Practice and
Procedure - Agency Agreement -
Termination - Award of
compensation - Damage for losses
- Entitlement to commission -
Non-compliance with Order2 r.4
of the High Court (Civil
Procedure) Rules – Effect of –
Interpretation - Fundamental
error and mere Irregularity -
Setting aside for irregularity
HEADNOTES
The Plaintiff
a company incorporated under the
laws of Ghana was in 1978
appointed, in terms of an agency
agreement the sole agent in
Ghana of the branded products of
Pierson Munier & Company (PMC),
a company incorporated under the
laws of the United Kingdom, The
Defendant took over PMC and
retained the Plaintiff as its
agent, The parties executed a
document, , by which there was
varied changes in the brand name
of products named in the
agreement and by the
introduction of a 90 day written
notice requirement for the
termination of the agreement. it
was a clear understanding of the
parties that their relationship
was to be governed not only by
the Agency Agreement but by the
customs, practices, and
regulations of the European
Community, England and /or
Holland. The defendant
terminated the agency agreement
in January 1994 by giving the
plaintiff the requisite 90 days
notice and offered the latter
and amount of NLG 120,000
(equivalent of $70,000) as
compensation. The plaintiff was
dissatisfied with the
termination of the agreement and
rejected the quantum of
compensation for the reason that
it had promoted and expanded and
established a thriving market in
Ghana for the brand products of
the defendant
The plaintiff contended that by
the termination of the agreement
it has been deprived of the
opportunity to reap the benefits
of the programs and market
strategies it had put in place
while expenses on same stood
unpaid. After attempts at
settlement have failed, the
plaintiff brought an action at
the High Court the defendant
contended that the agency having
been terminated by proper notice
it was not liable to pay any
compensation to the plaintiff.
The defendant said it
contributed to increase the
volume of the sale of its
products in Ghana and made
available an advertising budget
for that purpose. The defendant
counterclaimed for an account of
the advertisement imprest,
Judgment was given in favour of
the plaintiff and was awarded
damages. The defendant being
dissatisfied appealed to this
Court .
HELD
The subject
matter of the action begun by
the writ issued by the plaintiff
for compensation for the
termination of an agency
agreement executed by her in
Ghana on behalf of the defendant
is manifestly within the
jurisdiction of the court.
Accordingly we hold that the
non-compliance of Order2 r.4 of
LN140A in this case was a mere
irregularity which did not
derail the jurisdiction of the
court.
We do not
think Counsel’s failure to
discover the non-compliance in
time should render the whole
proceedings, in which the
defendant actively participated
and pursued a counterclaim, a
nullity. We consider the
objection at this time trifle
and highly unreasonable, more
so, as the subject matter of the
action began by the writ falls
within the jurisdiction of the
court. The Defendant has failed
to demonstrate where the Court
of Appeal erred. We find that on
the evidence the plaintiff was
entitled to compensation in
accordance with the laws of
England as agreed upon
We find the
award of $500,000 rather
excessive. In the circumstances
we think the award of $280,000
i.e. compensation for 4 years at
$70,000 per year would meet the
justice of the case. This court
awards interest thereon at the
prevailing United States dollar
rate as stipulated by the Bank
of Ghana to be calculated at
simple interest from the date of
the judgment of the High Court
to date of final payment. All
the other grounds of appeal are
hereby dismissed as the
defendant has not shown us the
defects in the findings made by
the Court of Appeal on those
issues. We find no reasons to
disturb those findings. Except
for the variation in the award
of compensation the appeal is
dismissed.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules, 1954 LN
High Court
(Civil Procedure) Rules, 2004
(C.I 47)
Statutory
Instrument, 1993, No. 3053,
Commercial Agents (Council
Directive) Regulations
Evidence Act
(NRCD 323),
CASES
REFERRED TO IN JUDGMENT
Gray v.
Pearson [1857] HLC 61
Pinner v.
Everett [1969] 3All ER 257
Maunsell v.
