Commercial Law Index

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 case concerned the parameters for determination when faced with a second appeal, as well as the elements to establish a plea of res judicata.

It was found that there are 4 instances when concurrent findings can be interfered with namely: 1) where the findings of the trial court are unsupported by evidence on record or where reasons in support of the finding are unsatisfactory, 2) where a principle of evidence has been improperly applied, 3) where the findings are based on a wrong proposition  of law, and 4) where the finding is inconsistent with crucial documentary evidence on record.

In the second appeal it was argued that the matter was res judicata. Thus, that the matter has already been determined between the same parties before a competent court. The essential elements to establish for a plea of res judicata are: 1) there has been an earlier decision on the issue, 2) there has been a final judgment on the merits and 3) the same parties in both suits. The court found that the matter was not res judicata as although premised on similar facts with the same parties, the merits of the action differ. Furthermore, the court found that the decision of the lower court was perverse and unsupported by the evidence.

Appeal succeeds.

The case related to a declaration of title of a piece of land that was in dispute because both parties claimed ownership.

The court highlighted an appeal seeking to overturn a lower court’s decision must show that the court’s decision was wrong in law, did not take into consideration evidence or made findings in the absence of evidence. In essence a trial court decision can be overturn if it was not based on well-founded reasoning.

Further when suing on behalf a group of people, the party must clearly indicate so and failure to do so may affect that parties’ legal right to sue. Once you have indicated in what capacity you’re instituting a claim, you cannot subsequently change this.

The court in this case upheld and allowed the appeal because the Court of Appeal permitted the appeal that was not based on evidence before it. Further it was a fatality for the defendants to endorse their counterclaim by indicting they were doing so in a representative capacity.

The court was called upon to review a decision of the Court of Appeal that held that a lawyer without a valid licence to practice cannot practice law nor prepare any court process. The court below held that any process originated by a lawyer without a licence is null. The majority decision of the court held that where a lawyer endorses a writ and court process, but he did not have a licence at the time, he cannot be said to be functioning as a lawyer and not capable of endorsing the court process. A litigant who fails to verify the legal capacity of is lawyer cannot claim miscarriage of justice because the writ endorsed by an unlicensed practitioner is without legal effect.

The dispute related to dishonored cheques that were issued for payment of supplies. After several cheques were dishonored, the respondents went to the premises of the appellant to recover the remaining products. The trial court award general, special and nominal damages. However, the Court of Appeal reduced the general damages. They also held that nominal damages should not be awarded when there was a failure to prove special damages.

The court dealt with three issues relating to a potential error of law when the Court of Appeal substituted their judgment for that of the trial High Court, failure by the Court of Appeal to exercise their discretion judicially and issuing a judgment against the weight of evidence.

The Supreme Court held that the Court of Appeal could not set aside the trial High Court decision when there was no appeal against the relief granted by the High Court or challenge against the findings made. The Court of Appeal can only set aside aspects of the judgment that have been appeal against. The Court of Appeal can only reverse a trial court if the trial court made orders that were oppressive, excessive or contrary to the law.

Litigation was commenced to recover a debt from a company incorporated in Australia that was wholly owned by a Ghanaian company. The High Court granted judgment in favour of the appellant for the amount due. The judgment was appealed because the respondent proposed a scheme of arrangement to reorganise their debts with their creditors. but the appellant subsequently the appellant filed a petition to liquidate the company as it was unable to pay off its debts. The court granted to wind up the company. However, the Court of Appeal granted a stay of execution of the winding-up before the respondent appealed the original decision of the High court to pay the amount due.

The appellant did not succeed with the appeal because they did not prove that the Court of Appeal failed to take relevant matters into consideration, considered irrelevant matters of misapplied the law.

The court was called upon to answer whether or not a breach of the constitutional provision on privacy relating to proceedings to remove a Judge renders the contents of a publicized petition to remove the judge null and void. In this case the petition to remove the judge was released to the media. The court held that only when the Chief Justice or investigating committee decides there isn’t a prima facie case against the judge can the impeachment proceedings be brought to an end. The public disclosure of a petition to remove a judge is not a ground to end the process to remove a judge as this can only happen in the two instances outlined previously. When allegations are brought against a judge, they must be investigated and public disclosure of the petition does not negate the need for an investigation.

The High Court gave a summary judgment in favour of a party relating to a declaration of title to a house, payment of accumulated rent and an order of ejection. The Court of Appeal overturned the judgment but invoked supervisory jurisdiction to make an order compelling issuing of land title to the interested party.

The court held that the interested party could not apply for the supervisory jurisdiction for a judgment that was overturned – and this was impermissible. A party is not permitted to undermine a decision of an appellate court overturning a decision of the trial court to apply for supervisory jurisdiction when the judgment to be supervised has been set aside. For these reasons the application to set aside the supervisory orders was set aside.

