Commercial Law Index

The Supreme Court was approached to review a clarificatory decision previously delivered by the Supreme Court’s ordinary bench.

First the court considered whether it had jurisdiction to review its previous decision. It relied on rule 54 of Supreme Court Rules 1996 (C.I 16) which grants it the power to review decisions under certain circumstances. It rejected the argument that a clarificatory decision is not a decision under rule 54. The court therefore concluded that it had the power to review its previous decision.

The court then had to consider whether exceptional circumstances existed and have resulted in miscarriage of justice. It held that where a decision fails to consider a statute, case law, fundamental principle or procedure, exceptional circumstances which justify review of the decision exist. In this case, the clarificatory decision was based on a repealed statute and failed to consider the applicable statutory provisions. Consequently, court reviewed and rectified its previous decision to align it with the correct statutory provisions on the computation of interest on judgement debts.

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 appeal, the court determined the principles applicable to appeals against concurrent findings.  The court noted that the second appellate court ought to be slow in reversing such findings but may do so if they are not supported by evidence, based on a wrong proposition of law, inconsistent with undisputed evidence and unjustified.

Firstly, the court determined whether the appellant had proved the amount of rent on a balance of probabilities. They applied the rule that for a statement to be admitted as an admission by the opponent, it has to leave no doubt as to such admission and held that the standard was not met by the appellant. Thus, the court conceded with the decision in the prior court that the appellant did not lead evidence in support of his claim of outstanding rent. However, the court found that the appellant proved that he was entitled to an amount that was not pleaded. The court applied rule 7(1) of the Civil Procedure Rules and amended the pleadings to include the amount. Therefore, the court entered judgment for appellant against the second defendant in this respect plus interest.

Secondly, the court distinguished between the application of estoppel as a rule of evidence (to bar a party from denying an intentional representation) and as a rule of substantive law (to rectify an unwritten contract with valuable consideration from promise). Drawing from the above definitions, the court conceded with the court of appeal decision on estoppel.

Accordingly, the appeal was dismissed partly.

The plaintiff/appellant was aggrieved the Court of Appeal’s reduction of a damages award made by the High Court pursuant to its compensation claim for wrongful termination of employment. The Court of Appeal held that the award was excessive on several grounds – a finding that formed the basis of this appeal.

The Supreme Court emphasised that the court’s discretion to award damages must be done so judiciously. That the trial judge’s order was influenced by factors such as the size of the plaintiff’s family, the defendant/respondent’s instituting of a failed prosecution and delays in court proceedings – which the appellant sought in vain to attribute to the respondent –  rendered the extent of the award ill-considered. Moreover, the High Court neglected to provide a terminating point for the computation of the appellant’s salary and allowances, which translated to excessiveness. Guided by the case law, the court fashioned a reasonable award which more closely considered the parties’ situation.

Deviating from the Court of Appeal’s order, the Supreme Court found it was unfair that payment of the appellant’s other employment entitlements was limited to its provident fund. It therefore altered this portion of the below court’s order to reflect that the appellant be paid all earnings, entitlements or remuneration which it was owed for the period of fifteen months after the wrongful dismissal. It similarly reversed the Court of Appeal’s substitution of the High Court’s award of three-months’ salary to one-month’s salary, finding that this reduction was unfair in the absence of any reasoning therefor.

The appeal was upheld in part.

The applicant was seeking a clarification of a court judgement.

The case emanated from a dismissal of an appeal by the first respondent to challenge a decision of the High Court in favour of Fidelity Bank. The plaintiff sought clarification of the judgement. It sought clarification on the nature of interest to paid and why the applicant and the respondent were jointly liable for payment of outstanding loan.

The court held that there was a contract between the applicant and the respondent and it provided that the applicant should obtain a loan from Fidelity Bank (the bank). The bank required an undertaking from both the applicant and the respondent that they are going to be jointly responsible for the repayment of the loan. The court found that the respondent reneged on all payments under the contract in the joint names and thus contributed to the non-payment of the loan, hence its liability.

On interest, the court ruled that the undertaking between the parties bears three different interest rates. It pointed out that the parties in this transaction are governed by their undertakings hence interest is calculable on the terms agreed.

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 appellant appealed to the Supreme Court because the lower court did not inquire into the scope of the arbitration agreement embodied in the main agreement executed by the parties, contrary to the provisions of section 6(2) of Act 798.The court held that the separation agreement provided categorically that any dispute that related to the validity of the agreement itself or the arbitration embodied therein had to be determined by arbitration. The decision to refer certain disputes to arbitration as indicated in the separation agreement arose from the consent of the parties the moment they appended their signatures to the agreement. Therefore, it had complied with the separation agreement.

