INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(510, 'ELLIS TAMAKLOE     -   APPELLANT\r\nVRS\r\nTHE REPUBLIC         -   RESPONDENT\r\n', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nVttfl wi\r\nCORAM: ATUGUBA JSC (PRESIDING)\r\n \r\nANSAH JSC\r\nADINYIRA (MRS) JSC	17TH February, 2010 BAFFOE-HONNIE JSC\r\nARYEETEY JSC\r\n \r\n\r\n\r\n\r\nEvidence Act 1975 (NRCD 323j £18 (2) - Proof of commitment of narcotic offence— Prosecution to prove possession and know/edge— Re/iance on circumstantia/ evidence— Factors to be considered.\r\nIUDGMENT\r\nANSAH, ISC:\r\nEach accused was charged with and convicted for the offences of: ''COUNT ONE\r\nSTATEMENT OF OFFENCE\r\n \r\n\r\n\r\n•	PARTICULARS OF OFFENCE.\r\n1 ROGER OCLOO 2 ELLIS TAMAKLOE on or about 29th August 2006 at the DHL Office, Kanda in Accra, in the Greater Accra Region did attempt out of Ghana without any licence issued by the Minister of Health, a quantity of Cannabis Sativa a Narcotic Drug, weighing 695g.\r\nCOUNT TWO\r\nSTATEMENT OF OFFENCE\r\nPossession of Narcotic Drugs without lawful authority contrary to Section 2 of the Narcotic Drugs (Control Enforcement and Sanctions) Law, 1990, PNDCL) 236.\r\nPARTICULARS OF OFFENCE\r\n1 ROGER OCLOO, 2 ELLIS TAMAKLOE, on or about the 29th August 2006 in Accra in the Greater Accra Region, without lawful authority, did have in your possession and under your control a quantity of Cannabis Sativa , a Narcotic Drug weighing 695 g."\r\nThe accused were found guilty on both counts, convicted and sentenced to the\r\nminimum 10 years jail term on each count to run concurrently.\r\nThe prosecution gave evidence through five witnesses and closed its case, after which the accused persons opened their defence but called no witnesses.\r\nThe second accused (hereafter called the appellant) was aggrieved by the conviction and sentence and appealed to the Court of Appeal, which dismissed the appeal on both counts. The appellant once again appealed to this court against the judgment of the Court of Appeal on the grounds that:\r\n1. "The learned Appeal Court judges erred in law on the facts when they\r\nmade wrong inferences from the evidence advanced at the trial that\r\nthe appellant attempted to export narcotic drugs without lawful\r\n \r\n3\r\nauthority contrary to Section 56(a) and (1) of the Narcotic Drugs Act, •	PNDCL 236.\r\n2.	The learned Appeal Court occasioned a grave miscarriage of justice and in the process erred when they held that the appellant had possession of narcotic drugs without lawful authority contrary to section 2 of PNDCL 236 when no evidence was adduced to support that finding.\r\n3.	The learned Appeal Court Judges failure to consider the evidence led at the trial that the parcel originated from one Harry Campbell occasioned a miscarriage of justice when they concluded that the parcel originated from the appellant.\r\n4.	The learned trial judge and the Appeal Court Judges occasioned a grave miscarriage of justice and misdirected themselves on the law of circumstantial evidence when they held that the appellant was guilty of the offences of attempting to export narcotic drugs without lawful authority contrary to section 2 of PNDCL 236\r\n5.	Further grounds of appeal would be filed upon receipt of the reasons for the judgment and the Record of proceedings,"\r\nThe facts as presented to the trial court and which formed the basis of prosecution, conviction and sentence of the appellant, were that on 20th August 2006, workers at DHL offices in Accra noticed an unusually large parcel said to contain documents for posting to the UK. When examined it was found to contain rather compressed leaves, which tested positive for ''cannabis sativa'', a narcotic drug. Further investigations by officials of the Narcotic Control Board revealed that the first accused, a courier of the company, had brought the parcel to the office meant for shipment. When questioned the first accused said it was\r\n3\r\n \r\n4\r\n'' the appellant who gave the parcel to him and further denied all knowledge of the 40	contents of the parcel.\r\nOn his part the appellant admitted giving a parcel to the first accused but\r\nasserted it was not the one alleged to contain the drugs.\r\nThe grounds of appeal seemed to say and mean one and the same thing relating to inferences drawn by the trial court and affirmed by the Court of Appeal with regard to the possession and attempt to export the prohibited drugs by the appellant. The issue was could the trial court have been right in its findings and conclusions and could the Court of Appeal have been right in affirming the judgment of the trial court?\r\nIt is not always that there will be direct evidence to prove the commission of an\r\noffence and circumstantial evidence has often been used. The leading case of The State v Anani Fiadzo [1961] 1 GLR 416-419 the Supreme Court held that:\r\n"A presumption from circumstantial evidence should be drawn against an accused person only when the presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt, the inculpatory facts must be incompatible with the\r\ninnocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt."\r\nIn other words, as was held in Duah v The Republic [1987-88] .1 GLR 343-360, it\r\nwas only when the guilt of an accused person had necessarily to be inferred from the facts before the court that it would be safe for a court to act upon\r\ncircumstantial evidence. In a recent decision by this court in Logan v The Republic [2007-2008] Aninakwa JSC re-echoed the law on circumstantial evidence when he said:\r\n \r\n5\r\n•	"... for circumstantial evidence to support a conviction it must be\r\n•	inconsistent with innocence of the accused. It must lead to irresistible\r\nconclusion not only that the crime had been committed but it was in fact committed by the persons charged in order to arrive at a definite conclusion. Conviction based on circumstantial evidence which is not supported by facts is wrongful."\r\nI think the trial judge herein was right in her statement on the law of\r\ncircumstantial evidence when she said:\r\n"The primary burden on the prosecutor to prove the guilt of the accused\r\nbeyond reasonable doubt may not always be discharged by the provision of direct evidence. As stated in section 18(2) of the Evidence Decree 1975\r\n(N.R.C.D 323), Circumstantial evidence including the acts of the accused may point to one and only one inference which may be sufficient proof. The State v Anani Fladzo [1961] GLR 416 SC"\r\nThis being a criminal trial, the prosecution bore the onus of proving the offence beyond reasonable doubts in order to secure the conviction of the appellant. The ingredients of the offence of possessing narcotic drugs as can be gleaned from\r\nthe offence created by section 2 of the Narcotic Drugs Control, Enforcement and Sanctions Law , 1990 PNDCL 236 which provided that:\r\n"2 Any person who without lawful authority, proof of which shall be on\r\nhim, has in his possession or under his control any narcotic drug commits\r\nan offence."\r\nTo secure a conviction of a person charged with the offence of possessing a narcotic drug under PNDCL 236, the prosecution must prove beyond reasonable\r\ndoubts that\r\n \r\n6\r\n	I.	"the appellant had custody or control of the drugs;\r\n	H.	he knew of the presence of the drugs; and\r\n	iii.	he knew of the nature of the drugs possessed":\r\nsee Bonsu alias Benjilo v The Republic [2000] SC&LR 112 at 123.\r\nIt is not always capable of proving the commissioning of an offence especially, those dealing with narcotic drugs, by direct evidence considering the sophistication with which the offence is committed, which is always increasing. Circumstantial evidence is often resorted to for it is often the best.... Bamford¬Addo could not have been more right when she said at page 123 that:\r\n"The proof of knowledge or mens rea is not capable of direct proof but same may be inferred from established facts as stated in Section 18 2 of the Evidence Decree, 1975, NRCD 323. s18 2 states as follows: ''An inference is a deduction of fact that may logically and reasonably be drawn from another fact found or otherwise established in the action."\r\nThe case of Republic v Munkalla [1996-97] SCGLR 445 dealt with what constituted the offence of possession of narcotic Drugs, and decided that:\r\n"A person is said to be in constructive possession or joint possession of an object if he has control over the other person in physical control of article at his disposal, control or otherwise. The actual manual possession or touch of the goods by the prisoner, however, is not necessary to the completion of the offence. It is sufficient if the prosecution can prove that the article was in the possession of a person over whom the defendant or accused had control so that the article would be forthcoming if he ordered it: see R v Smith Dears/ey and PCC 494; P v Gleed (1917) 12 CR App. P. 32a and Archbold\r\n \r\n7\r\nCriminal Pleading, Evidence and Practice (3& ed.) at 780 at para\r\n.	1531":\r\nWhat were the facts which the trial judge found as established by the evidence and from which she inferred the appellant committed the offences in question?\r\nDetails of the facts have been given earlier in this opinion and to recapture them it is that in his defence, the appellant admitted that he received a sealed parcel from one Harry Campbell but he never opened to see the contents. Harry Campbell told him the envelope contained catalogues. But what he received was different from what the prosecution showed him on his arrest. Whether or not the envelope or parcel the appellant admitted he gave the first accused was different from what was tendered in evidence was a question of fact to be determined by evidence before the trial judge. The learned judge found the appellant admitted giving a parcel to the first accused and further testified that he had personally written his name and address of the consignee on the airway bill found attached to the parcel. He had seen that the space for the name of the consignor had already been indicated wrongly as the Company called Friesland.\r\nWas there any evidence that there was any signature on the parcel and that it belonged to the appellant? If there had been that proof then the appellant would have had to explain how that came to be and so was easy and reasonable to deduce it established an infrangible nexus between the appellant and the parcel. The appellant appended his signature on the parcel and admitted receiving the parcel from Harry Campbell. That constituted physical possession thereof; which possession continued when he also admitted giving it to the first accused even if that was so constructively. The prosecution succeeded in proving the appellant had possession of the parcel. The conviction on count one was therefore supported by evidence.\r\n \r\n8\r\nKnowledge that what he possessed was Cannabis Sativa a narcotic drug was largely a matter of inference deduced from the evidence led and it is to that that I shift my focus now. Quite apart from that the appellant possessed the parcel, he said he noted the address of the sender on the pre-printed airway bill on the parcel as having not been his. Harry Campbell had given it to him for postage and the query is if he knew that Harry gave the parcel to him for postage and he was doing that when he gave it to the first accused non-appellant why did he not write either his name or that of Harry as the sender when he saw it was that of Freisland Company? In his evidence under cross-examination, he said:\r\n"Q Did you give him any shipment details for the parcel?\r\nA. It was on the envelope-the senders address and the Recipient address\r\nQ The first Accused person said you did not give him any senders address for the parcel you gave him?\r\nA Senders address was on the envelope.\r\nQ Do you remember what it was?\r\nA. I can''t recollect but it was Harry Campbell''s name but the address I cannot recollect.\r\nQ. You said the first accused gave you an airway bill when you gave the parcel to him?\r\nA. Yes My lord.\r\nQ. And you filled in some details on the bill?\r\n \r\n9\r\nA. Yes, my Lord. He showed me where to fill.\r\nQ. Have a look at this. Was that the airway bill you filled on that day?\r\nA. Yes, I believe so.\r\nQ. Do you remember the recipient address?\r\nA I remember my hand writing (words italicized for emphasis.)\r\nBY COURT: A 2 WAS SHOWN EXHIBIT A.\r\nQ. Was that the airway bill Mr. Ocloo gave you when you gave him the parcel?\r\nA. Yes Ibelleve so because my hand writing is there (emphasis supplied)\r\nQ. And you said that that bill he gave you was there a portion for senders address?\r\nA. Yes My Lord.\r\nQ. But?\r\nA. But I realized that it has been filled with a company address.\r\nQ. You did not find any thing strange about that one?\r\nA. I asked him and he said they had run short of airway bill so he will change it when he gets to the office.\r\nX	x\r\n9\r\n \r\n10\r\nQ. After you had filled this form what happened?\r\nA During the filling of the airway bill I realized that the sender''s address side was filled and he told me that they had run out of blank airway bills so he will go to the office and put the information on a blank airway bill so there is no need for me to sign."\r\nFrom the evidence, the appellant found it strange that the parcel Harry Campbell gave him for shipment, had been filled with a company address in the portion for sender''s address. It was not difficult to find why it was strange to the appellant; simply put, the company was not the sender of the parcel. Yet that was the airway bill the appellant signed that day, thereby making it his own. And he gave it to the first accused non-appellant for shipment. In other words the appellant physically possessed the parcel. That plainly was manual or physical possession of the parcel and its contents, thus satisfying a vital ingredient in the offence in count two.\r\nThat alone will not lead to the guilt of the appellant for not only must the prosecution prove the factum possidendi by the appellant, it must also be proved he had it coupled with the animus possidendi or the intention to possess it which constituted the mens rea.\r\nIn the English case of Warner v Metropolitan Police Commissioner [196912 A.0 [1969] 2 All ER. 356, a majority of the House of Lords held that a person could not b in possession of dangerous drugs unless he was at least aware of the nature of that which was under his control, although it was (on the preponderant view within the majority) unnecessary for the prosecution to show that he knew of its quality. This English view of what was legal possession did not reflect the Ghanaian view and is not applicable as was explained by Atuguba JSC in Bonsu\r\n10\r\n \r\n11\r\n(supra) at page 123. The Ghanaian view was expressed by 011ennu JSC in\r\nAmattey v The State [1964] GLR 256 at 261 that:\r\n"What is the possession proof of which without more makes a person guilty of an offence under the section 47(1) unless he proved that his possession was lawful. Upon a proper construction of the section, the\r\npossession must be possession with knowledge of the nature and quality of the article; that what he possessed awareness that what he possessed is ''opium or Indian hemp'', or residue from the smoking of opium or ''Indian hemp''. Physical possession without that knowledge is no offence. Without that knowledge there is no legal possession which\r\ncan support the charge. Therefore to succeed on such a charge, the prosecution must prove legal possession; that is in addition to proving physical or constructive possession they must go further to lead evidence which establishes that the defendant had the requisite\r\nknowledge or evidence from which it will be reasonable to presume\r\nthat the defendant proved to be in possession well knew or ought to\r\nhave known, that the article he possessed was ''opium or Indian hemp'', or was ''residue from smoking of opium or Indian hemp''." See Amartey v The State SC [1964] GLR 256; Nyameneba v The State [1965] GLR\r\n723,SC.\r\nThe offences in question dealt with the exportation and the prohibition or possession of narcotic drugs. I have elsewhere in this opinion stated the ingredients of the offence in count two to be that the appellant in addition to\r\nhaving physical possession of the prohibited drugs knew actually or ought to have known that what he possessed was a narcotic drug, to wit cannabis sativa,\r\nor Indian hemp. Such knowledge will constitute the mens rea of the offence which Lord Morris of Borth-y-Gest said in Sweet v Parsley [1970] A.C. 132 at 152 that:\r\n \r\nU\r\n0 "It has frequently been affirmed and should unhesitatingly be recognized that it is a cardinal principle of our law that mens rea, an evil intent or a knowledge of the wrongfulness of the act is in all ordinary cases an essential ingredient of guilt of a criminal offence."\r\nProof of such a vital ingredient in the offence is not always capable of direct proof and facts proved in evidence are often used as such proof. The trial judge found as such facts as the admission by the appellant giving the parcel to the first accused a proven DHL courier, in the service of DHL, to send to the U.K. (via DHL), even though the appellant claimed Harry Campbell gave the parcel to him for that purpose, his name or that of the appellant did not appear on the parcel as the sender; instead that of the Friesland company had been there. The falsity in that was proved by the prosecution beyond all reasonable doubts for the appellant admitted having written the name of the sender on the parcel. If by his evidence the name of that company had been written on the parcel as the sender then by necessary inference he wrote the name which was proved to be false.\r\nThen he wrote that which was false as the sender. Why did he have to do that if it was not to avoid detection as to who the real sender was and the contents of the parcel to be illicit, to wit Sattiva cannabis or Indian hemp. This would on the whole prove the fact that the appellant knew of the nature and quality of the substance he possessed actually or constructively, as a narcotic drug. That meant the prosecution proved the most essential ingredient in the offence to wit the mens rea, beyond all reasonable doubts by the prosecution beyond all reasonable doubts as held by the trial judge and rightly affirmed by the appellate court that the appellant was deeply involved in committing the offences, for he had physical possession of the parcel, and that was coupled with the presumed knowledge that what he possessed was sativa cannabis a prohibited drug. On the evidence he was not who Atuguba JSC called the ''luckless victim'' but the real ''criminal recruit'' in the Benjilo case.\r\n12\r\n \r\n13\r\nThere was evidence that the illicit parcel was to be exported to the U.K. when the appellant gave it to the first accused a DHL courier. The evidence by the appellant that he did not know of the contents to have been sativa cannabis was false, neither was it reasonably true judging from his acts and behaviour.\r\nIn the circumstances the lower courts were justified in finding the appellant guilty of both offences, convicting him accordingly and imposing the sentence on him. They are further affirmed by this court and the appeal dismissed.\r\nJ. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\nBAFFOE-BONNIE, JSC:\r\nSince the facts of this case have been adequately recounted I will not repeat them. The appellant was charged, together with one Roger Ocloo, with two counts as follows:\r\n1.	Attempted exportation of narcotic drugs without lawful authority, contrary to sections 56(a) and 1(1) of the (Narcotics, drugs (Control, Enforcement, and Sanctions) Law 1990 PNDCL 236\r\n2.	Possession of Narcotic Drugs without lawful authority contrary to section 2 of the Narcotic Drugs (Control, Enforcement and Sanctions) Law 1990 PNDCL 236\r\n \r\n14\r\n•.	He was tried, convicted and sentenced. His appeal to the Court of Appeal was dismissed. He has appealed to this Court on the following grounds:\r\n1.	The learned Court of Appeal Judges erred in law and on the facts when\r\nthey made wrong inferences from the evidence adduced at the trial that the appellant attempted to export narcotic drugs without lawful authority contrary to section 56 (a) and (1) of the Narcotic Drug Act, PNDCL 236;\r\n2.	The learned Court of Appeal occasioned a grave miscarriage of justice and in the process erred when they held that the appellant had possession of narcotic drugs without lawful authority contrary to section 2 of PNDCL 236\r\nwhen no evidence was adduced to support that finding;\r\n3 The learned Appeal Court Judges'' failure to consider the evidence led at\r\nthe trial that the parcel originated from one Harry Campbell occasioned a\r\nmiscarriage of justice when they concluded that the parcel originated from the appellant;\r\n4 The learned trial Judge and Appeal Court Judges occasioned a grave miscarriage of justice and misdirected themselves on the law of\r\ncircumstantial evidence when they held that the appellant was guilty of\r\noffences of attempting to export narcotic drugs without lawful authority\r\nand possession of narcotic drugs without lawful authority contrary to section 2 of PNDL 236\r\nThis appeal raises two fundamental issues as follows:\r\n1 Whether or not the criminal intent of an accused person is a\r\nnecessary ingredient for a Court to conclude that there was possession of a Narcotic substance contrary to Section to 2 of The\r\nNarcotic Drugs (Control, Enforcement and Sanctions) Act, 1990.\r\n \r\n\r\n \r\n2 The proper use of circumstantial evidence in criminal trials.\r\nIt is trite learning that for an action or omission to constitute an offence, there has to be a coincidence of the act or omission with the requisite intention to commit the offence. This intent can be direct or constructive since a man is deemed to intend the reasonable consequences of his action or omission. Every crime contains expressly, or by implication a proposition as to a state of mind except where the statute expressly excludes the element of intention thereby making it a strict liability offence. Goddard 0 captured this position of the law aptly in Brend V. Wood (1946) TIR 462 as follows:\r\n"It is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that unless a statute, either clearly or by necessary implication, rules out mens rea a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless his mind is guilty"\r\nIn determining whether mens rea is an essential ingredient of an offence under a statute, it is necessary to consider the words of the statute itself and the subject matter with which it deals. No difficulty arises in determining whether the legislature intended an offence to be one of a strict liability where in the definition of the offence expressions like intentionally, fraudulently, knowingly, dishonestly etc are used because these words indicate a condition of mind. The difficulty arises where no such expressions are used by the statute. The section in issue deals with prohibition on possession of narcotic drugs and it provides as follows:\r\n \r\n16\r\n• 1) A person who, without lawful authority, the proof of which lies on that person, has possession or control of a narcotic drug commits an offence\r\nReading the offence creating section It is clear that the accused person''s liability arises where it has been proven that what he possesses or has control over is a Narcotic drug or where it will be reasonable to fix him with such knowledge.\r\nIn the instant case there is evidence from both the prosecution and the defence to the effect that it was not possible to look at the sealed parcel in issue from the outside to know the contents. The Appellant in his evidence said that Harry Campbell handed him the parcel already sealed, told him it contained catalogues and instructed him to post it on his behalf. Nowhere has this piece of evidence been denied by the prosecution. Indeed, during the trial one prosecution witness PW2, Mr. Djangba, told the Court that the parcel in issue had gone through two of the three pronged stages the parcels go through at the DElL office successfully without anybody having any reason to suspect that the parcel contained substances other than the documents they were alleged to contain. It was only at the bagging stage that one officer opened the parcel and it was realised that it did not contain documents. It is important to note that the two stages the parcel went through successfully were the debriefing stage and the reweighing and scanning. If at the reweighing and scanning stage the parcel was not detected to contain prohibited drugs, how can it be said that the Appellant''s mind should have been put on enquiry when he was handed a sealed parcel for postage by a friend. It is my candid opinion that this is not a case in which the accused can reasonably be fixed with knowledge of the contents of the parcel. And without proof of knowledge legal possession cannot be said to have been made out.\r\nWhat constitutes possession has been decided by our courts in a number of cases. In Amartey v. The State F19641 GLR 256, 011enu JSC posed the question and answered as follows:\r\n16\r\n \r\n17\r\n.	,\r\n"What is possession, proof of which, without more, makes a person\r\nguilty of an offence under section 47(1), unless he proved that his possession is lawful? Upon a proper construction of the section, the possession must be possession with knowledge of the nature and quality of the article; awareness that what is possessed is "opium or Indian hemp" or residue from the smoking of "opium or Indian hemp". Physical possession without that knowledge is no offence. Without that knowledge there is no legal possession which can support the charge. Therefore to succeed on such a charge, the prosecution must prove legal possession; that is in addition to proving physical or constructive possession, they must go further to lead evidence which establishes that the defendant had the requisite knowledge, or evidence from which it will be reasonable to presume that the defendant proved to be in possession well knew, or ought to have known, that the ankle he possessed was "opium or Indian hemp" or was "residue from smoking of opium or Indian hemp"\r\nThis statement of the law given in 1964 has not changed. Atuguba JSC in the\r\ncase of Bonsu v. The Republic I 1999-20001IGLR 199 made this statement\r\nat pgs 225-226.\r\n"Once again, as the memorandum to PNDCL 236 shows: "The purpose of this law is to bring under one enactment offences relating to illicit dealing in narcotic drugs" and to prevent illicit narcotic drug dealers from benefiting from their crimes" A person who does not even know the nature and quality of the substance he possesses cannot be said to engage in illicit dealing in narcotic drugs" but is merely a luckless victim" whom our legislature, prima facie does not hold to ransom".... From all the foregoing, I hold that on a charge of possessing a narcotic\r\ndrug under PNDCL 236 the prosecution must prove:\r\n17\r\n \r\n18\r\n1.	Custody or control of the drug by the accused;\r\n2.	Know/edge of the presence of the drug by the accused\r\n3.	Knowledge of the nature of the drug possessed"\r\nFrom the accepted evidence on record, and applying this principle and the three staged test to the current case, I am unable to say that the appellant had legal possession since his knowledge of the contents of the parcel as containing narcotic drugs has not been proved to evidential certainty. Once the prosecution fails on this then the second part of the section which seeks to fix an appellant with a strict liability of proving the lawfulness of his authority to possess will not arise. Equally the first count would also fail because a person cannot reasonably be said to have attempted to export a drug which he did not legally possess.\r\nThe second issue, not exactly unconnected with the earlier one, which I will like to discuss, is the appropriate use of circumstantial evidence in proof of criminal charges.\r\nConcluding her judgment the learned trial judge noted thus;\r\n"These del/berate acts of concealment point irresistibly to an awareness of the illegality of the whole enterprise and specifically as breaching the provisions of the narcotics laws as charged"\r\nFrom the facts of this case, and as confirmed by the above quoted statement by the trial judge, there was no direct evidence that the appellant had knowledge that the parcel he attempted to post contained narcotics. He was convicted based on all the circumstances put together and imputed with knowledge of the contents of the parcel. I will concede that it is almost impossible to prove intention, knowledge, and other such legal requirements by direct evidence. That is why in most cases knowledge of the existence or non existence of something is often proved by circumstantial evidence other than direct evidence.\r\n18\r\n \r\n\r\n \r\nfb	Adrian Keane in the Modern Law of Evidence, Third Edition at page 10\r\ndefined Circumstantial evidence as\r\n"... evidence of relevant facts (facts from which the existence or non-existence of\r\na fact in issue may be inferred) and contrasted with direct evidence, a term\r\nwhich is used to mean testimony relating to facts in issue of which a witness has or claims to have personal knowledge or first hand knowledge."\r\nCircumstantial evidence may take the form of oral evidence (including admissible hearsay) or real evidence. In the English case of Teper v. R f19521\r\nAC 480 at page 489  Lord Normand observed as follows:\r\n"Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, only because evidence of this nature may be fabricated to cast suspicion on another...It is also necessary before drawing the inference of the accused''s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference."\r\nThe law on circumstantial evidence has been espoused variously by the\r\nGhanaian Courts in several cases.\r\nIn the 1961 case of Anane v. Fiadzo 1961 1 GLR 416 the Supreme court had\r\nlaid down the bench mark for the use of circumstantial evidence in criminal trials\r\nas follows\r\n" a presumption from circumstantial evidence should be drawn against an accused person only when the presumption follows irresistibly from the circumstances proved in evidence ; and in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused\r\n19\r\n \r\n20\r\nand incapable of explanation upon any other reasonable hypothesis than that of guilt"\r\nThe court of appeal later in 1987 put it even more succinctly in the case of Duah v Republic 1987-88 1 GLR 343 as follows;\r\n"Circumstantial evidence was evidence of surrounding circumstances which by undesigned coincidence was capable of proving a proposition with the accuracy of mathematics. In criminal cases, it was sometimes not possible to prove the crime charged by direct or positive evidence of persons present at the time the crime was committed. So where the testimony of eye-witnesses was not available, the jug'' was entitled, and indeed permitted, to infer from those facts which the prosecution had proved, other facts necessary either to complete the elements of guilt or establish innocence. However, before drawing the inference of the guilt of an accused from drcumstantial evidence, it was very important to make sure that there was no other co-existing circumstance which would destroy or weaken the inference. Thus, circumstantial evidence had to be closely examined and acted upon only when the circumstances were such that the guilt of the accused had of necessity to be inferred and that the facts led to no other conclusion"\r\nAt the trial the appellant put up two defences\r\n1.	That the parcel that was intercepted was not the parcel that he had initially given to the 1st accused person, and\r\n2.	He did not know that the parcel he gave to the Pt accused, which had been given to him by one Harry Campbell for posting, contained any banned or narcotic drugs.\r\nThese are formidable defences separately and collectively, and the prosecution and the court could not just wish them away by a cursory wave of the hand.\r\n20\r\n \r\n21\r\nAs an accused person, the only thing that he was required to do through out the trial was to raise reasonable doubt. He produced evidence to show that the parcel did not originate from him and that he was only a messenger of Harry Campbell. Again, he said that he did not refuse to collect the postage receipt or alter the sender''s address deliberately. According to him, it was the first accused who gave him a pre-printed airway bill with Friesland Ltd as the sender''s address. He queried this anomally and the first accused assured him that it was only because he had ran out of blank airway bills and that he was going to do the right thing when he got back to the office. Someway, somehow he failed to do so. The first accused confirmed this story and said that it was not because they were trying to hide anything but only because he sought to pocket the postage sum. This evidence was further corroborated by a prosecution witness from DHL who said that the couriers sometimes engaged in such practices but when they were found out they were dismissed. This has been the case of the appellant right from the time of his arrest to now!\r\nIn the face of this consistent and weighty evidence this is what the Court of Appeal said;\r\n"There is no doubt that it was appellant who actually delivered the parcel to the courier for export. What he sought to do was to show that he did not know the contents of the envelope which he alleged contained documents........The trial judge considered this defence adequately and rejected it because by his own conduct appellant deliberately concealed the identity of the real sender, falsified the address and signature and the route, all in an attempt to escape detection. These acts were rightly found by the trial court not to be consistent with the acts of an innocent person. These acts together with the fact that the appellant personally wrote the name of the consignee at the time when he had seen the name of the consignee wrongly, indicated as Friesland\r\n \r\n22\r\nI	I	.4\r\nand refusing to take receipt for the payment that he made, further condemn the appellant."(emphasis added)\r\nBut what exactly did the trial judge say that led the learned Justices of the Court of Appeal to conclude that she had considered the evidence adequately and come to a conclusion which they did not feel inclined to disturb? In her four and a half page judgment this is all that she said about the evidence on record.\r\n"	The testimony of the second accused shows that by previous\r\nassociation, he knew of the correct procedure for remittances through DHL yet he had acted to the contrary in respect of the offending parcel. His complicity in using a false address and a false signature of the sender address on parcel is in my opinion not innocent acts of omission but rather acts deliberately executed with the sole purpose of preventing the detection of the real sender\r\nof the parcel. These deliberate acts of concealment point irresistibly to an awareness of the illegality of the whole enterprise and specifically as breaching the provisions of the Narcotic laws as charged."\r\nWhy the Learned Justices of the Court of Appeal, like the Learned Trial Judge, came to the conclusion that these recounted acts constituted credible circumstantial evidence to support conviction, I cannot fathom. Suffice it to say in a criminal trial the appellant was only supposed to raise reasonable doubt to earn an acquittal. It is my candid opinion that the Appellant succeeded in raising reasonable doubt in the case of the prosecution to earn an acquittal. Conversely, the prosecution failed to prove their case beyond reasonable doubt.\r\nLet me end this judgment by quoting what our brother Aninakwa )SC said in the case of Loclan v. The Republic 12007-20081 1 SCGLR 76 \r\n \r\n23\r\n• ". . for circumstantial evidence to support a conviction it must be inconsistent with innocence of the accused. It must lead to irresistible conclusion not only that the crime had been committed, but it was in fact committed by the persons charged in order to arrive at a definite conclusion. Conviction based on circumstantial evidence which is not supported by facts is wrongful"\r\nThe evidence on record cannot be said to be one which works by cumulatively eliminating other possibilities in a geometric progression. The plausibility of the accused person''s innocence is deafening. It is for the foregoing reasons that I allow the appeal set aside the conviction and sentence and enter a not guilty verdict for the appellant on both counts.\r\nP BAFFOE-BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nATUGUBA, JSC:\r\nI agree that the appeal be dismissed.\r\nW.A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\nADINYIRA (MRS), JSC:\r\nI had the benefit to read beforehand the opinions of my brothers Ansah and Baffoe-Bonnie uSC. I support the conclusion reached by Ansah, JSC that the appeal be dismissed.\r\nS. 0. A. ADINYIRA (MRS) JUSTICE OF THE SUPREME COURT\r\n23\r\n \r\n•\r\n \r\nARYEETEY, JSC:\r\nI also agree that the appeal be dismissed.\r\nB. T. ARYEETEY\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL: \r\nNENE AMEGATCHER ESQ. FOR THE APPELLANT.\r\nVALARIE AMARTEY (CSA) FOR THE ATTORNEY GENERAL.\r\n \r\n''\r\nsale.° kill\r\n.	Sla ‘ ,.... N\r\n\\	\\ _ ,---\r\n\\	„zs\r\n.	°A..''\r\n....;	s\r\n \r\n', '../links/cases/Document (2).pdf', 'Yes', 'ANSAH JSC, ADINYIRA (MRS) JSC, BAFFOE-BONNIE JSC, ARYEETEY JSC', '2010', 'supreme', '<i><font face="Times New Roman" size="2">Evidence Act 1975 (NRCD 323), s.18 (2) - Proof of commitment of narcotic offences - Prosecution to prove possession and knowledge - Reliance on circumstantial evidence - Factors to be considered.</font></i><br>', 'ATUGUBA ,J.S.C', 'Criminal', '', 'J3/2/2009', '', '', 'supreme', '2010-02-17', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(504, 'LT.COL. KUURE MULLER VRS MESSRS HOME FINANCE COMPANY', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCORAM:	ANSAI-I JSC (PRESIDING)\r\nADINYIRA (MRS) JSC\r\nDOTSE JSC\r\nANIN-YEBOAII JSC\r\nAICOTO-BAMFO (MRS) JSC\r\nCIVIL APPEAL\r\n14/1/2012\r\n14111 NOVEMBER 2012\r\nLT. COL. KUURE MULLER	--- PLAINTIFF/RESPONDENT/APPELLANT H/NO 60 JUBA TERRACE\r\nBURMA CAMP, BRIGADE HEADQUARTERS\r\nTESHIE-ACCRA\r\nVERSUS\r\nMESSRS HOME FINANCE COMPANY DEFENDANT/APPELLANT/ EBANKESE NO.35, SIXTH AVENUE	RESPONDENT\r\nNORTH RIDGE, ACCRA\r\nContract - Breach of contract - Damages - Whether plaintijf is entitled only to $40, 000 plus interest or entitled to current market value of house - Principle of\r\nrest itiztio in integrum - Principle of stability of contracts —Entitlement of plaintiff to current market value.\r\n \r\nJONES DOTSE JSC: \r\nThis is an appeal by the Plaintiff/Respondent/Appellant, hereafter referred to as the Plaintiff against a Court of Appeal judgment dated 16th December, 2010 in favour of the Defendants/Appellants/Respondent, hereafter referred to as the Defendants. In this regard, it has to be noted at this stage that the plaintiff who instituted the suit against the Defendants, was initially successful in the High Court, but the Court of Appeal reversed the High Court decision of 6th February 2008.\r\nFACTS\r\nThe Plaintiff purchased a five bedroom house at a public auction in 2002 that was conducted by Adonten Mart at the instance of the Defendants, a leading financial institution in the country and one of the major players in mortgage financing of houses. The House that the Plaintiff purchased from the defendants following an advertisement of the auction that the Defendants placed in the local newspapers had the following features:\r\n1.	The compound measured approximately 120 feet by 100 feet and included space to park cars.\r\n2.	The house has five spacious bedrooms and air conditioning facilities in the sitting room and master bedroom.\r\n3.	The roof was made of painting tiles whilst the floor was tiled with porcelain tiles.\r\n4.	The windows of the house were aluminum sliding windows and the doors were sliding and burglar proof.\r\nThe Plaintiff contended that, after having seen the advertisement on the sale of H/No BAE A/25 Baatsona, Accra, he went and inspected the said house and found the above features all in place and accordingly was satisfied with the house. As a result, the plaintiff successfully bid on the property at the auction that was conducted on the 12th day of September 2002 and succeeded in securing the house with his bid of $40,000USD. The Plaintiff paid the Defendants the auction price of the house, and Defendants also handed over the property to him.\r\nThe Plaintiff however faced resistance from the original owner of the house, (one Cyril Kofi Hayford) when he attempted to move into the house. This original owner,\r\n \r\nsuccessfully sued the Defendants, the plaintiff and the Auctioneer and claimed the • house back and retained the rights as owner.This prevented the plaintiff from occupying the house he had bought with the purpose of occupying.\r\nAfter the Plaintiff failed to reach agreement with the defendants on the sudden turn of events, he sued the Defendants at the High Court, Accra claiming the following reliefs:\r\nRELIEFS CLAIMED BY PLAINTIFF AGAINST DEFENDANTS AT HIGH COURT\r\na.	Delivery of a five bedroom house situate at Baatsona with the features set out in paragraph 4 of the statement of claim.\r\nAlternatively\r\nThe open market value of a comparable house at the same location\r\nb.	Loss of rent on the house from 12th September 2002 to date of payment.\r\nc.	Order for the payment of the legal costs of Plaintiff in the earlier suit.\r\ne.	Damages for breach of contract\r\nDECISION OF HIGH COURT\r\nAfter trial, the learned High Court Judge found in favour of the Plaintiff and ordered as per judgment dated 6th February 2008 that it will be appropriate in the circumstances of the case to order plaintiff to be paid the current market value of the house in the state that he purchased it. The learned trial Judge reasoned that, it is only such an order that will restore to him as near as possible the property that he had lost. This is what the learned trial Judge said:\r\n"I see this a pure sale of landed property transaction which has failed because\r\nthe seller, in this case the HFC, failed to give title to the purchaser, the\r\ndefendant Reliefs the plaintiff Is entitled to it is my view will have to be\r\nexamined from this light Where a defendant has failed to make good title in\r\nrespect of a sale of land transaction, the plaintiff''s entitlement is a refund\r\nof the purchase price. He is entitled further to interest on the amount\r\nfrom the date of payment until the date refund is made to him unless\r\n \r\nthe parties intended otherwise. Where he has been involved in\r\ninvestigating title of the land such expenses incurred will have to be\r\nrefunded to him. This mode of award of damages to the purchaser was\r\nformulated in the old case of Bain v Fotherhill (1874) LR7 HL 158. The\r\nprinciple applied in this case is in accord with the purpose for the\r\naward of damages. The purpose of damages is to put the party who\r\nhas suffered as a result of the breach in nearly the same position that\r\nhe would have been had the other party not broken the contract In\r\nthe Supreme Court case of Royal Dutch Airlines v Fermex Ltd. (1989 \r\n90) 2 GLR 623 at 644 the court stated:-\r\n"On the measure of damages for breach of contract, the principle\r\nadopted by the courts in many cases is that of restitution in\r\nintegrum i.e. if the plaintiff has suffered damage that is not too\r\nremote, he must, as far as money can do it, be restored to the\r\nposition he would have been in had that particular damage not\r\noccurred ..... This means the plaintiff has to be put into the\r\nposition he would have achieved if the contract were performed,\r\nand he is allowed to recover damages on the basis of returning\r\nhim to the position before the contract was made. The amount of\r\nmoney adjudged to be due to him must be assessed as at the time the\r\ncontract was broken."\r\nContinuing, the trial Judge concluded thus:\r\nI have no doubt that the plaintiff suffered some damages. He bought the\r\nproperty to occupy as his residence when on retirement and for which he paid\r\n$40,000. I think in the first place the plaintiff will need a house similar\r\nto one he lost And it is appropriate in the circumstances of the case to\r\norder that he be paid a current open market value of the house in the\r\nstate that he bought it It is my view that it is only such an order that will\r\nrestore him as near as possible the lost property''\r\nBased on the orders made by the High Court in favour of the Plaintiff and with further orders for the Land Valuation Board to determine the current open market value of the house in issue which was carried out as a basis to be used for the replacement\r\n \r\ncost, the Defendants felt aggrieved and appealed the decision of the High Court to the Court of Appeal.\r\nCOURT OF APPEAL DECISION\r\nFrom the appeal record, it is certain that the Defendants were successful in their appeal. This is because, the final orders made by the Court of Appeal stated as follows:-\r\n"This court however orders that the defendant refunds the Plaintiff/respondent the cedi equivalent to this $40,000 USD as at 2002 when the money was paid with the prevailing commercial interest at that time, i.e. 2002 to date."\r\nThe above orders of the Court of Appeal must be considered against the background of what the Court of Appeal earlier stated in the judgment as follows:\r\n"Nobody can blame the Plaintiff for not mitigating his loss as submitted by Counsel for HFC since they kept assuring him they would re-possess the house and give same back to him "but would take time". With this from an institution like HFC what do they expect the plaintiff to do, nothing but to keep his fingers cross and wait for them to fulfill their word. The law and the courts seek to do justice and nothing else. Is it fair to just return plaintiffs 1150 40,000 to him after eight (8) years, from 2002 to 2010, definitely no, since that will occasion a grave miscarriage of justice, to say the least\r\nIt''s our candid opinion that the plaintiff is an innocent purchaser for value without notice who should not suffer the negligence of the defendant/appellants. Their Legal Department should have made sure all procedures are duly followed before they advertise this sale to the public. It''s not the duty of the innocent purchaser to ensure the right processes and procedures are followed before the bid. It''s a presumption that since this is official all procedures have been duly followed. This is not an auction flowing out of a judgment debt, that obliges the judgment creditor to ensure title and interest of the judgment debtor in the property so auctioned for the debt The negligence of HFC should not be laid at plaintiff''s door step but they suffer the consequence of their negligence.\r\n \r\nWe do not think that trial judge erred in holding that plaintiffs be paid\r\nthe current market value of the property after all the principle of\r\nrestitutio in integrum is to restore the party affected by the breach to\r\ntheir original position following a recession of the contract between\r\nthem."\r\nThe Court of Appeal in my opinion correctly stated the facts and the law when they stated further as follows:\r\n"In effect to restore him to that position the party that caused the\r\nbreach has to pay him the open market value of the house he lost to\r\nenable him purchase another house similar to the one he lost\r\nPlaintiff''s original position was his capacity and ability to purchase a\r\nhouse the nature or size of the subject matter. USO 40,000 cannot buy\r\nhim a house now in 2010 similar to what he lost in 2002 We therefore\r\nuphold the trial Judge''s finding and would not disturb same."\r\nemphasis supplied\r\nThe Court of Appeal further held in their judgment as follows:\r\n"On the question whether the judgment is against the weight of the evidence,\r\nwe have very carefully perused, examined and assessed and evaluated the\r\nentire evidence on the record of proceedings and we have come to the\r\nconclusion that the judgment is supported by the evidence on record."\r\nHowever, in a sudden turn of events, the Court of Appeal concluded their judgment in the following closing terms, hence the plaintiff''s appeal to the Supreme Court.\r\n"This court however order that the defendant refunds the plaintiff/ respondent the cedi equivalent to this USD 40,000 as at 2002 when the money was paid with the prevailing commercial interest at that time, i.e. 2002 to date. In addition, for the inconvenience cause the plaintiff, the court hereby award punitive cost of GH45,000 to the plaintiff/ respondent against the defendant."\r\n \r\nAPPEAL TO SUPREME COURT AND GROUNDS\r\nDissatisfied with the decision of the Court of Appeal, the Plaintiff has therefore lodged this appeal to this court with the following as the grounds of appeal.\r\ni.	The order of the Court of Appeal is wrong in law against the correct statement of the law on quantum of damages which was stated by the Court itself because the order does not restore the Plaintiff/Respondent to the position that he would have been but for the breach by Defendant/Appellant; it in fact makes him worse off.\r\nii.	The order is against the weight of the evidence.\r\niii.	Further grounds of appeal to be filed upon receipt of the record of appeal.\r\nNo additional grounds have been filed, and the following are the issues for determination.\r\nISSUES FOR DETERMINATION\r\nHaving perused the statement of case of the parties, I am of the opinion that the following two issues are germane to the resolution of the dispute that has arisen between the parties before this court.\r\n1.	Whether the plaintiff is only entitled to $40,000USD plus interest or\r\n2.	Whether he is entitled to the current market value of the house that was sold to him but undelivered.\r\nThis Supreme Court has therefore been requested to consider relatively straightforward contractual matters. The facts of the case have to be simplified thus, that the Plaintiff purchased a house from the Defendants, but they did not deliver the house as was agreed upon in the contract of sale.\r\nThe plaintiff on his part lived up to his part of the bargain in paying the Defendants the sum of $40,000USD at the auction for the 5- bedroom house. How did the\r\n \r\nDefendants live up to their end of the bargain in ensuring that the house the plaintiff purchased was specifically delivered to him?