The matter involved a dispute concerning the nature and validity of the transaction between the defendant, a government-owned limited liability company, and Karpower. The matter revolved around the interpretation given to the phrase ‘international transaction’ in article 181 of the Constitution, a phrase whose effect is that the transaction required parliamentary approval.   

The first question that faced the court concerned jurisdiction. The court relied on ample case law to arrive at the position that the Supreme Court is not a clearing house to assume jurisdiction which otherwise belongs to other lower courts. It noted that jurisdiction would only be exercised where it is manifestly clear and obvious that the cases are deserving.

Substantively, the court then had to consider the legal nature of the defendants in order to ascertain whether they were the alter ego of the government. After scrutinising the relevant transactions, the court reasoned that it was clear that the defendants, as juristic persons, had the capacity to enter into the transactions they entered into with the relevant institutions without seeking parliamentary approval as stipulated in article 181 (5) of the Constitution.

The court concluded that given the established interpretation of ‘international transaction’ and the legal nature of the defendants, the nature of transaction between the first defendants and Karpowership does not constitute an international business transaction with a government. It therefore did not require compliance with article 181 (5) of the Constitution.

The court dismissed the application.

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.

In this case the appellant sought a reversal of an order made by the Court of Appeal overturning the lower court’s judgement. The appellant argued that the Court of Appeal had no authority to consider the appeal, because it was improperly constituted as it was filed out of time.

The Supreme Court considered whether the Court of Appeal (a) had jurisdiction over the matter despite the delayed filing of the appeal and (b) whether the appeal had merit to succeed.

The Supreme Court held that time limitations can be extended under certain circumstances and at the discretion of the court. In this case, however, the defendant (applicant before the Court of Appeal) did not provide any reasons for his delay nor a defence to the claim that the appeal was filed late. Consequently, the Court of Appeal had no jurisdiction to determine the merits of the appeal. The Supreme Court set the judgement aside and restored the High Court judgement.

In this appeal the applicant contested a decision made by the Court of Appeal not to dismiss an appeal despite the fact that written submissions were submitted after expiry of the 21 day period provided by the Court of Appeal Rules (C.I.19). The applicant argued that the Court of Appeal failed to take into consideration rule 20 (1) and (2) of C.I.19. The Supreme Court held that it can only interfere with the decision if it has been shown that the lower court did not exercise its discretion judicially. The Court of Appeal must have taken rule 20(1) into consideration because it waived the non-compliance with that very rule. Rule 20(2) had already been repealed and was, therefore, no longer applicable. The Supreme Court, therefore, had no reason to doubt that the Court of Appeal exercised its discretion judicially and, consequently, dismissed the appeal.

The dispute emanated from a decision of the appeal court to overturn compensation award given to the appellant by the High Court.

The appellant was offered 6.19 acres of land by the respondent under a lease agreement. The respondent after 10 years was ordered to cede the land leased to the appellant back to its original owners. The respondent took 5 acres from the appellant leaving him with 1.6 acres of the land which was given to him for free. After 11 years the appellant successfully claimed compensation for the 5 acres taken, a decision which was later overturned by the appeal court.

The appellant was now appealing against the decision to overturn the compensation award. He argued that the trial court erred by concluding that the 1.6 acres given to him was compensation. He further contended that there was no evidence to show that as the respondent’s employee he manipulated the system to allocate himself land. The respondent maintained that there was evidence to show that the 1.6 acres allocated to the appellant was compensation and that he manipulated the system to allocate himself large pieces of land.

In deciding the matter, the court held that the appellant was the lessee and not the owner of the land in dispute. He was not entitled to any compensation. It ruled that the 1.6 acres that he received was more than enough compensation. It further ruled that the appeal court never said the appellant manipulated the system. The appeal was thus dismissed.

The appeal arose from the appellant’s contention that the judgment by the Court of Appeal was against the weight of evidence.

The court relied on the rule that the plaintiff in the contest bears the burden of production of evidence and persuasion to ground its assessment of the status of the International Rom (appellant). It reasoned that given the evidence, the true position was that the email which was received from the Chief Compliance Officer of Mauritius was intended to be an official record complying with the Act 772 and was thus relevant and admissible. However, considering the conflicting evidence, the court concluded against placing any probative value to the email and thus dismissed the contention that the company had ceased to exist.

The court also applied the rule in Turquand’s Case, formulated in the case of Royal British Bank v Turquand (1856) 6 EI & BI 327 which has been codified and amended in ss 139-143 of the Companies Act, Act 179 (1963) and common law principles to assess the party the defendants contracted with. It reasoned that since International Rom Mauritius and International Rom Ghana had been regarded as one entity by the first defendants, mistake could not be argued to escape the contract.

Finally, the court assessed the provisioned evidence particularly the cross examination to concluded that the claim of failure to allow for challenge of the evidence lacked merit. In addition, the court also held there was an undertaking to make the payment by the first defendant, a commitment which the first defendant did not honor. It was therefore urged by the court that the defendants pay the outstanding amounts plus interest to the appellant.