Olins [1975] AC 373
Omane v Opoku
[1973] 2 GLR 66
Republic v.
High Court, Accra, ex parte
Allgate Co. Ltd. (Amalgated
Bank) Interested Party
[2007-2008] SCGLR1041
Boakye v.
Tutuyehene [2007-2008] SCGLR 970
and
Ankumah v
City Investment Co. Ltd.
[2007-2008] SCGLR 1065
The Republic
v. High Court, Koforidua, Ex
parte Ansah-Otu [2009] SCGLR 141
Seyire v.
Anemana [1971] 2 GLR 3C.A 2;
MacFoy v.
United Africa Co. Ltd. [1962] AC
152 PC;
Lokko v.
Lokko (1991) 2 GLR 184 CA
Mosi v
Bagyina [1963] 1 GLR 137 SC
Ghana Ports &
Harbours Authority & Another v.
Nova Complex Ltd. [2007-2008]
GLR 806
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ADINYIRA
(MRS), JSC:
COUNSEL
AMARKAI
AMARTEIFIO WITH HIM AMARKAI
AMARTEIFIO JNR. AND NAA AMERLEY
BORTEI-DOM. FOR THE APPELLANT.
J. K.
AGYEMANG FOR THE RESPONDENT
_____________________________________________________________________
J U D G M E N T
_____________________________________________________________________
ADINYIRA
(MRS), JSC:
This is an
appeal from the judgment of the
Court of Appeal delivered on 4
February 2011 affirming the
judgment of the High Court Accra
dated 7 March 2001 entered in
favour of the Plaintiff
/Respondent / Respondent
(hereinafter referred to as the
Plaintiff) against the
Defendant/Appellant/Appellant
(hereinafter referred to as the
defendant).
The real
issues in this appeal border on
the lapse in procedure in Order
2 r.4 of the
High
Court (Civil Procedure) Rules,
1954 (LN 140A ) and the
award of
compensation for termination of
an agency agreement. The
facts of the case narrated in
this opinion would therefore be
centred on what relates to these
issues.
The Plaintiff
a company incorporated under the
laws of Ghana was in 1978
appointed, in terms of an agency
agreement Exhibit A, the sole
agent in Ghana of the branded
products of Pierson Munier &
Company (PMC), a company
incorporated under the laws of
the United Kingdom.
In 1980,
the Defendant took over PMC and
retained the Plaintiff as its
agent.
The
parties executed a document,
Exhibit B, dated 31 July 1980,
by which Exhibit A was varied by
changes in the brand name of
products named in the agreement
and by the introduction of a 90
day written notice requirement
for the termination of the
agreement. Mr. Hendrik Anno
Vanderveen a legal adviser to
the defendant company who
represented the Defendant at the
hearing admitted in
cross-examination that Exhibit A
was validated by the Defendant.
Some of the branded products
were Peak Milk, Dutch Baby Food
and Frisolac. According to the
Plaintiff,
it was a
clear understanding of the
parties that their relationship
was to be governed not only by
the Agency Agreement but by the
customs, practices, and
regulations of the European
Community, England and /or
Holland.
The defendant
terminated the agency agreement
in January 1994 by giving the
plaintiff the requisite 90 days
notice and offered the latter
and amount of NLG 120,000
(equivalent of $70,000) as
compensation. The plaintiff was
dissatisfied with the
termination of the agreement and
rejected the quantum of
compensation for the reason that
it had promoted and expanded and
established a thriving market in
Ghana for the brand products of
the defendant.
The plaintiff contended that by
the termination of the agreement
it has been deprived of the
opportunity to reap the benefits
of the programs and market
strategies it had put in place
while expenses on same stood
unpaid.
After
attempts at settlement have
failed,
the plaintiff on 9/5/94 filed a
writ of summons and statement of
claim at the Accra High Court.
The writ bore the Defendant’s
foreign address to wit:
Leeuwarden Holland. The
Plaintiff further filed on
11/5/94 a notice of writ of
summons to be served out of the
jurisdiction under Order 11
rules 6 and 8. This notice was
directed to the Defendant’s
address in Holland. There is no
record that leave was granted to
serve the notice of the writ.
