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HASNEM ENTERPRISES LIMITED v. IBM WORLD TRADE CORPORATION [16/5/2001] CA 2/98.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA

_________________________

CORAM:  AMPIAH, J.S.C. (PRESIDING)

ATUGUBA, J.S.C.

MS. AKUFFO, J.S.C.

LAMPTEY, J.S.C.

ADZOE J.S.C.

CIVIL APPEAL NO. 2/98

16TH MAY, 2001

HASNEM ENTERPRISES LIMITED         ....      PLAINTIFFS/APPELLANTS/ RESPONDENTS

VERSUS

IBM WORLD TRADE CORPORATION  ....    DEFENDANTS/RESPONDENTS/ APPELLANTS

________________________________________________________________________________

JUDGMENT

AKUFFO, J.S.C:

I have been privileged to see beforehand the erudite opinion of my brother Mr. Justice Adzoe, J.S.C. and, for the reasons stated therein, I am in full agreement with him that the appeal must succeed and the decision of the Court of Appeal be set aside.

I will therefore limit this opinion to the issue, raised in paragraph (c) of the additional grounds of appeal, regarding the proper period over which the interest awarded should remain exigible. In its amended counterclaim, filed on May 04, 1988, the appellant claimed an amount of ¢58,213.04 as the sum due for maintenance services previously rendered to the respondent, together with interest thereon at the Bank rate prevailing at the date of judgment, from 20th December 1984 up to the date of final payment. The trial court, after finding the said amount as being justly due and payable by the respondent, however, awarded interest thereon up to the date of the judgment, i.e., 16th May 1990. According to the appellant, taking into account the time lapse between the judgement of the trial court and that of the Court of Appeal, the latter, in upholding the counterclaim ought to have varied the trial court's order and awarded the interest to be  calculated from 20th December 1984 to the date of final payment at the prevailing bank rate.

Since there was no contract between the parties stipulating the payment of interest on any amount arising from the services of the appellant, the trial judge, correctly, based his order on the provisions of the Courts (Award of Interest) Instrument,, 1984 (LI 1295), which reads as follows:—

"Where in any civil case or matter the Court makes an order for the payment of interest on any sum due to the plaintiff other than any sum claimed by the Plaintiff under Order 13 rule 3 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) the rate at which such interest shall be payable shall be the Bank rate prevailing at the time the order was made by the Court, but no compound interest shall be awarded."

However, it is clear that the only factor governed by this statue is the rate of interest to be applied to the sum due. Thus, the time span over which the interest should be calculated is left to the discretion of the Court and should, therefore, be determined by the dictates of the circumstances of the matter. As was stressed by Brobbey, J.A., in his dissenting opinion in the Court of Appeal, discretion must be exercised judicially and whether or not discretion has been properly exercised must be ascertainable from the reasons given for the exercise or the basis for the discretion. In deciding to order the interest to be payable up to the date of the judgement, the trial judge appears to have relied upon the decision of the High Court in Holland West Africa et al V. Pan African Trading Company et al. [1976] 2 GLR 179, wherein Edusei, J, awarded interest with effect from the date the cause of action arose up to the date of the judgement of the trial court. That case, however, had nothing to do with ascertainment of the date on which the calculation of interest ceases and the learned Edusei, J., like the trial judge in the matter herein, did not give any particular reason for deciding that the interest cease on the date of his judgement.

The underlying principle for the award of interest is now well settled and was spelt out by Lord Denning MR, in the celebrated case of Harbutt's Plasticine Ltd V. Wayne Tank and Pump Co. Ltd. [1970] 1 All ER 225 at page 236, as follows:—

"... the basis of an award of interest is that the defendant has kept the plaintiff out of his money; and the defendant has had the use of it himself. So he ought to compensate the plaintiff accordingly."

(See also Jefford V Gee [1970] 1 All ER 1202, wherein the English Court of Appeal was guided by this principle.) In the earlier case of London, Chatham and Dover Railway Co. V. South Eastern Railway Co [1893] AC 429, Lord Herschell LC had put the matter even more graphically as follows:—

"... when money is owing from one party to another and that other is driven to have recourse to legal proceedings in order to recover the amount due to him, the party who is wrongfully withholding the money from the other ought not in justice to benefit by having that money in his possession and enjoying the use of it, when the money ought to be in the possession of the other party who is entitled to its use. Therefore, if I could see my way to do so, I should certainly be disposed to give the appellants, or anybody in a similar position, interest upon the amount withheld from the time of action brought at all events."