\r\nEven though the Defendants were prevented by a subsequent court proceedings by the original owner of the house to deliver the house, it is clear that the defendants failed to perform due diligence in the entire transaction, hence their inability to deliver the house. I am of the opinion that, the defendants ought to have made sure of their title before embarking upon the auction sale. As pace setters in mortgage financing of housing in Ghana and a very reputable Financial Institution (attributes which this court can take judicial notice of) it is not surprising that the plaintiff accepted the deal and went along with the defendants.\r\nWhat beats my imagination is that, if the Defendants were convinced about the genuineness of their decision to sell the house at the public auction, then having lost the action instituted against them by Mr. Hayford, the original owner of the house, they could have appealed against that decision.\r\nFor example, in the instant appeal, the defendants lost at the trial court, but appealed that decision which they surprisingly won an appeal to some extent. It was because of their conviction that they had a good case that led them to successfully appeal the trial court decision in the instant case.\r\nAs matters stand now, when and where it mattered most, the defendants abandoned the plaintiff and left him to his fate.\r\nBefore I deal with the two legal issues identified supra, I wish to observe by reiterating the point that despite the fact that the Court of Appeal varied and or reversed the High Court decision, both courts all affirmed the fact that the plaintiff is entitled to damages for breach of contract. The question then is what is the quantum of damages that the plaintiff is entitled.\r\nWhilst the High Court held that the Plaintiff is entitled to present day value of a 5-bedroom house with similar specifications to the one purchased by the plaintiff, the Court of Appeal held that the plaintiff is only entitled to $40,000USD plus interest accrued since the purchase of the house in 2002.\r\n \r\nThese are the two conflicting decisions that this court is presently faced with upholding one over the other.\r\nRESOLUTION OF THE ISSUES IDENTIFIED\r\nSince any attempt to deal with the identified issues will dovetail into each other, I have decided to lump the two issues together in the discussions and analysis herein. I believe it is fairly well settled that where appropriate, the "principle of restitutio integrum"shall apply in cases of breach. What then would be the position which the plaintiff would have been but for the breach and for which reason he needs to be restored?\r\nThe Court of Appeal in my opinion correctly identified and dealt with this problem in the following statements:-\r\n"In effect to restore him to that position the party that caused the breach has to pay him the open market value of the house he lost to enable him to purchase another house similar to the one he lost Plaintiff''s original position was his capacity and ability to purchase a house the nature or size of the subject matter $40,000050 cannot buy him a house now in 2010 similar to what he lost in 2002. We therefore uphold the trial Judge''s finding and would not disturb same."\r\nAs I observed earlier, the Court of Appeal correctly stated the principles based upon an understanding of the facts on record. However, the order made by the Court runs counter to their reasoning and understanding of the said principles. The Court of Appeal missed the point when it ordered that the Defendant Bank should pay to the Plaintiff the cedi equivalent of $40,000 USD with interest, simpliciter without taking into account the loss of the Plaintiff in enjoying the house he purchased in 2002.\r\nWhat happened to the Court of Appeal''s own observation that the party that caused plaintiff the breach has to pay him the open market value of the house he lost in order to enable him purchase another house similar to the one he had lost? The Court of Appeal really did a somersault in their analysis and conclusion reached in the matter. The facts of this case, as correctly stated by the trial High Court, clearly establish the fact that, the plaintiff must be paid sufficient damages by way of compensation to enable him purchase a similar house.\r\n \r\nHowever, with the orders they made, and taking into account the fluctuations in the building industry, it is certain that, the plaintiff cannot purchase a similar house with the sum of $40,000 USD in 2010, whilst the amount was paid for the original purchase in 2002. Even with interest charges, judicial notice can be taken of the fact that with the rate of inflation from 2002 up to the present single digit inflation, the plaintiff has been dealt a devastating blow by this Court of Appeal order.\r\nIn my respectful opinion, this was an error and ought to be reversed by this court.\r\nIt appears that the Court of Appeal accepted the Defendant Bank''s contention that it must only return the $40,000 USD plus interest to the plaintiff in order to return the plaintiff to his original position, and this to me is unreasonable, does not make sense and is also illogical.\r\nWhy do I say so? This is because the defendant entered into a contract with the Plaintiff and the object of the contract was the 5-bedroom house with the amenities suited supra being handed over to him.\r\nSecondly, the price that the plaintiff paid for the house is incidental to the object of the contract, which is the 5-bedroom house.\r\nThirdly, it has to be noted that, housing markets are known to fluctuate and the said markets can therefore be unstable whilst the house may have been worth $40,000USD in 2002 that is clearly no longer the case, that house is worth considerably more today than it was years ago.\r\nFourthly, since the contract between the parties was for a house, to direct that the plaintiff recover his money plus commercial interest would work a lot of injustice on the plaintiff. Without taking into consideration the present day value of the type of house.\r\nFifthly, since the specific house is no longer available, the only just course of action left for the defendants is to provide the Plaintiff with monetary equivalent that would enable him to purchase a similar house. The cost or the quantum of this house must be based on the current market value of similar houses, as was rightly held and determined by the High Court and the Court of Appeal itself.\r\n \r\nFinally, this Supreme Court must for good public policy reasons such as the need to value legal instruments or contractual transactions and thereby emphasise the concept or principle of stability of contracts.\r\nIt was in 2002 that the plaintiff and the Defendants entered into the contract for the purchase of the 5- bedroom house. Ten years down the line that object has become a mirage, and it will be a travesty of justice to say at this moment that the contract is worth only $40,000, and not the actual value of a 5 —bedroom house which was the very object of the contract. Such a conduct I dare say would run counter to the notion of stability of contracts.\r\nPerhaps it will not be out of place at this juncture to reiterate the fact that, if it is desirable for people to use contracts in the business world to regulate and control their dealings with one another, then it is the duty of the law courts to give teeth to these contracts to enable them bite and bite very hard when the contracts are honoured in the breach by the parties.\r\nIt has recently been stated that there are some babies who have very strong teeth who can bite very hard. If that is so, then adults who enter into legally enforceable contracts, conscious of the consequences whenever there is a breach must be held accountable for any such lapses.\r\nIf the law courts are not careful in providing adequate remedies whenever a breach of contract like the instant case occurs, then there is likely to be the risk that parties may play into the theory of "efficient breach'' For instance, if the Defendant bank, was fur example dissatisfied with the price that it received from the plaintiff for the house, it could simply breach the contract because this would be more cost effective than honouring it.\r\nLuckily, this is not the reason in the instant case. However, there is the need for the courts, especially a final and appellate one at that to send clear message that contracts shall be honoured more in their observance than in their breach.\r\nConsidering all the above factors and principle, the only logical and reasonable thing to do is that, the defendants owe the plaintiff a 5-bedroom house (or its present day\r\n \r\n\r\nmonetary equivalent), and unless such a decision is given by the courts, the very '' usefulness of contracts as legal instruments could fall into disrepute.\r\nIn analyzing the facts of this case with the legal principle of "restitutio in integrum"it is perhaps necessary to do some comparative studies into some other common law jurisdictions.\r\nIn Canada for example, even though the remedy of "restitutio in integrum"is provided in tort law, it''s corresponding remedy in the law of contract is "expectation damages/Which is a very powerful remedy. By the application of this principle, not only will an individual be restored to the original position whenever there has been a breach of contract, but the individual who suffered the loss is also entitled to the profit of which they have been deprived arising as a result of the breach of the contract.\r\nIn essence, expectation damages goes beyond simply restoring an individual to their original position, but it also provides them with their lost expected profits.\r\nIn the United Kingdom as well, expectation damages are recognised for breach of\r\ncontract. See case of Czarnikow C Ltd. v Koufos, The Heron II [1966] CA\r\naffirmed sub nom 1969 Hi [1969] 1 A.0 350, 1-19671 3 A.E.R 686, which is a\r\ncase that is very well known and applied to illustrate principle of remoteness of damages, can also be applied in this instant. In the said case, the English Court of Appeal held that plaintiff was entitled to loss of profits that resulted when a vessel carrying sugar arrived later than it was contractually obligated to.\r\nApplying the above principles to the facts of the instant case, it would mean that the plaintiff would be entitled not only to the current market value of the 5 bedroom house, but also to the lost rent that could have accrued since 2002 when he purchased the house.\r\nFor this type of award to be made, the plaintiff must have pleaded the necessary evidence and also lead evidence on it. Indeed, the Court of Appeal was spot on the issue when it stated in the judgment as follows:-\r\n \r\n"It trite learning that, it''s not the duty of the trial court in civil cases to make the case for the parties. The courts duty is to evaluate the evidence before it, see whether the parties have established their cases or not, and if it did then the court is obl(g''ed to enter judgment for that party on the preponderance of probabilities. The court enters judgment for the party for what it asked for and not to give him what the court thinks he needs"(sic) (page 109 of record).\r\nEven though I agree to a large extent with the above statement, I think it is fairly now established that on the principle of doing substantial justice, the court may in some circumstances grant a party reliefs it did not ask for, provided the grant of that or those reliefs will help achieve substantial justice to the case and bring litigation to an\r\nend between the parties. See case of Hanna Assi (No.2) v GIHOC Refrigeration\r\n& Household Products Ltd. (Not 2)12007-200811 SCGLR 16.\r\nIn the instant case, although the plaintiff did raise the issue of lost profits due to the rents which could have accrued to him had the contract to purchase the house not failed, on the totality of the facts of this case, has the plaintiff led compelling evidence that he is entitled to lost profits in the nature of accrued or lost rents?\r\nThe evidence on record suggests that the plaintiff intended to live in the said house upon his retirement, but until that event, he could have rented it and gotten some profit. To date, there is no evidence that the plaintiff has retired. The Plaintiff failed to lead sufficient evidence on loss of rents.\r\nWhat is very clear from the facts of this case, and from which none of the parties can depart from or deny is that, the Defendants sold a house to the plaintiff they did not have valid title to.\r\nFlowing from the above, it follows that, the Defendants, and not the Plaintiff should bear the damages that have resulted from selling the house to the Plaintiff, as the Plaintiff was unwillingly drawn into this transaction.\r\nI have adverted my mind to the statement of case filed by learned Counsel for the respective parties. What is clear from the legal issues raised is that, once the deal has gone bad, the Defendants cannot rely on their carelessness to avoid the legal ramifications of breaching its contractual obligations.\r\n \r\n\r\nAccordingly, the plaintiff ought to be put in the position he would have been but for - the inability of the Defendants to deliver the house to him. See case of Livingstone v\r\nRaw yards Coal Co. [1880] 5. App. Cas. 251 39 where Lord Blackburn stated the\r\nprinciple of\r\n"restitutio in integrum" compensation should be that sum of money\r\nwhich will put the party who has been injured in the same position as\r\nhe would have been if he had not sustained the wrong for which he is\r\nnow getting his compensation or reparation."\r\nI have also considered notable Ghanaian authorities relevant to the issues germane in this case like the following:\r\n1.	CFAO v Thome 119661 GLR 107 S.0\r\n2.	Borkloe v Nogbordzi [1982-83] GLR 1003\r\nIn all the above cases, the central theme running through them is that, in cases where there has been total failure, the measure of damages is the current market value principle and if that was not easily ascertainable, then the\r\ncost of replacement principle would be used.\r\nThis is especially important in view of the fact that both the trial High Court and the Court of Appeal found that the Defendants lured the Plaintiff into entering a contract for the sale of the house which was subsequently declared by a court of competent jurisdiction to be invalid. Both courts also accept that the plaintiff is entitled to damages.\r\nSimilarly, this court has also held that an appellate court will not and should not disturb the award of damages by a trial court unless it can be shown that the award was based on wrong principles of law or that, the trial court completely misapplied the facts of the case to the awards it published.\r\nSee cases like\r\n1.	Bressah v Asante, [1965] GLR 117\r\n2.	Flint v Lovell [1935] 1 K.B 354, C.A\r\n3.	Karam v Ashkar [1963] 1 GLR 139, S.0 at 149 where the Supreme Court\r\n \r\nmade reference to the judgment of Morris L.J in the English case of Scott v Musial [1959] 3 A.E.R 193 at 195.\r\nSince there has been no such wrong application of the principles of law involved or the findings of fact, and considering also that the Court of Appeal in all material respects confirmed the findings and the basis of the awards made by the learned trial Judge, it is clear that there was no real legal basis and justification for the Court of Appeal to have departed from the findings and award of the trial court.\r\nAccordingly, I find that there is therefore no real, compelling and sound reason why this court should depart from the findings of fact made by the learned trial court. The inLervention made by the Court of Appeal in my opinion was wrong and should not be allowed to stand.\r\nThis Supreme Court has in many decisions held that, unless findings of fact made by the trial court and concurred in by the first appellate court, were found to be perverse, and not supported by evidence on record, a second appellate court, like this court will not interfere, vary or depart from such findings. See cases of:\r\n1.	Achoro v Akan fe/a [1996- 97] SCGLR 209\r\n2.	Obeng v Assemblies of God Church, [2010] SCGLR 300\r\n3.	Akuffo-Addo v Cat/i//ne [1992] 1 GL  377 S.0\r\n4.	Gregory v Tandoh IV and A nor [2010] SCGLR 971\r\nOn the basis of these authorities I find it difficult to accept the Court of Appeal interference in the findings made by the trial court.\r\nBefore I conclude this judgment, there is one small matter that I feel bound to comment upon. This is the submission by learned Counsel for the Defendant''s that a High Court had declared the transaction between the plaintiff and defendants for the sale and purchase of the house at the auction as null and void and therefore defendants should not be held liable for the breach. Learned counsel then referred to\r\nthe case of SchandorfvZeini[1976]2GLR41Sto support his contention. I have\r\napprised myself of the above decision and am of the view that, the said case does not apply at all.\r\nIn the Schandorf vZeinicase, what the Court of Appeal stated in unequivocal terms was that, to be material such that the courts would deprive a plaintiff of it''s\r\n \r\na\r\nassistance, the illegality complained off must form the basis of the plaintiff''s claim for relief. In otherwords, the claim must be founded on the illegal act. It is however clear that the plaintiff in the instant case has not founded his action on any act of illegality perpetuated by him. The said case is therefore not applicable. The facts are different\r\nWhat must not be lost sight of is that, the Defendants before they placed the advert in the papers must have been deemed to have done their own due diligence. In any case, the transaction was not an illegal one, but only that the Defendants in their indecent haste to recover their money failed to take the necessary legal steps that would have enabled and empowered them to have transferred good and valid title to the plaintiff.\r\nConsidering the relative strengths and weaknesses of both parties in the transactions that have culminated in these proceedings, the Defendants no doubt were in a better position to ensure that it actually had title to the property it had sold at the auction. The Defendants as I indicated in this judgment, are lead and major players in the Financial, Housing and Mortgage market.\r\nHaving therefore advertised publicly in a national daily for the auction sale, the plaintiff, no doubt would have been convinced by the huge pedigree of the Defendant in the sector. The contention of illegality by Defendants against Plaintiff in the transaction therefore does not hold.\r\nCONCLUSION\r\nIn conclusion, I will allow the instant appeal against part only of the Court of Appeal judgment of 16th December 2010.\r\nThat part of the decision of the Court of Appeal setting aside the current replacement cost of the house is accordingly reversed and the decision of the High Court dated 6th February 2008 and 17th April 2008 respectively is upheld and restored.\r\nThe Plaintiff is therefore entitled to the present day value of the 5- bedroom house which he contracted for in 2002. Since that house is now significantly worth more than the $40,000 USD which the Plaintiff paid in 2002, the Defendants must provide him with money at current open market value to enable him purchase or build a similar house.\r\n \r\n[SGD]	J. V. M. DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD1	J. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD] S. O. A. ADINYIRA [MRS.]\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD] ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD] V. AKOTO BAMFO [MRS]\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL.\r\nGABRIEL PWAMANG AND RAYMOND BAGNABU FOR THE PLAINTIFF/ RESPONDENT/\r\nAPPELLANT.\r\nLEXKUDOZ FOR THE DEFENDANT/APPELLANT/RESPONDENT.\r\nr\r\n17\r\nOViC)\r\nN	-\r\n', '../links/cases/Document (126).pdf', 'Yes', 'Adinyira JSC, Dotse JSC, Anin-Yeboah JSC, Akoto-Bamfo (Mrs) JSC', '2012', 'supreme', '<i>Contract - Breach of contract - Damages - Whether plaintiff is entitled only to $ 40,000 plus interest or entitled to current market value of house - Principle of restitutio in integrum - Principle of stability of contracts - Entitlement of plaintiff to current market value.</i><br>', 'ANSAH JSC', 'Civil', '', 'NO.J4/1/2012', '', '', 'supreme', '2012-11-14', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(506, 'THE REPUBLIC                           RESPONDENT\r\nVRS\r\nHIGH COURT, HO\r\n\r\nEX-PATRE: NANA DIAWUO BEDIAKO II        APPLICANTS\r\nOMANHENE OF PAI TRADITIONAL AREA\r\nOMANHENE’S PALACE\r\nPAI KATANGA, KRACHI EAST DISTRICT\r\nNANA ADOMAKO MENSAH\r\nSTOOL FATHER OF THE OMANHENE STOOL\r\nPAI TRADITIONAL AREA, PAI KATANGA\r\n\r\n1.	OPANYIN KWADWO ODUM             INTERESTED PARTIES\r\n2.	CONSTANCE SAFO\r\n3.	BEN OWUSU aka KWAKU KURU\r\n4.	BEATRICE BOAME aka AUNTIE B\r\n5.	THE REGISTRAR, HIGH COURT, HO\r\n\r\n', '	\r\nRULING\r\nJONES DOTSE JSC:\r\nThis is an application by Nana Diawuo and another, hereafter referred to as the applicants herein, who described themselves as the Omanhene and stool father of the Pai Traditional area, in the Krachi East District of the Volta Region respectively.\r\nBy this application, the applicants invoke the supervisory jurisdiction of the Supreme Court for the orders of Certiorari and Prohibition to quash all the proceedings and orders made by the High Court, Ho in respect of Suit No. F. 22/07/2011 intitutled Opanyin Kwadwo Odum and 3 others v The Republic dated 19th October, 2010 presided over by Abada J, and also prohibit the said court and Judge from further hearing any application in respect of the case.\r\nFACTS\r\nThe applicants were complainants in the criminal prosecution of the interested persons at the Circuit Court Hohoe in a case intitutled The\r\nRepublic v Opanin Kwadwo Odum, Constance Osarfo, Benjamin Owusu Kwaku Kum, Beatrice Boame @ Auntie Bea.\r\nAt the Circuit Court, the Interested parties herein, therein accused persons were tried and convicted on four counts of:\r\ni.	Conspiracy to commit crime contrary to section 23 (1) of Act 29/60\r\nii.	Unlawful damage contrary to section 172 (i) (b) of Act 29/60\r\niii.	Unlawful entry contrary to section 15 (2) of Act 29/60\r\niv.	Stealing contrary to section 124 (1) of Act 29/60\r\n2\r\nThe Circuit Court, Hohoe on the 28th day of September, 2010 sentenced each of the Interested parties to six (6) months imprisonment with hard labour on each of the counts with the sentences to run concurrent.\r\nThe complaint of the applicants against the interested parties was that on or by the 7th day of December, 2008 they broke into the stool room of the applicants where the Black stools and other stool regalia of the Omanhene stool of Pai Traditional area were kept and stole same.\r\nThe applicants allege that, after the conviction and sentence of the interested parties on the 28th day of September 2010, the interested parties who were incarcerated at the Kpando and Ho prisons respectively, on the 19th October, 2010 successfully applied to the High Court, Ho presided over by Abada J, who granted an application for bail to the interested parties.\r\nIt is this grant of bail by the High Court, Ho on 19th October, 2010 which is the crux of the applicants application.\r\nThe applicants contend that the High Court, Ho did not have jurisdiction to hear the application for bail pending appeal to the interested parties. This is because, according to the applicants, it is the Circuit Court, Hohoe, the trial Court and the High Court, Hohoe that have jurisdiction to entertain the application for bail.\r\nThe applicants also contend that the interested parties have filed an application before the High Court, Ho praying for an order of stay of Execution of the orders contained in the judgment of the Circuit Court, Hohoe dated 28th September, 2010.\r\nThe applicants therefore seek an Order of Prohibition to restrain Abada J, presiding over the High Court, Ho from presiding over the said application and indeed any other matter connected with that case.\r\nGROUNDS\r\n1. On the grounds of lack /want of jurisdiction\r\n3\r\n2. That the High Court, Ho has no jurisdiction to hear the application for Stay of Execution of the judgment of the Circuit Court, Hohoe without any transfer order from the Honourable Lady Chief Justice\r\nSUBMISSIONS\r\nThe submissions of learned counsel for the Applicants, Mr. Yankyera is to the effect that once the interested parties were tried and convicted by the Circuit Court, Hohoe, it is the same Circuit Court, Hohoe and or the High Court also at Hohoe that the appeal and the subsequent application for bail pending appeal must be filed. Learned Counsel therefore submitted that once the Chief Justice had not transferred the case to the High Court, Ho the said court lacked jurisdiction to have entertained the application and hear same.\r\nIn similar vein, learned Counsel argued that the High Court, Ho not having had jurisdiction in the earlier application, should be prohibited from hearing the pending application for Stay of Execution of the orders of the Circuit Court, Hohoe case No. cc/11/2011 entitled Republic v Opanyin Kwadwo Odum and three others.\r\nOn his part, learned Counsel for the interested parties Akwasi Bosompem contended that since there is only one High Court in Ghana as established under article 139 (1) of the Constitution 1992 and section 14 (1) of the Courts, Act 1993, Act 459, the application for bail pending appeal which was filed at the High Court, Ho at a time the High Court at Hohoe did not have a functional court is proper.\r\nIn a preliminary legal objection, learned counsel for the interested parties, Akwasi Bosompem to whose arguments learned Counsel for the 5th interested party, (the Registrar of the High Court, Ho, Mr. Alex Wiredu Principal State Attorney) associated with, contended that the applicants herein have no capacity to have instituted the instant application invoking the supervisory jurisdiction of the Supreme Court. Learned Counsel contended that, being a criminal case the interested parties can only bring an action with the consent of the Attorney-General.\r\n4\r\nOn the contrary, learned Counsel for the applicants, contended that on the authority of the decision of the Court of Appeal in the case of Republic v Korle Gonno District Magistrate Grade I Ex-parte Ampomah, [1991] 1 GLR 353, this court has jurisdiction. In view of the preliminary legal objection that has been raised, this court has to consider that issue first.\r\nIn the Ex-parte Ampomah case referred to supra, the Court of Appeal was called upon to decide on the issue of whether in a certiorari application, the applicant had to establish that he had locus standi i.e. real or substantial interest in the proceedings sought to be quashed.\r\nThe court of Appeal unanimously held on the above issue in the Ex-parte Ampomah case as follows:-\r\n"The orders of certiorari and prohibition, as the form of the proceedings showed were means for ensuring that the machinery of public administration worked properly and that justice was done to individuals. And because these remedies had a special public aspect to them, an applicant for certiorari or prohibition did not have to show that some legal right of his was at stake. If the action concerned an excess of jurisdiction or abuse of power, for example, the court would quash it at the instance of a mere stranger, although it retained the discretion to refuse to quash it if it thought that no good would be done to the public. The remedies of certiorari and prohibition were therefore not restricted by the notion of locus standi, and every citizen had a standing to invite the court to prevent some abuse of power, and in so doing he might claim to be regarded not as a meddlesome busy body but a public benefactor."\r\nThe above principle in the Ex-parte Ampomah case was recently applied by the Supreme court in the case of In re-Appenteng (Decd) Republic v High Court, Accra Ex-parte Appenteng & Another 12005-2006J SCGLR 18 where the court unanimously held on the said principle thus:\r\n5\r\n"The court upheld the following rules on the scope of the order of prohibition namely:-\r\na.	Prohibition is not meant to prevent a person or a court from exercising general judicial functions,\r\nb.	It is rather to challenge an attempted exercise of the judicial function in specific jurisdictional situations i.e. for excess or absence of jurisdiction or departure from the rules of natural justice such as the existence of actual bias or strong likelihood of bias or interest, and\r\nc.	An applicant for prohibition or certiorari is not restricted by\r\nnotion of locus standi, i.e. he does not have to show that\r\nsome legal right of his is at stake.\r\nIt must be noted that, the Supreme Court in the Ex-parte Appenteng case specifically approved the scope of the above principle that was stated and applied in the ex-parte Ampomah case already referred to supra.\r\nIn the instant case, the applicants herein were the complainants in the criminal case which is the genesis of the entire application before this court. In that respect therefore, the applicants must be deemed to have more than sufficient interest in the matter to qualify them to sustain the application before this court.\r\nWith these authoritative decisions, we have no option but to dismiss the preliminary legal objection raised by the respondents to the competence and or propriety of the applicants to have mounted this application.\r\nWe will now turn to the merits of the instant application.\r\nBy virtue of article 139 of the Constitution 1992 and section 14 (1) (2) and (3) of the Courts Act, 1993 Act 459, the point can safely be made that there is only one High Court in Ghana.\r\nWhat this in effect means is that, even though there is only one High Court denominated both under the Constitution and the Courts Act, for administrative and geographical reasons, there are various divisions and or\r\n6\r\nlocations of the High court. If for instance, a crime is committed say in Hohoe and a report is made to the Hohoe Police, it will be completely out of place if the said case is not prosecuted at either the District Court or the Circuit Court, both of which are in Hohoe, but at Ho without an order under the hand of the Chief Justice authorising transfer as is stipulated in sections 104 or 108 of the Courts Act, Act 459. The procedure outlined where cases are prosecuted in courts within the geographical location is a mechanism designed to prevent forum shopping by prospective litigants before the courts and also for the convenience of litigants to have access to courts very close to them.\r\nIn the instant application, the case from which the interested parties were tried, convicted and sentenced was the Circuit Court, Hohoe. Using the administrative and geographical location, any appeal against that decision must be to the High Court at Hohoe.\r\nIt must be noted, pursuant to section 15 (1) (b) of the Courts Act, Act 459 that an appeal against the Circuit Court, Hohoe decision in a criminal trial is to the High Court, and this by our understanding must be to the High Court, Hohoe, unless it is established that the said court is not functional or a transfer order has been signed under the hand of the Chief Justice.\r\nWe have seen a copy of the Notice of appeal filed by the interested parties against their conviction and sentence by the Circuit Court, Hohoe. It appears the said process was filed at the High Court, Hohoe.\r\nWe have also seen exhibit NDB2A, which is the motion on notice for bail pending appeal which was filed by the interested parties at the High Court, Ho. The said process was filed on or by the 14th October, 2010 and fixed for hearing on 18th October, 2010; but the said application was granted on 19th October, 2010.\r\nFrom exhibit NDB2 it is clear that there was a representative of the Attorney-General who was present in court before the application for bail was granted.\r\nWe have also apprised ourselves of the contents of a search attached to this application as exhibit NDB5 which indicated that even though a High\r\n7\r\nCourt Judge had been appointed for the High Court Hohoe, since 1/10/2010 he did not assume duty until on or by 1/11/2010.\r\nWhat must be noted is that, since applications for grant of bail pending appeal, affects the fundamental rights of the persons involved, these must be handled expeditiously. In view of the fact that, there was no functioning High Court in Hohoe who could have taken the said application, there was nothing wrong in filing the application before the High Court, Ho.\r\nBefore we consider the merits of the application as to whether certiorari will lie to quash the proceedings and orders of 19th October, 2010 made by the High Court, Ho or not, we have to decide whether the application for bail pending appeal which was granted by the High Court, Ho was properly filed before the said court.\r\nThis is because, learned counsel for the applicants had contended that the application for bail by the interested parties ought to have been filed before the Circuit Court, Hohoe in the first instance.\r\nSection 33 of the Courts Act, 1993 Act 459 provides on this matter thus:\r\n"The court before which a person is convicted or the court to which an appeal is made may, on the application of an\r\nappellant, grant bail pending the determination of the\r\nappeal."\r\nIt should therefore be noted that, unlike civil appeals, where applications of this nature must first be made to the trial court and repeated to the appellate court, the situation in criminal appeals is quite fluid. This therefore means that, an appellant in a criminal case who has been incarcerated as a result of the conviction and sentence and is desirous of being released on bail pending appeal has the option of either applying to the trial court, or to the appellate court.\r\nIn our considered opinion, once the interested parties chose to go to the High Court, they cannot be faulted.\r\n8\r\nWe are also of the ''view that the practice generally is that applications for bail pending appeal unlike applications for bail pending trial are always made to the appellate court in the first instance.\r\nWe think there are sound policy measures behind this rule of practice. This is because if the trial court has considered it fit and proper to convict and sentence the appellant to a term of imprisonment, it will be absurd to go back to the same Judge or Magistrate requesting for a release whilst the appeal is pursued. Perhaps this explains why in practice, it is rare for appellants in criminal cases to go to the trial courts for an application for bail pending appeal. The objection by the applicants herein to the propriety of the 1st - 4th interested persons filing the application at the High Court and not the Circuit Court is thus dismissed.\r\nWe will therefore bend on the side of caution, and hold that the applicants have not satisfied any jurisdictional ground, or error of law to sustain the application for certiorari to quash the orders of the High Court, Ho dated 19th October, 2010. What must be noted is that, in such situations each application must be considered on case by case basis.\r\nSee Republic v High Court, Accra, ex-parte Anyan (Platinum\r\nHoldings — Interested Party) 120091 SCGLR 255, at 262 — 263\r\nwhere the court speaking with one voice through Rose Owusu (Ms) JSC held thus:-\r\n"The law is well settled that the supervisory jurisdiction of the court\r\nunder article 132 of the 1992 Constitution is exercised only in those\r\nmanifestly plain, obvious and clear cases where there are\r\npatent and obvious errors of law on the face of the record\r\nwhich error must go to the jurisdiction of the court so as to\r\nmake the decision of the court a nullity."\r\nIn the instant case, there is nothing manifestly clear and obvious that the High Court, Ho did not have jurisdiction or exceeded its jurisdiction at the time it heard and determined the application for bail pending appeal.\r\nIn respect of the order of Prohibition, we are of the considered view that\r\nonce there is as at now a functional High Court at Hohoe, a report of the\r\n9\r\nentire appeal and any consequent application be made to the Chief Justice for a transfer of the said appeal to Hohoe High Court. It must however be understood that the said order is neither based on bias nor real likelihood of bias. This has been necessitated solely by the geographical location of courts throughout the country to facilitate the distribution and hearing of cases on sound principles. The High Court, Hohoe being now functional with a presiding Judge must therefore be made to hear the application and appeal.\r\nSave as is stated supra the application is dismissed.\r\n[SGD]	J. V. M. DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	G.T WOOD (MRS.) CHIEF JUSTICE\r\n[SGD]	ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	N. S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	V. AKOTO-BAMFO (MRS.) JUSTICE OF THE SUPREME COURT\r\nCOUNSEL: \r\nKWAME YANKYERA FOR THE APPLICANT\r\nAKWASI BOSOMPEM FOR THE 1sT — 4TH\r\nINTERESTED PARTY RESPONDENTS\r\nGEORGE KWADWO OFORI, P. S. A. FOR THE 5TH\r\nINTERESTED PARTY RESPONDENT.\r\n	\r\n\r\n', '../links/cases/DOTSE.pdf', 'Yes', 'J. DOTSE J.S.C, ANIN-YEBOAH J.S.C, N.S GBADEGBE J.S.C, V. AKOTO-BAMFO J.S.C', '2011', 'supreme', '<font face="Times New Roman" size="3"><i>State proceedings— Certiorari and prohibition— Jurisdiction— Application for bail pending appeal filed at the High Court, Ho— Whether proper¬— What applicants must show for grant— Applicants convicted by Circuit Court, Hohoe— Whether application be filed at the High Court, Hohoe— High Court Hohoe not functional at the time— Case be transferred to High Court, Hohoe now functional.</i></font>', 'G. WOOD (MRS) C.J', 'Civil', '', 'SUIT NO: J5/8/2011', '', '', 'supreme', '2011-03-03', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(507, 'FELIX YAW BANI\r\nVRS\r\nMAERSK GHANA LIMITED\r\n\r\n', 'IN THE SUPERIOR COURT OF JUDICATURE\r\n•\r\nIN THE SUPREME COURT\r\nACCRA, A.D.2011\r\nCIVIL APPEAL \r\nSUIT NO: J4/48/2010\r\nDATE: 30TH MARCH, 2011\r\n\r\n\r\nFELIX YAW BANI\r\nVRS\r\nMAERSK GHANA LIMITED\r\n\r\nCORAM:  DATE-BAH JSC (PRESIDING)\r\n         DOTSE JSC\r\n         YEBOAH JSC\r\n         ARYEETEY JSC\r\n         AKOTO-BAMFO (MRS) JSC\r\n\r\n\r\n\r\n\r\nContract of employment— Termination of appointment— Failure to give notice in accordance with collective bargain agreement— Effect on employer’s power to terminate— Subcommittee acting ultra vires— Whether employer can act on findings— Natural justice— Audi alteram partem rule— Public law doctrine— Whether in the absence of contract employer is bound to comply with rule— Whether termination proper¬— Labour Act 2003, ss. 15, 18,19,62,63 and 64.\r\n \r\n	\r\nJUDGMENT\r\nDR DATE-BAH, JSC: \r\nThe Facts; \r\nThe plaintiff was the defendant company''s Inland Container Depot (or "ICD") officer stationed at Kumasi. He was in charge of the defendant''s inland container depot there. By a letter of September 19, 2006, the defendant terminated the plaintiff''s appointment. The letter based the justification for this action on the findings made by a subcommittee set up by the defendant to inquire into the matter. The subcommittee had made the finding that the plaintiff had failed to exercise the required supervision over the Kumasi depot by allowing an\r\n2\r\nunauthorized third party truck to be brought into the depot, contrary to company policy. The letter stated that the plaintiff’s failure to exercise effective supervision had placed the defendant at enormous risk.\r\nThe subcommittee''s inquiry had been necessitated by the following episode: a senior employee of the defendant visited its Kumasi depot on 17th August 2006 and found an unauthorized vehicle, which did not belong to the defendant, parked there, in breach of company regulations. This incident triggered the setting up of an investigative sub-committee by the defendant to inquire into it. According to the eventual report of the sub-committee, its terms of reference were:\r\n1.	"To ascertain whether Kenneth Kpedor, an employee of Maersk Ghana Ltd. Owns/manages the unauthorized third party truck, in question with registration number GR 3109 E;\r\n2.	To establish whether Yussif Seidu, also an employee of Maersk Ghana Ltd and driver of the said truck, obtained the consent of Kenneth Kpedor before driving the said truck into the depot; and\r\n3.	To ascertain whether Felix Bani, ICD Supervisor, was aware of the presence of the third party truck at the Kumasi depot."\r\nThe sub-committee found that the plaintiff was aware of a third party truck in the yard of the Kumasi depot on 27th July 2006, but did not take adequate steps to ensure that the truck was moved out within a reasonable time. It further concluded that the presence of the truck on the defendant''s premises had security implications which the plaintiff, in his capacity as depot supervisor, should have been aware of. The subcommittee however found that the plaintiff was not aware of the presence of the unauthorized truck in the depot on 16th August 2006.\r\n3\r\nWhilst the plaintiff''s employment was terminated, the other two employees whose conduct was also investigated by the subcommittee were only served with warning letters. Being dissatisfied with the defendant''s action against him, the plaintiff brought action against the defendant for:\r\n1.	"A declaration that the termination of Plaintiff''s appointment by Defendant on September 19 2006 is unlawful, unfair and without any basis whatsoever.\r\n2.	An order for the immediate reinstatement of Plaintiff and the payment of all benefits lost since September 19 2006 plus interest\r\nOR\r\n3.	In the alternative payment of compensation for the unfair severing of working relationship\r\n4.	Costs."\r\nWhen the plaintiff''s appointment was terminated, there was a collective bargaining agreement in force between the Maersk Ghana Staff Association and the defendant. This agreement provided that it was to form a part of the terms and conditions of employment set out in the defendant''s employees'' contracts of employment. This collective bargaining agreement had separate and distinct provisions on summary dismissal and on termination.\r\nClause 40, on termination, states as follows:\r\n"40. Termination Notice\r\nEnding employee/employer relations shall be voluntarily or involuntarily. An appointment may be terminated by either the Company or an\r\n4\r\nemployee, given in writing to the other, the appropriate notice or payment in lieu thereof.\r\n30\r\nAn appointment for an employee on probation may be terminated by either the Company or the employee given in writing to the other for one- week notice.\r\nJob Abandonment: In the event that a staff is absent from work for 5 working days or more, without proper authorization from management; this will be considered job abandonment and the staff employment with Maersk Ghana will be terminated."\r\nOn the other hand, clause 34 provided that:\r\n"34. DISCIPLINARY PROCEDURES\r\nMaersk Ghana Limited has the right to discipline or discharge any employee for sufficient and reasonable cause including failure to comply with reasonable rules and for proven offences.\r\na. Summary Dismissal\r\ni.	In all cases in which an employee is found guilty of serious misconduct including, but not limited to, such offences as stealing, fraud, falsification of records or gross dereliction of duty, he shall be summarily dismissed and shall forfeit all his entitlements except his personal contribution to the Provident Fund. If the employee is summary (sic) dismissed on any ground which resulted in financial loss to the Company such loss shall be deducted from his entitlements.\r\n5\r\nii.	Except in cases leading to summarily (sic) dismissal, for the first offence of an employee against the rules of the Company or on matters of discipline, he will be given a written warning with a copy placed on employees file.\r\niii.	..."\r\nThe plaintiff''s action against the defendant on these facts was dismissed in the High Court. He appealed to the Court of Appeal. The Court of Appeal dismissed the appeal, but varied the High Court judgment to the extent of awarding the plaintiff compensation for the defendant''s non-compliance with the relevant provisions of the collective bargaining agreement. Ofoe JA had the following explanation for the court''s view on this matter:\r\n"The respondent has every right to terminate the appointment of any of its workers but subject to law. In this case there was Collective Agreement between the parties, tendered as Exhibit D. It has provisions for summary dismissal and that for termination. For our purposes we are concerned with termination which is provided for under section 40 of the Collective Agreement. Under this provision an appointment can be terminated by either the company or an employee giving in writing to the other 30 days notice or salary in lieu. There is no evidence the respondent complied with this notice period when it decided to terminate the appellant''s employment with it. What we have is rather that the termination letter was addressed September 19, 2006 to take effect September 22, 2006. (Refer to Exh. B, the termination letter). It was the choice of the respondent whether to dismiss or terminate the employment. But immediately it decides on one, then the procedures under the collective agreement to effectuate the choice should be complied with. The company\r\n6\r\nis in clear violation of the Collective Agreement and it is such violation that the Supreme Court in the case of Kobi vrs Ghana National Manganese Company Limited (2007-2008) 2 SCGLR 771 castigated. What benefit should accrue to the appellant arising out of this violation?..."\r\nOfoe JA proceeded later to award the appellant three months'' salary by way of compensation for the non-compliance with the notice period of 30 days. In spite of this compensation, the appellant remains dissatisfied and has appealed to this Court against the judgment of the Court of Appeal. The respondent did not cross- appeal on the award of compensation.\r\nThe appellant''s grounds of appeal are:\r\n"a) The Court of Appeal erred in law when it held that the issue of lack of jurisdiction or mandate of the committee of enquiry to investigate the 27th to 29th July incident could not be raised on appeal and thus failing to find that the findings thereof and all consequential decisions therefrom were null and void.\r\nParticulars of Error of Law\r\nI.	Failure of the Court of Appeal to find that the issue of jurisdiction or lack thereof of an investigating body is a legal issue which can be raised at any time even on appeal.\r\nII.	Failure of the Court of Appeal to find that the findings of the committee of enquiry on the 27th to 29th July incident were null and void because the committee lacked the mandate to investigate that incident.\r\n7\r\nIII.	Failure of the Court of Appeal to find that the decision to terminate the Appellant''s employment on the basis of the committee''s findings on the 27th to 29th July incident was null and void.\r\nb)	The Court of Appeal, failed to draw an inference of unfair termination from its own finding that the Appellant has been exonerated by the committee of enquiry''s report.\r\nc)	The Court of Appeal, failed to find that there was unfair termination of Appellant''s employment by the Respondent when the principal actors in "placing the company at risk" were only warned.\r\nd)	The Court of Appeal erred when it failed to find that there was unfair termination having come to the conclusion that the termination of the Appellant was wrongful thereby denying Appellant substantial compensation from Respondent.\r\ne)	The judgment of the Court of Appeal was against the evidence on the record."\r\nThe Law\r\nThese facts call for a restatement of the Ghanaian common law on the termination of contracts of employment and the extent to which it has been modified by the statutory provisions in the Labour Act 2003 (Act 651). It remains the common law that the remedy available to an employee who has been wrongfully dismissed or terminated is an action for damages. An employee cannot be awarded an order for his reinstatement into a job from which he has been removed unlawfully, unless there is a public law element which requires\r\n8\r\notherwise. See Lt. Col. Ashun v Accra Brewery Ltd. [2009] SCGLR 81. A reinstatement would be equivalent to specific performance of a contract of employment, which is not permissible. It is settled law that contracts of employment, in general, may not be specifically enforced at the suit of either party. There is a sound policy underlay to this rule. It has to do with the courts restraining themselves from interfering with personal liberty. The essence of the policy is sometimes expressed in the saying that contracts of employment are not contracts of servitude. It would not be wise to compel an employee to work for an employer he does not want to work for, nor conversely to compel an employer to employ an employee it does not want to. There is a large element of personal relationship in many employment contracts which would make them unworkable if the parties were compelled to work together. However, increasingly, modern legislation has been intervening to give employees a right to reinstatement. This is in recognition of the fact that the modern relationship of an employer to an employee may have less of the personal element of the master and servant relationship in response to which the equitable principle developed, that contracts of employment should not be specifically enforced.\r\nIn 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\nSections 62 and 63 of the Labour Act 2003 (Act 651) set out clearly the law on fair and unfair termination of employment, as follows:\r\n"Section 62—Fair Termination.\r\n9\r\nA termination of a worker''s employment is fair if the contract of employment is terminated by the employer on any of the following grounds:\r\n(a)	that the worker is incompetent or lacks the qualification in relation to the work for which the worker is employed;\r\n(b)	the proven misconduct of the worker;\r\n(c)	redundancy under section 65;\r\n(d)	due to legal restriction imposed on the worker prohibiting the worker from performing the work for which he or she is employed.\r\nSection 63—Unfair Termination of Employment.\r\n(1)	The employment of a worker shall not be unfairly terminated by the worker''s employer.