The Plaintiff
claimed among other reliefs,
compensation for the
damage
and or loss by plaintiff as
a result of the termination of
the agency agreement, special
damages of GH¢ 4,700 incurred in
promoting the sale of baby food
products, account of import of
defendant’s products into Ghana
from the period 1/1/91 to
30/4/94 and from 1/5/94 to
31/12/96 to determine
Plaintiff’s
entitlement to commission as
agent and
The defendant
entered appearance by the same
counsel in this case on 26/5/94
and filed a statement of defence
and counterclaim on 27/6/94. In
the statement of defence
the
defendant contended that the
agency having been terminated by
proper notice it was not liable
to pay any compensation to the
plaintiff. The defendant said it
contributed to increase the
volume of the sale of its
products in Ghana and made
available an advertising budget
for that purpose. The defendant
counterclaimed for an account of
the advertisement imprest,
and the sum of US$51,612.65 for
ordered and received products by
the plaintiff from the
defendant.
Judgment was
given in favour of the plaintiff
and was awarded damages
to the
tune of US$500,000 and GH¢4, 700
as special damages. An appeal by
the defendant against the
judgment of the High Court was
dismissed in its entirety by the
Court of Appeal.
The
defendant being dissatisfied has
appealed to this Court
practically on the same grounds
of appeal canvassed before the
Court of Appeal.
Grounds of
Appeal
a.
That the judgment is against the
weight of evidence
b.
That the learned Justices of
Appeal erred by failing to draw
a distinction between void and
voidable, and thereby held that
failure to invoke the
jurisdiction of the court was a
mere irregularity curable by
Order 70 of L.N 140A.
c.
That the learned Justices of
Appeal wrongly held that the
Solicitors and Counsel of the
Defendant were served within the
jurisdiction thereby making it
unnecessary for the Plaintiff to
comply with the rule that
required it to obtain leave not
only to issue but also to serve
the Defendant out of the
jurisdiction.
d.
That the learned Justices of
Appeal erred by using
speculative and hypothetical
grounds in confirming damages
awarded by the High Court.
e.
That the learned Justices of
Appeal erred in their
application of foreign law which
was not pleaded nor proven by
the Plaintiff to justify their
award of compensation to the
Plaintiff.
f.
That the learned Justices of
Appeal erred in holding that
non-compliance with the rules
for change of solicitor under
Order 7, r.2 (1) of LN140A was a
mere irregularity curable by
Order 70 of L.N 140A.
g.
That the learned Justices of
Appeal failed in holding that
the subsequent acts of the
Defendant amounted to a waiver
of their right to object to the
non-compliance with the rules
for change of solicitor.
h.
That the learned Justices of
Appeal in holding that the
awards of compensation, special
damages of GH¢47,000 and
interest made by the learned
trial judge were all covered by
appropriate amendments.
Consideration
Non-compliance with Order2 r.4
of
the High Court (Civil
Procedure) Rules,
1954
LN140A
Order 2 r.4
of LN140A provides as follows:
2. “No writ
of summons for service out of
the Jurisdiction, or of which
notice is to be given out of the
Jurisdiction shall be issued
without leave of the Court or a
Judge.”
The Defendant
submits that the Plaintiff did
not comply with the rule of
procedure that an intended
plaintiff must first obtain
leave of the court before
issuing a writ out of the
jurisdiction. Similarly the
intended plaintiff must seek
leave to serve notice of the
writ out of jurisdiction as
required by Oder 11.rr.6 and 7.
He complained that the plaintiff
filed a notice of a writ of
summons to be served outside the
jurisdiction of the court; he
never obtained the mandatory
leave as required by LN140A. He
argued that the jurisdiction of
the High Court was therefore not
properly invoked and as a result
the writ of summons and the
whole proceedings based on it
are null and void.
