The Commercial Case Law Index is a collection of judgments from African countries on topics relating to commercial legal practice. The collection aims to provide a snapshot of commercial legal practice in a country, rather than present solely traditionally "reportable" cases. The index currently covers 400 judgments from Uganda, Tanzania, Nigeria, Ghana and South Africa.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-matter expert postgraduate students from the University of Cape Town.
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.
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.
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.
The appellant in this case approached the Supreme Court, asking it to set aside its own previous judgement. The respondents filed a preliminary legal objection to the jurisdiction of the court that had to be considered first. The court held that there is no provision in either the Constitution, the Supreme Court Rules or an enactment giving this court the jurisdiction to review or to set aside a judgment by the review bench of the court. The court, therefore, upheld the legal objection and dismissed the appeal.
In order to deter similar frivolous and vexatious actions in the future, the court also exceptionally awarded costs against the appellant.
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.
The parties entered into a business transaction for the supply and installation of a saw-mill. However, the transaction was not covered by a properly drawn up contract. Furthermore, it became apparent that the plaintiff provided the defendant with a plant which was defective and not fit for the purpose it was intended.
This case considered whether the Court of Appeal had misdirected itself to the defects contained in the machinery, whether there was a breach of a fundamental obligation and whether the goods sold were fit for the purpose which they were intended to be used.
The court considered the Sale of Goods Act, 137 of 1962 (the act) and found that the breach of a promise under the act depends on the category of promise; either a fundamental obligation, condition or a warranty. Breach of a fundamental obligation or a condition entitles the party not in default to repudiate the contract of sale and if it is the seller who is in breach, the buyer can reject the goods. The breach of a warranty cannot lead to a repudiation or rejection of the goods but will entitle the party not in breach to damages. However, a party entitled to repudiation and rejection may waive their right and opt for damages.
The court considered whether the goods were fit for the purpose that they were provided for. The plaintiff sold the machinery in the course of its business on condition that it will be fit for the purpose of saw milling. A machine is fit for purpose if it is able to perform the task for which it was acquired, safely and for a reasonable period, before defects appear. The court found that a saw mill should not break down after 11 days of operation and therefore did not meet the standard of the purpose for which it was intended. The court found that as a result of the defect, the defendant was entitled to general damages as a result of the failure of the saw mill being fit for purpose.
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.
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 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 issue was whether the High Court had jurisdiction to order the freezing of the bank accounts of the applicant.
The dispute emanated from an order to freeze the applicant’s three bank accounts after allegations of money laundering by the Financial Intelligence Centre (FIC). The applicant was accused of illegally receiving approximately US$ 43 000 and remittance of US$ 39 000 from a Canadian company. The applicant tried without success to apply to defreeze the bank accounts.
The applicant further applied arguing that the Anti-Money Laundering Act (the act) only allowed the bank accounts to be frozen for one year. It pointed out that the High Court exceeded its jurisdiction when it dismissed the application because the statutory period of 12 months had lapsed. They also challenged the decision to freeze all the accounts including money that was not part of the laundering investigation on the basis that it was an infringement of the right to natural justice.
The FIC argued that that investigation of allegation of fraud, which is criminal in nature, is not affected by time constraints.
The court held that one year was enough for FIC to investigate any alleged wrong-doing. It ruled that High Court lacked the jurisdiction to order the continuous freezing of the accounts of the applicant beyond the one year. It further ruled that moneys which stood in the accounts of the applicants before any alleged illegal transfers into the accounts should not form part of the freezing order.
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 applicant filed a motion before the Supreme Court in order to stay proceedings under the judgement of the appellate court pending final judgement by the Supreme Court.
With its limited jurisdiction, the court had to consider whether there were any proceedings that necessitated the staying of proceedings.
The court held that there were no such proceedings impending under the appellate court’s judgement that would warrant the staying of proceedings.
The court stated that ‘proceedings’ referred to lawful proceedings within the ambit of the rules and that such ‘proceedings’ were not evident in the application before the court.
The application 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 appeal turned on whether the plaintiff’s action in the trial court was statute barred. The plaintiff claimed that he owned a plot of land that he later transferred to a company, which was erroneously confiscated by the government, and occupied by the fifth defendant. It was argued, however, that the plaintiff acquiesced to the unlawful occupation of the land.
The plaintiff argued that the land was never transferred to the state, and the plaintiff remained owner. This meant that the government could not transfer ownership in the land to another as it still belonged to the plaintiff, who had not acquiesced in the matter.
The court held that there was uncontroverted evidence that the plot was transferred from the company to Gold Coast Motors as early as 1991, of which the plaintiff was aware. There was nothing preventing the plaintiff challenging the presence of Gold Coast Motors or the fifth defendant. The court held that Gold Coast Motors was in adverse possession since 1991, and fifth defendants continued such when they purchased the plot. Adverse possession is open, visible and unchallenged, giving notice to an owner that someone is asserting a claim adverse to the owner’s right of ownership. Gold Coast Motors had exercised rights inconsistent with the plaintiff’s since 1991, and later sold the plot to the fifth defendant who continued the chain of adverse possession. Neither recognized the title of the plaintiff since 1991, of which the plaintiff was aware but failed to challenge.
The appeal was dismissed.