\r\n(2)	A worker''s employment is terminated unfairly if the only reason for the termination is\r\n(a)	that the worker has joined, intends to join or has ceased to be a member of a trade union or intends to take part in the activities of a trade union;\r\n(b)	that the worker seeks office as, or is acting or has acted in the capacity of, a workers'' representative;\r\n(c)	that the worker has filed a complaint or participated in proceedings against the employer involving alleged violation of this Act or any other enactment;\r\n(d)	the worker''s gender, race, colour, ethnicity, origin, religion, creed, social, political or economic status;\r\n(e)	in the case of a woman worker, due to the pregnancy of the worker or the absence of the worker from work during maternity leave;\r\n(f)	in the case of a worker with a disability, due to the worker''s disability;\r\n(g)	that the worker is temporarily ill or injured and this is certified by a recognised medical practitioner;\r\n(h)	that the worker does not possess the current level of qualification required in relation to the work for which the worker was employed which is different from the level of qualification required at the commencement of his or her employment; or\r\n(i)	that the worker refused or indicated an intention to refuse to do any work normally done by a worker who at the time was taking part in lawful strike unless the work is necessary to prevent actual danger to life, personal safety or health or the maintenance of plant and equipment.\r\n(3) Without limiting the provisions of subsection (2), a worker''s employment is deemed to be unfairly terminated if with or without notice to the employer, the worker terminates the contract of employment\r\n(a)	because of ill-treatment of the worker by the employer, having regard to the circumstances of the case; or\r\n(b)	because the employer has failed to take action on repeated complaints of sexual harassment of the worker at the work place.\r\n11\r\n(4) A termination may be unfair if the employer fails to prove that,\r\n(a)	the reason for the termination is fair; or\r\n(b)	the termination was made in accordance with a fair procedure or this Act."\r\nSection 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-instate 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\nWhat then is the impact on the common law of these statutory provisions? These provisions, with respect, are to be construed as not directed at the courts. Rather, what can be construed as addressing the courts is section 15 of the Act, which provides as follows:\r\n"Section 15—Grounds for Termination of Employment.\r\n12\r\n(b)	by the worker on grounds of ill-treatment or sexual harassment;\r\n(c)	by the employer on the death of the worker before the expiration of the period of employment;\r\n(d)	by the employer if the worker is found on medical examination to be unfit for employment;\r\n(e)	by the employer because of the inability of the worker to carry out his or her work due to\r\n(i)	sickness or accident; or\r\n(ii)	the incompetence of the worker; or\r\n(iii)	proven misconduct of the worker."\r\nThese provisions are complemented by sections 18 and 19 of the Act in the following terms:\r\n"Section 18—Remuneration on Termination of Employment.\r\n(1) When a contract of employment is terminated in the manner stated in section 15, the employer shall pay to the worker,\r\n(a)	any remuneration earned by the worker before the termination;\r\n(b)	any deferred pay due to the worker before the termination;\r\n(c)	any compensation due to the worker in respect of sickness or accident;\r\nand\r\n13\r\n(d) in the case of foreign contract, the expenses and necessaries for the journey and repatriation expenses in respect of the worker and accompanying members of his or her family in addition to any or all of the payments specified in paragraphs (a), (b) and (c) of this subsection.\r\n(2)	The employer shall pay to the worker not later than the date of expiration of the notice all remuneration due to the worker as at that date.\r\n(3)	Where no notice is required, the payment of all remuneration due shall be made not later than the next working day after the termination.\r\n(4)	Notwithstanding section 17(1), either party to a contract of employment may terminate the contract without notice if that party pays to the other party a sum equal to the amount of remuneration which would have accrued to the worker during the period of the notice,\r\nSection 19—Exception.\r\nThe provisions of sections 15, 16, 17 and 18 are not applicable where in a collective agreement there are express provisions with respect to the terms\r\n	14\r\n agree with the appellant that he was entitled to raise before the Court of Appeal an issue of law arising from the record, even if it was not raised at the trial court. (See Attorney-General v Faroe Atlantic Co. Ltd. [[2005-2006] SCGLR 271.) However, we do not consider that the appeal can succeed on this first ground. Assuming without admitting that the subcommittee''s findings were ultra vires, we do not consider that this would derogate from the defendant''s common law right to dismiss the plaintiff for proven misconduct. Once there are facts on the record justifying the defendant/respondent dismissing the appellant for misconduct, the fact that the findings were made by a committee that was acting, allegedly, ultra vires, is irrelevant. The appellant''s argument is constructed on a misconceived extension of public law notions into the private law. Thus he states in paragraph 2.1.10 that:\r\n"It is therefore submitted on behalf of the Appellant that the appeal succeeds on this first ground since the said findings of the committee is void as it was made without jurisdiction and therefore the Appellant is entitled to have the same set aside and both the trial High Court and the Court of Appeal were under a legal obligation to set aside even suo motu. See MOSI V BAGYINA [1963] 1GLR 337 SC."\r\nMosi v Bagyina and other cases cited by the appellant in his Statement of Case such as Akele v Cofie [1961] GLR 173 and University of Ghana v Mensah [1984-86] 2 GLR 622 are all public law cases. The ultra vires doctrine is an important building block in the courts'' construction of their jurisdiction to exercise control over administrative action. However, judicial control of administrative action is part of public law. The courts have not set themselves up to exercise oversight over the administrative decisions of private enterprise units. Thus, for instance, in the concurring opinion of Date-Bah JSC in Laguda v Ghana Commercial Bank [200-\r\n\r\n15\r\n2006] SCGLR 388 at pp. 401-2, on the related public law doctrine of audi alteram partem, he said:\r\n"I am not persuaded that, in a commercial setting, in the absence of a contractual provision to the contrary, an employer is bound to comply with the rules of natural justice before dismissing an employee for misconduct. At common law, it is enough if the facts objectively establish cause for dismissal. In Aboagye v Ghana Commercial Bank [2001-2002] SCGLR 797 at pp. 828-831, Adzoe JSC correctly expounds the common law position on summary dismissals. He said (at pp 828-829):\r\n"But it has been argued that the conduct of the plaintiff, viewed in the context of the nature of the business of banking, constitutes such a grave misconduct that it was lawful to dismiss him even without a hearing. The case of Lever Bros Ghana Ltd v Annan [1989-90] 2 GLR 385; Presbyterian Church Agogo v Boateng [1984-86] 2 GLR 523; Edward Nasser & Co.ltd v Abu Jawdi [1965] 2 GLR 532; Halsbury''s Laws of England (3rd ed.) at page 485, para 938 were cited in support. The principle relied on is this:\r\n"A servant whose conduct is incompatible with the faithful discharge of his duty to his master may be dismissed ... Dismissal is also justified in the case of a servant… If his conduct has been such that it would be injurious to the master''s business to retain him."\r\n16\r\nI agree that this is the common law position. BowenLJ had expressed it in 1888 when he said that it is right for the employer to instantly dismiss the employee if the latter''s conduct is not only wrongful and inconsistent with his duty towards his master but also inconsistent with the continuance of confidence between them: see Boston Deep Sea Fishing & Ice Co v AnseII (1888) 39 Ch.D. 339 at 363."\r\nIt is true that Adzoe JSC then proceeds to consider English cases based on the Industrial Relations Act 1971 and the Trade Union and Labour Relations Act 1974 to support his perception that there is a modern tendency to discourage summary dismissals. With respect, these English statutes cannot affect the common law principles that the Ghanaian courts apply.\r\nThus, once there was evidence on record sufficient to justify the conclusion that the plaintiff''s behaviour amounted to misconduct, the learned Trial Judge did not have to concern himself with whether there had been compliance with the rules of natural justice, unless there was a contractual provision to the contrary."\r\nAs a matter of history, the English courts (whose persuasive precedents have shaped much of Ghanaian administrative law), in developing their control over administrative (i.e. public) action, relied on a doctrine of ultra vires. They have conceived of administrative (i.e. public) power as derived power. It is generally power derived from the Constitution or a statute. It is a paramount principle of public law that public or administrative bodies are supervised to ensure that they\r\n17\r\nkeep within the bounds of their jurisdiction or area of allocated authority. This is an important incident of constitutionalism. A similar policy rationale does not exist for the courts supervising delegated decision-making in the private sector. Indeed, it would be against public policy to subject private sector business units to the same control over their administrative decisions as public bodies. The private sector needs more flexibility and is not expected to operate under the same rules of the game, so to speak, as government and public bodies. Accordingly, the argument of the appellant based on its first ground of appeal is flawed and there is no need to probe deeper to ascertain whether indeed the subcommittee exceeded its terms of reference. What is important is that the inquiry, whatever its terms of reference, did in fact expose misconduct by the appellant. Lever Brothers Ghana Ltd v Annan (Consolidated) [1989-90] 2 GLR 385 is authority for this proposition. In that case Osei-Hwere JSC explained, delivering the judgment of the Court of Appeal (at pp.388-9), that:\r\n"The learned trial judge in our view stated the correct principle of law when he said:\r\n"The law is that where an employee has, in fact, been guilty of misconduct so grave that it justifies instant dismissal, the employer can rely on that misconduct in defence of any action for wrongful dismissal, even if at the date of the dismissal the misconduct was not\r\nknown to him: see Boston Deep Sea Fishing & Ice Company v AnseII\r\n(1888) 39 Ch.D 339 at 363, CA."\r\nIt will be noted from the above quotation that the trial judge all but found the misconduct or dishonesty of the plaintiffs proved. His reluctance in saying so seems to stem from his notion that they were not given the\r\n18\r\nopportunity to face their accusers. From the principle of law also quoted above which entitles an employer to dismiss summarily an employee he considers guilty of serious misconduct, such as dishonesty, it is evident that the employer is not obliged to set up an investigative process to give the\r\nemployee a fair hearing: see Presbyterian Hospital, Agogo v Boateng\r\n[1984-86] 2 GLR 381, CA. What is required is that when the employee''s dismissal is brought to question in a court of law the employer''s action can be vindicated."\r\nThe first ground of appeal is therefore dismissed.\r\nThe second ground of appeal is in effect a re-run of the first ground of appeal, in that it also relies on the ultra vires doctrine, which we have held to be inapplicable to the facts of this private law case. The ground relies on the following passage from the Court of Appeal''s judgment, delivered by Ofoe JA:\r\n"What I find a little incongruous is the terms of reference of the committee and its findings. Reading the investigative reports, it is clear that the mandate of the committee was to investigate the 17th August, 2006 incident. But the committee ended up making findings in respect of the 27th to 29th July, 2006 incident. It is this incident which was not within the terms of reference that the committee faulted the appellant (sic). In respect of the 16th -nth August, 2006 which the committee was mandated to investigate, the appellant was exonerated. Counsel for the appellant contends, rightly in my view, that it was improper for the committee to have expanded their mandate to include events of the 27th to 29th July and also totally unacceptable for the respondent to have relied on such findings to terminate the appointment of the appellant. But at the trial court that was not the case of the appellant. There is no reason to entertain this\r\n19\r\nsubmission now else I am accused of substituting a case not sought for by the respondent."\r\nThe appellant, therefore, argues that the respondent by relying on the ultra vires findings of the subcommittee had shown that it was bent on finding an excuse to terminate the appellant''s employment, even though there was no justification for it. Once it is accepted that in the private sector the findings of the sub-committee could be relied upon by the respondent, even if ultra vires, this ground of appeal also falls away.\r\nThe third ground of appeal is, in net effect, that because the principal actors in "placing the company at risk", namely Mr. Kenneth Kpedor and Mr. Yussif Seidu, had only been given a warning, it was unfair for the appellant''s employment to be terminated. It is unclear to us from where this concept of unfair termination as a cause of action before the courts is derived. It is certainly not a common law principle. Neither is it provided for in the Labour Act 1963 as a concept to be applied by the courts at the suit of a party to an employment contract. It is not provided for in the collective bargaining agreement either. The appellant maintains that the respondent''s act of termination was capricious, without basis and hence unfair. The facts on record do not support this allegation. There is undisputed evidence on record which amounts to misconduct by the appellant. The fact that other employees of the defendant who, in the appellant''s view were more culpable than he, had been given a lighter disciplinary sanction is not a legitimate basis for a legal challenge of his own termination. The appellant''s argument that the appellant''s termination was unfair because it ignored section 34(a) (ii) — (vi) of the collective agreement, requiring that a warning letter be given, is fallacious, since this requirement for warning letters expressly excludes cases leading to summary dismissal. In any case, the common law concept that\r\n20\r\n would apply, given the appropriate facts, is that of wrongful dismissal and not the novel notion of unfair termination, which is not known to either the Ghanaian common law or the Labour Act 2003, in relation to the courts. Accordingly, the third ground of appeal is also dismissed as unmeritorious.\r\nUnder the fourth ground of appeal, the appellant contends that the Court of Appeal erred when it failed to find that there was unfair termination, after having come to the conclusion that the termination of the Appellant was wrongful, thereby denying the Appellant substantial compensation from the respondent. This ground also relies on the cause of action of "unfair termination", which we have shown to be non-existent. It is equally unmeritorious. The Court of Appeal regarded as a basis for the award of compensation to the appellant the fact that the defendant did not comply strictly with the procedure laid out in the collective bargaining agreement for the termination of the contract. That failure by the respondent to comply with the procedure does not, however, detract from the fact that the appellant was guilty of misconduct that could have grounded his summary dismissal, with loss of rights. The fact that the defendant/respondent opted for termination, even if how it did it was non-compliant with the procedure set out in the collective bargaining agreement, was thus to the advantage of the appellant. It is thus hardly a ground for complaint. Accordingly, the fourth ground is dismissed.\r\nFinally, the appellant argues that the judgment of the Court of Appeal was against the evidence on the record. There are concurrent findings by the two courts below that the appellant put the defendant at enormous risk and there was evidence from the findings of the subcommittee that could serve as a credible basis for the conclusions of the two courts. Accordingly, there is no basis for disturbing those findings. This ground is without merit and should be dismissed.\r\n\r\n21\r\nConclusion\r\nIn the result, we dismiss all the appellant''s grounds of appeal. The appeal is accordingly dismissed in its entirety as being unencumbered by any merit.\r\n[SGD]	DR. S.K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\nJONES DOTSE JSC: \r\nI have been privileged to have read the draft of the judgment which has just been delivered by me under the authority of my respected brother Dr. Date-Bah JSC.\r\nI agree with the analysis of the case, as well as the conclusions reached therein. In agreeing to the conclusion that the appeal lacks merit and should be dismissed, it is pointless to attempt to add anything to this judgment.\r\nThis is because, Dr. Date-Bah JSC in his usual style has not only taken pains to discuss the legal issues applicable in this appeal, but has as it were taken the opportunity to restate the Ghanaian Common Law position on the termination of contracts of employment and the extent to which these have been modified by the statutory provisions in the Labour Act 2003 (Act 651).\r\nI therefore endorse the decision that the appeal herein fails and is accordingly dismissed.\r\n22\r\n	[SGD]	J. V. M DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\n	[SO]	ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n	[SGD]	B. T. ARYEETEY\r\nJUSTICE OF THE SUPREME COURT\r\n	[SGD]	V. AKOTO-BAMFO [MRS.] JUSTICE OF THE SUPREME COURT\r\nCOUNSELS.\r\nJAMES MARSHALL BELIEB FOR THE APPELLANT.\r\nGEORGE THOMSON FOR THE RESPONDENT.\r\n\r\n', '../links/cases/felix yaw bani case.pdf', 'Yes', 'Dotse JSC, Yeboah JSC, Aryeetey JSC, Akoto-Bamfo (MRS) JSC', '2011', 'supreme', '<font face="Times New Roman" size="2"><i>Contract of employment - Termination of appointment - Failure to give notice in accordance with collective bargain agreement - Effect on employer''s power to terminate - Subcommittee acting ultra vires - Whether employer can act on findings - Natural justice - Audi alteram partem rule - Public law doctrine - Whether in the absence of contract employer is bound to comply with rule - Whether termination proper - Labour Act 2003 Act 651, ss. 15, 18, 19, 62, 63 and 64</i></font><br>', 'Date-Bah JSC', 'Civil', '', 'J4/48/2010', '', '', 'supreme', '2011-03-30', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(509, 'THE REPUBLIC\r\n\r\n    VRS\r\n \r\nTHE COURT OF APPEAL                  —                         RESPONDENTS\r\nANTHONY THOMFORD\r\n\r\nEX PARTE \r\nGHANA CHARTERED                        \r\nINSTITUTE OF BANKERS                -         APPLICANT\r\n', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT OF JUSTICE\r\nACCRA-GHANA AD. 2011\r\n\r\n\r\n\r\n	\r\n\r\n\r\nCORAM:  ATUGUBA, JSC (PRESIDING)              \r\n                 DR. DATE-BAH, JSC\r\n\r\n\r\n\r\n\r\n\r\n            \r\n            \r\n             \r\n\r\n\r\n            \r\n           	\r\n                   ANSAH, JSC                                   22ND JUNE, 2011\r\n                   BAFFOE-BONNIE, JSC\r\n                   ARYEETEY, JSC\r\n    \r\nCIVIL MOTION                                                   J5/21/2001\r\n\r\nTHE REPUBLIC\r\n\r\n    VRS\r\n \r\nTHE COURT OF APPEAL                  —                         RESPONDENTS\r\nANTHONY THOMFORD\r\n\r\nEX PARTE GHANA CHARTERED                                     APPLICANT\r\nINSTITUTE OF BANKERS \r\n\r\n\r\nPractice and Procedure— Supervisory Jurisdiction of the Supreme Court—Prerogative Writ— Certiorari— Application— Natural Justice— Breach of the audi alteram partem rule — Court of Application Rules CI. 19 Rule 20(2).\r\n Application for Certiorari— Factors to Consider.                               \r\n                                                                       \r\nRULING\r\nDR. DATE-BAH JSC:\r\nThe core of the complaint in this application is that when the applicant''s appeal came up for hearing before the Court of Appeal, the court, relying exclusively on the Registrar''s Certificate that the applicant/appellant had not complied with the requirement of Rule 20(1) of the Court, of Appeal Rules (CI 19), struck out its appeal, without giving any opportunity for representations to be made on its behalf by its counsel who were present in court. It claims, therefore, that the audi alteram partem rule has been breached. It has accordingly applied to this court for an order\r\n \r\n  of certiorari to quash the order of the Court of Appeal dated 1st November, 2010\r\nstriking out the applicant''s appeal.\r\nI would like to begin my analysis of the law governing this main issue in this application by referring to the words of one of the Ghanaian judges whom I admire the most, namely Justice A.N.E. Amissah. Amissah JA, sitting in the High Court in 1968, expressed a clear view to the effect that non-compliance with the audi alteram partem rule results in nullity of the subsequent proceedings. He said in Vasquez v Quarshie [1968] 2 GLR 62 at p. 63 that:\r\n"But no court is, to my mind, entitled, to call upon a plaintiff to proceed with\r\nthe proof of his claim if it is aware that the defendant has not been notified\r\nof the hearing. Similarly rule 17 speaks of the defendant having the action against him dismissed and proving his counterclaim if any, should the\r\nplaintiff not appear. Here again a court which allows this to happen with full\r\nknowledge that the plaintiff does not appear only because he is not aware of the proceeding will be offending against the elementary principle of justice\r\nwhich obliges it to hear both parties, or at least give them an opportunity to\r\nhave their say, before its decision. A court is only entitled to give a\r\njudgment in default if the party fails to appear after notice of the proceedings has been given to him. For then it would be justifiable to assume that he does not wish to be heard. It is this party with notice who defaults in appearance who is privileged to come before the court within fourteen days to have the judgment set aside, if he has some substantial reason for failing to appear when he should have. To hold that his brother without notice is also obliged to come before the court within the same time limit would lead to some inequitable results. It is not impossible that he would get to know about the judgment against him long after the fourteen-day period has elapsed. What should he do then? Should he come to the court and ask for an extension of time within which to apply? I think not. His entitlement to have the judgment set aside in such circumstances is as of right and should not be made dependent on the discretion of the court. A court making a decision in a case where a party does not appear because he has not been notified is doing an act which is a nullity on the ground of absence of jurisdiction. A person who is condemned in his absence in proceedings of which he has no knowledge cannot be limited as to the time within which he may repudiate the decision. Learned counsel attempted to equate a notice served on the first defendant to produce documents at the trial with notice of the trial. But a cursory examination of the notice shows that this cannot be. It contains no notice of the hearing date. A request that you should produce a document when the trial is on is no notice of the time when the trial is to begin or to continue."\r\nThough Amissah JA made his pronouncement in the High Court, this Supreme\r\nCourt has held several times recently that non-compliance with the audi alteram\r\npartem rule results in nullity. In The Republic v High Court, Accra; ex parte\r\nSalloum & Ors (Coker, Interested Party), Suit No. J5/4/2011, unreported judgment\r\nof the Supreme Court, delivered on 16th March 2011, Anin Yeboah JSC,delivering\r\nthe majority opinion of the court, said:	-\r\n"The courts in Ghana and elsewhere seriously frown upon breaches of the audi alterarn partern 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\n             ….It is our opinion that as this court has in several cases held that a\r\n    breach of the rules of natural justice renders proceedings a nullity, we will declare that the, applicants have sufficiently made a case to warrant our supervisory intervention."\r\nHe cited, with approval, the earlier case of  In re Kumi (Decd); Kumi v Nancy [2007-2008] SCGLR 623, where Sophia Adinyira JSC had said at pp. 632-3 that:\r\n"In consonance with the above principles of law, both civil and criminal\r\nprocedure rules allow a party to have a judgment or order made in any proceedings that took place without notice and in his absence to be set aside. This elementary principle of justice, which obliges a court to hear both parties, or at least give them an opportunity to have their say, before its decision, is of such essence that even where a person has notice of the trial but fails to attend court, he may apply to the court to have a judgment or order made against him set aside. He may do so under Order 36, r. 2 of CI 47 which provides:\r\n"2(1) A judge may set aside or vary, on such terms as are just, a judgment obtained against a party who fails to attend at the trial. (2) An application made under this rule shall be made within fourteen days after the trial."\r\nHowever, as explained by Amissah JA in Vasquez v Quarshie (supra) in relation to the analogous provision under Order 36, r 18 of the Supreme [High] Court (Civil Procedure) LN 140A), the above rule of a time limit of fourteen days only applies to a party who had notice of the'' trial.'' But where in the case of a party who had no notice of the trial he has as of right to apply to have the judgment set aside as the proceedings was without jurisdiction."\r\n   Similarly, in Republic v High Court, Accra; ex parte Allgate Co. Ltd. (Amalgamated Bank Ltd., Interested Party) [2007-2008] SCGLR 1041, I held that breach of the principle of audi alteram partem resulted in loss of jurisdiction. I said at pp. 1052-3 that:\r\n"For the reasons eloquently articulated by Taylor JSC in Amoakoh v Hansen [1987-88] 2 GLR 26 at 43-44, non-service of a process where service of same is required, in my view goes to jurisdiction. Non-service implies that audi alteram partem, the rule of natural justice is breached. This is fundamental and goes to jurisdiction."\r\n  The authorities cited above point to the likelihood that this court will nullify the order made by the Court of Appeal after failing to listen to the applicant''s counsel before acting on the basis of the Registrar''s Certificate. The Court of Appeal had a discretion under Rule 20(2) of CI 19 to strike out the applicant''s appeal or not. The discretion given to the court in Rule 20(2) is only properly exercised when an opportunity is given to an appellant to make representations challenging the Registrar''s Certificate, if he or she wishes to do so. Rules 20(1) and (2) read as follows:\r\n"(1) An appellant shall within three weeks of being notified in Form 6 set out in Part I of the Schedule, that the record is ready, or within the time that the Court may on terms direct, file with the Registrar a written submission of the appellant''s case based on the grounds of appeal as set out in the notice of appeal and any other ground that the appellant may file.\r\n(2) Where the appellant does not file the written submission of his case in accordance with sub-rule (1), the Registrar shall certify the failure to the Court by a certificate in the Form. 11 A set out in Part One of the Schedule and the Court may then order the appeal to be struck out."\r\n    The Registrar''s certification to the court under Rule 20(2) cannot, in fairness, be considered as irrebutable, since the Registrar can get his facts wrong and the appellant should be given the opportunity to draw the Court of Appeal''s attention to facts, if any, which negate the validity of the certificate issued under Rule 20(2). The applicant has applied for several orders consequential on the quashing of the Court of Appeal’s order. A more detailed narration of the facts of this case is needed in order to understand why these consequential orders are sought.\r\nThe uncontroverted affidavit evidence of Dr. Seth Twum, a legal consultant of the solicitors to the defendant/appellant is to the following effect: the plaintiff brought action against the defendant (the applicant in this case) in the High Court, Accra, on 20th January 2006. After a full trial, judgment was given against the defendant on 14th September, 2008. On 12th October, 2008, the defendant filed a Notice of Appeal against the judgment. The record of proceedings was settled and all the appropriate fees duly paid by the appellants. On 11th November 2009, one Prosper who claimed to work in the Docket Section of the High Court served a copy of the record of proceedings on the solicitors to the appellants. These solicitors discovered that the record served by Prosper was not certified. The said solicitors sent back the record to the Registry for due certification. This certification was completed on 1st December, 2009. Within 18 days of the record being certified, the appellant''s Statement of Case had been prepared and filed. Some 3 months after the filing of the appellant''s Statement of Case, there was no response from the respondent. Accordingly, the appellant conducted a search on 12th March, 2010 in the Registry of the Court of Appeal. The search disclosed that the appellant''s Statement of Case had not been served because there was insufficient address on it for service. The respondent''s Written Submission was eventually filed on 10th May, 2010. Although it was out of time, the appellants did not complain, in the interest of the merits of the appeal being adjudicated upon.\r\nThe appellant/applicant contends that its efforts to get the uncertified record certified have been exploited by the respondent to generate confusion in all the subsequent process filed by the appellant.\r\nWhen the appeal was heard on 14th June, 2010, the Court of Appeal struck out the appellant''s Statement of Case, when it accepted the respondent''s claim that the appellant''s Statement of Case had been filed out of time. The appellant contends that this was an error and makes submissions in support of this contention which it is unnecessary to consider in detail here. In any case, the appellant filed an application for extension of time within which to file its Written Submission of Case. The application contained a prayer that the additional grounds filed subsequent to the delivery of the authenticated record of proceedings be admitted into the record. While the Court of Appeal expressed its willingness to grant the\r\napplication for extension of time, it said that a copy of the additional grounds of appeal should be annexed to the application and advised counsel to go back and put her house in order. On 20th August 2010, counsel filed the supplementary affidavit exhibiting the additional grounds of appeal. The matter of extension of time then came up for further hearing on 1st   November, 2010. It was the Court of Appeal before whom this matter was placed which made the ruling that:\r\n"On the basis of the Registrars Certification that the appellant has not\r\ncomplied with the requirement of Rule 20(1) of CI 19 we proceed to strike\r\nout the appeal which is accordingly struck out. We award costs assessed at\r\nGHc 300.00 against the Plaintiff/Appellant costs to be paid before fresh or\r\nfurther steps be taken."\r\nThe appellant/applicant contends that there was no basis for the Registrar''s Certificate and that the notice issued by him was false. The appeal had not been listed for hearing, as the motion for extension of time to file the Statement of Case had not yet been taken. The appeal was thus not ready to be heard.\r\nWithout going into the full details of the appellant/applicant''s dissatisfaction with\r\nthe conduct of the Registrar, I would like to stress that what is significant, for the purposes of the present application, is that had the court of Appeal allowed counsel for the appellant to be heard on the 1st November 2010, they		I purposes of the present application, is that had the Court of Appeal allowed counsel for the appellant to be heard on the 1st November 2010, they could have brought to the attention of the court matters that could have affected the exercise of their discretion. This reinforces the correctness of insisting on the application of the audi alteram partem rule and its legal consequences.\r\nRegarding the Notice of Intention to Rely on Preliminary Objection filed by counsel for the second respondent, the notice relies on Rule 62 of CI 16 which stipulates that applications for the exercise of the supervisory jurisdiction of this court shall be filed within 90 days of the date when the grounds for the application first arose, unless the time is extended by this Court. This Rule however has been held not to apply where the subject-matter of the application is a decision which is a nullity. The passage from Amissah JA''s judgment in Vasquez v Quarshie  (supra) says as much. My brother Atuguba JSC also comes to the same conclusion in Republic v High Court (Fast Track Division) Accra; ex parte Speedline Stevedoring Co. Ltd (Dolphyne Interested Party) [2007-2008] SCGLR 102, where, delivering the judgment of the court, he stated that (at p. 106):\r\n"But we do not think that even if the certiorari decision by this court was founded on an application brought out of time the same was thereby vitiated as a nullity. This is because time limits cannot apply to cases or judgments or orders-which are a nullity. The celebrated case of Mosi v Bagvina [1963] 1GLR 337, SC so decided."\r\nAccordingly, the preliminary objection based on an alleged violation of Rule 62 of the Supreme Court Rules fails.\r\nDR. S. K. DATE-BAH [JUSTICE OF THE SUPREME COURT]\r\nATUGUBA, J.S.C: \r\nI have had the advantage of reading the masterly Ruling of my brother Dr. Date- Bah JSC and I agree that the preliminary objection fails. It is fairly well settled that time limits do not affect the courts'' inherent jurisdiction to vacate orders that are a nullity. The question that arises therefore is whether a breach of the rules of audi alteram partem sounds in nullity. It is trite law that these rules are regarded as fundamental and jurisdictional and that the courts will read them into statutes though they be silent as to them. Thus in Aidoo v Commissioner of Police (No. 3) (1964) GLR 354 at 359 S.C Ollennu JSC delivering the Judgment of the court concerning the wide revisionary powers of the High Court under sections 59-60 of the Courts Act 1960,(C.A.4) over sentences passed by district courts, said: "Every discretion given to a court or judge must be judicially exercised, that is, exercised in such a manner, to use the oft repeated expression, so that justice must not only be done thereby, but that it must manifestly be seen to have been done. This is particularly so where the exercise of the discretion may produce a penal effect upon a party against whom it is exercised. - It is a well settled rule of procedure of the common law as well as of our customary law, that no person shall be condemned without being given the opportunity to answer any complaints made against him. The customary law principle in this regard is embodied in the Akan adage, Tieni mienu, meaning hear both sides; the Ga affirmation ke anuu mo gbeianshishi le agbee le, meaning, never condemn any one to death whose explanation You have not heard; and the Ewe adage, Ela manotsia awede menuneo, meaning literally, an animal is never killed without being offered water to drink. The principle laid down in each of those sayings in short is, that it is unjust to decide a matter against a person without first hearing what that person has to say in explanation to allegations made against him. "(e.s)\r\nContinuing at p. 360 he said"\r\n"Now the affidavit of the respondent disclosed that in making the order appealed from, his lordship he Chief Justice acted upon certain representations made to him by the Director of Public Prosecutions; yet before the penal order was made against him, the appellant was not given the opportunity of knowing what those representations were, and was not heard in reply to them. This violates the fundamental principle of justice which is jealously guarded both by the common law and the customary law. In those circumstances justice cannot appear to have been done. In other words the discretion was not exercised judicially. The order therefore cannot stand.”  \r\n \r\nI am myself a shareholder of this reasoning in Republic v. High Court (Fast Track Division) Accra Ex parte State Housing Co. Ltd. (No. 1) (Barnor Interested Party) (2009) SCGLR 177 though in a subsequent case I watered it down in view of 0.81 of C.1.47.\r\nSee also University of Ceylon v Fernando (1960)I WLR 223 P.C. But in the common law world generally the position is not uniform as to the effect of a breach of the rules of audi alteram partm. Thus in Asor II v Amegboe (1978) GLR 153 C.A at 157 Azu Crabbe C.J quoted Lord Denning M. R (the initial champion of the nullity principle) in F. Hoffman-La Roche & Co v. Secretary of State for Trade and Industry [1974]3 WLR 104 Hi, as saying at the Court of Appeal level of the case,.."failure to observe the rules of natural justice does not render a decision or order or report absolutely void in the sense that it is a nullity..."\r\nHowever, in my view, in Ghana what clinches this issue is article 296 of the 1992\r\nConstitution. It is a follows:\r\n"296. Exercise of discretionary power\r\nWhere in this Constitution or in any other law, discretionary power is vested in\r\n any person or authority,\r\n(a)	that discretionary power shall be deemed to imply a duty to be fair\r\nand candid;\r\n(b)	the exercise of the discretionary power shall not be arbitrary,\r\ncapricious or biased either by resentment, prejudice or personal\r\ndislike and shall be in accordance with due process of law; and\r\n(c)	where the person or authority is not a Justice or other judicial officer,\r\nthere shall be published by constitutional instrument or statutory instrument, Regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power."\r\n\r\n\r\n\r\n\r\nThe terms of this provision are mandatory and obviously require observance of the rules of natural justice, especially the audi alteram partem rule involved here.\r\nThe rule has therefore been elevated to constitutional pedestal and its breach has the constitutional consequences laid down in articles 1 and 2 of the Constiutiton, namely such breach voids the act in question.\r\nBut it is not all over. The courts are anxious that no unfair advantage should be\r\ntaken of any law. See Amuzu v Oklikah (1998-99)SC GLR 141. Accordingly even\r\nin relation to the audi alteram partem rule this court was constrained to hold in\r\nAkuffo-Addo v Catheline (1992)1 GLR 377 S.C as per headnote (2) as follows:\r\n"(2) The proviso not rule 8(6) of the Court of Appeal Rules, 1962 (LI 218)\r\nhich required the Court of Appeal not to rest a decision on a ground not canvassed by the appellant unless the respondent had been given sufficient opportunity to controvert that ground, should not be given an interpretation which would inhibit or stultify the rule that an appeal "shall be by way of rehearing." The proviso could not be said to imply an absolute prohibition; in certain special or exceptional circumstances, it would not apply. Accordingly, it could be said that the Court of Appeal should not decide in favour of an appellant on a ground not put forward by him unless the court was satisfied beyond doubt, first, that it had before it all the facts or materials bearing upon the contention being taken by it suo motu and secondly, that the point was such that no satisfactory or meaningful explanation or legal contention could be advanced by the party against whom the point was being taken even if an opportunity was given him to present an explanation or legal argument Accordingly, even though in the instant case there was indeed no ground filed by the defendants which could be said to be a complaint against the trial court''s decision to decree title to the Kaneshie house in the plaintiff when there had been no claim to such relief, since on the evidence the claim had never been before the trial court, the judge had no jurisdiction to pronounce on same. Accordingly, since the decree was a nullity, the Court of Appeal''s hands could not be stayed, when it decided to act suo motu in the matter, by the invocation of the proviso to rule 8(6) of LI 218 to inhibit its inherent jurisdiction."(e.s)\r\nIt is interesting that Osei-Hwere JSC who when a Justice of the High Court took a similar view in Essilfie v Ghana Ports Authority (1980) GLR 469, radically disagreed with this holding. In view of this court''s decision in Hanna Assi (No. 2) v. Gihoc Refrigeration & Household Products Ltd (2007-2008)1 SCGLR 16 the reasoning in the holding (2) quoted above may not hold now with regard to the omission to make a particular claim, but it could be relevant to other situations.\r\nConclusion\r\nI would conclude by holding that since under the common law the purposive rule of applying the common law is observed and conveyed by the maxim cessante ratione cessat lex ipsa and the same principle has been adopted by this court with regard to statutory and constitutional interpretation and the 1992 Constitution itself expressly requires (see for example article 17(4)(d), that its spirit should be observed), where there is clearly no defence against an order made by a court, that situation does not evoke unfairness against the person to whom it relates even if he was not heard before the same was made. In such a case the court should not be bound to set it aside, ex debito justitiae. However, in this case the applicant has a plethora of causes to show as to why his appeal ought not to be struck out upon the Registrar''s summons. Therefore the failure to hear him out on it is prima facie an infraction of the audi alteram partem rule as embraced by article 296 and can void the peremptory striking out of his appeal and time under the Rules of this court cannot shut him out from pursuing his motion herein.\r\nFor these reasons I would also overrule the preliminary objection.\r\nMotion to proceed.\r\nCOUNSEL; \r\nMISS AUDREY TWUM FOR THE APPLICANT.\r\nGODFRED YEBOAH-DAME FOR THE 2ND RESPONDENT.\r\n\r\n', '../links/cases/THE R VRS COURT OF APPEAL.pdf', 'Yes', 'DR.DATE-BAH,J.S.C.,ANSAH,J.S.C.,BAFFOE-BONNIE,J.S.C.,ARYEETEY,J.S.C.', '2011', 'supreme', '<font face="Times New Roman" size="2"><i>Practice and Procedure-Supervisory Jurisdiction of the Supreme Court-Prerogative Writ-Certiorari-Application-Natural Justice-Breach of the audi alteram partem rule.Court of Appeal Rules CI 19 Rule 20(2).Application for Certiorari-Factors to Consider</i></font><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J5/21/2001', '', '', 'supreme', '2011-06-22', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(508, '1.	MR. SAMUEL OKUDZETO ABLAKWA        -  PLAINTIFFS\r\n2.	DR. EDWARD KOFI OMANE BOAMAH\r\nVRS\r\n1.	THE ATTORNEY-GENERAL\r\n2.	HON. JAKE OTANKA OBETSEBI-LAMPTEY  - DEFENDANTS\r\n\r\n', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT OF GHANA\r\nACCRA, 2011\r\n\r\n\r\nCORAM:  ATUGUBA JSC (PRESIDING) \r\n             AKUFFO (MS.) JSC\r\n             BROBBEY JSC\r\n             ADINYIRA (MRS) JSC\r\n             OWUSU (MS) JSC                10TH NOVEMBER, 2011\r\n             DOTSE JSC\r\n             BAFFOE-BONNIE JSC\r\n             ARYEETEY JSC\r\n             AKOTO-BAMFO (MRS.) JSC\r\n  \r\nWRIT                                           J1/4/2010\r\n\r\n1.	MR. SAMUEL OKUDZETO ABLAKWA\r\n-	PLAINTIFFS\r\n2.	DR. EDWARD KOFI OMANE BOAMAH\r\nVRS\r\n1.	THE ATTORNEY-GENERAL\r\n2.	HON. JAKE OTANKA OBETSEBI-LAMPTEY  - DEFENDANTS\r\n\r\n\r\n\r\nConstitutional Law— Sale and transfer of compulsorily acquired Public or Government Land to    private person constituting public interest matter— 1992 Constitution, arts. 20 (5) & (6), 23, 257 and 296.\r\n\r\nOriginal Jurisdiction of Supreme Court in Constitutional Matters— Test for determining constitutional matter requiring interpretation and enforcement of 1992 Constitution— Nature of law relevant to resolution of issues; law having closet connection with issues; law which will wholly or substantially dispose of action— 1992 Constitution, arts. 2 and 130. \r\n \r\n \r\nRULING\r\n\r\nATUGUBA. J.S.C:\r\nBy their amended writ dated 30/7/2010 the plaintiffs claim before this court as\r\nfollows:\r\n1.	A declaration that, by virtue of Articles 20(5) & (6), 23, 257, 258, 265, 284 and 296 of the Constitution of the Republic of Ghana, 1992, the Minister for Water Resources. Works and Housing in the previous Government of His Excellency, President J.A. Kufuor, did not have the power to direct the sale, disposal or transfer of any Government or public land to the 2nd Defendant or any other person or body under any circumstances whatsoever, and that any such direction for the disposal, sale or outright transfer of the said property in dispute or any public land to the 2nd Defendant was unconstitutional and illegal.\r\n2.	A declaration, by virtue of Articles 20(5), 23, 257, 258, 265, 284 and 296 \r\nof the Constitution of the Republic of Ghana. 1992, the Government of Ghana is obliged to retain and continue to use in the public interest the property compulsorily acquired for public purpose the parcel of land designated as Parcel No. 29, Block 12, Section 019, in extent 1.04 acres more or less, as delineated on Registry Map No. 0033/019/1988, on which\r\n \r\nis situated by the Republic of Ghana Bungalow No, 2 located at St Mungo Street, Ridge, Accra.\r\n3.	A declaration that the purported sale of the said Government Bungalow by the outgoing Government to one of its high ranking public officials, the 2nd Defendant, was in utter contravention of Articles 20(5), 23, 257, 258, 265, 284 and 296 of the Constitution of the Republic of Ghana, 1992, and the purported direction by the Minister for Water Resources, Works and Housing in the previous Government of His Excellency, President J.A. Kufuor, for the disposal, sale or outright transfer of the said property in dispute to the 2nd Defendant smacks of cronyism, and the same is arbitrary, capricious, discriminatory and a gross abuse of discretionary power vested in a public officer under the 1992 Constitution.\r\n4.	A declaration that the publication by the Lands Commission and the Land title Registration Office at page 18 of "The Ghanaian Times" published on 22/11/2008 in respect of the "Notice of Application for the Registration" by the 2nd Defendant of the parcel of land designated as Parcel No. 29, Block 12, Section 019, in extent 1.04 acres more or less, as delineated on Registry Map No. 003/019/1988, on which is situated by the Republic of Ghana Bungalow No. 2, located at St Mungo Street, Ridge,\r\nAccra, a step taken by the Chief Registrar of the Land Title Registration Office to grant to the 2nd Defendant a Land certificate in relation to the said\r\n \r\n'' \r\nproperty so as to effectuate the purported sale of the said Government property to him, was in utter contravention of Articles 20(5), 23, 257, 258, 265, 284 and 296 of the Constitution of the Republic of Ghana, 1992, and thus unconstitutional and void and the same must be struck out as such.\r\n5. An Order of Perpetual Injunction restraining the Chairman of the Lands Commission and the Chief Registrar of the Land Title Registration Office, their workers and agents from perfecting the registration of the parcel of land designated as Parcel No. 29, Block 12, Section 019, in extent 1.04 acres more or less, as delineated on Registry Map No. 003/019/1988, on which is situated by the Republic of Ghana Bungalow No. 2, located at St Mungo Street, Ridge Accra, in the name of the 2nd Defendant."\r\nThe 2nd defendant has raised a preliminary objection to the jurisdiction of this court to entertain this action. In summary form the 2nd defendant''s objections are that the provisions of the constitution relied on by the plaintiff are clear and unambiguous and therefore on the authority of particularly Republic v. Special Tribunal, Ex parte Akosah [1980] GLR 592 C.A., in such a case the submissions of a party may relate "to no more than a proper application of the provisions of the constitution to the facts in issue, a matter for the trial court." He further contends that the plaintiff''s reliance on article 284 is misconceived since the Constitution has under article 287 vested the Commission on Human Rights and Administrative Justice (CHRAJ) jurisdiction to determine a claim of breach of article 284. He further contends that articles 20(5) and (6), 23, 265 and 296 relate to the scope of the power of management of public lands by Government, acting by the Lands Commission under the Land Commission Act 1994, Act 483 and that this is a matter for the High Court. In short the 2nd defendant contends that the plaintiffs'' case is a non constitutional one camouflaged in constitutional robes. Counsel for the 1st defendant raised objections to this court''s jurisdiction that are very similar to those raised by the 2nd defendant''s counsel. He concludes thus: "Consequently we invite this honourable court to dismiss Plaintiffs'' case as being a simple land matter which can be ventilated before the High Court (Lands Division) in the first instance." First, the contention that this case is essentially a land case which is within the jurisdiction of the High Court in the first instance. Though this action involves land it is difficult to see how it is a land case for the High Court. The Plaintiffs are not seeking any relief inter partes in a land suit. The typical features of a land suit have been settled by this court in Odonkor v Amartei (1992)1 GLR 577 S.C. It was therein held as per the headnotes (1) and (2) as follows:\r\n"(1) an action was for a declaration of title if (I) the action was between adjoining land owners and one committed a trespass over the other''s land, i.e. a boundary dispute; or (ii) where the party had been dispossessed of land by reason of adverse claims or possession made thereto or an actual right of occupation and enjoyment thereof; or (iii) where there had been a sale or alienation of the same land to rival purchasers. Since the appellants had not set out any of those grounds as entitling them to call on the respondent to demonstrate his title, the action was not one for declaration of title.