He submitted
further that:
“ The
Learned Justices of Appeal based
their evaluation of the
validity of the trial entirely
on Order 70 of the
High
Court (Civil Procedure) Rules,
1954 LN 140A without drawing
a distinction between
fundamental error and
irregularity.”
It is
recalled that Order 70 r.1 of
LN140A provided as follows:
1.
“Non-compliance with any of
these rules
or with any rule of practice
from the time being in force
shall not render any proceedings
void unless the Court or a
Judge so direct, but such
proceedings may be set aside
either wholly or in part as
irregular, or amended, or
otherwise dealt with in such a
manner and upon such terms as
the Court or Judge shall think
fit.”[Emphasis mine]
Counsel for
the Plaintiff in response
invites this Court to give the
word ‘any’ used in the
expression ‘any of the Rules’
its ordinary meaning in the
context. He contends that given
the clear terms of Order 70 r.1
which bars any breach of any of
the rules from rendering the
proceedings void:
“[t]he
authorities are presently
overwhelming that the
distinction between cases on
non-compliance with the rules of
procedure under LN 140A (now
C.I.147) which resulted in
proceedings or acts which were
automatically void and so could
not be waived on the one hand
and cases of non-compliance
which constituted mere
irregularities which can be
waived, is clearly untenable on
account of the clear provisions
of Order 70 r.1 of LN140A.”
He referred
us to some authorities on rules
of
interpretation in
Gray v.
Pearson [1857] HLC 61 at 106;
Pinner v. Everett [1969] 3All ER
257 Maunsell v. Olins [1975] AC
373; Sam v. Comptroller of
Customs and Excise [citation] We
agree with Counsel for Plaintiff
on his submissions and
authorities cited that the words
in Order 70 r.1 of LN140 should
be given its ordinary meaning in
order to serve the end of
justice. In that respect
non-compliance with any of the
rules does not render the
proceedings automatically void.
Unfortunately, in spite of the
clear language of Order 70 of
L.N 140A the Courts have been
drawn into making distinction
between irregular and void
processes. Accordingly, Apaloo
JA (as he then was) in the case
of Omane
v Opoku [1973] 2 GLR 66 at
page 71 of the law report in
considering the effect of
failing to take summons of
directions admonished that:
“The Court
should not readily treat a
defect as fundamental and so a
nullity, and should be anxious
to bring the matter within the
umbrella of Order 71 when
justice can be done as a matter
of discretion.”
We note that
Order 81 of the
High
Court (Civil Procedure) Rules,
2004 (C.I 47) and the
extinct Order 70 of LN140A
both provide in clear terms that
non-compliance with the rules of
procedure shall not render any
proceedings void but be regarded
as a mere irregularity which
might be allowed, amended or set
aside on terms at the discretion
of the court upon an application
brought within a reasonable time
and the person applying has not
taken a fresh step after
becoming aware of the
irregularity. See the
Republic
v. High Court, Accra, ex parte
Allgate Co. Ltd. (Amalgated
Bank) Interested Party
[2007-2008] SCGLR1041 for a
detailed discussions on these
two rules.
This Court
has since then taken a radical
attitude to arguments claiming
nullity in respect of procedural
lapses. In
Boakye v.
Tutuyehene [2007-2008] SCGLR 970
and Ankumah v City Investment
Co. Ltd. [2007-2008] SCGLR 1065;
failure to take summons for
direction under Order 30 r.1 was
held to be mere irregularity and
not vitiating the proceedings.
In The
Republic v. High Court, Accra,
Ex parte Allgate Co. Ltd.
(Amalgated Bank) Interested
Party supra, the
defendant/applicant was
short-served by one day with the
hearing of an application for
summary judgment but failed to
appear for the hearing. The High
Court, Accra, went on and
granted the summary judgment.
In an application by the
defendant/applicant for an order
of certiorari to quash the
ruling on the ground of
non-compliance with the
mandatory provision of Order 14
r 2(3) of C.I. 47, which
requires the defendant to be
served with notice for four
clear days before the hearing of
the application for summary
judgment; this Court in
dismissing the application held,
per Dr. Date-Bah JSC at page
1053 that:
“... [N]on
service of a process where
service of same is required, in
my view goes to jurisdiction.
