotiations. 3. Whether the visit of the German MP became the casus belli which the Defendant seized upon to get rid of the Plaintiff. 4. Whether there was over a formal query issued to Plaintiff or formal disciplinary proceedings before the Defendant purported to dismiss Plaintiff. 5. Whether the purported dismissal was wrongful and unlawful. 6. Whether the Plaintiff has suffered damage and loss as a result of his purported dismissal 7. Whether Plaintiff is entitled  to the reliefs sought 8. Any other issues arising from the pleadings. The additional issues consisted of the following: \r\na. Whether or not Plaintiff’s behaviour during the one week visit of Dr. Baerbel Kofler, a German Minister of Parliament to Ghana amounted to proven misconduct. b. Whether or not the reputation of the defendant was damaged through the behaviour of the plaintiff during the visit of the German Minister to Ghana. c. Whether or not the plaintiff was given the opportunity to be heard by the defendant on his alleged misconduct before dismissal. d. Whether or not the dismissal of the plaintiff was lawful. e. Whether or not the defendant owes the plaintiff the payment of any entitlements under his employment contract.  \r\nANALYSIS OF THE EVIDENCE AND EVALUATION OF THE LAW: \r\nFrom the issues and additional issues making a total of twelve issues the court can deduce that they can all be subsumed in about three or four issues of whether \r\n5 | P a g e  \r\nthe dismissal or the termination of the appointment of the plaintiff was fair, whether or not plaintiff was entitled to a hearing before dismissal/termination and was so denied one and finally whether plaintiff had made a case of entitlement to damages. \r\nThis case just like the earlier transferred cases before me like GEORGE SARPONG v WISCONSIN UNIVERSITY, (Unreported) dated 16th June 2016; which I had placed on record and now repeat of the the real and substantial difficulty that afflicts me even though as a trial Judge I have not had the benefit of listening to any of the evidence of the parties in court. This has been so because by some unfortunate coincidence, so notorious in this country for me to recount here, and whose ramifications are still raging, the trial Judge that tried the case to conclusion, has not had the privilege to preside over the judgment of the matter. Not presiding as an appellate Judge, nonetheless, my evaluation is limited to only the evidence on record same as the task that confronts any appellate court. And that does not in any way derogate or detracts or steal the glow out of the findings to be made upon analysis of the evidence.  \r\nPlaintiff testified in person and did not call any witness. He tendered, among others, the following vital evidence before the trial court in his evidence on the 4th of March, 2014: contract of employment as Ex ‘A’, job description as Ex ‘B’, employment contract as Ex ‘C’, conditions of service as Ex ‘D’, the conditions of service of 2011 as Ex ‘E’ and finally his dismissal letter as Ex ‘F’. Defendant on the other hand testified through its Resident Director and two witnesses as Dw1 and Dw2.  \r\nIn the endorsement Plaintiff claims that the “purported termination of the employment is tantamount to wrongful dismissal and or termination”. And in relief ii he “seeks damages for wrongful dismissal or termination”. Throughout the addresses of the counsel for both parties I did not find a serious attempt to \r\n6 | P a g e  \r\ndistinguish between the termination and dismissal. Plaintiff proceeded as if the two are virtually the same. I find it necessary before launching into analysis of the evidence that I acquit my mind with respect to dismissal and termination under labour law. As each has a different implication.  \r\nThe courts draw a distinction between termination of an employee’s contract of employment and the dismissal of an employee. The Supreme Court in the case of ISAAC KOBI & 24 ORS v GHANA MANGANESE COMPANY LTD HI/70/2004 held that:  \r\n“Clearly their severance of employment was not a summary dismissal but a termination of appointment. Without the need to quote any legal authorities, it is common knowledge that clear distinctions exist between the two. I will only attempt to note the commonest. While in summary dismissals the employer may state reasons for their action, the employer is not equally bound to give any reason for termination of appointment. Besides this, an employee whose service was to be terminated was entitled to notice or payment in lieu thereof, and also