Commercial Law Index

The application was lodged as a response by the applicants (General Legal Council) to a decision of the Court of Appeal setting aside orders granted to them allowing for the suspension of the respondent from legal practice. The applicants sought leave to appeal against this decision.

In response, the court began its adjudication from the position that a special leave application is not concerned with substantive issues but rather with whether it satisfies the case law principles that there must either be (a) a prima facie error on the face of the record, or (b) a general legal principle arising for the first time, and or (c) that the Supreme Court decision on the appeal would be advantageous to the public.

The court assessed the grounds propounded by the applicants which in essence included allegations of fundamental errors that go to jurisdiction and which a determination by the Supreme Court would be advantageous to the public. The court reasoned that these issues were so important that a decision on them would have a public good. It therefore decided to allow the application.   

The plaintiff sought a writ (being a written order of the court to abstain from acting) against the defendants. The plaintiff asked the court to find that the court below did not have jurisdiction to determine matters involving the interpretation and enforcement of the Constitution. The defendants in turn raised a preliminary objection to the plaintiff’s writ.

This case considered the preliminary objection raised in objection to the writ and whether the court had jurisdiction to entertain the plaintiffs action calling for a writ against the defendants, thus did the plaintiff properly invoke the jurisdiction of the court and whether the proper parties were before the court. 

The court found that in determining whether its jurisdiction had been properly invoked, they were obliged to look at the preliminary objection of the writ before them.

The plaintiff argued that a single judge lacked the jurisdiction to determine matters involving the interpretation and or enforcement of the Constitution.

The court found that its jurisdiction had been properly invoked. On the second issue the court found that the Plaintiff had capacity to bring the application before this court. 

The court found that the first defendant was properly cited and was a party in this application, however the second defendant was not a party to the action as the plaintiff did not show any act or omission which would justify the plaintiff citing him.

The second defendant was therefore struck out.

Preliminary objection overruled.

The court considered an application by way of notice on motion for an interlocutory injunction restraining the respondents from enforcing the National Media Regulations pending the court’s determination of the substantive suit. The substantive suit related to declarations that the requirement for prior authorization of consent as well as the criminal sanctions were contrary to the Constitution.

The court confirmed that whereas in public law, a court ought to be slow in granting interlocutory injunction, it still has the power to grant one. This is especially so in exceptional cases where there is a need to restrain enforcement of legislation that is being challenged on substantial grounds. The courts will grant an injunction to avoid irreparable injury being caused by the enforcement of a potentially unconstitutional piece of legislation that is being challenged. On this basis, the application was granted.

The court was called upon to determine who was entitled to ownership and possession of property in dispute between two purchasers. One purchaser claimed the property because they executed a writ of fieri facias (writ of fifa) attaching the property to recover a debt but this was not executed. A writ of fifa is a document issued by the court for the purpose of enforcing a judgment debt by permitting a judgment debtor to have a legal right to seize the losing party’s property to recover the amount due to them

Sometime later another party attended an auction, another purchaser purchased the same piece of property.

The court held that the sale at the auction was illegal because of the principle of nemo dat which provides that the first person to get title is entitled to that property notwithstanding any subsequent sale. Therefore even though the writ of fifa has expired, the party who got judgment get title to the property as judgment debtor.

The court considered an application for a declaration on how to interpret an order made by the Supreme Court on the subject of a register of voters. The court provided that a party can apply to clarify a previous decision of the court to make it easier to understand, especially in cases where part of the judgment is ambiguous. The court has inherent jurisdiction to clarify a judgment, but such clarification cannot be used to make a substantive change to the existing decision. An application to clarify a judgment cannot be used to ask the court make the same order again as this would amount to suing a party again for the same cause.

The court in this case clarified the issue of what was meant by ‘delete’ names from the register of voters, but refused to clarify the judgment to the extent that would amount to modifying or altering the substance of the judgment.

The matter involve a ruling of contempt of court against the third and fourth respondents for their conduct in attacking the Chief Justice with an accusation of bias.

The court emphasised the importance of judicial independence as enshrined in the Constitution as a necessary element in maintaining judicial dignity and effectiveness, attributes that are crucial in upholding the democratic enterprise. Any attempt to disrespect the courts therefore amounts to an attack on the role of the courts and the community at large.

The court also emphasised the right to criticise the judiciary and its circumspection in exercising its power to charge citizens with contempt. However, should the conduct be of such gross a nature as to indicate a calculated attack, as in the present matter, the court would not refrain from the charge.