Non-service implies that audi
alteram partem; the rule of
natural justice is breached.
This is fundamental and goes to
jurisdiction. Thus the reason
why, even after the coming into
effect of Order 81 of our Rules,
non-service of a process results
in nullity is not because of
non-compliance with a rule of
procedure, but rather because it
is an infringement of a
fundamental principle of natural
justice, as recognized by common
law. Similarly, breach of
the principle of nemo index
causae suae would result in a
nullity. In contrast, short
service need not be treated as
fundamental enough to go to
jurisdiction...It should thus be
regarded as an irregularity that
may serve as a ground for
setting aside the proceedings
following it, but it does not
make those proceedings null and
void.”[Emphasis mine]
In
The
Republic v. High Court,
Koforidua, Ex parte Ansah-Otu
[2009]SCGLR 141, the High
Court in breach of Order 25 r.
9(1) and (2) failed to order the
successful party to give an
undertaking to damages in a
contested application for
interim injunction before
granting the application. In an
application for the order of
certiorari to quash the decision
of the High Court, this Court
held that even though the trial
judge erred by not complying
with the mandatory rule of
procedure as specified under
Order 25 r 9(1) and (2) of C.I
47, before making the order, the
non-compliance was a mere
irregularity that was curable
under Order 81.
Counsel for
the Defendant referred us to
authorities such as
Seyire v.
Anemana [1971] 2 GLR 3C.A 2;
MacFoy v. United Africa Co. Ltd.
[1962] AC 152 PC; Lokko v. Lokko
(1991) 2 GLR 184 CA and Mosi v
Bagyina [1963] 1 GLR 133 SC,
where the courts drew a
distinction between
fundamental error and mere
irregularity and invited us
to hold that breach of Order 2
r.4 was a fundamental error that
could not be saved by Order 70
r.1
We do not
find the reasoning in those
decisions persuasive as the
distinction between void and
voidable proceedings cannot be
maintained on account of the
plain and ordinary meaning of
the said Order. In any event
this Court is not bound to
follow the decision of any other
court except its own and may
even depart from its own
previous decision. Article
129(2) of the 1992 Constitution.
We are of
the view that to determine the
effect of non-compliance one has
to examine the provision of the
same LN140A /CI 47 and not
indulge in any theories of what
acts or omissions can be
described as null and void or
mere irregularity. This Court
has had the occasion to comment
in Boakye v. Tutuyehene,
supra that the application
of the so called Mosi Bagyina
principle has been eroded by
time and therefore otiose. Dr
Seth Twum JSC at page 979 to 980
of the law report stated that:
“The
application of the so-called
Mosi Bagyina principle (as
stated in
Mosi V. Bagyina [1963] 1GLR337
SC) by the court was
seriously flawed. Fortunately,
Order 30 does not exist in its
pristine form in the new High
Court (Civil Procedure) Rules,
2004 (C.I 47). Further, the new
Order 81 has made it clear that
perhaps apart from lack of
jurisdiction in its true and
strict sense, any other wrong
step taken in any legal suit
should not have the effect of
nullifying the judgment or the
proceedings. This means the
principle stated in Mosi V.
Bagyina [1963] 1 GLR 337 SC has
been rendered otiose.”
In summary,
non-compliance with the rules of
procedure or any existing
practice is a mere irregularity
that does not automatically
render proceedings following the
non-compliance void. A party who
becomes aware of the
non-compliance is at liberty to
bring an application to the
Court and have the proceedings
set aside.
However we
wish to stress that the language
in Order 70 of LN140A or for
that matter Order 81 of C.I.47
cannot be interpreted to
overcome or waive a High Court’s
actual lack of jurisdiction. Ex
parte Allgate Co. Ltd supra.