payment of all his entitlements.” \r\nThe distinction is important for two reasons: First, the right to terminate a contract of employment flows from the general principle of law that contracts of employment are not contracts of servitude from which parties cannot pull out. The position of the law on termination of contract of employment has been this: that the employer is not under duty or any obligation imposed by law to proffer reasons for termination the contract of an employee. And that it is enough if the contract is terminated in accordance with the procedural requirements and terms of the contract. See the case of WILLIAM AMPIAH v COCOA MARKETING COMPANY (Unreported) H1/43/12 dated 21st March, 2013 COA. A termination was said to be wrongful where one of the parties terminates \r\n7 | P a g e  \r\nthe contract of employment contrary to the terms stated therein. The Court of Appeal quoted with approval the decision of the Supreme Court in the case of BANNERMAN-MENSON VS. GHANA EMPLOYERS ASSOCIATION [1996-97] SCGLR 417. The Court in discussing whether an employer or employee is duty bound to give reasons for termination of employment held at pages 422 and 423 thus:  \r\n“…the appellant could terminate the appointment by giving his employers six months notice if he decided to, without giving any reasons. So were the respondents entitled to dispense with the appellant’s services by giving him six months notice. This conforms to equitable principles… \r\nTo me it is of no consequence if the respondents gave as a reason for the termination of the appellant’s employment the fact that he had reached the age of 60 years. What is important is the mutual agreement of the parties that the contract of employment could be determined by giving six months notice of intention to do so. I think the appellant was laboring under serious illusion in assuming that his appointment was terminated by reaching the retirement age of 60 years. The respondents were under no obligation to give him reasons for his termination”. \r\nSee also the case of ARYEE v STATE CONSTRUCTION COMPANY [198486] 1 GLR 424. \r\nThe dismissal of an employee, on the other hand, is occasioned by the misconduct of the employee or the doing of an act for which the contract of employment prescribes dismissal.  \r\nIn circumstances where the conduct of a worker is of some grave and weightier character that it undermines the relationship of confidence which must exist between a master and a servant, then such an employee may be summarily \r\n8 | P a g e  \r\ndismissed. See the case of NEARY & NEARY v DEAN OF WESTMINSTER [1999] IRLR 288. Instances of acts that may be capable of amounting to misconduct so grave and weighty enough to merit dismissal include, among others, fraud, stealing, extortion, corruption, bribery, falsification of accounts/records, fraudulent breach of trust, gross insubordination, dereliction of duty, sleeping at work, verbal or physical abuse, fighting, assault and battery, working under the influence of alcohol or any illicit psychotropic drug, conflict of interest, competition with the employer’s business, conversion of company’s property for private use without the employer’s permission, etc. This is a departure from the old standard which prevented the employer from automatically dismissing his employee without notice where such employee has committed an offence that have a criminal element(s) which criminal offence requires the proof in a court of law, of proof beyond all reasonable doubt. \r\nThe letter that plaintiff complains of is Ex ‘F’. It is captioned “Letter of Dismissal – Cessation of Employment”. And notes in paragraph 2 that: \r\n“We are terminating your employment as Programme Coordinator due to your misconduct with immediate effect from February, 28th, 2012. This decision is based on the incident in respect of the visit of the Member of Parliament from Federal Republic of Germany…”.  \r\nIt is my view, and I find as matter of fact and law that even though Ex ‘F’ features at some point a reference to termination of employment, on the whole the letter was in the nature of a dismissal and not termination from my analysis supra on the difference between a dismissal and termination of employment. Be that as it may, the court in the course of the analysis of the evidence will still consider the implications of the letter if it was in the form of a dismissal or in the form of a termination.  \r\n9 | P a g e  \r\nI proceed on the first leg to assess whether if the claim is one of dismissal before assessing if it is termination and whether any of the two legs could be sustained to enable plaintiff succeed in this action. In respect of the allegation of his dismissal that he deems unlawful, plaintiff catalogue a number of claims as evidence of the unlawful dismissal. First is what he claims was his involvement as the chair of the local union and being at the forefront of resisting an attempt by defendant to make each employee sign individual condition of service. As a result of this stand the Resident Director became hostile towards him, so plaintiff claims. \r\nHowever, when the plaintiff came under cross examination regarding the claim that he was unfairly targeted this is what transpired: \r\nQ:  How were you targeted by the Resident Director.  \r\nA: This was when she started to impose conditions of service on Local Union members and we resisted it.  \r\nQ:  Did you ever complain to the NLC?  \r\nA: We complained to the Mother Union which wrote to the Resident Director about Collective Bargaining.  \r\nQ:  What was the response of the Defendant’s organisation?  \r\nA: She never responded to the letter written by ICU    The Defendant tendered a copy of the letter by Defendant to the General  \r\n10 | P a g e  \r\nSecretary of the ICU dated 23/03/2014 on the subject “Your Demand for Collective Bargaining Agreement-FES Ghana”. Reading the letter as a whole, it appears the Defendant as employer was expressing genuine and legitimate concerns in respect of the agreement that ICU sought to reach with them. There is no indication of hostility towards the ICU neither can any negative sentiments towards unionisation be gleaned from that letter and accordingly find that allegation of plaintiff be unfounded and unproved.  \r\nAgain, regarding the claim of unfair dismissal, plaintiff supports the assertion with the letter of his dismissal that the litany of the claims by defendant was untenable and besides he was not given a hearing and hence a breach of the audi alteram partem rule of natural justice. Among some of the reasons cited in Ex ‘F’ include, among others, choosing a low standard hotel, wrong scheduling of the programme and its timing, use of a political party, CPP vehicle to meet the German MP and the entourage etc.  \r\nIt is worth noting that in article 7 of Ex ‘C’ the parties agreed that:   \r\n“Each contracting party shall have the right to terminate this contract without prior notice when facts occur which render it impossible to expect that the employment be continued by the terminating party until the agreed end of employment”.  \r\nThe principle at common law as noted in Halbury’s Laws of England (3rd ed.) Vol 25 paga 487, paragraph 938 is that   \r\n"A servant, whose conduct is incompatible with the faithful discharge of his duty to his master, may be dismissed ...Dismissal is also justified in the \r\n11 | P a g e  \r\ncase of a servant ... if his conduct has been such that it would be injurious to the master''s business to retain him."  \r\nThis principle was applied in the Ghanaian case of ABOAGYE V GHANA COMMERCIAL BANK [2001-2002] SCGLR 797 where the respondent countersigned a cheque to allow a customer to withdraw an amount of 15,000 million cedis without verifying that the customer had that money in the account. He was dismissed and complained among others of the breach of the natural justice rule. The court held in line with the common law principle that:  \r\n“the conduct of an employee ought to be compatible with the faithful discharge of his duty and should not be injurious to the employer’s business”.  \r\nPlaintiff has parried the allegations made in Ex ‘F’ as a façade and a lame excuse to dismiss him as he claims that he was not responsible for most of the arrangements. However, under cross examination he admitted the level of his involvement in the following:  \r\n“Q: February 2012, what was your responsibility to plan that programme when the German MP came.   