The court, however, acknowledged the harsh nature of the summary powers to charge for contempt, powers it accepted required circumspection. Nevertheless, the court considered the need to send a message to remind people to refrain from crossing the line between utilizing their freedom of expression and attacking the dignity of the court. It also invoked the principles of state policy which place duties to the citizenry to ensure the exercise of their freedoms upheld fundamental democratic principles. In the view of the court, the contemnors in question had dismally failed the above and therefore they were sentenced for contempt.

The matter involves an application brought by judicial service staff’s union (plaintiff) over a dispute about their pension scheme and benefits.

First the court had to determine whether the phrase ‘all persons serving in the Judiciary’ applies in exclusion of non-bench judicial service staff and whether the plaintiff’s members were constitutionally subjected to the CAP 30 pension scheme or the SSNIT scheme. First, it established the consistent meaning of ‘judiciary’ in the constitution as that body that exercises judicial power and administers justice. The constitutional definition of judiciary therefore did not include non-bench judicial staff. The effect thus is that the plaintiff’s members were not placed under the CAP 30 pension scheme since they did not belong to the constitutionally-delineated class constituting the Judiciary. It should be noted, however, a dissenting opinion took on a more expansive approach that included the non-bench staff. Nevertheless, the court concluded the placing of the plaintiff’s members on the SSNIT scheme was not wrongful or in constitutional violation.

On the questions of discrimination, the court reasoned that as employment matters are purely contractual, the conduct of differential treatment in employment conditions did not amount to discrimination. It did, however, in holding for the plaintiff, decry the inconsistencies with best practices in remuneration management and constitutional procedures.  

The court also held for the plaintiff by finding that the President could not delegate his function under arts 149 and 158(2) as this would be unconstitutional. Further, it also found ss 213(1)(a) and 220 of Act 766 to be unconstitutional to the extend it conflicts with constitutional provisions.

This case considered whether employees who were claiming compensation for loss of employment were ‘permanent employees’ in terms of an employment contract. The case additionally concerns whether the Court of Appeal had misdirected itself with regards to the weight of evidence.

The plaintiffs contended that they were employed by the respondent as permanent employees in terms of an employment contract. The respondent subsequently went into liquidation and the plaintiffs claimed for loss of compensation.

The court held that for a plaintiff to be entitled to benefits as an ex-employee, they should spell out clearly the terms of their employment as contained in their contract of employment and then prove their entitlements under those terms. The plaintiffs assume the burden of persuasion and producing evidence, however, it was clear that they were unable to produce a written agreement which spells out their terms of employment.  The court found that any contract of employment for more than six months which was not in writing was unenforceable.

The plaintiffs had been employed for 10 and 12 years respectively, but failed to obtain letters of appointment. It became apparent that they were only employed for the duration that they were engaged on a particular voyage.

The court found that to be a permanent employee one would need to prove employment through the use of a contract of employment, which was in writing and could be used as evidence to illustrate the terms thereof. In this case, the plaintiffs were only employees when the respondents required their services. Furthermore, the court held that the Court of Appeal had not misdirected itself with regards to the weight of evidence as the plaintiff failed to properly prove their claim.

Appeal dismissed.

In this case, the appellate court was called upon to reverse concurrent findings and conclusions on evidence by two lower courts on grounds of fraud. The court observed that courts should be slow in coming to such decisions unless the decision is not supported by evidence, based on a wrong proposition of law, inconsistent with undisputed evidence and unjustified.

The court determined whether the court of appeal erred in holding that the appellant failed to prove that the order of mandamus was obtained by fraud. The court applied the rule of evidence that when fraud is alleged even in civil proceedings it must be proved beyond reasonable doubt.  Additionally, court considered the rule: for a judgment or an order of a court to be impeached on grounds of fraud, one must prove the alleged fraud and that the judgment cannot stand if the fraud is taken out.  The court held that the appellant failed to prove this ground and cautioned courts of the tendency by litigants to use fraud as a cover up when praying for reversal of concurrent judgments.

The court also determined whether the court of appeal erred in holding that a court may make an order that affects a person without hearing that person in judicial review proceedings, and held that it was within their discretionary powers. The court also noted that the judgment of the prior court remained undischarged thus the court could not pronounce against its validity.

Accordingly, the appeal was dismissed.

The case concerned the extent of the National Media Commission’s (‘the Commission’) legal mandate under the National Media Commission Regulations (‘the Regulations’). It was argued that certain provisions amounted to censorship, and control and direction of mass media communication as it required an operator to seek authorization of content prior to publication on a media platform, and were thus unconstitutional.