So where for example the whole
subject-matter of the action
affect an immovable property
situate outside the jurisdiction
of Ghana, then non-compliance of
Order 2 r4 now Order 8 of C I 47
cannot be waived to cure the
deficiency in jurisdiction.
The
subject matter of the action
begun by the writ issued by the
plaintiff for compensation for
the termination of an agency
agreement executed by her in
Ghana on behalf of the defendant
is manifestly within the
jurisdiction of the court.
Accordingly we hold that the
non-compliance of Order2 r.4 of
LN140A in this case was a mere
irregularity which did not
derail the jurisdiction of the
court.
Setting aside
for irregularity
The rules
require that no application to
set aside any proceedings for
irregularity shall be allowed
unless it is made within a
reasonable time and the party
applying has not taken any fresh
step after knowledge of the
irregularity.
The Court of
Appeal held that counsel
received service of the writ in
Ghana and fully participated in
the proceedings till judgment
and so the defendant can be said
to have waived its objection to
the jurisdiction of the court.
The defendant
submits that the above findings
were wrong as the writ was
served on the defendant in
Holland and the brief referred
to counsel by defendant’s
solicitors in England. Counsel
claimed he only realised the
breach after he received the
record of appeal. We are taken
aback by this statement as the
address for service of the writ
was that of Holland where the
defendant was served. In the
circumstances it is reasonable
to expect that the first and
primary duty of any astute
lawyer who received a brief from
a client domiciled abroad was to
ascertain and be satisfied that
the rules regarding service out
of the jurisdiction has been
complied with before taking any
further step aside from entering
appearance. Such information
could easily be obtained by
simply filing a search in the
High Court registry. We regret
to say that Counsel was indolent
and failed to exercise due
diligence in the matter.
We do not
think Counsel’s failure to
discover the non-compliance in
time should render the whole
proceedings, in which the
defendant actively participated
and pursued a counterclaim, a
nullity. We consider the
objection at this time trifle
and highly unreasonable, more
so, as the subject matter of the
action began by the writ falls
within the jurisdiction of the
court.
Under the
then Order 70 of LN140A, as
under Order 81 of C. I. 47 this
Court has discretion to either
set aside the proceedings or
make any orders as it deems fit.
Looking at the circumstances of
this case we see no evidence of
disadvantage occasioned by the
irregularity, or erosion of
natural justice. Accordingly we
do not think it is fit and just
to set aside these whole
proceedings for a mere
irregularity.
For these
reasons the appeal fails on this
ground.
For the other
grounds of appeal counsel for
the defendant merely relied on
the submissions filed on its
behalf before the Court of
Appeal without showing us where
the Court of Appeal erred in
dismissing the appeal. We frown
upon such practice as the appeal
before us is not against the
judgment of the trial court but
that of the Court of Appeal.
Even though an appeal is said to
be a rehearing, the defendant
bears the burden of satisfying
this Court that the judgment
rendered by the Court of Appeal
is defective. It follows that
the defendant should identify
the alleged errors of law and
errors of fact and or
misdirection in the judgment and
state the grounds relied on in
asserting that the judgment is
defective. It is not sufficient
for an appellant to state that
he or she disagrees with the
outcome of the case or merely
repeat the arguments submitted
before the Court of Appeal
without pointing out what went
wrong.
AWARD OF
COMPENSATION
At the Court
of Appeal the defendant
questioned the legal basis of
award of compensation to the
plaintiff following the
termination of the agency
relationship between the
parties. He submits that at
common law, in the absence of
express agreement to the
contrary, a principal is not
obliged to pay compensation to
an independent agent on
termination of the agency. He
submits further that there was
no provision in the various
contracts, Exhibits A and B
that in the event of
termination, compensation should
be paid to the agent, neither is
there a provision in the
contract that any issue not
provided for in the contract
should be resolved by resort to
rules in Holland and England.
The
plaintiff responded that in
clause 19 of Exhibit A it was
the express understanding of the
parties that all matters
relating to the agency agreement
were to be construed in
accordance with the laws of
England. The Court of Appeal
affirmed the decision of the
High Court on this issue.