Clearly this is the same principle guiding LI 1295. That being the case, since the appellant's claim for interest related to a commercial debt owed by the respondent, which debt, as far as the record shows, remains unpaid up to now, it stands to reason that such interest continue at least until the date of final judgement, if not the date of final payment. Otherwise, if the respondent does not settle the amount due immediately after the entry of judgement, what justice will the appellant have received from the courts for the respondent's unjustifiable withholding and use of the money all these years?

Moreover, in May 1990 when the trial judge made his order, the prevailing Bank rate of interest applied by the court was 30% per annum and the average rate of exchange between the Cedi and the US Dollar was ¢275.00 to US$1.00 Eleven years down the line, the applicable rate of interest may be put at 45%, per annum and the average rate of exchange is ¢7,200.00 to US$1.00. These factors clearly demonstrate the extent to which the value of the appellant's money has eroded over the period that it had not only been deprived of the ownership of the money but also the use of it. In his dissenting opinion in the Court of Appeal, Brobbey, J.A., who was of the view that the interest be exigible until the date of final judgement, expressed himself on this issue as follows:—

"Another policy reason why interest should be ordered exigible to the date of final judgement is this:

In a country like ours with rapid rate of inflation, if a person is ordered to pay money and payment is not made immediately, or within a reasonable time, the value of the amount ordered to be paid will trifle into insignificance with the effluxion of time, for instance a debt of five million Cedis in 1988 which was not paid till 1995 will be worth about half that amount in 1995. A ruling that interest should be paid only up to the date of judgement of the trial Court will amount to this: If the debtor can avoid the creditor for some time after that judgement has been delivered, he will be better off. A ruling to that effect will therefore encourage debtors not only to be evasive and therefore bad debtors, but will do injustice to the creditor who will not only continue to be deprived of his money and the use of it, but also cause that creditor to suffer unduly from the effects of inflation resulting in reduction of the value of the money, for as long as the debtor can put off payment of the trial court's judgement. An effective means of putting off payment of the amount ordered is to pursue litigation in our courts. However seemingly hopeless the appeal may be, the debtor will be encouraged to pursue it because knowing how lengthy appeals in this country take to be concluded, by the time the case reaches the Supreme Court, the debt would have been swallowed by inflation....... It is my view that the courts owe it as a duty to discourage litigation and encourage the debtors to honour their obligations or pay their debts but not to encourage them to be evasive and litigious."

I wholeheartedly endorse this view. However, it is my humble opinion that we must go even farther, in order to give full effect to the aforesaid underlying principle. Consequently, since the trial judge gave no specific reasons for his order, the same may be varied and I believe this court owes it as a duty to the appellant, and to creditors in a similar position, to order, firstly, that the interest on the amount owed must run on the amount due, or the reducing balance thereof, up to and inclusive of the date of final payment. Secondly, by virtue of Section 2(4) of the Courts Act, 1993 (Act 459) this court has all the powers vested in the High Court by the Constitution and any other law, which includes LI 1295. In the circumstances therefore, it stands to reason that, in order to give the appellant a just and equitable recompense for the respondent's unlawful withholding and use of its money, the rate of interest applicable to the amount due must be that currently prevailing. I am fortified in this view by the recent decision delivered by this court in the case of Waseem Attieh V Koglex Ltd. et als, unreported S.C. judgement in suit no. C.A. 3/2000, dated May 09, 2001, wherein interest was awarded "at the current bank rate" from 1st may 1990 up to the date of final payment.

It needs to be noted, however, that the Bank of Ghana no longer fixes a specific bank rate of interest. As such therefore, these days, the prevailing rate of interest differs from bank to bank. The only bench mark that influences interest charged by individual banks, is the rate of interest payable by the Bank of Ghana on its 90-day Treasury Bills; presently, this is 45%. Clearly, therefore, this is the rate of interest that must be applied in this case. At the end of the day, the appellant, as creditor, must be seen to have been placed in the same position it would have been in had the respondent, as debtor, settled its debts in due time.

Finally, I wish to add that, given the fiscal realities that have prevailed in this country over the past two decades and the recalcitrance of too many debtors in the fulfilment of their obligations, it would augur well for the country if LI 1295 were amended to give the Court the power to award compound interest. Compounding interest on debts is, perhaps, the only effective mechanism, which will allow the amount due to grow in line with inflation, provided the correct rate of interest is also employed. Economic development depends, to a large extent, on healthy financial interaction and transaction; these, in turn, cannot exist without credibility. It is only when participants in business live up to their legal obligations, and cease using the processes of the courts to evade financial responsibilities that this country can finally launch itself firmly on the road to economic success. Where money is unjustly withheld, then the creditor must be seen to have been justly recompensed by the debtor for the unjust use of other people's money. Any system that tends to encourage, debtors to shirk their responsibilities benefits no one but such delinquent debtors, and poor debt servicing in the business sector only fans, further, the flames of inflation. It seems to me that if the consequences of delinquency were made less appealing than they are now, then the attraction of needless protracted litigation would be significantly reduced.

