INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(591, 'DANGME RURAL BANK LTD.\r\nVRS  \r\nGALLYWOOD FILM VILLAGE ', '\r\nJUDGMENT  \r\nThe Plaintiff is a limited liability company, duly registered under the laws of the Republic of Ghana and authorized by the Bank of Ghana to provide universal banking services.  The Defendant, a customer of the Plaintiff bank, is also a company limited by guarantee and incorporated under the laws of Ghana to engage in film production.  \r\nIn the Plaintiff’s statement of claim, as amended, the Plaintiff claims against the Defendant the following reliefs:     “a) The recovery of an amount of GH¢409,681.56 inclusive of interest from the Defendant being the total outstanding balance on two credit facilities of GH¢250,000.00 and GH¢20,000.00 granted to Defendant by Plaintiff in May, 2012 and November 2012 respectively as financial support for the completion of Defendant’s school building project the repayment of which have long expired but Defendant has failed and refused to do so despite repeated demands by Plaintiff. b) Interest on the total outstanding balance of GH¢409,681.56 calculated at 30% per annum from August 2014 till date of final payment. c) Cost inclusive of Counsel’s fees.”  \r\n2  \r\nThe material facts which gave rise to the matter before me are stated in Plaintiff’s amended statement of claim and supported by the documentary evidence adduced by the Plaintiff in support of its case.  It is the case of the Plaintiff bank that it advanced an overdraft facility in the amount of GH¢250,000.00 to the Defendant on or about May, 2012 at the request of the Defendant to assist Defendant complete its school project (hereinafter referred to as the “Overdraft Facility”).  The Overdraft Facility was to attract an agreed interest rate of 30% per annum and was to be fully repaid within twelve (12) months, effective June, 2012 to expire at the end of May, 2013.  See Exhibits “A” and “B”, which are the Letter from William Akuffo, the Managing Director of the Defendant company by which the Defendant applied for the Overdraft Facility and the approval letter issued by the Plaintiff in approval of the Overdraft Facility, respectively.  According to the Plaintiff, the Defendant, sometime in November, 2012, requested for and was granted further a commercial loan of GH¢20,000.00 for three (3) months to expire in February, 2013, (hereinafter, the “Commercial Loan”).  To evidence this transaction, the Plaintiff tendered in evidence Exhibit “C”, the loan application letter written by the Managing Director of Defendant Company, William Akuffo, and Exhibit “D” the commercial loan approval letter dated 15th November, 2012 issued by the Plaintiff.  These two (2) credit facilities are referred to herein, collectively, as the “Credit Facilities”.  \r\nIt is Plaintiff’s case that the repayment periods of the Credit Facilities have long expired with the total outstanding balance of GH¢409,681.56, as at August 2014, remaining due and unpaid by the Defendant.  Plaintiff tendered in evidence Exhibits “E” and “F”, the statements of accounts on the Credit Facilities in proof of the balance outstanding in respect of the Credit Facilities.  Plaintiff further alleged that several repeated demands on the Defendant to pay up its debts were to no avail.  As a result, in August, 2014, it instructed its Solicitors to issue a formal demand notice, Exhibit “G” to the Defendant to demand the repayment of the outstanding balance due.    \r\nIt is the Plaintiff’s final contention that the Defendant has failed, refused and neglected to fulfill its part of the terms and conditions governing the grant of the Credit Facilities and that unless compelled  by this honourable court, the Defendant will continue to default to repay the loans to the detriment of the Plaintiff.    \r\nThe evidence of the record establishes that on 22nd January, 2015, the Defendant entered appearance through its Solicitor, Thomas Acquah, Esq. of Law Temple who filed on 26th February, 2016 a statement of defence to the suit on behalf of Defendant.   \r\nThe following issues were set down for trial after pre-trial settlement failed: 1. Whether or not the repayment of the credit facility of GH¢250,000.00 (Two Hundred and Fifty Thousand Ghana Cedis) and the interest thereon extended to Defendant by Plaintiff in May, 2012 has expired? 2. Whether or not the Plaintiff is entitled to the claims endorsed on the Writ of Summons? \r\n3  \r\n3. Any other issues arising out of the pleadings.   Before delivering my judgment, certain developments that took place during the trial of this case necessitate that I give a brief procedural history of this case.  After attempts at court assisted settlement of the case failed at the pre-trial settlement level, the case was referred to this court to conduct the trial.  On 15th day of March, 2016, this Court granted the Plaintiff leave to amend its statement of claim. The amended statement of claim was filed on the same day and a copy served on the Defendant as evidenced by the Affidavit of Service on the docket before me.  The Defendant however failed to file any response to the Plaintiff’s amended statement of Claim, by way of an amended statement of defence or otherwise.  \r\nIt is noted, further, that neither the Defendant nor its solicitor appeared in court to contest the trial notwithstanding the fact that the Defendant was served with several hearing notices of the scheduled dates for trial as well as Court’s Notes through its Solicitor, as evidenced by the numerous affidavits of service on the record.  A review of the docket provides no evidence as to support a finding that Mr. Thomas Acquah, the Solicitor who entered appearance on the behalf of Defendant, subsequently withdrew his representation of the Defendant in this case.  Furthermore, not only did the Defendant fail to make any officer of the company available to participate in a court assisted audit to reconcile the accounts as between the parties herein, it also failed to comply with the case management orders made by this Court.  In that regard, the statement of defence filed by the Defendant was struck out by the Court on 16th March, 2016 in accordance with Order 32 rule 7A of the High Court (Civil Procedure) Rules, 2004, (CI 47) (as amended) by CI 87.  \r\nIn the circumstance, the only triable issue that is material to the disposition of this suit, in my view, is as follows: 1. Whether or not the Plaintiff is entitled to its reliefs as endorsed on the writ of summons and amended by the amended statement of claim.  \r\nThe general rule is that where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof, whether it is the plaintiff who asserts a fact or the defendant who makes a counterclaim.  See BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 where the court held that the onus of proof in civil cases depends upon the pleadings and the party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. The court applied the case of HUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.  In the case of FAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 the court also held that “… [t]he onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led”.  The Evidence Act, 1975 (NRCD 323) (hereinafter, “NRCD 323”), encapsulates the foregoing principle in section 14 where it uses the term the “burden of persuasion” and provides that the asserting party must prove each fact of \r\n4  \r\nhis claim, the existence or non-existence of which is essential to the claim or defence he is asserting.   \r\nSection 12(1) of NRCD 323 provides a further element to the above stated general rule to the effect that in a civil case, such as the one in question, the burden of persuasion requires proof by a “preponderance of probabilities” defined in section 12(2) as “that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the evidence of a fact is more probable than its non-existence”.     \r\nFrom the foregoing, therefore, it is clear that for the Plaintiff, to succeed on its claims that it ought to be granted the right to recover from the Defendant the amount of the Credit Facilities that it alleges remain outstanding and due, it assumes the onus of proving its assertions against the Defendant. Plaintiff is therefore duty bound to establish the requisite degree of belief in my mind by adducing enough evidence to show that the likelihood of the circumstances being alleged is more probable than not.  \r\nPlaintiff’s claims and documentary evidence were corroborated by the testimony of Plaintiff’s representative, Mr. Devine Kudjonu, the Credit Manager, given on oath to this court.  The court finds that the Defendant failed to advance any defence in its behalf to controvert the testimony of the Plaintiff’s witness and/or the documentary evidence of the Plaintiff before this court. Indeed, the statement of defence filed by the Defendant was struck out, the Defendant did not file any evidence in support of its case and finally, the Defendant failed to attend court to cross examine the Plaintiff’s witness.  The position of the law on not cross-examining a witness after he has given his evidence in chief, is well settled.  In the case of TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882, Ansah JSC referred to the case of TUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969, unreported] digested in 1969 CC, 76, where Ollenu JA stated thus: “In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.”  \r\nIn the circumstances the court is left with no option than to believe the claims of the Plaintiff as corroborated by the testimony of its witness and its documents tendered in evidence. In stating thus, I am guided by the holding of the court in the leading case of MAJOLAGBE v. LARBI [1959] GLR 190 which supports the principle that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, that averment can be sufficiently proved by testimony on oath supported by some corroborative evidence.  See further the cases of KLUTSE v. NELSON [1965] GLR, 537, SC and ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. \r\n5   \r\nThe documentary evidence before the court and the uncontroverted testimony of Plaintiff’s Representative shows that it is not in dispute that the parties intended to create legal relations and their intentions were reduced into a binding contract as between the parties.  In DANIELE CONSTRUCTION v. MABEY & JOHNSON [2006] 4 M.L.R.G. 101 at 116, Akoto Bamfo J.A. stated that:   “An agreement is reached by a process of offer and acceptance and for a determination as to whether parties have reached an agreement, one should find whether there has been a definite offer by one party and an acceptance of that offer by the other, the test being whether the parties have all outward appearances as agreed in the same terms upon the same subject matter”.  \r\nAlso, in the unreported case of NTHC LTD v. ANTWI, (February 4, 2009), the Supreme Court held that:  \r\n“In the instant case, the letter of January 17, 2005 constituted an offer and not an invitation to treat, and that offer was converted into a contract by the plaintiff’s acceptance letter of January 31, 2005. There was, therefore, clearly an intention to create legal relations and the plaintiff’s undertaking to pay the purchase price was consideration enough to result in the formation of a contract.”  \r\nAll the requirements for the existence of a valid contract were present in the relationship between the Plaintiff and the Defendant.  There was agreement as to all the material terms of the agreements governing the Credit Facilities.  Additionally, these four (4) main ingredients were also present; the parties had capacity to enter into the agreements, there was offer and acceptance of the key terms of the agreements on which both parties were ad idem, there was consideration for the services and the intention of the parties to create legal relations could not be disputed.    \r\nExhibits “A” and “C”, which are the letters written by William Akuffo, the Managing Director of the Defendant company by which the Defendant applied for both the Overdraft Facility and the Commercial Loan constituted the offer by the Defendant company which was converted into a contract by Plaintiff bank’s acceptance in the form of the approval letters issued by the Plaintiff in approval of the Overdraft Facility and the Commercial Loan, Exhibits “B” and “D” respectively.  The relevant terms and conditions of the Overdraft Facility were contained in Exhibit “B”, which provided that upon acceptance by the Defendant, the facility would attract an interest rate of 30% per annum and the principal and agreed interest was to be repaid within twelve (12) months to expire in May 2013.  In respect of the Commercial Loan, the material terms and conditions thereof were stated in Exhibit “D” as follows: the loan duration was for three (3) months to expire in February, 2013 and interest on any unpaid principal was to be calculated at 30% per annum.  By \r\n6  \r\nexecuting Exhibits “B” and “D”, under the sub heading “ACCEPTANCE”, the Defendant is deemed to have accepted the foregoing terms and conditions and also accepted to be bound by them.  \r\nI am, therefore satisfied that it is more probable than not that as agreed between the parties herein, the Plaintiff advanced to the Defendant the sums of money in the amounts claimed by the Plaintiff in its statement of claim with the total indebtedness of the Defendant on the Credit Facilities standing at Four Hundred and Nine Thousand, Six Hundred and Eighty One Ghana Cedis, Fiftysix Pesewas (GH¢409,681.56) as at 1st August 2014.  See Exhibits “E” and “F”, the statements of accounts on the Credit Facilities tendered in proof of the balance outstanding in respect of the Credit Facilities.    \r\nFurther, I am satisfied that the Plaintiff has adduced sufficient evidence to support a finding that the Defendant failed, refused and neglected to fulfill its obligations under the terms and conditions governing the grant of the Credit Facilities.  The Defendant failed to pay its stated indebtedness upon the expiration of both Credit Facilities and it refused to pay up in spite of the several demands made on it by Plaintiff so to do as evidenced by Exhibit “G”, the formal demand notice issued by Plaintiff’s Solicitors demanding payment of the Defendant’s outstanding debt, which was due and payable.  In holding thus, I would like to borrow the words of Acquah, JSC (as he then was) which captures succinctly the obligation of a borrower to repay the loan it has contracted in the case of BARCLAYS BANK (GHANA) LTD v SAKARI [1997-98] 1 GLR 746 - 767:  \r\n“Now, what is the obligation created under this loan contract, a breach of which would entitle the other to sue? The obligation of the bank was to advance the money, which it did, and that of the defendant was to repay the loan together with interest, if any.  This is the obligation of the parties under this loan contract, and indeed, almost all loan contracts. When a bank lends money to its customer, the obligation of the customer is to repay the loan. If the loan is sought for, let’s say, a business venture, and the business flops resulting in massive financial loss to the customer, this misfortune, though may be due to no fault of this customer, does not change the nature of the obligation of the customer to repay the loan he had contracted for.  He will still be obliged to fulfill his obligation.  Thus, the obligation of a borrower in a loan contract as opposed to other types of contracts, is to repay the loan and not the performance of the purpose for which the loan was sought.”   \r\nThe breach of the Defendant’s obligations under the terms and conditions of the Credit Facilities thus gave the Plaintiff the right to sue for the recovery of the sums claimed.  I therefore find that the Plaintiff has met its burden of proving that the Defendant owes it the sums of money claimed as per the reliefs (a) and (b) as amended by the amended statement of claim.    \r\n7  \r\nFrom the foregoing, I am satisfied that the Plaintiffs’ action succeeds.  Judgment is entered for Plaintiff in favour of reliefs (a) and (b) as endorsed on its writ of summons as amended by the amended statement of claim.    \r\nI award costs in the sum of GH¢40,000.00 in favour of the Plaintiff against the Defendant.    .  \r\n                                                                                                    (Sgd)             ……………………………………………….. JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION)       COUNSEL:     MARTIN MIREKU, ESQ., OF ABORIGINES LEGAL CONSULT, COUNSEL FOR PLAINTIFF THOMAS ACQUAH, ESQ., OF LAW TEMPLE, COUNSEL FOR DEFENDANT   \r\nCASES REFERRED TO:  \r\nBANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 \r\nHUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.   \r\nFAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 \r\nTAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882 TUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969 \r\nMAJOLAGBE v. LARBI [1959] GLR 190  \r\nKLUTSE v. NELSON [1965] GLR, 537, SC  \r\nZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. \r\nDANIELE CONSTRUCTION v. MABEY & JOHNSON [2006] 4 M.L.R.G. 101 at 116 \r\nNTHC LTD v. ANTWI, (Unreported, February 4, 2009, Supreme Court) \r\nBARCLAYS BANK (GHANA) LTD v. SAKARI [1997-98] 1 GLR 746 - 767 ', 'links/cases/Dangme Rural Bank Ltd v Gallywood Film Village.pdf', 'Yes', '', '2016', 'high', '', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'BFS/302/14', '', '', 'High Court, Accra', '2016-06-14', ''),
(592, 'DIANA YAWA DJIRACKOR \r\nVS.  \r\nSETH MENSAH KOJO DUMOGA ', ' \r\nJUDGEMENT  \r\nOn the 16th of December, 2014, the Petitioner instituted the present divorce proceedings against the Respondent seeking the following reliefs:  \r\na) The dissolution of the marriage  \r\nb) An order for the Respondent to pay a lump sum financial compensation of GH¢ 20,000.00 to the Petitioner  \r\nc) The Respondent pays the cost of the proceeding.  \r\nThe main allegation upon which Petitioner grounds the instant Petition is that the marriage between the parties has broken down beyond reconciliation on account of the Respondent’s unreasonable behaviour.   \r\nThe Respondent in his “RESPONSE TO PETITION” filed on the 13th day of February, 2015 admitted that the marriage had broken down but prayed in his Cross Petition   that the Court refers the Parties to a Court appointed Counselor for a final attempt at reconciliation.   \r\n2  \r\nThe Parties, both Ghanaians were married under the Ordinance on the 9th day of March, 1996, having been married customarily some 7 years prior to the said date. After, the marriage they cohabited at the Ministry of Finance flats, Dansoman, Accra between the years of 1990 and 1998 and then moved into their own house at Dome in September, 1998. There are two adult children of the marriage namely Kekeli Dumoga aged 25 years and Delali Dumoga aged 22 years.  \r\nAt the close of pleadings, the suit was fixed for hearing on the 28th day of May 2015 but suffered three subsequent adjournments because the Respondent, who entered appearance to the Petition by himself, was absent on each occasion. Upon being satisfied that Respondent had spurned every opportunity afforded him to be present at the trial, this Court proceeded to hear the evidence of Petitioner on the 2nd day of July, 2015 in Respondent’s absence.   \r\nThe testimony of the Petitioner is that the marriage between the parties has broken down beyond reconciliation because of the unreasonable behavior or conduct of the Respondent. The Petitioner cited a number of incidents to substantiate her allegation that Respondent had behaved unreasonably during the subsistence of the marriage. According to the Petitioner, the parties have been living apart since the year 2007, two years prior to the said separation the Respondent who had moved out of the matrimonial bedroom into the guest room, took to threatening and abusive behavior by constantly terrorizing Petitioner that he will kill her and kill himself, if she did not leave the matrimonial home. What the Petitioner termed the “exchange of assaults and accusations” had become the order of the day in the matrimonial home whilst the children (who were rather young then) looked on helplessly. On the 17th of April, 2007 matters came to a head when the Respondent in the morning of that day, followed the Petitioner from church as she drove to Lapaz, a suburb of Accra  to visit a friend. Upon realizing that she was being trailed by the Respondent, Petitioner parked midway to find out from him if there was any special reason why he was following her.  According to Petitioner, the Respondent right there in the street and in the full glare of the general public, hurled insults at her, calling her a prostitute and demanded that she leave his house. Obviously embarrassed by the scene that was being created, Petitioner rushed back into her car and sped off but the Respondent, undaunted, followed her to her friend’s house where he continued with his threats and insults. It only took the intervention of the said friend, for Respondent to end his verbal tirade and to finally agree to leave but this he did, only after he had driven into Petitioner’s car on purpose, damaging its side mirror in the process.  As if this was not enough, Petitioner returned home later that day to find that her belongings had been thrown out of the matrimonial home by the Respondent who in addition subjected her to severe beatings for her refusal to pay heed to his orders that she leave the matrimonial home.  All attempts by the Petitioner to return her things to the matrimonial home were stoutly resisted by Respondent thus leaving her with no other option than to report the matter to the Domestic Violence and Victim Unit (DOVVSU) of the Ghana Police Service. Upon the intervention of personnel at DOVVSU, Respondent was very categorical that he no longer wanted the Petitioner back in the matrimonial home. Having been left stranded at the police station, Petitioner was advised by DOVVSU, to find temporary accommodation and to pursue the matter in Court since the police   “could not handle divorce issues”.  There was yet another charge of adultery leveled against the Respondent by the Petitioner, which according to her, resulted in him fathering a child out of wedlock. \r\n3  \r\nAccording to Petitioner, Respondent had persisted in his philandering during the entire period that the parties lived together under the same roof and also for the period that they have been separated.  In response to Respondent’s invitation to the Court that the matter be referred to a Conciliator for an attempt at resolving the parties differences, Petitioner was adamant that it will serve no useful purpose since she no longer loved the Respondent and that the said prayer was merely a ploy by Respondent to frustrate or delay the hearing of the Petition.  At the close of Petitioner’s case, this Court adjourned the Petition to the 22nd day of July 2015 for judgment in view of the obvious lack of interest demonstrated by Respondent in prosecuting his Cross Petition.  However, on the day on which judgment was to be delivered, the Respondent appeared in Court evincing an earnest desire to prosecute his case despite his tardiness.  This Court therefore rescinded its decision to deliver judgment and acceded to Respondent’s request to be given a hearing, subject to costs.  After the hearing of a series of applications filed by Respondent, the last hearing being on the 27th day of July 2015, the suit was (due to the impending legal vacation) adjourned to the 4th of November, 2015 for the Respondent to cross-examine the Petitioner on her testimony.   \r\nOn the 4th day of November, 2015, the Respondent failed to make an appearance in Court on grounds that he was indisposed and prayed that the matter be adjourned to the 18th day of November 2015, which request was granted by the Court. Similarly, he failed to make an appearance on the 18th day of November, 2015 on grounds that he had had to travel out of the jurisdiction for treatment. The Court again adjourned the matter but this time, in view of the inordinate delay the case had suffered, ordered that the matter be heard continuously for three consecutive days being the 1st 2nd and 3rd day of December, 2015.  On the 1st day of December 2015 however, this Court received a letter signed by one Rommel Kudjoe asking that the matter be adjourned for a further three weeks because Respondent who had been discharged from the hospital was “under medical advice, confined to bed, rest and taking medication”.    Respondent finally appeared in Court on the 21st of December 2015 to cross-examine the Petitioner.  At the close of the case for Petitioner, Respondent applied orally to the Court for “leave to withdraw his answer but to maintain paragraphs 2 and 3 of his Cross Petition.”  Not surprisingly, this oral application was vehemently opposed by Counsel for the Petitioner. The suit was adjourned to the 20th day of January, 2016 for ruling on the Respondent’s application. Unfortunately, on the said date this Court did not sit because the Court’s support staff were out on a demonstration and therefore did not report to work.  The case was thus fixed for the 10th of February 2016 and hearing notices duly served on Respondent.   On the 10th of February, 2016, the Respondent was again absent without conveying any reason for his non-attendance. This Court, having regard to the background and record of the Respondent’s conduct of the case up to that point, proceeded to deliver its ruling on the Respondent’s oral application and ordered that Respondent repeats his application to withdraw his “RESPONSE TO PETITION” formally within seven days failing which the order would lapse.  There is evidence on record that the Respondent, on that very day applied for and obtained a copy of the said ruling. However, he, in wanton disregard for the orders of this Court failed to comply within the time stipulated. Respondent has since persisted in the regrettable pattern of absenting himself from Court without assigning reasons, resulting in several avoidable adjournments. I have deliberately taken the trouble to set out these facts in this judgment, in order to demonstrate the \r\n4  \r\nlengths to which this Court has gone in accommodating the Respondent’s dilatory tactics. Indeed I must say that I am, by the turn of events persuaded to agree with the Petitioner that the sole aim of the Respondent was to ostensibly frustrate the hearing of the instant Petition.  \r\nBe that as it may, the Respondent having declined to testify in support of the averments in his “RESPONSE TO PETITION” and Cross Petition, leaves this Court with no other option than to accept the evidence of Petitioner. I should also add for good measure, that Respondent’s cross examination of Petitioner, in my opinion, failed to unearth any concrete challenge to her evidence.  I therefore find Petitioner’s allegations proved against the Respondent.   \r\nThe Respondent in his Cross Petition prayed that the parties be referred to a Court appointed counselor for a final attempt at reconciliation. Petitioner was however dismissive of the said suggestion on grounds that it was just a cunning attempt by Respondent to delay or frustrate the hearing of the matter. I must confess that the conduct exhibited by Respondent from the inception of the trial to date has induced in me the feeling that Petitioner was justified in holding this view.  Given the facts and circumstances of this case, there was indeed no need for this Court to have exercised its powers under section 8 (2) of the Matrimonial Causes Act, as any adjournment for an attempt at reconciliation would have served no useful purpose SEE THE CASE OF MENSAH V MENSAH 1972 2GLR @198.  \r\nHaving found the case of Petitioner proven, the issue that remains to be addressed is whether this entitles her to an automatic grant of her prayer for a dissolution of the marriage. By section 2(3) of the Matrimonial Causes Act, Act 367, the Court should not grant a Petition for divorce unless it is satisfied on all the evidence that the marriage has broken down beyond reconciliation. This means that the ultimate decision regarding whether or not the marriage between the Parties has broken down beyond reconciliation rests solely with this Court even though the Petitioner in this suit has been found to have proved her case.  \r\nThe unchallenged evidence before me shows that the Parties have not lived as husband and wife since April 2007. I find upon the facts, that it was the Respondent who in an attempt to bring the marriage to an end did everything within his power to make life unbearable for the Petitioner. This included constant threats and assaults, fathering a child outside the marriage and finally driving her out of the matrimonial home. The Parties have been separated for a considerable period of time, but quite clearly, due to Respondent’s unreasonable behavior, Petitioner cannot be reasonably expected to continue with the marriage. I agree with Petitioner, based on the evidence before me, that the relationship between the Parties has so disintegrated that there is no hope for reconciliation. In my opinion, the relationship that has existed between the Parties for the past 9 years or so has only been an “empty shell” and much as the Court is enjoined to discourage divorce, it is empowered to dissolve marriages that have broken down irretrievably. In the circumstances, I am satisfied that that the marriage between the Parties has broken down irretrievably and I accordingly grant the Petitioner’s prayer for the dissolution of the marriage.  \r\nThere have been conflicting assertions regarding which of the Parties has been responsible for the upkeep of the two adult children of the marriage. I do not attach \r\n5  \r\nmuch importance to the said claims since none of the Parties is seeking any reliefs regarding the said children. Both Parties appear happy performing their parental duties and I consider it prudent that the status quo be maintained.  \r\nIt is to the reliefs being sought by the Petitioner that I now turn. The Petitioner prays the Court for the following reliefs in addition to seeking a dissolution of the marriage;  i) An order for the Respondent to pay a lump sum financial compensation of 20, 000.00 to Petitioner  \r\nii) That Respondent bears the cost of the Petition.  \r\nArticle 22(3) b of the 1992 Constitution provides that upon the dissolution of a marriage assets jointly acquired during marriage shall be distributed equitably between the spouses. On the evidence, the Parties jointly acquired a house at Dome during the subsistence of the marriage but the Petitioner is not making any claims to same. In my thinking, even if the Petitioner made no direct contributions towards the acquisition of the said house, she still, on the authority of MENSAH V MENSAH [2012]1SCGLR @ 391 would have been entitled to an equal share of it.  This notwithstanding, I have, as mandated by section 20 (1) of Matrimonial Causes Act, Act 367, taken time to carefully consider all the facts and circumstances of this case and I deem it just and equitable to grant the Petitioner’s prayer for GH¢20,000.00 as financial settlement.  \r\nI cannot however conclude this judgment without commenting on the egregious conduct exhibited by the Respondent from the inception of this matter. This Court is very alive to the fact that the Respondent was before this Court only as a party to these divorce proceedings  and not as Counsel but I must say, that the conduct of  the Respondent, who never missed an opportunity to remind this Court of the fact of he being  member of this Honorable Legal Profession, fell far short of  one who understood  that “a lawyer’s overriding duty to the Court is to facilitate the administration of justice to the standards set by the  legal profession” SEE THE SPEECH  DELIVERED BY THE HONOURABLE MARILYN WARREN, CJ OF VICTORIA, AUSTRALIA AT THE BAR ASSOCIATION OF QUEENSLAND ANNUAL CONFRENCE DATED 6TH OF MARCH, 2011.   \r\nOrder 1 (1) (2) of C I 47, normally referred to as the spirit of the rules underpins the need for all Parties concerned in the process of litigation  to work towards the  avoidance of unnecessary postponements and delayed justice which fact ought not to have been lost on the Respondent  as an officer of this Court . The wanton disregard for the rules of Court and the lack of diligence exhibited by the Respondent in this matter stands to be deprecated and I do so in no uncertain terms. A new day has dawned, the days of avoidable protracted litigation are over and I believe it is the duty of all stakeholders in the justice delivery system to work assiduously towards the speedy, inexpensive and effective delivery of justice. In conclusion I hereby make the following Orders:  \r\n1. That the marriage celebrated between the Petitioner and the Respondent on the 9th day of   March 1996 is hereby dissolved.  \r\n6  \r\n2. That the Respondent do pay a lump sum of GH¢20,000.00 to the Petitioner as financial settlement.  \r\n3. Costs of GH¢5,000.00 is hereby awarded in favour of Petitioner against the Respondent.    \r\n             [SGD] MRS. AKUA SARPOMAA AMOAH, J.    JUSTICE OF THE HIGH COURT ', 'links/cases/DIANA YAWA DJIRACKOR VRS SETH MENSAH KOJO DUMOGA.pdf', 'Yes', '', '2016', 'high', '', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'BDMC/109/2015', '', '', 'High Court, Accra', '2016-06-10', ''),
(593, 'E. K. BONSU LTD\r\n    VRS  \r\nPRUDENTIAL BANK LTD', '  \r\nRULING  \r\n  Defendant/Applicant seek by this application to stay proceedings of the court pending what he terms as mandatory compliance by the Plaintiff of a statutory provision. The mandatory provision he refers to is section 43 of the Credit Reporting Act, 2007, Act 726. To the applicant as the plaintiff in his claim allege having been defamed based on what plaintiff believe to be inaccurate information provided to XDS Credit Reference Bureau by defendant, the plaintiff ought to have first resorted to the mechanism for resolution of such disputes with the Bank of Ghana before resorting to legal action in the court.  \r\nPlaintiff/respondent ardently opposes the application on a number of grounds. One that the application is belated in the sense that the applicant had waived his right to have the matter settled before the arbitral forum created by the law. This he contends that defendant has filed a statement of defence and that amounts to the taking of fresh step. Again to the plaintiff the dispute is not about the operations of the Credit Bureau, XDS Data but mainly has to do with an action the defendant which has made him suffer disrepute in the eyes of the public.  \r\nIt is provided under section under section 43 of Act 726 as follows: \r\n \r\n2   \r\n“(1) A complaint shall be submitted in writing to the Bank before redress is sought in a Court for the settlement of grievance under this Act. (2) The Bank shall investigate the matter and determine it in accordance with this section. (3) Where the Bank receives a complaint or notice of a dispute, the Bank shall (a) cause the matter to be investigated, and (b) settle the dispute or complaint to the satisfaction of the parties concerned, unless the Bank considers the matter to be frivolous or vexatious. (4) A person dissatisfied with a decision of the Bank may appeal to the High Court. The Bank here means the Bank of Ghana and the law requires that before any person  who has suffers harm arising from the supply of inaccurate or incomplete information about the person is entitled to commence an action in Court against the data provider or credit bureau, by demonstrating that the data provider negligently provided the information which has caused harm to the person, and to seek an injunction or otherwise from the Court to restrain the publication of the inaccurate information. However, this cannot be done unless the aggrieved person has first complied with section 43 of the Law. Clearly then, the action of Plaintiff in this court seeking damages for defamation is well within the grounds of complaints contemplated by section 41 as whatever damages plaintiff may be entitled to arises naturally from the  alleged provision of inaccurate information about him by the data provider, that is the defendant and the contention of counsel for plaintiff that this action is not within the perimeters of actions that ought to be first brought before the Bank of Ghana cannot be correct. What then of the claim that defendant has waived his right to have the matter stayed because he has taken a fresh step? Would filing of a statement of defence be enough to disable a person from invoking a statutory right for settling disputes? It has been cited for the consideration of the court the case of REPUBLIC v HIGH COURT, TEMA; EX PARTE MY SHIPPING PVT LTD [2011] 1 SCGLR 237. It is curious to note that in this case an attempt to invoke an arbitration clause to have a matter stayed in favour of arbitration failed because pleadings had been concluded and directions taken. What was left was for the commencement of hearing. It is my understanding that the applicant ought to file the application for stay timeously and not wait when it is too late to do so. Is that the case here? The applicant filed this application after he \r\n \r\n3  \r\nhad entered appearance and filed a statement of defence. Pleadings have not yet closed unlike the case of Ex Parte My Shipping PVT when they were waiting for trial to commence.  In that respect I do not think that there had been an inordinate delay on the part of the applicant. Besides, it is trite that no court has the power to grant immunity to a party to violate the provisions of a statute and if the Law calls for a certain procedure to be complied with before a party comes to court that cannot be waived at the discretion of the court. On that score the application succeeds and the proceedings are stayed until the plaintiff has complied with section 43 of Act 726. I make no order as to cost.      \r\n           (Sgd.) Eric K. Baffour, Esq. Justice of the High Court     \r\nRepresentation  \r\nParties Absent  K. A Yankyera, Esq for Plaintiff/Respondent – Present  Nana Offei Djan, Esq for Defendant/Applicant – Present  ', 'links/cases/E.K. BONSU v PRUDENTIAL BANK.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'CM/0266/16', '', '', 'High Court, Accra', '2016-07-18', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(594, 'EBENEZER KOFI ADOM\r\nVRS\r\nCOMFORT AKOSUA FRIMPOMAA BOATENG', 'JUDGMENT  \r\nIn this divorce suit, the Petitioner, Ebenezer Kofi Adom has petitioned this Court praying for the dissolution of the marriage between himself and the Respondent Comfort Akosua Frimpomaa Boateng, on the grounds that the marriage between the Parties has broken down beyond reconciliation.  From the averments in the petition, it would appear that the Petitioner relies mainly   on the alleged desertion and adultery of the Respondent as proof of the said breakdown.  \r\nThe petition discloses that the Parties, both Ghanaians were married under the ordinance on the 20th of May 2006 at the Nsawam Road Church of Christ, Accra. After the said marriage they lived together at Alajo in Accra and have one issue, Shadrach Kwabena Amankwaa Adom who was aged 7 years at the time the petition was filed. The Petitioner is a freelance photographer by profession and the Respondent a trader.  \r\nAccording to Petitioner, Respondent  left the matrimonial home some five years ago as a result of disagreements over various issues, chief among these being, the refusal of Respondent to heed Petitioners warnings against persistently serving Petitioner with food prepared by other tenants of the compound house in which the Parties lived. After Respondents unceremonious departure, Petitioner had \r\n2  \r\nmade countless attempts by himself and through other well-meaning persons to convince Respondent to return to the matrimonial home but Respondent had remained adamant in her decision not to.  In line with this decision Respondent, had three months prior to her departure to her parents’ home at Asiakwa and even thereafter refused to have sex with Respondent. Petitioner further levels the charge of adultery against the Respondent and avers that the Respondent is currently involved in an illicit relationship with one Dada Boat with whom she presently lives.  With respect to the child of the marriage, he charges Respondent with being an irresponsible parent who has abandoned the issue of the marriage to the benevolence of one Ososfo Stephen and avers that the child will be better off with him. Petitioner therefore prays for:  \r\na) That the said marriage be dissolved  b) That Petitioner be granted custody of the child of the marriage, Shadrach Kwabena Adom .  \r\nThe Respondent in her answer filed on the 29th of April 2015 denies all the averments in the petition to the extent that she engaged in the acts complained of by petitioner without just cause and cross-petitions for the following reliefs:  \r\na) That the marriage be dissolved. b) That the petitioner be made to pay GH¢300 as monthly maintenance fee for the child c) That the Petitioner be made to pay the child’s school fees and medical bills d) That the Petitioner be made to compensate the respondent with a sum of GH¢8000 e) That the Petitioner be made to contribute GH¢200 for the monthly payment of house rent.  Specifically, Respondent testified that she was indeed warned by Petitioner not to take food from co-tenants but insists that because this was a practice that existed between Petitioner and the said tenants long before she joined Petitioner in the said house, she had no choice but to continue in the said practice which involved the exchange and sharing of food between the tenants in the house with Petitioner’s knowledge and sometimes with his active participation. According to her, it was the abruptness with which Petitioner demanded that she ceases the practice that made it difficult for her to comply.  \r\n Again, in response to Petitioners allegation that she left the matrimonial home unceremoniously and has since refused to return, Respondent explained that she left because of the cruel and inhuman treatment she continuously suffered at the hands of the Petitioner. This included but was not limited to severe beatings and the Petitioner throwing out her belongings anytime they had a disagreement. It was after one such occasion that she travelled to her mother at Asiakwa to treat \r\n3  \r\nthe blood shot eyes she sustained as a result of Petitioner’s beatings that she decided never to return to the matrimonial home or the marriage, for fear of losing her life.  She denied ever committing adultery with one Dada Boat or not caring for the child of the marriage.  According to Respondent, the said Dada Boat is only a former employee of Danex who through her sister, helped her secure a job as a factory hand in the said company.  With regards to the child of the marriage, it is the case of the Respondent that she has not abandoned the child but merely sends him to the said pastor’s house in the mornings to enable him join the pastor’s son who attends the same school as the said child, to school. I have carefully considered the evidence of both Parties and I am of the view that even though Respondent cannot be held totally blameless for the disharmony and misunderstandings in the marriage, it is the violent and physical assaults constantly visited on her by Petitioner that have brought them this far.  For instance, this is what Petitioner had to say in response to questions put to him during cross- examination:  \r\nQ:  I put it to you that when she refused to have sex with you, you beat her mercilessly that is why she left the house to her mothers  \r\nA:  Yes, she refused to have sex with me and I beat her up as a result of her refusal It is also true that she left the matrimonial home as a result. What happened was, I was touching her and she rebuffed my advances, she held my shirt by the collar so when I tried to free myself, my hand touched her and she said I had hit her.  \r\nQ:   I put it to you that you beat her mercilessly, it is not true that you just hit her.  \r\nA:   That is not true.  \r\nQ:   I put it to you that anytime there was a misunderstanding between you and your wife, you do not only beat her but you throw her belongings out of the room.  \r\nA:   It is true but I have something to say, I only did that to scare her.  \r\nI must say that the Respondent sometimes exhibited conduct that I consider unbecoming of a reasonable wife, I am for instance, not impressed by the reason given by Respondent for ignoring Petitioners advice not to serve him food cooked by other tenants, however the above exchange coupled with other pieces of evidence before this court, show the Petitioner up as a violent man given to regular fits of anger. I do not believe Petitioner’s claim that his hand merely touched respondent, as that, to me, was clearly a lame attempt at retracting his earlier admission that he indeed beat up the Respondent.  In any event, Petitioner in my view cannot under any circumstance justify treating \r\n4  \r\nRespondent with such indignity.  From the evidence on record, this particular misunderstanding arose after Petitioner returned home one day demanding sex after having disappeared from the matrimonial home for two months with his whereabouts unknown to Respondent,  and I do not think that one could in fairness have expected Respondent, human as she is, to readily give in to Petitioner’s  demands without any protestations.  \r\nIt is not in dispute that, the parties had at the time of hearing the petition not lived as husband and wife for five years.  It is also not in dispute that Respondent has intimated in no uncertain terms her intention to bring the marriage to an end.   \r\nFrom the averments in the petition, it appears the Petitioner hinges his petition on sections 2(a), (b), (C), (d) and (f) as proof of breakdown of the marriage. Section 2(3) however, states that the court can still refuse to grant a petition even if the court finds any one or more of the facts listed in paragraphs 2a to f proven unless it is satisfied on all the evidence that the marriage has broken down beyond reconciliation.  Petitioner avers in paragraph 8r of his petition that the Respondent has behaved in such a way that he cannot reasonably be expected to live with her. I am however not satisfied on the facts that Respondent has behaved in such away that should make it unbearable for Petitioner to live with her, indeed, on the facts, I find the reverse to be the case and I am strengthened in this view by conduct of Petitioner which involved several attempts made to get Respondent to return to the matrimonial home after she left for Asiakwa.  Respondent indeed, could not, be expected to continually put up with the ill treatment meted out to her by Petitioner.   Petitioner himself admits that it was after he beat up the Respondent that she left five years ago for her mother’s home at Asiakwa and has since refused to return.  I find that it is rather the Petitioner who is in constructive desertion. The black’s law dictionary defines constructive desertion as “one spouse’s conduct that forces the other to leave the marital abode, the actions of the offending spouse must be serious enough that the spouse who is forced out of the home finds the continuation of the marriage to be unendurable or dangerous to his or her safety or wellbeing and finds it necessary to seek safety outside the marital domicile”.  Petitioner does not deny physically or emotionally abusing Respondent and Respondent has testified in this Court that she left the matrimonial home because she considered Petitioner’s conduct a threat to her life and limb.  \r\nI must however commend the Petitioner for the obvious show of remorse and contrition for his actions which I consider sincere. Apart from the unchallenged evidence of the several efforts made at reconciliation by himself and through his numerous emissaries, this Court observed from his demeanour throughout the \r\n5  \r\ntrial that he truly regretted his actions. Unfortunately, this cannot change the fact that it is the Petitioner and none other, who has been the author of his own misfortune.  \r\nThe Petitioner also levels the grave charge of adultery against the Respondent. Petitioner testified that it is the child of the marriage who told him that Respondent currently lived with one Dada Boat. He maintained that this fact was confirmed by his father in law in the presence of Petitioner’s church elders and that the said elders could attest to this fact. Curiously, none of these persons were called to corroborate Petitioner’s assertion. It is settled law that adultery being a matrimonial offence that is grave and weighty ought to be proved strictly even though not necessarily to the standard required in criminal trials. See the dictum of Sarkodee J in the case of ADJETEY V ADJETEY (1973)1 GLR 216.   \r\nI do not think the evidence of Petitioner led in support of his allegations that respondent has committed adultery meets the required legal standard as the same is uncertain. I therefore hold the charge of adultery not proven against Respondent.   \r\nAs regards issues concerning the child of the marriage, this Court at this stage no longer considers it necessary to examine the allegations made by both parties since the evidence on record suggests that the Parties have called a truce on the matter.  I have also declined to go into Respondent’s claims regarding Petitioner’s insistence on having anal sex with her or the claim of Petitioner that Respondent terminated a pregnancy without his consent. This is not only because I am unable, based on the evidence before me, to decide which of the Parties to believe but also because, given the circumstances of this case, I do not think those matters will affect my decision as to whether or not to grant the petition or cross-petition.   \r\nFlowing from the above, the main issue that falls for determination is whether the Petitioner and Respondent are entitled to their respective prayers for a dissolution of the marriage. As already noted in this judgment, the Parties have not lived together as husband and wife for the past five years.  The position taken by Respondent leaves this court in absolutely no doubt that she considers the marriage at an end. Section 2(d) of the act empowers the Court to grant a petition for divorce if it finds that the Parties have not lived as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to the said dissolution. The evidence shows that the Parties had lived apart for a continuous period of about four years prior to the presentation of the petition and the Respondent also consents to the said dissolution. On this account and on account of matters already discussed in this judgment I am satisfied that the marriage between the \r\n6  \r\nParties has broken down beyond reconciliation.  Accordingly, I grant the Decree of Divorce prayed for by Petitioner and consented to by Respondent. The Parties on the 19th of June, 2015 filed terms of settlement and prayed the Court to adopt same. This court declined the said invitation at the time in view of the mandatory requirement imposed by section 2(3) of the Matrimonial Causes Act (SUPRA) that the Court first satisfies itself of the breakdown of a marriage beyond reconciliation before granting a Decree of Divorce.  See also the case of IDDISAH V IDDISAH SUIT NO H1/164/11 CIVIL APPEAL dated 11th November 2011.  \r\n This Court having satisfied itself of the breakdown of the marriage and having decreed a dissolution of the marriage celebrated between Petitioner and Respondent hereby makes the following orders. By consent of the Parties, custody of Shadrach Kwabena Adom is granted to Respondent with reasonable access to Petitioner. The Petitioner is ordered to provide monthly maintenance of GH¢150 for the upkeep of the child of the marriage in addition to the provision of clothing and the payment of school fees and feeding fees charged by the school as well as medical care.  The Respondent should bear the cost of feeding the child outside school hours,  \r\nPetitioner is hereby ordered to settle on Respondent a lump sum payment of GH¢3000 as financial provision.  \r\nDECISION   Marriage dissolved Each party to bear their own costs.                           [SGD]          MRS. AKUA SARPOMAA AMOAH            JUSTICE OF THE HIGH COURT  \r\naey/…            ', 'links/cases/EBENEZER KOFI ADOM VRS COMFORT A. F. BOATENG.pdf', 'Yes', '', '2016', 'high', '', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'BDMC/180/2015', '', '', 'High Court, Accra', '2016-01-19', ''),