The Defendant
has failed to demonstrate where
the Court of Appeal erred. We
find that on the evidence the
plaintiff was entitled to
compensation in accordance with
the laws of England as agreed
upon
in Exhibit A
which Mr. Hendrik Anno
Vanderveen a legal adviser to
the defendant company in
cross-examination admitted the
company validated when they
signed Exhibit B.
We find that
under the regulations 17 (1)
(3) (6) and (7) of the
Statutory
Instrument, 1993, No. 3053,
Commercial Agents (Council
Directive) Regulations, that
was tendered in evidence as
Exhibit E by the plaintiff,
commercial agents are entitled
to be indemnified or compensated
upon termination of the agency
agreement.
We therefore
affirm the finding by the Court
of Appeal that the plaintiff is
entitled to compensation. We
therefore dismiss the appeal on
this ground.
Quantum of
Damages.
The Court of
Appeal affirmed the quantum of
general damages awarded by the
High Court to the plaintiff in
the sum of $500,000 with
interest from 1/5/94 to date of
payment. We find this amount
excessive as the Court of Appeal
unjustifiably gave too much
weight to Exhibit Aa that
contained a claim of $1.3million
against the defendant
notwithstanding that it had been
admitted in evidence. We find
the claim for the sum of $1.3
million exaggerated as borne out
by the evidence of PW2.
According to
PW2, the defendant offered the
plaintiff NLG 120,000, the
equivalent of $70,000 being one
year commission which was
rejected. He added at page 77 of
the record that:
“We are
claiming an amount of $1.3
million but the actual claim is
for $500,000.”
From this
statement we even doubt if the
actual claim is $500,000 and the
contents of Exhibit Aa are
trustworthy. In
Ghana
Ports & Harbours Authority &
Another v. Nova Complex Ltd.
[2007-2008] GLR 806 at 835
Georgina Wood CJ held that:
“Under
section 125 (1) of the
Evidence
Act (NRCD 323), it is not
every entry of a business record
that may be admitted in evidence
or accorded full weight if
received in evidence, but only
those entries of transactions
which satisfy these three
statutory requirements, namely:
that (i)the entry was made in
regular course of business; (ii)
the entry was made
contemporaneously with the event
in question; and (iii) the
sources of information, the time
and method of preparation were
such that the facts contained in
the entry can be said to be
reasonably trustworthy.
The defendant
offered the plaintiff $70,000 as
one year compensation which in
our view was to low in view of
the effort the plaintiff has
made to promote the defendant’s
products in Ghana and the heavy
investment she had made in
respect of the agency, which as
a result of the termination of
the agency she would not be able
to amortise the cost and
expenses incurred in the
performance of the agency
contract.
We find the
award of $500,000 rather
excessive. In the circumstances
we think the award of $280,000
i.e. compensation for 4 years at
$70,000 per year would meet the
justice of the case. This court
awards interest thereon at the
prevailing United States dollar
rate as stipulated by the Bank
of Ghana to be calculated at
simple interest from the date of
the judgment of the High Court
to date of final payment.
Special
Damages
We do not
find any reasons to disturb the
award of GH¢ 4,700 of special
damages.
Other grounds
of appeal
All the other
grounds of appeal are hereby
dismissed as the defendant has
not shown us the defects in the
findings made by the Court of
Appeal on those issues. We find
no reasons to disturb those
findings.
Conclusion
Except for
the variation in the award of
compensation the appeal is
dismissed.
(SGD.) S. O. A.
ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
(SGD.) S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
(SGD.) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD.) N. S.
GBADEGBE
JUSTICE OF THE SUPREME
COURT
(SGD.) V. AKOTO-BAMFO
(MRS)
JUSTICE OF THE SUPREME
COURT
COUNSEL;
AMARKAI
AMARTEIFIO WITH HIM AMARKAI
AMARTEIFIO JNR. AND NAA AMERLEY
BORTEI-DOM. FOR THE APPELLANT. |