A: I had to meet partners, arrange meetings, send letters out, arrange accommodation …”  \r\nI find therefore as a fact that plaintiff had a key role to play in the organization of the programme for the German MP and the attempt to distance himself from the lapses cannot be completely true. Regarding the claim of the meeting he held with the Resident Director that he claims was a normal review held after a \r\n12 | P a g e  \r\nprogramme has been held and therefore no adequate opportunity was provided him to defend himself; it has been held in the ABOAGYE v GCB case supra that:  \r\n“Finally in considering the question whether or not in any particular case there has been a failure of natural justice, the fact that there was evidence to support the charge preferred against the plaintiff namely negligence, is immaterial to the determination of the issue whether the plaintiff had not been given a fair trial. ... Since the Disciplinary authorities of the defendant bank failed to apply the rules of natural justice there was no fair trial, and this is fatal to their decision to dismiss the plaintiff with loss of benefits.” \r\nHowever, a different conclusion was reached in the case of JUSTICE AWUKUSAO v GHANA SUPPLY COMPANY LTD J4/15/2008 dated 11th March, 2009. In that case, the Plaintiff was dismissed for expending company monies’ to renovate his house after its sale to him. Counsel for the plaintiff submitted that this particular charge was not mentioned in the Draft Report and so the plaintiff had no chance to re-act to it and therefore a dismissal based on this charge was unlawful. Counsel for plaintiff also relied on the case of ABOAGYE V GHANA COMMERCIAL BANK and urged at the trial and on appeal, that this in effect took away the plaintiff’s opportunity to be heard on the charge levelled against him.  \r\nThe Court held that, “at common law it is enough if the fact upon which a person is summarily dismissed objectively establishes ground or cause for dismissal.” \r\nAnd in the case LAGUDAH v GHANA COMMERCIAL BANK [20052006] SCGLR 388, Date-Bah JSC in his judgment commented at page 401 that: \r\n13 | P a g e  \r\n“I am not persuaded that, in a commercial setting, in the absence of a contractual provision to the contrary, an employer is bound to comply with the rules of natural justice. At common law, it is enough if the facts objectively establish cause for dismissal.” \r\n  The court went on at page 405 to state that: \r\n“…. in the ordinary common law of employment, unaffected by public law considerations, there is no obligation on an employer to set up a tribunal or committee of enquiry before he can dismiss an employee summarily for misconduct. Irrespective of the procedure which he adopts, if he establishes facts justifying the dismissal, that is enough.” \r\nIn the Lagudah case above, both the trial court and the Court of Appeal were satisfied that there was sufficient evidence on the record to justify the summary dismissal of the plaintiff. In a similar manner, the Court in BANI v MAERSK GHANA LTD [2011] 2 SCGLR in answering the contention of the appellant that his dismissal was unlawful on the ground that the findings on which the dismissal was based was made by a subcommittee alleged to have acted ultra vires said:    “Assuming without admitting that the subcommittee’s findings were ultra vires, we do not consider that this would derogate from the defendant’s common law right to dismiss the plaintiff for proven misconduct.  Once there are facts on the record justifying the defendant/respondent dismissing the appellant for misconduct, the fact that the findings were made by a committee that was acting, allegedly, ultra vires, is irrelevant.”  \r\nI am of the opinion that as long as the defendant sat with plaintiff to review his performance after the visit of the German MP, that should suffice for the purposes of dismissal to satisfy any hearing that plaintiff ought to have been \r\n14 | P a g e  \r\ngiven and the failure to abide by the principle of audi alteram partem in its strictest sense cannot invalidate the dismissal of an employee for misconduct or make such dismissal wrongful.  \r\nIn the BANI case the Court was of the view that considerations of such doctrine as ultra vires is an important building block for the court in exercising control over administrative action, and consequently such considerations are a public law element. The Court held further that; \r\n“A similar policy rationale does not exist for the courts supervising delegated decision-making in the private sector.  Indeed, it would be against public policy to subject private sector business units to the same control over their administrative decisions as public bodies.  