(595, 'EDEM AFFRAM \r\nVRS  \r\nBERNARD OWUSU-TWUMASI, \r\nOAK HOUSE COMPANY LTD, \r\nOAK HOUSE GROUP LIMITED,\r\nNANA OBOUR NIMAKO  ', 'RULING  \r\nThis is the ruling of the court in respect of the application filed by the Applicant seeking an order of the court to be joined to the action as 2nd plaintiff under Order 4 Rule 5 of the High Court (Civil Procedure) Rules, C.I 47. In the affidavit in support of the application, the Applicant deposed to the fact that he and the 1st Defendant/Respondent together incorporated the 2nd Defendant company. He averred that he subscribed to twenty five million shares (25,000,000) \r\n2  \r\nin the 2nd Defendant company and he was also named director at the incorporation of the 2nd Defendant company. He avers that he is a member of the 2nd Defendant company as he has never transferred his interest in the company. And hence his prayer to be joined to the suit as 2nd Plaintiff.  \r\nThe Court by an Order dated 26th July, 2016 granted the application. The Defendants/Respondents applied to set aside the Order of the Court joining the Applicant as 2nd Plaintiff on the ground that the affidavit in opposition filed by the Defendants/Respondents was not brought to the attention of the Court to aid the Court to come to a decision on the ascertained facts from both sides.  In this application, the Defendants/Respondents in an affidavit deposed to by their counsel claim that Applicant is not a shareholder of the 2nd Defendant company as by a letter dated the 28th September, 2007 he requested a refund of his capital contribution and same has been given him. Defendant/Respondents say that the Applicant had also voluntarily resigned from his directorship of the company. It is therefore their contention that since the Applicant is neither a Director of the 2nd Defendant company by virtue of his voluntary resignation and had also recovered all the equity he had contributed as a subscriber, he is not a proper party to be joined to the action.  \r\nJOINDER Order 4 rule 5(2) of the High Court (Civil Procedure) Rules states as follows: \r\nAt any stage of proceedings the Court may on such terms as it thinks just either of its own motion or on application \r\n(a) order any person who has been improperly or unnecessarily made a party or who for any reason is no longer a party or a necessary party to cease to be a party; \r\n3  \r\n(b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon to be added as a party”. \r\nThis principle has received judicial blessings in many cases. In COLEMAN v SHANG [1959] GLR 390-409 the court in deciding an application for joinder under the old civil procedure rules held that:  \r\n“The purpose of Order 16 rule 11 is to secure the determination of all disputes relating to the same subject matter without delay, and without expenses of separate actions.” \r\nVAN LARE J.A. AS C.J. cited with approval the dictum of Lord Esher thus;  \r\n"I can find no case which decides that we cannot construe the rule as enabling the Court under such circumstances to effectuate what was one of the great objects of the Judicature Acts, namely, that, where there is one subject-matter out of which several disputes arise, all parties may be brought before the Court, and all those disputes may be determined at the same time without the delay and expenses of several actions and trials. It appears to me that the words of the rule are large enough to allow of the joinder of the British Saw Mills Company as defendants in this case. I think the question arising between them and the plaintiff is a ‘question involved in the same cause or matter'' within the meaning of the rule." \r\nSo, too, in BENTLEY MOTORS (1931) LTD. V. LAGONDA LTD. ((1945) 14 L.J.R. CH. 208 it was held that one of the main objects of the rules on joinder is to enable the Court: \r\n4  \r\n"effectually and completely to adjudicate upon and settle all questions involved so as to render unnecessary multiplicity of proceedings”.  \r\nIn the result, the applicant must be a necessary party whose presence before the Court is a sine qua non for effective determination of all matters in controversy before the court.  \r\nThe rule further enjoins a person applying under the Order to be joined as a party to show his interest in the matter in dispute. The Applicant avers that he is a shareholder and director of the 2nd Defendant company. The Defendant/Respondents contention is that the Applicant has ceased to be a member of the 2nd Defendant company because his equity contribution has been refunded to him. The applicable provision of the Companies Act, Act 179 is section 30 which provides as follows: \r\n(1) The subscribers to the Regulations shall be deemed to be members of the company and on its registration shall be entered as members in the register of members referred to in section 32 of this Code. \r\n(2) Every other person who agrees with the company to become a member of the company and whose name is entered in the register of members shall be a member of the company”. \r\nFrom the Companies Act 1963 (Act 179) and on the case law, there are two modes of constituting membership of a company; one is those persons who subscribe to the regulations of the company for registration and incorporation, and second is those persons who, subsequent to the incorporation of the company acquire shares from the company. See PETER OSEI ASSIBEY v ADEHYEMAN GARDENS LTD & ORS. [2003-2005] 1 GLR 391.  \r\nThe Applicant having subscribed to the Regulations of the 2nd Defendant company is a member of it. His membership is by prescription of law, in that respect once he subscribed to the Regulations he became a shareholder upon the \r\n5  \r\nincorporation of the company. The membership continues until any of the eventualities in S.30 (5) occurs. The provision states that:    \r\n“Membership of a company with shares shall continue until a valid transfer of all the shares held by the member is registered by the company, or until all such shares are transmitted by operation of law to another person or forfeited for non-payment of calls under a provision in the Regulations, or until the member dies”.  \r\nThus the membership of a shareholder can be brought to an end on the occurrence of any of the events stated in S. 30(5) of the Companies Act.  A valid transfer of shares must be done in accordance with the Companies Act and the company’s Regulations and must be registered by the company in order to end the membership of the shareholder transferring his shares. What are the applicable provisions under the Companies Act on the transfer and registration of shares?  The Companies Act allows for company Regulations to provide for the restrictions on transfer of shares of that company. The Act however provides that the transfer shall be by a written transfer in common form- S.95(1) of Companies Act. Thus, there must be an instrument evidencing the transfer.  \r\nThe point is buttressed by S. 98(2) which provides that- \r\n(2) Notwithstanding anything contained in the Regulations of a company or in any contract, it shall not be lawful for the company to register a transfer of shares or debentures unless a proper instrument of transfer duly stamped, if chargeable to stamp duty, has been delivered to the company: \r\nProvided that nothing herein contained shall prejudice any power of the company to register any person to whom the right to any shares or debentures has been transmitted by operation of law. \r\n6  \r\nFrom the sections, it is clear that the Act does not endorse transfer of shares by the means which the Defendants/Respondents are urging on this court. The Defendants/Respondents say that by a letter dated the 28th day of September, 2007 (Exhibit OHC 3), the Applicant demanded a refund of his equity contribution and that by a cheque dated the 16th day of October, 2007 (Exhibit OHC 5) the Applicant was paid. They did not execute any instrument of transfer. Consequently, whatever purported transfer was made is contrary to the Companies Act.  More so, the Companies Act provides clearly that except in a capitalisation issue, all shares issued or taken up must be issued for valuable consideration and that where the shares are given in consideration for services provided S. 42 must be complied with.  The Applicant subscribed to twenty-five million shares; five million shares of which was given to him in consideration of his services during the formation of the company and twenty million shares for which he paid. In the light of S.42, having subscribed to take up twenty-five million shares, his liability to the company is for the value of entire twenty-five million shares and a purported refund of twenty-million cannot end his membership in the absence of a valid transfer all of his shares and registration of same. In the result, the refund made to the Applicant cannot constitute a valid transfer of shares under the Companies Act. It cannot operate to bring an end to the membership of the Applicant.  Defendants/ Respondents contention that by virtue of the refund to the Applicant of his contribution in the company, the applicant’s membership was effectively extinguished is untenable.   \r\nAn important issue has also been raised in the substantive suit and that is the alleged fraudulent change in the shareholding structure of the 2nd Defendant company by the 1st Defendant/Respondent. The Applicant having shown an interest in the shares as a shareholder or otherwise becomes a necessary party \r\n7  \r\nfor the effective determination of that issue before the court. On that score, I think the applicant has demonstrated sufficient interest in the suit and his presence as a party is necessary for the determination of all the issues in controversy. In will order that the writ and statement of claim is amend to capture the presence of the applicant in the action. I make no order to cost.      \r\n           (SGD) Eric K. Baffour, Esq. Justice of the High Court   \r\nRepresentations:  \r\nPlaintiff represented by Kwesi Baffoe Asamoah – Present  Applicant – Present  Dr. Kweku Ainuson for Plaintiff – Present  Joseph Kwadwo Konadu for Applicant – Present    ', 'links/cases/EDEM AFFRAM RULING 1.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'ACC/44/2015', '', '', 'High Court, Acxccra', '2016-11-30', ''),
(596, 'EWURABENA SACKEY, FRANCIS HERBERT SACKEY   \r\nVS.  UNITED BANK FOR AFRICA                                                                                                                     ', 'Per their Writ of Summons filed at the Registry of the High Court, Accra on the 25th March, 2013, and the accompanying statement of claim, the plaintiffs claim against the defendant bank is for; \r\n(a) An unqualified apology for the embarrassment caused to both the 1st & 2nd plaintiffs (b) Punitive and aggravated damages at Thirty Thousand Ghana Cedis (GH?30,000.00) in favour of each of the plaintiff for breach of confidentiality. (c) An Order of perpetual injunction restraining the Defendant, his agents, servants, assigns, representatives from further publishing the personal bank details of both the 1st and 2nd plaintiffs to the general public unlawfully. (d) Cost and (e) Any other relief (s) deemed fit by the Honourable Court. \r\nThe records show that, upon the service of the Writ of Summons and the statement of claim on the Defendant’s Bank on the 3rd April, 2013, notice of appearance was filed on the 10th April, 2013.  This was followed by an eleven (11) paragraphed Statement of Defence on the 23rd April, 2013. \r\n \r\n2 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nPer the records and at the level of application for directions, the below issues were set down for trial on the 5th November, 2013. \r\n(1) Whether or not the Defendants owe the Plaintiff a duty to protect their confidential personal information contained in their document in the Defendant’s custody. (2) Whether the Defendant breached the said duty by exposing such information to a road side bread seller. (3) Whether the Plaintiffs did suffer any damage resulting from the alleged negligent act of the Defendant’s Bank. \r\nThe case of the 1st plaintiff as told to the court on the 14th day of January, 2014, is that she does business between Britain and Ghana.  That she knows the 2nd Plaintiff very well as he is her brother and they both live in House Number. 39 Buleni inn, Accra.   That in the month of November, 2012, she had a call from a lady who asked whether she is a customer of the defendant’s bank and live in House Number. 39, Buleni inn Accra. \r\nIt is her case that, she answered the questions in the affirmative and she then questioned the caller as to where she had the information from and she replied that she had them from a bread seller the plaintiff sold her paper or documents to.    That she then arranged and met the said girl at Osu, Accra in the company of two of her friends.    Further that on seeing her the informant/caller whether asked whether she is so broke to be selling her personal documents.  That when asked of the said caller whether had evidence on what she was telling her, the informant who happens to be from a bread seller confidently pulled out and handed over to her a document which turned out to be a form she filled out in her application form for a Visa Card from the Defendant’s Bank.   That the said form had on it her email address, date of birth, full name, house address, her telephone and accounts numbers and the maiden name of her mother and further that, it also contained her security information.   Witness tendered in evidence the said form and same was accepted as Exhibit ‘A’.  That she at a point relayed this information to the 2nd Plaintiff who advised her to report the incident to the Defendant which she did but was not attended to until the instant Writ was filed.   That the information on Exhibit ‘A’ is confidential because it has \r\n \r\n3 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nthe security code to her account with the Defendant’s Bank, her full name, residential address, date of birth and her mother’s maiden name.    That there is also a security test question and a security answer thereto.    That she says the information contained in Exhibit ‘A’ is confidential because when she was opening the accounts with the Bank, they told her that should a third person or party sight the said Exhibit ‘A’ the Bank should be notified so that they would change the security code as at that date and that the security code has not been changed as at the day and date she was giving evidence in court. \r\nIt is further the case of the 1st Plaintiff that, a few days thereafter she received another call from the informant or caller asking her whether she knows one Francis Sackey and that her answer was in the affirmative, adding that the said Francis Sackey is her brother.    That she personally took those documents from the girl who had them from the bread seller.   That when the 2nd Plaintiff was again told of what had happened, he rushed to the Defendant’s Bank with anger to find out why document filled at the bank should find their way to a bread seller.  The said documents containing the information about the 2nd Plaintiff was also tendered and accepted in evidence as Exhibit ‘B’.   \r\nFurther that on the 16th April, 2012, four (4) of the defendants managers including the Head of the Legal Department met with them in their lawyers’ Chambers and proposed to settle the matter out of court.   That they discussed the terms of settlement and the officers said they were going to get back to them on the 23rd April, 2013, but never heard from the Defendant Bank.   She therefore prayed for the reliefs as endorsed on the Writ of Summons. \r\nOn the 7th day of April, 2014, the 2nd Plaintiff, Francis Herbert Sackey collaborated the evidence of his sister, Ewurabena Sackey to the effect of the circumstances that brought Exhibits ‘A’ and ‘B’ into their possession.    That he later came into contacts with one Felix Quaye the compliance manager of the Bank and narrated to him how their forms filled at the Bank got into the hands of a bread seller and later found their way into the possession of the Plaintiffs.    That the said Felix Quaye advised him to email his complaint \r\n \r\n4 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nto the Defendant’s Bank which he complied.   The said email correspondence was tendered and accepted in evidence as Exhibit ‘C.   That he also had the chance to meet Felix Quaye in the Company of four other managers of the bank whose names he mentioned as Benjamin Adjei Ahulu, Addey Dayor, Marcus and Ellen Muzu to whom he narrated the incident.   That nothing concrete came out of this meeting as the 1st Plaintiff had travelled out of the country and so they agreed to meet the third time which was convened later and this time with the Head of Legal Department, Nana Adwoa Hackman in attendance.    That at the third meeting, the Bank officials requested he returns the documents in issue so that they would change the PIN but this was not complied with as they had decided to institute legal action.    That the Bank officials at that meeting requested to settle the matter out of court if it was money they wanted.    \r\nIt is his case that, the matter was not settled out of court for which reason they are in court.   That the Visa Application Electronic Card is very confidential such that a third person or party can use them to enter into their accounts without any red flag been raised.  Further it is the 2nd plaintiff’s case that, they have suffered damage by the breach of the confidential agreement which of course is an embarrassment to them. \r\nOn the 22nd June, 2015, Raymond Addae Acka Egbele, a Representatives of the Defendant Bank testified to the effect that, he is the Head of Electronic Supervising Division of the Bank; and that the plaintiffs are customers of the bank.   That the Plaintiffs are making a claim that the Electronic Visa Application Forms that they requested and filled out and deposited in the custody of the defendant were found in the possession of a bread seller and as result of which they alleged their confidential information has been made public; which according to the Plaintiffs’ has caused embarrassment to them and have brought the Bank to court to claim some compensation.   That when they officially heard the case of the Plaintiff, the defendant Bank suggested to the Plaintiffs that, they would assist them to change the details of the alleged forms in order to prevent any possible issue on financial compensation.     That the Bank further suggest to change their details including their PIN \r\n \r\n5 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nbut the Plaintiffs declined.    Further that, Exhibits ‘A” and ‘B’ have the names, phone numbers and the accounts of the Plaintiffs.    \r\nIt is also the case of the Defendant per Representative that, the Plaintiffs were interested in financial compensation.  That the Defendant Bank does not see the said information as confidential and yet the Plaintiffs claim GH?30,000.00 each for allegedly exposing their information to the public.    That initially the Bank only asked them to assist it change their details but as the Plaintiff insisted on monetary compensation, the Bank met them to agree on a token sum in the range of GH?3,000.00 but this was turned down.    That all attempt to settle the matter out of court failed because of the Plaintiffs firm stand to take financial compensation of GH?30,000.00 each.   The Bank per witness deemed paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 17 and 18 of the statement of claim of the Plaintiffs.     That the Bank does not know the 1st Plaintiff as an International Business Woman or as a Financial Consultant and so it has not injured the Plaintiffs in anyway, form, manner and has also not defamed any of the Plaintiffs’ in any form for which reason it is their view that, the Plaintiffs are not entitled to the reliefs as endorsed on the Writ of Summons. \r\nNow, and as by Law established, a person who makes a claim in any civil case owes it a duty to adduce sufficient and credible evidence to prove his/her case.     In fact Section 11 (4) and 12 of the Evidence Act 1975 (NRCD 323) states that, the standard of proof in all civil cases is one of “a balance of probabilities”.   This was stated and cited with approval by the Supreme Court in the case of ADWUBENG VRS DOMFEH [1996 – 97] SCGLR 660 at page 662 as follows; \r\n“By Section 11 (4) and 12 of the Evidence Act (NRCD 323) the standard of proof in all civil cases is proof by the preponderance of probabilities no exceptions were made” \r\nAgain, In the case of TAKORADI FLOOR MILLS VRS SAMIR FARIS [2005- 2006] SCGLR 882 at page 900, the Supreme Court captured the trite position of the Law relating to the burden of proof.  They stated as follows:- \r\n \r\n6 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\n          “To sum up this point, it is sufficient to state that, this being a civilian suit, the rules of                            evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12 (2) of the Evidence Decree 1975 NRCD 323).  Our understanding of the Rules in the Evidence Decree, 1975, on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival version and it deserving of a favourable verdict”.  \r\nIt is therefore my view that, the yardstick for determining who takes the day in this suit is the quality and credibility of the evidence the party adduces. \r\nAt the close of the pleadings, three issues were set down for trial and the first is “whether or not the defendant owes the Plaintiffs a duty to protect their confidential personal information contained in their documents in the defendant’s custody.   Exhibits ‘A’ and ‘B’ are the VISA International Electronic Debit Card Application Form in respect of Miss Ewurabena Sackey and Mr. Francis H. Sackey respectively provided for filling by the UNITED BANK FOR AFRICA.  The two exhibits have the following information about the then applicants now the plaintiffs in the instant suit. \r\n1. Their full names 2. Home or residential address 3. Postal address 4. Both land and mobile telephone numbers 5. Accounts numbers 6. Test question and answer (under column of security information) \r\nOn each of Exhibits ‘A’ and ‘B’ and immediately below the security information bar or block is an agreement between the UNITED BANK FOR AFRICA, the then applicants and the plaintiffs in the instant suit.   By the agreement the applicants and the plaintiffs herein have subjected themselves to the Defendant banks VISA Debit Card Terms and Conditions as stated therein.  The question before the court is, as contained in issue (1) \r\n \r\n7 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nstated above.  The Defendant’s Bank also by its business nature is to collect and keep the information about its customers secretly and confidentially so that should any red flag be raised in respect of any such information as in the instant case, those documents could be easily traced and referred to.      If also, for any other reason (s) the Defendant’s Bank decides to do any other business including the issuance of Exhibits ‘A’ and ‘B’ as in the instant suit, it equally owes it a duty to keep copies that remain with it secretly and confidentially to the benefit of the Depositor/Customer and the Bank.    In fact it is an implied term of contract between the Applicant/Customer (s) who for the purpose of this case are the Plaintiffs herein and the defendant Bank to secretly and confidentially keep their respective information in the Bank’s custody.    This contract is entered into between the suitors immediately the applicants who are the plaintiffs herein filled and deposited their personal information Forms with the bank official (s) in charge of such duties.    \r\nInfact the Banking Act, 2004, (Act 673) and the Data Protection Act, 2012, (Act 843) establish the Defendant Bank’s duty to the Plaintiff.     Section 84 of Act 673 provides as follows and I quote: \r\n      “84 A director, an official or any other employee of a bank shall not disclose an information relating to the affairs of a customer with that Bank except where the disclosure of the information is by Law or a Court of competent jurisdiction or the Bank of Ghana or is authorized by the customer or is in the interest of that Bank”. \r\nIn the instant suit even though the Defendant objected to the tendering in evidence of Exhibits ‘A’ and ‘B’ they did not deny the fact that, the said exhibits were the documents that were filled and deposited in the Bank’s custody for safe keeping by the Plaintiffs herein, and without any authorization from or by a Court, the Bank of Ghana or the customer (s), the Applicants/Plaintiffs personal information forms with the defendant found their way to a bread seller on the street of Accra. \r\nAgain, section 17 (g) of the Data Protection Act 2012, (Act 843) provides as follows and I quote; \r\n \r\n8 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\n  17 “A person who process date shall take into account the privacy of the individual by applying the         following principles;- \r\n(g) “Data security safeguards” \r\nIn the instant suit, there is no dispute to the fact that Exhibits ‘A’ and ‘B’ were deposited with the Defendant’s Bank by the Plaintiff and yet they found their way to this court via a bread seller in or on the busy street of Accra.    The implication is that, the Defendant Bank either has no data security safeguards or neglected to apply them to the benefit of the Plaintiffs in the instant suit.    \r\nIt is therefore my view that, issue (1) above is resolve.   Issue two (2) is “whether the Defendant breached the said duty by exposing such information to a road side bread seller”?   The records and evidence before the court has it that Exhibits ‘A’ and ‘B’ were filled by the Plaintiffs and submitted to the Defendant for VISA Card.   The said Exhibits ‘A’ and ‘B’ are now with the court and no longer in the possession of the Defendant’s Bank.   The bare fact is that, the two exhibits found their ways into the hands of a bread seller on the street of Accra.    The meaning is that, the y have breached the Provisions of Section 84 of Act 673 of 2012 and Sections 17 (g) and 18 (a) of Act 843, the Banking Act and Data Provision Act respectively of 2012; for which reason they have breached their duty by exposing the information of the Plaintiffs to a bread seller.   Issue two is also resolved.    The third issue is “whether the Plaintiffs did suffer any damages resulting from the alleged negligent act of the defendant?   The Plaintiffs have stated in their respective evidence to the court the distress and anxiety that they went through in running after the officials of the Defendant Bank to report the incident to them.   They also mentioned the series of meetings that they had with the officials of the defendant Bank which yielded no positive result.   Time and money were spent on the meetings held and the filing of the instant suit.   The journey to and from court by the plaintiffs with the attendant payment of legal fees are all damages that the plaintiffs have suffered as a result of the defendant Bank negligent or wilful act by exposing their personal information to third parties who are not expected to have access to the information as contained in Exhibits ‘A’ and ‘B’. \r\n \r\n9 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nI am of the view that, as to whether the Plaintiffs are entitled to any compensation, the answer lies in Section 43 (1) and (2) of the Data Protection Act, 2012, (Act 843) which states and I quote “43 (1) where an individual suffers damages or distress through the contravention by a Data Controller of the requirement of this Act, that individual is entitled to compensation from the Data Controller for the damage or distress”. \r\n(2) In proceedings against a person under this Section, it is a defence to prove that the person took reasonable care in all the circumstances to comply with the requirements of this Act”. \r\nPer the evidence on record, the Court finds as a fact that, Exhibits ‘A’ and ‘B’ filled in the office of the Defendant Bank by the Plaintiffs herein contain vital personal information of the Plaintiffs.    \r\nIt is also a fact that, the aforementioned Exhibits found their way into the hands of the Plaintiff via a bread seller and a customer of the bread seller described here as the caller or informant.      \r\nIt is further a fact that the discovery of Exhibits ‘A’ and ‘B’ in the possession of the bread seller and her customer put fear, anxiety and distress into the plaintiffs which made them to run after the Defendant Bank for one or the other solution.   The Defendant Bank per its representative in this court never denied the fact that, Exhibits ‘A’ and ‘B’ containing very vital personal information of the Plaintiffs were not left in their custody or control for protection and safe keeping. \r\nJudging therefore, from the evidence on record and the facts of findings made, I am of the view that, the Defendant’s Bank has been negligent in its handling and control of Exhibits ‘A’ and ‘B’ which contain vital personal information of the plaintiffs that have been deposited in the care and custody of the bank for safe keeping.   \r\nI therefore hold the view that, the plaintiffs have been able to persuade me to belief that, their side of the evidence on record is more probable than that of the defendant for which \r\n \r\n10 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\nreason they are entitled to reliefs (a), (b), (c) and (d) as endorsed on the Writ of Summons and the accompanying statement of claim filed on the 25th March, 2013. \r\nConsequently, the Court enters Judgment for the Plaintiffs on the said above mentioned reliefs and Order as follows; \r\n(a) The Court orders the Defendant Bank to within 14 days from the date of this judgment (i.e. 29th April, 2016) to render an unqualified apology in writing to the Plaintiffs for the embarrassment caused to them.  (b) On the issue of damages, the Court takes into consideration the panic, anxiety, fear, distress and also the time period of litigation and of course the expenses made in litigating over the matter.   In the circumstances of this, the Court holds the view that, cash the of sum GH?20,000.00 (Twenty Thousand Ghana Cedis only) to each of the 1st and 2nd Plaintiffs is most appropriate as compensation and it is accordingly ordered. (c) It is further ordered that, the Defendant’s Bank, its agents, servants, assigns, representatives and any other person acting on its behalf are restrained from further publishing the personal Bank details of the 1st and 2nd Plaintiffs to the general public unlawfully. (d) Cost of GH?5,000 to the Plaintiffs as against the Defendant’s Bank. \r\n                 \r\n                       (SGD.)         JUSTICE E. K. MENSAH         JUSTICE OF THE HIGH COURT       \r\n               LAWYERS: ELIS QUARSHIGA FOR THE PLAINTIFFS PRESENT NUTSIFAFA NUTSUKPUI FOR THE DEFENDANT PRESENT \r\n \r\n11 \r\nJUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT   \r\n  EWURABENA SACKEY & OR VS UNITED BANK FOR AFRICA \r\n                                                                                                                                            ', 'links/cases/EWURABENA SACKEY AND ANOR VS UNITED BANK FOR AFRICA.pdf', 'Yes', '', '2016', 'high', '', 'E.K. MENSAH, J', 'Civil', '', 'BC.338/2013', '', '', 'High Court, Accra', '2016-04-29', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(597, 'THE REPUBLIC        \r\n    VRS  \r\n1. MRS CHARLOTTE OSEI,  \r\n2. THE ELECTORAL COMMISSION,  \r\nEX PARTE DR. PAPA KWESI NDUOM   ', ' \r\nRULING  \r\nI have before me an application in the nature of judicial review seeking the following reliefs:  One, certiorari to bring to the court the decision of the Respondents dated the 10th of October, 2016 which disqualified the Applicant as a presidential candidate for the 2016 general elections for the purpose of having same quashed.   \r\nTwo, an order of prohibition to be directed at the Respondents from proceeding with balloting for positions in the presidential elections.  \r\nAnd three for further orders directed against the 1st Respondent in her capacity as Returning Officer for Presidential election to grant the Applicant the opportunity to \r\n \r\n2  \r\namend and alter the one anomaly found in his nomination papers as well as accept his nomination papers as amended or altered to enable him contest as a presidential candidate for the 7th of December, 2016 elections.   \r\nThe grounds upon which the Applicant mounts this application has been stated by him to be anchored on:  \r\n1. Breach of the rules of natural justice (audi alteram partem)  \r\n2. Error apparent on the face of the record.  \r\nAs an application of this nature launched under Order 55 of the High Court (Civil Procedure) Rules C. I. 47 must of necessity be supported by an affidavit deposed to by or on behalf of the Applicant, the factual basis upon which this application has been made has fully been set out in the Applicant’s affidavit of 14th October, 2016.  \r\nI find it necessary to state the essential matters relied on by the Applicant in his thirtythree (33) paragraph affidavit in support. Applicant states that he was elected at the convention of the Progressive Peoples Party (PPP) as its Presidential candidate to contest for the upcoming elections for 2016. That the Respondents, who are mandated by law with the responsibility for the conduct of the elections opened nominations for which he duly picked nomination forms to contest for the office of the President of the Republic.  \r\nApplicant notes that the Respondents announced that it would receive the completed nomination papers on the 29th and 30th of September, 2016 and included the specific hours that persons who had evinced an intentions of contesting for the office of President were to submit the nominations papers. Applicant further claim that he dutifully followed \r\n \r\n3  \r\nthe instructions of the Respondents and submitted his forms on the 30th of September, 2016 only to hear ten clear days later on the 10th of October, 2016 at a press conference organized by the Respondents, that he has been disqualified as a presidential candidate on the basis that his nomination papers had one subscriber endorsing Applicant’s forms in two different districts; making the Respondents to conclude that Applicant did not have the requisite number of subscribers required by law to support the nomination.  \r\nTo Applicant the action of the Respondent to receive the forms only within the last two days of the nomination period meant that the Respondents have denied him the right afforded him by the law to have been given a hearing before a decision was taken regarding the competence of his nomination papers and hence the prayer for the invocation of the supervisory jurisdiction of the High Court.  \r\nThe Respondents have ardently resisted the application of the Applicant on the ground that it is baseless and undeserving of the reliefs he seeks from the court. In her affidavit in opposition deposed to by the 1st Respondent, she claims that by law she was to provide an opportunity for amendment to forms within the nomination period and that she concedes that the Commission indicated that it would receive the nomination forms on the 29th and 30th of September, 2016; nonetheless the rules regulating the conduct of the elections states that the processes of nomination is concluded by close of day for nomination. And that the Applicant, if it was desirous of taking advantage of the rules, by having the errors on his forms pointed out to him to amend, should have disregarded the notice the Commission gave for the submission of the forms on the 29th and 30th of September and instead submit his forms earlier enough for his errors to have been pointed to him.  \r\nAnd besides, even if the Applicant purported to have relied on the notice issued regarding the two specific dates of 29th and 30th for the submission of his forms, then the Applicant \r\n \r\n4  \r\nvoluntarily assumed the risk associated with the late submission of forms.  \r\n1st Respondent, again, claim that Applicant by his own showing has admitted that one subscriber subscribed in more than one district and the nomination forms of the Applicant accordingly did not comply with the law and the decision to declare as invalid the forms of the Applicant was proper and in accordance with the rules. To Respondents, the Applicant had duly been given a proper hearing which came after his disqualification wherein the Applicant admitted knowledge of the criminal subscription to his nomination form and concludes, therefore, that the Applicant had not acted fairly to deserve the exercise of the discretionary power of the court in his favour.  \r\nPRELIMINARY LEGAL OBJECTIONS The 1st Respondent in paragraph 6 of her affidavit in opposition gave indication that the application was incompetent and had preliminary legal objections to raise. Learned counsel, in his statement of case and in his vova voce submission before the court, has raised what I deem to be a hydra headed preliminary legal objections to the propriety of the application before the court. The court can proceed to the merits of this application only after it has determined the preliminary legal objections.  \r\nThe first preliminary objection raised is to the effect that the Applicant has invoked the jurisdiction of the court by the wrong process, as to counsel for Respondents, the correct process for the Applicant to have approached the court was a petition and not an application for judicial review. Counsel support his submission by Regulation 9(3) and (4) of the Public Elections Regulations, 2016 (C.I.94) which states that:  \r\n“Where candidate fails to comply with sub regulation (2), the Returning Officer shall consider the nomination paper of the candidate as invalid and shall \r\n \r\n5  \r\n  (a) Endorse and sign on the nomination paper the reasons for that decision; and   \r\n(b) Inform the Commission”.  \r\nAnd it is after that the Commission shall take a decision on the matter within seven days. Counsel for Respondent argues that the option available to a candidate who is aggrieved by the decision of the Commission is to be found in Regulation 9(5) which states that:  \r\n“This regulation shall not prevent the validity of a nomination to be questioned on an election petition”.  \r\nOne needs a careful reading of the basis for the Applicant being in court in order to appreciate whether the Applicant falls within Regulation 9(5) of C. I 94 as to compel him to commence his action by petition. Respondent claim that Applicant has only invoked the jurisdiction of the court because 2nd Respondent invalidated his nomination paper, thereby disqualifying him. To appreciate the nature of this application in this manner, with respect, is to habour a limited appreciation of the entire reasons why the Applicant has ran to the court. Applicant claim or question, as far as I understand his application, that Respondent is enjoined to have given  him a fair hearing before the close of nomination period, if there was one, to make any amendment or alteration necessary, to his nomination forms before any decision to disqualify him was made. If the Applicant was not alleging any procedural impropriety but only that the decision for his disqualification on the merits was wrong, then, I think, the correct procedure would have been by the mode spelt out under Regulation 9(5) of C. I. 94, that is through a petition.  \r\nIt is, therefore, my view that commencing an action by way of petition spelt out in \r\n \r\n6  \r\nregulation 9(5) of C.I 94 is when an applicant challenges the grounds of his disqualification on the merits and not when a disqualified candidate seeks to invoke the supervisory jurisdiction because of a procedural impropriety. See the following cases: REPUBLIC v HIGH COURT (CRIMINAL DIVISION); EX PARTE FRANCIS ARTHUR (Unreported) judgment of the Supreme Court dated 28th July, 2016; J5/29/16; AWUNI v WEST AFRICAN EXAMINATION COUNCIL [2003-2004] SCGLR 471.  \r\nWhiles writing this ruling, my attention was drawn to the case of REPUBLIC v NATIONAL ELECTORAL COMMISSION & REBECCA ADOTEY; EX PARTE GEORGE AMOO [13/7/2000] where the Court Appeal per Twumasi JA noted at page 5 of the judgment that where the legislature has provided a special procedure one cannot by pass it to litigate election results by prerogative writs. That case dealt with a party who had commenced an action by petition from the High Court all the way to the Supreme Court and whiles the final appeal was pending at the Supreme Court he decided to take the alternative route of invoking the prerogative writs of the High Court. The learned Judge correctly appreciated the issue in that case, when he stated as follows, that it was not opened to a Judge to assume fresh jurisdiction under the cloak of an application for prerogative orders in a disputed election results for which an election petition had previously been filed. That in itself amounted to an abuse of the judicial process. Ex Parte Amoo, is therefore, not an omnibus authority, to argue that this court is restrained from proceeding to examine this application as not being the right procedure for approaching the court.   \r\nThe second preliminary legal objection, I glean, is that even if the Applicant had come by way of petition, his cause of action would still not have accrued, and that having recourse to the court by way of petition is available only after the conduct of the elections. Counsel supports his submission with the cases of REPUBLIC HIGH COURT, SUNYANI, EX \r\n \r\n7  \r\nPARTE COLLINS DAUDA (BOAKYE-BOATENG INTERESTED PARTY) [2009] SCGLR 447; REPUBLIC v HIGH COURT, KOFORIDUA, EX PARTE ASARE (BABA JAMAL, INTERESTED PARTY) [2009] SCGLR 460.  \r\nI think, again with deep respect, counsel’s submission is gravely misconceived. The cases cited deals with the challenge to the validity of an election to Parliament under section 16 of the Representation of the Peoples Law, 1992 (PNDCL 284) which can only be questioned by a petition. The time for the presentation of a petition has been stated under section 18 of the said Law to be within 21 days after the publication in the Gazette of the results of the election. Counsel cannot stretch the time period given by the law under PNDCL 284 to mount a challenge questioning the validity of the election of a candidate as a member of Parliament to encompass an allegation of a challenge of a person regarding a breach of a procedural rule under C.I 94. In any case, I have found that approaching the court, as in this case as the Applicant did, is not by way of petition and the subsequent argument of needing to wait until after the elections is a non sequitor.  \r\nThe third in the trilogy of the preliminary legal objections launched by counsel for the Respondents is founded on an alleged non-compliance with the formal requirements for judicial review. Counsel for respondent relies on what the Rules say an application for judicial review should comply with under Rule 4 of Order 55 of the High Court (Civil Procedure) Rules, C.I. 47 which states as follows:  \r\n“Mode of Application  \r\n(1) An application for judicial review shall be made to the High Court by motion  \r\n(2) The motion shall be supported by an affidavit by or on behalf of the applicant which \r\n \r\n8  \r\nshall contain the following particulars:  \r\n(a) The full name, description and address for service of the applicant (b) The facts upon which the applicant relies;  \r\n(c) The relief or remedy sought by the applicant and the grounds on which he seeks the relief or remedy; and  \r\n(d) The full name, description and address for service of the person directly affected by the application”.  \r\nCounsel’s submission is that the above detailed information were found in the motion paper of the applicant but not in the affidavit, and this to him is fatal as the rules mandates that the information should rather be contained in the affidavit and not the motion paper as the Applicant had done.   I concede that the rules mandates an applicant to state the particulars required under Rule 4 of order 55 of C. I. 47 in the affidavit. Having put those particulars not in the affidavit but in the motion paper; what then is the net effect. Counsel for Respondent argues that this slip should lead to the dismissal of Applicant’s application before the court. I am unable to accede to this invitation by counsel for Respondent for the dismissal of the application and the reasons of the court are as follows:  \r\nIt is trite that where a step taken by a party to a proceedings is fundamentally defective such a defect or error is beyond the curative and redemptive powers of the court. See REPUBLIC v HIGH COURT, KUMASI; EX PARTE ATUMFUWA [2000] SCGLR Beyond that the failure to strictly comply with a procedural rule will not lead to an \r\n \r\n9  \r\nautomatic dismissal of a suit due to the saving grace of Order 81(1) of C. I. 47 which notes that the failure to comply with the requirements of the Rules, whether in respect of time, place, manner, form or content shall not nullify the proceedings. I understand the authoritative pronouncement of Dr. Date-Bah JSC in the case of REPUBLIC v HIGH COURT; EX PARTE ALLGATE CO LTD (AMALGAMATED BANK LTD) INTERESTED PARTY [2007-2008] SCGLR 1041 to mean this: that all breaches of the Rules of court are curable and may be waived by the court in the exercise of its discretion except three main irregularities that cannot be waived. These are:  \r\ni. A breach or a violation that borders on want of jurisdiction of the court. ii. A breach of a statutory provision or an enactment other than a breach of the rules of court iii. A breach of any of the constitutional provisions. See page 1050 of the Ex Parte Allgate case supra.   \r\nThe question I ask myself is does the violation that counsel for the Respondent raises fall within any of the three categories of exceptions that are beyond the curative powers of the court? The answer is a big no. Following Ex Parte Allgate the decision in Ex Parte Dr. Kofi Asare, supra followed the same jurisprudential thought. And even before the advent of the C.I 47 the Supreme Court had exercised similar functions in the case of NIKOI OLAI AMONTIA IV (SUBSTITUTED BY TAFO AMON II v AKOTIA OWORSIKA III (SUBSTITUTED BY LARYEA AYIKU III [2005-2006] SCGLR 637 where the court cited with admiration the dictum of Apaloo J.A (as he then was) in the case of ABDILMASIN v AMARFI [1972] 2 GLR 414 at 422 as follows:  \r\n“Nobody has a vested right in procedure and modern notions of justice require that a court should do substantial justice between parties unhampered by technical \r\n \r\n10  \r\nprocedural rules”.  \r\nI cannot rest this point without making reference to the case of HALLE & SONS v BANK OF GHANA & ANOR [2011] 1 SCGLR 378I wherein their Lordships noted in emphatic terms that:  \r\n“Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of a handmaid rather than a mistress, and the court ought not be so far bound and tied by rules, which are after all only intended as a general rules of procedure, as to be compelled to do what would cause injustice in the particular case”.  \r\n See also cases of OPOKU & ANOR (NO 2) v AXES CO LTD. [2012] 2 SCGLR 1214; BOAKYE v TUTUYEHENE [2007-2008] SCGLR; REPUBLIC v HIGH COURT, ACCRA; EX PARTE GHANA MEDICAL ASSOCIATION (ARCMANNAKUMMEY INTERESTED PARTY) [2012] SCGLR 768.  \r\nI will hold and conclude on this point that the contention of counsel for the Respondents is an anaemic technical legal point bereft of any merit or substance and same is accordingly dismissed.   THE SCOPE OF THE SUPERVISORY JURISDICTION OF THE HIGH COURT It is necessary for the purposes of clarifying the perimeters for the invocation of certiorari and prohibition that I set out the law on applications of this nature before dealing with whether the Applicant has made a good case for the reliefs he seeks from the court.  \r\n \r\n11  \r\nThe Supreme Court in defining the ambit and scope of certiorari application in the case of REPUBLIC V HIGH COURT, SEKONDI, EX-PARTE AMPONG AKA AKRUFA KRUKOKO I (KYEREFO III AND OTHERS – INTERESTED PARTIES) [2011] 2 SCGLR, 716 AT 722 noted as follows on the remit of certiorari applications:  \r\n“An order of certiorari, it is trite learning, is a discretionary remedy granted on grounds of excess or want of jurisdiction and or some breach of a rule of natural justice”.  \r\nIn the case of REPUBLIC v CAPE COAST DISTRICT MAGISTRATE GRADE II; EX PARTE AMOO [1979] GLR 150 CA Apaloo CJ noted as follows on certiorari applications: “As is well known, the remedy of certiorari is a useful tool in aid of justice and ought to be used to correct defects of justice whether they arise from illegality, fraud, breach of the rules of natural justice, error on the face of the record and the like.  I am not even prepared to say that the category of cases in which this useful remedy can or should be used is closed.  There is no reason why I should stifle the development of the law by any such assertion”  \r\nAnother better rendition of the scope of certiorari was spelt out by the Supreme Court in its recent decision of REPUBLIC v HIGH COURT, ACCRA; EX PARTE THE CHARGE D’AFFAIRS, BULGARIAN EMBASSY; (Unreported) Suit No J5/34/2015 dated the 24th Feb., 2016; wherein the court noted as follows:  \r\n“It is well-settled that certiorari will be granted to quash a decision of a court that has been made without jurisdiction or in excess of jurisdiction or where there is an error of law apparent on the record that makes the decision a nullity.  Certiorari \r\n \r\n12  \r\nwill also be granted to quash a decision given in breach of a rule of natural justice”.  \r\nIn the case of TEMA DEVELOPMENT CORPORATION & MUSAH v. ATTA BAFFOUR [2005-2006] SCGLR 121, the Supreme Court held, per Wood JSC (as she then was) quoting from the judgment of Lord Diplock at page 949 of the report in the case of COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS v. MINISTER FOR THE CIVIL SERVICE [1984] 3 All. ER 935 of the ambit of judicial review noted as follows that:   “To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either (a) by altering rights or obligations of that person which are enforceable by or against  him in private law or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and  which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn….  \r\nFor a decision to be susceptible to judicial review the decision-maker must be empowered by public law … to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law \r\n \r\n13  \r\nwith executive powers, which have one or other of the consequences mentioned in the preceding paragraph’.  \r\nIn the English case referred to by the Supreme Court in the TDC case, Lord Diplock identified three broad categories of acts amenable to judicial review. The first is illegality. That is the person who takes a decision in the performance of his public function must understand correctly the law that regulates his decision making power and be careful to give effect to the law. The second is irrationality otherwise now referred to as the Wednesbury unreasonableness. This is in respect of a decision taken of a public nature and is so outrageous in its defiance of logic or of accepted moral standards that no reasonable person would have arrived at the decision. The third comes under the rubric of procedural impropriety or failure to act with procedural fairness towards a person who is affected by the decision taken. These principles can also clearly be found in page 15 of the work “Judicial Review of Administrative Actions” (5th Ed) S & M London. See also the unreported ruling of my brother Asiedu J. sitting at the Fast Track Division of the High Court in ALBERT ANTHONY AMPONG v ATTORNEY – GENERAL AP 95/2009 dated 2nd December, 2009.  \r\nThe Applicant no doubt has triggered the supervisory jurisdiction of the High Court under article 141 of the Constitution, where the Constitution grants power to the High Court over all lower courts and lower adjudicatory bodies in the exercise of that jurisdiction to issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers. Section 16 of the Courts Act, 1993, Act 459 echoes this powers granted to the High Court under article 141 of the Constitution. The powers of the court is given a comprehensive boost under article 23 of the Constitution which states as follows: \r\n \r\n14   \r\n“Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other Tribunal”  \r\nThat the actions of the Respondents in the performance of their official functions is amenable and within the scope and remit of the exercise of the supervisory jurisdiction of the High Court if the acts violates any of the known principles I have distilled supra. See ENEKWA & ANOR v KWAME NKRUMAH UNIVERSITY OF SCIENCE & TECHNOLOGY (KNUST) [2009] SCGLR 242.  \r\nHaving set down the perimeters of the law, does the grounds of complaint of the Applicant meet the standard set by law? The reliefs Applicant seeks is based on the grounds of breach of natural justice (audi alteram partem rule) and two, error apparent on the face of the record. Has the Applicant demonstrated any of these grounds to the court to be entitled to the issuance of certiorari and prohibition? I will prefer to deal with the ground of error apparent on the face of the record first before turning to the audi alteram partem rule of natural justice.  \r\nERROR APPARENT ON THE FACE OF THE RECORD  What precisely is an error apparent on the face of the record? There seems not to be an   authoritative pronouncement yet from our courts, at least, my research did not yield one. But it does appear that the phrase does not lend itself to easy definition and error apparent on the face of the record cannot be established with a degree of certainty and mathematical precision. There is some degree of latitude to be determined on case by case basis on what will constitute an error apparent on the face of the record. What is clear, \r\n \r\n15  \r\nhowever, is that an error cannot be deemed to be apparent on the face of the record, if one needs to journey beyond the scope of the record to determine whether the decision impugned is correct or not. The record, upon examination at first glance, must strike one and need no long arguments and submissions to establish it. The error must be blatant and visible. I am persuaded by the position given in the Indian case of BATUK VYAS v SURAT MUNICIPALITY AIR [1953] BAM 133 where Chagla CJ noted as follows:   “No error can be said to be apparent on the face of the record if it is not manifest or self-evident and require an examination or argument to establish it”.  \r\nThe second case I find that determined what an error apparent on the face of the record mean is from a decision of the House of Lords in the case of BALDWIN & FRANCIS LTD V PATENTS APPEAL TRIBUNAL [1959] A.C. 663, which dealt with patent action under section 9 of the Patent Act of UK, 1949 stripping the right of appeal against the decision of the Patent Appeals Tribunal except in the invocation of certiorari. The owner of a prior invention brought an application to quash the decision of the Patent Appeal Tribunal which had reversed the call of a superintendent examiner, that an application of a new invention would involve the reference to a prior invention. The owner of the prior invention invoked the supervisory jurisdiction of the House of Lords, that there was an error apparent on the face of the record and invited their Lordships to compare the two specifications. The court in rejecting this invitation noted at page 674 that:  \r\n“Here error cannot be detected simply by comparing two phrases in the judgment of the tribunal. Before error could be found the House of Lords would have to construe the relevant specification, a document addressed to technical experts, \r\n \r\n16  \r\nwhich cannot be construed without explanations from technical experts. If in order to detect the error the House of Lords would require the help of technical experts, it is a contradiction in terms to say that an error of law appears on the face of the judgment…. In considering what is the record the matter must be looked at quite strictly …”    It further noted that: \r\n“The court should take care that on an application for certiorari it does not go behind the face of the record and decide a point of mixed fact and law. The error on the face of the record must be palpable and apparent. The record, according to Blackstone''s definition, is what the inferior tribunal keeps "for a perpetual memorial and testimony" of its proceedings”  \r\nThe final case on this point is the case of ACIT v SAURASHTRA KUTCH STOCK EXCHANGE LTD C/A NO. 1171 OF 2004 dated September, 15, 2008 the same Indian Court described an error apparent on the face of the record in the following terms:  \r\n“A patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it can be said to be an error apparent on the face of the record…”  \r\nThe record that Applicant complains about and seek to be quashed is Ex DPKN3, dated the 10th of October, 2016 and perhaps that part of page 11 of Ex DPKN2 that relates to the disqualification of the Applicant. Exhibit DPKN3 is a letter written to the Applicant by 1st Respondent in her capacity as the Returning Officer for the 2016 presidential elections. She informs the applicant of the regret of 2nd Respondent’s inability to accept \r\n \r\n17  \r\nthe nomination paper of Applicant because one subscriber, Richard Aseda endorsed Applicant’s form in two different districts.   \r\nTaking Ex DPKN3, it would be difficult to conclude, without admitting further evidence and arguments that there is something palpably wrong with Ex DPKN2. And as there is the need for admission of further evidence and arguments to determine error, if any, I find and I am persuaded that the second leg of Applicant’s challenge to the decision of the Respondents that there was an error apparent on the face of the record has not been made out.  \r\nAUDI ALTERAM PARTEM RULE OF NATURAL JUSTICE I now turn to the first and main ground that Applicant anchors his application to invoke the supervisory jurisdiction of the court. That is the denial by the Respondents to the Applicant of a fair hearing before the announcement that he has been disqualified as a presidential candidate on the ticket of the PPP. Applicant’s arguments oscillate from nonprovision by Respondents of a nomination period through one where he argues that even if a nomination period was provided the time allotted the Applicant was unreasonable and breached Regulation 9(3) of C. I. 94 to one that the failure by Respondents to grant him a hearing before disqualification before the closure of the nomination period was bad in law and sinned against the audi alteram partem rule.   \r\nI think Regulation 9(1)(2)(3) and (4) of C. I. 94 would be very relevant and I find it useful to reproduce same here. It states as follows:  \r\n“9. (1) Whenever the nomination paper and the statutory declaration of a candidate are delivered and the deposit is paid in accordance with these Regulations, the candidate \r\n \r\n18  \r\nshall be considered to stand nominated, unless proof is given to the satisfaction of the Returning Officer of the candidate’s death, withdrawal or disqualification.  \r\n(3) The returning officer shall inform a candidate that the candidate’s nomination is invalid where  \r\n(a) The particulars of the candidate or the persons subscribing to the nomination paper are not as required by law; or  \r\n(b) The nomination paper is not subscribed to as required by law, and    shall give the candidate the opportunity to make amendments or any alteration necessary, within the stipulated nomination period”.[emphasis mine]  \r\nThe 9(3) deals with the steps that the Respondents would have to take after scaling 9(1) and (2).  \r\nThe Regulation 9 must be read in tandem with the prior provision founded under Regulation 7 of the same C.I 94 that spell out the details that should be contained in the nomination paper of a candidate vying for the highest office of the land. It states that:  \r\n“7. (1) A candidate for election as President shall be nominated on a separate           nomination form in a manner determined by the Commission.  \r\n    (2) The nomination form for each candidate in an election for President shall  \r\na) be signed by the candidate; \r\n \r\n19   \r\nb) be signed by not less than two persons who are registered voters in the area of authority of each district assembly; c) designate a person to serve as Vice President; and   \r\nd) be delivered to the Commission on or before the day appointed as nomination day in relation to the election \r\n(4) A person shall not nominate more than one candidate in a presidential election.  \r\n(3) The nomination form shall be in quadruplicate and shall be delivered personally by (a) the presidential candidate or (b) any of the persons specified under sub regulation (2) (b) between the hours of nine in the morning and twelve noon and the hours of two and five in the afternoon on or before the nomination day  \r\nIt is worthy of note in Regulation 7(2)(d) and & 7(3)(b) of the use of the phrase “ nomination day” and in Regulation 9(2)(b) the use of the phrase “nomination period” within whose span a candidate is provided the chance to make amendments to his form. I cannot make a definitive determination of whether there was a breach of the audi alteram partem rule of natural justice without embarking upon an interpretation of the relevant provisions of C.I. 94 in relation to this dispute. And in doing so I am mindful of the basic rule that when a text is plain it needs no interpretation but effect must be given to it and it is only when there is ambiguity that a court needs to interpret. That statement itself is not free from controversy as Aharon Barak, the former President of the Israeli Supreme Court states that even plain text needs interpretation as it is through interpretation that the court can conclude that the meaning of a text or word is plain. He \r\n \r\n20  \r\nstates that:  \r\n “Even plain text requires interpretation, and only interpretation allows us to conclude that its meaning is plain. That does not, however, mean that no text is plain”.  \r\nThe better way of constructing statutes is to interpret it as whole in a journey of discovering the intent of Parliament.  Such that in the interpretative work of the Judge he ought to view the statute as a whole and it is out of this holistic appreciation that the necessary connections and inferences could be drawn from the various parts, provisions, clauses, words, phrases etc in an attempt to discover the intent and purpose of Parliament. This has been echoed time and again and in the words of Viscount Simmonds that:  \r\n “the elementary rule must be observed that no one should profess to understand any part of  ... any document before he had read it as a whole”.   \r\nSee also OSEI v AUSTRALIAN GOLDFIELDS LTD. [2003-2004] SCGLR 69.  \r\nThe Applicant argues that where the 1st Respondent upon presentation of nomination papers, on the day appointed by the Respondents, as nomination day, Respondents finds that the persons that subscribed to the nomination paper are not as required by law or the nomination paper does not meet the standard required by law, a candidate still stood nominated after the nomination day until the 1st Respondent had afforded an opportunity for amendment within the nomination period. And it was only when the opportunity had been offered within the nomination period for the amendment and the candidate was still \r\n \r\n21  \r\nunable to effect the amendment that the 1st Respondent shall consider the nomination paper as invalid and inform the 2nd Respondent with a decision being taken on it within seven days.  \r\nThe principle of natural justice that Applicant relies on has been stated by the learned authors of Halbury’s Laws of England (4th Ed Vol 1 @ 78) that no man shall be condemned unless he has been given prior notice of the allegation made against him and offered the opportunity to be heard. The Supreme Court touched on what it meant an opportunity to be heard in the case of AWUNI v WEST AFRICAN EXAMINATIONS COUNCIL [2003-2004] SCGLR 471; where the court speaking through Sophia Akuffo JSC noted as follows:  \r\n“I will not venture to give a comprehensive definition of what is fair and reasonable, since these qualities are dictated by the circumstances in which the administrative function is performed. At the very least, however, it includes probity, transparency, objectivity, opportunity to he heard, legal competence and absence of bias, caprice or ill-will”.  \r\nThe question for my determination is was the Applicant afforded the opportunity required by the provisions of the Rules under Regulation 9 of C. I 94, as dictated by the ‘audi alteram partem’ rule of natural justice,  to be heard and to effect whatever anomaly that the 1st Respondent discovered within the nomination period before a decision was taken to invalidate his nomination paper?   \r\nWhat is nomination period and what is nomination day have not defined by the C.I 94. However, what is nomination day has been defined for the purposes of the Representation of the Peoples Law, PNDCL 284 and in relation to elections as “the day appointed for the \r\n \r\n22  \r\nnomination of candidates”. It would then mean that nomination period under C.I 94 will be the period appointed for the nomination of candidates who have manifested an intention of contesting as candidates for both the presidential and parliamentary elections. And it would further mean, that nomination period would be longer than the nomination day or days considering the import of Regulations 7 and 9 of C. I. 94.  \r\nWhat then was the time appointed by the 2nd Respondent as the day and period for the nomination of candidates in compliance with Regulations 7 and 9 respectively? The only guide I have is Ex “DPKN1” captioned “Immediate Release [Thursday September, 08, 2016] Update on Preparations For December 7 Elections”. The relevant portion for now is the following:  \r\n“The Electoral Commission has briefed the political parties on its preparation so far towards conducting the 2016 elections. At the Inter-Party Advisory Committee meeting held on Thursday September 8, 2016, the Commission advised as follows:   1. The Commission will be accepting nominations from Presidential and Parliamentary candidates on 29th and 30th September, 2016…”  \r\nIt is therefore clear to me that the day(s) that the Commission was to receive the nomination papers from candidates was set to be the 29th and 30th of September and that to my mind will satisfy what is nomination day(s) within the contemplation of Regulation 7 (2)(d) of C. I 94. But the nomination period as contemplated by Regulations 9(3) of C. I. 94 was conspicuously not set by the Commission. Though the Rules clearly affords a candidate to present his nomination papers on or before the nomination day but it seems that per Ex ‘DPKN1’ the EC signaled its preparedness to receive nomination papers only on the 29th and 30thof September, 2016. The Applicant dutifully in compliance with the \r\n \r\n23  \r\ndirections provided by 2nd Respondent appears to have presented his forms on the 30th of September, the last of the two nomination days set by the Commission for receipt of the nomination papers.    It is after the receipt of the nomination papers on the nomination day, and within the nomination period; that Respondents were under duty by law to inform the Applicant of any anomaly detected on his form. The Respondents purporting and proceeding under the erroneous assumption that the two days set for the presentation of the nomination papers coincided with the end of the nomination period, failed to afford any opportunity to the Applicant to amend his form. Granted that even the nomination period ended on the 30th of September, 2016 the denial of an opportunity to the Applicant to amend his form will be wrong. And if the nomination period did not end on 30th September, as I seek to posit supra that EC did not set any nomination period, the denial of an opportunity to the Applicant is even more fatal and incurably bad.  \r\nI am fortified in my view that “nomination day” as it appears in Regulation 7(2)(d) of C. I. 94 is different from “nomination period” appearing in Regulation 9(2)(b) of C.I 94 due to one of the presumptions of interpretation. That is presumption of consistent expression or meaning. This presumption is to the effect that different words or phrases used in an Act or Rule are presumed to have different meanings placed on them by Parliament. After all Parliament in an Act does not use words and phrases in vain. I have not found anything from C.I 94 that displaces this presumption.   \r\nOn the contrary it would be absurd from a clear reading of Regulations 7 and 9 of C.I 94 that the framers of the Rules will vest in the hands of the 1st Respondent to provide an opportunity to candidates to amend within the nomination period and expect that the day the acceptance of the nomination papers ends is the day the nomination period closes.  If \r\n \r\n24  \r\none were to interpret the Rules that the end of the day(s) of acceptance of nomination papers ended the nomination period, it would be tantamount to the rules providing a right to a party in one breath and taking the same right away when there seems to be no claw back clause.  \r\nI think, in my respectful opinion, that it is contemplated within Regulations 9(2) of C. I 94 that a right is provided a candidate to amend or alter his forms after acceptance of same by the Returning Officer. And that the time for the end of the nomination period is set to last longer than the nomination date so that the nomination period span a time after the acceptance of the nomination forms. For that is the only way to make the enjoyment of the right afforded a candidate meaningful under regulation 9(2) of C. I 94. And to interpret it otherwise will mean the Returning Officer arrogating to itself the power to snatch from candidates what the Rules have given them. And the Returning Officer and the EC have no such power.  \r\nAssuming that even the court is wrong on this above point made, does it sit well with the Respondents to contend in this court that even though it told Applicant that he had the liberty to present his forms either on the 29th or the 30th of September, 2016; nonetheless, if Applicant has followed that instructions by bringing his form on 30th and not 29th September, Applicant has done so to his own peril because the days of acceptance of the nomination papers was the same as the end of the nomination period. This appears to me that Respondents intended to take from the Applicant what the Rules have afforded him. Applicant acted within the scope of the instructions of the Commission and cannot be made to suffer any penalty of denial of a hearing that the Rules under C. I. 94 give him before a decision was taken as to whether he had fully satisfied all the requirements necessary to contest as a candidate to the office of President of the Republic.  \r\n \r\n25  \r\nIf the right to put oneself up as a candidate to contest an election is needlessly denied by the Respondents without due regard to well-trodden paths of fairness and propriety, it renders meaningless the exercise of the right to vote guaranteed by the Constitution in a participatory democracy. As the choice of a voter may have been denied him not through the fair means and processes prescribed by law. The conduct of the Returning Officer and the Commission in its denial of the right afforded the Applicant by law to make alteration or amendment to his form has been taken in a petulant fashion and their decision in respect of Applicant has been extremely perverse. The Applicant, Dr. Papa Kwesi Nduom, has made a clear case on the basis of the ‘audi alteram partem’ rule of natural justice for the grant of the reliefs of certiorari and prohibition.  \r\nBefore I deal with the contention of counsel for Respondent that this court is impotent to make any further consequential orders to give directions regarding the opportunity to amend that Applicant seeks; I find it necessary and useful to respond to two pertinent riposte made by 1st Respondent in her affidavit in opposition to the Applicant’s affidavit in support of his application.  \r\nFirst is the claim that the conduct of the Applicant in admitting that Richard Aseda signed in two different districts bothers on criminality and does not deserve the relief he seeks. I will not spend much ink on this submission save to say that counsel seems to misapprehend the import and the scope for the invocation of the supervisory jurisdiction of the court. Consistently eminent jurists have emphasized that certiorari application does not deal with the merits of one’s substantive case but more with whether or not there had been a decision that is irrational, deprives a party of fair hearing, procedural impropriety etc.  \r\nThis point was drummed home in the case of REPUBLIC v COURT OF APPEAL, EX\r\n \r\n26  \r\nPARTE GHANA CABLE CO. LTD. (BARCLAYS BANK GHANA LTD - INTERESTED PARTY) [2005-2006] SCGLR 107 where at 118 of the decision, Dr. Twum JSC, noted as follows:  \r\n“Certiorari is not concerned with the merits of the decision.  It is a complaint about jurisdiction or some procedural irregularity like the breach of natural justice”.  \r\nAgain on the case 16th of March, 2011 in the case of REPUBLIC v HIGH COURT, ACCRA; EX PARTE SALLOUM & OTHERS (COKER INTERSTED PARTY) Suit No J5/4/2011 the majority per Anin Yeboah JSC stated that:  \r\n“The courts in Ghana and elsewhere seriously frown upon breaches of the audi alteram partem rule to the extent that no matter the merits of the case, its denial is seen as a basic fundamental error which should nullify proceedings made pursuant to the denial”.  \r\nThese are enough to foreclose that argument. The second troubling claim of the 1st Respondent is that if it was just a fair hearing that Applicant complains of then he was amply afforded the opportunity to meet with 1st Respondent when he was disqualified. To reduce the denial of fair hearing that the law afford the Applicant before a decision is made to disqualify him to the meeting that took place after the disqualification of the Applicant is to trivialize the weightier and substantial mandate placed on the shoulders of the Returning Officer to afford an opportunity to the Applicant to amend his nomination paper within the nomination period before a pronouncement was made to disqualify him.  \r\n \r\n27  \r\nWhat was the usefulness of the meeting if it would not result in Applicant have the opportunity to effect the amendment or ensuring the compliance of the 1st Respondents with the law? The meeting of 13th October, 2016 cannot be advanced, in any way, as meeting the very intendment of the fair hearing that Regulation 9(2) of C.I 94 anticipate. The fair opportunity to amend the forms must precede any action to disqualify and not the other way round.  I find that submission, again with profound respect to Sory, Esq. to be gravely pedestrian and peripheral.   \r\nThe decision disqualifying the Applicant and as contained in Ex DPKN3 is ordered to be brought for the purposes of having same quashed and is hereby quashed by the court in the exercise of its supervisory jurisdiction.  \r\nDoes this court have the power to order the Commission to afford opportunity to Applicant to amend the forms and receive same? Sory, Esq has made copious submissions on this issue and I understand them as follows: That article 46 of the Constitution insulate the Commission from any external control and that the case of ABU RAMADAN & ANOR v ELECTORAL COMMISSION & ANOR J1/14/16 and dated the 5th of May, 2016 reinforces this constitutional provision of insulation of the Commission from any control. In the Abu Ramadan case counsel relies on the dictum, of Gbadegbe JSC wherein he noted that:  \r\n“It is observed that in the exercise of the court’s original jurisdiction, it is not permissible for the court to substitute its own decision for that of the body or persons exercising a discretion conferred on it by the Constitution. This is necessary to keep the court itself within its proper limits in order to give effect to the supremacy of the law …”  \r\n \r\n28  \r\nCounsel for Respondent will recall that Gbadegbe JSC proceeded to emphasis that when it had to do with the exercise of the discretion of the Commission, then it was not proper for the court to substitute its own discretion for the Commission. The finding that I have made of a breach of a right afforded the law to the Applicant regarding the opportunity to alter or amend his nomination paper, is not an exercise of a discretion of the Returning Officer and Commission but a mandatory obligation imposed on them by the law. And where Commission’s actions disclosed any vitiating circumstances such as illegality, irregularity, unfairness or failure to satisfy an essential pre-requisite to the making of a decision that may justify the intervention of the court to set any exercise of discretion Commission aside.  \r\nI take umbrage under the glowing words of wisdom delivered at page 29 of the judgment by the learned Judge, Gbadegbe JSC as follows:  \r\n“The correct position is that the courts as constituted under the 1992 constitution may intervene in acts of the first defendant to ensure that it keeps itself within the boundaries of the law and also to give effect to provisions of the constitution. This is a jurisdiction that our courts have always exercised in relation to the  first defendant of which the recent decision in the Abu Ramadan case (supra) is  an example”.  \r\nI adopt the above words as mine and as counsel for Respondents is fully aware that just yesterday the Supreme Court in the case of KWESI NYAME- TEASE ESHUN v ELECTORAL COMMISSION has ordered the Commission to furnish agents of political parties with collation sheets of signed declared results and for Commission to give agents of political parties a signed and completed copy of Form One EL 23A and One EL 23 B for parliamentary and presidential elections respectively, it should  be clear \r\n \r\n29  \r\nto him that Commission cannot claim immunity from the directions of the court intended to give full meaning to the exercise of the court’s supervisory jurisdiction.   \r\nI will proceed after quashing the decision of the Respondents disqualifying the Applicant as a candidate and order that the Respondents afford opportunity to the Applicant to make the necessary alteration or amendment to its nomination paper for it to receive same and then proceed to determine whether the Applicant had met all the criteria laid down by the laws of the Republic, in line with its duty laid down by C.I. 94. EC has no basis to complain that nomination period has closed when they did not set one. They only set nomination day under regulation 7 but not nomination period under regulation 9(2) as I have already found. The time frame to afford the Applicant is entirely within the discretion of the Respondents being mindful of the limited time available for the elections on December 7, 2016  \r\nIn conclusion, I trust and hope, that this ruling dissolves doubts and illuminate our perception of the C.I 94 especially Regulations 7 and 9, an area that has been tormented by controversy and ambiguity. I will exercise my discretion not to award cost. Each party shall bear its own cost.    \r\n       (Sgd.) Eric K. Baffour, Esq. Justice of the High Court   \r\nRepresentation: Applicant – Present \r\n \r\n30  \r\n1st Respondent –  Nii Ayikoi Otoo, Esq. with Gary M. Nimako, Esq., Felix Ograh, Esq., Dennis Ofosu Appiah, Esq., Barbara Brown, Ms, Cecil Adasi, Esq and Naa G. Ayiko Otoo, Ms for Applicant – Present. Thaddeus Sory, Esq., with Sean Poku, Esq., and Theodora Tawiah Armah, Ms for Respondents – Present  ', 'links/cases/EX PARTE PAPA KWESI NDUOM.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'GT/1401/2016', '', '', 'High Court, Accra', '2016-10-28', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(598, 'FAUSTINA NETTEY & ORS VS.  \r\nROBERT AKAI NETTEY & ORS', 'JUDGEMENT \r\nThe Plaintiffs by their writ dated the 15th day of June, 2007 are before this Court seeking the following reliefs: \r\ni    A declaration by the Court that Letters of Administration in respect of the estate of Joseph Kwei Nettey were granted by the High Court, Accra to the 1st Defendant on the 5th of July, 1966 and the said estate had already been distributed.  \r\n ii.  A declaration by the Court that the order procured by the 1st, 2nd 3rd , 4th 5th and 6th Defendants from the High Court,  Accra presided by His Lordship Justice Acquaye by which the 7th Defendant was appointed to distribute the estate of Joseph Kwei Nettey according to the Intestate Succession Law, 1985 PNDCL 111 was procured by fraud . \r\niii. An order vacating the order made by His Lordship, Mr. Justice Acquaye in which he appointed the 7th Defendant to distribute the estate of Joseph Kwei Nettey (deceased) in accordance with the Intestate Succession Law, 1985 PNDCL 111. \r\niv. A perpetual injunction order directed at the 7th Defendant restraining him from distributing the estate of Joseph Kwei Nettey in accordance with the Intestate Succession Law, 1985 PNDCL 111. \r\nThe facts which have led to the commencement of the present suit are as follows: The Plaintiffs are all surviving children of Joseph Nakai Nettey (deceased) who died on the 8th day of March, 2005. The 1st Defendant (now deceased), the 2nd, 3rd, 4th, 5th and 6th Defendants and the Plaintiffs’ deceased father, Joseph Nakai Nettey are all siblings of full blood born to one Joseph Kwei Nettey.  According to Plaintiffs, upon the death intestate of their grandfather on the 31st day of December, 1965, their paternal uncle, the 1st Defendant, applied for and was granted Letters of Administration by the High Court, Accra on the 5th day of July, 1966 to administer the estate of their late grandfather, Joseph Kwei Nettey. Plaintiffs say that, in line with this mandate, the 1st Defendant as Administrator, duly distributed the rooms in House No. A690/2, Djator Street, Mamprobi-Accra with each of the Defendants including the Plaintiffs’ deceased father getting a specified portion of the said property.  The 5th and 6th Defendants who were still in school at the time, had their portions managed by the 1st Defendant and Plaintiffs’ late father who rented out the rooms allocated to the 5th and 6th Defendants and used the proceeds to maintain them till they came of age.  Plaintiffs contend that the 1st, 2nd, 3rd and 4th Defendants also rented out their rooms upon the said distribution. The Plaintiffs further aver that their deceased father, Joseph Nakai Nettey, whose share of rooms was on the first floor of the said property occupied same with his wife and children for decades until his death in 2005.  This according to Plaintiffs, is indeed where they were born and have lived all their lives. They say that it has however come to their notice that the Defendants have fraudulently managed to procure an order authorizing the 7th Defendant, the Administrator General, to take over the estate of their grandfather who died in 1965 and to distribute same according to the Intestate  \r\n3  \r\nSuccession Law, 1985 PNDCL 111.  Plaintiffs insist that it is unlawful for the 7th Defendant to attempt a redistribution of an estate which has long been distributed. They charge that, the said order was obtained by fraud as the Defendants made representations to the Court knowing very well at the time that the said representations were false.  The particulars of fraud were given as follows: \r\n“The representation made to the Court was to the effect that the estate of Joseph Kwei Nettey (Deceased) was not distributed when indeed Letters of Administration were granted by the High Court, Accra on the 5th day of July, 1966 to the 1st Defendant and thereafter the estate distributed several decades ago.” \r\nPlaintiffs assert that they bring the present action in their capacity as beneficiaries of the estate of their deceased father. \r\nThe Plaintiffs’ claim is stoutly resisted by the Defendants. The defence as pleaded in an Amended Statement of Defence filed on the 21st day of May, 2014 is that the estate in question has not been distributed. The Defendants admit that the 1st Defendant applied for and was granted Letters of Administration on the 5th of July 1966 but attribute his failure or inability to distribute the estate solely to the Plaintiffs’ father who they allege, monopolized the entire estate to himself and frustrated all efforts at distribution. According to Defendants, all attempts by the elders of the family to meet with Plaintiffs father to effect such distribution proved unsuccessful due to his recalcitrance. As a result, the matter was still pending before the joint family heads, namely, Mr. TA Mettle and Mrs. Fifi Ankrah at the time the present suit was instituted. This, the Defendants contend, brings the facts of this case within the ambit of Section 21 of the Intestate Succession Law, 1985 PNDCL 111.  They challenged Plaintiffs’ right to succeed their father’s interest in the said Property and counterclaimed for the following: \r\na. A declaration by the Court that Plaintiffs have no beneficiary interest in House No. A690/2, Mamprobi, Accra of the estate of the late Joseph Kwei Nettey. b. An order evicting the Plaintiffs from the premises of H/No. A690/2, Mamprobi, Accra c. Perpetual Injunction directed at the Plaintiffs, their privies, assigns and successors in title from interfering in anyway with House No. A690/2, Mamprobi, Accra. d. Any other or further order(s) as this Honourable Court may deem fit.  \r\nThe substance of Plaintiffs’ reply filed on the 1st day of August, 2007 was to deny Defendants’ assertions and to reiterate the fact that PNDCL 111 (supra) was not applicable to the facts of the present suit.  \r\n4  \r\nI find from the record of the Court that, apart from proof of the 7th Defendant having been served with the Statement of Defence filed by the 1st to 6th Defendants on the 6th day of July, 2005 and Plaintiffs’ reply filed on the 1st day of August 2007, there is no proof of service of any of the other processes filed in these proceedings on him.  Notable, among these processes are the Plaintiffs’ Writ and Statement of Claim filed on 15th day of June, 2007.  By ORDER 7 RULE 12(1) OF THE HIGH COURT (CIVIL PROCEDURE) RULES, CI 47, service of a writ is to be effected separately on each Defendant.  In the absence of any proof that the 7th Defendant was duly notified of Plaintiffs’ suit against  him as required by law, it is quite clear that he cannot be deemed to have been properly made a Party to these proceedings.  \r\nHaving addressed this issue, I now proceed to deal with the issues set down for the determination of the suit by the Court (differently constituted) at the close of pleadings. These are: \r\n1)  Whether or not Letters of Administration were originally granted to the 1st Defendant.  \r\n2)  Whether or not the Plaintiffs’ father had obstructed any distribution of the estate of the Defendants’ father by the 1st Defendant in his capacity as administrator of his father’s estate.  \r\n3)   Whether or not any head or elder of the families of the Defendants’ late father had sat down and witnessed any distribution of the estate of the Defendants’ late father, Mr. Joseph Kwei Nettey. \r\n4)   Whether or not Plaintiffs have a Vesting Assent or any document to prove a contention that a distribution had long been carried out. \r\n  5)   Whether or not the Defendants were justified or authorized by the ADMINISTRATION OF ESTATES ACT, 1961(ACT 63) in the circumstances of this case in seeking a Court order transferring the administration to the Administrator General and if so  whether or not the Plaintiffs’ charge of fraud is frivolous, untenable and grossly scandalous and absurd in law and fact.  \r\n6)  Whether the 7th Defendant is entitled to accept and act under a valid Court order to distribute the estate concerned.  \r\n7)   Whether or not PNDCL 111 makes provision under Section 21 for any undistributed estate to be dealt with. \r\n8)  Any other issues necessarily arising from the pleadings.  \r\nAs rightly pointed out by both Counsel in their respective addresses, the fact that the 1st  \r\n5  \r\nDefendant applied for and was on the 5th day of July, 1966 granted Letters of Administration is not in contention and is therefore not an issue to be resolved by this Court. \r\nThe remaining issues however, will, for the purposes of this judgement be compressed under five main heads which are: \r\n1) Whether or not the estate of Joseph Kwei Nettey has been distributed pursuant to the grant of Letters of Administration to the 1st Defendant on the 5th day of July, 1966. 2) Whether or not the Plaintiffs’ father had obstructed the distribution of the estate by the  1st Defendant. 3) Whether or not the order of the High Court dated the 7th day of May, 2007 appointing the Administrator General to take over and distribute the estate of the late Joseph Kwei Nettey was obtained by fraud. 4) Whether or not Section 21 of PNDC LAW 111 is applicable to the facts of this suit. 5) Whether or not Plaintiffs have the capacity to institute the present suit.  \r\nThe above issues will now be dealt with starting with the first two together since they are in my opinion, intertwined.  \r\nIt is not in dispute that Letters of Administration were on the 5th day of July, 1966 granted to the 1st Defendant (now deceased). The crucial issue which this Court has to determine however, is whether the 1st Defendant as Administrator proceeded to distribute the estate of Joseph Kwei Nettey to the persons beneficially entitled to same when he was granted Letters of Administration by the High Court in 1966.  On the pleadings, the present dispute appears to centre solely on the House No. A690/2 Djator Street, Mamprobi, Accra being the main property left behind by Joseph Kwei Nettey who died intestate.   \r\nIt is trite learning, that a Plaintiff in a civil suit, carries the burden of proving his case on a balance or preponderance of probabilities. Section 12 (2) of the EVIDENCE ACT, (NRCD 323), defines this as the “degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its nonexistence.”  In the Supreme Court case of AKWASI AND ABABIO [1994-95] GBR 774, the Court held that it was the Party whose pleadings raised an issue essential to the success of the case who assumed the burden of proving such issue. The burden only shifted to the Defendant when the Plaintiff had adduced evidence to establish the claim.  \r\n Applying this legal principle to the present suit, it is my view and I believe quite rightly, that it is only when the Plaintiffs’ have established a prima facie case that the estate of Joseph Kwei  \r\n6  \r\nNettey had indeed been distributed that the burden shifts onto the Defendant to adduce evidence to the contrary. Similarly, the Defendants bear this primary evidentiary burden in respect of their Counterclaim. \r\nNow, there is no doubt that the said house having devolved on all the children of the deceased Joseph Kwei Nettey, who died intestate had assumed the nature and character of family property.  Being family property, the legal position is that, the interest held by the beneficiaries in the said property is joint and indivisible.  See the case of BINEY v BINEY [1965] GLR 619.  \r\nThe question however is whether or not the Property has been distributed amongst the children of Joseph Kwei Nettey for the purposes of occupation.   \r\nIt is the contention of the Plaintiffs, that the estate was distributed decades ago, presumably, not long after the grant of Letters of Administration to the 1st Defendant.  In support of this assertion, the 2nd Plaintiff who testified on behalf of all the other Plaintiffs gave evidence on how the Property in question was shared amongst all the beneficiaries of the estate including their deceased father.  He admitted that he had not been born at the time but grew up to find his father and each of the Defendants occupying specific portions of the Property.  He alleged that his father and the family head informed him that the Property had been distributed.  According to him, the fact that each of the Defendants as well as his father dealt with their respective portions of the said Property as they wished lent credence to what he had been told.  He stated, for instance, that some of the Defendants had let out the rooms given them upon the said distribution and were collecting rents for their exclusive benefit.  In proof of this, Plaintiffs tendered in evidence EXHIBIT D, a copy of a tenancy agreement entered into between the 3rd Defendant and one Benjamin Sakyi – Sarkwah.  By the said agreement, the 3rd Defendant had let her room to the said tenant for a three (3) year period.   \r\nThe fact that the estate has been distributed is however flatly denied by the Defendants. The common thread that run through the testimonies of all the Defendants given in this Court is that the estate has not been distributed because the Plaintiffs’ father refused to allow the 1st Defendant as Administrator to share the Property.  It is however quite apparent from the evidence, that each of the Defendants occupies a specific portion of the Property in dispute over which they have for over four (4) decades exercised exclusive rights of ownership.  Even in the case of the 5th and the 6th Defendants who were said to be of school going age at the time of their father’s death, the evidence before this Court is that their rooms were rented out by the 1st Defendant and Plaintiffs as caretakers and the proceeds used to maintain them till they were old enough to take charge of their respective portions. This fact has not been seriously denied by the Defendants.   What remains unclear to me however, is the exact reason the Defendants give  \r\n7  \r\nfor the failure of the 1st Defendant to distribute the estate.  Is it that the Plaintiffs’ father placed a ban of some sort on the due distribution of the Property by the 1st Defendant or that the 1st Defendant could not distribute the Property because Plaintiffs’ father refused to meet the family head for such distribution?  I am of the opinion that either reason is untenable whichever way one looks at it, for, the 1st Defendant, as Administrator did not need the consent of the Plaintiffs’ father or a meeting with the head of family to enable him distribute the estate of the deceased.  As Administrator, he was the only person vested with the power and authority to gather up the estate and to distribute it in accordance with law.  Assuming, however, without necessarily admitting that the Plaintiffs’ father indeed obstructed the said distribution, what stopped the 1st Defendant from seeking the intervention of the Court from which he obtained the grant? \r\nIt is interesting to note, that the 1st Defendant until his death was a Party to the present suit. The undisputed evidence shows that it was in the year 2007, that is, more than forty (40) years after the said grant of Letters of Administration to him, that 1st Defendant resurfaced in Court seeking an order for the distribution of the estate.  As pointed out in the case of SMITH V CLAY [1767] AMB 645, “a court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time.  Nothing can call forth this court into activity but conscience, reasonable diligence and good faith.”  The reasons put forth by the Defendants for the inordinate delay in seeking the intervention of the Court in my opinion, cannot be valid under any circumstance.  