The issues for determination were: whether the original jurisdiction of the court was properly invoked; whether the cumulative effect of the impugned provisions amounted to censorship; whether the cumulative effect amounted to control and direction over professional functions and operations; and whether the Standard Guidelines issued under the regulations were vague and unconstitutional.

The jurisdictional issue concerned whether the plaintiff sought a striking down of provisions without scrutiny to assist the court in its determination. This issue was to be determined on an examination of the relief sought and the pleadings. What was important was that both raised a case cognizable under the Constitution, which the plaintiff’s documents did.

On the second issue, the court held that some form of censorship was permissible under the Constitution; however where censorship laws are introduced they must be justifiable by being reasonably required in the national security interest, for public order, public morality, or the protection of the rights of another. What the second defendant wanted was akin to prior restraint. With reference to case law, the court held that prior restraint was not legally justifiable. Law must be precise and guide future conduct, which it was not in this case. The regulations were contrary to the Constitution.

On whether the Commission was empowered to impose criminal sanctions, it was held that Parliament could not delegate this function to the Commission.

As regards the third issue, the court had to define ‘direction or control’ in the context of the Constitution. Control or direction as used in the provision had the same meaning and effect as telling operators what they should or should not do in their publications. This function belongs to the media, not the Commission.

The plaintiff’s claim was upheld.

The applicant sought an order setting aside the judgement of the trial court due to a procedural flaw.

The court had to consider whether the trial court acted without jurisdiction when it struck out the application for a stay in proceedings.

The court held that the trial court, in not carrying out the required procedure when it struck out the application, acted without jurisdiction.

The court stated that the trial judge erred by allowing the respondent to make oral application and ought to have informed the respondent to file an application to relist the motion that was struck out. The court went on to say that it was settled practice that a formal application is required to restore motions that were previously struck out. As a result, the trial court, in deviating from settled practice acted without jurisdiction.

Consequently, the application for certiorari succeeds and the ruling of the trial court was quashed.

This was an appeal against the decision of the Court of Appeal to vary the decision of a single justice who had granted an application for stay of execution on terms. The single justice had ordered the respondents to pay half of the total judgment debt including half of the costs to the appellant until the final determination of the appeal.

The Supreme Court considered whether the respondents proved breach of the rules of natural justice and held that the Court of Appeal erred in varying the order of the single justice, since it failed to consider the plaintiff’s affidavit that revealed the respondent’s choice to be absent for trial.  The Supreme Court also considered whether the full bench of the Court of Appeal exercised their discretion judicially in ordering the defendants to pay the appellant’s medical bills (GH¢30,000.00). The court observed that the amount was not based on the record and was insignificant thus prejudicial.

Accordingly, the court set aside the decision of the Court of Appeal and restored the decision of the single judge in its entirety. The remainder of the judgment debt was stayed for three months on condition that the defendants fulfill all the conditions of appeal.

This appeal is in relation to whether an order of non-suit was the appropriate order. The appeal originated from an institution of an action against the respondents. The action was centred around an order for damages, due to an unlawful dismissal from employment. The respondent disputed these claims as they contended that the contract was lawfully terminated. 

The courts below granted judgment in favour of the appellant. However, in the Court of Appeal a piece of evidence belonging to the appellant was expunged on the ground that those pleadings did not constitute evidence. An order of non-suit was made by the Court of Appeal. It is that order of non-suit that gave rise to this appeal at the Supreme Court.

The appellant submitted that there was a breach of the fundamental right to fair hearing as the non-suit was instituted before hearing. Furthermore, he claimed to have satisfactorily proved his case for damages on the now expunged evidence and that this was therefore not a case in which an order of non-suit ought to have been made.

This court resolved this issue in the appellant's favour and the judgment of the Court of Appeal was set aside. Accordingly, this appeal was remitted to the Court of Appeal to be heard by a different panel.
 

This case concerned the appellant's entitlement to notice of meeting prior to removal as company director. The appellant claimed relief for a declaration that his purported dismissal was a repudiatory breach of his contract of employment and that he was denied the right to a notice meeting pursuant to sections 236, 262 and 266 of Companies and Allied Matters Act (CAMA).

The counsel for the respondent contended that against the background of the appellant's contention the trial court had no jurisdiction to entertain the complaint. Given the above claim of the appellant, he should have approached the Federal High Court for the resolution of his complaint of the breaches and not the trial court.

This court held that the dismissal of the appellant was not lawful because of lack of due process. However, the trial court below lacked jurisdiction and since the trial court lacked the jurisdiction to enter the matter, the lower court, equally, lacked the jurisdiction to deal with the appeal before it. Thus, the appeal was found to be unmeritorious and was struck out for want of jurisdiction.