ADZOE, J.S.C.:

In July, 1977 the Respondent company purchased from the Appellant company an IBM Copier II Machine for an amount of ¢33,000.00. That same month the Appellant company installed the machine for the Respondents in Cape Coast. It is quite clear that up to about 1984 the engineers of the Appellant company serviced the said machine for the Respondents, but thereafter the Appellants declined to do any further servicing. The Respondents claim that when the machine broke down again in February, 1986 they made several demands on the Appellants to effect the necessary repairs but the Appellants wrongfully refused to do the repairs which resulted in the Respondents' inability to function in their business. They claimed they suffered loss. Accordingly, on 17th March, 1987 the Respondents sued the Appellants at the High Court claiming as follows:

(i) Specific Performance of an (oral) agreement between the Plaintiff Company and the Defendant Company made in 1977 for an After Sale Service of the Plaintiff company's IBM Copier II Machine "on call basis".

They also claimed ¢1,205,000.00 special damages representing loss of income, interest on the said amount at the rate of 25% from 1st April, 1986 to the date of final judgment, and also mesne profits, plus interest thereon.

The Respondent took pains to set out in their statement of claim various particulars of the alleged oral agreement. I need to set out two paragraphs of the statement of claim in order to make for a clear appreciation of the basis of the Respondents' claims.

Paragraph 4 of the statement of claim reads:

"Previously to the supply of the said IBM copier Machine by the Defendant company to the Plaintiff company, it was agreed that the Defendant company would provide an exclusive maintenance service, designated as After Sale Service and for a fee and/or "On Call Basis" and also for a fee."

In paragraph 7 of the statement of claim the Respondents alleged as follows:

"7. The Plaintiff company avers that it accepted the offer to buy the said IBM Copier II machine upon the clear undertaking that it is trade policy of the defendant company that its products are serviced and maintained exclusively by the defendant company or its appointed agents for whom the defendant company on various occasions as shall be noted in paragraph 11, 12 and 13 of the Plaintiff company's letter dated 28/11/1985 ... and letter dated 30/6/86."

The Appellants denied having made any oral agreement with the Respondents; they claimed that the Respondents declined to enter into a maintenance service agreement with the Appellants and insisted that whatever maintenance service they rendered to the Respondents was on a case by case basis under a scheme described as "On Call Basis" which did not create any standing contract binding the Appellants. In effect the Appellants claimed that they were not bound by any contract which the Respondents could call upon them to specifically perform.

The trial High Court found that there was no enforceable contract between the parties and dismissed the Appellants' claim. But the Court of Appeal reversed that judgment by a majority decision of 2-1 and held the Appellants liable to the Respondents' claims, and the Appellants have therefore come before this court for a final determination.

The original grounds of appeal before us are:

1. The judgment is against the weight of evidence on record.

2. The Court of Appeal erred in rejecting findings of fact made by the trial High Court which had had the benefit of observing the demeanour of witnesses, and substituting its own findings of fact and thereby occasioning substantial miscarriage of justice to the Defendant/Respondents/Appellants.

3. Further grounds of appeal have been filed, but in my opinion the original ground one is enough to decide the matter.

They plead in relief that we set aside the judgment of the Court of Appeal and restore the judgment of the trial High Court.

It is clear that the Respondents based their claim on what is known as the principle of promissory estoppel. Some call it equitable estoppel. Denning, J. (as he then was) expressed it in the case of Central London Property Trust Ltd. vrs. High Trees House Ltd. (1947) KB. 130 where it was held that:

"Where parties enter into an arrangement which is intended to create legal relations between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promisee, the court will take the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even although the promise may not be supported by considerations in the strict sense..."

In the several decisions which followed the High Trees Case, the principle saw significant amplification's on its terms of application. And in the case of Evenden vrs. Guildford City Football Club (1957) 3 All E.R. 269, Lord Denning, now as Master of the Rolls, at page 273 of the Report said that the principle applies whenever the representation is made "whether of fact or law, present or future which is intended to be binding, intended to induce a person to act on it and he does act on it".