I do not think the Defendants would have succeeded in obtaining the order transferring distribution to the Administrator General if they had disclosed the true state of affairs to the Court presided over by His Lordship Justice Acquaye.  \r\n What I garner from the evidence of Defendants is the suggestion that, even if they occupy specific portions of the Property, the said house cannot be said to have been distributed because it was Plaintiffs’ father and not the 1st Defendant  as Administrator who allocated the said rooms to them  but  the point is, if indeed the said distribution was done by Plaintiffs’ father, then, the only  inference I am forced to draw from the evidence before me is that,  it was the 1st Defendant who relinquished his duties as Administrator to the Plaintiffs’ father. The Defendants having accepted and enjoyed the benefits of the said distribution for decades cannot now turn round and assert otherwise. Put against the case of the Defendants, what I find rather curious is the Defendants’ admission that they all enjoyed a cordial relationship with Plaintiffs’ father during his lifetime. \r\n The 5th Defendant on the 9th of July, 2015 was asked under cross-examination: \r\n“Q: Robert and Joseph were in [sic] good terms.   \r\n8  \r\nA: Robert is a senior brother to Joseph. \r\nQ: The sisters were in [sic] good terms with Joseph. \r\nA: yes.”  \r\nThere is also the undisputed evidence on record that all the Defendants were elders of the Plaintiffs’ father’s church.  By their evidence, the picture painted by the Defendants of the late Joseph Nakai Nettey is that of a stubborn, disrespectful man who, as it were, was a law unto himself.  I do not see how the Defendants could have maintained a cordial relationship with such a character.  I therefore take a jaundiced view of the Defendants’ claims. \r\nEXHIBITS 1 and 2 were also tendered by the Defendants through the 2nd Plaintiff, to buttress their assertion that the Property in question had been monopolized by Plaintiffs’ father who made extensions to the Property without their consent.  Much as I do not think that these belated protests reflect favourably on the honesty and good intentions of the Defendants, it is well settled that extensions or improvements made to family property by a member “does not take away the family stamp on the property” see the case of OSEI YAW V DOMFEH [1965] GLR 418.  In any event, I do not intend to dwell on the issue of the said extension in any detail as I find the said exhibits were merely introduced to show that Plaintiffs’ father had monopolized the estate.  Apart from the fact that the 5th Defendant asserts that no extensions were made to the Property, no issue was joined by the Parties on the said extensions or any rents accruing therefrom.  I will therefore confine myself to issues raised by the pleadings. \r\n It is rather interesting that the Defendants’ claims reared their heads only after the death of the Plaintiffs’ father. The Courts have long held the view that claims against the dead should be viewed with the “ utmost suspicion” and even in the case of OSEI SUBSTITUTED BY GILARD v KORANG [2013-2014] SCGLR 231, where the Supreme Court sought to re-state this rule, the Court was still of the view that a claim against a dead person, who was not in the position to contradict, explain or give evidence on his version of the case ought to be scrutinized meticulously and carefully weighed for its inherent probative value. I am not convinced that the Plaintiffs’ father alone hijacked the entire property, whilst the Defendants who were in the majority looked on helplessly.  I believe that if he wielded such power and influence over the rest of his siblings, he would have been the one to apply for letters of administration and not the 1st Defendant. \r\nThe Defendants have challenged the Plaintiffs to provide positive proof in the form of Vesting Assent to substantiate their claims that the Property has been distributed.  I do not think a failure   \r\n9  \r\nby the Plaintiffs to produce a Vesting Assent necessarily advances the case of the Defendants or disproves the fact that House No. A690/2 was duly shared amongst the children of the late Joseph Kwei Nettey. In the absence of direct evidence of distribution, this Court must look to all the facts and circumstances of the case, the totality of which should provide the necessary proof.  The standard of proof required of a Plaintiff in a civil trial is to lead such evidence as will tilt the balance of probabilities in his favour on a particular issue.  See the case of BISI v TABIRI [1984-86] 2GLR 282.  In my opinion the evidence led by Plaintiffs is strong enough to warrant an inference that House No. A690/2, Djator Street was indeed shared among the children of the late Joseph Kwei Nettey by the 1st Defendant upon the grant of Letters of Administration to him in 1966 and I believe and find that as a fact. \r\nI now turn to the question of whether or not the order of the High Court authorizing the Administrator General to take over and distribute the estate was obtained by fraud. In the case of SA TURQUI BROS v DAHABIEH [1987-88] GLR 486 @ 500, TAYLOR JSC, was of the view that “a charge of fraud in law can be taken to be properly made against a party who knowingly or recklessly whether by conduct or words uses unfair, unlawful or wrongful means to obtain a material advantage to the detriment of the other party.”  \r\nThe particulars of fraud given by the Plaintiffs suggest that the Defendants represented to the Court that the estate of Joseph Kwei Nettey had not been distributed when indeed Letters of Administration had been granted to 1st Defendant and the estate thereafter distributed decades ago. By Section 13 of the EVIDENCE ACT (NRCD 323), a charge of fraud being charge which is criminal in nature will have to be proved beyond reasonable doubt even in civil cases.  The effect of paragraph 8 of the Defendants’ Statement of Defence is not to deny that they informed the Court that the estate had not been distributed but rather to challenge Plaintiffs to provide evidence of such distribution. The totality of the evidence of the Defendants given in this Court also confirms that they sought and obtained the said order appointing the Administrator General because, as they allege, the estate had not been distributed.  It should be apparent from my analysis of the case so far, that I am in no doubt at all that the Defendants willfully misrepresented the true state of affairs to the High Court presided over by his Lordship Justice Aquaye.  I am inclined to believe that the Defendants went back to Court in the year 2007 to seek an order for a redistribution due to a deterioration of relations with Plaintiffs and not because the estate has not been distributed.   The testimony of the 2nd Defendant in particular, fortifies me in this conclusion.  In her evidence-in-chief, 2nd Defendant stated as follows: \r\n“The Plaintiffs should be evicted because they do not show respect in the house.” \r\nShe went further to state the following under cross-examination:  \r\n10  \r\nQ: You told the Court that you want the Plaintiffs out because they do not respect you as uncles and aunties. \r\n     A:  Yes. \r\nQ:  From what you have said it is not because the building has not been distributed to you by Robert. \r\nA:  It does not belong to their father but to our father.  \r\nThe reliefs being sought by Defendants in their Counterclaim are also very revealing in this regard. I find that the Court’s order appointing the Administrator General to distribute the estate of the late Joseph Kwei Nettey was obtained as a result of Defendants’ representation to the Court that the said estate had not been distributed when they knew the same to be false or had no belief in the truth of their assertion.  I find the charge of fraud established against the Defendants and accordingly set aside the order of the High Court dated the 7th day of May, 2007 appointing the Administrator General to take over and distribute the estate of the late Joseph Kwei Nettey, on grounds that the same was obtained by fraud. \r\nHaving found that the estate had been distributed long before the promulgation of the Intestate Succession Law, 1985 (PNDCL 111).  It follows that the said law cannot be said to be applicable to the facts of this case. Granting however, without necessarily admitting, that the estate had not been distributed prior to the coming into force of PNDCL 111 and that the issue regarding the said distribution was indeed pending before the family head, it behoved the Defendants to lead cogent and credible evidence in support of their allegations, in the face of Plaintiffs’ stout denials. 2nd Plaintiff challenged Defendants’ assertion that Mrs. Fifi Ankrah and Mr. Mettle were the joint family heads and tendered EXHIBIT E in support of his claim that Nathaniel Akai Nettey (deceased) was the duly appointed head.  As pointed out in the case of KLAH V PHOENIX INSURANCE, [2012]2 SCGLR, 1139, “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated by his witness. He proves it by producing other evidence of facts and circumstances from what the court can be satisfied that what he avers is true.”  \r\nIn line with the above reasoning, I think that it was imperative for the Defendants in this case, to lead further evidence to substantiate their claim that, the issue pertaining to the distribution of the estate was still pending before their head of family at the time PNDCL 111(supra) came into force.   \r\n11  \r\nSection 21 (1) of PNDCL 111 which is being invoked by the Defendants in this case states as follows: \r\nNotwithstanding the provisions of section 1 of this Law, or any other enactment the provisions of this Law shall be applicable in the settlement of any claim or adjudication pending before the Court or a chief or Head of family under customary law at the commencement of this Law in respect of the administration or distribution of the estate of an intestate who died before such commencement...” \r\nDefendants, I find, led no evidence regarding when in the past forty (40) years the matter went before a family head and for how long the same had been pending.  They even appeared confused as to whether or not the Nettey family had a family head and who indeed that person was. \r\nOn the 2nd day of March, 2015, 2nd Defendant under cross -examination responded: \r\n“Q:  Who is the head of family? \r\nA:  They are all dead.  \r\nQ:  So you don’t have a family head now. \r\nA:  As we speak we have no head of family but cousins who represent the family.” \r\nThe 5th Defendant on the other hand, had this to say on the 9th day of July, 2015 under cross- examination. \r\nQ: Where is Mrs. Ankrah. \r\nA: She is dead but I can’t remember the date. \r\nQ: Was she succeeded by someone?  \r\nA: He is called brother Akai. \r\nQ: Is brother Akai alive?  \r\nA: Yes he is alive. \r\nQ: Who is now the head of family? \r\nA: Brother Akai. \r\nQ: When was your latest family head appointed?  \r\n12  \r\nA:  Before Mrs. Ankrah died, at a family gathering where he was appointed before she died. \r\nThe contradictions in the testimonies of the 2nd and the 5th defendant are quite obvious.  At any rate, if the said Brother Akai succeeded Mrs. Ankrah as head of family, as is being alleged by the 5th Defendant, then I am in no doubt that he knew or ought to have known whether or not there was a pending issue regarding the distribution of the estate of the late Joseph Kwei Nettey. He was however, never called to corroborate the Defendants’ assertions. What I see is a desperate attempt on the part of the Defendants to bring this case under the transitional provisions contained in Section 21(1) of PNDC LAW 111 and I reject their claims as there is no reliable evidence before this Court that there was any “claim or adjudication” pending before any family head at the time the said law came into force. \r\nIt is to the final and in my opinion, the most fundamental issue in this suit that I now turn.  I say so because it is trite learning that want of capacity is fatal to an action and a Party who lacks capacity cannot succeed even if he has a cast iron case against his opponent.  The authorities on this legal principle are so numerous that I see no need to cite authorities in support of this position. It has been argued by Counsel for Plaintiffs in his address that the issue of the Plaintiffs’ capacity is not in contention as it was not raised by the Defendants at all.  I however hold a contrary view, given the facts and circumstances of this case.  On the face of the pleadings, it is clear that there is a serious question relating to the Plaintiffs’ capacity to institute the present action and on the authority of YOKWAH v DUAH [1992 – 1993] GBR 278, it is imperative that the same be addressed by this Court. It is the case of the Plaintiffs, that they bring the present action as beneficiaries of the estate of the late Joseph Nakai Nettey. In paragraph 15 of their Statement of Claim, the Plaintiffs aver that they have the capacity to bring the instant action against the Defendants.  Though the Defendants in their pleadings raised no issue as to the capacity of the Plaintiffs to bring the present action, they have challenged the Plaintiffs to produce their Vesting Assents in proof of their assertion that the Property had been distributed.  What I glean from the evidence –in- chief of 2nd Plaintiff is an admission that no Vesting Assents were executed in favour of the beneficiaries by the 1st Defendant as Administrator. This raises the vexed issue as to whether the Plaintiffs are clothed with the requisite capacity to bring this action. This issue was ably addressed in the case of OKYERE (DECD) (SUBSTITUTED BY) PEPRAH v APENTENG &ADOMAA [2012] 1SCGLR 65, where the Supreme Court in explaining the effect of Section 96 of the Administration of Estate Act, 1961 held that in the absence of a formal Vesting Assent executed in favour of a beneficiary or devisee, that beneficiary or devisee had no capacity to sue or be sued in relation to any portion of the deceased’s estate.  On the basis of the above authority, one should ordinarily conclude that the Plaintiffs’ claim and possibly, the Defendants counterclaim must fail.  For, in the \r\n13  \r\n absence of evidence of a formal Vesting Assent having been executed in favour of the Defendants and Plaintiffs’ father, the Plaintiffs cannot maintain an action in their capacity as beneficiaries of a Property to which their late father had no title.  In resolving this issue however, I think it is necessary to consider the nature and character of the Property in dispute.  On the evidence, it is not in dispute that H/No. A690/ 2, Mamprobi was the self-acquired Property of the late Joseph Kwei Nettey which devolved on all his children upon his death intestate. This, in the words of Akuffo Addo JSC in the case of LARTEY V MENSAH [1963] 2 GLR 92 @ 95.  “…operates to constitute the children into “a family” for the purpose of holding and enjoying the said property”.  Although the Property, the subject matter of this suit was shared among the children of the late Joseph Kwei Nettey, the said distribution, in my considered opinion, was only for the purposes of occupation and did not change the fact that the Property remained one unit in which both the Defendants and Plaintiffs’ deceased father held a joint interest.  On the basis of the foregoing, the crucial question is whether there is the legal requirement for the execution of a Vesting Assent in favour of each beneficiary to family property.  Section 96 of the Administration of Estates Act which is the relevant provision states as follows: \r\n(1) A Personal representative may assent to the vesting in the form set out in the Third Schedule in the person who by devise , bequest , devolution, appropriation or otherwise, is entitled to the vesting beneficially or as a trustee or personal representative, of any estate or interest in immovable property. (2) To which the testator or intestate was entitled (3) Over which the testator exercised a general power of appointment by will, or which devolved on a personal representative.  Of particular significance, is Subsection 2 of the said section which states: “The assent shall operate to vest in that person the estate or interest to which the assent relates and unless a contrary intention appears, the assent shall relate back to the death of the deceased.” \r\nNow, the concept of the indivisibility of family property is well settled at customary law. The general position is that though each individual member of the family holds a distinct interest in family property the said interest cannot be disposed of by that member except in exceptional cases and even then, not without the knowledge and consent of other principal members of the family, see the case of KOOMA ALIAS AIKINS VRS EKUA ALIAS HAYFRON AND OTHERS [1997 – 1998]. In the case of BINEY v BINEY [1965] (supra), ARCHER J emphasized this principle when he stated “All members of the family have a joint interest in these family properties,... an interest that is indivisible …”    \r\nMy understanding of the Section 96 above particularly Subsection 2, is that the effect of   \r\n14  \r\nexecuting a Vesting Assent in favour of a beneficiary would be to vest title to the said estate or interest in that beneficiary.  Following such vesting, the said beneficiary, in law becomes the owner of the property and is at liberty to transfer title to a 3rd Party or to deal with the property in whatever way he deems fit.  I think the situation is different in the case of family property, which is communally owned.  Whatever interest each beneficiary owns in the said property does not make them the owner of same. Due to the concept of indivisibility of family property and the principles that govern the use and ownership of same, I am unable to appreciate the contention of both Parties that, Vesting Assents needed to be executed in favour of each beneficiary regarding their respective interests or the portions they occupy in the said Property.  At best, any Vesting Assent executed in favour of the beneficiaries could only vest the Property in them jointly as children of Joseph Kwei Nettey and not their individual capacities.  It is quite clear, that there is no evidence of a Vesting Assent having been executed in favour of the Defendants before this Court but as stated earlier on in this judgement, this does not provide conclusive proof that the estate was not distributed. To me the task of the Court at this stage, is to determine whether the Plaintiffs have the requisite capacity to bring the present action in the absence of proof of a Vesting Assent having been duly executed in favour of the beneficiaries of the estate of Joseph Kwei Nettey.   \r\nThere is however, one issue of considerable importance to resolving this question and that is whether or not the Plaintiffs as grandchildren of Joseph Kwei Nettey are statutorily entitled to inherit their father’s interest in the property.  This is because if the Plaintiffs are not so entitled, then, they cannot claim to be beneficiaries of the estate.   \r\nNow, Section 14(3) of the Conveyancing Decree states as follows: \r\n“(3) A conveyance of an interest in land to two or more persons, except a conveyance in trust, shall create a tenancy in common and not a joint tenancy unless it is expressed in such conveyance that the transferees shall take jointly as joint tenants, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create a joint tenancy.”  \r\nThis means that a tenancy in common will be presumed in the absence of clear evidence of an intention to create a joint tenancy. On the evidence, I do not think that there is any doubt that the Defendants and Plaintiffs’ father took the Property in question as tenants in common and not as joint tenants. THE BLACK’S LAW DICTIONARY [8TH EDITION] defines a tenancy in common as; “a tenancy by two or more persons in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship”.  Furthermore, in the case of OWUSU V AGYENTOA [1994-95] 1GLR 45, the Court per  \r\n15  \r\nBrobbey JA as he then was, in discussing the effect of a clause in the will of the Testatrix in that case, had occasion to explain a tenancy in common as follows: “… if the clause were to have been construed to have created a tenancy in common, each devisee will have held a separate or distinct interest or share which would have literally attached to him or her and would devolve to his or her personal representatives.”  \r\nThis would mean that the share of Joseph Nakai Nettey, who died intestate in 2005, should go to those entitled to inherit him under PNDCL 111. Under the said law, in order of priority, it is the Plaintiffs as his children and any surviving spouse who should step into his shoes with respect to his interest in the said Property.  Consequently, the Plaintiffs, in my opinion, qualify in law, as beneficiaries to the Property in dispute and I so hold. \r\nThe final question therefore, is whether the Plaintiffs in the absence of a Vesting Assent are clothed with capacity to bring the instant action. \r\nIn determining this issue, I must say that, this Court is very alive to the fact that the failure by the Plaintiffs to produce a Vesting Assent in this suit does not necessarily mean that one was never executed in favour of the beneficiaries.  I say this because, in the absence of Plaintiffs’ father, it is the Defendants, particularly the 1st Defendant as beneficiary and Administrator who would have been in the best position to know whether or not a Vesting Assent had been executed in favour of the beneficiaries of the estate of Joseph Kwei Nettey.  However, given the facts and circumstances of this suit, one could not have reasonably expected the Defendants to produce a document which would obviously have been damaging to their case even if the same existed.  Be that as it may, the proper approach is for this Court to apply its mind not only to the law and the facts of this case but also to its duty to do justice. \r\nI find that, there is no dispute that the late Joseph Nakai Nettey (deceased) was a sibling of full blood of the Defendants.  The fact that the H/No A690/2 Djator Street, Mamprobi devolved on all the children of Joseph Kwei Nettey upon his death intestate is also not disputed. The evidence before this Court shows that the Plaintiffs from birth, lived with their father in his portion of the Property until his death in 2005 and still live there.  The 2nd Plaintiff in his testimony on the 8th day of December, 2014 gave his age as 43.  This means that the Plaintiffs have been in possession of their share of the property for not less than 45 years. The facts that have provoked the present suit are clear from the pleadings and the evidence led.  Plaintiffs say that the Defendants seek a redistribution of the Property in a bid to deprive them of their share.  I have already indicated that I am not persuaded that the Defendants had noble intentions for seeking the said order for distribution but whatever the case may be, it is obvious that the   \r\n16  \r\nDefendants want the Plaintiffs evicted from the Property in dispute. This fact is amply demonstrated by the reliefs being sought by the Defendants in their counterclaim. \r\nBy their Counterclaim Defendants seek the following reliefs: \r\nA. A declaration that Plaintiffs have no beneficiary interest in H/No A690/2, Mamprobi, Accra B. An order evicting Plaintiffs from the premises of N/No A690/2 Mamprobi, Accra C. Perpetual injunction directed at the Plaintiffs, their assigns and successors in title from interfering in any way with H/No A690/2, Mamprobi/Accra D. Any other or further order(s) as this Court may deem fit.  \r\n On the authority of OKYERE (DECD) v APENTENG & ADOMAA (supra), it is clear, that the Plaintiffs, having failed to prove that a Vesting Assent was duly executed in favour of the beneficiaries of the Property should ordinarily be held to lack the requisite capacity to bring this suit but in my considered opinion, each case should turn on its own facts. The uncontroverted evidence is that, the Plaintiffs together with their late father have for decades been persons in possession and exercised all rights of ownership over their share of the Property during their father’s lifetime.  The matters leading to the present suit only came up after the death of Plaintiffs’ father.  I do not disregard the fact that it is on the basis of the clear provisions of Section 96 of the Administration of Estate Act, Act 63 that the Supreme Court has held that beneficiaries cannot sue or be sued in respect of an estate unless a Vesting Assent has been duly executed in their favour.   In my respectful opinion however, a strict adherence to the provisions of the said section could lead to grave injustice, for that will mean that the Plaintiffs in this case will be left with no remedy in the face of imminent danger of their share of the Property being lost. To repeat the pertinent question posed by Brobbey JSC in the case of OKYERE v APPENTENG [supra], “If the law is that a beneficiary or devisee has no title to sue or be sued until the grant to him of a vesting assent, what does he do in any of the situations postulated above? At equity, such a person should be able to mount an action to protect the estate or to save it from being dissipated or wasted.” (Emphasis mine).   This was indeed the position taken by the Court of appeal in the case of APPAU AND OCANSEY [1992-93] 2 GBR 850. See HOLDING (4).  This Court, not only being a Court of Law but a Court of Equity, will not shut its doors to the Plaintiffs when doing so will clearly lead to an unjust result.  Consequently, I hold that, the Plaintiffs as beneficiaries of the estate of their late father have the capacity to institute the present suit to protect their interest in the Property. \r\nBefore concluding this judgement, I think there is one issue that cannot be overlooked by this  \r\n17  \r\nCourt.  One of the complaints of the Defendants is that the Plaintiffs have no respect for them. Unfortunately, no evidence was led by the Defendants in proof of the alleged acts of disrespect exhibited by the Plaintiffs.  This, notwithstanding, the general position under customary law is that the right to occupy family property is subject to good behavior.   I will therefore admonish the Plaintiffs to do their very best to dwell in peace and harmony with their “fathers” and “mothers” as this is not the self-acquired property of their late father but family property. \r\nIn the light of the foregoing, I grant reliefs i), ii) and iii) endorsed on the Plaintiffs’ Writ of Summons and dismiss the Defendants’ Counterclaim.  Plaintiffs’ relief (iv) seeks a perpetual injunction against the Administrator General.  As already observed, the record of this Court does not show that the Administrator General was properly made a Party to these proceedings. Accordingly, the said relief being sought against him cannot stand. \r\nThere will be no order as to costs.  \r\n(SGD) MRS. AKUA SARPOMAA AMOAH                       JUSTICE OF THE HIGH COURT   \r\naey/…           ', 'links/cases/FAUSTINA NETTEY AND ORS VRS ROBERT NETTEY AND 19 ORS.pdf', 'Yes', '', '2016', 'high', '', 'AKUA SARPOMAA AMOAH (MRS), J ', 'Civil', '', 'BFA/84/07', '', '', 'High Court, Accra', '2016-10-31', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(599, 'FIRST ATLANTIC BANK LIMITED\r\nVERSUS  \r\nVIVIAN ATAKORA (a.k.a.) MRS. VIVIAN MARFO) ', 'JUDGEMENT   \r\nThe facts that have spawned the present litigation are fairly straightforward.  The Defendant, a customer of Plaintiff bank applied for and was granted an overdraft facility in the sum of Twenty Thousand Ghana Cedis (GH¢20, 000.00) to augment her working capital. Plaintiff avers that the overdraft facility was to attract an agreed interest rate of 23% per annum with a penal rate of 3.5% over and above the agreed rate in the event of the Defendant’s account being overdrawn or payments becoming overdue. The facility granted was secured with a mortgage over Defendant’s property situate at Ablekuma, Accra.  It is the case of the Plaintiff that Defendant, at  the expiration of the facility, had fallen into arrears of  payment and that her indebtedness to Plaintiff stood at One Hundred and Ninety-Three Thousand, Six Hundred and Sixty-Three Ghana Cedis, Twelve Pesewas (GH¢193,663.12) as at 31st October, 2014.  The Defendant, however had in spite of repeated demands on her to make good her indebtedness failed or refused to do so.  It is for this reason that the Plaintiff on \r\n2  \r\nthe 19th of February, 2015 issued the present writ, claiming the followings against Defendant:  \r\na) An order for payment of the sum of One hundred and Ninety Three thousand, Six Hundred and Sixty Three Ghana Cedis, Twelve Pesewas (193, 663.12) being the balance due and owing on the facilities granted Plaintiff.  \r\nb). Interest on the said sum of One Hundred and Ninety Three Thousand and Sixty three Thousand Cedis (193,663.12) at the agreed interest rate of 26.5% per annum from 16th September, 2014 to date of final payment.  \r\nc.) Further or in the alternative an order for judicial sale of Defendant’s property described in the Statement of Claim and used as collateral security for the said facility.  \r\nd) Costs.  \r\nThe Defendant disputes the Plaintiff’s claim.  Her defence is basically that the Plaintiff neither explained the terms of the facility to her nor advised her to engage legal Counsel even though she is illiterate.  She admitted taking an overdraft facility of Twenty Thousand Ghana Cedis (GH¢20, 000.00) but explained that the  facility was a “supplier credit” by which Plaintiff  made payments directly to suppliers  and debited her  account  as and when such payments were made and after she had taken delivery of the goods in question.  She denied Plaintiff’s assertion that the overdraft had fallen into arrears and contended that the balance attributed to her was wrong and overstated.  \r\nThe following issues were set down for determination at the trial.  \r\na. Whether or not Defendant as at the 31st day of October, 2014 was indebted to the Plaintiff in the sum of One Hundred and Ninety-Three Thousand, Six Hundred and Sixty-Three Ghana Cedis, Twelve Pesewas (GH¢193,663.12).  \r\nb. Whether or not debits to the Defendant’s account were authorized by the Defendant.  \r\n3  \r\nc. Whether or not the facility termed by the Plaintiff as an overdraft facility was in real terms a supplier’s credit.  \r\nd. Whether or not Defendant is literate.  \r\nAt the trial, Plaintiff bank was represented by its head of recoveries, BEDFORD AKUFFO DUAH. His evidence was essentially in line with his pleadings. He tendered in evidence the following exhibits:  \r\n EXHIBIT A – THE FACILITY LETTER  \r\nEXHIBIT B AND B1 - DEFENDANT’S STATEMENT OF ACCOUNT  \r\nEXHIBIT C - INDENTURE OF DEFENDANT’S PROPERTY SITUATE AT ABLEKUMA, ACCRA PROVIDED AS COLLATERAL SECURITY FOR THE FACILITY  \r\nEXHIBITS D AND D1 - COPIES OF CHEQUES DATED THE 11TH DAY OF SEPTEMBER, 2006 AND 10 SEPTEMBER, 2006 RESPECTIVELY.  \r\nThe witness under cross examination explained that the facility being an overdraft had no regular structured payment apart from the requirement that it had to be retired by on the 31st day of August 2007.  He denied that EXHIBITS D and D1 had been tampered with by officials of the Plaintiff bank and insisted that both cheques were issued by the Defendant. He described the amendments made to EXHIBIT D as “corrections” and not alterations.  He stated further that even though it was the generally accepted practice for a customer to countersign amendments or changes effected to a cheque issued by that customer, the customer could based on an  understanding reached with the Branch Manager of the bank, authorize the said manager to counter sign on her behalf. He alleged that EXHIBIT D was countersigned by the Branch Manager based on such an agreement reached between the Defendant and the said manager.  He vehemently denied that Defendant’s claim that she is illiterate and was emphatic that EXHIBITS D and D1 were duly authorized by Defendant. Contrary to the Defendant’s assertions, he maintained that the Plaintiff bank, was only under a duty to carry out the instructions of the customer, in this case, the Defendant, without having an obligation to ascertain the exact \r\n4  \r\npurpose for which those payments were being made. Consequently, Plaintiff was in no position to know whether or not the goods for which payment was effected had been supplied to the Defendant or not.  \r\nThe Defendant, who testified that she had been a customer of Plaintiff bank for over Nine (9) years, admitted in her testimony that she indeed applied for and was granted an overdraft facility of Twenty Thousand Ghana Cedis (GH¢20, 000.00) as evidenced by EXHIBIT A.  According to her, the facility was subsequently reviewed upwards to Thirty Thousand Ghana Cedis (GH¢30,000.00). The fact of the upward review is  neither pleaded nor borne out by the evidence on record. In line with her pleadings she contended that, the Plaintiff bank only permitted utilization of the facility for the payment of her suppliers who the bank insisted, were supposed to be account holders of Plaintiff bank. By the course of dealing, she issued cheques directly to her suppliers upon taking delivery of goods, whereupon, the suppliers in turn presented the cheques at the Plaintiff bank for payment.  According to her, the facility was to be liquidated by deposits she made into her current account as and when she made sales.  She alleged that she had made such numerous deposits towards defraying the overdraft that, she was, until she received the demand notice from the Plaintiff, under the impression that she had fully paid off the facility.  Further investigations conducted with the assistance of her sons revealed that she had been debited with two transactions that she did not authorize. Under cross examination, Defendant admitted that she had no documentary proof that she was under any compulsion from the Plaintiff to only buy from certain designated suppliers. She however maintained that the payments allegedly made on her behalf by Plaintiff to the suppliers by name Lizeen and Joy Trace were without her knowledge or authorization as she had not been supplied with any goods by them.  \r\nIn the light of the matters in dispute I propose to deal first with issue (d) which is whether or not Defendant is literate. I consider the said issue fundamental to the resolution of the present suit in view of the established legal principle that a Party seeking to bind an illiterate to a document is under an obligation to show that the illiterate understood the meaning and effect of the document he or she is alleged to have signed.  The Defendant pleads in paragraph 3 of her Statement of Defence that she is illiterate. She laments that the terms of the facility were neither properly \r\n5  \r\nexplained to her by Plaintiff nor was she advised to seek legal Counsel before executing same. It is not clear to me from the pleadings, what detriment Defendant claims to have suffered as a result of this alleged failure on the part of the Plaintiff bank but it remains to be pointed out that apart from the bare assertion of Defendant that she is illiterate, there is no evidence before me to substantiate this allegation.  By the Defendant’s own evidence, her relationship with the bank preceded her application for the overdraft facility in question. There is no evidence before this Court, that the Defendant in her previous dealings with the Plaintiff bank had ever required the assistance of the Plaintiff or any other person in order to appreciate the meaning or effect of any document. Indeed, under cross-examination she stated that she went to the bank alone whenever she had to effect a transaction at the bank.  \r\nOne fact that Defendant does not deny is that she duly signed EXHIBIT A herself. She does not allege fraud or misrepresentation against the Plaintiff bank. Neither does she allege duress or undue influence.  Even though she avers she was never given a copy of the terms and conditions of the facility, she demonstrates her knowledge and understanding of her obligations under the facility in paragraphs 5, 6 and 7 of her witness statement. Her understanding of the nature of the facility is further evidenced by the voluntary handing over of the title documents covering her property at Ablekuma to the Plaintiff bank. Any claim therefore, by the Defendant that she did not understand the terms of the facility will therefore be of no avail to her since her conduct proves the contrary. In the case OF REIDORF  alias SAKER V REIDORF [1974] 2GLR 38, the Court held that the wife, an illiterate could not rely on her illiteracy to repudiate the documents she had voluntarily executed when there was proof that she was fully aware that the documents bore the joint names of herself and her husband.  See also the case of SWISS AFRICAN TRADING CO. V ARYEE (1961) GLR 185. On the basis of the foregoing, I reject the Defendant’s claims that she did not understand the terms of the facility due to her alleged illiteracy and find that she fully appreciated the meaning and effect of EXHIBIT A before duly executing same.  She is therefore bound by its terms.  \r\nI now proceed to deal with issue (c) which is whether the facility termed an overdraft facility by Plaintiff is a supplier’s credit.  \r\n6  \r\n In my candid opinion, put against the facts of this case I am unable to appreciate how this issue aids in the resolution of the issues at hand.  Put simply, my understanding of a supplier’s credit is where goods are supplied to a purchaser by a seller upon an agreement that payment for the said goods or services will be made at a future date. The fact that such an agreement can only exist between a purchaser and a seller is quite clear and needs no further elaboration. Under such a facility the bank only steps in, based on a loan agreement entered into with the purchaser, to effect payment to the seller on the purchaser’s behalf.  \r\nThe Defendant contends that the agreement reached with the Plaintiff bank was a supplier’s credit agreement, in that, Defendant was by the terms of the agreement required to apply proceeds of the facility solely towards the purchase of goods from specified suppliers, failing which, the Plaintiff bank will refuse to pay for the said purchases. I find that this allegation is not supported by any evidence on record. EXHIBIT A, the facility letter clearly spells out the purpose for which the facility was granted i.e. to support working capital. A careful examination of EXHIBIT A does not disclose that the facility set down the purchase of goods from specified suppliers as a condition precedent to the grant of the facility.  In any event, it is trite learning that extrinsic evidence will not be admitted to vary or contradict the terms of a written document.  See Sections 25 and 177 of the Evidence Act, Act 323.  I therefore do not think Defendant has succeeded in establishing that she was under the facility required to buy only from suppliers designated by the Plaintiff.  However, as stated earlier, I do not see the relevance of the said issue because I do not think that it in any way affects the obligations of the Parties under EXHIBIT A.  In the case of SARFO V GHANA COMMERCIAL BANK [1992] 2 GLR 8, LUTTERODT J (as she then was) referred with approval to the case of CUTHBET V ROBARTS, LUBBOCK &CO [1909] 2 CH 226, where Cozens–Hardy held that if a customer draws a cheque in excess of an amount standing to the credit of his current account, that amounted to an overdraft which is really a request for a loan. Quite clearly as stated in the case of BARCLAYS BANK V SAKARI, [1996-97] SCGLR 639, under a loan agreement. “The obligation of the bank was to advance the money...and that of the Defendant was to repay the loan together with interest if any”. The purpose for which the loan, in this case the overdraft facility, was taken, has absolutely no bearing on the obligations of the Parties under the facility, in my opinion.  \r\n7   \r\nI now proceed to determine issues (a) and (b) which I intend to deal with together since the said issues in my view are intertwined. The said issues are (a) whether the Defendant as at the 31st day October, 2014 was indebted to the Plaintiff in the sum of One Hundred and Ninety-Three Thousand, Six Hundred and Sixty-Three Ghana Cedis, Twelve Pesewas (GH¢193,663.12) and (b) whether or not the debits to the Defendant’s account were transactions authorized by the Defendant.  \r\nThe Plaintiff’s witness testified that the Defendant disputes two transactions on her account. He however insists that her account statement clearly shows that she authorized the said payments.  The two disputed cheques were tendered as EXHIBIT D AND D1.   \r\nNow, I will state without mincing words that, I find the Defendant’s objection to being debited with the amount on EXHIBIT D completely valid and unanswerable. It is trite learning that in the business of banking, the signature of a drawer is an essential element of a cheque.  Under 63 of the Bills of Exchange Act, Act 55, where a bill of exchange is altered without the assent of the Party liable on the bill, the bill is avoided except against the Party who has personally made, authorized or assented to the alteration. It is quite patent on the face of EXHIBIT D that the original payee VICTORY LINE ENT has been cancelled out and substituted with another payee by name JOY TRACE. Curiously, and contrary to established banking practice, the said cancellation has been countersigned by someone other than the drawer of the cheque, the Defendant in this case.   \r\nUnder cross-examination, Plaintiffs representative stated that the said “correction” had been effected by the Branch Manager of Plaintiff.  Plaintiff’s witness’ relentless efforts at avoiding the use of the word “alteration” did not go unnoticed by this Court. The Black’s Law Dictionary [8TH edition] defines an alteration as follows: “An act done to an instrument, after its execution, whereby its meaning or language is changed especially the changing of the term of a negotiable instrument without the consent of all the Parties to it…. Material alterations void an instrument but immaterial ones do not…An alteration is material if it (1) changes the….liabilities or duties of any Party (as by adding or removing the name of a maker, drawer, \r\n8  \r\nendorser, payee or cosurety). Against this definition, I am in no doubt at all that the change effected to EXHBIT D was nothing short of an alteration.   \r\nIt is also necessary to refer to the exchange that ensued between Counsel for the Defendant and the Plaintiff’s representative during cross-examination The following responses were given by the Plaintiff’s representative under cross- examination: Q. So the Branch Manager did the alteration on EXHIBIT D. A. My Lord, per the evidence on EXHIBIT D I will not call it an alteration. Q. So as a banker, what will you call it? A. My Lord per what I see it can be called a correction.  Because there is a signature signed beside the cancelled name.     \r\nQ. How many years have you worked as a banker? A. My Lord, 11years. Q. So with 11 years’ experience as a banker tell this Court what happens when a customer issues a cheque and there is a need to amend or change something on it. What is the procedure?  \r\nA. I will put it from two angles.  One is the customer would bring a new cheque to replace the existing one or based on the relationship between the Branch Manager and the customer, a telephone conversation can be done and the result would come forth as it seemed in EXHIBIT D.        \r\nQ. So the customer is never made to countersign and amend.      \r\nA. My Lord, it also depends on the relationship between the Branch Manager and the customer but technically there should be a countersign.  \r\nQ: I am putting it to you that that is the standard procedure that there should be a countersign by the customer.  \r\nA. My Lord, I don’t admit that totally.  \r\nQ. And that, in the case of EXHIBIT D, the Defendant did not do such countersign.  \r\nA. My Lord, yes, on the face of EXHIBIT D, the Defendant did not countersign.        \r\nQ. So that could not have been her authorization.  \r\nA. My Lord, it could have been her authorization per telephone conversation.  \r\nQ. I further put it to you that there was no such telephone conversation between the Defendant and your manager.  \r\nA. My Lord, I cannot confirm that, since the Branch Manager is not at post.  \r\n9  \r\nQ. But whatever telephone conversation you had in your bank are recorded.  \r\nA. My Lord, once there is a telephone conversation and agreement is reached, the manager goes ahead and does what the customer has said.  \r\nQ. You have not answered my question.  \r\nA. My Lord, what I am trying to say is those conversations are not fully recorded on the cheque or any paper as you are saying.  \r\nQ. So you mean you cannot trace any evidence of such conversation.  \r\nA. My Lord, yes, we cannot trace it.                  \r\nThe pith of the Plaintiff’s case as regards EXHIBIT D, is that the alteration to the said exhibit was effected on the instruction of Defendant. This claim has been stoutly denied by the Defendant. The general principle of the law is that he who asserts must prove. In the light of Defendant’s denial, the onus fell on the Plaintiff to prove that the alteration effected to EXHIBIT D was done upon the authorization of the Defendant.   \r\nIn the case of OKUDZETO ABLAKWA & ANOR [2012] 2 SCGLR 845, the Court held at PAGE 867 as follows: “…If a Party goes to Court, to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted.  If he fails to do that, the ruling on that allegation will go against him.  Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish”.  \r\nSee also SECTIONS 14 AND 17 of the Evidence Act, Act 323. Unfortunately, Plaintiff’s representative dismally failed to lead any evidence in proof of his allegation that the Defendant authorized the alteration and consequent payment of the amount specified in EXHIBIT D to Joy Trace.  The Defendant therefore cannot be held liable on EXHIBIT D and I so hold.   \r\nThe next issue that faces this Court relates to EXHIBIT D1. The Defendant in similar vein, denies ever issuing EXHIBIT D1.  The grounds upon which she challenges the validity of EXHIBIT D1 is firstly, that she never authorized the said payment as she  had no  business transaction with Lizeen, the payee on that cheque.  Secondly she contends that the said Lizeen never received the said amount for which she was debited.  On the evidence, the Defendant appears to be levelling a charge of forgery \r\n10  \r\nagainst the Plaintiff bank.  To buttress her stance, she relies on the simplicity of her signature which she claims renders it susceptible to forgery.  It is noted that, apart from EXHIBIT D1, Defendant does not dispute the authenticity of her signatures on any of the other exhibits tendered in this Court.  Fortified by authorities such as FENUKU V JOHN TEYE [2001-2002] SCGLR 985 and STATE V LAWMAN [1961] GLR (Pt II) 689, I have taken the time to carefully examine and compare Defendant’s signature in EXHIBIT D1 with her signatures in EXHIBITS D and A, and I must say that I find a striking similarity between the disputed and the accepted signatures. Given this fact, I am unable to see how even the Plaintiff bank could have detected that Defendant’s signature had been forged, assuming without admitting that her allegations are true.  In accordance with sound banking practice, a cheque that has been duly signed by the drawer is sufficient authority to the drawee bank to pay  the amount specified thereon to the payee of the cheque and I am satisfied that this is exactly what the Plaintiff bank did in this case.  The standard of care expected of the Plaintiff is one of an ordinary prudent banker and not that of a detective. It follows therefore that Defendant will be presumed to have duly issued EXHIBIT D1 and will be held liable on same unless she leads credible and cogent evidence in rebuttal of the said presumption. SEE Section 20 Of Evidence Act, NRCD 323.   \r\nDuring cross examination, Defendant was asked: Q:  You have just said you were granted an overdraft facility. A:  That is correct. Q: And it is also correct that every payment on your account was by a cheque signed by you. A:  That is correct. Q:  Where do you usually sign these cheques. A:  I work with five people so when it is time to make payments I take the cheque to the bank and sign them  Q:  So I am correct that the cheque book is always in your possession. A:  That is correct.  \r\nDuring his cross-examination of the Plaintiff’s representative, Counsel for Defendant alluded to the fact that EXHIBIT D1 was the “handiwork” of the officials of Plaintiff bank.  Put another way, Counsel sought to suggest that the said Exhibit had been \r\n11  \r\nforged by the Branch Manager of the Plaintiff bank.  It is trite learning that under Section 13 Of Evidence Act, NRCD 323 any allegation of forgery or fraud will have to be proved beyond reasonable doubt. SEE THE CASE OF SUSU BAMFO V SINTIM [2012] 1 SCGLR 136.  