Commercial Law Index

In this appeal, court determined whether the representations made by the respondents in their letter of 3rd October 2013 constituted promissory estoppels with regard to the auction that took place on 30th September 2013. The court noted that the principle of promissory estoppel relates to representations of future conduct and not past conduct and held that the principle was not applicable to the facts of the case. The court also determined whether the application was made out of time. The court applied the rule in Order 45 rule 10(1) of the High Court (Civil Procedure) Rules, 2004: that such an application should be made 21 days from the date of the sale. The appellant made the application on 8th November 2013 while the auction took place on the 30th September 2013. The court held that the application was incompetent since it was made out of time. Accordingly, the appeal was dismissed and the judgment of the court of appeal was affirmed.

This appeal considered whether the respondent was barred from re-litigating a matter concerning a dispute on the ownership of property based on the concept of res judicata. Res judicata dictates that once a matter is decided by a competent court it cannot be reopened in subsequent litigation.

The court applied the rule that an appellate court must evaluate the evidence on record as if the case is being heard afresh.  The court noted that the plea of res judicata was not explicitly set out by the appellant in the High Court though it was raised as a ground of appeal to the court of appeal. The court observed that the previous courts failed to consider the plea. Base on the evidence on record, the court was satisfied that the properties described by the respondent n her writ  of summons had once been litigated and held that the respondent was estopped from re-litigating the issue.

Accordingly, the court set aside the decisions of the High Court and Court of Appeal and deemed it worthy to consider the other grounds of appeal.

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.   

This case concerned whether the Supreme Court had the authority to quash a judgment handed down by the court below. The applicant contended that the court below lacked jurisdiction to interpret articles 127 (3) and 161 of the 1992 Constitution. The court considered the difference between interpreting a constitutional provision and applying a constitutional provision. It was found that all courts and adjudicating authorities are obliged to apply the provisions of the Constitution. Therefore, it would be a denial of justice to parties if constitutional provisions are not considered by a court of law or any adjudicating authority. Furthermore, it is only when the issue of interpretation arises that a court must stay its proceedings and refer the matter to the Supreme Court. In this matter, the court below was not called upon to interpret any provisions of the Constitution but merely to ascertain where the Registrar was a holder of a judicial office and whether the holder of a judicial officer had judicial power. The court found that Article 161 of the Constitution did not define judicial power. Therefore, not all judicial officers exercise judicial power. The court found that the court below had not committed and error that destroyed its jurisdiction, thus there was nothing warranting the Supreme Court to be called upon to quash the judgment handed down by the court below. Application dismissed.

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.