In the case of Combe vrs. Combe (1951) 1 All E.R. 767 the same Lord Denning reviewed the cases and observed:

"In none of these cases was the defendant sued on the promise, assurance or assertion as a cause of action in itself: he was sued for some other cause, for example, a pension or a breach of contract, and the Promise, assurance or assertion only played a supplementary role, an important role, no doubt, but still a supplementary role. That is, I think, its true function. It may be part of a cause of action, but not a cause of action in itself".

It is thus clear from the authorities that a party who is relying on the principle of promissory estoppel must make out a clear case that such a promise was made intended to be binding, intended to induce him to act on it and that he in fact acted on it. I think that such alleged promise or representation forms a vital part of the cause of action and must be proved. In all the decided cases in which the principle was applied the promise or representation is established as having been made. it is not a matter of conjecture and speculation. Where it is to be inferred, the facts must exist which justify the inference. Chitty on Contracts is emphatic that to bring the principle into operation "the promise or representation must be clear, or unequivocal, or precise and unambiguous". See 25th Edition: Vol. 1 pp. 119-200. I am not be understood as saying that the promise or representation must be express; it may be implied where the course of the negotiations between the parties justify it. But the promise or representation cannot be a matter of mere speculation.

It is also clear from the authorities that if the promise or representation was indeed, made, the promisee must show that the promise or representation influenced his conduct. To my mind, it seems therefore that the principle will not apply if it is shown that a party's conduct was not influenced by the promise. As stated in the case Societe Italo-Belge (1981) 2 Lloyd's Rep. 695, 701, for the principle to apply the promisee must be shown to have altered his position in reliance on the promise so that it will be inequitable to allow the promisor to act inconsistently with it.

The case of Evenden vrs. Guilford City Association Football Club Ltd (1957) 2 All E.R. 269 which I have already referred to and to which the majority judgment in the Court of Appeal also referred may give us a clear illustration of the points I have tried to highlight. The facts of the case can be stated briefly:

Mr. Evenden was employed as a groundsman at the football ground at Guilford. He was employed by the Guilford supporters Club and worked with them from August, 1955 up to October, 1968. The supporters club paid him. In 1968 there was a re-arrangement whereby he ceased to be employed by the supporters club; instead of the supporters club, the football club itself employed him to do the same job that he did for the supporters club. During the changeover from the supporters club to the football club a definite agreement was made to the effect that Mr. Evenden's service should be regarded as unbroken. In 1974 he was dismissed by reason of redundancy and the question was whether he was entitled to redundancy payment from 1955 or from 1968 when the football club took him on. Lord Denning applied the doctrine of Promissory estoppel and held that the football club was bound to pay the benefits from 1955. The case, he said:

"... falls within the principle of Central London property vrs. High Trees House Ltd. At the meeting of October, 1968 there was a clear representation by the football club that Mr. Evenden's employment would be treated as continuous. That representation was intended to be binding and intended to be acted upon. He did act on it. He did not claim from the supporters' club the redundancy payment to which he would otherwise have been entitled from the club. Six months later his claim against the supporters' club was barred by lapse of time. It would be most unfair for the football club to go back now on that representation. They must be bound by it in the Industrial Court and elsewhere."

Now, the question raised by ground I of the appellants' appeal could be put this way: Did the evidence before the trial court support the finding made by the Court of Appeal that the Appellants were bound in law to repair the machine sold to the Respondents within the framework of the doctrine of promissory estoppel? The appellants say that the finding made by the Court of Appeal is against the weight of evidence.

The crux of the Respondents' case as pleaded in the Statement of Claim is that before they purchased the machine "it was agreed that defendant company would provide an exclusive maintenance service, designated as 'After Sale Service' for a fee and/or 'On Call Basis' and also for a fee".

The appellants denied this averment and contended in paragraph 16 of the Statement of Defence that it was "12 months after the sale when the warrant period had expired" that they asked the Respondents to enter into a maintenance service agreement with them but the Respondents declined to enter into any such agreement. I understand the "warrant period" to mean that the Appellants had undertaken or guaranteed that for a period of 12 months after the delivery of the machine they would repair or replace it, if necessary. Certainly it does not appear that it is any such warranty which the Respondents rely on because their case is that the agreement to repair the machine was for "life services" promised by the appellants. Their representative who testified before the High Court said in his evidence that he bought the machine from the company "because of the 'life services' it was to give to me and because of after sales services promised me by their Sales Manager with whom I had discussions prior to the purchase". On the other hand he also told the Court that:

"Before the machine was installed the defendants gave me two specific instructions with regard to its maintenance, namely maintenance agreement or after call service".