Having admitted that the cheque book was always in her possession, the Defendant appears to have lost sight of the burden thrust on her to produce evidence in explanation of how a leaflet from the said cheque book which was always under her care and custody ended up in the hands of Plaintiff’s Branch Manager or anyone else for that matter. This, she failed to do. I am also not persuaded by Counsel for Defendant’s contention that the writing of the name Kofi without more, instead of what he termed a “signature” amounted to an irregularity and evidence of fraud on the part of Plaintiff bank’s officials. It is worth pointing out that the Bills of Exchange Act, ACT 55 does not define the term “signature”.  The Black’s Law Dictionary [8th edition] however defines a signature as “a person’s name or mark written by that person or at that person’s direction”.  It further defines a signature in Commercial Law as “any name mark or writing, used with the intention of authenticating a document.”  In the light of this definition, a signature does not necessarily mean writing a person’s full name, first name or surname. In my thinking, even the initials of a person alone may be sufficient.  I therefore cannot share the view of Counsel that the absence of a “signature” on the pay-slip in EXHIBIT D1 throws doubt on the authenticity or validity of EXHIBIT D1.  I should also add for good measure, that the fact that Lizeen is alleged never to have received payment on EXHIBIT D1 does not in any way substantiate Defendants claim that she did not issue EXHIBIT D1.  In any event, Lizeen was never brought to confirm or deny Defendant’s assertion.  EXHIBIT B1 confirms that payment was duly effected on 10/8/2006 to LIZEEN in line with EXHIBIT D1.  I accordingly, make a finding of fact that Defendant issued EXHIBIT D1 and is therefore liable on it.  \r\nThis brings me to the final issue which is whether the Plaintiff was indebted to the Defendant in the sum of One hundred and Ninety Three thousand, Six Hundred and Sixty Three Ghana Cedis, Twelve Pesewas (GH 193,663.12) as at 31st October, 2014. Before proceeding to determine the said issue, I will like to comment on how the evidence on record demonstrates a lack of candour on the part of the Defendant. In paragraph 7 of the Defendants witness statement filed on the 29th February 2016, she testifies that the service of the demand notice of the amount outstanding on her \r\n12  \r\naccount left her confused since she was under the impression that she had fully defrayed the debt owed on the facility.  On the 9th of May 2016, however, she stated under cross-examination as follows:  \r\n“Initially I thought I owed the bank but when I went for the statement I realized I do not owe them because Thirty Thousand Ghana Cedis (GH¢30, 000.00) had been made to LIZEEN and Thirty Thousand Ghana Cedis (GH¢30, 000.00) to JOYCELYN which made me realize I do not owe the bank.”  \r\nThe Defendant clearly appears to be speaking from both sides of her mouth. In one breath she claims that she believed she had fully paid off the facility due to the “numerous sales deposits” she had made into her account.  In the same breath, she alleges that she thought she owed until she discovered that she had been wrongly debited with payments she did not authorize.  I do not believe the Defendant when she says that the bank took no steps to recover the debt from her. But even if they did not, did it not behove her, as an honest and diligent customer who had voluntarily applied for and obtained the facility, to take steps to pay off the debt she owed the Plaintiff?  The fact that Defendant did not even take steps to recover her title documents deposited with Plaintiff as collateral leads me to infer that she knew and understood that she still had not discharged her obligations under EXHIBIT A to the Plaintiff  What remains now to be determined is the question of how much is owed by the Defendant to Plaintiff bank.  By my examination of EXHIBITS B and B1, it appears to me that Counsel for the Defendant has taken a very simple view of the matter by concluding that the amount allegedly owed by Defendant is the total sum of EXHIBITS D and D1 put together with interest thereon.  As Plaintiff’s representative rightly pointed out, the facility being an overdraft does not enable one to specify particular transactions as constituting the debt until the expiry of the facility when a debit on the account will show the amount owed by the customer. Thus, it cannot be said with any certainty that the amount outstanding is Sixty Thousand Ghana Cedis (GH¢60, 000.) together with interest thereon.   \r\nIn the result, for the reasons advanced in this judgement, I enter judgement for the Plaintiff in respect of relief (a) less the sum of Thirty Thousand Ghana Cedis (GH¢30, 000.00) being the amount paid to Joy Trace which was wrongfully debited to Defendants account by the Plaintiff, together with any interest worked thereon.  \r\n13  \r\nThe Parties are to compute the amount payable by the Defendant after the said deduction with the assistance of the Director of Finance of the Judicial Service.  \r\nb) Interest is to be paid on the said amount at the agreed interest rate of 26.5% per annum from the 16th day of September, 2014 until date of final payment.  \r\nc) Failing this and in the alternative, I order the judicial sale of Defendant’s Property situate at Ablekuma, Accra which is more particularly described in the Statement of Claim and used as collateral security for the facility granted Defendant.  \r\nIn view of evidence of a failure on the part of the Plaintiff bank to exercise reasonable care and skill in the discharge of its duties to the Defendant, I award Plaintiff nominal costs of Five Thousand Ghana Cedis (GH¢5000.00).   \r\n          (SGD) MRS. AKUA SARPOMAA AMOAH    JUSTICE OF THE HIGH COURT   \r\n       ', 'links/cases/FIRST ATLANTIC BANK v VIVIAN ATAKORA.pdf', 'Yes', '', '2016', 'high', '', 'AKUA SARPOMAA AMOAH (MRS), J', '', '', 'BFS/88/2015', '', '', 'High Court, Accra', '2016-06-28', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(600, 'FORMS CAPITAL LTD\r\n    VRS  \r\n1. FREEMAN GT COMPANY LTD. 2. WILLIAM OPARE SAFORO 3. SAMUEL AWUKU FREEMAN 4. VOLTA RIVER AUTHORITY ', 'JUDGMENT  \r\nThe liability of the first three defendants in this suit has already been settled by the court upon an application for judgment in default of defence mounted by the Plaintiff. The court differently constituted granted the prayer of the Plaintiff in terms of the following reliefs endorsed on the Plaintiff’s writ of summons:  \r\na. Payment of the sum of Twenty Four Thousand, Five Hundred and Fifty Nine Ghana Cedis (Gh¢24.559.00) being sum outstanding on the loan as at 31st May, 2014 on loan granted to the 1st defendant repayment of which was guaranteed by the 2nd and 3rd defendants.  \r\nb. Payment of the sum of Gh¢24.899.00 being sum outstanding on the second loan as at 6th June, 2014 on loan granted the 1st defendant repayment of which was guaranteed by the 2nd and 3rd defendants. \r\n \r\n   \r\ne. Interest on the 1st loan at the contractual rate of ten percent (10%) per month from 1st June, 2014 to date of final payment  \r\nf. Interest on the second loan at the contractual rate of ten percent (10%) per month from 7th of June, 2014 to date of final payment.  \r\ng. Cost of a full recovery basis.  \r\nWhat is left in this suit for determination is relief c. on the endorsement on the writ of summons and which is stated as follows:  \r\n“A declaration that the Plaintiff relied on the undertaking of the 4th defendant to pay the contract sum in joint names of the Plaintiff and the 1st defendant in taking a decision to grant the loan to the 1st defendant”.  \r\nThe background to the claim of the Plaintiff can be discerned from the 22 paragraph statement of claim that accompanied the issuance of the writ. Plaintiff claims that per a facility letter of 21st of August, 2012 it advanced a loan of Gh¢25.000.00 to the 1st defendant for the purposes of executing a contract awarded by the 4th defendant to the 1st defendant with the repayment period being three months. According to the Plaintiff the loan should have been repaid by 20th of November, 2012. The 4th defendant undertook to pay the contract sum in the joint names of 1st defendant and the Plaintiff and it was that undertaking relied on by the Plaintiff that informed its decision to award the contract to the 1st defendant. To plaintiff, 1st defendant later requested for a further loan to enable it complete the contract 4th defendant awarded it and it did accede to that request and made a further advancement of Gh¢15.000.00 to the 1st defendant. In Plaintiff’s reckoning the 1st defendant has failed to make good its repayment terms and it has come to its notice that 4th defendant has gone ahead to make payments not in terms of the undertaking it gave to make payment in the joint names but has reneged and made it to the 1st \r\n \r\n3 | P a g e  \r\ndefendant. And having breached the terms of its undertaking the Plaintiff is of the opinion that 4th defendant is liable to pay the sums of monies together with the interest claimed by the Plaintiff.  \r\n4th defendant has vehemently resisted and denied the claim of the Plaintiff as not disclosing any reasonable cause of action against it claiming that it is neither a party to the contract between Plaintiff and 1st defendant nor did it guarantee to assume the debt of 1st defendant. To 4th defendant it is a total stranger to the contract and therefore does not owe any legal obligation to the plaintiff.  \r\n4th defendant then proceeded to set out the level of its involvement in the transaction between the Plaintiff and the 1st defendant that by a letter dated 31st of October, 2012; the 1st defendant instructed the 4th defendant to make payments regarding the award of its contract for the renovation of its property in the joint names of 1st defendant and the Plaintiff. And it subsequently communicated the payment instructions given it to the Plaintiff. 4th defendant further claims that before the completion of the contract it awarded the 1st defendant could be completed, the 1st defendant per another letter revoked the payment instructions and ordered it to make payment in the joint names of the 1st defendant and Zenith bank. And as there was no privity of contract between it and Plaintiff, it dutifully carried out the last payment instructions of the 1st defendant and paid the contract sum in the joint names of 1st defendant and Zenith Bank. And accordingly Plaintiff has no claim against it in the absence of any contractual obligations between the two.  \r\nAs the pre trial conference failed to settle the issues between the parties the following three issues were agreed for determination before the court and they were:  \r\n1. Whether or not the 4th defendant’s letter of undertaking to pay the contract sum in the joint names of Plaintiff and the 1st defendant is binding on 4th Defendant.  \r\n \r\n4 | P a g e  \r\n2. Whether or not the Plaintiff relied on this undertaking to advance loans to 1st defendant.  \r\n3. Whether or not the Plaintiff has a cause of action against the 4th Defendant   \r\nEVALUATION OF THE EVIDENCE AND ANALYSIS OF THE LAW The evaluation of the evidence will have to first determine whether what proceeded from the 4th defendant can be claimed to be an undertaking in law before determining its net effect.  Plaintiff who bore the burden of proof testified through Sylvester Inkoom. From the evidence of Plaintiff’s representative he noted that the two loans of Gh¢25.000.00 and the Gh¢15.000.00 were disbursed to the 1st defendant only after it had received a letter of undertaking from the 4th defendant. In support of Plaintiff’s case is Ex ‘A’ which is a letter from the 4th defendant to Plaintiff that the 4th defendant was going to comply with instructions from the 1st defendant to pay the contract sum in the joint names of Plaintiff and the 1st defendant. Exhibit ‘A’ is dated the 6th of November, 2012. There is also Ex ‘B’ being an internal memo from 4th defendant’s Town Manager to its Area Finance Manager regarding instructions of 1st defendant to pay the contract sum in joint names.   \r\nCould it be said that the Plaintiff discharged its burden of proving its case on the balance of probabilities for the burden to have shifted to the 4th defendant? Plaintiff’s representative had indicated that the two loans had been disbursed based on Ex ‘A’ written by the 4th defendant and without it the loans would not have been given to the 1st defendant as it claimed to have relied on what 4th defendant gave it to approve the loans. However, in paragraph 4 of the witness statement of Plaintiff’s representative he states that the first loan of Gh¢25.000, the contract or facility letter to the 1st defendant was on the 21st of August, 2012. He also conceded in cross examination that the cheque for the first loan, which was admitted as Ex ‘7’ was paid to the 1st defendant on 23rd August, 2012. But Ex ‘A’ which seems to be the trump card of the Plaintiff was written by the 4th defendant on \r\n \r\n5 | P a g e  \r\nNovember 6, 2012. Counsel for 4th defendant was accordingly spot on in his cross examination of Sylvester Nkoom when he pointed out that Ex ‘A’ could not have been the reason for the payment of the money of Gh¢25.000 in the following:  \r\n“Q: Did you look at the contract letter from the 4th defendant to the 1st defendant?  \r\nA: My lord I looked at it  \r\nQ: Now the contract letter is dated the 24th of October, 2012 and you paid a cheque on the 23rd of August 2012, is that true   A: Yes my Lord ...  \r\nQ: I put it to you that you did not rely on any undertaking from the 4th defendant to pay this cheque to the 1st defendant   \r\nA: No my Lord ...”  \r\nWith the 4th defendant’s letter having been written in November, 2012 and the facility agreement for Gh¢25.000 having been made in August 2012 followed by the cheque to the 1st defendant in August 23, 2012; it cannot be correct that the disbursement of the first loan of Gh¢25.000 to the 1st defendant was in anyway influenced by Ex ‘A”. Sylvester Nkoom himself made a volte face when confronted with this issue in the following:  \r\n“Q: I still want to suggest to you that you did not rely on any undertaking by the 4th defendant to pay the first loan of Gh¢25.000 to the 1st defendant   A: We didn’t”   \r\nThis is a complete departure from the allegations made in the pleadings of the Plaintiff that Plaintiff relied on an undertaking from 4th defendant for the approval of the two loans. I accordingly find as a fact that it is not true that a \r\n \r\n6 | P a g e  \r\nletter of 4th defendant that came after a loan had been disbursed became the assurance upon which the first loan was disbursed.  Plaintiff therefore failed to prove that 4th defendant should be held liable for the loan of Gh¢25.000 together with the interest on it.  \r\nWhat then of the second loan of Gh¢15.000?  \r\nPlaintiff claims that the loan of Gh¢15.000 could not have been disbursed without what 4th defendant told them that it was going to do. That is to pay the contract sum due the 1st defendant in the joint names of Plaintiff and 1st defendant. For Plaintiff’s representative confirmed this whiles under cross examination in the following exchanges:  \r\n“Q: Are you telling this court that there was then a contract of undertaking between the Plaintiff and the 4th defendant   \r\nA: Yes My Lord  \r\nQ: Did he give you any document covering this contract of undertaking between the Plaintiff and the 4th defendant, yes or no  \r\nA: Per Ex ‘A’ it is what we dwelt on to make our decision ...”  \r\nIt is therefore necessary to reproduce in full the contents of Ex ‘A’ as way of determining if it is capable of amounting to a legal undertaking which might have informed the decision of Plaintiff to grant the loan of Gh¢15.000 to the 1st defendant.  \r\n“Re: issuance of Cheque in a Joint Name Freeman GT and Forms Capital  \r\nWe wish to advise that Freeman GT Company is one of our contractors who has been awarded contract to renovate and make extension works ...  \r\nFreeman GT Company has requested that payment to him in respect of renovation of house N. C1 Community 1 should be made in the joint names \r\n \r\n7 | P a g e  \r\nof Freeman GT Co/Forms Capital.   We therefore undertake to issue the cheque in the joint names of Freeman GT/Forms Capital”.  \r\nFrom the clear reading of Ex ‘A’ quoted supra, the letter was written based on the promptings of 1st defendant. And it is even clearer when regard is had at Ex ‘1’ tendered by the 4th defendant which shows why Ex ‘A’ was written. 1st defendant requested 4th defendant to make payments to it in the joint names of Plaintiff and 1st defendant and further requested that the reply to Ex ‘1’ should be copied the Plaintiff as well. It is true that in Ex ‘A’ 4th Defendant went to even extent of using the word ‘undertake’  but does it necessarily mean then that the whole letter was in the nature of an undertaking in law.  \r\nAccording to the 8th edition of the Black’s Law Dictionary, to undertake mean, among others,  to give a formal promise; guarantee , To act as surety for another; to make oneself responsible for a person, fact, or the like whiles undertaking is defined as a promise or a pledge. Such a promise or a pledge should be one that is binding in the law of contract. Classic examples of an undertaking could be a unilateral contract where a person promise another to do an act if the offeree will do or refrain from doing an act. It is worthy of note that a unilateral contract such as an undertaking is one of the few exceptions to the general rule of contract that there must be a consideration. For indeed section 5 of the Contracts Act, Act 25 states as follows:  \r\n“(1) Any provision in a contract made after the commencement of this Act which purports to confer a benefit on a person who is not a party to the contract, whether as a designated person or as a member of a class of persons, may, subject to the provisions of this Part, be enforced or relied upon by that person as though he were a party to the contract”.   \r\nIt is the law then that consideration need not move from the promisee to validate the contract as section 10 of the Contracts Act, Act 25 states as follows:  \r\n“No promise shall be invalid as a contract by reason only that the \r\n \r\n8 | P a g e  \r\nconsideration therefor is supplied by someone other than the promisee”.  \r\nThe English case of DAULIA LTD v FOUR MILLBANK NOMINEES LTD [1978] CH 231 an undertaking in the form of a unilateral contract was explained by the court in the following terms:  \r\n“ whilst I think the true view of a unilateral contract must be in general be that the offeror is entitled to require full performance of the condition which has imposed and short of that he is not bound, that must be subject to one important qualification, which stems from the fact that there must be an implied obligation on the part of the offeror not to prevent the condition becoming satisfied, which obligation it seems to me must arise as soon as the offeror starts to perform”.  \r\nSee also the case of LUXOR (EAST – BOURNE) LTD v COOPER [1941] AC 108.  \r\nIt is therefore the position of the law that an undertaking as far as the law is concerned is a binding contract on the party that provided the undertaking.   \r\nBut the question in this suit is can Ex ‘A’ or does Ex ‘A’ amount to an undertaking to have the legal effect of binding 4th defendant? Plaintiff’s representative claimed under cross examination that:  \r\nQ: What security did you take for this loan of Gh¢15.000  \r\nA: ... Joint and several guarantees of the two directors of 1st defendant company and assignment of VRA receivables”  ...  \r\nQ: Did you inform the 4th defendant company of its obligations under the loan of Gh¢15.000   A: No My Lord  \r\nQ: Why  \r\nA: Because we already had undertaking from them.  \r\nThis latter answer cannot be correct as there had been no word or any \r\n \r\n9 | P a g e  \r\ncommunication between the Plaintiff and the 4th defendant and the only time Ex ‘A’ was written was when 1st defendant was sourcing for the loan of Gh¢15.000.  Plaintiff has indicated that beyond Ex ‘A’ the 4th defendant assured it by word of mouth that it would pay the contract sum in the joint names of Plaintiff and the 1st defendant in the following exchanges during cross examination:  \r\n“Q: Are you telling the court that when you had your alleged meetings with the Town Manager, the Area Finance Manager you did not send any writing to that effect to the 4th defendant  \r\nA: No because they assured me that payment will come  \r\nQ: Who assured you   A: Both the Town Manager and the Area Finance manager  \r\nQ: In writing or by word of mouth  \r\nA: By word of mouth.  \r\nThe 4th defendant denied the taking place of any meeting where verbal assurances were given by the 4th defendant to be bound in making payments in joint names and as it is trite that when an averment of a party is denied the party whose allegation has been denied is obliged to prove his claim by some corroborative evidence. Ollenu JSC in MAJOLAGBE v LARBI [1959] GLR 190 relying on a dictum in KHOURY v RICHTER that:   “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true”  \r\nWith the attempt to rely on a verbal assurance by the Plaintiff having been denied by the 4th defendant, what comes close to the provision of any \r\n \r\n10 | P a g e  \r\ncorroborative evidence would be Ex ‘A’.  However, a clearer picture of what Ex ‘A’ amounts to will be made out when the court proceeds to examine the case of the 4th defendant. 4th defendant in its attempt to avoid a ruling against it in resisting the claim testified by calling its representative Henry Tetteh Ahorlu and Dw1 Edwin Aryittey, the two being the Area Finance Manager and Town Manager respectively of the 4th defendant. According to Tetteh Ahorlu Ex ‘A’ is nothing but payment instructions from one of their contractors they had awarded a contract to and the 4th defendant had not been privy to any contract between Plaintiff and 1st defendant. 4th defendant tendered Exhibits 1 to 8 and includes the payment instructions of 1st defendant which is Ex ‘1’and Ex ‘2’ which is the same as Ex ‘A’, a further payment instructions that changed the payment of the contract sum in the joint names of 1st defendant and Plaintiff to 1st defendant and Zenith Bank, Ex ‘4’ a letter from 4th defendant to Zenith Bank and Ex ‘8’ the facility letter of the loan of Gh¢15.000 to 1st defendant.  \r\nI had throughout the trial been convinced that this was a case that was on all fours with the decision of the Supreme Court in the case of NDK FINANCIAL SERVICES LTD v AHAMAN & OTHERS Unreported Suit No. J4/23/2013 dated 28th November, 2014. But I think there are a number of distinguishable differences between the NDK case and the present one. First it must be noted that in the NDK case there had been an MOU between Ahaman and the Ministry of Energy to make payments due Ahaman in the joint names of Ahaman and NDK. I do not find on the evidence before me that there had been a specific agreement between 1st defendant and 4th defendant to that effect. As it was a mere payment instructions communicated from 1st defendant to 4th defendant, such instructions could be changed at any time.  \r\nSecond, in the NDK case there had been previous cheques that had been paid by the Ministry of Energy in the joint names of NDK and Ahaman and the Ministry had become fully aware of the binding obligations that had been imposed on them to pay monies in the joint names of NDK and Ahaman. With the case before me there had been no such previous payments made by the 4th defendant.  \r\nThird, whiles in the NDK case it was found as a fact that the Ministry of Energy was fully aware that the loan advanced to Ahaman was contingent upon the Ministry making payments in joint names, that is not what I find here. There seems to have been a communication of the mode by which 1st \r\n \r\n11 | P a g e  \r\ndefendant wanted to be paid and 1st defendant was at liberty to change same. It is true that Plaintiff was notified of the instructions of 1st defendant but that was done simply because 1st defendant requested that to be done as it was done with Ex ‘4’ as well.  \r\nAgain whiles in NDK case the words and the nature of the communication from the Energy Ministry to NDK was clear and unequivocal to the extent of even stating that the mode of payment would not be revoked or waived or varied without prior written notice to NDK, that is not the situation on the facts of this case. As Exhibit A seems only to convey to Plaintiff what 1st defendant had instructed it to do  \r\nOne could see that Ex ‘A’ and its language is not different from Ex ‘4’ which 4th defendant wrote to Zenith Bank that it would pay the contract sum in the joint names of 1st defendant and the Zenith. And Ex ‘4’ was written based on a similar letter to Ex ‘1’ from 1st defendant. I find that there is no evidence on record that show that Plaintiff communicated to the 4th defendant the liability it assumes and the need to undertake or promise to pay the contract sum in the joint names of Plaintiff and 1st defendant.    Exhibit ‘A’ or Ex ‘1’ does not come within the scope of that kind of unilateral undertaking contemplated under section 10 of the Contracts Act to make the 4th defendant bound.  If Plaintiff had in mind to bind the 4th defendant to the payment of the receivables then it had been tardy as Ex ‘A’ alone seems not to be enough to create the nature of legal relations that a contract of such nature requires.  \r\nPlaintiff fails in his quest to recover both the first loan of Gh¢25.000 and the second loan of Gh¢15.000 together with their respective interest from the 4th defendant. The action of the Plaintiff against the 4th defendant is dismissed in its entirety for the reasons and findings made supra.           \r\n \r\n12 | P a g e  \r\nI will award cost of Gh¢7.000.00 in favour of the 4th defendant against the Plaintiff.   \r\n   \r\n             (sgd.) Eric Kyei Baffour,  Esq  Justice of the High Court      \r\nRepresentations:   \r\nPlaintiff represented by James Annan – Present  4th Defendant Representative – absent  Opoku Adjei, Esq with Nana Aisha Salifu, (Ms.) and Rosemary Obeng Kwaah, (Ms.)  for Plaintiff  Seth Asante, Esq for Defendant  ', 'links/cases/FORMS CAPITAL.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'RPC/249/2014', '', '', 'High Court, Accra', '2016-03-21', ''),
(601, 'C.F.C CONSTRUCTION &  FURNITURE LIMITED \r\n VRS \r\n1) CARL JOSIAH REINDORF 2) PHILIP REINDORF', 'J   U   D   G   M   E   N   T \r\nPlaintiff on 19th June, 2012 issued a writ of summons with a statement of claim seeking the following: \r\na) Declaration that the judgment of the High Court dated 22nd July 1997 was obtained and granted by fraud and illegality.  b) An order to set aside the judgment. c) Declaration that defendant herein has no capacity to grant out any of the C.F.C estate land at Mile 7½ on the Accra-Nsawam road. d) Declaration that all grants by defendant herein of C.F.C lands based on the 1997 judgment be null and void. e) Order for account of all lands granted by defendant of the C.F.C estate lands for regularization of titles for such grantees. \r\nPage 2 of 8  \r\nf) Declaration that Onamrokor-Adain family is the rightful grantor of the plaintiff. g) An order to Deeds Registry to cancel registration of the 1997 judgment in the name of defendant.  h) General damages. i) Costs. \r\nThe defendant filed a conditional appearance and later filed a motion to dismiss the writ of summons. This application was however not granted and the parties were eventually ordered to file documents they intended to be relied on in the suit as well as their pre-trial checklist and witness statements. The issues arising upon application for directions being taken are: \r\na) Whether or not the land in dispute at Mile 7½ on Accra-Nsawam road forms part of Dome lands legally acknowledged to be Onamrokor-Adain family land? b) Whether or not the lands at Mile 7½ was by lease agreement of 22nd October 1955 leased to plaintiff-company for 99 years and same was registered as 2421/1955 for him to build dwelling houses on same and lease out? c) Whether or not by indenture issued on the said lease executed by the Head of Onamrokor-Adain family, Dr. C. E. Reindorf, with the concurrence of the principal members of the family established that the said grant was done on behalf of the Onamrokor-Adain family and not as the personal property of Dr. C. E. Reindorf?  d) Whether or not it was fraudulent and illegal on the part of Dr. C. E. Reindorf to have willed or devised the said leased lands to his daughter and nephew as it came out after his death? \r\nPage 3 of 8  \r\ne) Whether or not the judgment of the High Court in Suit No. 1450/1992 given on 22nd September 1997 describing such a devise by Dr. C. E. Reindorf in his will as right is rather fraudulent and illegal and therefore a nullity and must be declared as such?  f) Whether or not plaintiffs are the same as those in the Suit the judgment in issue here was given against here? g) Whether or not plaintiff has locus in this matter?  h) Whether or not plaintiff is entitled to his claim?  \r\nThe representative of the plaintiff-company, Florence Leela Dyson, who is currently the Managing Director of C.F.C Construction Limited having succeeded her brother, Francis Dyson, prayed the court for an order of the court that judgment of the High Court in Suit No. 1450/1992 delivered on 22nd September, 1997 be declared null and void on grounds that the said judgment, the devise of the CFC land granted by Dr. C. E. Reindorf, was as the Head of Onamrokor-Adain family. \r\nIn 1955, the late Dr. Charles Elias Reindorf executed a lease between the plaintiffcompany and himself as Head of the Onamrokor-Adain for a period of 99 years. Dr. C. E. Reindorf died in 1967 and willed his properties to Emelia Reindorf and Hackenburg Reindorf and this the plaintiff -company is praying for the judgment of 1997 on Suit No. 1450/1992, which is based on the devise of Dr. C. E. Reindorf to his successors to be set aside. According to plaintiff, the grant of the land was made by Dr. C. E. Reindorf in his capacity as Head of family of the Onamrokor- Adain family and not in his personal capacity. \r\nThe case of the defendant is that his grandfather, Dr. C. E. Reindorf, was gifted the land in question in 1952 under a grant to “himself and the female line of the family” that is his maternal line of the family. This grant, plaintiff says prescribed a joint \r\nPage 4 of 8  \r\ntenancy of ownership by him and the maternal line of the family. His death therefore made the family the sole owner. \r\nThis was denied by defendant who said the devise to Emelia and Hackenburg was legitimate devises, because the land had been gifted to Dr C. E. Reindorf on recognition of his father Rev. C. C. Reindorf for his outstanding leadership as one time head of family.  \r\nAccording to defendant, Dr. C. E. Reindorf appointed the Registrar-General as the Administrator / Executor of his estate and they in turn vested the property in the devisees, Emelia and Hackenburg Reindorf. Plaintiff-Company has refused to pay ground rent for over 24 years hence the action which resulted in the judgment in Suit No. 1450/1992 which the plaintiff is seeking to set aside for fraud and illegality. \r\nUpon considering the evidence adduced, I find as a fact that the land in dispute forms part of the Dome lands at Mile 7½ on the Accra-Nsawam Road acknowledged to be legally the property of the Onamrokor-Adain family. \r\nI also find as a fact that the said land at Mile 7½ was by the lease agreement of 22nd October 1955 leased to the plaintiff-company for 99 years and same was registered as 2421/1955 and it was meant for the plaintiff to build dwelling houses on same and to lease out. This was unchallenged. \r\nOn the issue of the capacity in which the grantor, Dr. C. E. Reindorf, granted the lease, the court has had to look at the lease agreement in its entirety to reach its decision. The agreement dated the 20th of May, 1952 and registered at the Deeds Registry as No. 774/1952. This grant was made between Nii Jacob O. Quayefio, Nii Tetteh Cobblah, Ahere Nukpa Anoi Lamptey, Emmanuel B. Quarcoo and Charles T. Quarcoo, all appointed representatives and elders of the Onamrokor- Adain \r\nPage 5 of 8  \r\nfamily of Accra, on the one part, and Dr Charles Elias Reindorf, “acting in his capacity as Head of Onamrokor-Adain female line family of Accra aforesaid”. \r\nIn my humble opinion, this grant of land to Dr C. E. Reindorf and the female line of the Onamrokor Adain family created a joint ownership between Dr. Reindorf and the female line. It did not confer on him absolute ownership. The question is whether in a joint tenancy as this was, Dr. Reindorf had the right to make the said grant of the land, a subject matter in his will and to devise the said lands as if they were his personal property. Dr. Reindorf may have been under the impression that the 1952 grant made him an owner of the lands absolutely. Given the ordinary meaning of the 1952 document, I beg to differ. Before January 1974 when the Conveyancing Decree was enacted, where property was given to two or more people without express words to show otherwise, no distinct or separate share was created, but rather a joint tenancy was created. This joint tenancy had the characteristics of the right of survivorship and the unity of possession, unity of interest, unity of title and unity of time. This means that interest in such a joint tenancy cannot pass under a will or even intestacy. From the foregoing, it is clear that Dr. Reindorf did not have a right under law to devise the lands under his will to the beneficiaries therein. Having made such a finding it is important to look at the agreement between Dr. C. E. Reindorf and C.F.C in 1955. \r\nThe 1955 grant was between the plaintiff, C.F.C on one part, and Dr. C. E. Reindorf, who executed the document in his capacity as the then Head of family of the Onamrokor-Adain family with consent and concurrence of the principal members of the family. This goes a long way to signify that that particular grant was entered into by Dr. C. E. Reindorf in his capacity as Head of family and not his personal capacity as owner of same. The document is as plain as can be and does not need any special \r\nPage 6 of 8  \r\ninterpretation to determine the meaning of the 1955 grant between Dr. C. E. Reindorf and the plaintiff.  \r\nThe plaintiff has sought to establish that the judgment of my senior brother Gyamera Tawiah J. was acquired by fraud and illegality. I have critically looked at the evidence adduced so far and I am of the opinion that the judgment of 1997, which was given by the Court, was under the impression that indeed the ancestor of the plaintiff, then Dr. C. E. Reindorf, was the bona fide owner of the Dome lands that he had devised under his will. This may have resulted because the defendant then who is the plaintiff herein did not appear to defend the matter. The Court did not seem to have been apprised of the existence of a public notice dated the 15th of  November, 2000, issued by the Administrator-General, notifying the general public of the revocation of vesting assent given in favor of Emelia Patience Reindorf and the administrators of the estate of Late Daniel Hackenburg Reindorf and others which had been done on 30th December, 1993. \r\nIt is also worthy of note that the law of survivorship which was in operation in Ghana as at 1967 when Dr. C. E. Reindorf died, made the property in question the property of the female line of the Onamrokor-Adain family. Dr. C. E. Reindorf could therefore not devise it to anyone as if it was his personal property. It is therefore an illegality to do so. The devise was null and void that the plaintiffs in Emelia Reindorf v. C. F. C Co. Limited based their claim and upon which the court also based its judgment. \r\nIt is also worthy of note that the plaintiff in the case of Emelia Reindorf (substituted by Carl Reindorf) v. C.F.C  Co. Limited, were aware of the Administrator-General''s withdrawal of vesting assent long before judgment was passed in that case and it was the plaintiff''s duty to disclose any such information to the Court. Fraud is a tort arising from a known misrepresentation made to induce another to his or her \r\nPage 7 of 8  \r\ndetriment. According to Lord Denning in the case of Lazarus Estates v. Beasley [1959] 1 All ER at 341, "No court in the land will allow a person to keep an advantage which he has obtained by fraud". \r\nThe plaintiffs herein have alleged fraud in this matter and have gone to lengths to put across what fraud they are referring to. The Appeal Court stated that “a charge of fraud is to be taken to be properly made against a party who knowingly or recklessly, whether by conduct or words used unfair, wrongful or unlawful means to obtain a material advantage to the detriment of another party". \r\nAgain, in the case of Republic v. High Court, Accra, Ex parte Aryeetey [20032004] SCGLR 398, it is stated that "Fraud is a serious sin against the administration of justice. It vitiates everything. Thus a judgment obtained through fraud can best be set aside and when a judgment is impeached for fraud, its legitimacy is put in issue and cannot operate as an estoppel per rem judicatem provided the alleged fraud is properly and adequately raised ...” \r\nThis Court from the foregoing holds that the judgment of the Court in the matter of Emelia Reindorf v. C.F.C Co. Limited with Suit No. 1450/1992 was a judgment illegally obtained by fraud.  \r\nThe said judgment is therefore set aside. \r\nIt is again declared that the defendant herein has no capacity to grant out C.F.C estate lands at Mile 7½ on the Accra-Nsawam road and that all such grants made on the basis of the 1997 judgment are null and void. It is hereby declared that the Onamrokor-Adain Family is the rightful grantor of the plaintiff. The defendant is ordered to account to plaintiff for all lands granted, for regularization of title for such \r\nPage 8 of 8  \r\ngrantees. The Deeds Registry is hereby ordered to cancel the registration of the 1997 judgment in the name of defendant.  \r\nGeneral damages of GH¢10,000.00 is ordered to be paid to plaintiff and cost of GH¢3,000.00 is awarded to plaintiff.  \r\n                              \r\nSGD JUSTICE DORIS BEMPONG (JUSTICE OF THE HIGH COURT)  ', 'links/cases/FURNITURE CONSTRUCTION.pdf', 'Yes', '', '2016', 'high', '', 'DORIS BEMPONG (MRS), J', 'Civil', '', 'BMSC 816/2012', '', '', 'High Court, Accra', '2016-06-23', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(602, 'GALTON NENE KANOR NARTEY  \r\nVRS  \r\n1. CLASSFAM (GH) LTD, 2. NANA OBENG AKROFI', '\r\nJUDGMENT  \r\nFACTS  \r\nThe Plaintiff was employed, first with Classfam Pharmacy and then subsequently, with Classic Herbal Centre, both operated by the 2nd Defendant as Managing Director at all material times.  In both establishments, Plaintiff was designated as a Shop Manager on full time basis.  His employment with Classfam Pharmacy was regulated by a letter of employment dated 30th March, 2006 while his employment with Classic Herbal Centre was regulated by a letter dated 2nd July 2007.  At a later date, the 1st Defendant, Classfam (GH) Ltd., took over the two business operations of the 2nd Defendant.  On 1st January, 2010, the Plaintiff’s salaried position was converted to commission on sales by the 1st Defendant.  The Plaintiff, not satisfied with this change in his position has brought the present action seeking the following reliefs against the Defendants, jointly and severally or in the alternative as per his writ of summons and statement of claim:  \r\n“1. A declaration that the unilateral alteration of Plaintiff’s contract of employment by the Defendant by a letter dated January, 1, 2010 amounts to unfair termination of Plaintiff’s employment with the Defendant. 2. Damages for unfair termination. \r\n2 \r\n3. An order for the payment to the Social Security and National Insurance Trust of Plaintiff’s monthly social security contributions for the months that Defendant failed to pay same, as specified in the attached statement of claim. 4. Compensation for denial of Plaintiff’s annual leave entitlements for the period that Plaintiff was in the employment of the Defendant.” \r\nSubsequently, pursuant to the Order of his Lordship Justice Esuman Adu dated 14th November, 2011, the Plaintiff amended his writ of summons and statement of claim to read as follows: “1. A declaration that the unilateral alteration of Plaintiff’s contract of employment by the Defendant by a letter dated January, 1, 2010 amounts to wrongful dismissal or, in the alternative, unfair termination of Plaintiff’s employment with the Defendant. 2. Damages for wrongful dismissal or, in the alternative, unfair termination. 3. An order for the payment to the Social Security and National Insurance Trust of Plaintiff’s monthly social security contributions for the months that Defendant failed to pay same, as specified in the attached statement of claim. 4. Compensation for denial of Plaintiff’s annual leave entitlements for the period that Plaintiff was in the employment of the Defendant.” \r\nFrom the onset, I would note that this case was transferred to the Commercial Court by Her Ladyship, the Chief Justice, from the Industrial and Labour Court on 17th November, 2015 for continuation and adjudication.  \r\nI have reviewed the record of proceedings and the evidence adduced in this case extensively.  Plaintiff’s case consisted of his own testimony and the documentary evidence he submitted in support of his claim, marked in the record as Exhibits ’A’ through ‘D’.  On the other hand, the Defendants’ case was limited to the cross-examination of the Plaintiff, the testimony of its witness and their supporting documents marked into evidence as Exhibits ‘1’ through ‘7’.    \r\nPlaintiff’s Case  \r\nThe case of the Plaintiff is that he was employed by the 2nd Defendant, then doing business in the name and style of Classfam Pharmacy, as a shop manager on full time basis.  His appointment afforded him monthly salary with overtime allowances and bonuses.  The appointment letter was dated 30th March, 2006 but the appointment was to take retroactive effect from 2nd February, 2005.  Further, the overtime allowances and bonus were also to take effect from April 2006.  It is the Plaintiff’s claim that he was later assigned to work with Classic Herbal Centre, another business name under which the 2nd Defendant was trading.  \r\nAccording to Plaintiff, he was appointed a shop manager at Classic Herbal Centre by letter dated 2nd July, 2007.  His position as a shop manager with Classfam Pharmacy continued with Classic \r\n3 \r\nHerbal Centre.  In the course of time the 1st Defendant took over the business of the 2nd Defendant and assumed responsibility as Plaintiff’s employer jointly with the 2nd Defendant.    \r\nIt is the complaint of the Plaintiff that by a letter dated 1st January, 2010, the terms of his employment were changed and his position of shop manager was altered to that of a marketing representative; and his remuneration changed from salary to commission on sales.  These changes, the Plaintiff, alleges were unilateral, without notice, unfair and amounted to wrongful dismissal.  \r\nPlaintiff further alleges that he was not granted leave for the period he worked with the Defendants and that the Defendants failed to pay all his social security contributions to the Social Security and National Insurance Trust (hereinafter, “SSNIT”).  \r\nDefendants’ Case  \r\nThe Defendants on their part contend, in the main, that the alleged change in the Plaintiff’s terms of employment was the result of a management decision taken during discussions at the general meeting by management staff which included the Plaintiff by virtue of his position as the Shop Manager.  The Defendants, therefore contend that the Plaintiff cannot now turn around to allege that the change in the terms of his employment was a unilateral act of the Defendants.  The Defendants further contend that if the Plaintiff was dissatisfied with that decision, he should have stated his dissatisfaction in a response to the memo dated 1st January, 2010, that Defendants sent to him reiterating the decision that was taken at the management meeting rather than vacating his post.  In the circumstances, the Defendants had the right to summarily terminate his employment.  \r\nThe 2nd Defendant further alleges that the Plaintiff, as shop manager, by his negligence caused financial loss to the 1st Defendant, which loss was disclosed during stock-taking.  The 1st Defendant therefore counterclaims as follows:  \r\na. A declaration that by his employment duties with 1st Defendant, a duty of care relationship existed between the Plaintiff and 1st Defendant concerning the company’s assets entrusted to the Plaintiff. b. A further declaration that, by that relationship in relief (s) supra, the Plaintiff owed a duty of care to ensure that the 1st Defendant does not suffer any loss in the value of stock entrusted into his care. c. A declaration that the 1st Defendant has suffered loss and damage as a result of the negligence of the Plaintiff in the loss of the value of stock worth GH¢ 12,349.27. d. An order upon Plaintiff to pay to 1st Defendant the said GH¢ 12,349.27. e. An order upon Plaintiff to pay to 1st Defendant the said GH¢ 12,349.27 with interest at commercial rate to date of final payment. f. Costs. \r\n4 \r\nISSUES \r\nAt the close of pleadings, the following issues were set down by the court for trial:  \r\n1. Whether the Defendants unilaterally changed the terms of Plaintiff’s employment and, if they did, whether that change did not amount to wrongful dismissal of Plaintiff from his employment. 2. Whether there was any financial loss incurred by the Defendants and whether Plaintiff was liable for that loss. 3. Whether Plaintiff was denied leave and if so, for how long. 4. Whether Defendants failed to pay Plaintiff’s social security contributions due SSNIT for a total of fourteen (14) months. \r\nAdditional issues that were raised in the course of the trial and in Defendants’ address are the following:  \r\n1. Whether or not the High Court has jurisdiction to entertain this case. 2. Whether the 2nd Defendant is a proper party to be joined to the suit. 3. Whether the Plaintiff abandoned his office by absenting himself from work for which reason he was subsequently dismissed. \r\nI have given my thoughtful consideration to the rival contentions put forward by the parties to the suit as well as the written submissions filed by both Counsel on their behalf.  I have also considered the relevant provisions of the High Court (Civil Procedure) Rules, 2004 (C.I 47), the Labour Act, 2003, Act 651 (hereinafter, “Labour Act”), the National Pensions Act, 2008, (Act 766) and the case law on this matter.  \r\nJurisdiction Issue  \r\nAfter this case has travelled through the court system for about five years and following a lengthy trial, the learned Counsel for the Defendants has realised, at the last minute, that he had participated in a trial over which the High Court has no jurisdiction.  This claim by Counsel for Defendants was raised for the first time in the written address he filed on behalf of his clients.  It is the claim of the Defendants that the High Court has no jurisdiction to entertain the case filed by the Plaintiff for an unfair termination of his employment by his employer.  According to the Defendants,   \r\n“the Plaintiff’s writ filed before the High Court, Accra was incompetent as it was in clear breach of the statutory provision in Section 64 of Act 651.  It was a complete nullity and the High Court, Accra had no jurisdiction to entertain it… It also quite obviously has no jurisdiction to make an Order amending the writ and its indorsement and therefore the Order made on 14th November, 2011 pursuant to which the Plaintiff filed an amended writ and statement of claim … is void … \r\n5 \r\n[t]herefore, … the Plaintiff had no claim before the court to be adjudicated upon.  The only claim before the court was that of the 1st Defendant which is its Counterclaim …”.   The issue of jurisdiction, as has been held in many decided cases, is fundamental and it touches squarely on the competence of this court to entertain or adjudicate on the issues presented before it.  See the case of ESSAH v. SOFO [1972] 2 GLR 301-304, where Edusei J, applied TIMITIMI v. AMABEBE (1953) 14 W.A.C.A. 374 at p. 377 and held that where there is no jurisdiction to hear a matter, the judgment or proceedings are void.  I am, therefore, required to ensure that the writ placed before me was filed in observance of due process of law without a disabling feature which will rob this Court of its Jurisdiction to hear this matter.    \r\nIt may be prudent to reproduce here the relevant portions of Section 64 of the Labour Act on which the Defendants rely to make their claim.  It states as follows:  \r\n “64. Remedies for unfair termination  (1) 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. (2) If on investigation of the complaint the Commission finds that the termination of the employment is unfair, it may (a) order the employer to re-instate the worker from the date of the termination of employment; (b) order the employer to re-employ the worker, in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or (c) order the employer to pay compensation to the worker. \r\nThe Defendants’ case, as I understand it is that on the strength of Section 64 of the Labour Act, supra, because the Plaintiff’s claim as endorsed on his original writ of summons was for reliefs resulting from unfair termination, he was enjoined by that section to file his claim with the Labour Commission and not with the Courts.  