\r\n(2) The appellants'' claim that the land in dispute was their ancestral property over which they had granted the respondent''s family farming rights postulated that the appellants had known that the respondent''s family were in possession. And trespass to land was committed by injury to or interference with one''s possession. Accordingly, the cardinal principles in an action for trespass to land were that the plaintiff had to establish that he was in exclusive possession of the land at the time of the trespass and that the trespass was without justification." (e.s) \r\nAgain in Acquah and Dadzie v Loo (1961)1 GLR 239 S.C the second plaintiff joined the plaintiff to sue the latter''s step daughter to set aside a conveyance of land between the plaintiff and his said step daughter on grounds of misrepresentation. It was held that the second plaintiff lacked locus standi and that his evidence should be struck out as hearsay. \r\nIt is therefore clear that the plaintiffs in this case who are suing both grantor and grantee for alleged breaches of the constitution relating to the said land could not institute any real or meaningful cause of action in land in the High Court. \r\nIt is well settled that a private person as opposed to the Attorney-General cannot litigate purely public rights which do not touch and concern him in a particular private manner. See Gouriet v. Union of Post Office Workers (1977)3 All ER 70 H.L, Chokolingo vAttorney-General of Trinidad and Tobago (1981)1 All ER 244 P.C. It is quite clear therefore that any purported action in land by the plaintiffs in this case would be purely vacuous, farcical and terminally ill. In Ghana, this position is only different in constitutional actions in this court, by virtue of article 3 of the constitution. \r\nThe case really calls up the vexed question as to what should be the real test for determining what is a constitutional case for either interpretation or enforcement within the exclusive jurisdiction of this court under articles 2 and 130 of the constitution. It is trite law that the known test is what is the real issue or as is sometimes put in this and other jurisdictions, what is the pith and substance of the action. \r\nHowever the application of such tests can assume a very generalised character which may in effect mean the subject matter of the action. In that frame the proper jurisdiction of this court may not be properly ascertained. Thus cases such as Mensima v Attorney-General (1996-97) SC GLR 676, New Patriotic Party v Attorney-General (Gba Case) (1996-97) SC GLR 729 Ellis v Attorney-General [2000] SC GLR 24, Sam (No. 2) v Attorney-General [2000] SC GLR 305, Agbevor v Attorney-General (2000) SC GLR 403, Adofo v Attorney-General [2003-20061 SC GLR 411, Ackah v Adjei-Acheampong (2005-2006) SC GLR etc could have been classified as actions concerning one subject-matter or the other properly cognisable under the jurisdiction of the High Court. It has however not been seriously contested that those cases were not properly decided under the constitutional jurisdiction of this court. \r\nIn his sterling book on Ghana Constitutional Law Dr. Bimpong-Buta gives a vivid example of this scenario though he tries to rationalise the situation. At p.516 he states thus:\r\n"In comparison, both decisions of the Supreme Court, namely, the earlier decision of Ghana Bar Association v Attorney-General (Abban Case) and the subsequent decision in Nartey v Attorney-General & Justice Adade (Justice Adade case), had one thing in common: the real nature of the action was to cause the removal from office of a justice of a superior court. In the Abban case, the action was unanimously dismissed on the ground that the Supreme Court had no jurisdiction to entertain such a claim no matter in what form, garb or disguise the action was mounted. But in the Justice Adade case, the action was upheld by a majority decision even though in substance and reality, the action was also aimed at removing a justice of the Supreme Court from office."\r\nAt 533-535 he gives another example of the assumption of jurisdiction in Sallah v Attorney-General (1970) 2G&G 493 and Agbevor v. Attorney General [2000] SC GLR 403 but the denial of jurisdiction in Bimpong-Buta v General Legal Council & Three Others [2003-2004]2 SC GLR 1200 although in all these cases the claims were founded on the termination of employment.  \r\nJUDICIAL ACTIVISM\r\nWhen the legislature distinctly entrusts a task to a judge or court it behoves that judge or court to adopt a proactive approach to it ut res magis valeat quam pereat. Thus in Re L (a minor) (police investigation: privilege) (1996)2 All ER at 89 H.L Lord Nicholls said:\r\n"The 1989 Act represents a comprehensive and far reaching reform of child law. It integrates within one statute provisions regulating public and private rights and responsibilities in respect of children. Central to the role of the court is the ''paramountcy" principle, set out in s 1. Whenever a court determines a question with respect to the upbringing of a child or the administration of a child''s property, the child''s welfare shall be the court''s paramountcy consideration. The application of this principle requires a judge to apply a particular test when deciding an issue regarding a child''s upbringing. But it goes much further than this. In practice the application of the paramountcy principle requires a judge, in the fashionable jargon, to be pro-active and not merely reactive. It means that in family proceedings as defined in the 1989 Act, the court is not concerned simply to decide an issue between the parties and to do so on the basis of the evidence the parties have chosen to present. The court is concerned to protect the child and promote the child''s welfare. The court is not confined to the issues, or\r\nthe evidence, the parties have brought forward. Nor is it confined to the alternative courses proposed by the parties: see Re E (S A) (a minor) (wardship) [1984]1 All ER 289, [1984]1 WLR 156. During the proceedings the court may at any time, of its own motion, take steps which it considers necessary or desirable to protect the child or promote the child''s welfare. The judge may call for more evidence or for assistance from further parties or instigate applications for appropriate orders. ""(e. s) \r\nSuch a proactive approach has been emphasised in relation to the enforcement of the Fundamental Human Rights by Apatu-Plange J in Republic v. Andrie and Others; Ex parte Kpandoave III (1987-88)1 GLR 624. At 638 he quotes the following statement of Hayfron Benjamin J (as he then was) in Republic v. Chieftaincy Committee on Wiamoasehene Affairs; Ex parte Oppong Kwame (1971)1 GLR 321 at 328 (though the ultimate decision in that case was reversed on appeal), as follows:\r\n"The process of liberalisation is by no means complete. In the infant democracy of Ghana it is exceptionally important that the courts should not put fetters on their own ability to protect the fundamental human rights….by adopting highly technical and artificial limitations on their powers, limitations which are being rapidly discarded even in monarchical regimes. Democracy in the last analysis, receives its sustenance from remedial laws and procedures; it is the availability of effective and reasonably quick remedies for doing justice that gives meaning to democracy. The High Court of Ghana has been given power under article 28 of the Constitution to issue writs and orders in the nature of habeas corpus, certiorari, etc; as it may consider appropriate for the purposes of enforcing, or securing the enforcement of fundamental human rights. It has also been given supervisory powers over all adjudicating authority under article 114 of the Constitution exercisable by the same writs and orders. To restrict these powers by adopting self-imposed limitations would considerably impair the power of the courts to perform and fulfil their duties of securing the enforcement of fundamental freedoms and supervising other adjudicating authorities. I do not propose to do so." \r\nAgain in Kroye-Adujama Co-operative Society v Hiawu Besease Co-operative Society (1962)1 GLR 47 Apaloo J. (as he then was) adopted a proactive approach to the issue of jurisdiction.\r\nThe facts of the case as per the headnote are as follows:\r\n"The business of both the plaintiff and defendant societies herein was the purchase and marketing of cocoa. The plaintiff society claimed that the defendant society had in its possession 110 bags of cocoa belonging to the plaintiff society. The plaintiff society therefore instituted an action in the High Court to recover the said bags of cocoa. The defendant society took preliminary objection to the court''s jurisdiction which it claimed was ousted by section 44(1) and (5) of the Co-operative Societies Ordinance, Cap. 190 (1951 Rev.) which provide that "any dispute touching the business of a registered society" should be referred to the Registrar of Co-operative Societies and that his decision once given shall be final and "shall not be called in question in any court of law."\r\nUpon these facts counsel for the parties submitted inter alia as follows: \r\n"Counsel for the defendant society said in answer to the court that the purchase and marketing of cocoa is the ordinary business of a registered society. This was not disputed by counsel for the plaintiff and for the purpose of construing section 44 of the Ordinance; I will accept that as the business of both societies. The words which call for construction in this case are "dispute touching the business". In the view of counsel for the plaintiff society, this means that both societies must be doing business between themselves and therefore the dispute must arise from contract not from tort. He contended that the defendant society''s liability in this case (assuming the plaintiff society''s case to be established) arose ex delicto not ex contractu. Accordingly, he contended that the court''s jurisdiction is not outsted by section 44." \r\nApaloo J at 48-49 stoutly rejecting the restrictive contention of counsel for the plaintiff aid: \r\n"In my opinion, a dispute which touches the business of two societies is a difference which arises between them in a matter concerning their business. In this case the business of both societies is the purchase and marketing of cocoa. The plaintiff society claims that 110 bags of cocoa now in possession of the defendant society properly belongs to itself and seeks to recover it. The defendant society disputes it and that is the matter in controversy between them. The fact that in investigating the dispute, a crime may be found to have been committed by some officers of one or other of the societies is, in my opinion, an irrelevant circumstance. I assume that if a crime is actually disclosed in the course of the  investigation, the person charged with investigating the dispute would act on the principle in Smith v Selwym and stay investigation until criminal proceedings have been taken. But that by itself ought not, in my judgment, to amount to an ouster of jurisdiction in favour of the court. In my opinion, there is no basis for excluding from the ambit of section 44 a dispute touching the business of registered societies, if that dispute arose from tort. If that had been the intention of the legislature, I see no reason why it did not so specifically provide. There is in my view, no room here for limiting the wide scope of section 44 by applying anything like the ejusdem generis rule. Unless there is very good reason for it, or unless there is any authority binging on me and which I ought to follow, I should not interpret section 44 of Cap. 190 in a manner that substantially limits its scope and makes its object almost nugatory. \r\nAccordingly, I decide that the present dispute touches the business of the plaintiff and defendant societies and that by the combined effect of subsections (1) and (5) of section 44 of Cap. 190 the jurisdiction of this court is ousted."\r\nThe constitutional Trust reposed in this court is nakedly stated at 122-123 of the Report of the Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana as follows: \r\n"JUDICIAL REVIEW\r\n262. Judicial review, including the power of the Judiciary to pronounce on the constitutionality of Acts of Parliament, other enactments and also Executive action, is a potent and far-reaching aspect of judicial power. Judicial review is an established doctrine of the constitutional law of the United states and was adopted in Ghana under the 1969 and 1979 Constitutions. In view of the limited duration of these two constitutional regimes, it can hardly be denied that Ghana under the 1969 and 1979 Constitutions. In view of the limited duration of these two constitutional regimes, it can hardly be denied that Ghana has had a comparatively limited experience of the doctrine in its more radical form of pronouncing on the constitutionality of actions taken by the Legislature and the Executive, and indeed any other authority.\r\n263. The practice of this concept of judicial review in other countries, not excluding the United States, has not been free from difficulty. Many Governments and Legislatures do not welcome the prospect of their action being nullified by the unelected branch of Government. Disputes as to the constitutionality of the action taken by the Legislature or the Executive, therefore, frequently generate bitter confrontations between state organs that tend to threaten the constitutional order itself. In some cases, constitutional challenges to the Executive or the legislature may disclose genuine philosophical differences with the Judiciary as to the issues before the Court. Thus, in the United States, there was a genuine question as to whether the Roosevelt Administration''s programme of social legislation to regulate and ameliorate working condition was violative of constitutionally guaranteed contractual rights. Similarly, the attempts of the Indira Ghandi government to introduce land reform in India were challenged as repugnant to the constitutionally protected property rights of the large landowners. Thus, what the Judiciary considers as a principled stand in defence of clear provisions of the Constitution may be seen by other branches of Government as an unduly conservative or radical posture that impedes much-needed social reforms. In Ghana, the Sallah Case and the Apaloo Case demonstrated the extent to which constitutional confrontations could threaten the foundations of the political system.\r\n264. Notwithstanding these difficulties, the Committee is of the considered view that judicial review in all its forms should be firmly established under the Constitution. This means (1) the power to pronounce on the constitutionality of the acts of other branches of the Government, and (2) judicial review of administrative acts. Judicial review of the latter category is necessary where there is a breach of natural justice or where administrative bodies act in excess of their powers. Nevertheless, having regard to our bitter experience of confrontations generated by the exercise of this power, the Committee strongly urges that appropriate mechanisms be instituted to minimize and diffuse the prospects of such confrontations. The special role defined for the Judicial Committee of the Council of State addresses this concern.  \r\n265. Subject to the foregoing, as well as the jurisdiction of the High Court to enforce human and other constitutionally guaranteed individual rights, the Committee fully endorses vesting the power of judicial review in the Supreme Court as set forth in Article 118 of the 1979 Constitution as follows:\r\n"The Supreme Court shall have original jurisdiction to the exclusion of all other courts:\r\n(a)	in all matters relating to the enforcement or interpretation of any provision of the Constitution; and\r\n(b)	where a question arises whether an enactment was made in excess of the powers conferred upon Parliament or any other authority or person by law or under this Constitution".\r\nClearly the Committee of Experts had endorsed the assumption of jurisdiction by the Court of Appeal (sitting as the Supreme Court) in the Sallah and Apaloo cases.\r\nIn view of the nature of this Trust, namely, the task of upholding constitutionality in our country it is the duty of this court to assume jurisdiction when the essential nature of an action before it has to do with the question of constitutionality of the act or omission in question rather than the nature of the subject matter from which the constitutional action has arisen. \r\nThis is also the thrust of Dr. Bimpong-Buta''s review of the test for a constitutional action within the jurisdiction of this court in his invaluable book The Role of the Supreme Court in the Development of Constitutional Law in Ghana. At p. 615 he states poignantly thus:\r\n"The theme running through the preceding chapters of this book is that the Supreme Court, as explained in detail in chapter 1, has a significant role to play in the promotion, enforcement and sustenance of a proper democratic system of government, good governance and fundamental human right and freedoms in Ghana. The success of the Supreme Court ought to be judged by the extent to which its interpretation and enforcement roles advance the cause of such basic democratic values and the upholding of constitutionalism."\r\nConsequently he makes certain pertinent points with regard to the true ascertainment of the jurisdiction of this court in constitutional cases. Thus at 529 - 530 he stresses that this court should not proceed "as though it must in all cases interpret a provision of the Constitution before exercising its exclusive jurisdiction under article 130(1) (a) of enforcing the provision as interpreted by it. And yet the Supreme Court''s original jurisdiction in matters relating to enforcement and interpretation under article 130(1) (a) is disjunctive and not conjunctive, i.e. it extends to "all matters relating to the enforcement or interpretation of [the] Constitution"\r\nAgain at p. 536 he strongly states thus:\r\n"It is also respectfully suggested that the proper test for determining whether or not the Supreme Court is vested with exclusive jurisdiction to enforce the Constitution under article 130(1), is to examine the plaintiff''s claim to find out whether, in fact, it alleges a complaint of an infringement of a constitutional provision even if the claim is founded on termination of employment such as happened in the Sallah and Agbevor cases (supra). That proper test was subsequently recognised by Prof Ocran JSC in his opinion in support of the majority decision in Republic v High Court (Fast Track Division), Accra; Ex parte Electoral Commission (Mettle-Nunoo & Others Interested Parties)[2005-2006]SC GLR 514 at 551 where he said:\r\n"The Supreme Court in the Bimpong-Buta case viewed the plaintiff''s action as the vindication of all alleged infraction of his employment contractual right, and therefore dismissed the application.\r\nHowever, mere labels like ''contractual right'', ''property right'', ''constitutional right'' etc do not always clear the stables; for the alleged infraction of a contractual right might very well involve the infraction of the applicant''s constitutional right under chapter 5 of the Constitution, for example, where the reason for a dismissal or differential treatment in an employment contract case has to do with the applicant''s ethnic or sexual status, or with any of the grounds of discrimination mentioned in article 17(2) of the Constitution."\r\nHowever this passage is more apt to the ascertainment of the High Court''s jurisdiction over the enforcement of the Human Rights provisions of the Constitution. It can however, mutatis mutandis be applicable to the true test for the presence of jurisdiction in the Supreme Court over an action before it. That would be in line with the statement of Edward Wiredu JSC (as he then was) in Ghana Bar Association v Attorney-General (Abban Case), [2002-2004]1 SCGLR 250 at 259:\r\n"The court, as the repository watchdog of the Constitution, is enjoined to protect, defend and enforce its provisions and should not allow itself to be diverted to act as an independent arbiter of the Constitution."\r\nAlso apposite is the statement of Acquah JSC in the case of Amidu v President Kufuor [2001-2002] SCGLR 86 at 100 that:\r\n"....where it is alleged before the Supreme Court that any organ of government or an institution is acting in violation of a provision of the constitution, the Supreme Court is in duty bound by articles 2(1) and 130(1) to exercise jurisdiction, unless the Constitution has provided a specific remedy, like those of articles 33 and 99 for dealing with that particular violation. It follows therefore that no individual nor creature of the Constitution is exempted from the enforcement provision of article 2 thereof. No one is above the law. And no action of any individual or institution under the Constitution is immuned from judicial scrutiny if the constitutionality of such an action is challenged."\r\nConclusion\r\nThe problem of ascertaining the presence of jurisdiction of this court in constitutional matters can largely be arrested by focusing more on the nature of the law that will be relevant to the resolution of the issues raised in an action before this court rather than the nature of the subject-matter. It is quite clear that it is the upholding of the supremacy of the constitution that is the fulcrum of this court''s jurisdiction in actions commenced before it. Accordingly some such test (in addition to what has been hereinbefore stated) as, with which law the issues to be determined in the action have the closest connection or which law, the application of which to the action before the court wholly or substantially will dispose of it, could be of great pertinence. Thus in Arthur v Sika (1960) GLR 34 it is stated as per the headnote thus:\r\n"By a specially endorsed writ the plaintiff claimed from the defendant £G700 as money expended by him in erecting a block building on top of the defendant''s ground floor building "upon consideration which had failed owing to the defendant''s refusal for the plaintiff to complete the said building." He further claimed that in arbitration proceedings the defendant had been found liable to pay the said amount. In her statement of defence, the defendant inter alia pleaded (paragraph 3) that at the material time she was the concubine of the plaintiff and living with him and that the extension to her building was paid for out of her money, £G2,000, which she had earned as a petty trader and had entrusted to the plaintiff. Admitting there was an arbitration, she denied that she had been found liable. She further averred (paragraph 8) "that the claim of the plaintiff is not maintainable under native custom and law, as under the said custom and law, any property, money or anything that passes to a party during the subsistence of a concubinage is never recoverable after the cessation of the said concubinage." In his reply, the plaintiff denied the averments of the defendant. In particular he pleaded (paragraph 2) in answer to paragraph 8 of the statement of defence, "the plaintiff says there was a valid marriage, in accordance with native customary law, subsisting between him and the defendant at the time he incurred the amount of expenses claimed herein in raising the one storey house of the defendant to a two-storey building; the plaintiff therefore is entitled to recover from the defendant payment of the amount spent by him on the said house when the defendant refused to continue the said marriage with the plaintiff, and insisted upon the same being dissolved, and it was so dissolved at an arbitration held at the instance of the defendant...\r\nHeld: (1) the plaintiff''s claim was based on his allegation that at all material times the defendant was his wife by customary law, and that the defendant had brought about the dissolution of the marriage in such circumstances as entitled plaintiff to recover moneys he had spent on her behalf during the subsistence of the marriage;\r\n(2) a suit claiming such relief was one concerning divorce between persons allegedly married under native customary law. As such it was properly cognizable by the Native Court "B", to which the parties must therefore be referred."(e.s) \r\nAgain in Papafio v Sam (1960) GLR 126 the facts of the case as per the head note are:\r\n"The plaintiff claimed a declaration of title to land, recovery, of possession, damages for trespass and perpetual injunction. At the hearing of the summons for directions, the defendant raised a preliminary point as to the jurisdiction of the High Court to hear the action. He contended that the defence relied on a grant of the land in his favour by customary law and the suit was therefore one properly cognizable by a local court. (Local Courts Act, 1958 s.55). The plaintiff contended that the issue between the parties did not depend on customary law and that mainly statute law applied."\r\nUpon these facts, at 128 it is stated, applying Tackie v Nelson and others (12 WACA) 419 thus:\r\n"In that case the plaintiff as landlord claimed arrears of rent and recovery of possession of premises demised to the defendants. The co-defendant to\r\nwhom the defendant had been paying rents was joined as a party. In her defence she pleaded that she was the real owner by right of succession to her mother, and that the plaintiff was not the owner, and therefore not entitled to his claim. It was contended on behalf of the co-defendant that by reason of her defence that the property, the subject-matter of the suit, is vested in her by customary law of succession as against the plaintiff, the suit was one properly cognizable by a native court and that the jurisdiction of the High Court was thereby ousted. The West African Court of Appeal held that the claim before the court was a claim under the Rent (Control) Ordinance, 1947 and a deed of lease, and its determination did not involve the application of customary law, and therefore it was not one which was properly cognizable by a native court and that the defence of the co¬defendant that, as between her and the plaintiff, she was the owner of the property by customary law, did not take the suit out of the jurisdiction of the High Court."\r\nOllennu J(as he then was) further stated at 129 thus:\r\n"Finally since both the plaintiff and the defendant rely upon the same root of title, if the evidence should prove that the area in dispute has been granted to each of them, or forms part of the area of land granted to each of them by the same grantors, the question will be: which of these two grantees has priority as for as the interest in that piece of land is concerned? The determination of that important issue will depend upon the construction of section 21 of the Land Registry Ordinance Cap. 133.\r\nThat interpretation is not one which is within the competency of a local court. In view of these points which I have discussed, I cannot form the opinion that this is a suit which is property cognizable by a local court. That being so, I cannot refuse exercise of jurisdiction which belongs to me under section 24 of the Courts Ordinance, because although I am satisfied that there is a competent local court established in this Region, I am not of the opinion that this suit is one properly cognizable by a local court."\r\nIn this case the plaintiffs'' case stands or falls only upon the grounds upon which he relies and they are all based on articles of the constitution. It is clear that these provisions are stated in such generalised terms that they are inherently ambiguous and require interpretation by this court. In any event it is clear that the plaintiffs are out to enforce those provisions of the constitution with regard to the acquisition of the land in issue by the 2nd defendant and the observance of those provisions by the government, the Minister for Works and Housing and the Lands Commission.\r\nClearly the law applicable is largely constitutional law within the jurisdiction of this court. I hasten to add that with regard to articles 20(5) and (6) and 23 they pass for public interest matters and they are within the jurisdiction of this court as laid down in Adjei-Ampofo v Accra Metropolitan Assembly and Attorney-General (No. 1) [2007-2008]1 SCGLR 610 and Federation of Youth Association of Ghana (Fedyag) v Public Universities of Ghana [2010] SCGLR 265. As regards the contention that because CHRAJ can investigate all egations of conflict of interest such matter is outside the jurisdiction of this court assuming the same is well founded, that alone cannot divest this court of entire jurisdiction over this action.\r\nNothing stated herein should be construed as departing from those decisions that hold that where the constitutional issue is only incidental this court has no jurisdiction but such issue must be truly incidental in the light of the foregoing.\r\nFor all the foregoing reasons the preliminary objection to our jurisdiction is overruled.\r\nW. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n \r\nAKU FF0 (MS.) J.S.C.\r\nI have had the privilege to read the opinion just read by my brother, Justice Atuguba, as well as those about to be read by my sister, Justice Adinyira and my brother, Justice Dotse. For the reasons stated by Justice Adinyira, I am in full agreement that this is clearly a case wherein the original jurisdiction of the court has been properly invoked. I, therefore, agree that the preliminary objection be overruled.\r\nS. A. B. AKUFFO, (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\nBROBBEY. J.S.C\r\nHaving considered all the submissions of the parties and having read the opinion of my brothers Atuguba , Dotse and sister Adinyira JJSC. I am of the opinion that there is no merit in the objection and same should be dismissed so that the case will take its normal course.\r\nS. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT \r\nADINYIRA (MRS.), J.S.C:\r\nThe plaintiffs'' claim before this court as per their amended writ dated 30/7/2010 is as follows:\r\n“1. A declaration that, by virtue of Articles 20(5) & (6), 23, 257, 258, 265, 284 and 296 of the Constitution of the Republic of Ghana, 1992, the Minister for Water Resources, Works and Housing in the previous Government of His Excellency, President J.A. Kufuor, did not have the power to direct the sale, disposal or transfer of any Government or public land to the 2nd Defendant or any other person or body under any circumstances whatsoever, and that any such direction for the disposal, sale or outright transfer of the said property in dispute or any public land to the 2nd Defendant was unconstitutional and illegal.\r\n2.	A declaration that by virtue of Articles 20(5), 23, 257, 258, 265, 284 and 296 of the Constitution of the Republic of Ghana, 1992, the Government of Ghana is obliged to retain and continue to use in the public interest the property compulsorily acquired for public purpose the parcel of land designated as Parcel No. 29, Block 12, Section 019, in extent 1.04 acres more or less, as delineated on Registry Map No. 0033/019/1988, on which is situated by the Republic of Ghana Bungalow No. 2 located at St Mungo Street, Ridge, Accra.\r\n3.	A declaration that the purported sale of the said Government Bungalow by the outgoing Government to one of its high ranking public officials, the 2nd Defendant, was in utter contravention of Articles 20(5), 23, 257, 258, 265, 284 and 296 of the Constitution of the Republic of Ghana, 1992, and the purported direction by the Minister for Water Resources, Works and Housing in the previous Government of His Excellency, President J.A. Kufuor, for the disposal, sale or outright transfer of the said property in dispute to the 2nd Defendant smacks of cronyism, and the same is arbitrary, capricious, discriminatory and a gross abuse of discretionary power vested in a public officer under the 1992 Constitution.\r\n \r\n	\r\n4.	A declaration that the publication by the Lands Commission and the Land title Registration Office at page 18 of "The Ghanaian Times" published on 22/11/2008 in respect of the "Notice of Application for the Registration" by the 2nd Defendant of the parcel of land designated as Parcel No. 29, Block 12, Section 019, in extent 1.04 acres more or less, as delineated on Registry Map No. 003/019/1988, on which is situated by the Republic of Ghana Bungalow No. 2, located at St Mungo Street, Ridge, Accra, a step taken by the Chief Registrar of the Land Title Registration Office to grant to the 2nd Defendant a Land certificate in relation to the said property so as to effectuate the purported sale of the said Government property to him, was in utter contravention of Articles 20(5), 23, 257, 258, 265, 284 and 296 of the Constitution of the Republic of Ghana, 1992, and thus unconstitutional and void and the same must be struck out as such.\r\n5.	An Order of Perpetual Injunction restraining the Chairman of the Lands Commission and the Chief Registrar of the Land Title Registration Office, their workers and agents from perfecting the registration of the parcel of land designated as Parcel No. 29, Block 12, Section 019, in extent 1.04 acres more or less, as delineated on Registry Map No. 003/019/1988, on which is situated by the Republic of Ghana Bungalow No. 2, located at St Mungo Street, Ridge Accra, in the name of the 2nd Defendant."\r\nIn sum, the plaintiffs allege that the government is obliged to retain and continue to use in the public interest the property compulsorily acquired for public purpose, the parcel of land designated as Parcel No. 29, Block 12, Section 019 and therefore they claim the decision to grant the property to the 2nd defendant smacked of cronyism, and the same was arbitrary, capricious, discriminatory and abuse of discretionary power vested in a public officer, and hence unconstitutional. The plaintiffs rely especially on articles 20 (5), 23, 257, 258, 265, 284 and 296.\r\n \r\n\r\nPreliminary legal objection by the 1st and 2nd defendants founded on want of jurisdiction of the Supreme Court\r\nThe defendants have raised objections to the jurisdiction of this court upon grounds inter alia that this is not a constitutional matter for which the original jurisdiction of the Supreme Court must be invoked.\r\nObjections by 1st defendant to the jurisdiction of the Court\r\n1.	The provisions relied on by the plaintiffs are clear and unambiguous and does not call for interpretation.\r\n2.	The matter is a simple land case which can be ventilated before the High Court (Lands Division) in the first instance.\r\nObjections by 2nd defendant to the jurisdiction of the Court\r\n1.	The provisions relied on by the plaintiffs are clear and unambiguous\r\nand does not call for interpretation. The 2nd defendant referred to the\r\nguidelines provided in the Republic v. Special Tribunal, Ex parte\r\nAkosah [1980]GLR 592 CA\r\n2.	Article 20 (5) and (6), articles 23, 265 and 296 relate to the management of public lands by the Lands Commission on behalf of the Government and this action is thus a matter for the High Court.\r\n3.	The Constitution has under Article 287 vested the Commission on Human Rights and Administrative Justice (CHRAJ) the power to determine a claim of breach of article 284 and consequently the plaintiffs cannot come to the Supreme Court at first instance to ventilate their grievance relating to the alleged breach of article 284\r\nPlaintiffs'' response\r\nThe plaintiffs claim that the allocation of a parcel of government land to the 2nd defendant was illegal and unconstitutional and their case "hinges on the interpretation of the said constitutional provisions in relation to the acts and/ or policies of the previous government in alienating land compulsorily acquired by the state in the public interest and for public use, i.e. for the accommodation of public officers"\r\n \r\nConsideration\r\nIs this a case for mere interpretation of the provisions of the Constitution?\r\nThe Plaintiffs by this suit are invoking the original jurisdiction of the Supreme Court under articles 2 (1) and 130 (1) (a). We must of necessity, ascertain whether or not our jurisdiction has properly been invoked. To put it differently, does the plaintiffs'' writ properly raise any issue for interpretation or enforcement that can only be resolved by this court in exercising its original jurisdiction?\r\nThe law relating to where and when the exclusive jurisdiction of this Court to interpret the Constitution can be invoked is well settled; as there has been adequate judicial opportunity to interpret the relevant constitutional language. The locus classicus case on point is the Republic v. Special Tribunal ex parte Akosah supra. Other cases are Gbedemah v Awoonor Williams [1969] 2 G & G 438; Tait v Ghana Airways Corp. [1970] 2 G & G; Republic v Maikankan [1971] 2 GLR 473; Aduamoah II v Adu Twum II [2000] SCGLR 165; Oppong v Attorney-general [2003-2004] 1 SCGLR 376; Bimpong-Buta v General Legal Council [2003-2004] 2 SCGLR 1200; Republic v High Court(Fast Track Division); Ex parte Electoral Commission (Mettle-Nunoo & Others Interested Parties) [2005-2006] SCGLR 514; Republic v High Court (Fast Track Division); Ex parte Commission on Human Rights and Administrative Justice (Richard Anane Interested Party) [2007-2008] SCGLR 213 and Federation of Youth Association of Ghana (FEDYAG) v. Public Universities of Ghana &Ors [2010]SCGLR 265.\r\nThe defendants submitted forcefully that the constitutional provisions relied on by the plaintiffs are plain and unambiguous and does not need any interpretation. However on the authorities, this is not the only criteria for the determination of this Court''s interpretative jurisdiction. The real issue that arises when the Supreme Court''s jurisdiction is invoked either by a writ or by referral from the High Court or any other adjudicating body such as the Commission on Human Rights and Administrative Justice (CHRAJ), is the question as to whether on the facts of any given case real or genuine interpretative issue for referral has arisen depends among other\r\nthings, on the nature of the pending action the relief sought, as well as the pleadings...and whether or not the action is one which has been neatly clothed as a case in which our original jurisdiction is required." Per Georgina Wood, CJ in EX parte Electoral commission supra at page 541 of the report If this case is masquerading as one for mere interpretation then the plaintiffs ought to be non-suited as the salient articles they rely on in their writ have received prior judicial interpretation by this Court. For example the Supreme Court considered and constructed: article 20 (5) in Kpobi Tettey Tsuru III v. Attorney-General [2010] SCGLR 904; article 23 in Awuni v.West Africa Examination Council [2003-2004]1SCGLR 471; article 257 in Omaboe III v Attorney-General & Lands commission (2005¬-2006) SCGLR 579 and Tsuru III supra; and article 258 in Tsuru III supra. In the circumstances, the proper forum for this action would be at the High Court where the trial judge is bound to follow and apply the constitutional provisions as interpreted by the Supreme Court to the facts of the case. See EX parte Electoral Commission supra\r\nIs the plaintiffs'' case a land matter masquerading as a constitutional case? The 1st defendant also submitted that the case is a land matter and accordingly the proper forum for it is the High Court. This is quite a lame argument for the reason that although the endorsement on the writ can easily pass for a land suit, the plaintiffs are not laying any adverse claim or interest in the said land, unlike in Tsuru III supra, where the plaintiff, the La Manche, sought a declaration in the High Court that, under clauses (5) and (6) of article 20 of the 1992 Constitution, the La Wireless Station Land compulsorily acquired under a certificate of title dated 9 August 1957 had ceased to be used as a wireless station for which it was acquired; and that the plaintiff as the original owner of the land was entitled to be given the first option to reacquire the land. In the course of the trial the High Court issued a referral to the Supreme Court under article 130(2) of the Constitution for interpretation as to scope and application of article 20 (5) and (6) of the Constitution 1992 to the La Wireless Land.\r\nIs this a case for administrative review?\r\nIt seems to me that this writ is in essence questioning an administrative action or decision taken by the past government and the Lands Commission in respect of public land on the grounds inter alia that it contravenes the Constitution. Meanwhile the Constitution provides under article 23 that:\r\n“23 Administrative bodies and administrative officials shall act fairly and reasonably 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\nAdmittedly article 23 falls under the chapter of fundamental human rights and its enforcement is within the exclusive jurisdiction of the High Court. I therefore agree with the 2nd defendant to the extent that the plaintiffs could have lodged a complaint at CHRAJ tinder article 218 on grounds of abuse of administrative discretion. But does this prevent the plaintiffs from mounting an action in the Supreme Court to challenge the acts of public officials as being in contravention of the provisions of the Constitution? I do not think that paragraph 6 of the Practice Direction by the Supreme Court reported in [1981] 1GLR 1 SC which requires that:\r\n"where a cause or matter can be determined by a superior court other than the Supreme Court, the jurisdiction of the lower court shall first be invoked,"\r\nare meant to curtail or exclude the original jurisdiction of the Supreme Court when the matter in issue is primarily in relation to the enforcement of the Constitution.\r\n\r\nIs this a case primarily for the enforcement of the provisions of the Constitution?\r\nThe question then is whether the plaintiffs'' writ properly raises any real issue of enforcement of the Constitution that can only be resolved by this Court in exercising its original jurisdiction, given the explicit language of articles 2(1) and 130 (1) (a)?\r\nArticles 2(1) and 130 (1) (a) provide as follows: “2. (1) A person who alleges that \r\n(a)an enactment or anything contained in or done under the authority of that or any other enactment; or\r\n(b)	an act or omission of any person-\r\nis inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.\r\n130 (1)(a) Subject to the jurisdiction of the High Court in enforcement of the fundamental Human Rights and Freedoms as provided in article 133 of this Constitution, the Supreme Court shall have exclusive jurisdiction in-\r\nall matters relating to the enforcement or interpretation of this Constitution..."\r\nIt is well settled by decisions of this Supreme Court that any citizen of Ghana has the capacity as a matter of public interest to uphold and defend the Constitution by challenging in the Supreme Court any perceptible inconsistency or contravention in any enactment, or act of omission of any person, with the Constitution, irrespective of personal interest. It would suffice to mention the case of Sam (No 2.) V. Attorney-General [2000] SCGLR 305 at 315, where the eminent and learned Mrs. Joyce Bamford¬ Addo JSC (as she then was) held that:\r\n"[A]rticle 2(1) gives standing to any person, who is a citizen to seek an interpretation and enforcement of the Constitution, in furtherance of the duty imposed on all citizens to defend the Constitution under articles 3(4) (a) and 41(b) ... It is clear then that article 2(1) (a) is a special jurisdiction available to citizens of Ghana only, irrespective of personal interest."\r\nAt pages 340 to 341 of the same law report my sister Sophia Akuffo JSC also held that:\r\n"In my view article 2(1) is one of the most important provisions of the Constitution since it deals with enforcement. To limit its scope below the levels intended by the framers of the Constitution, would be to enfetter one of the most crucial built- in mechanisms for assuring the people of Ghana that their Constitution, would always remain a living and vibrant instrument of social and political management and good governance. Every citizen of Ghana, by virtue of such citizenship, has an innate interest in the integrity of the supreme law of the land, the National Constitution. As such, (therefore,) any perceptible inconsistency or contravention in any enactment or act or omission of any person, with the Constitution constitutes a sufficient occasion for the invocation of article 2. The perceived existence of any unconstitutional enactment, act or omission is ipso facto, a matter of public standing, personal interest and public duty to bring an action in this court to challenge its constitutionality... In the context of article 2 (i), therefore, there can never be an officious bystander or nosy busybody. Every Ghanaian is and must be an interested party. This has always been the position of this court since the 1992 Constitution came into existence"\r\nIt seems to me that the plaintiffs'' contention is based mainly on an infringement of articles 20 and 23 which fall under the Fundamental Human Rights and Freedoms as set out in Chapter Five of the 1992 Constitution. Even where the High Court is vested with the exclusive jurisdiction of enforcement in the area of fundamental human rights and freedoms by the combined effect of articles 33 (1), 130 (1) (a) and 140 (2), and the Supreme Court not having concurrent jurisdiction; yet the jurisdiction of the Supreme Court in this domain is determined by whether or not the plaintiff is pursuing a personal interest as in Edusei (No.2) V. Attorney-General [1998-99] SCGLR 753 and Bimpong-Buta v. General Legal Council supra, or a public interest or a matter in the interest of public good as in Adjei - Ampofo (N6.1) v. Accra Metropolitan Assembly & Attorney-General(No.1)[2007-2008]1SCGLR 611 and Federation of Youth Association of Ghana (FEDYAG) v. Public Universities of Ghana & Ors supra. In the Edusei and Bimpong Buta cases, the Supreme Court declined jurisdiction as the plaintiffs were pursuing matters of personal interests. In the Adjei- Ampofo (No.1) and FEDYAG cases the Supreme Court assumed jurisdiction because the plaintiffs were pursuing matters where the outcome invariably and primarily was to benefit the citizenry in general. Also in the FEDYAG case the substance and nature of the plaintiff''s claim involved the interpretation of the constitutional provisions relating to the fundamental human rights to education. \r\nIn any event, "[But] even those matters, made subject to the enforcement Jurisdiction of the High Court, may themselves require interpretation by the Supreme Court, since they form part of the Constitution" Per Prof. Modibo Ocran in The Republic V. High Court (Fast Track Division); Ex parte Electoral Commission (Mettle-Nunoo & Others Interested Parties, supra, at page 547.\r\nThe subject matter of the constitutional challenge before us is in relation to part of public lands which is held in trust by the President for the people of Ghana and administered by the Lands Commission on his behalf. The plaintiffs'' challenge to the constitutionality of the alienation of public property is premised on an alleged violation by the previous government of article 20(5) of the 1992 Constitution that provides that:\r\n“20 (5) Any property compulsorily taken possession of or acquired in the public interest or for a public purpose shall be used only in the public interest or for the public purpose for which it was acquired."\r\n\r\nThe plaintiffs are alleging that the grant to the 2nd defendant of a parcel of government land was in utter contravention of article 20(5) and "smacks of cronyism, and the same is arbitrary, capricious, discriminatory and a gross abuse of discretionary power vested in a public officer under the 1992 Constitution." At this point I need not enquire whether or not the plaintiffs'' action is likely to succeed or fail. \r\nMy concern is that where there is any perception of inconsistency or contravention in the acts or omission of any office holder or any person in contravention with the provisions of the constitution in respect of his public duties, and for our purpose, the management or administration of public lands; the Constitution confers the right or duty on any citizen to bring an action for enforcement of the Constitution. In this respect the interpretation of the provisions of the Constitution is only ancillary to the enforcement of those provisions.\r\nAccordingly the submissions by the 1st and 2nd defendants that our jurisdiction is ousted because the constitutional provisions relied on by the plaintiffs are plain and unambiguous and do not need interpretation are of no moment and are rejected. In effect the plaintiffs are rather urging us to invoke our enforcement jurisdiction to correct, or prevent a constitutional breach by public office holders and to enforce compliance of the Constitution. \r\nArticle 2 (1) imposes on the Supreme Court the duty to measure the actions of both the legislature and the executive against the provisions of the Constitution. This includes the duty to ensure that no public officer conducts himself in such a manner as to be in clear breach of the provisions of the Constitution. It is by actions of this nature that give reality to enforcing the constitution by compelling its observance and ensuring probity, accountability and good governance.\r\nIn this respect, I share the views expressed by my brother Gbadegbe JSC in\r\nSuit No. J1/2010 entitled Sumaila Bielbiel v. Adamu Daramani & Attorney-General, unreported, dated 4th July, 2011, to the effect that:\r\n"In my view it is important that we do nothing to undermine the confidence that the ordinary person (thus) has in our ability to compel observance of the Constitution by invalidating in appropriate cases not only enactments that are in breach of it but also acts of among others constitutional office holders that do not derive their legitimacy from the Constitution in terms of article 2(1). [Emphasis mine]\r\nThis is an exclusive jurisdiction conferred on us by the Constitution under article 130 (1) of the Constitution and we must not shirk it.\r\nFor these reasons I dismiss the preliminary objection to our jurisdiction to determine the matter on its merits. Preliminary objection overruled.\r\nS. O. A. ADINYIRA (MRS.)\r\nJUSTICE OF THE SUPREME COURT\r\n\r\nOWUSU (MS.) JSC:\r\nI have read the opinions of my respected brother, the presiding my sister Adinyira and that of Dotse JJSC and I am in full agreement with the conclusions arrived at by them. I will for the reasons informing their conclusions overrule the Preliminary Objection and same is hereby overruled.