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R U L I N G
MRS. WOOD,
C.J.
By this
appeal, the plaintiff respondent
appellant (appellant) questions
the unanimous decision of the
Court of Appeal on four main
grounds. Aside from the well-
known and oft- used general
ground: “The judgement is
against the weight of evidence”,
the two other grounds of appeal,
which in any event are all
embodied in the omnibus ground
are the following:
“The Court of
Appeal misdirected itself by
failing to consider the evidence
of the defendant’s own witness
(Maggie DW1) which evidence
supported fully the plaintiff’s
case.”
The Court of
Appeal erred when it held, in
the teeth of all the evidence
adduced at the trial that the
appellant did not post any
travellers cheques by EMS but
rather posted a document as DW1
wrote “document” on the green
tag which was put on the EMS
envelope.”
It is the
fourth ground of appeal however,
which raises important legal
issues. It reads:
“The Court of
Appeal misdirected itself in law
in coming to the conclusion that
the trial court had no
jurisdiction to declare section
43 (1) of the Post and
Telecommunication Decree, 1975
(NRCD 311) void as being
inconsistent with the provisions
of article 18 (2) of the 1992
Constitution.”
The facts
culminating in this instant
appeal are not complex. The
parties entered into a contract
of carriage of a postal parcel.
By it, the respondent
corporation, agreed to deliver
the appellant’s parcel allegedly
containing travellers’ cheques
to the value of ten thousand
pounds (₤10,000) to her
principals in the United
Kingdom. Although the parcel got
to respondents agent in the UK,
it was never delivered as agreed
under the terms of that simple
contract, for it eventually got
lost. The appellants
successfully sued to recover of
the full value of the lost
cheques, when the respondents
failed to make good the loss.
The decision was overturned on
appeal on the principal grounds
that firstly, by interpreting
article 18(2) of the 1992
Constitution, the trial judge
exceeded his jurisdiction by
straying into the domain of the
Supreme Court, and secondly that
in any event the principal
finding that she did purchase
travellers cheques and further
that indeed she had those
cheques in the parcel was
against the weight of evidence.
The well
established rule of law is that
an appeal is by way of
rehearing, and an appellate
court is therefore entitled to
look at the entire evidence and
come to the proper conclusions
on both the facts and the law.
Consequently, I will like to
deal with the issue arising from
the factual findings first,
which issue in any event present
the least difficulties. The
importance of correcting errors,
if any, on the issue of whether
or not the appellant posted
₤10,000 worth of travellers’
cheques cannot be
underestimated. It forms the
plank on which the appellant’s
case is founded and a finding
against her on this critical
issue therefore must, without
more, resolve the entire action
in the respondent’s favour.
On this
issue, the appellate court
unequivocally concluded as
follows: “Infact from the cross
examination above stated it is
quite clear that the respondent
did not buy any travellers
cheques and she did not post any
travellers cheques by EMS but
rather posted a document as DWI
wrote on the green tag which was
put on the EMS envelope.”
With the
greatest respect, these
findings, which are plainly
central to the defence that the
appellant did not purchase any
travellers cheques is clearly
not borne out by the evidence.
Contrarily, as plainly evident
from the record, the reverse
represents the correct finding.
The evidence of the appellant’s
principal witness, PW1, which
was not discredited under cross
examination, is as follows:
“At the EMS,
Sister Maggie welcomed me and
asked me to wait as she was
serving two persons. When the
two persons left, I went in and
handed over the postal packet to
her. She opened the envelope and
took the paper on which the
serial nos. of the TC’s have
been written. She told me the
parcel was very heavy and that
she was contemplating splitting
it into two. After weighing the
parcel she said it was not heavy
after all but that it was not
properly arranged that was why
it looked bulky. What she meant
was that the travellers’ cheques
had not been properly arranged.
She took out the travellers
cheques from the original
envelope and put it in an EMS
envelope. She wrapped the
Travellers Cheques with the
paper in which were written the
serial nos. of the travellers’
cheques. She finally wrapped it
with carbon paper. She sealed
the envelope with glue and put
the parcel in a bigger envelope
and sealed it with clips.”
In view of
the respondents emphatic
suggestion to the PW1 that “no
such travellers cheques were
taken to Maggie”, the evidence
of Maggie, who gave evidence at
the trial as DW1, is crucial.
Her evidence is the decider, so
to speak, to this strange tale
of two clearly divergent claims.
Given her clear and unambiguous
evidence in chief on the issue
in favour of the appellants, it
becomes extremely difficult to
understand what led the
appellate court to find against
her. She deposed as follows:
“In the
course of serving customers it
came to the turn of a customer
who said he is the man who has
been sent. I collected and
checked the contents which were
travellers’ cheques. The value
of the cheques was 10,000
pounds. After checking the TC’s
I put them in an EMS envelope
and sealed it. On top of the
green envelope I wrote document
below the label I wrote 10000.
We have standing instructions
not to declare travellers
cheques as contents but to treat
them as documents.”