In further support of this claim, the Defendants rely on the Supreme Court case of BANI v. MAERSK GHANA LIMITED [2011] 2 SCGLR, 800 where their Lordships held, inter alia, that   \r\n“Sections 62 and 63 of the Labour Act 2003 (Act 651) set out clearly the law on fair and unfair termination of employment….. Section 64 of the Act provides that a worker who claims that his employment has been unfairly terminated may present a complaint to the Labour Commission established under the Act.  If the Commission finds  that the termination of the worker is unfair, it may give him or her one of three remedies specified in the Act:  an order to the employer to re\r\n6 \r\ninstate the worker from the date of termination of employment; an order to the employer to re-employ the worker in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or order the employer to pay compensation to the worker.  These statutory remedies are made available to the Commission but not, at least expressly, to the courts.”  \r\nI am of the view that the learned Counsel misinformed himself on the interpretation he chose to place on the law and also on the evidence before the Court.  The word “may” used in Section 64 and reiterated by their Lordships in the quotation above, suggests to me that the aggrieved worker is empowered by the Labour Act with the liberty to file his complaint with the Labour Commission or to choose some other route.  This is in keeping with the definition given to the expression “may” in an enactment by Section 42 of the Interpretation Act (2009) Act 792, that "may" shall be construed as permissive and empowering.  Furthermore, the BANI v. MAERSK GHANA LIMITED case, cited above, dealt in part with the situation where the aggrieved employee was requesting reinstatement as against the Plaintiff herein’s claim for damages.  This view is supported by the fact that as a precursor to dealing with the issue of fair and unfair termination of employment under Sections 62 and 63 of the Labour Act, their Lordships stated that:  \r\n“In Ghana, the statutory intervention to give employees the right to reinstatement has not been to set aside the equitable principle refusing specific performance to contracts involving personal service.  Rather, it is a remedy that is made available to the Labour Commission established under the Labour Act 2003.”  \r\nIt is only a court of law that has the power to assess and order damages.  The Act establishing the Labour Commission did not vest such powers in the Labour Commission, in my opinion.    \r\nBe that as it may, the evidence before this Court shows that the Plaintiff filed a complaint with the Labour Commission before proceeding to file his writ with the Court.  On 23rd March, 2015, the Plaintiff testified as follows:  \r\n“In 2010, 1st January, I received a letter from Classfam Ghana Ltd. signed by the 2nd Defendant that my appointment has been changed from a monthly salary earning to a commissioned worker. … I disagreed with the change.  I did not continue with the employment.  I took the matter to the Labour Commission.  The case was called several times, he appeared only once.  I decided to bring the case to the Court…”   \r\nThis testimony was not controverted on cross-examination nor did the Defendants provide the Court with any evidence to the contrary.  The position of the law on not cross-examining a witness \r\n7 \r\nafter he has given his evidence in chief, is well settled.  In the case of TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882, Ansah JSC referred to the case of TUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969, unreported] digested in 1969 CC, 76, where Ollenu JA stated thus: \r\n“In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.” \r\nThe general rule is that where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof, whether it is the Plaintiff who asserts a fact or the Defendant who makes a counterclaim.  See the cases of BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182, where the court applied the English case of HUYTON-WITHROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, and the Supreme Court of Ghana case of ABABIO v. AKWASI III [1994-95] Ghana Bar Report, Part II, 74.  The Evidence Act, 1975 (NRCD 323) (hereinafter, “NRCD 323”), encapsulates the foregoing principle in Section 14 where it uses the term the “burden of persuasion” and provides that the asserting party must prove each fact of his claim, the existence or non-existence of which is essential to the claim or defence he is asserting. Section 12(1) of NRCD 323 provides a further element to the above stated general rule to the effect that in a civil case, such as the one in question, the burden of persuasion requires proof by a “preponderance of probabilities” defined in Section 12(2) as “that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the evidence of a fact is more probable than its non-existence”.     \r\nFrom the foregoing, it is clear that the onus is on the Defendants to prove their assertion that the Plaintiff did not file a complaint with the Labour Commission first before proceeding to Court, once the Plaintiff had led testimony to that effect.  The Defendants by failing to provide such evidence or testimony, left the Plaintiff’s testimony undisputed.  They failed to establish the requisite degree of belief in my mind to show that it was more probable than not that the Plaintiff did not file the complaint with the Commission.  I am therefore convinced that the Plaintiff did file the complaint with the Labour Commission and it was when it became evident to him that the Defendants did not wish to participate in those proceedings that he filed the writ with the court.  \r\nTaking the arguments of Counsel for the Defendants in all aspects, therefore, there was no disabling reason that renders void the 14th November, 2011 Order of my brother, Justice Esuman Adu granting the Plaintiff leave to amend his writ of summons and statement of claim or would prevent this Court from having jurisdiction to hear this case, for that matter.    \r\n8 \r\nJoinder Issue  \r\nThe next issue I would like to discuss is the issue as to whether or not the 2nd Defendant is a proper party to be joined to the suit.  \r\nThe 2nd Defendant testified that he is the Managing Director of the 1st Defendant Company.  Indeed, all the correspondence tendered in evidence by both parties issued by 1st Defendant were signed by the 2nd Defendant in his capacity as Managing Director of the 1st Defendant.  See Exhibits “A”, “B” “C”, “3”, “4”, “5”, and “7”.  As Managing Director of the 1st Defendant, there is no denying the fact that 2nd Defendant was in charge of directing and administering the business of the 1st Defendant.  He was therefore at all material times acting as an officer of the 1st Defendant in the discharge of his duties.  So long as in the discharge of his duties he did not act ultra vires his mandate as managing director but carried on in the usual way the business of the 1st Defendant, all his acts are treated by law as being acts of the 1st Defendant itself.  Accordingly, if any of these acts are questioned in a court of law, it is the 1st Defendant that will be held to be liable for those acts to the same extent as if it were a natural person.  See Section 139 of the Companies Act (1963) Act 179.    \r\nA limited liability company is said to have a corporate personality different from its members and directors.  In SALOMON v. SALOMON & CO LTD [1896] UKHL 1, a landmark United Kingdom company law case, the effect of the House of Lords'' unanimous ruling was to uphold firmly the doctrine of corporate personality, as set out in the Companies Act 1862 of the United Kingdom, so that creditors of an insolvent company could not sue the company''s shareholders to pay up outstanding debts.  This principle is reiterated in the local case of OWUSU v. R. N. THORNE LTD. AND ANOTHER [1966] GLR 90-92, where Justice Boison had this to say: \r\n“The theory of legal personality of corporations has its own practical problems but it is clear that a limited company or corporation has legal existence apart from the directors and members, and it is in a few recognised exceptions that the law lifts the "corporate veil," as it has been put, and looks to the directors and members personally.”   \r\nIt is relevant here to mention the Supreme Court case of MORKOR v KUMA (No. 1) [1999-2000] I GLR 721 – 740.  That case involved a sale transaction between the respondent and the first Defendant, a limited liability company.  The appellant had been sued jointly with the first Defendant for the only reason that she was the Chief Executive, majority shareholder and a director of the company.  On the issue of whether the appellant had been properly joined to the suit, the court held that  \r\n“… the first Defendant was a corporate being with a capacity separate, independent and distinct from those constituting it or employed by it ... and the appellant would be a proper party to the suit only if a specific personal liability \r\n9 \r\nwere established against her or the veil of incorporation could be lifted to make her acts synonymous with those of the first Defendant or vice versa.  But the veil of incorporation could be lifted only in circumstances where in the light of the evidence the dictates of justice, public policy or the Companies Code, 1963 (Act 179) so required. Although it was impossible to formulate an exhaustive list of those circumstances, on the authorities, they included situations where it could be shown that the company had been established to further fraudulent activities or to avoid contractual liability... [T]hus in the absence of other factors driving the case. such as fraud, improper business conduct, … deliberate attempts at evasion of legal obligations, or other devises or willful misdeeds on the part of the appellant, the majority of the Court of Appeal erred in lifting the veil of incorporation upon those allegations and finding the appellant personally liable for the first Defendant''s debts and a proper person to be sued with the first Defendant for the recovery of the debt owed the respondent by the first Defendant”.   \r\nIn the absence of any extenuating circumstances as mentioned in the MORKOR v KUMA (No. 1) case that would require the veil of incorporation to be lifted to make the acts of the 2nd Defendant herein synonymous with the acts of the 1st Defendant company, the 2nd Defendant is not a proper party to be joined to this suit.  The 2nd Defendant cannot therefore be held jointly liable with the 1st Defendant for the latter’s acts or inactions.  I therefore hold that the 2nd Defendant’s joinder to the suit is not proper.  \r\nUnilateral Change and Abandonment Issue  \r\nI shall resolve the following issues together in the light of the law and evidence, that is, the issues of: ? “whether the Defendants unilaterally changed the terms of Plaintiff’s employment and, if they did, whether that change amounted to wrongful dismissal of Plaintiff from his employment” and  ? “whether the Plaintiff abandoned his office by absenting himself from work for which reason he was subsequently dismissed”. \r\nThe evidence of the record shows that the Plaintiff was employed in Classfam (GH) Limited (operating as Classfam Pharmacy) as Shop Manager by letter dated 30th March 2006 signed by 2nd Defendant as Managing Director, his employment to take effect from 2nd February, 2005.  See Exhibit “A”. By a letter dated 7th February 2007, Exhibit “1”, the Plaintiff purported to resign from Classfam (GH) Limited, which resignation was rejected by the company by a letter dated 8th February 2007, Exhibit “5” and signed by the 2nd Defendant in his capacity as the Managing Director.  By a letter dated 25th June, 2007, the Plaintiff applied for employment to Classic Herbal Centre, Exhibit “2”. In Exhibit “B” (which was also tendered by Defendants and marked in evidence as Exhibit “3”), Plaintiff was given an appointment letter by Classic Herbal Centre, while \r\n10 \r\nby Exhibit “4”, Plaintiff was given an appointment letter by the 1st Defendant, Classfam (GH) Ltd.  Both Exhibits “3” and “4” bear the same date of 2nd July, 2007.  With the exception of the letterheads on which the letters were printed, the contents are the same and both were signed by the same person, the 2nd Defendant in his capacity as Managing Director of both businesses.  \r\nPlaintiff’s application for employment, dated 25th June, 2007, Exhibit “2”, was addressed to Classic Herbal Centre.  Further, during re-examination by his Counsel on 26th February, 2016, the Plaintiff intimated to the court that he was only seeing Exhibit “4” for the first time in Court as he had never been given that appointment letter.  This evidence was not controverted by the Defendants and is therefore deemed to have been admitted by the Defendants.  See the case of TAKORADI FLOUR MILLS v. SAMIR FARIS, supra.  \r\nThe foregoing notwithstanding, from the evidence before me, I am of the opinion that the two (2) entities (Classic Herbal Centre and Classfam (GH) Limited) were operated by the 2nd Defendant and both were being used interchangeably by the Plaintiff and the 2nd Defendant in their relationship.  There is no disagreement as to whether there was an employee-employer relationship in this case and although the exhibits are unclear as to what entity is the employer, the Defendants did not contend that the Plaintiff brought the action against the wrong entity.  It is therefore my opinion that the Plaintiff was employed by Classfam (GH) Limited, the 1st Defendant herein.    \r\nThe essential terms of Plaintiff’s employment as spelt out in his letters of employment dated 30th March 2005 and 2nd July 2007 may be summarised as follows:  \r\n(a) He was to be on probation for three (3) months during which time his employment was determinable by either party on giving the other party two weeks’ notice or payment in lieu of notice. (b) After probation, either party may determine the agreement at any time on giving the other party one month’s prior written notice.  (c) In the event of proven misconduct such as disobedience or misbehaviour or dishonesty on the part of the Plaintiff, he would be summarily dismissed or his services would be terminated forthwith and the company was at liberty to use its discretion to determine payment of any entitlements due the Plaintiff. (d) He was to be paid a salary in addition to bonus and annual increments based on management efficiency appraisal exercise, less normal monthly deductions such as social security, income tax. \r\nExhibit “B” or “3” therefore was to regulate Plaintiff’s employment with the 1st Defendant and so constitutes Plaintiff’s contract of employment.  \r\nBy Exhibit “C”, a memo written on the letterhead of 1st Defendant by the 2nd Defendant to the Plaintiff, dated 1st January, 2010, a change in the salaried position of the Plaintiff from salary to a \r\n11 \r\ncommission on sales was confirmed to the Plaintiff.  Exhibit “C” stated in relevant terms as follows:  \r\n“Dear Galton, This is just to reiterate what we discussed earlier at the general meeting that as part of the ongoing reorganization … your remuneration has been converted from salary to commission on sales”. (Emphasis added)  \r\nFrom this memo, the decision to convert salaries to commission was taken at a general meeting, which meeting presumably some of the employees of the 1st Defendant must have attended.  This fact is corroborated by the testimony of the 2nd Defendant during cross-examination on 10th March, 2016 as follows:  \r\n“Q: You changed his status from a salaried worker to someone who now earns commission on sales, is that not correct? A: Yes.  There was a memo to that effect. Q: So you would agree with me that after that memo he was no longer in employment with the 1st Defendant. A: That is not correct.  The memo was a follow up on the general meeting, not only with him but with the whole staff.  If he was not happy with the change of position, as a management staff, he could have communicated as such to the 1st Defendant.  But he never did.  He decided to vacate his post afterwards.”  \r\nThe question that I have to answer here, then, is whether or not this change in the Plaintiff’s employment condition was a unilateral act of the 1st Defendant?   \r\nThe basic conceptual framework for the individual employment relationship is provided by contract and governed by the fundamental principles of offer and acceptance.  The employer offers to employ a person under certain terms and conditions and if the person finds those terms acceptable, he accepts the employment.  Now, in the course of the employment, can the employer without the consent of the employee change the terms and conditions of the employee’s contract of employment?    \r\nThe Labour Act is silent on the conditions under which an employee’s terms and conditions can be changed.  At common law, however, the general rule is that an employer is not permitted to unilaterally amend the terms of an employment contract with an employee as this would constitute a breach of contract. See the case of ROBERTSON v. BRITISH GAS CORPN [1983] ICR 351. If he does, the employee can choose to accept the breach of the contract (thus terminating the \r\n12 \r\nagreement), or accept the change, or remain in the employment but make it clear to the employer that he does not accept the change and claim for his original benefits.   The foregoing statement of the common law is reiterated at page 274 of the book LABOUR LAW by Simon Deakin and Gillian S. Morris, Butterworths, 1998 2d ed as follows:  \r\n“The employer’s refusal to abide by the agreed contract terms is, then, almost invariably a repudiatory breach of contract, which the employee has the option to accept, bringing the contract to an end; or he may alternatively affirm the contract by remaining in employment.  This, in itself, does not amount to agreement to vary the contract terms in the employer’s favour.  In particular, if the employee makes his disagreement clear, there can be no possibility of variation.  The employee can remain in employment and claim wages or salary at the rate provided for in the contract; a claim in debt for accrued wages or in damages for the employer’s breach of contract, can be made, and a declaration granted with respect to the future performance of the contract”.   See also the case of MORRIS v. CH BAILEY LTD [1969] 2 LLOYD’S REP 215.   It is the position at common law, from the above, then, that silence by the employee in response to the change, may disentitle the employee from later denying the legality of the variation.  See Grogan J ''Workplace law'' 6th ed (2001) at 36.  \r\nThe common law provides certain exceptions to the general rule stated earlier.  It further states that if the change does not amount to a material variation of the employee''s terms and conditions of employment the employer may implement it unilaterally.  However, if the change is a material modification of the employment contract, such as an increase in working hours, an employer is obliged to obtain the employees'' consent by persuading the employees to agree to such variation else he may be in breach of the employment contract.  See the South African case of A MAUCHE (PTY) LTD VA PRECISION TOOLS v NUMSA & 4 OTHERS, (1995) 161 ILl 655 (LAC) where Myburgh JA held that an employer''s instruction to its workers to operate two machines instead of one did not constitute a unilateral variation of the terms and conditions of employment.   \r\nThe LABOUR LAW, ibid, at 275 further restates another relevant exception to the general rule as follows:  \r\n“Moreover, if the employer can show that there is a good business reason for seeking to change the contract terms such as the need to enhance flexibility or efficiency of work organisation or even, simply, to make savings in response to a fall in external funding or in demand for its products, any dismissal flowing from the refusal of the employee to accept the new terms is likely to be potentially fair…”. \r\n13 \r\n  And this principle was applied in the case of CATAMARAN CRUISERS LTD v. WILLIAMS [1994] IRLR 176.  \r\nIt is evident from the record that the decision of management of the 1st Defendant to vary the terms and conditions of employment of its staff was a strategy to improve the economic fortunes of the company.  I view the variation in the salaried position of the Plaintiff from salary to a commission on sales to be a material change in the employment contract of the Plaintiff.  Before implementing this decision, however, management of the 1st Defendant did not act unilaterally; it engaged the affected staff, including the Plaintiff, in discussions evidenced by the general meeting it held to discuss this issue at which the Plaintiff was present and participated in same.  Plaintiff was therefore aware of the decision that was taken to change the terms of his employment contract as well as the other staff members.  If the Plaintiff was not in favour of the said variation, he had a duty to communicate this to his employer.  \r\nAssuming for a moment that Plaintiff was not given an opportunity to voice out any complaints he might have had at that general meeting regarding a change in his salaried position, he had ample opportunity to do so in writing when he was served with Exhibit “C”, the memo which reiterated the earlier decision taken by the management to change the terms of his employment contract.  It is evident from the record that the Plaintiff did not respond to this memo.  He simply walked away from his job and never came back.  By remaining silent and not responding to the decision of the management to vary the terms and conditions of his employment the Plaintiff is now disentitled from denying the legality of the variation.   \r\nI find that the change in the terms and conditions of Plaintiff’s employment which changed Plaintiff’s position from a salaried employee to one earning commission on sales, assuming it was even a unilateral act of the 1st Defendant, was not an act that was done without consulting the affected employees.  It was also an act that was necessitated by the need of the 1st Defendant to remain economically viable.  In effect, the variation in the Plaintiff’s employment conditions did not amount to wrongful dismissal of Plaintiff from his employment by the 1st Defendant.  \r\nIt is the case of the Defendants that following this decision of the management of the 1st Defendant, Plaintiff absented himself from work without lawful permission starting from the month of December, 2009 and he failed to also respond to Exhibit “C”.  This action or inaction of the Plaintiff, according to the Defendants, led the 1st Defendant to terminate Plaintiff’s employment summarily effective 31st January, 2010 by letter dated 1st December, 2010.  See Exhibit “7”, which states in relevant part as follows: “Galton Nartey Dear Sir, Letter of dismissal \r\n14 \r\nManagement has noted with deep regret [sic] your absence from duty without lawful permission since December, 2009.  Management views your conduct as vacating your post or duty.  It therefore notifies you in the company’s decision to dismiss you according[sic], effective 31st January, 2010”.  \r\nThe question that arises here is whether, the Plaintiff, from the evidence before me, in fact absented himself from work starting from the period of December 2009 till the 1st Defendant issued the letter of dismissal dated 1st December,  2010, a period of over a year.  \r\nPlaintiff testified on 23rd March, 2015, when he opened his case that on receiving Exhibit “C”, dated 1st January, 2010, he did not continue with the employment and rather took the matter to the Labour Commission.  Plaintiff by this testimony is therefore saying that he worked through the month of December, 2009 and his last day at work was 1st January, 2010 when he may have presumably been served with Exhibit “C”.  So, by his own admission, after 1st January, 2010 up till the effective date of his termination, 31st January 2010, Plaintiff did not report to work.   \r\nNow, what about the month of December, 2009, did the Plaintiff work at all in that month as he claims? \r\nBelow is a reproduction in part of the exchange between Counsel for the Defendants and the Plaintiff during cross-examination of the Plaintiff: \r\n“Q: Let’s go to 2009.  Take a look at Exhibit 7, dismissal letter … So you agree with me that because you absented yourself from work in December, 2009 you worked for 11 months that is from January to November. A: That is wrong.  I worked throughout the year. Q: Did you rebut the 1st Defendant’s assertion in Exhibit “7” that you absented yourself from work in December, 2009 by any reply to that letter? A: No, my Lord. Q: So, how do you want the Court to believe you that you worked in December, 2009 which is at variance with the 1st paragraph read in Exhibit “7”? A: I worked and I was paid at the end of December.” \r\nIf the Plaintiff worked in December 2009, as he asserts, the onus is on him to prove this assertion.  See supra, the general rule that where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof as applied in the cases of BANK OF WEST AFRICA LTD. v. ACKUN and ABABIO v. AKWASI III.   \r\nI have reviewed the record before me and I find no evidence therein to support a finding that the Plaintiff worked and was paid in December, 2009.  Such evidence could have been in the form of his pay slip, a bank counter deposit slip or even the Plaintiff’s bank account statements covering \r\n15 \r\nthat period in question or the testimony of any of his former colleagues.  The only evidence I have is that of Plaintiff’s testimony which is not corroborated.  Being guided by the holding of the court in the leading case of MAJOLAGBE v. LARBI [1959] GLR 190 which supports the principle that when a party makes an averment in his pleading capable of proof in a positive way and the averment is denied, that averment can be sufficiently proved by testimony on oath supported by some corroborative evidence, I find that Plaintiff’s unsupported testimony that he worked in December 2009 is not believable.  See further the cases of KLUTSE v. NELSON [1965] GLR, 537, SC and ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. \r\nI therefore find that on the evidence, the Plaintiff willfully and deliberately absented himself from work commencing December 2009 without any lawful excuse. \r\nAccording to his Lordship, Dr. Seth Twum, JSC, in the case of KOBEA AND OTHERS v. TEMA OIL REFINERY; AKOMEA-BOATENG AND OTHERS v. TEMA OIL REFINERY (CONSOLIDATED), [2003-2004] 2 SCGLR 1033 at 1039, 1040,  \r\n“… an employer is legally entitled to terminate an employee’s contract of employment whenever he wishes and for whatever reasons, provided only that he gives due notice to the employee or pay him his wages in lieu of notice.  He does not even have to reveal his reason, much less to justify the termination.” \r\nDid the fact of absenting himself from work entitle the 1st Defendant to terminate the Plaintiff’s employment? \r\nThe parties are agreed that the relationship between the Plaintiff and the Defendants regarding the employment of the Plaintiff was governed by Exhibit “B”, Plaintiff’s letter of appointment which evidenced the employment agreement between the parties.  Exhibit “B” makes provision for situations where any of the parties may terminate the employment agreement. It provides that after probation, either party may determine the agreement at any time on giving the other party one month’s prior written notice  \r\nHaving held earlier that Plaintiff willfully and deliberately absented himself from work commencing December 2009 without any lawful excuse, Plaintiff is in breach of the provisions of his employment contract.  The onus is therefore on the Plaintiff to prove that there were extenuating circumstances which if considered would justify his absence from work.  \r\nFrom the record, I find that the only such circumstance alluded to by the Plaintiff is his testimony that he refused to report to work after he received Exhibit “C” and rather filed a complaint with the Labour Commission.  Is this a reasonable justification for absenting himself from work?  Plaintiff, however, did not provide the Court with any evidence setting out the nature of the claim he put before the Labour Commission.  This Court cannot therefore ascertain from the record \r\n16 \r\nwhether he even put in a claim for wrongful termination or unfair dismissal before the Labour Commission.  That notwithstanding, in my opinion, after filing the complaint, the Plaintiff should have continued with his employment while the Labour Commission was in the process of adjudicating his claims.  It was rather imprudent on the part of the Plaintiff, in my opinion, to neglect to communicate his complaints regarding the variation in his employment terms and conditions to his employer before running to the Labour Commission to file his complaint and thereafter, refuse to report for work not knowing how the Labour Commission’s adjudication would turn out.  \r\nI therefore find that in the light of the terms of the Plaintiff’s employment contract, it was the Plaintiff who terminated his own employment contract.  Plaintiff, by his conduct in refusing to report to work in December, 2009 is deemed to have impliedly resigned from his job.  He effectively terminated his employment contract by his absence from work and the 1st Defendant, therefore, was not even required to issue Exhibit “7” to dismiss him.  \r\nThe Plaintiff asked for damages for unfair termination arising from an alleged breach of his employment contract.  Generally, a court is enjoined to award damages in the event of a breach of a contract with the objective of placing the injured party or the innocent party, as far as money can do it, in the position he would have been in had the breach not occurred.  See the case of ROYAL DUTCH AIRLINES (KLM) AND ANOTHER v. FARMEX LTD. [2 G.L.R] 623, S.C.  Having held that the termination of the contract of employment was lawful, breach of contract does not arise and Plaintiff is not entitled to any award of damages.  \r\nSSNIT Issue  \r\nI will now deal with the Plaintiff’s claim for social security contributions due him and unpaid by the Defendants to SSNIT.  \r\nUnder Section 70 of the Labour Act, an employer may, with the consent of the worker, deduct from the remuneration of the worker, any amount due from the worker in respect of contributions to any provident, pension, or other fund or scheme agreed to by the worker.  Additionally, by Section 3 of the National Pensions Act, an employer of an establishment is required to deduct from the salary of every worker in the establishment immediately at the end of the month, a worker’s contribution of an amount equal to five and half per centum of the worker’s salary for the period, irrespective of whether or not the salary is actually paid to the worker. \r\nIt is the case of the Defendants that the 1st Defendant owed the Plaintiff only one (1) month of social security contribution in 2005 because although the Plaintiff was employed from February 2, 2005, he was on probation for 3 months up till April 2, 2005.  The submission by the Defendants is that an employee who is on probation is not entitled to social security contributions until his employment is confirmed after the probationary period.  \r\n17 \r\nSection 211 of the National Pensions Act defines a worker as follows:  \r\n“worker” includes a person who is employed for salary in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets his salary, directly or indirectly from the employer, and any person employed by or through a contractor in or in connection with the normal work of the establishment, who is (a) employed in this country but not as a member of the crew of any ship; or (b) employed as a permanent resident of Ghana, (i) as a member of the crew of a ship, the owners of which have an office or agents in Ghana; or  (ii) outside Ghana but employed by an employer in Ghana. \r\nFrom the above, the position of the Defendants is not the correct position of the law. In respect of social security contributions, the National Pensions Act makes no such distinction between a worker on probation and one whose employment has been confirmed.  \r\nI therefore hold that the 1st Defendant owes the Plaintiff four (4) months in social security contributions and not one (1) month as claimed by the Defendant in the year 2005. \r\nSecondly, the Plaintiff claims that the 1st Defendant owes him four (4) months social security contributions for the year 2009.  According to him, he worked for twelve (12) months in 2009 and Exhibit “D” shows payment of eight (8) months social security contributions. The Defendants however submit that the 1st Defendant owes only three (3) months because the Plaintiff worked for eleven (11) months and not twelve (12) months in 2009.  Having held earlier that there is no evidence that the Plaintiff worked in December 2009, I agree with the Defendants and hold that the 1st Defendant owes the Plaintiff three (3) months social security contributions. \r\nLeave Entitlement Issue \r\nI now turn my attention to the issue of whether the Plaintiff was denied leave and if so, for how long? \r\nIt is Plaintiff’s claim that he was not granted leave for the period he worked with the 1st Defendant, which period will be deemed to commence from 2nd February, 2005 (See Exhibit “A”) till February, 2007 when the Plaintiff resigned from Classfam Pharmacy, resuming in July 2007 and ending in November, 2009 (as I have held earlier that the Plaintiff terminated his employment contract in the month of December, 2009) totaling a period of four (4) years and four (4) months.  The Defendants, of course, deny this allegation.  However, they provided the court with no evidence to corroborate their denial.  Indeed, by Section 27 (2) of the Labour Act, the 1st Defendant is required to keep a record showing, (a) the date of employment of each worker employed by the \r\n18 \r\nemployer and the duration of the annual leave to which the worker is entitled, (b) the dates on which the annual leave is taken by each worker, and (c) the remuneration received by each worker in respect of the annual leave.  And by Section 27(1) of the Labour Act, the 1st Defendant is further required to give each worker, as much as possible, notice of the date of commencement of the annual leave, at least thirty (30) days before the worker takes the leave. \r\nIt stands to reason that all these reporting requirements on annual leave are the duty of the employer to perform.  The Defendants therefore by law are deemed to have this information in their possession and should have provided the court with same.  The onus of proof that the Plaintiff did take his annual leave during his employment is on the Defendants.  Simply denying the allegations of the Plaintiff that he never took his annual leave while in the employ of the 1st Defendant does not discharge the onus on the Defendants to prove that the 1st Defendant carried out its statutory duty under the Labour Act.  I will apply the principle in the case of MAJOLAGBE v. LARBI, supra, and find that the uncorroborated denials of the Defendants is not believable and rather it is more probable than not that the Plaintiff never took his annual leave while he was in the employ of the 1st Defendant.  By Section 30 of the Labour Act, the termination of the Plaintiff’s employment is not to affect his leave entitlements earned, if any. \r\nI find that Plaintiff is entitled to not less than fifteen (15) working days’ leave with full pay in each year that he worked for the 1st Defendant continuously by Section 20(1) of the Labour Act.  The law defines the expression “full pay” to mean the worker’s normal remuneration, without overtime payment, including the cash equivalent of a remuneration in kind.  See Section 20 (2) of the Labour Act.  The Plaintiff is therefore entitled to fifteen (15) working days’ full pay for the four (4) years and four (4) months that he worked for the 1st Defendant, as follows:   \r\n1. Fifteen days’ full pay at ¢1,600,000.00, (equivalent to GH¢160) per month times the period of two (2) years from February 2005 to February, 2007, totalling GH¢160.00 2. Fifteen days’ full pay at GH¢300.00 per month times the period of two years (2) and four (4) months from July 2007 to November, 2009 totalling GH¢325.00 \r\nThe Plaintiff is therefore entitled to be paid GH¢ 485.00 in annual leave entitlements by the 1st Defendant. \r\nNegligence Issue  \r\nI now turn my attention to the counterclaim filed by the Defendants and deal with the issue arising therefrom, as to whether there was any financial loss incurred by the Defendants and whether Plaintiff was liable for that loss. \r\nThe elements of negligence are that a person who is claimed to have been negligent must owe a duty of care to the claimant, the person must have breached the duty of care that he owes to the \r\n19 \r\nclaimant, and the claimant must suffer damage as a result of the person’s breach of his duty of care.  \r\nIn ANN v. MERTON LONDON BOROUGH COUNCIL, (1978) AC 1004 at 1027, Lord Wilberforce laid down two critical tests for establishing a duty whenever there is a breach of the duty.  He said: “. . . the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist.  Rather the question has to be approached in two stages.  First, one has to ask whether, as between the alleged wrongdoer and the person who suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises.  Secondly, if the first question in answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty of the class of person to whom it is owed or the damage to which a breach of it may give rise.”  \r\nAlso, Section 11 of the Labour Act states the duties of workers as follows:  \r\n“Without prejudice to the provisions of this Act, the duties of a worker in a contract of employment or collective agreement, include the duty to: (a) work conscientiously in the lawfully chosen occupation; (b) report for work regularly and punctually; (c) enhance productivity; (d) exercise due care in the execution of assigned work; (e) obey lawful instructions regarding the organisation and execution of the worker’s work; (f) take reasonable care for the safety and health of fellow workers; (g) protect the interests of the employer; and (h) take proper care of the property of the employer entrusted to the worker or under the immediate control of the worker.” \r\nIt is thus obvious that the Plaintiff owed a duty of care to the 1st Defendant, thus the first element of the principle of negligence is settled. The second and third elements are what this court has been asked to determine. \r\n20 \r\nThe basic rule in any negligence claim is that he who avers must prove. See the cases of BANK OF WEST AFRICA LTD. v. ACKUN and ABABIO v. AKWASI III, supra.  CHARLESWORTH’S LAW OF NEGLIGENCE, 2nd ed., p. 23 states that: \r\n"The party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales and does not satisfy the court that it was occasioned by the negligence or default of the other party he cannot succeed."  It is up to the 1st Defendant, then, to prove, on the balance of probabilities, that the Plaintiff was negligent. The 1st Defendant must therefore prove that the Plaintiff breached his duty of care and this breach resulted in the loss in its stock to the value of GH¢ 12,349.27.    \r\nDid the Defendants prove that the Plaintiff breached his duty of care? According to Alderman B, in BLYTH v. BIRMINGHAM WATERWORKS (1856) 11 EXCH. 781.  “Negligence is the omission to do something, which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do.”   \r\nIn general, it is required that in negligence cases, the defendant must measure up to an objective standard.  The question the court must ask is: “What should the reasonable person have done, or not done, in the circumstances of the case?” and not “What could the Defendant have done?” The legal standard is not dependent on the defendant but of “a man of ordinary prudence”, a man using “ordinary care and skill”, or a “hypothetical” man. See the following cases: VAUGHAN v. MENLOWE (1837) 3 BING NC 468 at475 per Tindal CJ, HEAVEN v. PENDER (1883) 11 QBD 503 at 507 per Brett MR., and KING v. PHILLIPS [1953] 1 QB 429 at 441; [1953] 1 ALL ER 617 at 623 per Denning L.J, CA.  \r\nTo prove that the Plaintiff breached his duty of care, the Defendants were required to submit evidence that showed the Plaintiff did not meet the objective test of a prudent and reasonable person in the performance of his duties.  From the record of proceedings, the Defendants did not adduce evidence to establish that the Plaintiff’s actions violated the objective test stated above. The Defendants instead chose to rely on the explanations the Plaintiff gave as the possible causes of the shortfall in the stock (See Exhibit “6”). The record of proceedings shows the following exchanges during the cross examination of the Plaintiff:   \r\n“Q: You were appointed at all material time that you worked with the 1st Defendant as the shop manager there is no dispute about that. A: That is correct \r\n21 \r\nQ: I will be right when I say that it was your duty to check all stocks for the 1st Defendant A: That is wrong Q: What does “stock” mean in relation to 1st Defendant? A: What I know stock refers to is products in a shop Q: What were the stocks of 1st Defendant? A: They were pharmaceutical products Q: At all material times how were these stocks checked to ensure that there are no shortages A: We compare the stock input in the computer against the physical stocks Q: Who does this comparison when you say “we compare” in your last answer? A: “We” here meaning the staff Q: You mean you and the staff who worked under yourself A: Not only me and the staff but administrative manager and the account officers Q: You agree with me that in 2009 an audit report established that GH¢ 12,349.27 was recorded as shortage in 1st Defendant’s stock A: It was not an audit but stock taking Q: Take a look at this letter, please tell the Court the reasons you yourself attributed to the shortage in that colossal fire in Exhibit 6.  Plaintiff reads paragraph 1…. Q: Obviously pilfering means stealing A: Yes Q: I am putting it to you that as a manager of the 1st Defendant shop these reasons you gave for the shortage should be laid at your door step A: Not at all Q: I am putting it to you that all of it must be put at your door step A: That is wrong…”  \r\nApart from the above, the Defendants did not provide any other evidence to support their claim that the Plaintiff was negligent and therefore should be liable for the shortfall in the stock. There is no evidence that they even investigated further the reasons that the Plaintiff gave for the possible cause of the shortfall to determine whether the reasons did in fact cause the said loss of stock.  In effect, the Defendants case was limited to at best unsubstantiated allegations of theft and mismanagement levelled against the Plaintiff in their pleadings.    \r\nI find therefore that the Defendants’ case fails in so far as they failed to meet their burden to prove that the loss of stock was attributable to the Plaintiff.  The Defendants’ counterclaim therefore fails. \r\n22 \r\nCONCLUSION  \r\nIn conclusion, I find that the alteration of the Plaintiff’s contract of employment by the Defendants did not amount to unfair termination of Plaintiff’s employment with the 1st Defendant.    \r\nIn the circumstances, the Plaintiff is not eligible to an award of damages for unfair termination of his employment.    \r\nI find further that the 1st Defendant failed to pay seven (7) months of Social Security contributions on behalf of the Plaintiff. \r\nI find also that the Plaintiff is owed annual leave entitlements for the four (4) years and four (4) months that he worked for the Defendants, totaling GH¢ 485.00.  \r\nOn the Defendants’ counterclaim, I find that the Defendants failed to prove that the loss of stock in the amount of GH¢ 12,349.27 was as a result of the Plaintiff’s negligence.  \r\nORDER  \r\nAccordingly, Plaintiff’s reliefs (3) and (4) as endorsed on his amended writ of summons are hereby granted.  Judgment is entered for Plaintiff on these reliefs.  Reliefs (1) and (2) of the Plaintiff’s amended writ of summons are dismissed.   1st Defendant is hereby ordered to pay the seven (7) months of social security contributions of the Plaintiff to SSNIT.  Further, let the 1st Defendant pay the sum GH¢ 485.00, being the annual leave entitlements due to the Plaintiff from the period of four (4) years and four (4) months that he worked for the Defendants, commencing February, 2005 till February, 2007 when the Plaintiff resigned from Classfam Pharmacy, and resuming in July 2007 and ending in November, 2009.  \r\nI award costs assessed at GH¢ 5,000.00 in favour of the Plaintiff, against the 1st Defendant.       \r\n                   (Sgd) ……………………………………………… JUSTICE JENNIFER ABENA DADZIE JUSTICE OF THE HIGH COURT (COMMERCIAL DIVISION) \r\n23 \r\nCOUNSEL:   Amb. R.O SOLOMON, ESQ., OF R.O. SOLOMON CONSULTING, ACCRA, FOR PLAINTIFF CHARLES K. BENTUM, ESQ., OF AZINYO CHAMBERS, ACCRA, FOR DEFENDANTS   \r\nCASES REFERRED TO:  \r\nESSAH v. SOFO [1972] 2 GLR 301-304 TIMITIMI v. AMABEBE (1953) 14 W.A.C.A. 374 BANI v. MAERSK GHANA LIMITED [2011] 2 SCGLR, 800 TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882 TUTU v. GOGO [1969] CC, 76 BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 HUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398 ABABIO v. AKWASI III [1994-95] GHANA BAR REPORT, PART II, 74 SALOMON v. SALOMON & CO LTD [1896] UKHL 1 OWUSU v. R. N. THORNE LTD. AND ANOTHER [1966] GLR 90-92 MORKOR v KUMA (No. 1) [1999-2000] I GLR 721 – 740 ROBERTSON v. BRITISH GAS CORPN [1983] ICR 351 MORRIS v. CH BAILEY LTD [1969] 2 LLOYD’S REP 215. A MAUCHE (PTY) LTD VA PRECISION TOOLS v NUMSA & 4 OTHERS, (1995) 161 ILl 655 (LAC) CATAMARAN CRUISERS LTD v. WILLIAMS [1994] IRLR 176 MAJOLAGBE v. LARBI [1959] GLR 190 KLUTSE v. NELSON [1965] GLR, 537, SC  ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA KOBEA AND OTHERS v. TEMA OIL REFINERY; AKOMEA-BOATENG AND OTHERS v. TEMA OIL REFINERY (CONSOLIDATED), [2003-2004] 2 SCGLR 1033 ROYAL DUTCH AIRLINES (KLM) AND ANOTHER v. FARMEX LTD. [2 G.L.R] 623, S.C ANN v. MERTON LONDON BOROUGH COUNCIL, (1978) AC 1004 BLYTH v. BIRMINGHAM WATERWORKS (1856) 11 EXCH. 781 VAUGHAN v. MENLOWE (1837) 3 BING NC 468 HEAVEN v. PENDER (1883) 11 QBD 503 KING v. PHILLIPS [1953] 1 QB 429; [1953] 1 ALL ER 617 ', 'links/cases/Galton Nartey v  Classfam (GH) Ltd And Anor.pdf', 'Yes', '', '2016', 'high', '', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'INDL/53/11', '', '', 'High Court, Accra', '2016-06-06', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(603, 'CB BANK LTD  HIGH STREET  VRS   ATO KWAMINA ARHIN', 'JUDGEMENT   The Plaintiff is a bank operating from various branches in Ghana including the Agona Swedru and the Boundary Road, Accra branches.  The Defendant is the Managing Director of Rinacand Company Ltd., a limited liability company incorporated under the laws of the Republic of Ghana transacting business from its offices in Agona Swedru and Accra (hereinafter “Rinacand/the Company”).  \n', '../links/cases/GCB v. Ato Kwamina Arhin.pdf', 'Yes', '', '2016', 'High Court', 'JUDGEMENT   The Plaintiff is a bank operating from various branches in Ghana including the Agona Swedru and the Boundary Road, Accra branches.  The Defendant is the Managing Director of Rinacand Company Ltd., a limited liability company incorporated under the laws of the Republic of Ghana transacting business from its offices in Agona Swedru and Accra (hereinafter “Rinacand/the Company”).  \nIn the Plaintiff’s Statement of Claim, Plaintiff claims against the Defendant, as mortgagor and also in his personal capacity, the following reliefs: 1. An order for the judicial sale of the mortgaged properties described in the attached statement of claim in recovery of the judgment debt and cost awarded in favour of the Plaintiff in Suit No. C2/9/2011 entitled Ghana Commercial Bank Ltd. v. Rinacand Company Ltd. the repayment of which has been secured by the Defendant; 2. A further order for payment of any amount outstanding on the sale of the mortgaged properties; and 3. Cost of this suit. The material facts which gave rise to the matter before me are detailed as follows in the Plaintiff’s Statement of Claim and the testimony of its representative, Kwame Adana, who \n2  \nhas worked with the Bank for twenty-two years (22), twelve (12) of those years in the Risk Management Department, of which he is the Deputy Head and the officer responsible for loans recovery.  Rinacand, as a customer of the Plaintiff bank (then known as Ghana Commercial Bank Ltd.) obtained from the Plaintiff banking facilities which included four (4) facilities granted on various dates from April 2007 to June 2008.  By the mortgages listed below the Defendant, secured the repayment of the facilities granted to the Company: (a) Mortgage dated 25 September, 1990 in respect of house numbered G/96, Nkuben Street, Agona Swedru and registered as Land Registry No. 2173/1992 with file No. CR 596/91, marked into evidence as Exhibit A; (b) Mortgage dated 25 May 1993 in respect of land/buildings known as Plot No. 509 North Kaneshie Housing Estate, Accra, registered as Land Registry No. 3645/1994 with file No. AR/SHC/381/93; Exhibit B. (c) Mortgage dated 11 January 1996 in respect of Plot No. 82 Agona Swedru Residential Area registered as Land Registry No. 408/1999 with file No. CR1076/98, Exhibit C.  \nThe Company failed to pay the facilities as agreed and the Plaintiff instituted Suit No. C2/9/2011 entitled GHANA COMMERCIAL BANK LTD. v. RINACAND COMPANY LTD. in the High Court, Agona Swedru, for recovery of monies overdue on those facilities.  See Exhibits D and E.  On 19 April, 2012, the Company, represented by Counsel, submitted to judgment on the bank’s application for summary judgment (hereinafter, the “19 April, 2012 Judgment”).  The court entered judgment on behalf of the Plaintiff in the sum of GH&#8373; 1,629,765.50, interest thereon compounded at the Plaintiff’s prevailing interest rate as at the date of judgment from 31 July 2010 to the date of final payment, and cost of GH&#8373;162,927.55.  A copy of the judgment is marked into evidence as Exhibit F.  Rinacand made some efforts at paying off the judgment debt which efforts were deemed inadequate by the Plaintiff.    \nOn 8 May 2014, the Plaintiff made a demand on the Defendant as mortgagor to pay the judgment debt then standing at GH&#8373;4,764,898.32; notifying the Defendant of its intention to enforce its rights of judicial sale of the mortgaged properties under Section 18 of the Mortgages Act, 1972, NRCD 96.  See Exhibit K.  \nAccording to the testimony of Plaintiff’s witness, Rinacand Co. Ltd. had made total payments of GH&#8373;475,000.00, GH&#8373;200,000.00 of which was paid after the institution of the present suit.  See Exhibit O.  \n3  \nIt is Plaintiff’s case that it has given the Defendant and Rinacand sufficient opportunity and time to liquidate the judgment debt and cost but they have failed to do so.  Indeed, at the close of Plaintiff’s case during the trial, Plaintiff tendered into evidence, Exhibit P, a revised statement of account in which Plaintiff had reduced the Defendant’s liability by adjusting the interest rate from 33% to 25% having struck out the penal interest rate with the final liability of Rinacand Co. Ltd. now fixed at ¢5,263,307.23 as at 31 December, 2015.  \nIn his defence, the Defendant relied on his Statement of Defence and also tetified in his own behalf.  He substantially confirmed the general facts of the transaction as narrated by the Plaintiff but went further to state that the initial amount of the facilities granted him by the Plaintiff was in the amount of GH&#8373;750,000.00, which Rinacand took to execute government construction contracts awarded to it.  Due to the failure of the government to make prompt and full payments for the works done, the Company could not redeem the loans, leading to its current indebtedness to the Plaintiff bank.  However, according to Defendant, from his own resources, he has been able to liquidate GH&#8373;550,000.00 out of the total indebtedness of the company.  \nIt is the Defendant’s further case that the parties after the 19 April 2012 Judgment, entered into negotiations and compromised the said judgment and the Plaintiff cannot go back to enforce same.  According to the Defendant, in good faith and in furtherance to the said negotiation agreement, and to the knowledge of Plaintiff, he put up his property, Plot No. 509 North Kaneshie Housing Estate, Accra for sale to fulfill the terms of the compromised agreement.  He also testified that as at November, 2015, he was in talks with a potential buyer of the property which in 2014 was valued by HFC at One Hundred and Seventy-Five (175,000.00) USD taking into consideration the extensive additional construction works done to the property.  \nBased on these facts, the Defendant contends that he has not breached the terms of the negotiations with the Plaintiff; the Plaintiff is not entitled to judgment as endorsed on the writ of summons and should be ordered to withdraw the present action and go back to the negotiation table because the negotiations are still in force.  \nThe following issues were set down after pre-trial as material to the disposition of the suit: 1. Whether or not the judgment dated 19th April, 2012 has been compromised. 2. Whether or not the Plaintiff is entitled to its reliefs 3. Any other issues arising from the pleadings. \n4   \nI have reviewed the record of proceedings and the evidence adduced in this case extensively.  I have given my thoughtful consideration to the rival contentions put forward by the parties to the suit as well as the written submissions filed by both counsel on their behalf.   The first issue that I would like to resolve is whether or not the judgment dated 19th April, 2012 has been compromised by the parties? \nContrary to Defendant’s contention that the parties after the said judgment of 19 April 2012, entered into negotiations, which compromised the said judgment, Plaintiff’s witness testified that between 21 March, 2014 and 3 December, 2014, the several attempts at settlement made by both parties were inconclusive, evidenced in the correspondence between the parties marked into evidence as Exhibits H, J, J1, K, K1, L, M, N, and N1.     \nFrom the evidence of the record and the testimony of the parties, can it be deduced that there was a conclusive agreement between the parties herein to compromise the 19 April, 2012 Judgment?  An agreement to compromise a judgment will be enforced by our courts because public policy favours the resolution of controversies through compromise and settlement rather than litigation.  A compromise, afterall, fosters amicable, efficient and inexpensive resolutions of disputes.  \nIn ALEXANDER v. HANDLEY, 123 S.W.2d 379 (Tex. Civ. App. 1939), Justice Looney defined a “compromise” as “… an agreement between two or more persons who, to avoid a lawsuit, amicably settle their differences on such terms as they can agree on.  It is essential to a compromise that there be mutual concessions or yielding of opposing claims …”.  My clear thinking, then, is that, for the 19 April, 2012 Judgment to have been compromised, the parties to this suit must have entered into some form of mutual agreement to concede or yield their opposing claims or part of those claims for the purpose of bringing an end to the litigation between the Plaintiff and Rinacand.  For a compromised agreement to be enforced by the court, there must be a final agreement between the parties to enter into such an agreement. In stating thus, I am reminded of the case of DAWSETT v. CASHMAN, 2 Haw. App. 77, 82 (Haw. Ct. App. 1981) where it was held that an agreement to compromise was in the nature of any other contract, requiring an offer and acceptance, consideration, and parties who have the capacity and authority to agree as they do.   \n5  \nThe following events are of notable import here.  By Exhibit H, Rinacand wrote to Plaintiff’s counsel initiating the proposal for payment of its debt by specified installments.  This proposal was rejected by the Plaintiff through Exhibit J.  Rinacand, subsequently, made further proposals of payment terms evidenced in Exhibits L and M.  In particular, by the terms of Exhibit M, it sought to apply payments it had made over the years to what it described as the principal and offered to conclude payment of the debt arrived at according to its own calculations by May 2016.  Excerpts of Defendant’s subsequent proposals contained in Exhibit L as follows: “Dear Sir, RE: INDEBTEDNESS OF RINACAND COMPANY LTD - A COUNTER PROPOSAL We refer to your letter dated 8th May, 2014 informing us that Ghana Commercial Bank Limited has rejected our proposal for the retirement of the outstanding balance on the loan contracted from the bank. … In pursuit of this abiding objective, we wish to submit the following proposal for the consideration of the Bank.  ... Hopefully, the bulk payments to be made in July and December, 2014 would retire the outstanding balance on the principal amount …” And in Exhibit M, Defendant further proposed the following: Dear Sir, PROPOSAL FOR INTEREST PAYMENT Further to our proposal on principal payment dated 3rd June, 2014, we wish to make proposals for the payment of the interest so far accrued on the facilities.  … We are in process of selling one of our fixed assets and expect the conclusion of documentation by the end of August…”.  \nThese proposals were however rejected by the Plaintiff and its decision conveyed by its counsel’s letter to Rinacand dated 18 September, 2014; See Exhibits N and N1.  According to Plaintiff’s evidence, in Exhibit N1, Plaintiff on 5th August, 2014, made a counterproposal to Rinacand indicating its preparedness to accept the payments stipulated therein in full liquidation of the debt, accrued interest and legal fees.    \nBefore I go further, I will set out the portion of Exhibit N1 which, according to the Plaintiff, amounted to a rejection and a counter-offer.  It reads as follows:  \n“Dear Sirs, \n6  \nRE: GHANA COMMERCIAL BANK LIMITED VRS RINACAND COMPANY LIMITED & ANOTEHR PROPOSAL FOR INTEREST WAIVER AND PAYMENT BY INSTALMENTS We advise that the Bank has considered the above-named Defendants’ Repayment Proposal dated 25th June, 2014 and declined same. However, the Bank has made a Counter-Offer as detailed below: ….. iii. The Defendants should accept the terms and conditions in writing within seven (7) days from the date of advice. iv. The Bank shall waive accrued interest of GH¢3,023,438.47 (as at 30/06/2014) and any subsequent interest. v. the waived interest of GH¢3,023,438.47 (as at 30/06/2014) shall be reinstated and the Judgment executed if they fail to accept the offer within seven days from the date of advice or failure to make the payments as indicated above without recourse to them. vi. The Security held by the Bank shall be discharged only after outstanding Guarantees issued in favour of the Ministry of Roads & Transport and the Ministry of finance & Economic Planning (under which the Defendants are liable) have been cancelled by the Bank. vii. The arrangement shall be reduced into Terms of Settlement and filed in Court.”  \nIt is noted that the proposal made by the Defendant to the Plaintiff bank is an offer which Plaintiff was required by law to accept.  In order to qualify as an acceptance, the response of the Plaintiff must be a final and unqualified assent to the terms proposed in the offer.  To conclude the contract, the Plaintiff bank’s response must be an absolute and definite acceptance of the terms proposed in the offer and must leave no room for doubt.  However, from the evidence, it has been established that the Plaintiff bank made a counter-proposal.  A counter-offer or proposal constitutes a rejection of the original offer and amounts to the making of a new offer by the Plaintiff bank.  Furthermore, a counter-offer operates to destroy or nullify the original offer such that it cannot subsequently be accepted.  See the English case of HYDE v WRENCH (1840) 3 Beav. 334.    I have examined the evidence before me and I do not find any evidence put in by the Defendant to show that the Company accepted the counter-proposal of the Plaintiff.  According to Plaintiff’s case, neither Rinacand nor the Defendant had responded to its counter-proposal as at 3 December, 2014 when Plaintiff issued the present writ, even though there was evidence that Defendant sent one Jiffy Peter Aidoo to collect Exhibits N \n7  \nand N1 from its counsel’s office.  Thus, what is on record demonstrates that the Plaintiff rejected the offer made by the Company in its earlier proposal for which Exhibit N represents.  This offer, having been rejected, cannot be relied on by the Defendant to say that there was a compromise of the 19 April 2012 Judgment.     Having regard, therefore, to all the surrounding circumstances of the case, and particularly to Exhibits L, M, N and N1, as well to the previous negotiations that had already taken place between the Defendants and the Plaintiff, it seems to me that the uncontroverted evidence of the record supports a clear finding that Defendant’s offers to compromise the 19 April 2012 Judgment were never accepted by the Plaintiff nor did Defendant also accept Plaintiff’s counter-proposal.  The Defendant’s view that Plaintiff’s last counter-proposal was still open even after 3 December, 2014, is not supported by the evidence of the record.  Defendant was required by the terms of Exhibit N and N1 to accept the counter-proposal within seven days of their receipt.  Defendant never availed himself of this opportunity in writing nor in deed by making payments to amortise the loan as prescribed therein.  There was, therefore, no offer and acceptance to constitute a valid agreement or contract to compromise the 19 April 2012 Judgment.    \nI now turn my attention to the issue of whether or not the Plaintiff is entitled to its claim.    \nThe general rule is that where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof, whether it is the Plaintiff who asserts a fact or the Defendant who makes a counterclaim.  See BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 where the court held that the onus of proof in civil cases depends upon the pleadings and the party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. The court applied the case of HUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A. See also FAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 which also held that “… [t]he onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led”.  The Evidence Act, 1975 (NRCD 323) encapsulates the foregoing principle in Section 14 where it uses the term the “burden of persuasion” and provides that the asserting party must prove each fact of his claim, the existence or non-existence of which is essential to the claim or defence he is asserting.   \nSection 12(1) of NRCD 323 provides a further element to the above stated general rule to the effect that in a civil case, such as the one in question, the burden of persuasion requires \n8  \nproof by a “preponderance of probabilities” defined in section 12(2) as “that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the evidence of a fact is more probable than its non-existence”.     \nFrom the foregoing, therefore, it is clear that the Plaintiff, to succeed on its claims, it assumes the onus of proving its assertions against the Defendant.  \nIt is the Plaintiffs’ case that the Defendant mortgaged his personal properties to secure payment of the judgment debts of Rinacand based on which it is entitled to an order for the judicial sale of the said mortgaged properties and a further order for payment of any amount outstanding on the sale of the mortgaged properties.    \nTo prove its claim, Plaintiff provided the court with copies of the mortgages covering these properties all of which were registered with the Land Registry under the Land Registry Act, 1962, (Act 122) in compliance with Section 3 of the Mortgages Act, 1972, (NRCD 96).  See Exhibits A, B, and C.  Plaintiff also provided the court with a copy of the 19 April 2012 Judgment, Exhibit F, which established the judgment debt entered against Rinacand in favour of the Plaintiff and Exhibit K, evidencing Plaintiff’s notice to Defendant of its intention to enforce its rights of judicial sale of the mortgaged properties under Section 18 of the Mortgages Act, 1972, NRCD 96; Exhibit G, comprising all payments made by Rinacand since Plaintiff got judgment in the High Court, Agona Swedru, in the amount of GH¢455,00.00.  Finally, Plaintiff also provided the Court with Exhibit P, a revised statement of accounts fixing the final liability of Rinacand at ¢5,263,307.23 as at 31 December, 2015 as opposed to ¢7,635,378.55 at the end of 31 November, 2015 evidenced in Exhibit G.  \nPlaintiffs’ documentary evidence was corroborated by the testimony given on oath to this court by the Plaintiff’s representative, which was not controverted by the Defendant during the trial.    \nIndeed, in his Statement of Defence, Defendant did not dispute the fact that Rinacand was indebted to the Plaintiff.  The Defendant, however, claimed that he had, out of his own personal resources, repaid GH¢550,000.00 of the loan, in contradiction to the testimony of Plaintiff’s representative that Defendant had paid GH¢455,000.00.  Yet Defendant failed to adduce any evidence in support of this assertion.  The court is therefore left with no \n9  \noption than to believe the testimony of the Plaintiff’s representative which was corroborated by the documentary evidence tendered into evidence by the Plaintiff.    \nIn making a finding on the foregoing issue, I am further guided by the holding of the court in the leading case of MAJOLAGBE v. LARBI [1959] GLR 190 which supports the principle that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, that averment can be sufficiently proved by testimony on oath supported by some corroborative evidence.  See further the cases of KLUTSE v. NELSON [1965] GLR, 537, SC and ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA.  \nFrom the evidence adduced in this case and the testimony of Plaintiff’s representative, I am satisfied that it is more probable than not that the Defendant has paid GH¢455,000.00 of the outstanding debt out of his own personal means, leaving ¢5,263,307.23 as the balance due and owing.    \nThe question that arises now and which requires my attention is whether or not Plaintiff is entitled to an order of judicial sale of the personal properties of the Defendant used in securing the loan facilities.    \nA review of Exhibits A, B and C reveals that the recitals of all three mortgages, in similar fashion, commence as follows: “This Mortgage is made ….Between ATO KWAMINA ARHIN ….(hereinafter called “the  Mortgagor” … of the first part AND RINACAND COMPANY LIMITED acting by its Managing Director – ATO KWAMINA ARHIN  … (hereinafter called “the Customer”) of the second part AND GHANA COMMERCIAL BANK … (hereinafter called “the Bank” …) acting by GLADYS ATTOBRAH (MRS.) … of the third part.”   \nThese recitals conclusively establish that the Defendant, as Mortgagor, personally mortgaged his personal properties to secure the loans advanced by Plaintiff bank to Rinacand, of which he was and still is the Managing Director.   Counsel for Defendant, in his written address, argues that Defendant, as Managing Director of Rinacand, is only an employee and for that matter an agent, who cannot be held vicariously liable for the actions and inactions of his principal under the rules.  Furthermore, defence counsel argues that the Defendant should not be made to carry the liabilities incurred by the Company, which is a completely different legal personality from \n10  \nthe Defendant and he cites the Supreme Court case of MORKOR vs. KUMA (1999 – 2000) 1 GLR 721 - 740 in support of this argument.  \nI must say here, that I cannot accept the arguments proffered by Counsel for the Defendant as agency does not arise in this matter at all.  The Defendant’s role as managing director and an officer of the Company is totally separate and apart from his personal obligations that arise from the fact that he used his own personal properties to secure the loans taken out by the company.  The Defendant, in this case, is not being sued on acts he may have undertaken on behalf of the Company.  It is his personal guarantee of the loans granted the Company that Plaintiff seeks to enforce.   \nIn the Supreme Court case of MORKOR v KUMA (No. 1), supra, relied on by defence Counsel, it was held that in general, unless there are circumstances justifying the lifting of the veil of incorporation, the court cannot hold a director or an officer of a limited liability company jointly liable with the company for its debts.  That case involved a sale transaction between the respondent and the first Defendant, a limited liability company. The appellant had been sued jointly with the first Defendant for the only reason that she was the Chief Executive, majority shareholder and a director of the company.  On the issue of whether the appellant had been properly joined to the suit, the court held that  “… the first Defendant was a corporate being with a capacity separate, independent and distinct from those constituting it or employed by it ... and the appellant would be a proper party to the suit only if a specific personal liability were established against her or the veil of incorporation could be lifted to make her acts synonymous with those of the first Defendant or vice versa.  [Emphasis added]. Thus, flowing from the above quote, even from the MORKOR v KUMA (No. 1) case, where specific personal liability could be established against the appellant in that case, she would have been held liable for the debts of the company.    \nPlaintiff has succeeded in establishing the fact that it has a judgment against Rinacand of which the Defendant was the Managing Director.  Plaintiff has also established the fact that the Defendant mortgaged his personal properties to secure the facilities and Rinacand failed to satisfy the judgment debt.  In such a situation, specific personal liability has been established against the Defendant in this case flowing from his personal guarantee to pay off the loans should the Company fail to do so and the law will allow the Plaintiff to fall on that personal guarantee or security provided by the Defendant, without even having recourse to lifting the veil of incorporation.  \n11  \nI therefore find that the Plaintiff has met its burden of proving that it is entitled to its reliefs.  \nCONCLUSION  \nFrom the foregoing, I am satisfied that the Plaintiff’s action succeeds and I award costs in the sum of GH¢80,000.00 in favour of the Plaintiff against the Defendant.    .   \n                                               (Sgd)  JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION) COUNSEL:     R.O. SOLOMON, ESQ., OF R.O SOLOMON CONSULTING, COUNSEL FOR PLAINTIFF CHARLES ASIEDU, ESQ., OF DADZIE, AMPOFO AND ASSOCIATES, COUNSEL FOR DEFENDANT  \nCASES REFERRED TO:   ALEXANDER v. HANDLEY, 123 S.W.2d 379 (Tex. Civ. App. 1939), \nDAWSETT v. CASHMAN, 2 Haw. App. 77, 82 (Haw. Ct. App. 1981) \nHYDE v WRENCH (1840) 3 Beav. 334. \nBANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 \nHUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.  \nFAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 \nMAJOLAGBE v. LARBI [1959] GLR 190  \nKLUTSE v. NELSON [1965] GLR, 537, SC \nZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. \nMORKOR vs. KUMA (1999 – 2000) 1 GLR 721 - 740 ', 'ENNIFER ABENA DADZIE, J', 'Civil', '', 'BFS/334/2014', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(604, 'GEORGINA MENSAH   VS.   BENJAMIN ESSAH  ', '', '../links/cases/GEORGINA MENSAH VS BENJAMIN ESSAH.pdf', 'Yes', '', '2016', 'High Court', ' By her Writ of Summons issued out at the Registry of the High Court, Accra on the 16th January, 2015, and the amended statement of claim filed on the 15th April, 2015, the claim of the Plaintiff against the Defendant is for: \r\n(1) General Damages of GH&#8373;500,000.00 for causing the death of Isaac Nuamah, her son under the below Heads. (a) Compensation for two surviving children (b) Compensation for surviving mother  (c) Compensation for father (d) Compensation for two siblings (e) Compensation for pain and suffering (f) Loss of expectation of life (g) Loss of prospective dependency (h) Funeral/Hospital expenses (i) Loss of earnings \r\nPer the records, the defendant per Counsel entered conditional appearance on the 11th February, 2015, and filed Defence on the 18th March, 2015, and further with an amended statement of Defence on the 16th June, 2016.    At the close of pleadings and at the level of application for Directions the issues set down for trial are; \r\n \r\n2 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\n(a) Whether or not the defendant was negligent in this matter (b) Whether or not the negligence of the defendant caused the death of the late ISAAC NUAMAH (c) Whether or not the late ISAAC NUAMAH was contributorily negligent (d) Whether or not the doctrine of res ipsa Luquitor is applicable in this case (e) Whether or not the plaintiff is entitled to her claim; \r\nOn the 16th June, 2015, the defendant also filed the below additional issues:- \r\n(j) Whether or not the plaintiff has capacity to persue this case against the defendant  (ii) Any other issues arising out of the pleadings.  \r\nThe case of the plaintiff as told to the court on the 19th June, 2015, is that the accident victim and now deceased late Isaac Nuamah was her biological son and was born on the 25th November, 1981.   To support her claim she tendered in evidence of the late Isaac Nuamah’s Birth Certificate which was accepted in evidence as Exhibit ‘A’.   That on the 13th December, 2014, she went to the room of the late Isaac Nuamah, her son but he was not there.   That she therefore called his phone number and somebody picked it to inform her that late Isaac was knocked down by a vehicle the previous night at the Weija Block Factory Junction.  That she rushed to the said junction and was told that the person who knocked him down, who happened to be the defendant decided to carry him to Hospital and in the process the deceased fell from the bucket of the Pickup carrying him to the Hospital, which at the time was being driven by the defendant.   That there was nobody with him in the bucket at the time.    That the Defendant did not notice this and drove all the way to the Hospital only to detect that the deceased victim was even not in the bucket of his Pickup.  That in the course of transporting him to the Hospital, the late Isaac Nuamah, her son fell down and was later conveyed to the Police Hospital, Accra.  That she followed up to the said Police Hospital and identified the deceased as her son, who had been put in the mortuary.   That at the said Police Hospital she was given the Police Corpse Identification Card, the Coroners Form and the Death Certificate (which were already signed) and same were tendered and accepted in evidence as Exhibits B, B1 and B2 respectively.   It is \r\n \r\n3 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nfurther her case that, the Weija District Police gave her a Police Accident Report which she also tendered and same was accepted as Exhibit ‘C’. \r\nIt is further the case of the Plaintiff that, before the late Isaac Nuamah met his untimely death, he was a professional welder haven’t completed his Technical Education at Kumasi Technical Institute (KTI) and was given Certificates to that effect.   That he had also earlier on completed his J.S.S.   The said Junior Secondary School Certificate went in as Exhibit ‘D’ whilst his KTI Testimonials went in as Exhibit ‘E’. \r\nFurther that at the time late Isaac Nuamah died, he was not married but he had two children, namely Joseph Nuamah aged 11 years and Promise Nuamah also aged 4 years, and that they both attend school.   That the late Isaac Nuamah was responsible for the Educational and medical bills of his two children which responsibilities have shifted to her as the surviving mother of her late son, and so she takes care of them.    \r\nIt is further the case of the plaintiff that, she met the defendant after the funeral of her son who promised her a support in taking care of the children Nuamah left behind but never fulfilled that promise after one and half (1.5) years.    That the Defendant did not attend the funeral of her late son but sent a funeral donation of GH&#8373;800.00 in addition to GH&#8373;4,000.00 given to her earlier. \r\nIt is the case of the Plaintiff that, she made some expenses in the performance of her son’s funeral some of which were receipted.  These receipts were tendered and accepted in evidence as Exhibits F, F1, F2, F3 and F4.   Witness also tendered in evidence a copy of the Insurance Policy of the Defendant Vehicle which was also accepted as Exhibit ‘G’.   That after his death, the working tools of late Isaac Nuamah have been brought to her house and that the defendant has denied the fact that late Isaac Nuamah was her son.   \r\nPW1, Kofi Mensah Manzie, who for some reasons gave evidence on the 18th June, 2015 and earlier than the Plaintiff testified to the effect that, the late Isaac Nuamah was a grandson to him and a biological son to the Plaintiff, who happens to be his biological daughter.     \r\n \r\n4 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nIt is his case that, the said Isaac Nuamah is dead and died out of a motor accident he had which happened to be the defendant’s vehicle.  That during the funeral of late Isaac Nuamah, the defendant’s church members brought him and the plaintiff GH&#8373;4,000.00 to support them and additional funeral donation of GH&#8373;800.00 and that Isaac Nuamah died as a result of injuries he had or sustained when he was knocked down by the defendant car.    \r\nPW2, Theodore Opoku Asare No. 35826 and a General Corporal of the Ghana Police Service, Stationed at New Weija, Accra, testified to the effect that, on the 13th December, 2013, the plaintiff came to the Police Station and identified herself as the mother of one Isaac Nuamah a deceased person who was conveyed to the Hospital by him.   That on the same 13th December, 2013 one Sergeant Edmund Teye Martey of the Dansoman MTTU brought in the defendant together with extract of the occurrence prepared by the Dansoman MTTU as well as Nissan Pickup, with registration number, GX 2238-12 and reported that, the defendant who was driving the said pickup knocked down the victim, the late Isaac Nuamah.   That the defendant was detained and the vehicle impounded.   That on the 16th December, 2013, the defendant was arraigned before the Motor Court, Accra and charged for careless and inconsiderate driving and negligently causing harm.    The said charge sheet was tendered and accepted in evidence as Exhibit ‘H’.    \r\nThe extract of the complaint and a copy of the Cautioned Statement obtained from the defendant were also tendered in evidence and accepted as Exhibits ‘J’ and ‘K’ respectively.   That he also took measurement of the scene of the accident in the presence of the defendant (then accused) and the Plaintiff.    That a Duplicate Docket has since be prepared and forwarded to the Attorney General’s Department.   Further that, Exhibits B1 and C in this case are the Coroners Form and Police Accident Report that the Plaintiff requested for from the Police. \r\nOn the 3rd December, 2015, Benjamin Essah, the defendant herein told the court that, on the 12th December, 2013, he was coming from Bogoso in the Western region of the Ghana and that after crossing the traffic light at SSC, Weija Junction in Accra, his car knocked down a certain man at about 8:30 p.m. who was later identified as the late Isaac Nuamah.  That when he got \r\n \r\n5 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nto the traffic light, there was a green light and he drove ahead and to his surprise he did not know where the deceased gentleman came from and suddenly crossed him and so was knocked down.   That with the help of a certain man, he picked and put the victim into the bucket of the Pickup he was driving.    That he did so because the cabin of the Pickup was full and he could not waste time offloading all the goods therein.    Continuing his evidence on 19th January, 2016, Defendant said he saw the plaintiff jumped out of the bucket of his pickup so he parked.  That he saw the deceased on the road and some other cars had driven over him; and that with the help of some other people they blocked the view of the cars to stop further damaged and according to him what he meant by that was simply that, they put a lorry tyre in front of the body to stop other cars from running over him.     That he, at this time called one Police Inspector Korsah of the Wejia Police Station to inform him of what had happened to him.   That what happened was a purely accident case because prior to the incident, he did not see the victim.    That he immediately, put the victim back into the bucket of his car because the cabin was full of goods with the view to rushing him to the Hospital but the victim finally died.    That when he died as a result of the incident, he did a lot for the victim’s family including the following; \r\n(a) Mortuary fee (b) Coffin (c) Burial expenses and carried (d) The funeral expenses \r\nThat the accident occurred in between the zebrah crossing and the traffic light and therefore did not occur in the zebrah crossing.     That the plaintiff told him the deceased victim had two children.   Further that since the incident, he has not been prosecuted by the Criminal Motor Court; and that he has been reporting to the Police, Weija Division or Command. \r\nNow, and as by Law established, the burden of proof in a Civil Case lies on the party who makes a particular claim to adduce credible evidence to support his or her case.     \r\n \r\n6 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nInfact Section 11 (4) and 12 of the Evidence Act, 1975 (NRCD 323) states that, the standard of proof in all Civil cases is one on “a balance of probabilities” which was cited with approval by the Supreme Court in the case of ADWUBENG VRS DOMFEH [1996-97] SCGLR 660 (a) page 662 as follows and I quote; \r\n “By sections 11 (4) and 12 of the Evidence Act 1975 [NRCD 323] the standard of proof    in all civil cases is proof by preponderance of probabilities no exceptions were made”. \r\nFurther, in the case of FOSUA AND ADU-POKU VRS ADU-POKU [2009] SCGLR 310, their Lordships observed as follows; “Section 11(4) of the Evidence Act puts the obligation of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonably mind could conclude that the existence of the fact was more probable than its nonexistence”. \r\nAgain, in the recent case of ACKAH VRS PERGAH TRANSPORT LTD AND OTHERS [2010] SCGLR 728 @ 736 the Supreme Court had the following to say on the Law relating to the burden of proof and I quote “It is a basic principle of the Law on evidence that a 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…   This is a required of the Law on evidence under sections 10 (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975 [NRCD 323]”. \r\nIt is therefore my view that, the yardstick for determining in whose favour the scale of justice tilts, is dependant on the quality of evidence adduced by that person or party.    It is on record that on the 16th June, 2015, the defendant filed two additional issues one of which is “whether or not the plaintiff has capacity to persue this case against the defendant”.    The issue of capacity in every civil suit is very fundamental to the very existence of the suit for which reason I would like to handle it first.      \r\nApart from the fact that, the issue of capacity was raised in the additional issues filed on the 16th June, 2015, it was not raised anywhere in the course of the trial.   Infact, the only time the \r\n \r\n7 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\ndefendant per Counsel came very close to capacity was when the plaintiff was under crossexamination on the 14th July, 2015, and the below was what transpired between the plaintiff and the Defence’s Counsel.  \r\n (Q)   I put it to you that, you do not have the legal mandate to bring this action because   you are not the Administratrix of the Estate of the deceased? \r\n (A)   Please, I have the right to institute this action because I am his surviving mother. \r\nIt is my view that, the Defendant per Counsel was expected to file a formal application on notice on the issue of capacity to give the plaintiff the opportunity to respond adequately to that application in accordance with Law.    The Defendant did not avail himself the benefit of this procedure and merely mentioning it at the application for Directions level is not enough to say that the plaintiff has no capacity to institute the instant action. \r\nOrder 66 Rule 13 Sub Rules (a) (b) (c) and (d) of PNDCL 111 states categorically the order of priority of a grant of Letters of Administration (L/A) where a person dies intestate after the enactment of the said Law.    Infact Sub Rule (c) of the above mentioned Order 66 Rule 13 categorized surviving parents as a group of people entitled to Letters of Administration in situations as in the instant one.    The reference in Law is that, once the plaintiff in the instant suit is entitled to the grant of Letters of Administration (L/A) in respect of the Estate of the deceased, she has the right and capacity to initiate any proceedings or suit in respect of her son’s Estate including the instant one.    Exhibit ‘A’ the Birth Certificate also confirms that plaintiff is the mother of the deceased.    Issue (a) as filed by the plaintiff is “whether or not the defendant was negligent in this matter”.    From her evidence to the Court on the 19th June, 2015, the plaintiff only heard of the death of her son the next morning after the incident.    She was therefore not at the scene of incident at the time it happened.     However, the defendant saw it all.    He gave the time of the accident at 8:30 pm on the 12th December, 2013, and the scene was at the SSC Weija junction in the city of Accra.    He also said he did not see the victim and that the exact spot was between the zebrah crossing and the traffic light.    The defendant never evidenced to the court that he had a defective brake system or defective head \r\n \r\n8 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nlights, so that if he never saw late Isaac Nuamah before the incident then the probable reason could be that, he was driving at a speed not acceptable by Law in the city of Accra on that fateful day just before the incident.    The position of the Law is that the defendant owes a duty of care to all road users including the deceased Isaac Nuamah but failed to exercise that duty of care hence the accident.    The defendant again said in his evidence to the Court that, when he knocked down his victim, he became unconscious.  This was also captured in his cautioned Statement to the Police, Exhibit ‘K’ herein on his arrest after the incident.    \r\nIt is my view that, in the position that he found himself, the defendant should or ought to have known reasonably that a person who fell unconscious as a result of a vehicular knock down could regain consciousness at any time and would therefore need the attention of another person to prevent him from acting in a way that could endanger his life. \r\nIn the instant suit, it is the defendant’s own evidence that, when he knocked down Late Isaac Nuamah and he became unconscious, he put him in the bucket of his moving pick up without any person to attend to him.     \r\nPrudently, what the defendant should have done to save the life of his victim was to put him in a more enclosed and protected car like a taxi cab and made sure he was driven safely to the nearest health facility.    If he failed to do this with the excuse that the cabin of his Pickup car was full at the time with other things, then I could safely say that he was negligent both before and after the accident. \r\nOn the issue of “whether or not the negligent of the defendant caused the death of the late Isaac Nuamah”, I am of the view that the evidence on record will provide the answer.   The defendant per his own evidence did not dispute the fact that his victims, the late Isaac Nuamah died as a result of this accident.    Exhibit ‘B’ the death certificate tendered by the Plaintiff shows that the said Isaac Nuamah is dead.   The brief facts as contained in Exhibit ‘C’ dated 3rd November, 2014, and tendered by plaintiff on the 19th June, 2015, to support her case has it that, late Isaac Nuamah fell from the bucket of the Defendant’s Pick up when he was been rushed to the Hospital for treatment; and was allegedly ran over by another vehicle and died on the spot.    In \r\n \r\n9 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nthe same Exhibit ‘C’ the Medical Officer’s Report gave the cause of death as Traumatic shock.  The evidence before this Court has it that, the deceased victim was knocked down by the defendant who in attempt to save his life put him in the bucket of his Pickup unattended to for which reasons he fell therefrom and was allegedly ran over by another vehicle.    The traumatic shock the deceased Isaac Nuamah had and died was as a result of the accident he had and it was the defendant who caused the accident.      \r\nI am therefore of the view that it was the negligence of the defendant that caused the death of the late Isaac Nuamah.     \r\nIn paragraph 13 of the defendant’s amended statement of defence filed on the 16th June, 2015, the defendant averred that, the plaintiff contributed to his own death and gave particulars of contributory negligence.   By Law the defendant is legally obliged to give credible evidence to sustain his claim.   To the surprise of the Court however, the defendant never adduced any evidence in open court to support that claim when he mounted the witness box.   The implication legally is that, he has no evidence on his claim of contributory negligence on the part of the deceased Isaac Nuamah.   \r\nThe next issue is “whether or not the doctrine of res ipsa Loquitor is applicable in this case”.   In the instant suit, it is my view that, it is the defendant who owes it a duty to explain why he decided to carry an unconscious man in the open bucket of his Pick up to the Hospital unattended to after he had knocked him down.   I have mentioned in the early part of this judgment that, what the defendant should have done prudently to save the life of his victim immediately after the accident was to have found an alternative means of transport to convey the late Isaac Nuamah to the nearest health facility. \r\nI therefore find his explanation to the effect that, he put him in the bucket of his pick up because the cabin at time was full most unacceptable, dehumanizing and reckless and it is my view that, the action by the defendant fell in all-four with the doctrine of  res ipsa Loquitor rule of evidence. \r\n \r\n10 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nIssue (e) as raised by the plaintiff is “Whether or not the plaintiff is entitled to her claim”?   The evidence on record has it that the late Isaac Nuamah left behind two children aged (9) nine and (4) four, his mother (the plaintiff) herein, his father, Mr. Afoakwa, two other siblings and that he was a welder and aged 32 years at the time of his death.    The evidence also has it that in his life time he took care of his two children, cared for his two parents and also assisted his mother to take care of his two other siblings; because he worked and earned income.   The evidence also has it that his financial help and assistance has ceased since his death and the plaintiff and the other dependents have to contend with lose of the financial support from the deceased.      \r\nIt is in this vain that, I am of the view that the plaintiff is entitled to her claim for damages for negligently causing the death of the deceased.   After evaluating the evidence on record, the Court made the following findings of facts; \r\n(a) That on the day of this incident the defendant herein was negligent both before and after he had knocked down his victim, late Isaac Nuamah.  (b) It is also a fact that, the defendant negligence caused the death of the above mentioned deceased and not the alleged ran over by another vehicle as the defendant claims.   \r\n(c) The Court also finds as a fact that the victim, the late Isaac Nuamah fell out of the bucket of the defendant’s moving Pick up because there was no attendant to take care of him whilst in his unconscious state.  (d) It is a fact from the evidence or record that, the victim did not jump out of the bucket of the defendant’s moving Pick up as the defendant wants the court to believe. \r\nI believe and hold the view that, the Plaintiff has been able to persuade me, based of course on the evidence on record that, her side of the case is more probable for which reason I enter judgment for the Plaintiffs on the reliefs (a) to (j) as stated in the amended statement of claim filed on the 15th April, 2015.   The court has observed however that, with the exception of relief (i) which relates to the funeral and hospital expenses, all the other reliefs fall within the category of general damages.   The Courts in Ghana in assessing genera damages in running down actions such as the instant one normally resort to the procedure or method which has become \r\n \r\n11 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nknown as the HEADS OF GENERAL DAMAGES.   The said procedure or method has been cited with approval by the Supreme Court in the case of AMAKOM SAW MILLS VRS MANSAH, 1963 1 GLR 368  and also in the recent Court of Appeal case of AWUKU VRS MAMUNI &SULEMAN (2014) 70 GMJ 144.   \r\nIn the cases cited above Supra, general damages and awards are made under different heads of damages such as; (1) compensation for surviving mother, (2) surviving father (3) siblings, (4) compensation for pain and suffering, (5) loss of expectation of life, (6) loss of prospective dependency, (7) loss of amenities of life and (8) loss of earnings.  In the early part of this judgment,  I mentioned per the evidence of the plaintiff that, the deceased left behind two children who are all minors, the plaintiff who is the surviving mother, Mr. Afoakwah, his surviving father and two other siblings all of whom depend on the deceased for one type of financial assistance or the other.   Applying the principle of Heads of general damages in this case under General Damages and as applied in the AMAKOM SAW MILLS, I would award the below damages; \r\na) Compensation for two surviving children- GH&#8373;100,000 (One Hundred Thousand Ghana Cedis) each. b) Compensation for surviving mother- GH&#8373; 50,000.00 (Fifty Thousand Ghana Cedis Only) c) Compensation for surviving father-  GH&#8373; 50,000 ( Fifty Thousand Ghana Cedis Only) d) Compensation for pain and suffering- GH&#8373;30,000.00 (Thirty Thousand Ghana Cedis Only) e) Compensation for loss of expectation of life- GH&#8373; 200,000.00 (Two Hundred Thousand Ghana Cedis Only) f) Compensation for loss of prospective dependency-  GH&#8373; 150,00.00 ( One Hundred And Fifty Thousand Ghana Cedis Only) \r\nIn respect of funeral and hospital bills, they fall under the category of special damages. However, in running down cases as in the instant one, the Courts have held the view that, in \r\n \r\n12 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nassessing damages, receipts are not necessary to back the plaintiff(s) claim because of the trauma that both the victim/deceased and the surviving dependents and relatives went through during and after the incident. \r\nIn the instant suit, the special expenses made per Exhibit M, Mi, Mii is GH&#8373;495.00.    Exhibits F, F1 to F4 which cover the cost of ambulance, coffin, canopies, chairs and drinks amount to GH&#8373;1,700.00.  The Court has observed per the evidence that hiring a car from Accra to Dompoase in the Ashanti Region for the funeral also cost GH&#8373;1,000.00.    This brings the total special expenditures to: \r\na) GH&#8373; 0,495.00 b) GH&#8373; 1,700.00 c) GH&#8373; 1,000.00 \r\n           Total 3,195.00 \r\nIn respect of the issue of loss of earnings, the evidence on record is that, the late Isaac Nuamah died at the age of 32 (thirty two) years, and a welder by profession.    By Law his life expectancy is 60 years so that, but for this accident, he would have lived for the next 28 years.  He was not a salary worker and going by the principle as established by the Court of Appeal in the case of AWUKU VRS MAMUNI, it is safer to use the national minimum wage, which is GH&#8373;8.20.00  (eight cedis, twenty pesewas) as the basis for assessing damages under loss of earnings  heading and double this amount.   The reason for doubling this figure is that, it is fair and reasonable to assume that, the deceased would have improved or enhanced income if he had lived his full life and earn more than the present minimum wage.   Estimating therefore that the deceased, Isaac Nuamah who lived for 32 years at the time of his death would work for another 28 years before retiring at the compulsory age of 60 (sixty) years, he would be entitled to:- GH&#8373;16.40×30×28×12=GH&#8373;165,312.00, and for tax purposes, this amount is reduced by a third, which will bring the figure to:- GH&#8373;110,208.00.   The total awards made by the Court therefore comes to GH&#8373;790,403.00 (Seven Hundred Ninety thousand, Four and Three Ghana Cedis Only) which figure is more than the GH&#8373;500,000.00 damages claimed by the plaintiff.    \r\n \r\n13 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nThe question therefore is whether the trial Court has power to award damages more than what the plaintiff claims on the Writ.    My answer to this question is in the affirmative, based of course on the judgment of the AMAKOM SAW MILLS case. \r\nIn that case and more particularly in holding (4) thereof, the Supreme Court had the following to say and I quote (4) “the practice in this country is that in all money claims, whether they be for liquidated or unliquidated amounts, a specific figure must, for revenue purposes, be claimed.   It was a pity that the plaintiff in the circumstances of this case should have been awarded less damages than the court had found to be due, merely because of the technicality of having claimed a lesser figure on the Writ.   In such circumstances the ends of justice will be much better served if the court exercises its powers under Order 28 Rule 12 of the Supreme (high) Court Civil Procedure Rules 1954, to amend the figure to which in its view the plaintiff is entitled”.    \r\nI find the wisdom in the Supreme Court’s decision very humane and hold the view that by way of judicial precedent, that case is applicable to the instant suit. \r\nThe Court therefore amends the claim of GH&#8373;500,000.00 as endorsed on the amended statement of claim filed on the 15th April, 2015,  to now read GHc790,403.00(Seven Hundred and Ninety Thousand Four Hundred and Three Ghana Cedis Only) to coincide with the figure to which in my view the plaintiff is entitled.  \r\nMore to this issue is the case of HANNA ASSI (NO.2) VRS GIHOC REFRIGERATION AND HOUSEHOLDS PRODUCTS LTD (2007-2008) SCGLR in which the apex Supreme Court held that, in the supreme interest of fairness and justice, and in the particular circumstances of a case the Court can award a relief to a party even though the relief might not have been claimed in the Writ and Statement of Claim.    \r\n \r\n14 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH     \r\nI therefore enter final judgment for the plaintiff in the sum of GH&#8373;790,403.00 to cover the general and special damages that she deserves in the circumstances of the instant suit.  \r\nCost is assessed at GH&#8373;10,000.00 (Ten Thousand Ghana Cedis Only)     \r\n              (SGD.)         JUSTICE E. K. MENSAH         JUSTICE OF THE HIGH COURT                       \r\n      LAWYERS: ALHASSAN MOHAMMED LAWAL FOR THE PLAINTIFF PRESENT    DANIEL KOOMSON FOR THE DEFENDANT  ', 'E.K. MENSAH, J ', 'Civil', '', 'BC/317/2015 ', '', '', '', '0000-00-00', ''),