\r\nR. O. OWUSU (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n\r\n\r\n\r\n\r\n\r\n\r\nCONCURRING OPINION \r\nJONES DOTSE JSC:\r\nI have been privileged to have read the lead opinion by my very well respected brother Atuguba JSC and President of this panel as well as the opinion of Sophia Adinyira JSC and like both of them, I also agree that the preliminary objection by the 1st and 2nd defendants be dismissed. Since the facts have been very well articulated by Atuguba JSC, I need not recount them in this short concurring opinion. \r\n\r\nOn the facts and the law, I am inclined to go along with the reasons espoused in the opinion of my Sister Sophia Adinyira JSC as best addressing directly the issues germane to this application. However, I wish to add these few comments to expatiate on the Ruling Undoubtedly, the scope of the powers granted citizens of Ghana under the Constitution 1992 to seek compliance with the Constitution have been so widely interpreted so much so that it has become a pillar of constitutional protection that lies in the hands of the citizens. Indeed, I am certain in my mind that it is for the very liberal and expansive interpretation that was given to articles 2 (1) and 130 (1) of the Constitution 1992 that has given constitutional rights and locus standi to all citizens of the country to bring actions to challenge breaches, actions done in excess or in contravention of the Constitution 1992 etc.\r\n\r\nIt is for that singular reason that "a person" even though has no interest in a matter can as a matter of course embark upon a constitutional action in this court without any inhibition that he does not have capacity. See cases like:\r\n1. NPP v Attorney-General (CIBA Case) [1996-97] SCGLR 729 and\r\n2. Adjei-Ampofo [No. I] v Accra Metropolitan Assembly and Attorney-General (No. I) [2007-2008] SCGLR 611, holden I\r\njust to mention a few.\r\n\r\n\r\nThe Supreme Court must therefore be highly commended for expanding this scope to enable persons both natural and or corporate to access the original jurisdiction of the Supreme Court in the interest of the general public. It is this timely and early liberal interpretation by the Supreme Court that ensured that all citizens have access to the Supreme Court as provided for in article 2 (1) of the Constitution 1992 that actualised the rights of the citizen to an unimpeded access to the courts to ventilate rights not only when a personal benefit or rights accrue, but for the general protection, interpretation, enforcement and due observance of the Constitution 1992 for the general public. \r\n\r\nIt must therefore be noted that, the plaintiffs herein at the material time that they initiated the action were ordinary citizens and did not articulate their own rights or benefits but did so in the public interest. It was also to ensure that the actions of the elected government of the day was in tandem with the provisions of the Constitution 1992 which have been referred to in the lead Ruling just delivered. Thus, unless expressly ousted by the Constitution 1992, such as was held by the Supreme Court in the celebrated case of J.H Mensah v Attorney-General, [1996-97] SCGLR, 320 at holden 6 325, where it was held that the effect of article 110 (1) of the Constitution was to empower Parliament by standing orders to regulate its own procedure provided the same did not infringe the Constitution, a court is bound to give effect to the constitutional provisions in the plainest of terms.\r\n\r\nThe Supreme Court as provided for under the Constitution 1992 reference articles 129 - 135 of the Constitution 1992, remains the only constitutionally mandated institution to give protection and succour to all persons who perceive a constitutional provision as being breached or violated. \r\n\r\nIn this respect, it is my view that it does not really matter whether the person invoking the original jurisdiction is from a weak, vulnerable and or marginalised group or from the rich, elite or ruling class. \r\n\r\nWhat I think should be noted at all times in such actions is the principle of reasonableness which should guide the court in the performance of their role as guardians of the Constitution. Courts, especially the Supreme Court must resist all tendencies towards unreasonableness and avoid decisions which are an affront to justice and good sense. \r\n\r\nThe plaintiffs must be seen as seeking to invoke the jurisdiction of this court to preserve what in their view are infractions with the Constitution. I believe this court must give them a hearing and find out whether they can be successful.\r\nI cannot end this brief concurring opinion without reference to the powerful words of John Adams, a former U.S President on his Thoughts of Government, 1776 as follows:-\r\n"The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the Judicial Power ought to be distinct from both the legislature and executive, and independent upon both that so it may be a check upon both, and both should be checks upon that.\r\nThe above constitute other main reasons why I agree with the decision in dismissing the preliminary objection. The courts constitute our greatest hope in upholding the defence of the Constitution.\r\nBAFFOE-BONNIE JSC:\r\nFor the reasons very well articulated in the judgment read by my sis Sophia Adinyira (JSC) I also agree that the preliminary object should be overruled for the merits of the case to be gone into.\r\nARYEETEY ,J.S.C.:\r\nI also agree that his preliminary objection be overruled.\r\nB. T. ARYEETEY\r\nJUSTICE OF THE SUPREME COURT\r\nAKOTO BAMFO ,J.S.C.\r\nI have had the Privilege of reading beforehand the will reasoned opinions ably delivered by my respected brother & sister.\r\nI am in full agreement with them that the preliminary objection be overruled since I am of the firm view that this court is clothed with jurisdiction to hear the matter.\r\nThe preliminary objection is accordingly overruled.\r\n\r\nV. AKOTO BAMFO (MRS.)\r\nJUSTICE OF THE SUPREME COURT\r\n\r\nCOUNSEL\r\nKWABLA SENANU FOR THE PLAINTIFFS.\r\nR. O. SOLOMON (LED BY MIGUES RIBEIRO)FOR THE 2ND DEFENDANT.\r\nSAMUEL NEEQUAYE TETTEH (WITH HIM TRITIA QUATEY) FOR THE 1ST DEFENDANT.\r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n', '../links/cases/OKUDZETO CASE.pdf', 'Yes', 'AKUFFO (MS) JSC, BROBBEY JSC, ADINYIRA (MRS) JSC, OWUSU (MS) JSC, DOTSE JSC, BAFFOE-BONNIE JSC, ARYEETEY JSC, AKOTO-BAMFO JSC', '2011', 'supreme', '<i>Constitutional Law - Sale and transfer of compulsorily acquired Public or Government Land to private person constituting public interest matter - 1992 Constitution, arts. 20(5) &amp; (6), 23, 257 and 296.<br>Original Jurisdiction of Supreme Court in Constitutional matters - Test for determining constitutional matter requiring interpretation and enforcement of 1992 Constitution - nature of law relevant to resolution of issues; law having closest connection with issues; law which will wholly or substantially dispose of action - 1992 Constitution, arts. 2 and 130</i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J1/4/2010', '', '', 'supreme', '2011-11-10', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(515, 'GATEWAY WORSHIP CENTRE    -  RESPONDENT\r\nVRS\r\nDAVID SOON BOON SEO          -  APPELLANT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\n\r\n	\r\n\r\n \r\nGATEWAY WORSHIP CENTRE	RESPONDENT VRS\r\nDAVID SOON BOON SEO	APPELLANT\r\n \r\nTrusts—Complete Construct/on of trust— Constructive trusts— Volunteer, Fiduciary in trusts— Enforcement of trusts— Beneficiary may enforce a completely constituted trust whether or not he has given value— Beneficiary owner of equitable interest may trace property into any hands holding some except bonafide purchaser for value without notice\r\nCourts— Every court in Ghana a court of both common law and equity— Courts Act 1993, s.42 (1) - 1992 Constitution, art. 11(1) - Interpretation Act 1960, s.17 (1)\r\nJUDGMENT AKUFFO, J.S.C:\r\n \r\n\r\nBrief Background\r\nThe Appellant is a missionary of Korean nationality and was at all material times resident in the Tema Metropolitan area. The 1st Respondent is the Pastor of the 2"\r\nRespondent, a church located in Tema. According to the Respondents, the Appellant promised to raise funds for the 2nd Respondent whilst on a projected trip to Korea. Prior to his departure, the Appellant, with the members of the church as participants, produced a video film, which depicted members of the church living in the Ashaiman Community in abject poverty and degradation. The purpose of the video was to curry the sympathy of prospective Korean benefactors and foster their generosity. Upon his return from his Korean trip, the Appellant made an open declaration to the church that the said funds had been so raised from a benefactor.\r\nThe Appellant, however, did not disclose the quantum of the monies he had collected; nor did he hand over any such fund to the respondent church, but\r\nretained the same in his own bank account. He then used part of it to acqute the land in dispute herein. Subsequently, the pastor of the church, Ben Adjei, together with the church, acting by its trustees, sued the Appellant in the Circuit Court for a declaration of title to the land in dispute, recovery of possession, perpetual injunction, an order for accounts and other orders. The Circuit Court granted to the Respondents the reliefs claimed, except the one for accounts. The Appellant, thereupon, appealed to the Court of Appeal upon the sole ground that the judgement was against the weight of the evidence. The Court of Appeal affirmed the decision of the Circuit Court, and dismissed the appeal. The Appellant then ar.,Jealed to this court upon no less than 8 grounds which for the sake of brevity may be summed up as follows:-\r\na.	Taking into account the claim and evidence in the matter, the 1st Respondent\r\nherein had no locus standi in the suit and should have been struck out as a\r\nparty thereto.\r\nb.	Since the reliefs sought by the respondents in their suit against the Appellant ''involved the application of principles of trusts or equity'', the Circuit Court had no jurisdiction to entertain the claim.\r\n \r\n\r\nc.	The claim against the Appellant was a claim by a volunteer to enforce a\r\npromise to make a gift and, therefore, could not be maintained.\r\nd.	To the extent that the promised gift related to funds not in the possession of\r\nthe Appellant at the time of the promise, the promise was one to give non \r\nexistent future property and, therefore, unenforceable.\r\ne.	Since the promise did not quantify how much money was to be raised for the\r\n2"d Respondent, it was void for uncertainty and, therefore, unenforceable.\r\nf.	Since the defence was that the money raised was for general missionary work\r\nin Ghana, the trial and appellate courts erred in ''failing to raise and consider''\r\nthe issue of whether the funds were raised for such general purposes or\r\nspecifically for the 2"d Respondent.\r\n9.	The trial and appellate courts also erred in not specifying whether their\r\nconclusion that the land was purchased in trust for the 2"d Respondent was\r\nfounded on the centre''s ownership of the money or on the Appellant''s abuse of his position in the 2"d Respondent church, to purchase the land for any\r\nperson other than the 2nd Respondent.\r\nAlthough there was an 8th ground set down in the notice of appeal, the same was\r\nnot touched upon in the statement of case and consequently we will not take that\r\nground into any consideration in this judgment.\r\nIn our view, this appeal raises the primary issue of whether or not the Circuit Court had jurisdiction to entertain the action before it, and the secondary issue of whether, if the court had jurisdiction, it and the Court of Appeal properly applied the applicable principles of law and equity in determining the dispute.\r\nSince jurisdiction is always a fundamental issue in any court action, we shall first deal with the question of whether or not the Circuit Court had jurisdiction tc apply principles of trusts and equity in the determination of matters before it and to grant the equitable reliefs it did. However, before proceeding further, it is important for us to note that it is in this court that, for the first time in the course of the litigation of\r\n \r\n\r\nthis matter, the Appellant raised this question of the trial court''s jurisdiction. Taking into account the nature of the claims endorsed on the writ before the Circuit Court, it is rather puzzling that neither in the Circuit Court nor in the Court of Appeal did the Appellant raise this matter. We deplore such lack of diligence which could lead to wastage of the time and other resources of the court and parties, since jurisdiction is fundamental to the validity of a court''s judicial activity. Fortunately, in this case, it is our view that the Circuit Court''s jurisdiction in the matter before it was unquestionable.\r\nJurisdiction of the Circuit Court\r\nIn support of his ground of appeal challenging the Circuit Court''s jurisdiction, the main thrust of counsel''s argument on behalf of the Appellant was that, even though the Courts Act, 1993 (Act 459)(as revised) gives the Circuit Court jurisdiction in all causes and matters involving the ownership, possession, occupation of, or title to land, this jurisdiction does not include jurisdiction to entertain a cause or matter the determination of which involves the application of rules of equity or principles of trusts, such as in the instant case.\r\nSection 42(1) of the Courts Act, which governs the civil jurisdiction of the Circuit Court, states that:-\r\n"(1) The c/v//jurisdiction of a circuit Court consists of\r\n(a) an original jurisdiction in civil matters\r\n(i) in personal actions arising under a contract or a tort, or for the recovery of a liquidated sum of money, where the amount claimed is not more than one hundred million cedis;\r\n \r\n\r\nin actions between a landlord and a tenant for the possession\r\nof land claimed under a lease and refused to be delivered up;\r\nin causes and matters involving the ownership, possession,\r\noccupation of or title to land;\r\n(iv)	to appoint guardians of infants and to make orders for the custody of infants;\r\n(v)	to grant in an action instituted in the Court, injunctions or orders to stay waste, or alienation or for the detention and\r\npreservation of property which is the subject matter of that\r\naction, or to restrain breaches of contract, or the commission of a tort;\r\n(vi) in claims for relief by way of interpleader in respect of land or any other property attached in execution of an order made by a Circuit Court;\r\n(vii) in applications for the grant of probate or letters of administration in respect of the estate of a deceased person, and in causes and matters relating to the succession to property of a deceased person, who had, at the time of death, a fixed\r\nplace of abode within the area of jurisdiction of the Circuit\r\nCourt, and the value of the estate or property in question does\r\nnot exceed one hundred million cedis; and\r\n(b) any other jurisdiction conferred by this Act or any other enactment\r\nIn his statement of case, counsel for the Appellant contended that, had the intent of section 42(1)(a)(iii) of the Courts Act been to confer on the Circuit Court equitable jurisdiction in all land matters, it would not have been necessary to specify in Section 42 (1)(a)(v) that in all causes of action to come before the Circuit Court, it would have jurisdiction to grant the equitable remedy of injunction. According to counsel, therefore, having specified only injunction as the remedy in equity which the Circuit Court could grant, it cannot be said that other equitable remedies, such as those arising in the law of trusts, which were not specifically mentioned, could be granted\r\n \r\nby the Circuit Court even in land disputes brought before it. Counsel urged that the mere existence of jurisdiction in the Circuit Court to deal with causes or matters involving disputed ownership, possession, occupation of, and title to land would not, without more, include or imply jurisdiction in equity to deal with such causes or matters by applying equitable principles of trusts.\r\nFurthermore, counsel maintained that, because there was no specific mentio,i of a Circuit Court jurisdiction in equity in the Courts Act, such jurisdiction cannot be reasonably implied. This, counsel argues, flows from the fact that before the English Judicature Acts of 1873/1875, the English common law courts possessed jurisdiction to deal with causes or matters involving disputed ownership, possession, occupation of, or title to land, yet had no jurisdiction to grant equitable relief by way of injunction or trusts law in such disputes. It was only by virtue of specific statutory provisions that the common law courts in England became empowered to apply principles of equity, and grant equitable reliefs. That being so, according to counsel, the Circuit Court, without express statutory power, has no jurisdiction to apply equitable principles of injunction and trusts as it did in this case, neither could such jurisdiction be reasonably conferred upon it by implication.\r\nIt is, however, noteworthy that the Courts Act does not expressly give "equitable jurisdiction" to the High Court either, even though counsel conceded that the High Court has such jurisdiction. Counsel sought to explain the "equitable jurisdiction" of the High Court, in contrast to that of the Circuit Court, on the incorrect ground that the High Court has unlimited jurisdiction.\r\nAdditionally, counsel contended that although the fused jurisdiction of the English High Court was derived from the Judicature Acts, when this jurisdiction was transplanted into this country, it was not extended to courts below the High Court. Consequently, the Circuit Court, which is a court below the High Court, did not have jurisdiction to entertain the case in question inasmuch as its determination involved the application of principles of equity.\r\n \r\n\r\nCounsel also contended that the jurisdiction given to the Circuit Court by the Courts Act in respect of causes and matters involving the ownership, possession, occupation of, or title to land did not confer on the court jurisdiction to entertain causes and matters involving the ownership, possession, occupation of, or title to other properties such as money (e.g. the funds the Appellant raised in Korea). He argued that, since the jurisdiction of the Circuit Court is in causes and matters with respect to land and not other properties such as money, then that part of the claim before the Circuit Court relating to the ownership of the money the appellant raised in Korea was outside the jurisdiction of the Court, particularly since the determination of the ownership of the said money had to involve the application of equitable principles.\r\nThe position of the law in Ghana is well established that every court in Ghal a is a court of both common law and equity. As far back as 1976, the Court of Appeal pronounced upon the position of the law on the fusion of jurisdiction in law and equity, in the case of Bou-Chedid v. Yalley [1976] 2 GLR 258. As the learned Archer J.A. (as he then was) pointedly expressed himself, at page 264 of the law report:-\r\n"Notwithstanding the vicissitudes of the courts in Ghana since they were established about a century ago, no one will venture to suggest that throughout this period separate courts have administered the common law and equity in Ghana. It follows that the plaintiff as an equitable owner in possession can maintain an action in trespass at common law in any court of law in Ghana."\r\nThe Appellant''s position on this issue is further flawed by the fact that, all courts of Ghana are expected to apply the laws of Ghana, which by virtue of Article 11(1) of the Constitution, comprise of : \r\n \r\n"(a) this Constitution;\r\n \r\n\r\n(b)	enactments made by or under the authority of the Parliament established by this Constitution;\r\n(c)	any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution.\r\n(d)	the existing law; and\r\n(e)	the common law."\r\nClause (2) of this article continues by stipulating that:-\r\n"(2) The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of\r\nequity and the rules of customary law including those determined by the\r\nSuperior Court of Judicature."\r\nAdditionally under Section 17(1) of the Interpretation Act, 1960 (C.A. 4) it is provided that:\r\n"17. (1) The common law, as comprised in the laws of Ghana, consists,\r\nin addition to the rules of law generally known as the common law, of the rules generally known as the doctrines of equity and of rules of customary law included in the common law under any enactment\r\nproviding for general application."\r\nHence, once the Circuit Court has jurisdiction, under the Courts Act, in causes and matters in respect of land it may, in the exercise of such jurisdiction, apply any law in force in Ghana, including the common law, principles of equity, Acts of Parliament,\r\ncustomary law, etc, in the determination thereof. Thus it was not necessary, under Section 42 (1) of the Courts Act to make specific mention of the Circuit Court''s equitable jurisdiction since such jurisdiction necessarily flows from the provisions of the Constitution. Indeed such\r\njurisdiction has always attached to all courts of Ghana, for the principles of equity have, since the inception of the Republic of Ghana, formed part of its laws. To\r\nparaphrase the learned Archer J.A. (as he then was) in the Bou-Chedid case\r\n \r\n(supra), every court in Ghana is a court of both common law and equity, with jurisdiction to administer both common law and equity. In other words, we do not have separate courts of common law and courts of equity in Ghana. Both jurisdictions are vested in every court in Ghana. Any other interpretation of Section 41(1)(a) of the Courts Act, which would result in the ouster of the Circuit Court''s jurisdiction in equity, will clearly be inconsistent with the provisions of Article 11(1) of the Constitution.\r\nIt is noteworthy that whilst one may speak of the jurisdiction of a court in a cause or matter, or as to the original, appellate or supervisory jurisdiction of a court, we do not speak of the jurisdiction of a court as to which of the laws of Ghana it his the power to apply in a cause or matter competently before it. Hence, as an example, even in the lowest court, it is expected that the provisions of the Constitution be observed and adhered to, although there are applicable limitations as to proceedings to enforce or interpret the Constitution. Thus although in the enforcement of an individual''s fundamental rights and freedoms enshrined in Chapter 5 of the Constitution, article 33 gives original jurisdiction to the High Court, it does not mean that in determining a matter before it a District Court may not apply a relevant provision of the Constitution to uphold human rights or freedoms.\r\nFinally, on the issue on jurisdiction, counsel argued that since the jurisdiction of the Circuit Court under section 42(1)(a)(iii) of the Courts Act is over causes and matters with respect to land and not other properties such as money, then that part of the claim before the Circuit Court, relating to the ownership of the monies the Appellant raised in Korea, was outside the jurisdiction of the Court. The Respondents did not make any direct claim for the recovery of any monies (liquidated or otherwise) from the Appellant, although the Circuit court does have jurisdiction under cection 42(1)(a)(i) in actions for recovery of a liquidated sum. Admittedly, in order for the court to determine the issue of title the court made findings relating to the ownership of the funds with which the land was purchased. However, it is our view that, in the circumstances of this case, counsel''s contentions in this connection are irrelevant since the issue arose collaterally and it was necessary for the court to\r\n \r\ndetermine it in the course of determining the issue of title to the land. Indeed, this\r\ndoes not raise any jurisdictional question whatsoever.\r\nIn conclusion, therefore, the Circuit Court had jurisdiction to entertain the\r\nRespondents'' action.\r\nCapacity of the first Respondent\r\nIn Ground One of the Notice of Appeal, the Appellant challenged the locus standi of the pastor of the rd Respondent church to be party in the case. The Court of Appeal reached the conclusion that, on the evidence on record, the beneficial ownership or interest in the property and/or funds in question vested in the 2nd Respondent, and no one else. As is clear from the record, the rd Respondent is a company limited by guarantee and incorporated under the Companies Act, 1963 (Act 179)(as revised). As a result, pursuant to Section 24 of the Companies Act, it has all the powers of a\r\nnatural person of full capacity. As such, it is a fully-fledged legal entity, with a personality separate from the natural persons forming it, and with capacity to sue and be sued in its own name. In law, the members of a company have no direct\r\nproprietary rights over its assets, the company being the sole owner of its assets (see Majdoub & Co. Ltd. v. W. Bartholomew & Co. Ltd. [1962] 1 GLR 122). Since it is patent from the record that the subject matter of the action was being claimed as the Church''s asset rather than the joint property of the church and the 1st Respondent, there was no reason why the 1st Respondent should have been included as a co-claimant. From the record, Pastor Ben Adjei really has no business in the suit, since he does not make any claim of interest or right in the subject matter of the suit. The 2nd Respondent church is capable of handling its own litigation and the 1st Respondent is an unnecessary party.\r\nUnder Order 4 Rule 5(2) of the High Court (Civil Procedure) Rules, 2004 (CI 47) the trial court has the power, at any stage of the proceedings, either suo motu or on application, to ''order any person who has been improperly or unnecessarily\r\nmade a party or who for any reason is no longer a party or a necessary patty to cease to be a party. Since, by virtue of Section 2(4) of the Courts Act, this court has\r\n \r\n\r\nmade, we hereby order the 1st Respondent struck out of the action and accordingly, he ceases to be a party herein.\r\nThe 1st Ground of Appeal thus succeeds, although, effectively, it does very little to advance the Appellant''s case since the removal of the 1st Respondent as party to the matter does not in any way affect the proceedings in the case up to now viz-a-viz the rights and interests of the rightful parties therein.\r\nRelative Positions of Appellant and 2nd Respondent\r\nIn arguing Ground 3 of the Notice of Appeal, counsel for the Appellant contended that the Appellant was merely a "gratuitous promissor" and, as such, he was not accountable to the 2nd Respondent, which is a "bare prom issee/volunteer", having furnished no consideration for the promise made to it. However, this is not borne out by the record. The pre-departure promise to raise the said money in Korea was made expressly by the Appellant to the church. It is also on record that the said money was raised in the name of the church. Again, it is on record that th'' said money was given by a philanthropist, one Rev. Yei Jae Im, rather than the appellant raising the said money from his own efforts. More significantly, there is unchallenged evidence on the record that the Appellant, on his return from Korea, made an open declaration to the 2 Respondent (i.e. before a whole congregation of the church, an assembly of God with all the liturgy that went with it) that the said money had been so raised for the benefit of the church. The foregoing will certainly not make the appellant a mere "gratuitous promissor" in law.\r\nThe 2''d Respondent cannot be said to be a "bare promissee" in law either. The 2nd Respondent was entitled in law to have legitimate expectation, based on the pre- departure promise the Appellant made assuring it, that the monies to be raised were for its benefit. Thus, when the Appellant made the open declaration to the church, after his return from Korea, that the said money had been raised, the 2\r\nRespondent was entitled in law to have the settled assurance that the said money had been so raised for its benefit. Clearly then, counsel''s description of a "promissor¬promissee" relationship between the parties in the terms of an ordinary contract is unacceptable. The role or position of a very important player, the philanthropist in the person of Rev. Yei Jae Im, would be completely glossed over if we were to take\r\n \r\n\r\nthe simplistic view, advocated by counsel, that the relationship between the parties\r\nis one of a bare and unenforceable "promissor-promissee" agreement. In reality, what we have here is a tripartite relationship involving a philanthropist, the Appellant and the 2nd Respondent. This situation simply does not fit a relationship between a promissor and a promissee in an ordinary contract. The relationship that fts the tripartite situation presented by the facts of this case is to be found, not in contract law but, in the equitable doctrine of trusts.\r\nAccording to B. J. da Rocha and C. H. K. Lodoh, in their book ''Ghana Land Law and Conveyancing'' (rd Edition) at pages 105-106, trust is a concept in equity whereby one person (called "the trustee") holds the nominal or legal title in property which has been made available to him by another person (called "the settlor") for the benefit of some other person (called "the beneficiary"). In this case, it is clear\r\nthat the philanthropist, Rev. Yei Jae Im, who provided the money, is "the settlor" (the one who created the trust). The 2nd Respondent, for whose benefit the money was provided, is "the beneficiary" (the cestui que trust). The Appellant, who in equity stands between the settlor and the beneficiary, is "the trustee". The true\r\nposition of the Appellant is, in equity, that of a trustee, not a "gratuitous promissor". The 2nd Respondent is the beneficiary under the trust and not a "bare promissee".\r\nRegarding counsel''s contention that the 2nd Respondent was, in equity, a volunteer, Philip H. Pettit in his book ''Equity and the Law of Trusts'' (5th Edition) at page\r\n87 explains the term "volunteer as" follows:-\r\n"A beneficiary under a trust is a volunteer unless either he has\r\nprovided valuable consideration in a common law sense, or he is, as it\r\nis said, within the scope of the marriage consideration."\r\nOsborn''s Concise Law Dictionary (8th Edition) at page 345 defines a volunteer as a person who is an object of bounty under a will or settlem.Pnt as opposed to one who gives valuable consideration. Therefore, a volunteer under a\r\ntrust is a beneficiary who has provided no valuable consideration in respect of the\r\ntrust and who is not within the confines of marriage.\r\n \r\n\r\nThe significance of a volunteer in the law of trusts is seen in terms of whether the trust is completely or incompletely constituted. A trust is completely constituted when the trust property is vested in the trustees for the benefit of the benefiriaries. The classic statement of the law as to what is meant by complete constitution (or perfect creation) of a trust is to be found in the judgment of Turner U in the leading case of Milroy v. Lord (1862) 4 De GF & 3 at pages 274-275 of the report as follows:\r\n".-in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him."\r\nAccording to da Rocha and Lodoh''s ''Ghana Land Law and Conveyancing'' (supra), a trust may be completely constituted in two ways:\r\n(a)	by the settlor conveying the property to the trustees; or\r\n(b)	by the settlor declaring himself to be a trustee for the intended cestui que trust.\r\nUntil the property is conveyed to the trustee or the settlor declares himself as a trustee for the intended cestui que trust, the trust is incompletely constituted. The effect of an incompletely constituted trust is that, only beneficiaries who have given value (not volunteers) can enforce it and the court will only perfect the trust in favour of the one who has given value, following the maxim: "Equity considers as done that which ought to be done". The position, as stated in Re Adlard [1964] Ch 29 and Ellison v. Ellison (1802) 6 yes. 656 at 662, is that equity will not perfect an imperfect trust in favour of a volunteer.\r\nThe effect of a completely constituted trust, however, is that, the beneficiary may enforce it whether or not he has given value. In his book Equity and the Law of Trusts (supra), Philip Pettit states at page 89 as follows:\r\n \r\n\r\n"If the trust is completely constituted, the fact that a cestui que trust is a volunteer is irrelevant: he is just as much entitled to enforce the trust as a cestui que trust who has provided consideration."\r\nThe contrast between a completely and an incompletely constituted trust as regards volunteers is clearly depicted in the case of Jefferys v. Jefferys (1841) Cr & Ph 138. In that case, a father, by a voluntary settlement, conveyed certain freehold estates to trustees in trust for the benefit of his daughters. The conveyance was complete. He further covenanted to surrender certain copyhold estates to the trustees in trust for the benefit of the same daughters. The mode of conveyaice of copyholds was by surrender and admittance. The conveyance in respect of the copyhold estates was, however, incomplete. Subsequently, he devised part of the same estates to his widow who, after his death, was admitted to some of the copyholds. It was held that, as to the freeholds, the trust in favour of the daughters was enforceable by them, since the trust was completely constituted by the complete conveyance thereof to the trustees. But, as to the copyholds, the trust was not complete and, therefore, it was unenforceable by the intended beneficiaries, namely the daughters.\r\nFrom the facts of the instant case, it appears that the church has not given any valuable consideration in respect of the trust. Counsel may, therefore, be right in referring to it as a volunteer under the trust. The position is that equity does not assist a volunteer (see Ellison v. Ellison) (supra). However, this position is true only when the trust is incompletely constituted. Where the trust is completely constituted, it does not matter whether or not the beneficiary is a volunteer (see Re Adlard) (supra).\r\nFrom the evidence on record, it is very clear that the philanthropist, Rev. Yei Jae Im, completely vested the funds raised in Korea (the subject matter of the trust) in the appellant as trustee, which funds the appellant even kept in his own bank account as the legal owner. The trust in question is, therefore, completely constituted. Thus, whether or not the 2 IdRespondent is a volunteer in equity is irrelevant, the trust\r\n \r\n,\r\n"If the trust is completely constituted, the fact that a cestui que trust is a volunteer is irrelevant: he is just as much entitled to enforce the\r\ntrust as a cestui que trust who has provided consideration."\r\nThe contrast between a completely and an incompletely constituted trust as regards volunteers is clearly depicted in the case of Jefferys v. Jefferys (1841) Cr & Ph 138. In that case, a father, by a voluntary settlement, conveyed certain freehold estates to trustees in trust for the benefit of his daughters. The conveyanc2 was complete. He further covenanted to surrender certain copyhold estates to the trustees in trust for the benefit of the same daughters. The mode of conveyance of copyholds was by surrender and admittance. The conveyance in respect of the copyhold estates was, however, incomplete. Subsequently, he devised part of the same estates to his widow who, after his death, was admitted to some of the copyholds. It was held that, as to the freeholds, the trust in favour of the daughters was enforceable by them, since the trust was completely constituted by the complete conveyance thereof to the trustees. But, as to the copyholds, the tru A was not complete and, therefore, it was unenforceable by the intended beneficiaries, namely the daughters.\r\nFrom the facts of the instant case, it appears that the church has not given any valuable consideration in respect of the trust. Counsel may, therefore, be right in referring to it as a volunteer under the trust. The position is that equity does not assist a volunteer (see Ellison v. Ellison) (supra). However, this position is true only when the trust is incompletely constituted. Where the trust is comnletely\r\nconstituted, it does not matter whether or not the beneficiary is a volunteer (see Re\r\nAdlard) (supra).\r\nFrom the evidence on record, it is very clear that the philanthropist, Rev. Yei Jae Im, completely vested the funds raised in Korea (the subject matter of the trust) in the\r\nappellant as trustee, which funds the appellant even kept in his own bank account as the legal owner. The trust in question is, therefore, completely constituted. Thus, whether or not the 2" Respondent is a volunteer in equity is irrelevant, the trust\r\n \r\n\r\ncircumstances demand that the person holding the title to the property should be considered as a trustee. This trust usually arises by operation of equity where a fiduciary relation exists. A trustee or a person in a fiduciary relationship is not permitted to profit from his position....\r\nFrom the foregoing, the essential ingredients of a constructive trust may be stated as follows:\r\na.	There must be no express intentions of the parties to create a trust (this is because the intentions of the parties are totally irrelevant; there being no requirement for an express trustee as in express trusts, neither is there a requirement for the parties to be ad idem as in the law of contract).\r\nb.	There must be in existence a fiduciary relationship.\r\nC.		The fiduciary relationship must specifically be in the context of trust such as to make the fiduciary a trustee in equity.\r\nThe above ingredients are all borne out by the facts of this case. The Appellant is not an express trustee, for there is nothing on record as to his intentions to be a trustee. It is on record, however, that the Appellant kept the funds, dona:ed in Korea for the benefit of the 2nd Respondent, in his own bank account as the legal title owner. He, therefore, stands in a fiduciary position because he became a nominal owner or controller of something that does not belong to him, and which he had collected in the name of the church. According to Osborn''s Concise Law Dictionary (supra) a fiduciary is a person who holds a position of trust in relation to another and who must, therefore, act for that person''s benefit such as a solicitor in respect of his client. Inasmuch as, in this case, a trust (completely constituted) was created, the Appellant became a fiduciary who is a trustee in equity over the funds, which he used the name of the church to raise in Korea, for the benefit of the 2nd Respondent Church.\r\n \r\n\r\nThe Appellant, therefore, held the funds in question on a constructive trust for the 2nd Respondent. A valid trust had been created and, therefore, it is enforceable.\r\nConclusion\r\nHaving arrived at the foregoing conclusions, the remaining grounds of appeal become quite superfluous. A person in a fiduciary position is not permitted to profit from his position (see Re Biss [1903] 2 Ch 40). The general principle, as stated in\r\nthe locus classicus case of Re Diplock''s Estate [1947] Ch 716 at pages 744-\r\n745, is that whenever there is or has been a fiduciary relationship, the beneficial owner of an equitable interest in property may trace it into the hands of anyone holding the property, except a bona fide purchaser for value without notice whose title is, as usual, inviolable. Once it is not a bona fide purchaser for value without notice who has acquired the land in dispute, the money raised in Korea for the benefit of the 2nd Respondent is traceable in equity to any hand whatsoever and in any form it, or part thereof, has been used to acquire. Therefore, whatever has been acquired by any monies that are proven to be part of the funds from Korea is deemed to be for the benefit of the church. This is a matter of law and there was no need for either the Circuit Court or the Court of Appeal to make any particular finding in that regard.\r\nConsequently, except in respect of ground one of the appeal, we uphold the judgment of the Court of Appeal and hereby dismiss the appeal.\r\nS. A. B. AKUFFO(MS)\r\n( JUSTICE OF THE SUPREME COURT)\r\nI agree\r\nDR. S. K. DATE-BAH\r\n( JUSTICE OF THE SUPREME COURT)\r\n \r\nS. 0. A. ADINYIRA (MRS) (JUSTICE OF THE SUPREME COURT) I agree\r\nROSE OWUSU (MS) (JUSTICE OF THE SUPREME COURT)\r\nI agree	J.V.M. DOTSE\r\n(JUSTICE OF THE SUPREME COURT)\r\nCOUNSEL:\r\nJAMES AHENKORAH FOR THE APPELLANT WITH GEORGE AMAGYEI.\r\nCHARLES MBEAH FOR THE RESPONDENTS.\r\n', '../links/cases/Document (6).pdf', 'Yes', 'DATE-BAH JSC, ADINYIRA (MRS) JSC, OWUSU JSC, DOTSE JSC', '2009', 'supreme', '<i><font face="Times New Roman" size="2">Trusts - Complete Construction of trust - Constructive trusts - Volunteer,Fiduciary in trusts - Enforcement of trusts - Beneficiary may enforce a completely constituted trust whether or not he has given value - Beneficiary owner of equitable interest may trace property into any hands holding same except bonafide purchaser for value without notice.<br>Courts - Every court in Ghana a court of both common law and equity - Courts Act 1993, s.42(1) - 1992 Constitution, art.11(1) - Interpretation Act 1960, s.17(1)</font></i><br>', 'AKUFFO (MS), J.S.C', 'Civil', '', 'J4/12/2008', '', '', 'supreme', '2009-01-21', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(516, 'THE REPUBLIC\r\nVRS\r\nTHE HIGH COURT, ACCRA	                               -    RESPONDENTS\r\nEX PARTE: CONCORD MEDIA LTD\r\nALFRED OGBAMEY                                            -   APPLICANTS	\r\n\r\nGHANA PORTS & HARBOUR AUTHORITY\r\nBEN OWUSU ANSAH	                                         -  INTERESTED PARTIES\r\n', 'IN THE SUPERIOR COURT OF JUSTICE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCORAM: BROBBEY JSC (PRESIDING)\r\nDOTSE JSC\r\nYEBOAH JSC	16TH FEBRUARY, 2011 ARYEETEY JSC\r\nGBADEGBE JSC\r\nCIVIL MOTION	NO. 15/17/2011\r\nTHE REPUBLIC\r\nVRS\r\nTHE HIGH COURT, ACCRA	RESPONDENTS\r\nEX PARTE: CONCORD MEDIA LTD\r\nALFRED OGBAMEY	APPLICANTS GHANA PORTS & HARBOUR AUTHORITY\r\nBEN OWUSU ANSAH	INTERESTED PARTIES\r\nSupervisory jurisdiction of Supreme Court— Prohibition against trial judge— Bias and prejudice— Propriety of sworn statement by judge in answer to application— Registrar of trial court proper person to swear affidavit— Standard of proof in application where based on allegations to be as in civil\r\n \r\nRULING \r\nANIN YEBOAH JSC:\r\nThe supervisory jurisdiction of this court has been invoked to prohibit the High Court, Accra from hearing the case intituled as: suit Ng BD 6/2007: GHANA PORTS &  HARBOURS AUTHORITY & ANOTHER V. CONCORD MEDIA LIMITED & ANOTHER and two contempt applications pending before the same judge.\r\nIn an affidavit supporting the application, the second defendant to the suit, one\r\nALFRED OGBAMEY, complains against the presiding judge Mr. Justice Benson and\r\ncatalogued several allegations of judicial impropriety against the said judge.\r\nThe first allegation relates to a petition which he lodged at the Chief Justice''s office out of which the Chief Justice advised the learned judge to uphold the scales of justice evenly between the parties. The Chief Justice, however, did not transfer the case from Mr. Justice Benson as requested by the applicants herein.\r\nSubsequent to the above event, the deponent stated in the affidavit that on one occasion when the case was called and their lawyer was absent, the said judge made certain comments against the deponent to the effect that he had sent "a bogus petition" to cause the delay of the case. He further deposed to the fact the learned judge has described him as "a very cantankerous person".\r\nThe applicants naturally view this comments as a basis for alleging bias, ridicule and prejudice against them. They are of the opinion that given the uncomplimentary remarks by the learned judge they would not get justice from the court and pray this court for an order of prohibition to prevent the learned judge Mr. Justice Benson from proceeding to hear the case. Annexed to the affidavit is a copy of the petition which the applicants sent to the Chief Justice for her intervention.\r\nThe application has been opposed by the interested party who is the plaintiff in the action at the High Court in which the second applicant and the Concord Media\r\nLimited have been sued for damages for defamation and other ancillary reliefs. On\r\n \r\nthe 30/04/2010, the learned judge himself swore to an affidavit in which he stoutly denied all the damning allegations of judicial impropriety leveled against him in the affidavit in support. Annexed to the affidavit is a Certified True Copy of the record of proceedings dated the 14/12/2009 showing the submissions of counsel for the interested party. The applicants filed a further affidavit in reply on 14/07/2010 in which they raised concerns about the conduct of the trial judge for swearing to an affidavit in answer to the application. The applicants complain that the learned judge by doing so had descended into the arena of litigation and that this conduct is a manifestation of the suspicion that he would be bias against the applicants.\r\nThe practice in such applications is for a registrar of the court sought to be prohibited in the case to swear to the affidavit on behalf of the court. In contentious matters where the facts are in issue, the superintending court may allow an application for the deponents to the affidavits to be cross-examined.\r\nWe are of this view in that if in course of hearing an application for judicial review and the court exercising its supervisory jurisdiction grants leave to parties to cross- examine on the affidavits, a judge whose affidavit is on record may also have to be cross-examined. This practice should be deprecated to avoid any attack against the judge.\r\nA short passage from THE SUPREME COURT PRACTICE 1995 edition Volume I page 869 has stated the position as follows:\r\nLeave to cross-examine deponents upon their affidavits in iudicial review proceedings should be granted where the interests of iustice so require (O''REILLY V. MACKMAN) [1983] 2AC 237 per Lord Diplock; only rarely will it be essential in the interest of justice to require the attendance for cross- examination of a deponent from overseas (R V. SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE KHAWAJA [1984] AC 74"\r\nAs the registrar of the court was available for swearing to the affidavit in answer, we do not think it was proper for the learned judge to do so. If as a court of record the registrar could prove facts in issue the judge ought not to have sworn to any affidavit.\r\n \r\nSee FLORENCE V. LAWSON [1851] 17 LT 260 in which it was held that a judge of the\r\nSuperior Court should not be called as a witness to prove facts which may be proved\r\nequally well by other persons.\r\nHowever, on 17/6/2010 one MARK WILFRED KOBABO KVVARA, the chief Registrar of the High court , Accra swore to an affidavit on behalf of the judge. He stoutly denied the allegations of judicial impropriety leveled against the judge. Annexed to his affidavit is the proceeding of the court on the 14/12/2009, the day the said judge allegedly made the uncomplimentary comments against the applicants.\r\nThe gravamen of the allegations of bias and prejudice could be found in paragraph\r\n10 of the affidavit in support of the application. For a fuller record paragraphs 10 and\r\n11 thereof are reproduced below,\r\n"10. That on the 14th day of December 2009 at a hearing of the suit in the\r\nHigh Court and open court, the learned judge exhibited bias and prejudice\r\ntowards me.\r\n11. That on the said date, when the suit was called, my counsel was not\r\navailable and when the learned judge asked me of the whereabouts of my\r\ncounsel I informed him that he is on his way to court"\r\nThese depositions were denied and in further answer the proceedings of that day, that is, the 14th day of December 2009 was exhibited to show that one Eric Atieku was indeed present as a lawyer for the applicants herein. We find this as disturbing as allegations of judicial impropriety were made out of the deposition which on the face of the record is not true. Allegations to warrant our intervention by way of prohibition must be proved in the same way as in every civil proceedings where averments are denied and proof is required. We do not wish to proceed to discuss this standard of proof in more detail than to refer to the case of ATTORNEY - GENERAL V. SALLAH  [1970] CC 54 in which the court held per Amissah JA as follows:\r\n \r\n"In objections like the instant one, evidence is not often required because the facts, which are often true, are uncontroverted. But where the facts are controverted as in the instance application, they must be proved. The standard of proof required should at least reach that required in civil cases" (emphasis ours)\r\nThe allegations were not proved to our satisfaction as required by the standard set out under section 12 of the Evidence Act, 1975 NRCD 323.\r\nIn their statement of case, learned counsel for the applicants referred us to the current pronouncement on the law governing the intervention of the Supreme Court in matters of this nature. All the cases cited; IN RE APPENTEN (Dec''d); REPUBLIC V. HIGH COURT, ACCRA, EX PARTE APPENTEN & ANOR [2005 - 2006] SCGLR 18 and REPUBLIC V. HIGH COURT, EX PARTE MOBIL OIL (GHANA) LTD, (HAGAN INTERSTED PARTY) [2005-2006] SCGLR 312 restate the common law position on disqualification of justices on grounds of bias or prejudice. We are, however, of the opinion that the facts on which the law could be applied do not exist in this application for the reasons given above.\r\nWe therefore proceed to dismiss the application for prohibition against learned judge.\r\n[SGD]	ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\nCONCURRING OPINION\r\nIONES DOTSE ISC:\r\nI have had the prior honour and advantage of reading the ruling just delivered by my brother Anin-Yeboah JSC.\r\nEven though I agree with the conclusion reached in the matter that the application to prohibit the learned trial Judge from hearing this matter be dismissed, I am constrained to make the following comments in support of\r\n \r\nthe ruling and also for the guidance of trial court Judges. In the case of\r\nRepublic vrs High Court, Den u, Ex-parte Agbesi Awusu II No I (Nyonyo Agboada Sri III) Interested Party [2003-20041 SCGLR 864, the Supreme\r\nCourt set out conditions for the grant of prohibition against a trial Judge on a charge of bias or real likelihood of bias. The court stated thus:\r\n"A charge of bias or real likelihood of bias must be satisfactorily proved on balance of probabilities by the person alleging same. Whether there existed a real likelihood of bias or apparent bias was an issue offact determinable on a case to case basis."