The private sector needs more flexibility and is not expected to operate under the same rules of the game, so to speak, as government and public bodies.” \r\nLet me also be quick to add to the authorities the case of  LEVER BROTHERS GHANA LTD  v ANNAN (CONSOLIDATED) [1989-90] 2 GLR 385 when the court affirmed the trial judge’s decision and said (at pp.3889) that;  \r\n“The law is that where an employee has, in fact, been guilty of misconduct so grave that it justifies instant dismissal, the employer can rely on that misconduct in defence of any action for wrongful dismissal, even if at the date of the dismissal the misconduct was not known to him” \r\nTo elucidate the point further the Court held that,  \r\n“from the principle of law also quoted above which entitles an employer to dismiss summarily an employee he considers guilty of serious misconduct, such as dishonesty, it is evident that the employer is not \r\n15 | P a g e  \r\nobliged to set up an investigative process to give the employee a fair hearing:  see Presbyterian Hospital, Agogo v Boateng [1984-86] 2 GLR 381, CA.  What is required is that when the employee’s dismissal is brought to question in a court of law the employer’s action can be vindicated.”  \r\nSee also the following cases: EDWARD NASSER & CO LTD V. ABU- JAWDI [1965] 2GLR 532, PRESBYTERIAN HOSPITAL, AGOGO V BOATENG [1984-86] 2 GLR 381, CA; BOATENG V VOLTA ALUMINUM CO LTD [1984-86] 1 GLR 733, CA.; LEVER BROTHERS GHANA LTD V. ANNAN [1989-90] 2 GLR 385 \r\nI will hold and find that even if the meeting held with plaintiff did not meet the standard test of fair hearing, a breach of the audi alteram partem principle will not render a dismissal wrongful where there is sufficient evidence on the record to satisfy the court that the employee, which in this instance is the Plaintiff, is guilty of a misconduct of such a nature as to justify a dismissal. \r\nHaving found that if Ex ‘F’ was a dismissal letter, the claim of Plaintiff for unlawful dismissal will not succeed from the evaluation supra. Assuming without admitting that even the court is wrong on this finding that the severance was a dismissal, can Plaintiff succeed if it happens to be termination but not a dismissal? I do not think so and my reasons are as follows: \r\nAs far as termination is concerned it is the law that an employer need not assign reason for bringing to an end the employment of a worker as long as the termination is in accord with the terms of engagement between them. Ex ‘C’ which is the contract of employment gave the right to each party to terminate the contract without even prior notice. Then there is also the employment contract dated March 22nd, 2011 signed by the parties which also states at article 7 as follows: \r\n16 | P a g e  \r\n“Both contracting parties shall have the right to give notice of termination within a period of four weeks to the end of the quarter. In addition, each contracting party shall have the right to terminate this contract without prior notice when facts occur which render it impossible to expect that the employment be continued by the terminating party until the agreed end of employment”. \r\nSo here the terms of the contract makes it possible for the contract to be terminated with four weeks notice or as is common one month pay in lieu of the notice. Plaintiff was paid the February, 2012 salary in lieu of the four weeks notice. This appears to be the essence of the decision in the case of BANNERMAN-MENSON VS. GHANA EMPLOYERS ASSOCIATION [1996-97] SCGLR 417 where the court noted at page 422 that \r\n“…the appellant could terminate the appointment by giving his employers six months notice if he decided to, without giving any reasons. So were the respondents entitled to dispense with the appellant’s services by giving him six months notice. This conforms to equitable principles… \r\nTo me it is of no consequence if the respondents gave as a reason for the termination of the appellant’s employment the fact that he had reached the age of 60 years. What is important is the mutual agreement of the parties that the contract of employment could be determined by giving six months notice of intention to do so. I think the appellant was laboring under serious illusion in assuming that his appointment was terminated by reaching the retirement age of 60 years. The respondents were under no obligation to give him reasons for his termination”. \r\nAs far as common law is concerned there is nothing like unfair termination, a concept that is only familiar to the Ghana’s statute law under section 15 of the Labour Act, 2003, Act 651 which provides the basis for termination of a \r\n17 | P a g e  \r\ncontract to include, mutual agreement of the parties, by the employee when there is sexual harassment, ill treatment etc. And by the employer if there is death of employee, worker unfit medically to work, sickness, accident or proven incompetence etc. \r\nWhere a worker