Thus apart from the promise before the sale and the supply, there was also an agreement after the supply but before the installation. According to the evidence, therefore, the respondents purchased the machine because they relied on the pre-sale promise by the appellants that they would service the machine throughout its full life span of operation, and when the machine arrived they were asked to choose between two options of agreement. On that evidence the Court of Appeal rightly, in my view, came to the conclusion that

"the plaintiff's case is not dependent solely on the per call service per se, but more importantly the pre-sale agreement or promise by the defendants' Sales Manager to the effect that the company would provide exclusive after-sale maintenance."

Let me deal first with the alleged pre-sale promise or agreement because it is the main issue which involves the doctrine of promissory estoppel which the respondents rely on. They say it is the pre-sale agreement or promise which induced them to buy the machine. Without that promise they would not have bought it.

I am unable to find any evidence in support of respondents' contention. It is one thing pleading a cause and repeating it in Court, and another thing providing evidence in support of the causes so pleaded. It is a common rule of evidence that except in certain special circumstances, a party who relies on a fact must prove it. Section 14 of the Evidence Decree, 1975, (NRCD 323) provides that the burden of persuasion as to the existence of a fact lies on the party to whose case the fact is essential. In their effort to establish the pre-sale agreement or promise the respondents sought to rely on certain letters, particularly Exhibit I and Exhibit B. Exhibit I was a letter dated 16/4/86 and written by the appellants to the respondents. It was a reply to some letters from the respondents in which they (respondents) had complained that the appellants did not serve them with a certain notice. The appellants in Exhibit I simply sought to tell the respondents that they (respondents) were not entitled to that notice. The relevant portion of that letter, Exhibit I stated:

"You complained you were not notified. I informed you the letters were targetted to customers we had contracts with us for maintenance. You did not have maintenance agreement hence we did not have any agreement to cancel."

Exhibit B from the respondents also merely complained about the appellants' refusal to go to Cape Coast to inspect the machine. Its contents were to the effect that the machine had broken down and some instructions appeared on the key board which read:

"If the light does not go out call IBM services."

According to the letter the respondents had telephoned the appellants on 30/7/82, and expected appellants to send an engineer; it was because the engineer did not go to the respondents that they were writing Exhibit B to the appellants. Referring to the directive which appeared on the machine, Exhibit B continued as follows:

"This directive was the reason for our telephone call to your engineering department on Friday July 30, 1982.... The purpose of writing this letter is to inquire from you why we have to wait for your engineer to have another job in Cape Coast before our request is attended to. You will agree with us that we have promptly honoured all bills sent to us to enable us have your confidence in our 'call service' with you."

Quite clearly these letters do not make out any agreement or promise or representation which can form the basis for the operation of the doctrine of promissory estoppel as decided by the authorities or as provided for in Section 26 of the Evidence Decree (NRCD 323).

The Court of Appeal heavily relied on the fact that the appellants were "the manufacturers of the machine", the fact that "it was new on the Ghanaian market", the fact that "it was rare and expensive" and the direction "call IBM Service" as sufficient grounds for the conclusion that the Sales Manager of the appellants was likely to assure a prospective purchaser of exclusive after-sale services, and observed that "the defendants could not have certainly enticed their customers without such exclusive after-sale service assurance". That is stretching the law to a point of absurdity. What the law looks for is the outward manifestations of an agreement, not speculation. As is stated by Anson in his book "The Law of Contract" (25th Edition at p. 12):

"Agreement is not a mental state but an act, and as an act, it is a matter of inference from conduct. The parties are to be judged, not by what is in their minds, but by what they have said or written or done."

I hold that the respondents did not establish the pre-sale agreement or promise and that the conclusion reached by the Court of Appeal is not clearly supported by the evidence.

The matter does not end there, however. The respondents also relied on what the parties call "per call" service agreement and in my judgment we must examine the scope and legal effect of that agreement. This is how the respondents put it.

"The explained maintenance agreement to mean entering into an agreement whereby I pay a specific sum of money so that whenever the machine was faulty they would come down and service it. The after-call service meant whenever the machine was faulty I would call upon them to come and service it and after the service I would pay them upon presentation of their bill."

The evidence indicates that the respondents did not enter into the maintenance agreement. They opted for the per call service agreement. The appellants also admit that they serviced the machine on per call basis. The trial judge held that the per call agreement did not constitute a standing or permanent contract binding on the appellants to attend to every call made by the respondents. I agree with the learned trial judge. As Lord Buckmaster observed in the House of Lords in the case of May and Butcher vrs. R (1934) 2 K.B. 17

"It has long been a well-recognized principle of contract law that an agreement between two parties to enter into an agreement in which some critical part of the matter is left undetermined is no contract at all."