(605, 'GHANA GROWTH FUND LTD.  VS.  1.  BOKAN LIMITED , KWAME DWOMOH KESSIE, PAUL EFFAH OTENG, JOSEPH OSEI, CLEMENT BORQUAYE ', '', '../links/cases/GHANA GROWTH FUND v BOKAN LTD.pdf', 'Yes', '', '2016', 'High Court', 'JUDGEMENT  \r\nThe Plaintiff herein by a writ filed on the 15th day of April 2014 seeks the following reliefs against the Defendants jointly and severally.  \r\na) Recovery of the sum of One Million, Nine Hundred and Forty One Thousand Eight Hundred and Eighty Cedis, Ninety Two Pesewas. (GH&#572;1, 941. 880.92) being the outstanding balance of the facility, as at 31st March, 2014.  \r\nb) Interest on the outstanding balance at 4% per month, compounded daily from 1st April, 2014 till final payment   c) Costs including Plaintiff’’s legal Costs.   \r\nOr in the alternative:  \r\nAn order for the judicial sale of the following properties used as collateral:  \r\n(i) No.3 Block O, house No.107 Owusu Poku Road, Ayigya, Kumasi with Certificate NO. 19171, Folio 183.  \r\n(ii) No J298/1, off Coco Beach Street, with title Certificate GA/NO. 19171, Folio 179, Vol.35  \r\nThe Plaintiff’s case is that it is a private equity company providing financial support among others to corporate entities and businesses in Ghana.  The 2nd and 3rd Defendants are directors of the 1st Defendant, a Ghanaian registered limited liability company whilst the 3rd and 4th Defendants are property owners who offered their respective properties to be used as collateral for the facility arrangement between Plaintiff and 1st Defendant.  \r\nPlaintiff avers that sometime in 2011, the 1st Defendant applied for a facility to import sugar into this country.  Further to this application, Plaintiff granted the 1st Defendant a loan of Five Hundred and Thirty Thousand, Two Hundred and Eighty Ghana Cedis, Forty Five Pesewas (GH&#572;530,280.45) to facilitate the importation of 12,500 metric tons of sugar. This facility was for a period of 360 days at an interest rate of 4% per month, compounded daily. Personal guarantees were executed by the 2nd and 3rd Defendants who are directors of 1st defendant to secure the facility.  Additionally, the 4th and 5th Defendants offered their respective properties as collateral for the due repayment of the loan facility. According to Plaintiff, the Defendants are in default of their repayment obligations such that their indebtedness to Plaintiff stood at One Million, Nine Hundred and Forty One Thousand, Eight Hundred and Eighty Ghana Cedis Ninety Two Pesewas. (GH&#572;1, 941, 880.92) as at the 31st day of March, 2014.  It is on the basis of the foregoing that Plaintiff has instituted the present action.  \r\n3  \r\nThe 1st, 2nd, 3rd and 5th Defendants filed a joint Statement of Defence to Plaintiff’s writ.  Though they admit being granted a facility by Plaintiff, they state that the amount granted them was not the total required for the said importation but merely a deposit towards same.  The 1st, 2nd, 3rd and 5 Defendants deny that any formal demands had been made on them for the repayment of the loan aside mere discussions. They challenge the accuracy of the amount stated on the Plaintiff’s writ as their level of indebtedness and counterclaim as follows:  \r\na) Accounts of the loan should be audited for the correct amount owed by the Defendants to be ascertained  \r\nb) No further interest should be charged on the loan  \r\nc) Arrangement made between the Parties for the repayment of ascertained debt to be made by installment.   The 4th Defendant who is also said to be a director of 1st Defendant, filed a separate Statement of Defence on the 13th day of March, 2015 by which he admitted offering his property as security for the facility.  In line with the defence put up by the other Defendants, the 4th Defendant contended that the amount granted them was only intended as a deposit for the total amount required.  4th Defendant also challenged the correctness of the amount being claimed by Plaintiff and counterclaimed as follows:  \r\na) Accounts of the loan should be audited for the correct amount owed by the 1st   Defendant to be ascertained.  \r\nb) Arrangements made between the Parties for the repayment of the ascertained debt to be made by installments.  \r\nAt the breakdown of pre-trial settlement, the following issues were set down for determination at the trial of the suit.  \r\n 1)  Whether the Defendants have breached the repayment obligation in respect of   the facilities granted them by Plaintiff.  \r\n2)  If so how much is owed by the Defendants.  \r\n3) Whether the Plaintiff is entitled to its Claim and Defendants to their Counterclaim.    \r\n When the Parties appeared before this Court for further directions, Counsel for the 4th Defendant informed the Court that his instructions were at an end due to the death of the 4th Defendant. This Court therefore ordered him to file the necessary application for withdrawal from the suit in line with Order 75 Rule 6 of CI 47, if he was minded to withdraw as Counsel for 4th Defendant.  Counsel however, in total disregard of the order of this Court dated the 23rd day of March, 2016 filed a process entitled “NOTICE OF TERMINATION OF INSTRUCTIONS.”  By the said notice, \r\n4  \r\nCounsel for the 4th Defendant sought to inform the Court that his instructions were at an end due to the death of the 4th Defendant. Aside the fact that there is no evidence on record substantiating Counsel’s claim that his client is currently deceased, it is trite learning that Counsel, having entered appearance on behalf of 4th Defendant, could only withdraw from the suit with leave of the Court. I am supported in this view by the case of WORLDWIDE SHIPPING V DARKO {2001-2002] GLR, 1140.  In the said case, the Court spelt out the various steps to be followed by Counsel seeking to withdraw from a suit.  The first step being the service of the notice of withdrawal on the Party whom Counsel represents.  This requirement is also specified under Order 75 Rule 6(2) of CI 47.  The said rule however provides as follows:   \r\nNotice of an application for an order under this rule shall, unless the Court otherwise directs, be served on the Party for whom the lawyer acted.    \r\nThe purport and effect of the said rule in my understanding, is to vest the Court, in appropriate cases, with the power to dispense with service of a lawyer’s application for withdrawal on the Party for whom he previously acted, if for instance, service on that Party becomes impracticable as was alleged by Counsel in this case.  \r\nConsequently, granting without necessarily admitting that the 4th Defendant is truly deceased, this Court is still vested with the power to order that service of the application for withdrawal be dispensed with. I duly drew Counsel’s attention to this fact and also to the decision in the Worldwide Shipping case (supra) but Counsel obviously chose to ignore the prompting of this Court.  \r\nHaving taken the view that the said “NOTICE OF TERMINATION OF INSTRUCTIONS” filed by Counsel for 4th Defendant was unwarranted and unknown to our rules of Civil Procedure, this Court on the 20th day of April, 2016 ruled that the 4th Defendant, in law, remained a Party to the suit and that this Court will continue to consider lawyer Y. B. Asare of Boahene & Associates as acting for him. A copy of the said ruling was per the order of this Court, duly served on Counsel for the 4th Defendant who was absent on that date but this, and all subsequent processes, including hearing notices were ignored by him. It is trite learning that service of a process on a lawyer who is on record as acting for a Party constitutes proper service on that Party. See the case of ADU V ANKOMAH [1972] 1GLR 22   \r\nHaving continuously ignored Court processes served on him, it became quite apparent to this Court that the 4th Defendant no longer intended to contest the suit. The case therefore proceeded to trial without the 4th Defendant filing a witness statement.  \r\nAt the trial, the Investment Risk Manager, Eric Asae gave evidence on behalf of the Plaintiff. In support of Plaintiff’s case, he tendered the following exhibits.   EXHIBIT A: A resolution by the board of 1st Defendant Company to access a loan facility from Plaintiff.  \r\nEXHIBIT B: A letter dated the 4th day of May, 2011 applying for a Commercial Paper of US$330.  \r\n5  \r\nEXHIBIT C: A letter dated the 4th day of November, 2011 addressed to Plaintiff applying for a Commercial Paper of Five Hundred and Thirty Thousand, Two Hundred and Eighty Ghana Cedis, and Forty Six Pesewas (GH&#572;530,280.46) for the importation of 12,500 metric tons of Brazilian sugar.  \r\nEXHIBIT D: The term and investment sheet stipulating the terms and conditions governing the loan facility granted 1st Defendant Company by Plaintiff.  \r\nEXHIBIT E, E1 AND E2:  Personal guarantees executed by the 2nd and 3rd and 4th Defendants as directors of 1st Defendant Company in favour of Plaintiff.  \r\nEXHIBIT F AND G: The title documents covering the properties of 4th and 5th Defendants respectively which were furnished as security for the loan.  \r\nEXHIBITS H AND J: Deeds of mortgage entered into between Plaintiff and the 4th and the 5th Defendants respectively.  \r\nEXHIBIT K: Defendant’s statement of account as at the 6th day of May, 2016.   \r\nPlaintiff’s witness testified that there was never a disagreement relating to the amount payable as interest on the facility and that the payment of interest could not be stopped as requested by the Defendants as the same was a major component of the agreement. He charged that, the Defendants’ call for a reconciliation of the accounts was only a ploy to delay proceedings in the suit as the amount owed by them was not in doubt.  Plaintiff lamented the lack of good faith shown by Defendants and prayed the Court to enter final judgment in its favour, against the Defendants jointly and severally. Under cross-examination, Plaintiff insisted that the Defendants were fully aware that the interest rate on the loan was not simple interest but 4% per month compounded daily as stipulated in EXHIBIT D.  The witness denied that the Plaintiff was out to “fleece” the Defendants and contended that the Defendants fully understood the terms of the loan facility.  \r\nThe 2nd Defendant in his witness statement filed on behalf of himself and the 1st, 3rd and 5th Defendants essentially admitted owing the Plaintiff but argued that the Defendants’ level of indebtedness stated by the Plaintiff had been inflated and was far in excess of the amount owed by the Defendants. The 2nd Defendant under cross- examination reiterated his admission that the Defendants indeed owed the Plaintiff but described the computation of their level of indebtedness as “usurious”.    \r\n At the end of the 2nd Defendant’s evidence, the Court found that the only issue left to be determined was the actual amount owed by Defendants to Plaintiff.  It therefore, informed Counsel of its intention to order the appointment of an independent referee \r\n6  \r\nto assist the Court determine same. The Parties however prayed that they first be given the opportunity to go into accounts themselves, failure upon which the said referee could be appointed by the Court.    \r\nOn the 17th day of November, 2016 Counsel for 1st, 2nd 3rd and 5th Defendants announced to the Court that the Defendants were submitting to judgment in respect of the amount claimed by Plaintiff following the successful reconciliation of  accounts by the Parties.   \r\nIn the result, judgement is accordingly entered for Plaintiff against the Defendants jointly and severally as follows:  \r\na)Recovery of the sum of One Million, Nine Hundred and Forty One Thousand, Eight Hundred and Eighty Ghana Cedis. Ninety two pesewas (GH&#572;1, 941. 880.92).  \r\nb) Interest on the outstanding balance at 4% per month, compounded daily, from the 1st day of April. 2014 till date of final payment.  \r\n Or in the alternative the judicial sale of the following Properties:   \r\ni) No. 3A Block O, House No 107, Owusu Poku Road, Ayigya Kumasi, with Certificate No. KA 2077, Folio 183, Vol. 3.   ii) No. J298/1, off Coco Beach Street, with  Title Certificate GA 19171, Folio 179, Vol 35.  \r\nI award costs of Three Thousand Ghana Cedis (GH&#572;3,000.00) against the Defendants jointly and severally in favour of Plaintiff.  \r\n           [SGD]  MRS. AKUA SARPOMAA AMOAH    JUSTICE OF THE HIGH COURT aey/  ', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'RPC/150/2014', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(606, 'NII COMMEY DADIENKO I ,  2. NII COMMEY  VRS.  GLICO PROPERTIES  ', '', '../links/cases/GLICO JUDGMENT.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nOn 3rd September 2012, the plaintiffs issued out this writ of summons against the defendant in their capacity as the Chief of Koffe and Solowe Wulomo respectitively. On 29th April 2014, the plaintiffs were granted leave to amend their writ of summons and statement of claim within 5 days from 29th April 2014. No amended writ of summons was filed but in the amended statement of claim, the plaintiffs included their reliefs as follows; \r\na) Declaration that the plaintiffs and the people of Koffe are the equitable owners of the land so described in the schedule below b) An order of perpetual injunction to restrain the defendant, its lessor, assignees, agents, workers, and all who cometh unto the land at their instance from interfering in the plaintiffs quiet enjoyment of the land c) Damages for trespass \r\nThe schedule is as follows; \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 2 | P a g e  \r\nAll that piece of land situated and located at Koffe Bortianor, measuring approximately 128.18 acres and bounded on north by a proposed road measuring 1400 feet more or less, on the south by proposed road measuring 1200 feet more or less, on the east by a proposed road measuring 4600 feet more or less and on the west by a proposed road measuring 4240 feet more or less. \r\nReading the plaintiffs relief ‘a’ it can be inferred that the plaintiffs instituted this action in a representative capacity and should have endorsed the writ with a representative capacity as required by order 2 rule 4 of C.I 47 which says; \r\n1. Before a writ is filed it shall be indorsed a) Where the plaintiff sues in a representative capacity with a statement of the capacity in which the plaintiff sues.  \r\nIn Republic vs. High Court, Accra; Exparte Aryeetey (Ankrah Interested Party) (200304) SCGLR 398, the Supreme court held in its 2nd headnote that “The requirement that a party endorses on the writ the capacity in which he sues, is to ensure that a person suing in a representative capacity is actually invested with that capacity and therefore has the right to sue.” \r\nIn this case the plaintiffs did not endorse the writ as a representative action but in paragraph 3 of the statement of claim, it was pleaded as follows “the land described in the schedule below is owned and possessed by the people of Koffe, a village near Bortianor. In paragraph 5 of the statement of claim, it was pleaded that in the year 1959, the government compulsorily acquired same with the intention of using it for irrigation projects. By the plaintiffs further pleading, the defendant without the consent of the plaintiffs entered unto this land in 2012 and dug trenches preparatory towards constructing a fence wall around the whole land. \r\nThe defendant entered appearance and filed defence, which defence was amended on 27th March 2014. In the defendant’s defence, the capacity of the plaintiffs was denied and was specifically stated that the 1st plaintiff is not a chief of Koffe, which is an area within the Bortianor area, and that there is no chief or stool of Koffe.  That the 2nd plaintiff is also said to be a member of Solowe of Bortianor, which is a priestly clan at Bortianor. The defendant also pleaded that the land that it occupies is part of the land acquired by the government and since no compensation has been paid, the Bortianor stool is in discussion with the government on the payment of the compensation or release of the land to the stool. The defendant however acquired the land from the Nii Kwei Arku family which family acted per Nii Akotey IV Dzasetse and Acting Bortianor Mantse and the lawful \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 3 | P a g e  \r\nrepresentative of the Nii  Kwei Arku Family of Bortianor by way of lease dated 1st November 2000 and has since been in possession of the land and started constructing houses on it, which houses are at various stages of development. That the defendant regularized the acquisition with Nii Kwei Arku V, the occupant of Bortianor stool. \r\nAt the close of the pleadings the following issues were set down for determination; \r\na) Whether or not the village of Koffe was discovered and settled by the plaintiffs’ ancestors? b) Whether or not Koffe lands are different from Bortianor lands? c) Whether or not the plaintiffs are the Chief and Wulomo of Koffe respectively? d) Whether or not the plaintiffs were in possession of the land, the subject matter of the suit prior to government’s compulsory acquisition in 1959? e) Whether or not the plaintiffs remained in possession of the land the subject matter of the suit after the government compulsorily acquired the land but failed to utilize that land for the purpose for which it was acquired? f) Whether or not the plaintiffs are the equitable owners of the land the subject matter of this suit? g) Whether or not the Nii Kwei Arku family of Bortianor can validly make grants in respect of the land situated and lying at Koffe and being Koffe lands? h) Whether or not the defendants have since July 2012 trespassed unto the land, the subject matter of the dispute. i) Whether or not the defendants can validly claim title from the chief of Bortianor in respect to the land the subject matter of the dispute? \r\nThe following are the additional issues also set down; \r\n1. Whether or not the plaintiffs have capacity to bring action in respect to the land in dispute which is a state acquired land? 2. Whether or not the defendant has been in possession of the land in dispute since the year 2000 and constructed numerous uncompleted buildings thereon? 3. Any other issues arising from the pleadings. \r\nThe 1st plaintiff gave evidence and called three witnesses, the 2nd plaintiff however did not lead any evidence. The defendant gave evidence through Mr. Derrick Appiah Kyei who claimed to be the general manager of the defendant. \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 4 | P a g e  \r\nFrom the pleadings of the parties and their evidence, it is admitted by all the parties that the land in dispute falls within land acquired by the government. Having admitted by all the parties that the land in dispute falls within government acquired land, most of the issues set down for resolution may not be relevant. The presence of the Bortianor stool in this case would have been necessary in the resolution of some of the issues. D.W.1 however, gave evidence as Mantse of Bortianor. \r\nI believe that issues ‘d’; ‘e’; ‘f’; ‘g’; ‘h’; and ‘i’ together with additional issues 1 and 2 may be relevant but other issues may be resolved where necessary. I believe additional issue 1 is very relevant and must be determined first. \r\nFrom the pleadings of the parties and their evidence, the land in dispute falls within government acquisition. I believe the parties could have argued this issue on legal grounds as it is trite that when facts are admitted in pleadings, there is no need to lead evidence in proof. \r\nIn paragraph 5 and 6 of the plaintiffs’ amended statement of claim it was pleaded as follows; \r\n5. Plaintiffs shall contend that sometime in the year 1959, the government compulsorily acquired same with the intention of using it for irrigation projects under the name irrigation project 2 6. Plaintiffs say that no compensation was paid to them by the government, however over the years the government did not use the land for the purpose for which it was acquired and for that matter they, the pre-acquisition owners, have been in undisturbed possession for several years in the exercise of their equitable interest in the land.  \r\nThe defendant also pleaded in its paragragphs 10-14; 17; and 18 of the amended statement of defence that, the land in dispute falls within land that was acquired from the Bortianor and other stools, and that the stool has been making demand for the payment of compensation or release of the land to the stool. \r\nTo these pleading in the amended statement of defence, the plaintiffs filed a reply in paragraph 11 of the reply as follows; \r\n11. Plaintiffs in answer to paragraph 10 of the amended statement of defence says they are aware that some owners of land within that area whose lands were affected by the executive instruments compulsorily acquiring those lands to the state, had at one point or the other put in application for the release of the lands to \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 5 | P a g e  \r\nthe stools. However, that in itself does not grant the Bortianor stool the right to claim the plaintiffs’ part of the land if indeed and in fact the Bortianor stool lands properly acquired by the state do not extend to that of the plaintiff.   \r\nThe import of the pleadings of the parties above referred to is that the plaintiffs are aware of the compulsory acquisition by the government and the effort of the stools whose lands were compulsorily acquired in getting compensation paid or getting the lands released to them. \r\nApart from the pleadings, the 1st plaintiff gave evidence in chief on 26th November 2014 that in 1959, the government acquired the land at Koffe for farming, from the Koffe people. The government did not pay any compensation. Whilst the first plaintiff was under cross-examination, he admitted that the land in dispute forms part of government land, and as at today the land is still government land. P.W.1 gave evidence that he is aware that the government acquired these lands from Bortianor, Kokrobite and Weija stools for an irrigation project and that the land in dispute falls within the acquired lands. \r\nSince the plaintiffs admit that the land in dispute is government land, do they have the capacity to institute this action assuming the the government acquired the land form Koffe? What interest do the plaintiffs have in this government land? \r\nBy the authority of Memuna Moudy vs. Antwi (2003-04) 2SCGLR967 it can be said  that even if the land was acquired by the Government from the Koffe stool, the plaintiffs will not have the capacity to initiate this action, since the Supreme Court held in its holding that “land compulsorily acquired by government under the Public Lands Ordinance, CAP134 (1951 Rev) vest automatically in the government upon a publication in the gazette and further that by virtue of Section 11 of the ordinance, the acquisition operates to bar and destroy “all other estates, right, titles, remainder, reversions, limitations trusts and interests whatsoever of and in the lands acquired. \r\nEven if the land were to be for Koffe as claimed since the plaintiffs admit that the government has compulsorily acquired it, the plaintiffs as the representatives of the people of Koffe have no capacity to claim the reliefs that they are claiming against the defendant, since all interest Koffe  had in the land was forever barred or destroyed upon a publication of the compulsory acquisition in the gazette. \r\nEven though the plaintiffs did not endorse the writ and the statement of claim with the capacity that they have instituted this action, it was pleaded in paragraphs 1 and 3 of the amended statement of claim as follows; \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 6 | P a g e  \r\n1. Plaintiffs are Chief and Wulomo respectively of Koffe near Bortianor and bring this action in that capacity. \r\n3. Plaintiffs say that the land described in the schedule below is owned and possessed by the             people of Koffe a village near Bortianor.  \r\nFor this pleading, the defendants denied and pleaded that the 1st plaintiff is a member of the Solowe of Bortianor which is a priestly clan at Bortianor and that Koffe is an area within Bortianor. The 2nd plaintiff did not lead evidence but in the 1st plaintiff’s evidence in chief he gave the following evidence \r\nQ: Do you know the 2nd plaintiff; that is Numo Commey? \r\nA: Yes my Lord, I know the 2nd plaintiff \r\nQ: Who is he? \r\nA: He is the Wulomo of Bortianor, he is a member of Nii Komiteey family \r\nWhen the 1st plaintiff was under cross-examination on 15th January 2015, the 1st plaintiff gave the following answers; \r\nQ: The 2nd plaintiff, Nii Commey the Wulomo is a native of Bortianor? \r\nA: Yes my Lord \r\nQ: He is resident at Bortianor? \r\nA: Yes my Lord \r\nP.W.1 also said the plaintiffs are indigenes of Bortianor \r\nQ: You admit that up to date both Ofoliwe and Solowe people still live in Bortianor? \r\nA: Yes my Lord \r\nP.W.3 gave the following answer under cross-examination \r\nQ: This D.C Obgami was he a native of Bortianor?  \r\nA; Yes my Lord, he was a native of Bortianor \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 7 | P a g e  \r\nThe import of the evidence from the 1st plaintiff and his witnesses is that the plaintiffs are indigenes of Bortianor. As for the 2nd plaintiff, the 1st plaintiff’s own evidence is that he is the Wulomo of Bortianor and that he is not Wulomo of Koffe. \r\nNot being from Koffe as has been pleaded but being from Bortianor, the plaintiffs have no capacity to initiate this action for and on behalf of the people of Koffe, even if the land in dispute belong to the Koffe people. \r\nIt has been held in Sarkodee I vs. Boateng II (1982-83) GLR715 that “It was elementary that a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence. And it was no answer for a party whose capacity to initiate proceedings had been challenged by his adversary to plead that he should be given a hearing on the merits because he had a cast-iron case against his opponent..” \r\nIn Fosua & Adu-Poku vs. Dufie (Deced) and Adu-Poku Mensah (2009) SCGLR310, it was held in the 6th holding that “On the facts of the instant case, the issue whether the plaintiffs had the requisite capacity to sue was mad an issue for trial…” \r\nCapacity to sue was a matter of law and could be raised by a party at any stage of the proceedings even on appeal. It could also be raised by the court suo motu. Since the plaintiffs pleaded that the land is for the people of Koffe, and evidence led by the plaintiffs’ own witnesses show that the plaintiffs are indigenes of Bortianor, and the 2nd plaintiff is the Wulomo of Bortianor, the plaintiffs will have no capacity to initiate this action even if the land was for the people of Koffe. \r\nFrom the analysis above, I hold that the 2nd plaintiff is not the Wulomo of Koffe. \r\nWith regard to the issue of the 1st plaintiff being the chief of Kofffe, I do not intend to comment on that since this court has no jurisdiction in chieftaincy matters. There is however contradictory evidence that D.C. Ogbame was not a chief. Since they said Koffe land is said to be stool land, D.C. Ogbame could not give it to P.W.3 and his father, since he was not a Chief. \r\nOn original issue ‘b’, the evidence adduced by the plaintiff supports the defendant’s case that Koffe is an area within Bortianor. \r\nThe 1st plaintiff’s evidence is that Koffe and Bortianor have a relation. The eldest son of Nii Commey left Bortianor and founded Koffe. He went to farm there. To a question by the plaintiffs’ own counsel \r\nQ: When he went there (Koffe) what did he do? \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 8 | P a g e  \r\nA: He went to farm there \r\nTo another question, the 1st plaintiff answered as follows; \r\n“When he founded Koffe, he farmed with his family and sold the products at Oduponkpehe, which is now Kasoa. Because they hailed from Bortianor, they went there during festival time. \r\nP.W.1 also gave the following evidence under cross-examination; \r\nQ: Are you aware that at a point in time the government of Ghana acquired these land from the Bortianor stool, Kokrobite stool, the Weija stool for irrigation project? \r\nA: Yes, I am aware \r\nQ: You know the land in dispute falls within the acquired lands? \r\nA: Yes I am aware \r\nQ: At a point in time, the Bortianor stool, Krokrobite stool and Weija stool petitioned the government for the release of the land to them? \r\nA: Yes I am aware \r\nIf the government acquired land from the Bortianor, Kokrobite and Weija stools for irrigation project, but not from the Koffe stool and the land in dispute falls within the acquired lands, then the land in dispute will not be for Koffe but for Bortianor or Kokrobite or Weija. \r\nP.W.3 gave evidence that he is at Bortianor but farm at Koffe and that Koffe is a farming area within Bortianor. P.W.3 gave further evidence that since the land was being developed, he went back home; that is Bortianor. \r\nThe import of these pieces of evidence is that since Koffe is a farming area within Bortianor, they go there to farm and come back to Bortianor. This may explain why the 1st plaintiff gave evidence that the 2nd plaintiff is the Wulomo of Bortianor. Apart from Bortianor that is claiming this area, the other two stools have not claimed this land. \r\nThe 1st plaintiff tendered exhibit A as the site plan covering the land that he claims to belong to Koffe. Exhibit A covers an area of 3,245.60 acres and this is more than what was contained in the schedule. Whereas the schedule said the land is 128.18 acres, exhibit A said the land covers 3,245.60 acres. Exhibit A has not been signed by the surveyor who prepared it. The Director of the Survey or his representative has also not signed it as \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 9 | P a g e  \r\nrequired by Regulation 3(1) of the Survey [Supervision and Approval of Plans] Regulation 1989 (L.I 1444). In Nortey (No.2) vs. African Institute of Journal and Communication and Others (No. 2) (2013) ISCGLR 703, in holding 4, the Supreme Court held that “The Court of Appeal had rightly held that exhibit A (a site plan) tendered in evidence by the plaintiff in apparent proof of his claim of title to the disputed land i.e. as his root of title had no probative value because it was not signed by the Director of Survey or his representative, contrary to regulation 3(1) of the Survey (Supervision and Approval of Plans) Regulations 1989 (L.I. 1444). The said regulation 3(1) made it mandatory for plans of any parcel of land attached to any instrument for registration of such instrument to be approved by the Director of Surveys or any official surveyor authorized in that behalf…” \r\nNo evidence was given as to how exhibit A came into existence. It has also not been registered to give it validity. There is no indication in exhibit A as to who that land shares boundary with. Which boundary owners were present when the 1st plaintiff went to demarcate his boundary? It has been held in the case Anto vs. Mensah (3WALR) 218, that it is a principle of native custom that where a boundary is to be demarcated this is to be done by the owners of the bounded areas acting in conjunction with each other. A unilateral attempt to demarcate by one owner is ineffective. Again in the case of Oppong Kofi and Other vs. Attibrukusu III (2011) ISCGLR 176, the Supreme Court held in its 7th holding as follows “The mode of marking out the boundaries of the land specified in the statutory declaration was not an acceptable customary law practice. The customary law was that a person could not unilaterally fix a common boundary between his land and that of an adjoining owner…” \r\nOn the other hand, the defendant tendered exhibit 2, which is a supplementary affidavit filed by the 1st plaintiff in support of their application for interlocutory injunction. In that supplementary affidavit, the plaintiff exhibited terms of settlement in a suit entitled Nii Komey Otsi Atta IV vs. Nii Akotey IV and 4 others. \r\nThe plaintiff gave evidence that Nii Komey Otsi Atta IV was Solowe family head and that he was his blood relation. In the Nii Komey Otsi Atta IV vs. Nii Akotey IV and 4 others case, the terms of settlement that was accepted by Nii Komey Otsi Atta included the statutory declaration that was registered by Nii Kwei Arku IV on 30th June 2005. Mr. Justice G.A. Aryeetey who sat in the High Court Accra gave the following ruling; \r\n“This is an originating summons filed on 21st June 2005 for the determination of the following questions; \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 10 | P a g e  \r\n1. Whether by this consent judgment the parcel of land registered as LR No 122/1997 reverses to the Bortianor stool and can only be administered by the incumbent chief of Bortianor and his elders? 2. Whether the consent judgment having been arrived at from plaintiff’s allegation of fraud against the defendants, the grants made by the 2nd defendant to other parties are null and void as the 2nd defendant obtained the parcel of land registered as LR No. 122/1997 in fraudulent circumstances? \r\nThe terms of the settlement filed by the parties, which form the basis of the consent judgment are as follows; \r\n1. That Bortianor lands are stool lands as registered per the declaration by Nii Kwei Arku IV as LR 5/1978 2. That the grant of 805 acres of land to Alrotech Co. Ltd. Purporting to be a grant form Nii Kwei Arku family is not a proper grant of Bortianor stool lands 3. That it is only the Bortianor stool represented by Bortianor Mantse with the concurrence of the accredited elders that can grant Bortianor stool lands. 4. That the parties have agreed that the above-mentioned grant to Alrotech Co. Ltd. be expunged from the records of the Lands Commission. \r\nBy the consent judgment entered for the parties on 21st June 2004 all the Bortianor lands are stool lands as registered per the statutory declaration by Nii Kwei Arku IV as LR5/1978. The court therefore declares that it is only the incumbent chief of Bortianor and his elders who can grant or alienate Bortianor stool land…” \r\nThe statutory declaration of Nii Kwei Arku IV has been tendered as exhibit 9. Even though the contents of exhibit 9 are not very clear, the site plan attached to the statutory declaration indicates that it covered 13,959.68 acres of land. \r\nConsidering the fact that the plaintiffs exhibit A covers only 3,245.60 acres, it is presumed that the 3,245.60 acres of land falls is within the 13,959.68 acres of land registered by Nii Kwei Arku IV. I am strengthened in this presumption because the plaintiff admits that the land, within which the defendant’s land falls is within the compulsorily acquired land by the government. The plaintiff has however not produced any evidence that when the government acquired the land, Koffe put in a claim for compensation. Section 4(1) of the State Lands Act, 1962 (Act 125) says; \r\n“A person who claims a right or has an interest in land subject to an instrument made under section 1 or whose right or interest in that land is affected shall, within six months \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 11 | P a g e  \r\nform the date of the publication of the instrument made under section 1, submit in writing to the Lands Commission \r\na) Particulars of the claim or interest in the land of that person b) The manner in which the claim or interest is affected by the executive instrument issued under this Act c) The extent of the damage done  d) The amount of compensation claimed and the basis for the calculation of the compensation \r\nIn the original Act, the period for submitting claims was three months but the State Lands (Amendment) Act (Act 586) of 2000 amended the three months period to six months. Apart from the fact that the plaintiff has not been able to lead evidence that Koffe has any interest in the land, they have also not led any evidence that after the acquisition Koffe made a claim on the government to release the land. In exhibit 10, Nii Anto Nyame II, Weija Mantse; Nii Ofei, Mantse of Kokrobite; Nii Akwetey IV, Bortianor Mantse; Nii Emmanuel A. Tagoe, Asafoatse and Secretary of Kokrobite; Nii Arde Nkpa, Mantse of Plerno; and Nii Ali Agbonarh, Tuba Mantse wrote to the Ministry of Food and Agriculture for the executive instrument 60 and 61 to be revoked. There is no indication in exhibit 10 that Koffe took part in the request to government to revoke the two executive instruments. I therefore hold that Koffe does not own any part of the land acquired by the government for the irrigation project.  \r\nSince, the land occupied by the defendant falls within the land acquired by the government for the irrigation project and Koffe represented by the plaintiffs does not own part of the irrigation land, I hold that the land claimed by the plaintiffs is part of the land acquired for the irrigation project from the Bortianor stool and that the land claimed by the plaintiffs is part of Bortianor land compulsorily acquired by the government. Again, even if Koffe has land as claimed by the plaintiffs, that land cannot be the land occupied by the defendan since the plaintiffs have not been able to prove the boundaries of the claimed land. \r\nIn the plaintiffs’ statement of claim, the boundaries of the land was given as follows “bounded on the north by proposed road measuring 1,400 feet more or less, on the south by proposed road measuring 1,200 feet more or less, on the east by a proposed road measuring 4,600 feet more or less, and on the west by proposed road measuring 4,240 feet more or less. The land is said to be located at Koffe Bortianor, and measures approximately 128.18 acres. \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 12 | P a g e  \r\nThe defendant denied paragraph 3 of the amended statement of claim and pleaded further that that land is part and parcel of a larger land which was the subject of a statutory declaration. \r\nThe plaintiffs’ averment having been denied, the plaintiffs are under an obligation to prove the boundaries, as held in Barkers Wood vs. Nana Fitz (2007-08) SCGLR 879, where the Supreme Court speaking through Dr. Date-Bah JSC at page 891 considered section 10(1) of the Evidence Act 1975 (NRCD 323) and held that “Since the defendant claimed that the admitted oral contract between himself and the plaintiff had been rescinded by mutual agreement, the persuasive burden clearly was on him to prove that assertion ei incumbit probation qui decit non qui negat. This burden of persuasion remains on the defendant even if the evidential burden shifts as a result of any assertion made by the plaintiff in response to this claim. The common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim”.  \r\nSince in this case, it is the plaintiffs who claimed a particular piece of land, the plaintiffs were under an obligation to prove the boundaries of the land as held in Akoto II and Others vs. Kavege and Others (1984-86) 2GLR 365, where the Court of Appeal considered the issue of adjoining boundary between two villages or towns. The court considered the cases of Egyin vs. Aye (1962) 2GLR 187 at 191 where Van Lare JSC answered a similar point in the Supreme Court as follows “It was submitted on behalf of the appellant that the issue in the 1920 consolidated actions related to boundary only and that title was not involved. The submission is ingenious but misconceived as a boundary dispute between owners or occupiers of adjoining lands necessarily raises title to the section of land enclosed between the two conflicting boundaries asserted by the opposing parties.” \r\nThe Court of Appeal again referred to the case of Abakam Effiana Family vs. Mbibado Effiana Family (1959) GLR362 at 363-36, where the Court of Appeal held that: \r\n “We think that this case being in the nature of a boundary dispute between two adjoining land owners, and the burden therefore rested upon the plaintiffs to establish with particularity the extent of the land which they claimed and the boundaries of it…” \r\nThe Court of Appeal after analyzing these cases held that “the boundaries of the land were not established. No boundary neighbours were called to testify to the ownership of the adjoining lands. The failure to prove boundaries even of only one side was fatal and the fact that the defendant had counterclaimed did not lessen that burden.” \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 13 | P a g e  \r\nIn this case, the 1st plaintiff did not make any effort to lead evidence on the boundary as pleaded. The 1st plaintiff however led evidence on the boundaries of Koffe town. \r\nThese were the questions and the answers given by the 1st plaintiff in his evidence in chief \r\nQ: Where exactly is Koffe? \r\nA: Koffe is a town after Bortianor \r\nQ: This Koffe does it share boundaries with any town? \r\nA: Yes my Lord \r\nQ: Can you mention the towns? \r\nA: These towns are Weija, Bortianor, Kokrobite and Amanfro \r\nIf however these are said to be the boundaries of Koffe lands, then it does not reflect the boundaries pleaded in the amended statement of claim. The 1st plaintiff was challenged on the boundaries given: \r\nQ: Are you aware that Bortianor stool land share boundary with Weija stool? \r\nA: It is not true \r\nQ: I am putting it to you that your allegation that Koffe lands boundaries with Weija stool, Bortianor stool, Kokrobite and Amanfro lands is false \r\nA: It is true \r\nHaving been challenged on the boundary owners, the plaintiffs should have called their named boundary owners even if what was pleaded differed from the evidence that the 1st plaintiff gave. \r\nThe boundary owners of Koffe given by P.W.1 in evidence in chief are different from the evidence of the boundary given by the 1st plaintiff. This is evidence given by P.W.1: \r\nQ: Where exactly is this Koffe? \r\nA: Koffe shares boundaries with Ngleshie Amanfro, Tuba, Kokrobite, Oshieye, Bortianor and Weija. \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 14 | P a g e  \r\nWhereas the 1st plaintiff himself did not mention Tuba and Oshieye, P.W.1 mentioned them as boundary owners. \r\nIn the amended statement of claim the plaintiffs claimed that the plaintiffs and people of Koffe are the equitable owners of the land so described in the schedule below, which is as follows; \r\nb) An order of perpetual injunction to restrain the defendant, its lessors, assignees, agents, workers and all who cometh onto the land at their instance from interfering in the plaintiffs’ quiet enjoyment of the land. c) Damages for trespass \r\nThe reliefs claimed by the plaintiffs are such that, the plaintiffs put their title in issue. The plaintiffs should have therefore led evidence on the identity and extent of the land that they claim. The plaintiffs claim that before the government compulsorily acquired the land, they and the Koffe people were the equitable owners of the land. In Sagoe and Others vs. Social Security and National Insurance Trust (2012) 2SCGLR1093, the Supreme Court held in its first holding that “Since the claim of the plaintiffs had included damages for trespass and an order of perpetual injunction, the reliefs sought by them necessarily required their title to the lands to be determined even though there was no claim for declaration: \r\nIn this case the defendant denied that the land that they occupy had ever been for the people of Koffe, the plaintiffs should have called all the persons or towns that they shared boundary with. Interestingly, the plaintiff never mentioned any town or village that shares boundary with Koffe. The boundaries as pleaded in the plaintiffs pleading may not refer to Koffe land, but to the settlement called Koffe. Having pleaded that it is bounded on north by proposed road measuring 1,400 feet more or less, on the south by proposed road measuring 1,200 feet more or less, on the east by a proposed road measuring 4600 feet more or less and on the west by a proposed road measuring 4,240 feet more or less, the plaintiffs were under an obligation to prove these, as it has been held by the Supreme Court in the case of Hammond vs. Odoi and Another (1982-83) GLR1215, and speaking through Charles Crabbe JSC at page 1231 to 1235 of the report and concluded at page 1235 that: \r\n“Pleadings are the nucleus around which the case-the whole case- revolves. Their very nature and character thus demonstrate their importance in the actions as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 15 | P a g e  \r\nof each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case…” \r\nThe plaintiffs did not lead evidence in proof of the boundaries as pleaded. Whereas in the pleading proposed roads were said to be Koffe’s boundary, in evidence, the 1st plaintiff mentioned towns. This is a departure from the plaintiffs pleading with regard to Koffe’s boundaries. \r\nApart from the fact that the 1st plaintiff departed from the pleaded boundaries, the names that he gave as Koffe’s boundary neighbours did not appear in exhibit A being the plan of Koffe’s land. This plan has also not been registered as envisaged by section 24(1) of the Land Registry Act 1962 (Act 122). In Asare vs. Brobbey and Others (1971) 2GLR 331, at page 336 the Court of Appeal speaking through Archer J.A referred to section 24 (1) of Act 122 and posed a question \r\n“What does the phrase “shall be of no effect” mean? It undoubtedly means that it shall be of no legal effect, in other words, it is either void or a complete nullity. Briefly no legal consequences flow from its execution” \r\nThe plaintiffs also called only one of the boundary neighbours mentioned by the 1st plaintiff in his evidence to give evidence for the plaintiffs. In Akoto II and Others vs. Kavege and Others (1984-86) 2GLR365, the Court of Appeal held as one of its holdings that “…boundaries of the land were not established. No boundary neighbours were called to testify to the ownership of the adjoining lands. The failure to prove boundaries, even of only one side was fatal and the fact that the defendant had counterclaimed did not lessen that burden”. Refer also to Yaa Kwesi vs. Arhin Davies and Another (2007-08) SCGLR 580. \r\nI therefore hold that even if the land were not government land, the plaintiffs had failed to prove that identity of the land that they claim. \r\nThe defendant on the other hand has no counterclaim. The defendant gave evidence that it is in possession of the land. The plaintiffs themselves admit that the defendant is in possession of the land and had walled it. Since the land is government land, and the defendant is in possession, it is the government that can recover the land from the defendant but not the plaintiffs. In Duah vs. Yorkwa (1993-94) IGLR217, the Court of Appeal held that “It was a settled principle that a person in possession and occupation was entitled to the protection of the law against the whole world except the true owner or someone who could prove a better title…” \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 16 | P a g e  \r\nAgain in Osei (substituted by) Gilard vs. Korang (2013-14) ISGLR 221 at page 234, the Supreme Court speaking through Ansah JSC, said “Now in law, possession is nine-tenths of the law and plaintiff in possession has a good title against the whole world except one with a better title. It is the law that possession is prima facie evidence of the right to ownership and it being good against the whole world except the true owner, he cannot be ousted from it”. \r\nFrom the totality of the evidence, I dismiss the plaintiffs’ claims. \r\nConsidering the fact that an Interlocutory Injunction had been placed on the land since 26th November 2012 and that injunction had stalled all developments on the land, I am of the view that cost of GHC20,000.00 may reasonably compensate the defendant for this suit. \r\nThe defendant is therefore awarded cost of GHC20,000.00  \r\n         (SGD) \r\n        JUSTICE S. H. OCRAN \r\n       JUSTICE OF THE HIGH COURT   ', 'S. H. OCRAN, J', 'Civil', '', 'FAL 894/12', '', '', '', '0000-00-00', '');