complains that the basis for the termination of his employment is unfair or do not meet the standard set down by law  under section 63 of Act 651, then it is my view that such an employee has no recourse to the court without first proceeding to the Labour Commission. Why? Simple the Act 651 specifically under section 64 has provided a mode for redress when there is an allegation of unfair termination of employment or an employee finds his claim on any of the grounds under section 63 when it provides under section 64 as follows: \r\n“A worker who claims that the employment of the worker has been unfairly terminated by the worker''s employer may present a complaint to the Commission” \r\nI am not unmindful of the fact that the word “may” is used in section 64, nonetheless, I am fortified in my position that an employee who complains of unfair termination must first proceed to the Labour Commission on the strength of two authorities. First is the Court of Appeal decision in the WILLIAM AMPIAH v COCOA MARKETING COMPANY supra, and two the Supreme Court decision in the case of BANI VS. MAERSK GHANA LTD. supra where the court considered the scope of the jurisdiction of the court to entertain actions for unfair termination rather than the Labour Commission in the following terms: \r\n“These statutory remedies are made available to the Commission but not, at least expressly, to the courts. What then is the impact on the common law of these statutory provisions? These provisions, with respect, are to \r\n18 | P a g e  \r\nbe construed as not directed at the court”. \r\nAnd in the AMPIAH case supra, Professor Sir Dennis Adjei noted as follows: \r\n“The aggrieved employee who thinks  his/her employment has been unfairly  terminated may make a complain[sic] to the Labour Commission for the Commission  to investigate and take appropriate decision  as provided  in section 64(2) of Act 651. The power to handle unfair termination against an employer is the prerogative of the Labour Commission and not the Courts. Where a jurisdiction as in the instant case is not given to the courts and the court assumes jurisdiction, any order made by the court is a nullity. The trial High Court acted without jurisdiction when it usurped the powers or the Jurisdiction granted to the Labour Commission. It must be stated in unambiguous terms that the power to investigate unfair termination by an employer is exclusively vested in the Labour commission and not, the court and any court which may purport to exercise such power shall be acting without jurisdiction and any order emanating  from  it would be a nullity”. \r\nFrom the above need I say more? The claim of the Plaintiff if it is for unfair dismissal I have shown to be not maintainable and if it is for unfair termination, he is in the wrong forum from the binding authorities I have cited. And if the claim of Plaintiff is for both unfair dismissal and termination he has no leg to stand on. \r\nHaving so found I consider it needless to embark upon the claim of entitlements to damages as damages could only be founded upon the establishment of a violation of a legal right. In other words, before damages could be assessed, the Plaintiff must first provide the evidence to warrant the award of damages. He must also provide facts that would form the basis of assessment of the damages he would be entitled to. Plaintiff has failed in my estimation to meet the test of \r\n19 | P a g e  \r\nestablishing the unfair dismissal or termination and in that respect I have no hesitation at all in dismissing the reliefs the plaintiff seeks in its entirety. And I so dismiss the reliefs that Plaintiff seeks in the court. \r\nIn awarding cost which is intended to cover for the legal fees of a successful party, the court may take into consideration the amount that may have reasonably been expended by the party in defending the claim or prosecuting same. On the whole I will be charitable to the Plaintiff and award cost of Gh¢ 15.000.00 in favour of Defendant against Plaintiff.    \r\n        (Sgd.) \r\nEric K. Baffour, Esq. \r\nJustice of the High Court  \r\nRepresentations:  \r\nPlaintiff - present  \r\nDefendant Represented by Fritz Kopsiekor – Present  \r\nEdward Briku-Boadi, Esq for Plaintiff, holding the brief of Dick Anyadi – Present  \r\nAnita Delight Danquah for Vitus Gbang, Esq. for Defendant – Present  \r\n  \r\n  ', 'links/cases/DANAA DANTOGMAH v FES.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'TMISC/0001/2016', '', '', 'High Court, Accra', '2016-11-30', '');