It is unfortunate that the Court of Appeal ignored this aspect of the respondents' claim. My understanding of the per call arrangement, is that the contract negotiations under it will start when the respondents call on the appellants to come and repair the machine. In contract law that will be an offer. The appellants might or might not agree to do the job depending on such negotiations as they might have with the respondents with regard to such matters as the cost involved, availability of materials and other charges. If the two parties come to an agreement on all essential issues and the appellants agree to do the work, there is then in law an acceptance which will constitute the negotiations into a concluded bargain called a contract. Each offer and acceptance will be a separate contract and no one of such contracts will bind the appellants to continue servicing the machine until doomsday. If it is so, then the appellants have not been shown to be in breach of any contract and the respondents' claim must be dismissed. That is the inevitable conclusion on the facts and I do not see any justification for the conclusions reached by the Court of Appeal.

It may be observed that the respondents believed that the contract or promise they claimed to have been made by the appellants could be found in the letters exchanged between them and the appellants. It was not easy to find it. Most of those letters said very little in favour of the respondents' case, and rather cumulatively emphasised the appellants' denial of a contract. The rule is that where a court has to find a contract in correspondence, and not in any one particular document, the entire set of correspondence which passed between the parties must be taken into consideration. In Thomas Hussey vrs. John-Payne & Anor. (1879) 4 App. Case 311, Earl Cairns, the Lord Chancellor said at p. 316:

"The second requisite in this case he proposes to supply through the medium of letters which passed between the parties, and it is one of the first principles applicable to a case of the kind that where you have to find your contract, or your note or your memorandum of the terms of the contract in letter, you must take into consideration the whole of the correspondence which has passed. You must not at one particular time draw a line and say 'we will look at the letters up to this point and find in them a contract or not, but we will look at nothing beyond'. In order to fairly estimate what was arranged, if anything was agreed between the parties, you must look at the whole of that which took place and passed between them."

I would uphold the appellants' contention that the conclusion reached by the Court of Appeal is not supported by the evidence and allow the appeal.

I find it necessary to make a brief observation about the additional ground (b) filed by the Appellants. The argument urged on this ground is that even if there was an enforceable agreement in existence binding on the Appellants to service the machine, it was wrong for the Court of Appeal to have granted an order of specific performance to the Respondents who had failed to pay for services rendered to them by the Appellants in fulfilment of that contract. The answer provided by the Court of Appeal to the Appellants' contention is this:

"Now the defendants further contend that assuming the 'Per Call' service was binding on them, the plaintiff breached, or released them of their obligation by first, their failure to settle the outstanding bill of ¢58,213.04... The trial judge held that ..(this) released the defendants of their obligations if even the per call service is accepted to be binding on the defendants. Now the law is that a contract is not discharged automatically by breach unless the party not in breach elects to treat the breach as a repudiation of the contract."

The learned judges therefore held that the nonpayment of the bill could not release the appellants from their obligation under the per call agreement.

With due deference to their Lordships, I think their conclusion was in error. It must be borne in mind that specific performance is an equitable relief. It is exceptional in its character, and a Court has the discretion either to grant it or to refuse it. That discretion is exercised on fixed principles. One such principle is that a plaintiff who seeks specific performance of a contract must show that he is ready and willing to perform his own obligation under the contract, and any  failure on his part, or breach of his own obligation is a bar to his claim for specific performance. (Vide Halsbury's Laws of England 3rd Edition, Volume 36, paragraph 391).

This principle of contract law is quite different from the principle of repudiation which the Court of Appeal relied on.

Finally, I would touch briefly on the issue of the interest exigible on the debt of ¢58,213.04 due from the Respondents to the Appellants. The Appellants contend that the order to pay interest should have been varied by the Court of Appeal to run up to the date of payment of the debt. In their counterclaim what the Appellants asked for was interest until the date of final judgment. The trial judge assessed it at ¢95.595.75 as at the date of the High Court judgment on 16/5/90. The majority opinion of the Court of Appeal accepted that the High Court was right in awarding interest but did not consider varying it. They did not consider raising it because the point was not taken before them. The Appellants now seek a variation for an order that the interest be made to run up to the date of payment. It is strange that the Appellants have not seen it fit to settle this indebtedness even after the Court of Appeal judgment. The debt is certainly of very little value to the Appellants on today's financial market and it is may opinion that in order to do justice to the Appellants, the variation sought by the Appellants must be granted. I order that the interest be paid at the prevailing bank rate from 20/12/84 up to the date of final payment.