\r\nFrom the facts of this case, the applicant with respect has not been able to establish with any degree of particularity the various allegations constituting bias against the learned trial Judge. It should be noted that the applicant needed to have done more to prove the allegations contained therein.\r\nJudges must as a rule desist from engaging in acrimonious exchanges between them and Counsel or the party in cases before them. This is because, as human beings, a Judge who does not exercise discernment and makes comments as it were showing his anger one way or the other will create a situation where the party alleging bias would find it difficult to accept the fact that he will have a fair trial in his court.\r\nApart from the affidavit sworn to by the trial Judge in this application I find no such evidence in support of open acrimony by the trial judge towards the applicant.\r\nI will therefore concur with the ruling of Anin-Yeboah JSC.\r\n[SGD]	3. V. MI DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\n \r\nGBADEGBE JSC: \r\nI have had the advantage of reading before-hand the draft of the judgment about to be delivered by my brother Anin- Yeboah JSC and I agree with him that the application herein be dismissed. But like my brother Dotse JSC I think that the application raises some points of procedural importance wherefore I wish to express my decision in the following words for future guidance in applications of this nature.\r\nWe have before us a notice of motion by the applicant invoking our supervisory jurisdiction in prohibiting the High Court Accra and in particular\r\nBenson J from hearing the case entitled Ghana Ports & Harbours Authority & Anotherv Concord Media & Another as well as two motions in the cause that\r\nare pending before him for contempt of court. In the supporting affidavit, the deponent accused the presiding judge of having in the course of deliberations before him referred to a previous petition that he had authored to Her Ladyship the chief Justice seeking a transfer of the matter from the said judge as " a bogus petition". The said deposition also alleged of and concerning the judge that he had described the witness as "a cantankerous person". Based on the said allegations, the applicants were apprehensive that the learned judge had lost his impartiality as the words on which the application was based were prejudicial to a fair consideration of the matters before him as an adjudicator. Not unexpectedly, the application has been vehemently opposed by the interested party, the plaintiff in the action before the High Court that is based on an alleged libelous publication.\r\nI observe of the substance of the allegation that they appear to be such that if proved by the applicant would raise an issue of a reasonable likelihood of bias against the learned judge. In cases of this nature the burden of proving the allegation made against the judge rests on the applicants and the mere fact that proof in these instances is ordinarily by means of affidavits does not in the least relax the evidential burden contained in the rules of Evidence as\r\n7\r\n \r\ncontained in section 12 of the Evidence Act, NRCD 323. Although in practice the court rarely in applications for judicial review grants leave to the parties to cross-examine deponents , where the re has been a denial of the allegation against the judge and there is no request according to the existing practice by the applicant for leave to cross-examine the respondent on the facts on which the right to prohibition is based then it appears that the first hurdle of establishing the basic facts that give rise to the court''s intervention in granting the order of prohibition has not been met and therefore the applicant might be said not to have discharged the burden of proof o him. See- Attorney General  Sallah [1970] CC 54.\r\nIn the case before us, based on the controverted depositions, I am unable to reach the conclusion that the words attributed to the judge were actually uttered by him from the bench in the course of the exercise of his functions. In coming to this view of the matter, I am not disregarding the presumption of regularity which attaches to the exercise of official acts. In the course of the hearing, the applicants deposed to a further affidavit that made available to the court the record of the proceedings of 14 December 2009 at which the learned judge of the Nigh Court is alleged to have spoken the words attributed to him. In my view, the said record does not portray the learned judge in the way urged against him and it being a document that has been tendered as it were by the applicant, its effect is to contradict his allegations particularly in the absence of any credible challenge to the correctness of the minutes by way of an affidavit in falsification of the record. It is interesting to note that although there was a lawyer on the record as representing the applicants herein (respondents in the proceedings of 14 December 2009), the applicant has offered no explanation for not producing any evidence from him in support of the very serious allegations against the trial Judge. In my view, the said counsel is a compellable witness and the failure to call him has the dire consequence that goes ordinarily with the failure to call a material witness by parties.\r\n \r\nThere is also the argument by the applicant that when the processes were served on the respondent, the learned judge swore to an affidavit in answer to the application by which he descended into the arena of the dispute and accordingly has demonstrated such prejudice that ought to disentitle him from continuing to adjudicate in the matter. In my opinion, the application is based on the allegations of 14 December 2009 I open court and consequently any act subsequent to that date cannot be legitimately called in aid by the applicant to sustain the application. For the applicant to succeed in the matter herein, he is limited to the complaint of that day and not afterwards. It is observed that in the course of the proceedings before us we directed that the affidavit of the learned judge be struck out as it offended against section 65 of the Evidence Act, NRCD 323 that seeks to protect the common law right of privilege attaching to judges and adjudicators. In making the said order regarding the deposition of the learned judge we were applying a long established rule of the common law that precludes superior court judges from testifying about matters that occurred in the course of the exercise of their judicial functions. See: Florence v Lawson (1851) 17 LT 260. Having had the said deposition that was sworn to in error by the learned trial judge struck out, I think that it is no longer a competent process that could be relied on by the applicant to sustain his application and for this reason also reject his argument regarding its effect on the matter before us for determination.\r\n[SGD]	S. GBADEGBE J.S.0\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n[SGD]	S. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	B. T. ARYEETEY JUSTICE OF THE SUPREME COURT\r\nCOUNSEL\r\nEGBERT FAIBILLE JNR. FOR THE APPLICANT ATTA AKYEA FOR THE RESPONDENT\r\n\r\n', '../links/cases/Document (7).pdf', 'Yes', 'DOTSE JSC, YEBOAH JSC, ARYEETEY JSC, GBADEGBE JSC', '2011', 'supreme', '<i><font face="Times New Roman" size="2">Supervisory jurisdiction of Supreme Court - Prohibition against trial judge - <font size="2">Bias and prejudice</font> - Propriety of sworn statement by judge in answer to application - Registrar of trial court proper person to swear affidavit - Standard of proof in prohibition application where based on allegations to be as in civil proceedings.</font></i><br>', 'BROBBEY JSC', 'Civil', '', 'J5/17/2011', '', '', 'supreme', '2011-02-16', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(517, 'THE REPUBLIC \r\nVRS\r\nTHE HIGH COURT, ACCRA                            -  RESPONDENT\r\nEX-PARTE-  1. FARID DANIEL SALLOUM\r\n                   2. FAWZI DANIEL SALLOUM\r\n                   3. FAUAD DANIEL SALLOUM\r\n                   4. JACOB DANIEL SALLOUM       - APPLICANTS\r\nCHARLES SENYO COKER                               - INTERESTED PARTY', 'VI\r\nTHE'' SUPERIOR COURT 01: JUDICATURE\r\nIN TI ft SUPREME COURT\r\nACCRA A.D. 2011\r\nCIVIL APPEAL\r\nSUIT NO. J5/4/2011 DATE: 16/03/2011\r\nCORAIVI:	DR. DATE''-BAII iNC (PRESIDING) l)O''l''SL jSC\r\nYEHOAII JSC\r\nARYEE''I''EY JSC\r\nAl{O''l''0-I3AMF() (MRS) JSC\r\n11 IF REItJI1LI(:\r\nV R S\r\nTHE HIGH COURT, ACCRA	- RESPONDENT\r\nLX-PAR''FE -	1.	FARII) l)ANIEI, SALLO(JM	- AIpLI(:AN''I''s\r\n2	FAW''iI DANIEL SALLOIJM\r\n:3.	FAUAE) I)ANILL SALLOUM\r\n4.	JACOB DAN ILL SALLOUM\r\nCHARLES SENYO CORER	- IN''I''LRES''I''LI) IARTY\r\n11iw (ice and Procedure writ of posessioti Stipp rcsioi? oJ facts Jroni trial Court - Setting aside execiit iou levied - lab erci t jurisdiction oJ (lie Court - Supeivisoty Jiutisdicton of the So/nellie Court - Natural Justice. Audi a/I eram /ulrteul) tale - Practice (1/1(1 J''ioceduie - the lliqli Court Civil Procedure Rules Cl 47 - hr/i)! a/ Law -J1i??Sdi(liOi? and /1011 service Of/)r)efls.\r\n \r\nANIN YEBOAH JSC:\r\nThe applicants in this case have invoked the supervisory jurisdiction of this court to quash by certiorari the order of the High Court, Accra dated the 29/09/2010. The applicants and the interested party do not dispute the facts of this application.\r\nBriefly, the facts are as follows: On the 29/11/2001 the applicants as plaintiffs instituted an action against one John Wilson Akoto in suit number L653/2001 for reliefs of ejectment, arrears of rent menses profit and interest on the outstanding rent. One Charles Senyo Coker who is the interested party to this application applied to be joined as co-defendant. It appears that the application for joinder though filed on record was not moved and same was accordingly struck out on 20/10/2005 for want of prosecution. No procedural effort was made to either relist or repeat the application. On the 19/04/2006, however, the said Charles Sanyo Coker and Charles Duamoah Bortey commenced as action at the High Court, Accra as suit No. BL 393/06 claiming against the lst and 3rd applicants herein the reliefs of an order restraining the defendants from ejecting the plaintiff until the determination of the agreement between the plaintiffs and the late Jacob Daniel Salloum, injunction against the defendants and each of their agents, servants, workers, assigns and privies restraining them from interfering with the plaintiff''s quite enjoyment of the remaining term of their agreement with Jacob Daniel Salloum ,and cost.\r\nSubsequent to the filing of the writ, the plaintiffs in the suit No.BL393/2006 were granted an interlocutory injunction on the 17/04/2007 by Abada J., restraining the first and third applicants herein. According to the affidavit of the first applicant, after the grant of the interlocutory injunction the parties to the suit have not pursued the action. In the suit No.L653/2001, the said John Wilson Akoto died and was substituted by John Wilson Akoto Jnr. Upon substitution, Entry of judgment was served on him. The interested part to this application filed a Notice of claim on the grounds that the houses in execution were the subject of a pending action in suit No.BL 393/2006: CHARLES SENYO COKER & OR V. FARID DANIEL SALLOUM & OR. The applicants herein filed a motion on notice on 30/10/2009 and prayed the court to set aside the Notice of Claim filed by the interested part herein. The motion was argued before Justice E.B.K Agbloyor of the High Court, Accra who in his ruling\r\n2\r\n \r\n\r\n•\r\nordered the applicants herein to abide the final determination of suit No. BL\r\n393/2006 before any step is taken against the interested party herein.\r\nThe applicants herein, however, on 24/8/2010 filed an application for leave to issue writ of possession against the defendant/judgment/debtor John Wilson Akoto (Jnr) in suit No.L653/2001. The application was granted on 1/09/2010. The record of exhibits shows that on 7/09/2010, the applicants filed the Writ of Possession against Mr. John Wilson Akoto (Jnr) and on 27/09/2010 the writ of possession was only executed against John Wilson Akoto (Jnr) and left out other persons in possession, including the interested party herein. Indeed the applicants suppressed the facts by not disclosing to the court the order made by Abgloyor J.\r\nOn 27/09/2010, the very day the writ of possession was executed at the instance of the applicants, the interested party filed a motion Ex parte praying the court presided over by Mr. Justice Abdulai Iddrisu to set aside the writ of possession. In the affidavit in support of the said application sworn to by the interested party, reference was made to the order of Abgloyor J dated the 30/04/2010 and the import of same. It also raised the issue of non-service on the interested party when the applicants wanted to levy execution by writ of possession. The learned judge Mr Justice Abdulai Iddrisu granted the application ex parte and in his ruling dated the 29/09/2010 set aside the execution levied by the applicants. In his ruling the learned judge said as follows:\r\n"It must be noted that this court took its decision based on the facts that were put before it. It is however revealing that certain facts which were essential and could have assisted the court in its decision were not disclosed to the court.\r\nThe court can set aside under its inherent jurisdiction any order which it had\r\nbeen induced to make such as by mistake or even innocent suppression of\r\nmaterial facts"\r\n \r\nThe learned judge proceeded to set aside the execution at the instance of\r\nthe interested party who was not a party to the original suit"\r\nThe applicants who are aggrieved have resorted to this application by invoking the supervisory jurisdictions of this court by complaining on two main grounds as follows:\r\ni.	A breach of the principle of audi alteram partem rule.\r\nii.	Error of law (on the face of the record)\r\nIn a nutshell, the argument of learned counsel for the applicants is that, as they were the obvious target of the application before the High Court, the learned judge ought to have heard them before vacating the writ of possession and the execution processes at the instance of a non-party to the case from which the execution was levied. They contend that the application made to the court by motion to vacate the writ of possession and the processes of execution ought not to have been made ex parte but on notice to them.\r\nThe practice in Civil Proceedings is that in pending matters applications are usually made to the court by motion for a grant of any order in terms of the prayers sought in the motion. The rules and practice at the High Court, however, regulates how motions could be either on notice or ex-parte. Order 19 of the High Court (Civil Procedure) Rules of 2004, CI 47 provides guidelines for making applications by motion. For the purposes of this application, reference may be made to Order 19 rule (1) (3) which states as follows:-\r\n"(3) Except where the Rules otherwise provide, no motion shall be made\r\nwithout pcy1pus_notice to the parties affected"\r\n \r\nOrder 19 rule (3), however, vests powers in the High Court to entertain motions ex¬parte under limited circumstances. Indeed, it is part of the rules and practice that certain motions by their nature ought to be made ex-parte given the circumstances. The learned author of Civil Procedure in Nigeria at page 553 states the position as follows:\r\n"These are two main circumstances which, as decided in Leedo v. Bank of the North  [1998] 7 SCNJ 328, an application ex-parte could be made. These are (i) when, from the nature of the application, the interest of the adverse party will not be\r\naffected and\r\n(ii) when time is the essence of the application.\r\nIn any of these situations a court may rightly exercise its desertion by granting motion ex- parte. But where the motion will affect the interest of the adverse party, a  court of law should insist and order that the adverse party be put\r\non notice" (emphasis ours).\r\nThe above statement of the law is also supported by a passage in Atkin''s\r\nEncyclopedia of Court Forms in Civil Proceedings second edition at page 203.\r\n"Motions may be made either ex parte or upon notice. All motions in an\r\naction (other than a motion for judgment) are interlocutory. The general rule\r\nis that no motion may be made without previous notice to the parties\r\naffected. But the  court or judge if satisfied that the delay caused tiy\r\n_proceeding in the usual way  and giving the necessar_y notice would or might\r\nentail irreparable or serious mischief may make any order ex-	_parte\r\nupon such terms as to costs or otherwise, and subject to such undertaking, if\r\nany, as the court or judge may think just, leaving any party affected by the\r\norder at liberty to move to se it aside"\r\n \r\nIn our respectful opinion, we think the suppression of the orders made by Agbloyor i notwithstanding, the interested party who was not originally a party to the judgment for which the Writ of possession was sought and granted ought to have given notice to the judgment/creditors when he sought to set aside the execution processes as a party affected by the execution. His not being a party to the substantive case in which a final judgment had been given, makes this situation more serious. How a person who was not originally a party to a case in which what is left is execution can mount an application ex parte under the circumstances of this case to me is not clearly sanctioned by any rule of law or practice. The affidavit which sought to support his application to vacate the orders was very terse.\r\nIt did not even disclose any urgency of the matter and any irreparable injury which would have resulted from resorting to the hearing of the application on notice. In any case, the interested party was not ejected from the premises during the enforcement of the writ of possession for him to complain of any urgency under the circumstances.\r\nI freely accept the proposition of law that in motions mounted ex parte, the utmost good faith is required of an applicant. The few cases which come to mind are: R v. Kensington Income Tax Commissioners, Ex parte Princess Edmond de poRgjac [1917] 1KB 486 CA and R v. Accra District Court Magistrate, Ex parte Kuma {1968] GLR 955. But we wonder whether an application to set aside any order which was made by a court of competent jurisdiction by relying on suppressed facts should be made ex parte when there are no prevailing circumstances warranting it to be made ex parte without notice to the person to be affected.\r\nI am not unmindful of the existing saving provisions under Order 81 of CI 47 which has relaxed the strict application of the rules in matters of non-compliance. To us, much depends on the extent of the irregularity of the proceedings and the nature thereof. In this application, the main ground canvassed before us is the breach of the rules of the audi alteram partem rule. The right to be heard in proceedings before a court of law is well established in every common law jurisdiction. It should be taken away only when the rules of court or practice permits it to be so. I do not think that order 81 could be reasonably applied to regulate a basic fundamental error which error has denied a party his constitutional and inalienable right to be\r\n \r\nheard in a case in which the applicant had been adjudged a victor in civil proceedings and what is left is execution. No especial circumstances have been shown to exist in the affidavit of the interested party as we have already stated above. To invoke Order 81 to cure this serious fundamental error would bring too much laxity in practice and such situations should be avoided.\r\nIn the recent case of IN RE KUMI (Dec''d), KUMI v. NARTEY [2007-2008] SCGLR 723 Sophia Adinyira ]SC said at page 632-633 as follows:\r\n"As said earlier, it is trite law that a person cannot be found guilty or liable on\r\norder or judgment unless he had been give fair notice of the trial or\r\nproceeding to enable him to appear and defend himself. This is the essence\r\nof justice. Failure by a court or tribunal to do so would be a breach of the\r\nrules of civil procedure and nature justice.\r\nA judgment or order procured under such circumstances is, in our view a\r\nnullity.\r\n(emphasis mine)\r\nProf. Date-Bah JSC in discussing the scope of Orders 81 of CI 47 observed in the case of REPUBLIC V HIGH COURT;  ACCRA _ EX PARTE ALLGATE CO.  LTD (ALMAGAMATED BANK LTD INTERESTED PARTY) [2007-2008] SCGLR 1041 at page 1052 said:\r\n"This decision is probably a case too far for this jurisdiction. There is binding precedent in this jurisdiction to the contrary, even after the enactment of the new Order 81, rl of the High Court Rules. For the reasons eloquently articulated by Taylor ]SC in AMOAKO V. HANSEN [1987-88] 2 GLR 26 at 43-44, non-service of a process where service of same	is required, in my view goes to jurisdiction.\r\nNon-service_  implies that audi alteram parterrj, the rule of natural justice is breached. \r\n \r\nThis is fundamental and goes to jurisdiction"\r\nIn the Ex-__parteAllgate_Co. Ltd case, supra, His Lordship Professor Date-Bah JSC in his concluding remarks summed up the law at page 1054 as follows:\r\n"To summarise then, where there has been non-compliance with any of the\r\nrules contained in the High Court (Civil Procedure) Rules, 2004 (CI 47) such\r\nnon-compliance is to be regarded as an irregularity that does not result in\r\nnullity, unless the non- compliance is also a breach of the constitution or of a\r\nstature other than the rules of court or the rules of natural justice or otherwise\r\ngoes to jurisdiction".\r\nWith these binding precedents very current on the law, we are fortified to hold that the irregularity which is acknowledged by all nullified the proceedings which the applicants are complaining of.\r\nThe position of the law is that, breach of the basic rules of natural justice as it has happened in this application before us renders the proceeding a nullity. Learned counsel for the applicant has drawn our attention to the recent cases of Repubjjc v. High Court, Bolgatanca:Exparte Hawa Yakubu [2001-2002] SCGLR 53 and Barclays Bank of Ghana Ltd. v. Ghana Cables Co. Ltd. & Ors. [1998-1999] SCGLR 1 to illustrate how this court frowns upon the beach of the rules of non-service especially in the Ex-parte Hawa Yakubu''s case. Indeed, it has been the practice that even if an application is ex parte and the court is of the view that it has to be on notice the court should order for a copy of the motion to be served on the affected party even though the application has been sought ex parte.This practice has the statutory backing under order 19 rule 1 (4) of CI 47. It illustrates how parties ought not to be denied this basic and fundamental right in civil litigation.\r\n \r\nIndeed, procedural defects have been cured in various cases if the defects are not fundamental. If the defect is such that a party''s rights have been seriously denied as in this case, a court should not apply Order 81. Lack of service of hearing notice for example has always been seen as a fundamental defect. See CRAIG V. KANSSEN [1943] 256 CA, R V. APPEAL COMMITTEE OF COUNTY OF LONDON QUARTER SESSIONS, EX PARTE ROSSI [1956] I ALL ER 670 CA. Equally so, if a party is denied his right to be heard as in this case, it should constitute a fundamental error for the proceedings to be declared a nullity.\r\nThe 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\nIn this application, the facts show clearly that the conduct of the interested party was clearly intended to overreach the statutory rights of the applicants. It is our opinion that as this court has in several cases held that a breach of the rules of natural justice renders proceedings a nullity, we will declare that the applicants have sufficiently made a case to warrant our supervisory intervention. We will therefore grant the application in the terms prayed and declare the proceeding of the High Court dated the 20/09/2010 a nullity for the reasons canvassed above.\r\nOn the second ground, we think that as the error complained of has been declared fundamental and this renders the proceedings a nullity, the application also succeeds on the second ground. The application is thus granted as prayed.\r\n[SGD] ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	DR. S.K. DATE-BAH\r\n \r\nJUSTICE OF THE SUPREME COURT\r\n \r\n[SGD]	B. T. ARYEETEY JUSTICE OF THE SUPREME COURT\r\n[SO] V. AKOTO-BAMFO [MRS.] JUSTICE OF THE SUPREME COURT\r\nJONES DOTSE JSC: \r\nI have had the advantage of reading the lead judgment delivered by my brother Anin-Yeboah Jsc. I have applied myself and my thoughts as best as I can to this opinion, but I am unable to accept the reasoning and the conclusions reached therein. I therefore proceed to deliver the following as my dissenting opinion.\r\nThis is an application at the behest of the Applicants herein, seeking an order of certiorari pursuant to article 132 of the Constitution 1992 to quash the order of the High Court, Accra presided over by Alhaji Abdulai Iddrisu 3, dated 29th September, 2010 on the following grounds:\r\n1.	Breach of the principle of audi alteram partem rule and\r\n2.	Error of law on the face of the record\r\n \r\nFACTS\r\n \r\nThe relevant facts pertinent to the instant application are that, on the 29th day of November, 2001 the Applicants herein namely:\r\nFarid Daniel Salloum\r\nFawzi Daniel Salloum\r\nFouad Daniel Salloum and\r\nJacob Daniel Salloum, as plaintiffs, instituted an action in the High Court, Accra, Suit No.1-653/2001 against one John Wilson Akoto - as defendant basically for the following reliefs:\r\na.	An order of ejectment or recovery of possession in respect of H/Nos. F 684C/2 and F684/D/2 Osu R E, Accra.\r\nb.	Payment of arrears of rent, mesne profits and interest on the arrears of rent which at the time totalled 64,720,000.00 (now\r\nGH46,472.00).\r\nDuring the pendency of the above suit in the High Court, the interested party herein filed an application on the 20 day of July, 2005 seeking to join the said suit as a co-defendant.\r\nIn his application in support of the application for joinder, the interested party deposed to the following pertinent facts:\r\n"In or about July 1990, the said Mr. Akoto introduced me to the original owner of the said flats, Jacob Daniel Salloum "\r\n"The said Mr. Jacob Daniel Saioum leased the said two flats to me"\r\n \r\n"The plaintiffs are very much aware that I am the occupant of the\r\nsaid flats and occupy the same as tenants of Mr. Jacob Daniel Salloum.\r\n"In or about the year 1993, the plaintiffs herein brought a suit\r\nagainst us at the then Community Tribunal at Osu and Labadi but\r\nlater abandoned the action when we challenged their capacity".\r\nAll the above depositions are contained in Exhibit I, attached by the\r\nApplicants herein to their application in support of this certiorari application.\r\nThe interested party was however unable to pursue his application for\r\njoinder, which was later struck out for want of prosecution on 20th October, 2005.\r\nLater, on or the lgth day of April 2006, the Interested party and one Charles Duamorh Bortey instituted a substantive action, suit No. BL 393/06 in the High Court, Accra against Farid Daniel Salloum and Fouad Daniel Salloum, the 1st and ri Applicants herein.\r\nThe reliefs claimed by the Interested Party and Charles Bortey were:\r\na.	An order restraining the defendants from ejecting the plaintiff''s\r\nuntil the determination of the agreement between the plaintiff and the late Jacob Daniel Salloum.\r\nb.	Injunction against the defendants, their and each of their agents,\r\nservants, workmen, assigns and privies restraining them from\r\ninterfering with the plaintiffs quiet enjoyment of the remaining term of their agreement with Jacob Daniel Salloum.\r\n \r\nThe interested party and another, were accordingly granted an Interlocutory injunction on 1th April 2007 - reference exhibit 3, in the following terms:-\r\n"Upon hearing Anthony Desewu Esq., Counsel for and on behalf of the plaintiffs/Applicants herein, and Joseph Nkrumah, Esq., Counsel for and on behalf of the Defendants/Respondents herein; It is hereby ordered that the defendants herein be and are hereby restrained from ejecting the plaintiffs until the determination of this suit It is hereby further ordered that the defendant herein, their agents, servants, workmen, assigns and privies be and are hereby restrained from interfering with the plaintiffs quiet enjoyment of the premises until the final hearing and determination of this suit"\r\n(Reference to plaintiff are to the Interested Party, and defendants to the 1st and 3rd applicants).The original defendant in Suit No L 653/2001 John Wilson Akoto died and was accordingly substituted by his son John Wilson Akoto Jnr. by order of the court dated 2 2nd October 2008, reference exhibit 4.\r\nThe case proceeded to trial and the final judgment was pronounced by Agbloyor J, on the 29th day of January 2009 who delivered judgment in the case in favour of the plaintiffs therein, applicants herein, by granting all the reliefs they had claimed.\r\nThe Interested Party on the l3" day of February 2009 filed a Notice of claim pursuant to order 44 r. 12 of C. 147 reference exhibit 6.\r\n \r\nThereafter, an application was filed by the Applicants herein to dismiss\r\nthe Notice of Claim, whereas the Interested party disputed and opposed\r\nsame.\r\nAgbloyor J, in a considered ruling dated 30th April, 2010 stated in part as\r\nfollows:\r\n"The claimant wants this court to pronounce on his interest in the property as a tenant in the alleged agreement between him and one Jacob Daniel Salloum to occupy the property in issue for a\r\nperiod expanding between r January 1991 to December\r\n2015. To protect the same interest he filed suit No. BL 393/2006 against the plaintiffs daiming reliefs for an order restraining the defendants from ejecting him from the property until the agreement determined by affidavit evidence in this court He\r\nshould therefore pursue Suit No BL 393/2006 to its logical conclusion by calling evidence in a full dressed trials\r\nBecause of that suit this court cannot order the filing of a fresh suit in this court as mandated by order 44 rule 13 (1) (b) of C. I.\r\n47.\r\nThe defendants in that case who are plaintiffs/applicants herein should abide the final determination of that suit before they take any step with regard to the claimant''s status vis a vis the subject property. More especially, they should abide by the interlocutory injunction slapped on them on 17th April, 2007 by a High Court then presided over by Abada _7 until final determination of that suit"\r\nThe applicants herein, then filed a motion ex-parte on the 24/8/2010 for\r\nleave to issue a writ of possession in respect of the premises the subject\r\n \r\nmatter of Suit No. [653/2001 in respect of which they had judgment. This application was granted by an Accra High Court differently constituted from Agbloyor 3 on lst September, 2010. The Applicants proved that they filed a praecipe for a writ of possession and were later put into possession by execution of the writ of possession on 27/9/2010.\r\nThe applicants in paragraph 19 of their affidavit in support of the instant\r\napplication deposed as follows:\r\n"That the applicants herein, being mindful of an interlocutory injunction restraining them from ejecting the interested party herein in Suit No. BL 393/2006 which is still pending before an Accra High Court was very careful and did not have, the interested party ejected from the property under execution."\r\nThe crux of the instant application is that, the High Court Accra, presided over by Alhaji Iddrisu J, on the 29th day of September 2010 upon an ex-parte application filed by the Interested Party herein, set aside its earlier order dated 1s79/2010 which granted leave to the applicants for a writ of possession.\r\nThe Applicants therefore contend that by so doing, the orders contained\r\nin the decision of 29/9/2010 have breached the audi alteram partem\r\nprinciple of the rules of natural justice as they were not given a hearing and that there is also an error of law on the face of the record.\r\nIn order to put the instant application in proper perspective it will be\r\ndesirable to quote the reasons which the learned trial Judge gave for\r\nvacating his earlier orders of 1st September, 2010.\r\n \r\nIt must be noted that in this ruling, the learned Judge expressed surprise at the conduct of learned counsel for the applicants who concealed relevant information from the court.\r\nFor example, the learned Judge specifically mentioned the interlocutory injunction granted by Abada J, on 17th April 2007 which is still subsisting as well as Agbloyor J''s ruling of 30th April, 2010.\r\nBased upon these two orders or decisions, AIhaji Abdulla Iddrisu J, stated as follows:-\r\n"It has not been shown that the ruling mentioned above has been set aside or even challenged. It therefore means that the ruling is in operation and is valid until it is set aside. It must be noted that this court took its decision based on the facts that were put before It. It is however reveafing that certain facts which were\r\nessential and could have assisted the court in its decision were not disclosed to the court.\r\nThis court can set aside under its inherent jurisdiction any order which it had been induced to make such as by mistake or even innocent suppression of material facts.\r\nI therefore set aside the order of this court which was made on 1 September, 2010 granting leave to the Applicant in that case to recover possession of H/No. F684C/2 and F684012 and its subsequent execution. The parties are to abide by the ruling of this court delivered on 30h April, 2010 by my brother Justice Agbloyor."\r\nThe above are the raw facts of this certiorari application before the court.\r\n \r\nWhat must be noted are the following:\r\n1.	The applicants herein, have a valid judgment against John Wilson Akoto Jnr in respect of the premises in suit No. L 653/2001.\r\n2.	The Interested party also has a valid interlocutory injunction order dated 17/4/2007 granted by Abada J, restraining 1St and 3 Applicants therein from interfering with the interested party''s enjoyment of that part of the premises he occupies.\r\n3.	The Applicants and the Interested party are bound and estopped by the order of Agbloyor J, dated 30/4/2010 from executing the final judgment entered in their favour against the interested party until the final determination of Suit No. BL 393/2006.\r\n4.	The Applicant''s themselves have admitted in their affidavit in support that the interested party is in occupation of portions of the premises for which reason by virtue of the orders referred to supra, they have decided not to execute the judgment against him.\r\nThe necessary and logical deduction that can be made therefore is that, the presence of the Interested Party in the portion of the property he occupies before the execution of the writ of possession by the applicants has been admitted by them. This means the interested party is entitled to continue to occupy his portion until the final determination of the case. The applicants will\r\n \r\ntherefore not lose anything if the order of execution is set aside in\r\nthat instance.\r\nBy way of further explanation, what this means is that, if the Applicants herein contend that they have not executed the writ of possession against the Interested Party in respect of the premises which he occupies, then by logical deduction, nothing would be lost by the applicants if the execution of the order of the writ of possession in so far as it touches and concerns the interested Party is set aside.\r\nRECEPTION OF ARGUMENTS IN THIS COURT\r\nIt must also be noted that upon the reception of arguments in this case, the court held that the interested Party herein, having filed his statement of case outside the statutory period allowed under the rules without leave of the court, and not seeking to regularise same until after the conclusion of the arguments of learned Counsel for the applicants, the said statement of case cannot be used and relied upon in this case. This was because the point had been raised and argued against him. This ruling is therefore premised upon the facts of the case and the exposition of the law as contained only in the statement of case of the applicants.\r\nGROUNDS OF APPLICATION\r\nIn his statement of case, learned Counsel for the Applicants stated thus:\r\n"The Interested Party''s ex-parte application made on the 27'' September, 2010 which was granted on 25" September, 2010 even though he was not a party to the suit was an error on the face of the record. The effect of the decision of the High Court, Accra on that date was to set aside the final judgment entered\r\n \r\nagainst John Wilson Akoto (Jnr) on 25" January by a stranger to a suit without giving the applicants herein any opportunity to be heard even though they were the plaintiff/judgment/creditors in that suit"\r\nFrom the above, the Applicants have reiterated their two prong argument in this case, and these are:\r\n1.	Breach of the principles of audialteram pattern and\r\n2.	Error of law on the face of the record\r\nIt is important to deal with and dispose off the contention that the Interested Party herein is a stranger to the case.\r\nAdmittedly, the interested party is in stricto sensu not a party in the suit No. [653/2001. But it has to be noted that, he not only filed a Notice of Claim in that suit when the applicants herein proceeded to have their judgment executed without giving him a Notice, but he successfully obtained a ruling from the High Court, which restrained the Applicants from executing the judgment against the interested party, without abiding the result of Suit No. B[393/2006 as directed by Agbloyor].\r\nIn addition to the above, the orders made by the High Court were such that, the fortunes of the suit filed later by the Interested Party against 1st and 3rd Applicants herein, suit No. B[393/2006 were inextricably linked to suit No [653/2001.\r\nConsidering the above scenario to the fact that the interested party successfully secured an important ruling in his favour as a claimant, then it becomes clear that the said interested party cannot under any stretch of imagination be described as a stranger to suit No 1-653/2001.\r\n \r\nIn considering whether a party is a stranger to a suit or not, care must be taken to ensure that the telescope is not centred only on the primary parties in the suit. If that is done, a lot of injustice will be done other persons whose interests and claims are linked one way or the other to the actual suit before the court. For instance, in the instant case, it is quite clear that the Interested Party, being a tenant in the premises the subject matter in Suit No. L653/2001 who has on his own secured an interlocutory injunction to restrain the Applicants herein from disturbing his quiet enjoyment of the said premises in Suit No. BL 393/2006, cannot be said to be a stranger.\r\nNo wonder learned counsel for the Applicants in their Statement of Case in the best traditions of the Bar conceded the fact that the order of Agbloyor J, made on 30th April, 2010 directed the Applicants to abide the final determination of the suit before any action could be taken against the Interested party.\r\nWhen therefore, in clear breach of the said directives the interested party was ejected pursuant to an execution of a writ of possession emanating from the said court, the interested party has nowhere to turn to except the very court that made the orders and apply to have them set aside.\r\nSimilar facts arose in the case of Republic v High Court, Accra Ex \r\nparte Anyan, (Platinum Holdings — Interested party) [2009]\r\nSCGLR 255.\r\nIn this case, the applicant and the Interested party were sub-lessees of Edward Nassar & Co Limited. Edward Nassar & Co, themselves held leases in respect of larger plots of land leased to them by the Government of Ghana. Later, the interested party sued the applicant\r\n \r\nand obtained a judgment against him for a declaration of title to a plot of the land that had been specifically marked and identified which it claimed formed part of the sub-lease it had obtained from the head lessee, Edward Nassar.\r\nThis plot of land was in the same area as the plots of land sublet to both the applicant and the interested party by Edward Nassar and Co.\r\nAfter obtaining the judgment, the interested party took steps to execute the judgment by applying for a writ of possession. This was granted by the trial court. The applicant however alleged that in executing the writ of possession, the interested party had entered into another property belonging to him other than that in respect of which he had been granted judgment. He therefore brought interpleader proceedings in the High Court against the attachment of the property contending that the property had been wrongly attached by the interested party.\r\nIn his ruling, the trial Judge found that the property attached by the interested party was not the one in respect of which the interested party had judgment.\r\nThe trial Judge however held that the applicant no longer had any interest in the property which was wrongly attached by the interested party.\r\nAggrieved by that decision, the applicant then brought proceedings in the Supreme Court for an order of Certiorari on the grounds of want or excess of jurisdiction contending that, the applicant as the claimant had no interest in the subject matter of the interpleader proceedings.\r\nThe Supreme Court unanimously held per R.0 Owusu (Ms)JSC dismissing the application for certiorari on the following grounds:\r\n \r\nit was when property had been attached normally under a writ of fleri fadas that a person other than the defendant who claimed an interest in it could interplead. In cases (like the instant case) where the execution was wrongful or irregular, the proper relief available was to have the writ of execution set aside.\r\nPer cur/am.'' If by the application, the claimant''s title was in issue then the trial Judge was perfectly acting within h/s jurisdiction when he pronounced on it. Under those circumstances if he commits any error which is not patent on the face of the record, certiorari will not issue by way of remedy. Under those drcumstances the aggrieved party''s remedy lies in an appeal"\r\n The similarities between the ex-parte Anyan case and this case are many and are enumerated as follows:\r\n1.	Both relate to post-judgment execution proceedings\r\n2.	Both relate to steps taken by one party to set aside property that was considered to have been wrongly attached.\r\n3.	The Supreme Court as it were confirmed that the right procedure to adopt under these circumstances was to have the execution set aside.\r\n4.	In the instant case, setting aside the writ of possession was exactly what the interested party did, albeit by an ex-parte process.\r\n \r\nUnder these circumstances, the interested party, once he was a claimant in the earlier proceedings cannot be said to be a stranger in the case. He certainly is not, he has an interest in the case.\r\nAs a final court of this country, the Supreme Court should endeavour to do substantial justice to all parties and manner of persons all the time, provided their claims were not out of tune with the issues before the\r\ncourt. See Hanna Ass! (No.2) v GIHOC Refrigeration & Household Products Ltd. [2007-2008] 1, SCGLR 16 review decision per Prof.\r\nOcran JSC of blessed memory, and which was applied also in the case of\r\nFosua & Adu-Poku v Dufie (deceased) & Adu-Poku Mensah [2009] SCGLR 310 at 352.\r\nI will therefore for the reasons articulated supra and also on account of\r\nthe duty cast on courts of law to do substantial justice dismiss the issue\r\nthat the interested party is a stranger to the case.\r\nDENIAL OF RIGHT TO BE HEARD\r\nThere is however no doubt that the applicants herein were not heard\r\nbefore the court vacated it''s previous orders made granting them a writ\r\nof possession, because of the procedure that was adopted.\r\nIt must be noted that, the application filed by the interested party to the court was an ex-parte application. This in terms of procedure meant that it was only a one sided application in which only the applicant is seeking the courts intervention, in emergency situations or others in which no harm would be caused the other party if they are not heard. Under the\r\n \r\nHigh Court (Civil Procedure) Rules 2004, C. I. 47 the type of applications which can be brought as ex-parte have been clearly stated.\r\nOrder 19 r 1(1) of the High Court (Civil Procedure) Rules, 2004, C I. 47 provides as follows:\r\n"Every application in pending proceedings shall be made by motion."\r\nOrder 19 r 1 (3) on the other hand provides thus:\r\n"Except where these Rules otherwise provide, no motion shall be made without previous notice to the parties affected.\r\nFrom the above, it is clear that with the introduction of C.I. 47, the procedure to initiate any applications in any pending action before the courts, has been simplified by limiting it to the process referred to and known as a motion.\r\nSimilarly, order 19 rule 1 (3) categorically states that unless otherwise provided, no motion shall be made without notice to the other side or party to be affected thereby. This means that if in the opinion of the party initiating the application by motion, any other party will be affected by the result thereof, then the rules provide that such a party must be given notice to enable his side of the case also to be heard. This is to ensure that the audi alteram partem rule is complied with.\r\nBut that is not the end of the procedure outlined and mandated by the rules of procedure.\r\nOrder 19 rules 3 (1) (2) & (3) of C. I. 47 which deals specifically with ex¬parte motions provides thus:\r\n \r\n1.	Subject to rule 1 sub rule (3), an application by motion may be made ex-parte where any of these rules provides or where, having\r\nregard to the circumstances, the court considers it proper to\r\npermit the application to be made."\r\n2.	"The court may make an order ex-parte on such terms and subject\r\nto such undertaking as it considers just where it is satisfied that\r\ndelay caused by proceeding in the ordinary way would or might\r\nentail irreparable damage or serious mischief."\r\n3.	"The Court shall not grant an application made ex-parte under\r\nsubrule 2 unless the applicant shows to the satisfaction of the court good reason for making the application ex-parte and the precise nature of the irreparable damage or serious mischief which will be occasioned by proceeding in the ordinary way."\r\n4.	"The court in its discretion may refuse to hear an application ex \r\nparte and may direct that notice shall be given to all the parties\r\naffected by the application."\r\nI have decided to expatiate on the procedure allowed under the rules of\r\nprocedure for initiation ex-parte motions, because the process sought to\r\nbe quashed by the applicant was an ex-parte motion.\r\nBy the clear words of order 19 rule 3 (1) the circumstances under which\r\nan ex-parte motion may be applied for are:\r\n \r\ni.	Where under the rules of procedure contained in C. I. 47 or any other enactment, the procedure for doing so has been clearly stated as permitted by an ex-parte process.\r\nii.	Where having regard to the circumstances of that particular case, the court is satisfied that it is proper to permit the procedure of the motion by an ex-parte process.\r\nHi. There is however a rider, contained in order 19 r 3 (2) that a court in granting an ex-parte motion may grant it upon terms or subject to such undertaking as it considers just. In making such a decision, a court is to consider what damage or mischief would be caused if the process is initiated by giving notice to the other party.\r\niv. The court is also enjoined under order 19 r 3 (3) of C. I. 47 not to grant any ex-parte application unless the applicant shows good reason to the satisfaction of the court and the precise nature of the irreparable damage or serious mischief that will be caused if the party should proceed in the ordinary way by giving notice.\r\nIn the instant case, I have already given an exhaustive background of the facts of this case.\r\nThe interested party, it must be noted had two valid subsisting orders granted by the High Court which any court desirous of ensuring that justice is done must enforce and or comply with.\r\n \r\nBesides, the applicants themselves have been mandated specifically by the orders of Agbloyor J, made on 30/4/2010 requesting them to abide the determination of a pending suit in Suit No BL 393/2006 which was still pending in the High Court.\r\nIt is now history that the applicants herein concealed from the court\r\nall the relevant and material information from the court when they\r\napplied ex-parte for the writ of possession.\r\nBy ejecting the interested party from the premises, a step they were injuncted from proceeding with until certain processes had been complied with, can the applicants legitimately apply to this court for this discretionary remedy?\r\nMy answer is a simple no. This is because, in my opinion, the interested party by his ex-parte application had been able to show not only by depositions in an affidavit, but by proof of documentary evidence to wit: relevant court orders that he is not expected to be ejected from the premises. These court documents and orders by themselves, speak volumes and have far reaching effect.\r\nUnder the premises, I ask myself this question, will the applicants\r\nhave an answer to these documents emanating as they are from a\r\ncourt of competent jurisdiction? Certainly not.\r\nIndeed they have not offered any explanation for their fraudulent\r\nconduct in concealing these vital, material and relevant information\r\nfrom the court when they applied for the writ of possession.\r\nI am therefore satisfied that the court which granted the ex-parte\r\norder setting aside the writ of possession acted within its powers and\r\nwas duly satisfied under the circumstances before it made the order,\r\n \r\nthe failure of the court not to have limited the operation of the ex-parte order notwithstanding.