It comes as
no surprise that appellant’s
counsel did not subject her to a
single question under
cross-examination. On account of
this corroboration by an
opponent’s witness, the court
was bound to find for the
appellant on this issue. The
respondent justifies the court’s
approach on the grounds that
there are such many
contradictions and
inconsistencies in the evidence
of the PWI and DW1, it falls
into the exceptions outlined in
Barclays Bank Ghana Ltd. v
Sakari [1996-1997] SCGLR639 at
652, namely that the rule that
where the evidence of an
opponent corroborates the
evidence of the opposite party,
and that opponent’s remain
uncorroborated, the court is
bound to accept the evidence of
the corroborated, does not apply
in the face of “compelling
reasons”.
This argument
that the Sakari case (supra) is
applicable to the particular
facts of this case is indeed
threadbare. The inconsistencies
in this case are so minor they
are inconsequential and do not
detract from the basic admission
by the respondent’s own that the
appellant indeed posted
travellers cheques. The lament
that the seller was not brought
as a witness is of no moment.
The witnesses that ought to be
called depends on the nature of
the defence, the line of
cross-examination etc. The law
will not permit evidence to be
led on unrelated issues or
issues not germane to the relief
sought, neither or the issues in
controversy. It will be a poor
case management technique to
require parties to go through
the motions of calling one
witness after the other, even
where unwarranted.
This being a
civil action, the degree of
proof required is proof on the
balance of probabilities, and
not proof beyond reasonable
doubt.
ADDITIONAL
GROUND 1
DID THE
APPELLATE COURT HAVE
JURISDICTION TO DECLARE SECTION
43 (1) OF NRC DECREE 311 VOID AS
BEING INCONSISTENT WITH THE
PROVISONS OR ARTICLE 19 (2) OF
THE 1992 CONSTITUTION.
Articles 1(2)
and 2(1) of the 1992
Constitution provides:
1(2) “This
Constitution shall be the
supreme law of Ghana and any
other law found to be
inconsistent with any provision
of this Constitution shall, to
the extent of the inconsistency,
be void.
2(1) A person
who alleges that-
(a)
an
enactment or anything contained
in or done, under the authority
of that or any other enactment;
or
(b)
any
act of omission of any person;
is
inconsistent with, or is in
contravention of a provision of
this constitution, may bring an
action in the Supreme Court for
a declaration to that effect.”
130. (1)
Subject to the jurisdiction of
the High Court in the
enforcement of the Fundamental
Human Rights and Freedoms are
provided in article 33 of this
constitution, the Supreme Court
shall have exclusive original
jurisdiction in-
(a)
all
matters relating to the
enforcement or interpretation of
this constitution; and
(b)
all
matters arising as to whether an
enactment was made in excess of
the powers conferred on
Parliament or on any other
authority or person by law or
under this constitution.
(2) where an
issue that relates to a matter
or question referred to in
clause (1) of this article
arises in any proceedings in a
court other than the Supreme
Court, that court shall stay
proceedings and refer the
question, of law involved to the
Supreme Court for determination;
and the court in which the
question arose shall dispose of
the case in accordance with the
decision of the Supreme court.”
At the trial
court, the trial judge delivered
himself as follows: “I shall
venture for the moment into the
rather very complex terrain of
constitutional law by Article 1
(2) of the fourth Republican
constitution. I shall venture to
say that the said section of 43
(1) of the provision is
inconsistent with Article 18 (2)
of chapter five of the
constitution”.
Their
Lordships in the Court of Appeal
ruled that the learned trial
judge had no jurisdiction to
deal with the constitutional
issue in the manner in which he
did. They reasoned, rightly in
our view, that it is only the
Supreme Court that has exclusive
jurisdiction to deal with such
constitutional issues. Even
though their Lordships were in
error by describing the exercise
undertaken by the trial judge as
an interpretation of the
constitutional provision,
whereas in fact the exercise
related to the constitutionality
of a statutory provisions, their
Lordships were absolutely right
in their conclusion that the
trial judge lacked jurisdiction.
Indeed, Article 1 (2) clearly
vests exclusive jurisdiction of
matters relating to
interpretation, enforcement
e.t.c in the Supreme Court and
the trial judge committed what
we may call judicial suicide by
venturing into territory which
on his on showing was a complex
area, and in respect of which he
had no jurisdiction.
In spite of
this glaring error on the part
of the trial judge, the
appellate court committed a
further error by falling into
the same error, virtually, as
the trial judge. True, there was
no attempt on their part to
repeat the unconstitutional act
perpetrated by the trial judge,
i.e., usurp the jurisdiction of
the Supreme Court, but they
failed to refer the matter to
the Supreme Court as they were
constitutionally mandated to do
under Article 130 (2) of the
1992 Constitution, since it
appears from their reasoning
that they were convinced the
issue is indeed pertinent to
this case.
The Article
130 (2) states:
“Where an
issue that relates to a matter
or question referred to in
clause (1) of this article
arises in any proceedings in a
court other than the Supreme
Court, that court shall stay
proceedings and refer the
question, of law involved to the
Supreme Court for determination;
and the court in which the
question arose shall dispose of
the case in accordance with the
decision of the Supreme court.”