See the case of Wassem Attieh vrs. Koglex Ltd. (unreported) decided by this Court on 9/5/2001.

In the result, the appeal succeeds. The judgment of the Court of Appeal is set aside. The High Court judgment is restored subject to the variation as to the exigible interest contained in this judgment.

ATUGUBA, J.S.C.:

The facts of this appeal have been amply related by my brethren, I will therefore repeat them only where necessary.

The plaintiff/appellant/respondent's (hereinafter referred to as the plaintiff) case was for:—

"(i) Specific performance of an (oral) Agreement between the plaintiff/company and the defendant/company made in 1977 for an After Sale Service of the plaintiff/company's IBM Copier II Machine "On Call Basis". (emphasis supplied).

(ii) The sum of ¢1,205,000.00 Special Damages being loss of income for 200 working days at the rate of ¢5,000.00 per diem as from 24h March, 1986 through 28th February, 1987.

(iii) Interest on the said sum of ¢1,206,000.00 at the rate of 25% per annum from 1st April, 1986 to the date of final judgment.

(iv) Mesne profits as from 1st March, 1987 up to the date of final judgment at the rate of ¢5,000.00 per diem."

Paragraph 4 of the plaintiffs' statement of claim avers:

"Previously to the supply of the said IBM Copier Machine by the defendant/company to plaintiff/company, it was agreed that the defendant/company would provide an exclusive maintenance service, designated as "After Sales Service" and for a fee and/or "On Call Basis" and also for a fee (emphasis supplied).

I should have thought subject to what I will hereinafter say, that the after sales service agreement, if otherwise certain as to its essential terms, constituted in itself another contract which was collateral to the sale agreement over the IBM copier machine. See SOWAH VRS. BANK FOR HOUSING & CONSTRUCTION (1982 - 83) G.L.R. 1324 S.C. The plaintiff must have regarded the after sale service agreement as a collateral contract, hence its endorsement on its writ of summons for

"Specific Performance of an (oral) Agreement ... for an After Sales Service of the plaintiff/company's IBM Copier machine "On Call Basis". (emphasis supplied).

That being so I should have thought that notions of promissory estoppel did not arise.

Indeed the genesis of the doctrine of promissory estoppel was aimed at curing the defect of a promise made in the course of an existing contractual relationship which was not supported by consideration. In their erudite book, Cheshire, Fifoot & Furmston's Law of Contract, (13th ed) the learned authors state at pages 100 - 101, concerning the famous decision of Denning, J. (as he then was) in Central London Property Trust Ltd. Vrs. High Trees House Ltd. (1947) K.B. 130, as follows:—

"The reasoning of the learned judge is interesting. He agreed that there was no consideration for the plaintiffs' promise to reduce the rent. If, therefore, the defendants had themselves sued upon that promise, they must have failed. Their claim would have depended upon a contract of which one of the essential elements was missing. But where the promise was used merely as a defence, why should the presence or absence of consideration be relevant? The defendants were not seeking to enforce a contract and need not prove one. Was there, then, any technical rule of English law whereby the plaintiffs could be prevented from ignoring their promise and insisting upon the full measure of their original rights? At first sight, the doctrine of estoppel would seem to supply the answer. By this doctrine, if one person makes to another a clear and unambiguous representation of fact intending that other to act on it, if the representation turns out to be untrue, and if that other does act upon it to his prejudice, the representer is prevented or 'estopped' from denying its truth. He cannot, as it were, give himself the lie and leave the other party to take the consequences. The doctrine would meet admirably the situation in the High Treescase but for one difficulty. In 1854 in Jordan v. Money, a majority of the House of Lords held that estoppel could operate only on a misrepresentation of existing fact. Upon this basis it was improper to apply it where, as in the High Trees case, a party sought to rely on a promise of future conduct.

To avoid this difficulty, Denning, J. sought to tap a slender stream of authority which had flowed in equity since the judgment of Lord Cairns in 1877 in Hughes v. Metropolitan Rly. Co."

I shall return to the question of promissory estoppel later. Is the said collateral agreement enforceable? I should think not. It is trite law that for an agreement to pass for an enforceable contract it must be certain, at least, as to its essential terms. A collateral contract has no special status. As stated by Lord Moulton in Heilbut, Symons & Co. v. Buckleton (1913) A.C. 30 at 47, a collateral contract

"is in every sense of the word a complete legal contract. It is collateral to the main contract, but each has an independent existence, and they do not differ in respect of their possessing to the full the character and status of a contract."