\r\nIn coming to the conclusion I have reached in this matter, I have been guided by the fact that courts of law exist to do substantial justice at all times. In the interest of justice, equity and fairness, this court as the final court of the land should strive to do substantial justice provided that will not result in an unconstitutionality or wreck injustice on either party.\r\nFrom the proven and undisputed facts of this case, a lot of injustice and hardship will be caused the interested party if the application is granted. With the granting of the application, there is no guarantee that the interested party will not be shown the exit from the premises he occupies which will be in clear breach of the orders of the High Court. I cannot preside over such a wilful and flagrant abuse of the powers and sanctity of courts of competent jurisdiction.\r\nSince this court has all the powers of the High Court and beyond, I would have preferred a situation where the court would evaluate the facts of the case and give a decision by directing the parties as to what to do in order to do substantial justice, for example by ensuring that the applicants comply with their undertaking that the interested party will not be ejected and directing the expeditious and speedy disposal of the pending case. This in my opinion is in accord with the dictates of substantial justice than restricting oneself to the doctrinaire approach of breach of the audi alteram partem rule, which is non-existent in this case.\r\n \r\nI am of the view that assuming the decision of the trial court to grant the ex-parte motion amounted to denying the applicants an opportunity to be heard which is denied, is it such an irregularity that is so fundamental that it cannot be cured by order 81 r. 1 of the High Court (Civil Procedure) Rules, C. I. 47?\r\nMy attention has been drawn to the unanimous decision of this court in the case of Republic vrs High Court, ex-parte Allgate Co. Ltd. (Amalgamated Bank Ltd - Interested Party) 2007-2008 1041.\r\nI have perused the said judgment and discovered that the court in coming to their decision endorsed an earlier decision in the case of Amoako v Hansen [1987-88]2 GLR 26 at 43-44.\r\nI have also apprized myself of an earlier decision given by the same court in Boakye v Tutuyehene [2007-2008] SCGLR 970, given\r\nalmost a year before the decision in the ex-parte A//gate case was delivered. In the earlier case of Soak,ve v Tutu,vehene, the decision in Amoako v Hansen appears to have been reversed.\r\nIn the Boakye case referred to supra, Dr. Twum JSC as he then was emphatically stated thus:\r\n"Further, the new order 81 has made it clear that perhaps\r\napart from lack of jurisdiction in its true and strict sense, any other wrong step taken in any legal suit should not have the effect of nullifying the judgment or the proceedings".\r\nHaving perused the entire decision in the ex-parte Ailgate and the Boakye cases, I am of the considered opinion that, the facts and the\r\n \r\n•\r\ncircumstances of this case are strikingly different from the circumstances\r\nthat necessitated the decision in the ex-parte Allgate case.\r\nI am therefore of the considered view that the learned High Court Judge had jurisdiction to have entertained the ex-parte application and there was no need to have heard the applicants, since they were not parties therein. I certainly approve of the practical approach adopted by the court in the Boakye v Tutuyehene case.\r\nIn real terms, I am of the considered view that in order to ensure that the effect of order 81, r.1 of C.I. 47 is not neutralised to such an extent that the policy and philosophical underpinnings behind the passage of the High Court (Civil Procedure) Rules 2004, C. I. 47 are not undermined, then order 1 r (2) must be seen to be complied with both in the letter and spirit. Order 1 r (2) states as follows:\r\n"These rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided."\r\nFrom the above, it is quite clear that much as proceedings in the High Court under C. I. 47 are to be expedited so as to avoid delays, they are also meant to promote effective justice and ensure that disputes between parties are completely and effectively determined in real terms.\r\nIn that respect therefore, I think the principle in the decision in Boakye v Tutuyehene should be considered on a case by case basis and perhaps\r\n \r\nj	•I	•!\r\nin this case it will be observed that, a restricted application of the decision is necessary in order to do substantial justice.\r\nI am therefore of the considered view that, the learned High Court Judge had jurisdiction to have entertained the ex-parte application and there was therefore no need to have heard the applicants, as they were not parties therein.\r\nIn the ex-parte Anyan case already referred to supra, Justice Rose Owusu (Ms) JSC, delivering the unanimous judgment of the court, and relying on celebrated cases like\r\nRepublic v High Court, Accra: Ex-parte Appiah [2000] SCGLR 389,\r\nRepublic v High Court, Accra; Ex-parte Industrialisation Fund for Developing Countries [2003-2004] 1 SCGLR 384 and\r\nThe Republic v Court of Appeal, Accra: ex-parte Tsatsu Tsikata [2005-2006] SCGLR 612\r\nheld on pages 262-263 as follows:\r\n"The law is well settled that the supervisory jurisdiction of the court under article 132 of the 1992 Constitution is exerdsed only in those manifestly plain, obvious and clear cases where there are patent and obvious errors of law on the face of the record which error must go to the jurisdiction of the court so as to make the decision of the court a nullity."\r\n \r\nThere is therefore nothing patent on the record in the instant case to\r\nmake the decision of the trial court a nullity such that the supervisory\r\njurisdiction of the court can be invoked.\r\nIt is also important to observe that, it is one thing for a court to have jurisdiction and another thing for the court to have exceeded its jurisdiction in the course of the proceedings, or failing to comply with the requirements of natural justice i.e. the audi alteram partem principle which demands that every party must be given an opportunity to be heard before he or she is condemned, during the course of hearing a matter in respect of which the court had jurisdiction. See the case of R v\r\nNorthumberland Compensation Appeal Tribunal, Ex-parte Shaw 1952 1 KB 338 and\r\nRepublic v High Court, Accra: Ex-parte Commission on Human\r\nrights and Administrative Justice — Addo, Interested party\r\n[2003-2004] 1 SCGLR 312.\r\nThe principle involved here is that, although a court like the High Court in the instant case might commence an inquiry with clear jurisdictional powers, it might lose those powers where it commits any of the errors mentioned therein, i.e. exceeding its jurisdiction by making orders in excess of its powers or not affording an opportunity to the parties in the case to be heard etc, this list could be endless.\r\nThe important thing however is for a court such as this Supreme Court to embark on a critical analysis and survey to find out whether the court below breached any rule of practice in its determination of the rights of the parties.\r\n \r\nIn the instant case, I find no such thing existing and will dismiss the application.\r\nThe learned trial High Court Judge did not breach the audi alteram partem rule of the principle of natural justice. This is because the application before him was for an ex-parte application which he granted. He was not obliged to afford the applicants a hearing.\r\nFor the above reasons, I will dismiss this application seeking to invoke the supervisory jurisdiction of this court to quash the decision and orders contained in the orders of the High Court dated 291h September,\r\n2010.\r\n[SGD] 3. V. M. DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL:\r\nJOSEPH NICHOLAS NKRUMAH FOR APPLICANTS WITH HIM\r\nFESTUS OWUSU - BADU\r\nANTHONY DESEWU FOR THE INTERESTED PARTY\r\nI 4--i US\r\n\r\n.JF\r\n', '../links/cases/Document (8).pdf', 'Yes', 'DOTSE  JSC, YEBOAH JSC, ARYEETEY JSC, AKOTO-BAMFO (MRS) JSC', '2011', 'supreme', '<i><font face="Times New Roman" size="2">Practice and procedure - Writ of possession - Suppression of facts from trial court - Setting aside execution levied - Inherent jurisdiction of the court - Supervisory jurisdiction of the Supreme Court - Natural Justice. Audi alteram partem rule - Practice and procedure - The High Court Civil Procedure Rules CI 47 - Error of Law - Jurisdiction and non service of process.</font></i><br>', 'DR. DATE-BAH JSC', 'Civil', '', 'J5/4/2011', '', '', 'supreme', '2011-03-16', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(518, '1. NANA ATOAA SRAMANGYEDUA III, QUEEN MOTHER OF WENCHI,WENCHI\r\n2. NANA DR. ABREFA MENSAH ABRAMPA, ABAKOMAHEMAA OF WENCHI\r\n3. NANA OWUSU ACHIAW II, AKRAFOHENE OF WENCHI\r\n4. OHENEBA DR. KRABIRI BOATENG I, JUMAKWAIHENE OF WENCHI, WENCHI  -  PETITIONERS/APLTS/RESPONDENTS\r\nVRS\r\n1. KWADWO NYAM NKETIA, WENCHI\r\n2. NANA OWUSU ANSA KOKROKO, KRONTIHENE OF WENCHI TRADITIONAL AREA COUNCIL, AND ACTING OMANHENE AND THE PRESIDENT OF THE HOUSE\r\n3. NANA KUMI ADUSI POKU, GYEASEHENE OF WENCHI, ALL OF WENCHI, B/A   -  RESPONDENTS/RESPS./APPELLANTS', 'IN THE SUPERIOR COURT OF IUDICATLJRE\r\nIN THE SUPREME COURT OF GHANA\r\nACCRA-2011\r\nCORAM: I31ZOBBEY J.S.0 (PRESIDING)\r\nDR. DA''l''E-BAI-I J.S.0\r\nI3AFFOE-BONNIE J.S.0	2611'' OCTOBER, 2011\r\nARYEE''I''EY J.S.0\r\nAKOT0-I3AM EQ (MRS) J.S.0\r\n \r\nCIII EF''I''AI NCY APPEAL\r\n1.	NANA ATOAA SRAMANGYEDUA III QUEEN MOTtlER OF WENCHI, WENCIII\r\n2.	NANA DR. ABREFA MENSAH ABRAMPA ABAKOMAIJEMA OF WENCHI\r\n3.	NANA OWUSU ACHIAW KUSI II\r\nAKRAFOI lEN E OF WEND II\r\n4.	OI-IENEBA DR. KRABIRI BOATENG I JUMAKWAIIIENE OF WENCH], WENCH V R S\r\n1.	KWADWO NYAM NKETIA, WENCH!\r\n2.	NANA OWUSU ANSA KOI{ROKO\r\nl<RON''I''I II ENE OF WENCI II TRADITIONAL CO UN CIL, AND ACTING OMANH ENE AND THE PRESIDENT OF THE HOUSE\r\n3.	NANA KUMI ADUSI POKU\r\nGYEASEIIENE 01: WENCH!\r\nALL OF WENCHI, B/A\r\n \r\nChieftaincy— Nomination- Election/Selection Enstoolmen t— Installation— Test of ''reasonableness'' and fairness'' of notice under customary law— Chieftaincy Act 2008 (Act 759), s. 62(2) - VoidActs constituting nullity\r\n \r\n\r\nBROBBEY JSC:\r\nThis is the unanimous judgment of the court. The facts which gave rise to this litigation were as follows: Nana Abrefa Mbore Bediatuo VII was the paramount chief of VVenchi Traditional area. He died on July 7, 2004. After his death, a former chief of Wenchi, Nana Kusi Appea, filed a petition at the Brong Ahafo Regional House of Chiefs. The petition was against the Wenchi Queen mother and the Wenchi Traditional Council. The petition was mainly for a declaration that he was the sitting chief of Wenchi Traditional Area. The petition was filed in April 2005. It was finally determined in favour of the queen mother and the Traditional Council on the 6th of June 2006. A series of meetings followed the determination of the case on that day. The most relevant of the decisions taken at the meetings was that the king makers requested the queen mother to nominate a person to be considered as a chief for the Wenchi Traditional Area to replace the deceased chief.\r\nThe queen mother replied that she needed three weeks to make the nomination. The king makers who made the request to the queen mother were of the opinion that since the death of the last chief, the stool of Wenchi had been vacant for some time and needed to be occupied. They premised their demand on the facts that already two royals had expressed interest in the position of the chief and had made the necessary approaches to the queen mother to that effect. Further, the process of replacing the chief had started soon after the former chief died in 2004. It was not new to the contestants, the queen mother and the king makers. They therefore insisted that they could not wait for as long as three weeks demanded by the queen mother for a chief to be nominated. The queen mother on the other hand maintained that there were consultations to be made and other contestants had to be given the chance to put forward their interests and therefore she could not be hustled into making the nomination as immediately as the king makers demanded.\r\nFollowing what appeared to be a stalemate, the king makers approached the queen mother three times for her to nominate a candidate to be considered as the chief of Wenchi. According to the king makers, she delayed unreasonably. They therefore approached Madam Abena Frema Atuahene who performed the customary tasks which would have been performed by the queen mother in respect of the nomination and installation of the chief. Eventually, Kwadwo Nyam Nketia, hereinafter referred to as the first respondent, was nominated, enstooled and installed as the chief of Wenchi to replace the deceased Nana Abrefa Mbore Bediatuo VII.\r\nThe queen mother, the Wenchi Abakomahene and Wenchi Jumankwaihene filed a petition in the Brong Ahafo Regional House of chiefs. The respondents to the petition were Kwadwo Nyam Nketia, the chief elect, Nana Owusu Ansa Kokroko, the Krontihene and Acting Omanhene of VVenchi and Nana Kumi Adusi Poku, Gyasehene of VVenchi as the first, second and third respondents respectively. The reliefs claimed in the petition were for:\r\n \r\n\r\na.	A declaration that the purported nomination of the first respondent by Madam Abena Frema Atuahene as the candidate for Wenchi paramount stool is void;\r\nb.	A declaration that the first petitioner is the rightful person to nominate a candidate to the King makers of Wenchi Traditional Council to be installed as the Omanhene of Wenchi.\r\nc.	A declaration that the 2 and 3rd respondents cannot install and enstool the 1st respondent as the Omanhene of Wenchi as the person who purported to nominate him lacks capacity to do so.\r\nd.	An order for perpetual injunction restraining the 1st respondent from styling or holding himself as the Chief of Wenchi;\r\ne.	An order of perpetual injunction restraining the 2 n and 3rd respondents from installing and enstooling the ist respondent as the Chief of Wenchi."\r\nIn the Regional House of Chiefs, judgment was given in favour of the respondents. The petitioners appealed to the National House of Chiefs which entered judgment for the petitioners. It was against the latter judgment that the appellants who were respondents to the original petition have appealed to this court.\r\nThe original grounds of the appeal were:\r\na)	"The judgment of Nananom of the Judicial Committee is against the weight of evidence.\r\nb)	The judicial committee found that the 1st appellantlrespondent had not been properly summoned by the Elders and Kingmakers of Wenchi to nominate a candidate for the Wenchi paramount stool contrary to the clear evidence on record that 1s1 appellant/respondent admitted being so summoned and thereby drew an erroneous conclusion.\r\nc)	The Judicial Committee erred when it found that 1st appellant/respondent never agreed or refused to nominate a candidate despite overwhelming evidence on record to the contrary.\r\nd)	The Judicial Committee erred on a matter of fact when it found that ist appellant/respondent never had any opportunity to nominate a candidate despite ist appellant/respondent''s own admissions on record to the contrary.\r\ne)	The Judicial Committee erred as a matter of law when it found that Exhibit 1, the Report of the Wenchi Stool Affairs Committee of the National House of Chiefs, could not be relied upon by a judicial panel to arrive at a judgment and thereby rejected the findings made therein and arrived at an erroneous conclusion.\r\no The Judicial Committee erred as a matter of law that the processes leading to the enstoolment of l respondent/appellant was not consistent with Wenchi customary practice.\r\ng) Nananom of the Judicial Committee of the National House of Chiefs (hereinafter, ''Nananom) erred when they held that 1St petitioner/appellant/respondent\r\n \r\n\r\n(hereinafter, "1st respondent") "never took part in any meeting to discuss the issue of nomination of a candidate" contrary to clear evidence on record by which 1st respondent admitted as such.\r\nh)	Nananom erred when they held I that 1st respondent was never summoned to a meeting of the Wenchi royal family and Wenchi Kingmakers contrary to clear evidence on record.\r\ni)	Nananom erred when they disregarded evidence of Wenchi custom to the contrary and held that where a chief-elect uses any sword other than the customarily designated sword the enstoolment cannot be valid under customary law.\r\nj)	Nananom erred on a point of law when they held that where a chief-elect is not confined for the required period his enstoolment cannot be valid under customary law.\r\nk)	Nananom erred on a point of mixed law and fact when they held that the enstoolment of 1st respondent/appellant without the participation of the 1st respondent and the procedure adopted did not conform to the customary practice of Wenchi.\r\nI) Nananom erred when they relied on alleged facts not in the record of appeal to determine the appeal.\r\nm)	Nananom erred on a point of mixed law and fact when they held that the trial court, the judicial committee of the Brong-Ahafo Regional House of Chiefs, erred in relying on the National House of Chiefs'' Wenchi Stool Affairs Committee on Enquiry Report to arrive at its judgment.\r\nn)	Nananom erred when they found that only two chiefs in the history of Wenchi had been enstooled by kingmakers without the participation of the queen mother and fell into further error when they held that such was not the customary practice of Wenchi."\r\nThe appellants later filed what they described as additional grounds of appeal. From the original and additional grounds of appeal, the issues which the appellants summarized for determination in this court were:\r\n"(1) Whether or not 1st respondent unreasonably refused to nominate a candidate for the Wenchi Paramount Stool?\r\n(2)	Whether or not the kingmakers of the Wenchi Paramount Stool properly exercised their rights to nominate and enstool 1st appellant upon the refusal of 1st respondent to honour the kingmakers'' request to nominate one of two known and accepted candidate?\r\n(3)	Whether or not the report of the committee of Enquiry on Wenchi Stool Affairs, 1976 could validly be relied upon for a judgment?\r\n(4)	Whether or not 1st appellant was properly nominated and enstooled as the Omanhene of VVenchi."\r\n \r\n\r\nA number of issues arose from the above as well as from the statement of case of the respondents. To resolve the issues, it is pertinent to consider the 1992 Constitution, Act 277 which defines who a chief is in this country. It reads:\r\n"a person, who, hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled, enskinned or installed as a chief or queen mother in accordance with the relevant customary law and usage."\r\nThis article underscores the requisites to be satisfied when considering the making of a chief. They are simply these:\r\n1.	Nomination\r\n2.	Election/Selection\r\n3.	Enstoolment, enskinment or installation\r\nThe satisfaction of these requirements should be in accordance with the peculiar customs and usages of the people in the area for whom the chief is being considered. From a plain reading of the definition in the Constitution, the most fundamental requirement is nomination. This applies of course to areas where nomination is an essential requirement before settling on a person to be considered as a chief. In this context, nomination simply means the proposal of a person for election or selection as a chief. Essentially, nomination boils down to naming or declaring a person who is considered by the queen mother as the rightful person to be made a chief.\r\nNomination should first take place before all the other processes can follow. In other words, it should always precede the election, selection, enstoolment and installation of the chief. The last four processes depend on the existence of appropriate candidate. They can only be performed after nomination. It is obvious that if no person is nominated, there will be no person to be elected, selected, enstooled or installed as a chief.\r\nNomination provides the foundation on the basis of which the other processes will take place. If there is no nomination at all, or where the nomination is so flawed or faulty as to be void, there will be no basis for performing the other four processes. In effect, nomination is sine qua non to the making of a chief, under normal circumstances.\r\nAt customary law, there are clearly well settled procedures to follow in making the nomination. It is not everybody or anybody who can make a nomination. By custom, only accredited queen mothers are authorized to make nominations. The only exception to the rule on nomination by queen mothers is where the king makers take over the making of a chief after the failure or refusal of the queen mother to make the nomination.\r\nIn the instant case, all the parties accept the fact that the first respondent is the queen mother of Wenchi. In that capacity, she is the rightful person to nominate a candidate for consideration as Wenchi chief.\r\n \r\n\r\nThe facts show that after the judgment had been given by the Regional House of Chiefs in connection with the case filed by Nana Kusi Apea, the family had their first meeting. That was on the 6th June 2006. The object was to celebrate the victory and ostensibly to plan the way forward. There was another meeting in the evening of the same day. At that meeting, the queen mother was requested to give to the king makers the name of the next candidate to be considered as the chief. She asked to be given three weeks within which to make the nomination. On the following day at 10.00 am there was another meeting at which she was again asked to name a candidate. She repeated her request to be given three weeks to name the candidate. The next request for the candidate was made at another meeting at 3.00 pm on the 7th of June. She again asked to be given three weeks. By 6.30 p.m on the 7th of June, 2006, sounds were heard of "fontomfrom" which signified that a new chief had been selected. He was the first appellant. By the 1291 of June 2006, the chief had been installed.\r\nThat was immediately followed by the issuance of the petition in the Regional House of Chiefs which has culminated in the instant appeal. Throughout the case, the appellants had maintained that the failure of the queen mother to name a candidate when requested to do so was "unreasonable." They took the view that since the behavior of the queen mother was unreasonable, they were justified in going ahead to take over the nomination from her and to install another person for the position of a chief.\r\nThe simple answer to this issue is this: there is no doubt that the queen mother was given three chances to nominate a candidate. But all the three chances took place within a period of about twenty four hours — from 6th June to rh June 2006. For the nomination to be properly made, all interested royals should be given the chance to consider putting their names forward for the post of the chief, if they are qualified. Additionally, custom demanded that there should be consultations by the queen mother with her advisors as well as elders. There are several authorities on the need for consultations in such matters as will be found in R. S. Rattray, Ashanti Law and Constitution, 1929 ed. at pa 1443 and In Re Kwabeng Stool; Karikari and Anor. V Ababio & Others [2001-2002] SCGLR 515.\r\nConsidering the fact that the demand was made soon after returning from the court judgment and repeated at 10 am and 3 pm, it follows that the queen mother was given a period of about twenty four hours within which to name a candidate. It cannot be said that the queen mother was given sufficient time to make necessary consultations or give due chances to other royals to decide whether or not to put their names forward for consideration. The basic question is whether or not the period of twenty four hours given to the queen mother to perform that customary function was reasonable or unreasonable In the peculiar circumstances of this case, it cannot be said that the twenty-four hour period given to the queen mother to perform that customary function was reasonable. In the circumstances, the failure or refusal of the queen mother to make the nomination within twenty four hours could not be described as unreasonable.\r\n \r\n\r\nShe was not given adequate time to perform her functions. If she was not able to perform her functions properly, it was the nature of the demands made by the king makers which made it impossible for her to perform her functions properly. In effect, the king makers created the conditions which made it impossible to perform her functions properly and then turned round to complain and blame her that she did not perform her functions properly. That was unacceptable. Was the situation created different from the proverbial statement that ''you can give a dog a bad name so that you can get the opportunity to hang it?" That is unacceptable to a court of equity and conscience like this Supreme Court.\r\nWhen it became apparent to the appellants that the queen mother was not going to nominate a candidate within the time that they wanted, the king makers are alleged to have contacted the Obaapanin of the family by name Madam Abena Frema Atuahene. It is not clear if she nominated the first appellant for the position of Wenchi chief. As stated already, nomination is a duty conferred on queen mothers. For a woman to qualify to make a nomination, she must be a queen mother. If the one who performs the function is not a queen mother, she is not qualified to perform that function.\r\nObaapanin Frema Atuahene was not a queen mother. If she was contacted to nominate the first appellant as the chief and did in fact nominate him as such, she was not qualified to do so. That is the same as saying that she did not have the capacity to make the nomination or perform the function exclusively assigned to queen mothers. Her nomination was therefore invalid.\r\nAt every given time, there is only one queen mother in a place. There can be no proper situation where there is a queen mother at post and yet another person is chosen to perform duties assigned exclusively to the queen mother. If what the appellants did is endorsed, it will be a recipe for chaos: It will mean that it is possible to have a queen mother at post and yet king makers can bypass her and get another person to perform her functions for her, whether or not she has endorsed that move or delegated the other person to function for her.\r\nAt her installation, every queen mother including the first respondent swears to obey the call of the elders at day or night time, during rainy days or at non rainy days. It was alleged that the queen mother in the instant case was summoned by the elders but she refused to heed their calls. The failure to attend to the calls of the king makers constituted a ground for destoolment. Common sense alone dictates that if any queen mother including the first respondent is recalcitrant to, or refuses to heed the call of, the elders she provides a ground for her deposition. She should be deposed to pave the way for another person to be appointed as the queen mother and to perform the functions assigned to queen mothers. That was what happened in Republic v Akim Abuakwa\r\nTraditional Council; Ex pafle Sakyiraa 11[197512 GLR 115.\r\n \r\n\r\nAs was stated several years ago in Komey v Onanka [1962] GLR52 by 011ennu J (as he then was), at p53:\r\n"So long as the substantive holder of an office has not been removed, has not resigned or abdicated or died, the office cannot be vacant, and any purported installation of another person into that office is void ab initio."\r\nWe would add that so long as the substantive holder of the position of the queen mother had not been removed, had not resigned or abdicated or died, the office cannot be vacant for another person to be asked to perform her functions for her without her authority or consent.\r\nAll the parties in the instant case agree that at all material times up till today, the first respondent was and has remained the queen mother for Wenchi. It was not proper to ignore her and get another person to perform her functions while she continued to remain at post as queen mother and continued to operate as such queen mother. Obaapanin Frema Atuahene could not have properly performed the functions assigned to queen mothers while there was a sitting queen mother who had not delegated her so to do.\r\nThere is no doubt that where the queen mother is unwilling to co-operate with the king makers or reluctant to nominate a candidate for three occasions, the king makers can proceed to put forward a candidate as a chief. This is a customary law principle too well settled to require any elaboration. An instance will however be found in Republic v Boateng; Ex parte Adu-Gyamfi II [1972] 1 GLR 317. The taking over by the king makers should however occur only where the queen mother has been given reasonable opportunity to nominate the candidate but she has failed to do so. If the king makers in the instant case went ahead and put forward the first appellant as the chief because the queen mother did not name a candidate within twenty four hours, it was they who made it impossible for her to name the candidate by the haste in which they demanded the candidate from her. As stated already, they created a situation which disabled the queen mother from performing her duties properly. They could not turn round and take advantage of the situation which they themselves had created by using it to take away her functions from her.\r\nReferences were made to the fact in the past there had been occasions where chiefs had been nominated in the Wenchi Traditional Area without the involvement of queen mothers. The instances cited from the Committee of Enquiry into Wenchi Stool Affairs were situations where the queen mothers were given reasonable times and reasonable opportunities to nominate candidates and they refused or neglected to name the candidates. They are distinguishable from the facts of the instant situation where the queen mother was not given the opportunity to nominate a candidate because she was not given adequate time to confer with her elders or make the necessary consultations before announcing her choice of candidate.\r\n \r\n\r\nIt was argued that the court or judicial committee of the National House of Chiefs could not base its decision on the report of the Committee of Enquiry into the Wenchi Stool Affairs. That argument is untenable considering the statutory law on the issue. In the Courts Act, 1993 (Act 459), s 55(2), the courts are permitted to consider "reported cases, text books and other sources that may be appropriate" when deciding on the contents of customary law. The issue at stake in the instant case was the content of the customary law of Wenchi which was covered by the report in question. The Regional House of Chiefs was right in taking into account the report of the Committee on Wenchi Stool Affairs which was clearly one of the appropriate sources. By the Courts (Amendment) Act, 2002 (Act 620), 5 5, the judicial committees of the Regional House of Chiefs forms part of the lower courts of Ghana.\r\nThe argument that the process of nomination should be considered as having been started in 2004 when the last chief died or in 2005 when Nana Kusi Apea instituted his action is untenable. The case of Nana Kusi Appea lasted for nearly two years. Even if the process started in 2004 or 2005 and therefore could be said to have been pending, the king makers and all concerned knew pretty well that the lapse of time for the litigation had created a lull. Memories must have faded or waned and so people had to be reminded or interest rekindled somehow or the other. These could not be done within twenty four hours which the king makers gave to the queen mother to make the nomination. It should be borne in mind that the exercise was to nominate a chief for a whole group of people and not just a few individuals.\r\nThe attempt to single out Wenchi Traditional Area as having special customs different and distinct from other Akan customs on the powers of queen mothers and installation of chiefs was not successful. The custom on the role of queen mothers in the installation of chiefs which featured in the instant case was the same as the general Akan custom on such matters. Wenchi was part of he Ashanti Region until the establishment of the Brong Ahafo Region during the rule of the late Dr Nkrumah''s CPP Government. The creation of the separate Region did not create along it new concepts of customary law for that new creation to be used as the reason for the generation of new customs. The people of Wenchi were Akans within the Ashanti Region and their customs remained unchanged in spite of the creation of the separate Region. It was the same people who were within the Ashanti Empire who geographically were mapped out to belong to a different Region.\r\nOn the facts, the queen mother could not be said to have acted unreasonably merely because she did not nominate a candidate within twenty four hours of the king makers making their demand for a candidate. The consequence of not giving the queen mother sufficient time to nominate a candidate and proceeding without her involvement was that the first appellant''s election, selection, enstoolment and installation took place without a valid nomination.\r\nApparently, it is to forestall such hasty installations that the Chieftaincy Act, 2008 (Act 759), s 62(2) now contains the sweeping provision that:\r\n \r\n\r\n"(2) Despite any provision of this Act, an installation of a chief or queen mother is not valid unless, at least fourteen days before the date of the installation, public notice of it in accordance with the custom of the area, has been given."\r\nIf the installation of the first appellant had taken place after the coming into force of Act 759, it would not have been valid, considering the fact that the twenty-four hour notice or the seven-day notice of the installation (from 6th June to 12th June 2006) would not have satisfied the mandatory two weeks demanded by Act 759.\r\nIt has been explained already that where nomination is an essential part of the process for the making of a chief, like the Wenchi Traditional Area, the most fundamental process is nomination. All other processes are contingent upon a valid nomination taking place. Without a valid nomination, there can be no valid election or selection or enstoolment or installation.\r\nOn the facts of the instant case, the purported nomination of the first appellant was totally flawed, faulty, invalid and void. The ex post facto processes of election, selection, enstoolment and installation of the first appellant are irrelevant because they lacked the necessary foundation on the basis of which they could stand. As Lord Denning put it in\r\nthe celebrated Sierra Leonean case of Macfoy v United Africa Trading Company Ltd [1961] 3A11 ER 1169, at pages 1172-1173, PC:\r\n"If an act is void, then it is in law a nullity. It is not only bad, but incurably bad... And every proceeding which is founded on it is also bad and incurably bad."\r\nThat passage was appropriately adopted and applied in Mosi v Bagyina [1963] 1 GLR 337, Sc.\r\nIn the instant case, there was no nomination at all. If there was any nomination, it was void and incurably bad. All the processes which followed from that void nomination were bad and incurably bad.\r\nThe subsequent processes of election, selection, enstoolment and installation of the first appellant simply fall out of place and should be regarded as equally invalid and void.\r\nHaving taken this line of reasoning, it is not necessary to consider the propriety or otherwise of the processes which took place after the flawed nomination.\r\nFor the foregoing reasons, the appeal fails and is dismissed.\r\n[560]	S. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT\r\n \r\nV\r\n \r\n\r\n \r\n[SGD]	DR. S. K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	P. BAFFOE - BONNIE JUSTICE OF THE SUPREME COURT\r\n[SGD]		B. T. ARVEETEY\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD] V. AKOTO-BAMFO (MRS.) JUSTICE OF THE SUPREME COURT\r\nCOUNSEL:\r\nNANA ASANTE BEDIATUO FOR THE APPELLANTS.\r\nMUJEEB RAHMAN AHMED WITH HIM MICHAEL KWABENA ATTA-AGYEI FOR THE RESPONDENTS.\r\n\\_i;:\\1	;''Y\r\n', '../links/cases/Document.pdf', 'Yes', 'DR. DATE-BAH JSC, BAFFOE-BONNIE JSC, ARYEETEY JSC, AKOTO-BAMFO (MRS) JSC', '2011', 'supreme', '<i><font face="Times New Roman" size="2">Chieftaincy - Nomination - Election/Selection Enstoolment - Installation - Test of ''reasonableness'' and ''fairness'' of notice under customary law - Chieftaincy Act 2008(Act 759),s. 62(2) - Void Acts constituting nullity</font></i><br>', 'BROBBEY JSC', 'Civil', '', 'J2/1/2011', '', '', 'supreme', '2011-10-26', ''),
(519, 'GABRIEL KWAO BOSO    -   APPELLANT\r\nVRS\r\nTHE REPUBLIC                -   RESPONDENT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\n\r\n	\r\n\r\nGABRIEL KWAO BOSO	APPELLANT VRS\r\nTHE REPUBLIC	RESPONDENT\r\n	\r\n\r\nBrief Facts\r\nOn the 21st of January, 2009, we affirmed the decision of the Court of Appeal which substituted the appellant''s murder conviction for manslaughter. Furthermore, we enhanced the sentence of 15 years imposed on him to 21 year with hard labour and reserved our reasons. We now assign our reasons for those decisions that we took.\r\n..\r\nThe appellant appeared at the jury trial in the High Court Tamale, as the Accused, was convicted with another person for the murder of one Debora Biggor and sentenced to death, for conspiracy to murder and murder. On appeal, the Court of Appeal substituted his conviction of murder for manslaughter and imposed a sentence of 15 years with hard labour. It is from this decision of the Court of Appeal that the Appellant, has appealed to this\r\n \r\ncourt against both conviction and sentence on the following original and additional grounds, four in all.\r\nGROUNDS OF APPEAL\r\nThe Court of Appeal erred by convicting the Appellant for manslaughter when there is no evidence that he was responsible for the death of Debora Bigoor.\r\nThe Court of Appeal erred by not acquitting and discharging the Accused person (appellant herein) when the evidence on record is that he mutilated the corpse of Debora Bigoor which act cannot constitute manslaughter.\r\nSentence is excessive in view of the offence\r\nThe sentence did not take effect from the date of offence.\r\nThe deceased, who the appellant alleges was pregnant, visited the appellant, a Principal Medical Assistant in his bungalow at the Nakpanduri Health Centre on the 22nd of December 2000 complaining of abdominal bleeding. According to him, in order to stop the bleeding, he injected her with ergometrin and oxytocin and asked that she rest in his room until she felt better to go home.\r\nThe evidence however also reveals that the other person with whom the accused was charged with the two offences, and who was alleged to have invited the deceased out on that fateful night, which allegation he vehemently denied, rather found the Debora''s corpse on the bed of the 1st accused covered with a blanket. Alarmed at this discovery, and as a result of the close relationship between the two of them, he hired a motor bike and chased the appellant to Gambaga whereupon on being informed of his discovery, the Appellant promised to take care of the mess. The Appellant however did not report the case to the Police as promised, which compelled the 2" accused to report to the chief''s palace leading to his arrest by the police.\r\n2\r\n \r\n\r\n \r\nThe incontrovertible facts reveal further that, the appellant who administered dangerous drugs to Debora Bigoor, who was later discovered dead, undertook the grisly task of dismembering the dead body into pieces, crushing the skull and disposing of all these parts, together with the internal organs, namely the liver, heart, spleen, lungs, uterus, intestines and the brain in such a manner that those vital internal organs could not be retrieved to aid pathological tests in determining the exact cause of death.\r\nAlso undisputed is the fact that it was the Appellant who led the police to retrieve the dissected flesh from his manhole into which he had dumped those body parts, one hundred and fifty pieces in all, and the bones also from another pit he led them to.\r\nOn a critical examination of the record, we find that the appellate court dealt fairly with the appellant by examining the evidence with the greatest care and detail, the trial judge''s summing up and the verdict which was returned, namely the verdict of murder. Their Lordship''s returned a verdict of manslaughter in substitution, concluding that Debora''s death was not intentionally caused, The learned justices rightly in our view identified the pivotal issue in this case. Their Lordships reasoned that:\r\n"On (sic) thorny issue in this case undoubtedly relates to the cause of death. Certainly the medical report is not helpful because while the prosecution contended that the cause of death was the skinning and crashing of the deceased''s skull, the accused persons contended by their statements to the police and their testimonies in court that death had already taken place at the time when Al carried out his brutal exercise of crushing the body. What then caused the death? The only evidence available came from the 15t Accused who stated that he injected the deceased with some Class A drugs which belongs to the category of dangerous drugs in the medical classification of drugs. If the story of the accused persons is anything to go by one would say\r\n3\r\n \r\nthat the cause of death has not been found by the medical officer who conducted the autopsy. The result was that the jury was left with the duty of inferring the cause of death from their perception and evaluation of the totality of the evidence."\r\nThe Court of Appeal also relied on the English case of The Queen v Sharmpal Singh (1962) AC 188 PC to assist in resolving the issue of the cause of death. The Court thought that there were some similarities between the two cases and relying on the holding substituted the verdict of manslaughter with murder. This is what the court said:\r\n"In our effort to find solution (sic) to the issues in this case, my sister on my right brought the English case of The Queen v Sharmpal Singh (1962) AC 188 PC. In that case the accused a Kenyan was accused of murdering his wife. The medical evidence indicated that sexual intercourse had taken place just before death which was due to asphyxia caused by pressure on the chest applied simultaneously with pressure on the neck and the throat" The facts of the case were that the accused killed his wife while he was having sexual intercourse with her and there was an indicated (sic) that he used some degree of force in the process. After the death of the wife, the accused conceived a place of deception in order to make it appear that the wife had been attacked and robbed while on her way to the toilet which was outside the flat. He took the dead body out to the courtyard stabbed it in places with a knife and faked other signs of robbery. The prosecution naturally relied upon that as evidence of a crime which the prisoner was desperately anxious to conceal; the defence submitted that it was equally consistent with panic seizing the prisoner when he found his wife had died accidentally. In the instant case the ls accused story was that because of fear that he might be lynched by the relatives of the deceased, he decided to cut and did cut the body into parts and concealed them obviously with intent to conceal the death. He also\r\n4\r\n \r\nstated that he told a lie that the body had been buried in the farm of one Azumah. This similarity in the instant case and that Queen v Singh [supra] depicts the common behaviour of human beings. The medical witnesses were unable to say how severe and prolonged such pressure would have had to have been in either place to cause death. The accused person''s conviction of murder was reversed by the Court of Appeal of East Africa and insists (sic) place a conviction of manslaughter was substituted. The Crown appealed against the decision of the Court of Appeal of East Africa to the Privy Council in England which dismissed the appeal on the ground that:\r\nHeld: the inability of the medical evidence to speak with precision about the degree of force used together with other circumstances, opened up both manslaughter and accident as alternative possibilities requiring consideration and it was the duty of the trial judge to deal with such alternatives if they emerged from the evidence as fit for consideration not withstanding that they were not put forward by the defence"\r\nAfter a review of this not so well known English case, the appellate court concluded as follows:\r\n"In the instant case the 15t accused''s story was that because of fear that he might be lynched by the relatives of the deceased he decided to cut the body into parts and concealed them obviously to with intent to conceal the death. He also stated that he told a lie that the body had been buried in the farm of one Azumah."\r\nWe are in complete agreement with the decision of the court. On a critical examination of the evidence of the prosecution and the defence there is no doubt that the evidence leading to the death of Debora was clearly circumstantial. Also, two possible verdicts were open to the court and the\r\n5\r\n \r\n.	C:	:\r\n \r\nlearned justices are to be commended for examining these two alternative possibilities carefully.\r\nFrom the evidence led, it is not disputed that the Appellant caused the death of the deceased.\r\na.	The accused admits that he injected the deceased with two class "A" drugs, He also admitted that these are very potent and dangerous drugs and when given an overdose, could kill.\r\nb.	The Appellant further admits that he chopped up the body of the deceased and flushed it down a septic tank.\r\nc.	The internal organs which were essential to ascertaining the actual cause of death of the deceased could not be found and were never retrieved.\r\nThe clear legal principle established in the case of .R v. Onufrejczyk [1955] 1 Q.B. 388 is that in a trial for murder, the fact of death can be proved by circumstantial evidence provided that the jury were warned that the evidence must lead to one conclusion only, and the cause of death may be proved by such circumstances as render the commission of the crime certain and leave no degree of doubt, even though there is no body or trace of the body or any direct evidence as to the manner of death of the victim.\r\nClearly, the principle discernible in this case applies with equal force to charges of manslaughter. In a trial for manslaughter, the fact of death is provable by circumstantial evidence, the only caveat being that the evidence must irresistibly lead to only that one conclusion. The death may be proved by such circumstantial evidence even though there is no trace of the body or as happened in this instant case vital organs needed to help establish the specific cause of death cannot be traced. Provided the circumstantial evidence leaves no room for doubt and does safely lead to that one conclusion, a guilty\r\n6\r\n \r\nperson ought not to be set free on the sole ground that the exact cause of death has not been established by medical experts.\r\nThe plain evidence that I shall recount coupled with the inconsistent account of the statements given by the accused person of what happened on the fateful day to the police, the initial lies he told as to where the deceased had been buried, justifies a return of the manslaughter verdict.\r\nThe evidence led in this case was purely circumstantial evidence which led to one reasonable conclusion only- that the deceased died at the hands of the Appellant. His whole conduct must therefore be taken into account and questions posed as to why he would dismember the body and conceal the vital parts needed to prove the exact cause of death. His whole conduct is particularly relevant in establishing the main fact in issue.\r\nThe overwhelming evidence is that the appellant mutilated the corpse and cleverly disposed of the body parts. Why did he? The appellant claims that he dismembered the corpse for fear that he would be lynched by the deceased''s family. That reason does not sound plausible. But could the accused not have gone to the police station to report and ask for protection?\r\nIf he were indeed truly terrified of the deceased''s family, why did he have to use that gruesomely laborious and time-consuming process to dispose of the corpse, why did he not conceal the mortal remains by simply burying it, so he could save himself from being found out and lynched as he would want us to believe? Equally importantly, if he were not responsible for the cause of death, why did he deliberately completely destroy all traces of the internal organs, vital body parts which could have aided pathological examination, the clue to uncovering the cause of death? Certainly, it could only be because the appellant, having practised as a medical assistant for over 27 years with his average medical knowledge knew that with those vital organs, the exact\r\n \r\n7\r\n \r\ncause of death could easily have been determined and therefore the took steps to obliterate all traces of his involvement in the death of the young lady. All these circumstances could lead to no other conclusion than that the accused was responsible for the death of the deceased. He injected the deceased with dangerous class "A" drugs, the body was discovered in his bed, in his room, in his house and he dismembered the body and disposed of it to avoid detection. All of this circumstantial evidence is consistent with guilt.\r\nIn KUO-DEN ALIAS SOBTI AND OTHERS v. THE REPUBLIC [1989-901 GLR 203 Aikins JSC delivering the judgment of the Court held that\r\n"Failure to prove the cause of death was not necessarily fatal to\r\nconviction where, as in the instant case, there was sufficient evidence\r\nall u nde."\r\nThe court of Appeal, rightly in our view, in substituted the conviction of the lesser offence of manslaughter and we are not minded to disturb these correct findings.\r\nAPPEAL AGAINST SENTENCE\r\nArticle 14 (6) of the 1992 Constitution provides that:\r\n"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment."\r\nThese clear constitutional provisions enjoin judges, when passing sentence, to take any period spent in lawful custody before the conclusion of the trial into account. A legitimate question which might arise in any given case and which does indeed arise for consideration in this instant appeal is how do we arrive\r\n8\r\n \r\nat the conclusion that this constitutional mandate has been complied with? We believe this is discernible from the record. We would not attempt to lay down any hard and fast rules as to the form, manner or language in which the compliance should be stated, but the fact of compliance must either explicitly or implicitly be clear on the face of the record.