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 applicants applied to the High Court to stay the proceedings in the case and to release the properties attached to them in order that they would add them to other assets of the company to be sold for all depositors of the company to be paid. The High Court however dismissed the application and applicants being aggrieved by the orders made by the court filed an application to the Supreme Court praying for an order of certiorari to quash the decision of the high court.
The main issue being the lawfulness of the grant of leave by the high court to applicants to proceed with their case after the winding up had commenced.
The court held that upon commencement of a winding up only secured creditors are allowed as of right to sue or continue with pending civil proceedings for the realization of their security. Any other person who has a cause of action against a company being wound up cannot sue as of right but may do so only with the prior leave of the high court. Similarly an unsecured creditor who has pending civil proceedings cannot continue with them without leave of the high court. So the applicants in this case who were not secured creditors were within their rights to apply for leave to continue with their case and the judge acted in accordance with law in granting same.
The court dismissed the application.
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 plaintiff/appellant unsuccessfully sued the defendant/respondent for breach of contract following the latter’s refusal to accept delivery of the relevant goods. Curtailing the appellant’s sizeable claim for special damages, the High Court awarded only nominal damages – an order later confirmed by the Court of Appeal.
At the Supreme Court, the scope of section 48 of the Sale of Goods Act (the act) was elucidated: the computation of damages thereunder may be either general or special depending on the circumstances of each case. General damages refer to those which are foreseeable without proving that special circumstances were brought to the breaching party’s attention. Special damages are those which are foreseeable by the parties at the time of contracting because certain circumstances have been highlighted which render the damages within the realm of the signatories’ reasonable contemplation. These must be pleaded and proved at trial.
The plaintiff’s claim for special damages for the losses suffered by the breach was not proven before the High Court and were subsequently abandoned. The Supreme Court thus took the plaintiff to be entitled only to general damages under section 48 of the act. To this end, the plaintiff did not lead any evidence on the multipliers which would entitle the court to award enhanced damages. Section 48 caters to the contract price/market price differential and not to a computation of lost profits. The plaintiffs failed to adduce sufficient evidence to merit the proposed determination of damages and so the nominal award made by High Court in terms of s 48 was adequate.
The appeal 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.
The respondent sought to introduce a new ground of appeal before the Supreme Court and the appellate court without doing so before the trial court.
The court considered whether the new ground of appeal relating to the regularity of the sale of shares belonging to the respondent’s deceased father could be raised as part of the respondent’s case.
The court held that a party is not permitted to raise on appeal an issue that they failed to raise during the trial.
Upon examining the rules regulating appeals, the court stated that r 8(8) does not override r 8(7) and that the court has discretion to whether to allow the introduction of a new ground or not. The Supreme Court stated that in the interests of justice and permission from the Constitution, it would give a ruling on the new ground. The court was of the view that the trial court had already made a ruling regarding the regularity of the sale of shares and that this ruling covered the the new ground that was being introduced.
As a result, the appeal had no merit and was dismissed.
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.
The applicant sought orders from the court against an order made by the same court where one judge presided and the cross-examination of the applicant was ordered.
The court had to consider two issues; whether there was a violation of the applicant’s right to privacy and whether o 46 r 2 was applied appropriately.
The court held that there was no violation of the applicant’s right to privacy and that the aforementioned rule was applied appropriately.
Regarding the alleged violation of the right to privacy, the court stated that the applicant did not make reference to any legislation that prohibits the oral examination of a judgement debtor in an open court. Regarding the rules, the court drew a distinction between Order 42 r 1 and r 2; the former dealt with garnishee proceedings and the latter dealt with proceedings other than those relating to garnishee proceedings. The court went on to say that the rational for the rule was consistent with its application.
The court dismissed the application in its entirety and ordered that the oral examination of the applicant would continue.
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.
The matter dealt with a special leave to appeal application against the Court of Appeal’s decision that an appeal from the General Legal Council without lodging a Notice of Appeal to the Council was invalid.
In responding to the above question, the court relied on Article 131(2) of the Constitution and the Dolphyne case (Dolphyne (No.2) V Speedline Steveddoring Co. Ltd [1996-97] SCGLR) to find that special leave applications are discretionary and are not fettered by rules of practice nor legislation. The exercise of this discretion depended on whether, given the particular case and validity of the reasons given, leave should be granted in favor of applicant to further the interests of justice and or the public good. The court, in exercising its discretion, established that the General Council was not a lower court. Thus the court concluded that the requirement for lodging a notice was not applicable. Moreover, it reasoned that it would be in the public interest if a Supreme Court was given an opportunity to pronounce on appeals from the General Council. It thus concluded that the court below had erred in its decision resulting in the overriding of the applicant’s substantive right of appeal. The court thus granted the special leave application.
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 was a matter referred to the court for the interpretation of the right of privacy as provided in the constitution in relation to the admissibility of evidence in form of a secretly recorded telephone conversation.
The court determined whether the secret recording the defendant’s right to privacy. The court held that the recording interfered with the defendant’s right beyond what he had consented. This is because defendant opted for a means of communication that did not record his speech in a permanent form. The court also determined the admissibility of the evidence since it was obtained in violation of human rights. The court noted that Ghana does not contain a provision that provides for circumstances in which a court is required to exclude such evidence. The court was in favor of the discretionary rule approach that takes into account policy considerations when enforcing human rights by excluding evidence. It was held that admission of such evidence would undermine the integrity of court proceedings and bring disrepute to the administration of justice and should be excluded. Accordingly, the court gave an order to the same effect.