They judged
the trial judge’s usurpation in
these terms “since the learned
trial judge exceeded his
jurisdiction by interpreting the
1992 constitution which was the
jurisdiction of the Supreme
Court, this caused miscarriage
of justice by the order of the
high court that the Appellant is
liable to the Respondent”.
The law
clearly is that in any action,
where an Appellate Court
discovers that a trial court has
usurped the Supreme Court’s
jurisdiction in matters relating
to the exercise of its original
or exclusive jurisdiction, the
appellate court’s function does
not merely end at a declaration
of nullity. The court has a
constitutional duty to refer the
relevant matter to the Supreme
Court for determination, as
mandated under Article 130 (2),
where the Appellate court thinks
that the issue under
consideration is indeed germane
to the pending action.
Be that as
this may, we must state that our
critique of the Appellate court
is based on the fact that it
appears they felt that the
constitutional issue was central
to the claim. We must confess
that was our first impression
too, hence our invitation to
counsel to present arguments on
the issue of whether or not
section 43(1) and (2) of the now
repealed Posts and
Telecommunications Decree, 1974
was inconsistent with Articles
17 and 18 of the provisions if
the 1992 Constitution.
But a careful
study of the pleadings and the
issues raised in this action,
points to the contrary. We
realise that the question of
whether or not section 43(1) and
(2) of (NRCD 311) is in excess
of Articles 17 and 18 of the
1992 Constitution is really
irrelevant to this action. We
will now advance reasons why we
think we do not have to deal
with the constitutionality
question.
The contract
was concluded on 1/12/92. The
people of Ghana approved the
constitution to come into force
on 7th day of
January, 1993, with the article
107 clearly forbidding
retroactivity.
In the
absence of any express or
implied term of the contract,
the laws relevant to the
determination of this case is
only such laws that were in
operation at the date of the
contract, not laws at the date
of the accrual of the action. At
the date of the contract, the
only law in force was the Posts
and Telecommunications Law NRCD
311. It is this prevailing law
at the date of contract which
should govern the outcome of
this action.
The section
43(1) and (2) of NRCD 311
provides as follows:-
43. (1)
“Unless otherwise provided in
regulations made under this
Decree the Corporation shall not
incur any liability:-
(a) by reason
of the loss, misdelivery or
delay, or damage to any
postal article in course of
transmission by post; or
(c)
by
reason of the interception,
detention or disposal of any
postal article in accordance of
the provisions of this Decree.
(2) Unless
otherwise provided in
regulations made under this
Decree, the corporation shall
not incur any liability by
reason of the wrong payment of a
postal or Money Order.”
These
statutory provisions exempt the
EMS from liability by reason of
loss, misdelivery, or any of the
stated grounds. it is trite
learning that pleadings are
meant for parties to know before
hand the issues in controversy
between the parties to enable
them prepare their case
adequately to meet the case on
hand. By the paragraph 11,
respondent’s answer to the
appellant’s claim that they were
liable was in these terms:
“In further
answer to paragraph 11,
defendants s NRCD 311 (S.43) say
that they are not liable under
their statute of incorporation
for any misdelivery or loss of
postal item”
The appellant
merely joined issue with the
defence without raising any
other specific defence or
defences which could take her
out of the statutory exemptions.
The well established principles
starting with Dam v Addo [1962]
2GLR200, forbids a court suo
moto from substituting or
putting up a case which the
party himself or herself has not
put up. (See also Bisi v Tabiri
alias Asare [1984-86]2 GLR282,
CA.)
Again, the
general rule is that, statutory
exemption clauses which are
clearly expressed and not
ambiguous or inconsistent with
any other law of the land, such
as the telecommunications law,
NRCD 311, is strictly
enforceable and clearly binding
on the parties, unless of
course, a contrary intention is
proved by evidence.
Furthermore,
the evidential burden of proving
the unenforceability or
inapplicability of an exemption
clause rests on the person
alleging same, more often than
not, the victim of the
misdelivery.
In this
action therefore, the burden of
proving that she is not subject
to the statutory exemption, is
on her, not the respondent
corporation.
The evidence
did not prove the parties
contracted out of the statutory
exemption as provided under s.
43 1 and 2 and for that reason
the appellant is bound by these
clear exemptions as stated.
We have no
option but to hold that the
appellant is not entitled to her
claim We dismiss the appeal.
G.T. WOOD
(MRS)
CHIEF
JUSTICE
S.A. BROBBEY
JUSTICE OF
THE SUPREME COURT
R.T. ANINAKWA
JUSTICE OF
THE SUPREME COURT
S.O.A.
ADINYIRA (MRS)
JUSTICE OF
THE SUPREME COURT
S.K. ASIAMAH
JUSTICE OF
THE SUPREME COURT
COUNSEL:
Stephen
Agyeman for the
Plaintiff/Respondent/Appellant.
D.K. Brefo
for the
Defendant/Appellant/Respondent.
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