\r\nAdmittedly, the more explicitly the court expresses the position that it has taken into account the said period, the better it is for everyone as it places the question beyond every controversy and leaves no room for doubt. Nonetheless, we think that any reference to the period spent in custody before the conclusion of the trial in manner that suggests that it weighed on the judge''s mind before deciding on the sentence should be sufficient.\r\nIn this instant case, this is what the court said regarding sentence:\r\n"Counsel for l accused: I plead for leniency. My lords may consider his age of 64 years. I pray that my lords be lenient and impose 5 years term.\r\nBy court: We impose a custodial sentence of fifteen years IHL from date of conviction by the trial court."\r\nThe record speaks for itself. Neither the appellant nor the court made the slightest reference whatsoever to the period the appellant had spent in custody before the trial was concluded. We also find no reference to the constitutional provision under reference or words, express or implied to the effect that it weighed on the minds of their Lordships. The only just conclusion in the circumstances of this case is that the learned justices failed to take Article 14 (6) into account before settling on the term of 15 (fifteen) years imprisonment.\r\nThe rule that appeals are by way of rehearing is not limited to substantive appeals only, but the sentences passed, provided an appeal lies therefrom. We have taken into account the period of 1 (one year) 3 (three) months (25th1 December 2000 - 26th March 2001) he spent in custody before conviction by\r\n9\r\n \r\nI\r\n \r\nthe trial court. But we have also taken into account all the circumstances surrounding this case including the appellant''s own confession of the barbaric manner in which he disposed of the dead body. Certainly, he should have used the experiences he has garnered over the years as a medical attendant much more productively and certainly more profitably for the good people he was supposed to serve than in the manner that he did in respect of Debora and in the grotesque and totally uncustomary manner in which he gruesomely disposed of her corpse. We did not find any mitigating circumstances justifying a sentence lower than that which we imposed.\r\nG.T. WOOD (MRS) (CHIEF JUSTICE)\r\n\r\nI agree\r\nS. A. BROBBEY (JUSTICE OF THE SUPREME COURT)\r\nI agree\r\n3. ANSAH\r\n(JUSTICE OF THE SUPREME COURT)\r\n \r\n\r\n\r\n \r\nI agree\r\nANIN YEBOAH (JUSTICE OF THE SUPREME COURT)\r\nI agree\r\nP. BAFFOE-BONNIE\r\n(JUSTICE OF THE SUPREME COURT)\r\nCOUNSEL:\r\nSIR DENNIS ADJEI FOR THE APPELLANT\r\nMATTHEW AMPONSAH (CHIEF STATE ATTORNEY) FOR THE RESPONDENT.\r\n\r\n', '../links/cases/Document 119.pdf', 'Yes', 'BROBBEY JSC, ANSAH JSC, ANIN YEBOAH JSC, BAFFOE-BONNIE JSC', '2009', 'supreme', '<font face="Times New Roman" size="2"><i>Constitutional Law - Sentencing - Courts enjoined to take period spent in lawful custody into account in imposing term of imprisonment after conviction - 1992 Constitution, art. 14(6).<br>Practice and Procedure - Rule that appeals are by way of rehearing applicable to sentences provided that sentence is appealed against - No hard and fact rules as to the form, manner or language in which compliance with constitutional direction in art. 14(6) is to be stated.<br>Criminal law - Manslaughter - Fact of death by manslaughter provable by circumstantial evidence provided that it leads to only one conclusion.</i></font><br>', 'WOOD C.J', 'Criminal', '', 'J3/2/2007', '', '', 'supreme', '2009-02-04', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(520, 'MULTICHOICE GHANA LTD           ....     PLAINTIFF/ RESPONDENT/ APPELLANT\r\n VRS\r\nTHE COMMISSIONER,INTERNAL\r\nREVENUE SERVICE                       ....    DEFENDANT/ APPELLANT/ RESPONDENT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\n- U	CORAM: WOOD (MRS), CJ (PRESIDING) \r\n\r\nDOTSE, JSC\r\nYEBOAH, JSC	MARCH, 2011 GBADEGBE, JSC\r\nAKOTO-BAMFO (MRS.), JSC\r\nCIVIL APPEAL	NO. J4/16/2010\r\nMULTICHOICE GHANA LTD	PLAINTIFF/RESPONDENT/APPELLANT\r\n-- to.	VRS\r\nTHE COMMISSIONER, INTERNAL\r\nREVENUE SERVICE	.........DEFENDANT/APPELLANT/RESPONDENT\r\n401.0 Income tax Decree 1975, (SMCD 5) s.4, 4A, 5 and 11(1): Determination of assessable income for taxation purposes- whether plaintiff is entitled to deduct the company''s expenses wholly exclusively and necessarily incurred in its television business from an interrelated source of income namely interest income- Aggregate income of a corporate body derivable from two or more sources could be subject to tax income. Interpretation of statutes— Tax statutes to be construed strictly with no implications.\r\nJUDGMENT\r\nU\r\nWOOD, CJ:\r\nThe action which triggered this appeal is described as a "friendly action", instituted in the joint interest of the two parties for a judicial pronouncement on a tax regimen that is said to have been in practice in\r\n \r\nthe jurisdiction for a long time without challenge from the business community, the people most affected by it. It is in this light that the appellant company described it, more or less in public interest litigation terms, as having purposely been instituted "for the development of the tax law" as it stood at the date the cause of action accrued. For the material period, the substantive law, which both parties were agreed governed the action and which the parties therefore relied on in support of their respective cases, is the Income Tax Decree 1975, (SMCD 5), as amended by the Income Tax Amendment Law 1983, PNDCL (61).\r\nBy the time the trial court came to deliver its judgment however, SMCD 5 had come to be replaced by a new law; The Internal Revenue Act, 2000 (Act 592) and its subsidiary legislation LI 1675. The passage of the new law, Act 592, was intended to plug any legal loopholes that this dispute may have unearthed. Under Act 592, investments incomes, such as the interest income earned by the appellants in this instant case, is amenable to tax independently of a company''s other sources of income. Pertinently, the passage of the Act 592 during the pendency the action did not however render the action or the issues arising therefrom moot, as the law governing the action remained the SMCD 5. The litigation thus remains live, not only in relation to this instant appeal, but other actions based on the old law, SMCD 5, and which may, for one reason or the other be pending in the courts.\r\nThe facts which led to the fiscal dispute are in themselves simple. The appellants, a pay television company, broadcasts programmes to its customers, as is to be expected, not gratuitously, but for subscription fees. For the period 1994-1999, it deposited its revenue generated by way of subscription fees in an interest income yielding account, and earned profits thereon. The respondents describe the profits so earned\r\n \r\nas colossal. Nonetheless, the appellant claimed per its financial statement for each fiscal year that, it recorded losses in respect to its business. The legitimate question is how did this come about? The appellant company arrived at this conclusion by grossing up income from the television business proper and the interest earned on the subscription fees and deducting all allowable heads of expenses wholly incurred in its main line television business to declare the net losses.\r\nThe respondent commissioner, as the tax administrator, took exception to the methodology adopted by the appellant company to reckon net losses. He was of the opinion that although the appellant was engaged in two separate, but in some way interrelated lines of business, namely, pay television and interest income using revenue from the television business, the company was nevertheless not entitled in law to aggregate the two incomes, reckon it as their assessable income, and then deduct expenses exclusively incurred from its television business from it. He took the position that the law allows the deduction of expenses only if they wholly or directly relate to the production of the particular income under consideration, and further that it was clearly wrong for the two incomes to be grossed up to determine the company''s assessable income. He thus rejected the appellants'' method of assessment, assessed tax from the two separate sources independently of each other and plainly disallowed the deduction of expenses of the company''s core business, that is, the pay television business from the interest income.\r\nThe appellants disputed the assessment and commenced proceedings in the High Court to challenge its legality for the period 1994-99 and prayed further that these be set aside on the main ground that the disputed assessments had the effect of wrongfully taxing the interest income separately.\r\n \r\nThe trial court found for the appellants, basing its decision on the principal ground that the interest income is not severable from profits and loss accounts of the appellant company''s core business operations for the period in question. Their Lordships of the Court of Appeal upheld the trial court''s finding that, notwithstanding that the company keeps two sources of income, the sections 4 and 5 of SMCD 5 permit the deduction of the company''s main line business expenses from the interest income. In spite of these positive primary findings however, their Lordships nevertheless expressly reversed the final decision on the company''s tax liability, setting the stage for this appeal.\r\nTwo additional grounds A and B were tagged on to the original ground that their Lordships were "in error in holding that that the income in question was taxable." The additional ground A, which in any event is not in substance different from the original ground, impugns the decision of the Court of Appeal as not being supportable in law. The second additional ground B, namely that "the holding of by the court of Appeal that "the appeal succeeds in part is not comprehensible" does not, in my view, constitute a valid ground of appeal. It appears to havc, been provoked by the appellate court''s reversal of the order of the trial court and the conclusion that the appeal succeeds in part. I do appreciate the appellants concerns and his specific reference to the final conclusion on the outcome of the appeal. More disturbingly, from the records for the day judgment was delivered; the court, per its order, gave the respondent more than they won. Instead of the partial success, the court order read:\r\n"The appeal is allowed. The order made by the trial court in respect of the interest is hereby set aside."\r\nIn any event, notwithstanding the apparent inconsistency or contradiction in the judgment, and final orders of the court, I do not\r\n \r\nthink the appeal ground B as formulated, is permissible under the rules or even at all necessary. Under the Supreme Court Rules, 1996, Cl 16, rule (4), grounds of appeal are expected to be set out concisely, and without argument or narrative. More importantly, by rule (5), aside from the well known and oft used umbrella ground of appeal- the judgment is against the weight of evidence- a ground of appeal which is vague, or general in terms, or fails to disclose a reasonable ground of appeal is not permitted.\r\nA ground of appeal which questions the comprehensibility of a finding of law or fact, a ruling or decision cannot, in my opinion, constitute a valid ground of appeal in terms of the rule (4) of the Cl 16, and ought properly to be struck out under rule (5) of the Cl 16. I would have thought that in those cases, where a party''s only complaint is that it finds an order or a decision incomprehensible, unless the rules of court expressly prohibits, and I know not of any such rule, that the proper procedure would be to seek clarification or directions from the court which issued the order or decision complained of, by invoking its inherent jurisdiction. On the other hand, as in this instant case, where there are other substantial grounds on which the decision of the court may be questioned, then it is difficult to see the utility of such a ground as a separate and distinct ground of appeal, since the success of the others would necessarily impact the final orders of the court, including the impugned order, that is the alleged incomprehensible order. In other words, the success of those other grounds will lead automatically to a correction of all contradictions and inconsistencies, and thus perfect the grand conclusion of whether the appeal succeeds or fails.\r\nThis appeal will therefore be examined in the light of the original ground and additional ground A, both of which in any event, also fail to identify concisely but with specificity, the errors of law complained of.\r\n \r\nAt the trial, three primary issues that the court thought were of critical importance is whether the appellant company operated two separate business lines, run two separate sources of income and therefore it to deduct expenses wholly, exclusively and necessarily incurred in its Television business, as a source of income from another source of income, namely interest income." The trial court found that while it is true that the company had two separate sources of income, indeed the interest income formed only a fractional portion of the "full amount of income" of the company. The trial judge thus reasoned that on the peculiar facts of the case, "the interests it earned from its savings at a Commercial Bank are declared not capable of being severable from the profit and loss of accounts of the plaintiffs company from 1994 to 1999." The learned trial judge thus concluded: "The plaintiff''s (sic) investments it made by investing sums of its money into savings account with a commercial bank for which it earned some interests were "required for the purposes of" the plaintiffs (sic) company and the interest it earned from the investment must be brought into the profit and loss account of the company."\r\nIt was on these bases that the trial court declared the corporate tax liability imposed on the appellants a complete nullity.\r\nTheir Lordships of the Court of Appeal rightly affirmed the finding that the appellants had two sources of income. In actuality, given the state of the pleadings, that fact was never in dispute. Thus, the real and indeed only matter in controversy between the parties and indeed as was rightly pointed out by the appellate court was, "whether or not upon a true and proper interpretation of section 4, 4A, 5 and 11 (1) of SMCD 5 as amended the plaintiff is entitled to deduct the company''s expenses wholly exclusively and necessarily incurred in its television\r\n \r\nbusiness as a source of income from another source of income namely; interest income."\r\nTheir Lordships cast the issue thus:\r\n"Whether it would be legal for it to deduct any losses or expenses incurred from the Television business from the (sic) interest income earned from that source."\r\nThe court answered this question in the negative and set aside the tax liability imposed by the respondent commissioner. The learned justices based their final conclusion on three critical findings. First, that the law only allows for the deduction of expenses which a Company has wholly, exclusively and necessarily incurred "in the production of the income". Second, that as urged by the appellant company, all the moneys generating the interest income were derived from the Television business. Third, notwithstanding that it keeps two sources of income, that all expenses incurred in generating that income qualify as money expended in the their mainline business activity, namely, the pay television business\r\nThe court proceeded further to provide details of what is allowable under sections 4 and 5. They are:\r\n"(1) That all outgoings and expenses wholly, exclusively and necessarily incurred by the Company (MULTICHOICE GHANA LTD) during the period, being 1994-1999 can be legally deducted from the interest income if only that company can prove that it wholly exclusively and necessarily incurred them in the production of that income (namely the interest)."\r\nFrom the state of the pleadings, these questions still remain the core issues. I have been compelled to emphasise this fact for one simple\r\n \r\nreason, and it is this. Appellant counsel was compelled in his reply, to provide answers to a question which plainly never arose for consideration and was introduced for the first time in the respondent''s written statement. Counsel submitted:\r\n"In this case we are concerned in identifying the revenues that would constitute the income not the deductibles ... lt is not the appellant''s contention that interest earned on the deposits into the saving accounts be deducted in computing the assessable income. On the contrary, it is the appellant''s case that its interest income be added as revenue or income in computing the assessable income."\r\nThis line of argument was undoubtedly provoked by the respondent''s contention that: "whatever monies were deposited in the interest yielding account could not be included in determining appellants assessable income since the invested monies did not constitute outgoings or expenses incurred in the production of the income as provided for in section 4 of SMCD Income Tax Decree 1975 (SMCD 5)..."\r\nRespondent Counsel contended further that the SMCD 5 "draws a distinction between interest earned as an income ...and interest paid on loans which is an allowable expenses or outgoing." The latter, but not the former, they maintain is deductible, provided it meets the requirement of s.4 of SMCD 5. Interest on the investment income, they argue, is not an expense or an expenditure item on the company''s operation, and cannot therefore be a deductible expense.\r\nI am in entire agreement with appellant counsel that in this case "we are concerned with identifying the revenues that would constitute the income not the deductibles." In other words, the central issue is what constitutes assessable income for the purposes of taxation. Is it made up of only the subscription fees or additionally the income interest? As\r\n \r\nalready noted, respondent''s contention marks a noticeable shift from their original stand. The appellants, as plaintiffs, had pleaded:\r\n3 Under sections 4,10,and 11 of the Income Tax Decree 1975 (SMCD 5) the defendant was empowered to levy tax on the plaintiffs aggregate income from subscriptions received to its pay television programmes and interests accruing on such subscriptions deposited in the bank."\r\nThe appellants unreservedly admitted the correctness of the appellants stated position. They averred as per the paragraphs 3, 10 and 11 of their statement of defence:\r\n"3 Paragraph 3 of the statement of claim is admitted.\r\n10 Defendant says that it is the aggregated income from the two lines of business activities of the plaintiff as shown in paragraph 8 of statement of the statement of Defence which were taxed as required by section 11 (1) of the income Tax Decree of 1975, SMCD5.\r\n11 Plaintiff''s averment contained in paragraph 5 of the statement of claim that defendant insists on taxing its sources of income separately is denied. The incomes from the two sources of the plaintiff were in fact aggregated and taxed according to law."\r\nThese plain admissions under paragraph 11 actually reflect the correct position of the law. The si ss2 of SMCD 5 provides for the taxation of income accruing in, derived from, brought into, or received in respect of gains or profits from any business, interest or discount. I think that under the 11(1) of SMCD 5, it is the aggregate income of a corporate body, the assessable income, and which income could be derivable from two or more sources, as in this instant case, that is subject to tax. The sli (1) provides:\r\n \r\n"Except in the case of any income of an employee derived from his employment and except as otherwise provided by this section, the income of any person for each year of assessment from each source of his income (hereinafter referred to as "assessable income") shall be the full amount of his income from each source for the year immediately preceding the year of assessment, notwithstanding that he may have ceased to possess any such source or that any such source may have ceased to produce income."\r\nMy conclusion has been dictated by the strict constructionist approach to the interpretation of statutes reserved for fiscal legislation. The general principle is that tax statutes are to be construed strictly. Viscount Simon LC in the Privy Council case of Canadian Eagle Oil Company Limited and The King [1946 AC 119 at 140] relied on Rowlatt J''s formulation of the rule in Cape Brandy Syndicate v IRC [1921 1KB 64, 71]. He observed: "In the words of the late Rowlatt J whose outstanding knowledge of this subject was coupled with a happy conciseness of phrase, "in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used."\r\nI am not disposed to straining the words of SMCD5 to conclude, as argued by the respondent that, on the facts, the two incomes, so in extrinsically linked cannot be grossed to constitute the company''s assessable income. It bears emphasis that as in this instant case, where the interest income of a company not another (separate and distinct entity, but the same company) accrued in the course of their business; it constitutes part of the company''s revenue and consequently, at law, forms part of its assessable income. Apply these principles to the s.1 ss\r\n \r\n(1) and 11 of SMCD5, and the conclusion I arrive at is that upon a true and proper construction, the respondents argument must fail.\r\nThe final question is whether the appellant company is entitled to deduct expenses wholly and exclusively and necessarily incurred in its television business from the interest income. Differently stated, could all outgoings and expenses wholly and exclusively and necessarily incurred by the plaintiff during 1994-1999 in respect of its pay television, be legally deducted from the aggregated or assessable income and a fortiori the interest income. The answer to this would settle the legal arguments proffered by the two sides in respect of the two grounds of appeal.\r\nThe respondent contends that by the provisions of the s. 1 (2), 4 and 5 of SMCD 5 the expenditure of the pay television cannot be deductible from the interest income. They read:\r\n"4 For the purpose of ascertaining the income of any person other than an employee, for any period from any source chargeable with tax under this Decree there shall be deducted all outgoings and expenses wholly and exclusively incurred during that period by such person in the production of the income..."\r\nHaving read particularly the s. 4 of SMCD5, I endorse the findings and conclusions on this issue, arrived at by the trial court and the reasons in support thereof, and which findings were indeed affirmed by the appellate court. The interest income is not severable from the company''s profit and loss accounts and must be brought into it. Since this income, which I have demonstrated constitutes part of the appellant company''s assessable income, were drawn from the pay television, it stands to reason, that the company''s outgoings and expenses incurred in generating the entire pay television business,\r\n \r\nqualifies as allowable expenses and consequently, by virtue of s.4 of SMCD5, can be subsumed under and is indeed deductible from the interest income.\r\nI wholly affirm the decision of the trial court. I set aside the judgment of the court below and substitute in its place the judgment of the trial court.\r\n[SGD]	G. T. WOOD [MRS.]\r\nCHIEF JUSTICE\r\n[SGD]	J. V. M DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	N. S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	V. AKOTO-BAMFO [MRS.]\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL:\r\nKOFI OHENE ABANKWAH FOR THE RESPONDANT,\r\nKWAMI ADOBOR FOR THE APPELLANT\r\n', '../links/cases/Document (120).pdf', 'Yes', 'DOTSE, JSC. YEBOAH, JSC. GBADEGBE, JSC. AKOTO-BAMFO (MRS.), JSC', '2011', 'supreme', '<i><font face="Times New Roman" size="2">Income tax Decree 1975, (SMCD 5) s.4, 4A,5 and 11(1): Determination of assessable income for taxation purposes-whether plaintiff is entitled to deduct the company''s expenses wholly exclusively and necessarily incurred in its television business from an interrelated source of income namely interest income- Aggregate income of a corporate body derivable from two or more sources could be subject to tax income. Interpretation of statutes- Tax statutes to be construed strictly with no implications. </font></i><br>', 'WOOD (MRS), CJ', 'Civil', '', 'J4/16/2010', '', '', 'supreme', '2011-03-16', ''),
(521, '1. BEN OKEKE 2.PRINCE UMEH a.k.a SAKORA 3.JOSHUA CHUKU\r\n4. EMEKA OSENDO   ... APPELLANTS\r\nVRS\r\nTHE REPUBLIC    ... RESPONDENTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA, A.D. 2012\r\n(:0RAM: AKUFFO [MS.I, ).S.C. (PRESIDING)\r\nADINYIRA [MRS.], JSC\r\nOWliSH [MS.], j.S.C.\r\nYE BOA I I, J S.C.\r\nGBADECI3E, J.S.C.\r\nCRIMINAL APPEAL NO.J3/2/201 I\r\n30T11 MAY, 2012\r\n1.	BEN OKEKE\r\n2.	PRINCE UMEH a.k.a SAKORA\r\n3.	JOSHUA CHUKU	...	APPELLANTS\r\n4.	EMEKA OSENDO\r\nVERSUS;\r\nTHE REPUBLIC	.•.	RESPONDENTS\r\nCriminal law (/ilt! Procedure - Committal Proceedings - Act 30 s. 187 and .si 188 - Nan compliance would not cause miscarriage ofjustice - Alibi - Failure to give statutory notice - Act 30 s 131 not complied with by Trial Judge - No misdirection ofJury - Act 30£ 406(2) - Whether objections should have been raised earlier - NRC!) 323 S. 13(1) and £16 - Burden of Proof—Jury directed that onus is on Prosecution\r\nIUDGEMENT\r\n \r\n\r\nSOPIIIA A. IL AKUFF0 (MS), JSC.\r\nThe appellants were charged with the offences of conspiracy to commit robbery contrary to sections 23(1) and 149 of Act 29, and robbery contrary to section 149 of Act 29. At the Sekondi Iligh Court, they were tried on indictment and convicted of the offences. They were each sentenced to twenty-live (25) years 1111, on each count to run concurrently. On appeal to the Court of Appeal, their conviction and sentences were affirmed. The appellants therefore brought a further appeal to the Supreme Court.\r\nBrief Background\r\nAccording to the Prosecution, the appellants are Nigerian citizens now resident in Ghana. On 21'''' December 2000 they arrived in Takoradi from Accra and continued to Tarkwa. They arrived in Tarkwa at about 10:00pm where they were led by a man by name C. K. to Akoon Small Mining (''ompany. Armed with a single barrel shot gun, an axe, a jack knife and a quantity of aminunition. the appellants together with certain other persons attacked the security officers on duty. The appellants beat up these officers and afterwards made away \\ vith a gold weighing machine valued at 012 million (old Cedis) and a quantity of gold concentrate. The appellants then continued to Wasa-Manso where they attacked the home of a prosecution witness and his family. The appellants hit the witness on the head and he fell down unconscious. They subjected his wife to severe beatings after which they stole two travelling bags. a mobile phone and its charger, one keine cloth and a sum of 01.1 million. The appellants packed the items into the man''s vehicle and fled but abandoned the vehicle at a point after radio announcements had been made about the robbery. Fortunately the appellants were spotted by Some town -folks and were chased and apprehended and handed over to the police.\r\nThe grounds of appeal to the Supreme Court may be summed up as follows:-\r\n1. There was non-compliance with Section 187 and 188 ()I'' the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) were not complied with therefore the committal proceedings were a nullity''\r\n2\r\n\r\n\r\n \r\n2.	The amendment to the kill of Indictment after the close ol'' the ease !r the prosecution has occasioned a substantial miscarriage of Justice to the appellant\r\n3.	l''herc was misdirection by non direction of the jury as regards alibi since the appellants claimed they had not been at the crime scenes\r\n4.	FUlre to take the pleas of the Appellants in respect of count 3 was flital to the Respondents ease\r\n5.	The Court ol'' Appeal erred when it I''ai lcd to consider the time ftictor in the two robberies at ''l''arkwa Kwaahedu and Wasa M anso.\r\n6.	The Court of Appeal erred when it held that the summing up is faultless Mien the trial high court judge misdirected himself'' by non-direction of'' the jury as to what constitutes a ''reasonable doubt'' in criminal trial.\r\nBeginning with the first ground of appeal. Section 187 of Act 30 explains the process for taking the statement of'' the accused person in court during committal proceedings, whereas section 188 discusses the subject of witnesses for the defence. Though the appellants'' first ground of appeal is couched broadly under sections 187 and 188. in his written submission befOre the Court, their counsel only discussed section 187 of Act 30.\r\nSection 187 provides as follows:-\r\n(I) ''The Court shall. befOre deciding whether to commit the accused for trial,\r\naddress to the accused the f011owing words or words to the like ef''lct: \r\n"l3elOre deciding whether to commit you for trial. I wish to know if'' you have anything to say ill answer to the charge. You are not obliged to say anything but if'' you have an explanation it may be in your interest to give it now. What you wish to say will be taken down in writing and if you are committed for trial it may be given in evidence. II'' you do not give an explanation your failure to (IC) SO may be the subject of'' comment by the judge. the prosecution or the d e fl. nec."\r\n3\r\n1:\r\n\r\n \r\n(2) ''The Court shall comply with the rules set out in the Sixth Schedule as to the taking or a statement.''\r\nIt is notable that the Section makes it clear that ''wortA to tlw like effect'' may be used in addressing the accused person on the matter.''\r\nThe said Sixth Schedule of'' Act 30 sets out the rules kw taking the Statement of the Accused and provides that:-\r\n[he Court shall refer the accused to the requirements of section 131. in relation to alibis, and if necessary explain to the accused in simple terms the meaning of an alibi. The court should then tell the accused that if the accused''s answer to the charge is an alibi the accused may give a personal explanation now, although the accused inay not yet be able to name the witnesses by whom the accused proposes to prove it. giving notice of the witnesses later, within the time specified in the section.\r\n2. Where a statement already made by the accused and intended, according to the summary of evidence, to be put in evidence at the trial of the accused appears to the Court to be inconsistent with the statement HOW beimg made, the Court should draw the accused''s attention to the inconsistency and invite the accused to make the correction desired in the\r\naccused''s present statement.\r\nAccording to Counsel lbr the appellants, the appellants denied the offence and explained to the trial court how it was that they found themselves in Manso and were arrested by the youth. Consequently, he contends that the Sixth Schedule should have been complied with and the meaning of an alibi should have been explained to them at the committal. Counsel, therefore, submits that there was a thilure to do so which has occasioned a substantial miscarriage of justice being meted out to the appellants at that stage.\r\nCounsel for the appellants also contends that the conclusion by the magistrate that •there is sufficient evidence to successfully prosecute the accused persons'' leaves much to be desired of an impartial judge.\r\nAs was observed by both counsels in this matter, there were no statutory statements of the appellants attached to the record of appeal. I lowever, as was\r\n4\r\n\r\n\r\n \r\n\r\nalso noted by counsel lbr the respondent, at page 98 of the record of appeal. it is oil that, helbre the Prosecution closed its case, the statutory statements of the appellants were tendered in evidence as exhibits V. W, X and Y. this clearly indicates that statutory statements of the appellants were indeed taken at the committal proceedings. I lowever since they were not attached, it is hard to tell if sections 187 and 188 were complied with. (This includes whether or not\r\nthe provisions oil	and oil	statements made by the accused were\r\nfollowed). the record is quite clear that oil July. 2003. the day the statements were added to the record of proceedings in the I ligh Court, the appellants were represented by Counsel, who was present in court. Flowever, counsel herein has not given any indications to the court what efforts. if any, he made to ensure that the statutory statements were included in the record of'' appeal.\r\nNow, the judge''s duty in committal proceedings is amply spelt out in section 184(4) of Act 30 i.e. the duty of the court to determine whether there is a case for the accused to answer. The case of State v Bisa 119651 GIR 389 affords further clarification  of the scope of this duty and explains that the duty of'' the Magistrate is to find out whether it prima the ie case has been made against [he accused; or to determine the credibility of the accused or his witnesses since no one testifies oil hefure the coni mittal court. In that case it was held by the court that:-\r\nif after due examination of'' the summary of evidence the magistrate comes to the conclusion that, there is evidence, even a scintilla, to support the offence of which the accused stands charged. lie must commit.\r\nIt is not imperative for a magistrate to hear the evidence of witnesses oil before he may commit, as has been held in Kwakye v The Slate 119651 C LR 647 and the State v Director of Prisons; Ex Parte Schumann 119661 CLR 703. In this regard it is noteworthy that, in this case, the Chairman of the Community'' ''Irihunal noted. after perusing the Hill of Indictment and summary of evidence and all relevant documents and preliminary evidence, that there was sufficient evidence to successfully prosecute the accused persons.\r\nAdditionally. Section 406(l) of Act 30 states as fbI lows:\r\n5\r\n\r\n \r\n(I) Subject to this Part a finding, sentence or order passed by a court of'' competent jurisdiction shall not be reversed or altered on appeal or review on account\r\n(a) of an error, omission or irregularity in the complaint, summons, warrant, charge. proclamation, order, judgment, or any other proceedings before or during the trial or in an enquiry or any other proceedings under this Act, or\r\n(b)olthe omission to revise a list of jurors in accordance with Part Five, or\r\n(e) of a misdirection in a charge to a jury,\r\nunless the error, omission, in-egularity, or misdirection has in fact occasioned a substantial miscarriage of justice.\r\nThus, even assuming that sections 187 and 188 of Act 30 were not complied with, from the record of this case, such an omission cannot be said to have occasioned such a miscarriage of justice as is contemplated by section 406(1) of Act 30. This is because, as already noted above, the Community Tribunal, after it had considered the Bill of Indictment and summary of evidence and other relevant documents found that there was sufficient evidence to prosecute the appellants in the I liuh Coutt 0\r\nRegarding the second ground of appeal, Section 232(1) of Act 30 allows for the amendment of an indictment at any statue during the trial of an accused person. The Section reads as Ibllows:-\r\n-Where before a trial on an indictment or at any stage of the trial, it appears to the Court that the indictment is defective or that an order should he made for a separate trial, the Court shall make an order for the amendment of'' the indictment that the Court thinks necessary to meet the circumstances of the case, and on the terms that the Court considers just unless, having regard to the merits of the case, the amendment cannot be made without injustice.- (emphasis mine)\r\nthence, the law is quite explicit that an amendment to a kill of Indictment may\r\nbe made at any stage of the trial unless. having regard to the merits of the case,\r\n6\r\n\r\n\r\n \r\n\r\nthe amendment cannot he made without in In this case, it is noteworthy that, as the record shows, counsel for the appellant did not object to the amendment being made. In any event, nowhere in his Statement of Case herein has counsel for the appellants been able to demonstrate 10 the court the manner in which the amendment occasioned an injustice to the appellants. It is not sufficient [or counsel for the appellant to simply make a sweeping statement that a substantial miscarriage of ustice to the appellants has occurred, without showing how it was caused. This ground of appeal, therefore, fails.\r\nInterestingly enough. though counsel for the appellants formulated his third ground 01 appeal as ''misdirection by non direction of- the I ury as regards alibiS in his arguments in support of this ground of appeal, he merely harps hack to the first ground of appeal that certain salient procedures under section 187 of Act 30 were not followed.\r\n''Ihough the first ground of appeal has, hereinheibre, been sufficiently dealt with, certain other elements are worth mentioning in our consideration of ground three.\r\nSection 131 of Act 30 provides as follows: \r\n( I) Where an accused intends to put forward as a delnce a plea of alibi. the accused shall give notice of the alibi, to the prosecutor or counsel with particulars as to the time and place and of the witnesses by whom it is proposed to prove,\r\na.	Prior, in the case of a summary trial, to the examination of the first witness tor the prosecution, and\r\nb.	Prior, in the case of a trial on indictment, to the sitting of the trial Court on the date to which the case of trial has been committed For trial.\r\n''(2) Where the notice is given the Court may, oil	application of the\r\nprosecution, grant a reasonable adjournment\r\n7\r\n\r\n \r\n"(3)	Where the accused puts forward a defence of alibi without having given notice, the Court shall call on the accused to give notice to the prosecution of the particulars mentioned in subsection (1) forthwith or within the time allowed by the Court and after the notice has been given shall, if the prosecution so desires, adjourn\r\nthe case.\r\n"(4)	Where the accused refuses to furnish the particulars as required the case shall proceed but evidence in support of a plea of alibi is not\r\nadmissible in evidence."\r\nThe procedural requirements, where the defence of alibi is intended to be or is raised, are thus quite clear and specific. In the case of Afwireng v The Republic 119721 1 GL14 270, the appellant, in his defence, set up alibi, and contended that, contrary to what the prosecution alleged. he was elsewhere and not at the scene of the crime. lie, however, failed to give notice of his defence of alibi and so the evidence was excluded. Upon his conviction, he appealed, contending that the failure to give notice was not fatal to the defence. The appeal came before I lis Lordship Edmund liannerman sitting as an additional High Court judge. The Court allowed the appeal and held that assuming that the defence of the appellant was one of alibi (as the learned magistrate found) the above section requires in such a case the trial magistrate to call upon an accused person to file a notice of alibi when such a defence is raised without notice of the particulars of such alibi having been previously given to the prosecution to adjourn the case for such purposes, if necessary. It is only when the court has complied with this requirement and the accused has Failed to Furnish the details of his alibi as directed that any evidence of the alibi is shut out and excluded. Thus, where the court has failed to comply with subsection (3) of Section 131 by calling on the accused to give particulars of his alibi, no issue of a refusal to furnish particulars would arise and subsection (4) of Section 131 will not apply. In such circumstances, unless the prosecution calls the attention of the Court to the non-compliance, or applies for particulars of the defence of alibi raised to be given, the trial will simply proceed normally.\r\nIn the matter before us, though the trial judge Wed to comply with the\r\nrequirements of subsection (3) of'' section 131, in that he failed to call on the\r\n8\r\n\r\n,	I	10,,	,	I	11'',k\r\n \r\naccused persons to give notice to the prosecution of'' the particulars of the alibi they were raising, he did not exclude the evidence. Rather, lie considered the evidence in his summing up to the jury. He asked the jury to consider the statements of'' the accused persons and their testimony belbre the court and to convict or acquit based on all these (see pages 161 and 162 of the Record of appeal). the third ground of appeal is, therefore, quite untenable as there was no misdirection of the jury. concerning the appellants'' deflnce of alibi,\r\nConcerning Ground 4 of the appeal. it is very clear at Page 21 of'' the Record of'' Appeal that the pleas of the appellants were taken as regards counts one and two. Though there is no record of their pleas having been taken on count three, which is in respect of the robbery incident at Adum l3enso, the Hill of'' Indictment clearly shows that the appellants were charged with one count of'' conspiracy to commit robbery, and two counts of robbery. In addition the record of proceedings shows that the appellants were tried in respect of'' count three as evidence was led on this count. The prosecution at the trial led evidence through PW 1 and PW2 to prove the guilt of'' the appellants as regards the robbery incident at Adum l3enso.\r\nAs shown at page 144 of'' the Record of Appeal, the jury returned a verdict of guilty on each of''the charges against the accused appellants. Also at page 145 ol'' the Record the trial judge sentenced each appellant "on each charge to twenty- live years 1111, to run concurrently."The learned judge did not specify whether the appellants were sentenced on all three counts on the Hill of'' Indictment or on the two counts they pleaded to as appears on the record. However I lis Lordship in his summing up to the jury considered the testimonies ol'' all the prosecution witnesses including PW I and PW2 and directed the jury to do same.\r\nDuring the trial counsel (hr the appellant did not raise any objection when evidence was led on count three. Section 406(2) of Act 30 stipulates that:-\r\n''(2) In determining whether any error, omission, or irregularity has occasioned a substantial miscarriage of'' justice the Court shalt have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings."\r\n9\r\n\r\n \r\n\r\nIn Dochie v The State 1196.51 GLR 208 the appellant was charged with, inter alia, attempt to commit crime contrary to section 18(1) instead of'' section 18(2) of Act 29. 1 le was convicted by a circuit court and appealed to the I ligh Court alleging that he was convicted under the wrong provision. The Court held that the objection to section 18(1) could have been taken in the court below by counsel. Since no miscarriage of justice had been occasioned by the mistake, the appellant could not rely on it as provided under section 406(2).\r\nFurther in the case of Adabele and Others v. The Republic 11984-861 1 GUI 478-481 the pleas of the accused persons were not taken during the trial. lowever the prosecution witnesses were cross examined by the counsel fOr the appellant. Subsequently counsel for the appellants made a submission of no case and lost and also had the opportunity to address the court at the close of their case. I lc never at any of these stages raised any issue against the fact that the pleas of the accused persons were not taken. The I ligh Court sitting at Bolgatanga held that the fact that the counsel participated in the trial from its inception to the end shows that the appellants were being tried on a plea of not guilty. The court was of the view that the appellants'' case was not prejudiced in any way and as such, on appeal, the conviction of the appellants could not be interfered with solely'' on the ground that their plea was not taken. This stance is entirely reasonable since, essentially, a plea serves the purpose of enabling the accused person to declare his/her intention to place in contention a particular charge made against him/her.\r\nIn this appeal. it is clear from the record that the appellants were afforded ample opportunity to contend with the Republic concerning count three. Counsel ''Or the accused indeed cross-examined PW1 and PW2 who had testified for the\r\nprosecution in connection with the said count. Consequently, there is no basis for us to interfere with the conviction of'' the appellants, merely because their pleas were not taken at the trial with regards to count three. Ground lour is. therefore, baseless.\r\nOur only reaction to Ground 5 of the appeal herein is that there is nothing on record to show that the prosecution''s case indicated that the crimes occurred at the same time. The appellants had also raised this ground before the Court of Appeal, and it was, in our view, sufficiently considered and dealt with. Reading\r\n10\r\n\r\n\r\n \r\nthe judgment of the Court of Appeal, the learned Iris May-Brown, JA, noted that:-\r\n"The prosecutor has led evidence to show that the two robberies took place at dilThrcnt times. '']''here was evidence of'' the car stolen 1mm the second robbery and abandoned not too far away from where the accused persons were apprehended by the town IbIk. The kente and the gold weighing machine, retrieved from the accused persons were proved to have been stolen li''oni the two places where the robbery occurred.\r\n"Ilie suggestion as to the long distance between the two towns and the incapability o1 the accused persons to have been present in the two areas was made by counsel for the defence during cross examination ol'' a prosecution witness. No evidence was offered to support the suggestion and to cast doubt on the case of the prosecution. A suggestion made during cross examination does not constitute evidence and the judge is not obliged to direct the matter to the jury fOr their consideration. Kughienu v. The Republic 119691 CC 160, CA."\r\nIn any event, since the appellants were pleading alibi, it would not in any significant manner help their case either way if the robberies were committed at different times or at the same time. Thus this ground also tails.\r\nWith regard to the sixth ground of appeal. the record shows that, in his summing up to the Jury, the learned trial judge gave the lbllowing directions:-\r\n"''[''lie generally accepted principle of criminal trials in Ghana is that the prosecution must discharge the burden of'' proving the accused guilty of'' the offence charged to your satislhction and must do so beyond all reasonable doubt. That means the prosecution must not leave you in any doubt at all about the guilt of'' the accused ... so that even before you come to the end @1'' your deliberations, you must feel completely satislied with the case fOr the prosecution that unanswered by the accused, you could convict him of the charges otherwise your verdict lOr each accused or any of them should he not guilty ... There/bit'' he/öre You even ewisuler the defence o/ //ic occuseel Persons, va/i lutist firs/ he salts/icc!\r\n11\r\nI.	I\r\nLI'''',!	\\,H,,,, .L	tILL!]\r\n \r\n•	.\r\n•\r\nthat the prosecution has succeeded in takitig their cave outside the ambit o/specu/at/on and conjecture. " (emphasis mine)\r\nThe Nvidence Act, 1975 (NRCD 323), in sections 11)10 17, stipulates the law on the burden and standard of proof in civil and criminal cases. For the purposes of the sixth ground of appeal, one only needs to lbcus on sections 13(1) and 16 which provide as follows:-\r\n-13( ) In any civil or criminal action the burden of persuasion as to the commission by a crime which is directly in issue requires proof beyond a reasonable doubt.\r\nThe Court on all proper occasions shall instruct the jury as to which party bears the burden of persuasion on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of'' a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.''"\r\nThe rationale for the strictures codified by these provisions is well known and was expressed by Olennu .ISC in Oteng v. The State I19661 GLIZ 355 in the lbIlowing terms:-\r\n"... the citizen too is entitled to protection against the State and that our law is that a person accused of a crime is presumed to be innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubt."\r\nWe are in no doubt, whatsoever, that the direction given by the learned trial judge to the .jury was clear enough to show the .jury that the onus was on the Prosecution to establish its case against the accused persons. I le also directed them clearly enough concerning the standard of proof required of the Prosecution. He gave them clear enough direction to prevent them from shifting the burden of proof'' from the Prosecution to the defence unless the Prosecution had met the standard of proof required of it. Thus, the judge adequately placed\r\n12\r\n\r\n\r\n \r\n• the jury iii a strong position to understand the duty cast on them and as such the judge rightly directed the jury. There was no misdirection or non-direction whatsoever, the direction was indeed impeccable and fully served the purposes of the law: it cannot he limited in any way.\r\nFor the loregoing reasons, the appeal huts in its entirety and the judgment oh'' the Court of Appeal is hereby ahlirmed.\r\n(SGD) S. A. B. AKU FF0 (MS)\r\nJUSTICE OF THE SUPREME COUR\r\n(SGD) S. 0. A. ADINVIRA(MRS)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) R. C. OWUSU (MS)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) N. S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\n13\r\n \r\n\r\n \r\n\r\n\r\n \r\nCOUNSELi\r\nAUGUSTINE OBUOR FOR THE APELLANTS.\r\nMARINA APPIAH-OPARE (PRINCIPAL STATE ATTORNEY) FOR THE REPUBLIC\r\n\\&#61550;.\\\r\n \r\n\r\n', '../links/cases/Document (125).pdf', 'Yes', 'ADINYIRA (MRS.), JSC, OWUSU (MS.), J.S.C., YEBOAH, J.S.C., GBADEGBE, J.S.C.', '2012', 'supreme', '<b><font face="Times New Roman" size="2">Criminal law and Procedure - Committal Proceedings - Act 30 s. 187 and s. 188 - Non compliance would not cause miscarriage of justice - Alibi - Failure to give statutory notice - Act 30 s. 131 not complied with by Trial Judge - No misdirection of Jury - Act 30 s. 406(2) - whether objections should have been raised earlier - NRCD 323 s.13(1) and s.16 - Burden of Proof - Jury directed that onus is on Prosecution.</font></b><br>', 'AKUFFO (MS), J.S.C', 'Criminal', '', 'J3/2/2011', '', '', 'supreme', '2012-05-30', '');