Secondly, the applicant filed for appeal after three months instead of twenty-one days and did not advance any reason to explain why it failed to comply with the rules of the court. The court noted that it had the discretion to entertain such applications but had to question whether upon the facts, the discretion could be exercised in applicant’s favour. The court outlined the prerequisites for the grant of special leave to appeal as follows: an applicant who applies to the Supreme Court for special leave under article 131(2) must satisfy (i) why he did not avail himself/herself of the usual rights of appeal provided, and (ii) why he should be granted such special indulgence. The court concluded that the applicant did not advance any reason why it failed to resort to the normal appeal procedure and dismissed the appeal.

The application before the court concerns a multilayered application for summary judgement, an application for a writ to set aside consent judgement, an application to dismiss the writ and an application to the High Court to stay execution among others.

The court had to consider whether the High Court exceeded its jurisdiction (i) when it varied the ruling dismissing the 4th interested party’s application for the stay in execution pending the appeal, (ii) when it substituted the order to stay execution pending the appeal that had already been decided upon. Lastly, (iii) whether the High Court exceeded its jurisdiction regarding the 4th interested party for the suspension of the enforcement of consent judgement.

The court held that the application on the grounds (i) and (ii) be granted but dismissed the (iii) ground. The court went on to order a stay in execution pending determination before the appellate court. The court was of the view that the judges in the lower courts fell into an error of law and committed procedural irregularities.

The application was granted except on the 3rd ground, which was dismissed.

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.

The appellants sought to appeal the judgement of the appellate court which held that there was a legal and valid writ of execution in respect of the immovable property offered as security for the facilities provided by the respondent.

The court had to consider whether the writ of execution was legal and valid, and whether the writ was for movable or immovable property.

The court held that the writ was legal and valid and that the writ of execution was for the immovable property offered as security to the respondent.

With reliance on the procedural rules relating to the writ of execution, the court issued that a writ is executed upon the attachment of the property and not after the sale of property. The court also pointed out that when examining the rules, the court pointed out that one should adopt a purposive interpretation as a opposed to a literal interpretation because the latter will lead to an ambiguous or unjust result. The court stated that the appellant’s second ground was based on repealed law, thus it has no foundation in law.

Accordingly, the court dismissed the appeal.

This court considered whether the court below erred in stating that the plaintiffs’ action was statute barred, that they erred in their interpretation of s 24 of the Social Security Decree 1972 and finding that the abrogation (doing away with) of the scheme was illegal, and that their order for specific performance should be upheld.    

The plaintiffs were former employees of the defendant. The defendant established a pension scheme in 1976 and abrogated it in 1990. In the premise, the plaintiffs alleged that they were entitled to the payments from the pension.

The court found that in determining the interpretation of s 24 of the Social Security Decree, the court needed to ascertain whether the defendant had abrogated the scheme lawfully. It found that the plaintiffs were adequately informed of the termination of the scheme and that the defendant had lawfully wound up the scheme.

In considering whether the action was statute barred, and if the plaintiffs were entitled to specific performance, the court found that the plaintiffs’ action was instituted 16 years after the scheme was terminated. In the premise, and owing to the fact that the scheme was lawfully terminated, the plaintiffs were not legally competent to accrue a right under the scheme, thus, they were not entitled to claim specific performance.

Therefore, the plaintiffs could neither maintain an action and attempt to enjoy the benefits of the scheme, nor could they compel the defendant to compensate them under an abrogated scheme.

Appeal Upheld.

The appeal arose from judgement on a dispute of sale and ownership of property granted in favor of the respondent. The appellant alleged that the judgement of the trial court had been fraught with errors.

The first issue was whether the evidence before the court indicated a sale or was a receipt of rent. The court weighed the evidence and reasoned that as the appellant admitted to voluntarily signing the document in issue even when she was warned by the witness of the disjuncture between the discussed agreement and the written terms, the trial court was correct in finding that the evidence was a receipt for rent paid. The trial court’s finding of facts was thus upheld.

On the appellant’s second contention that the court had committed an error of law in attesting weight to an invalid agreement, the court responded that it was important for the appellant to point out the error that led to miscarriage of law. Since this had not been done, the court concluded that there was no evidence of miscarriage of justice.

Finally, the court also had to decide whether the granted mesne profits (i.e. recoverable profits gained by tenant during the period of unlawful possession of property) were too excessive. It stated that mesne profits are usually determined on the least rent payable rate during the period of dispute. The court thus reasoned that given the case’s circumstances, the trial court had not been justified to not use the least rent payable rate in its valuation. It thus varied the mesne profits award.

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.