The agreement to provide the after sale service "for a fee", simpliciter, is ambiguous. Thus in the said Cheshire, Fifoot and Furmston's Law of Contract, at page 44 a reference is made to

"... the tensions created by the law's demand for a minimal degree of certainty before it will classify an agreement as a contract. Since most contracts are not negotiated by lawyers, it is all too easy for the makers to fail this test, particularly as legal and commercial perceptions of certainty may well diverge. So a lawyer would regard an agreement that goods are to be supplied at a reasonable price as prima facie sufficiently certain but would have much more doubt about an agreement 'for a price to be agreed between us.' Many businessmen would be much happier with the second agreement than the first." (emphasis supplied).

Apart from the element of fee, it is quite clear that though the plaintiff claims that the agreement was concluded in 1977, the parties kept on haggling over its terms long afterwards. Thus in Exhibit 6 at page 126 of the record the following is stated:

"IBM GHANA

June 28, 1978.

Hasnem Enterprises,

P. O. Box 500,

Cape Coast.

Dear Sir,

REPAIR OF COPIER, II

Thank you for your letter Ref. HE/OE/IBM/78/9 of June 27, 1978. We wish to confirm that our conversation on the telephone touched on terms to be covered by your letter requesting us to come and service your machine, since you have elected to pay for services rendered on each occasion of such service.

Your letter is only asking us to come and render services that does not include your commitment to pay for parts used and expenses Incurred such as travel, meals and accommodation (if it becomes necessary).

We are sorry that without this commitment we shall find it difficult to render the services required.

We hope to receive the requisite directives from you as early as possible to enable us undertake the services you require.

Yours faithfully/truly,

(sgd) S.A. Coleman

OPCE Field Manager."

The again at page 124 of the record Exhibit 4 states as follows:

"HASNEM ENT. Ltd.,

P. 0. Box 500,

Cape Coast.

February 25, 1985.

The Branch Manager,

IBM World Trade Corp.,

Mobil House,

Liberia Road,

P, 0. Box 1507,

Accra.

Dear Sir,

We acknowledge receipt of your letter dated January 7, 1985, with the enclosure of your 1985 personal diary for which we thank you.

We have also received your invoice No. 46124281 dated 19-12-84 for the sum of ¢58,213.04. Action is being taken to remit you our cheque in settlement of the Invoice.

The undersigned called at your office twice on Wednesday, 13th instant but could not meet you for discussion on your DP Products.

We would be most grateful if you could please arrange to meet the undersigned on Wednesday, 27th instant in your office between 9.00 a.m. and 9.4 5 a. m.

On the matter of our Memory typewriter which you returned to us without service for lack of spare parts, we would be most grateful if in future you could please avail us with your Overseas address from where we could be served when we place an order."

It is clear therefore that the parties did not reach an enforceable agreement in 1977.

The principle of promissory estoppel does not dispense with the requirement of certainty either. This was made clear per Lord Hailsham L.C. in WOODHOUSE AC ISRAEL COCOA LTD. V. NIGERIAN PRODUCE MARKETING LTD. (1972) A.C. 741 H. Lat 755 when he said:

". . .to give rise to an estoppel, representations should be clear and unequivocal, and if a representation is not made in such a form as to comply with this requirement, it normally matters not that the representee should have misconstrued it and relied upon it." (emphasis supplied).

Founding themselves on this case, Cheshire, Fifoot and Furmston's Law of Contract states at page 104 as follows:

"Finally, it is settled that there must be a promise, either by words or by conduct, and that its effect must be clear and unambiguous." (emphasis supplied).

Apart from this, estoppel, including promissory estoppel, is a shield and not a sword.

In Combe v. Combe (1951) 2 K.B. 215 at 220 Denning L.J. (as he then was) said:

"In none of these cases was the defendant sued on the promise, assurance or assertion as a cause of action in itself; he was sued for some other cause, for example, a pension or a breach of contract, and the promise, assurance or assertion only played a supplementary role, - an important role, no doubt, but still a supplementary role. That is, I think its true function. It may be part of a cause of action but not a cause of action itself. " (emphasis supplied).

I think it is in this sense that Cheshire, Fifoot and Furmston's Law of Contract states at page 103 that

"The doctrine operates only by way of defence and not as a cause of action." (emphasis supplied).

They however clarify this at page 104 to the effect that the metaphor in Combe v. Combe, supra, that the doctrine must be used as a shield and not as a sword "should not be sloppily mistranslated into a notion that only defendants can rely on the principle. There is no reason why a plaintiff should not rely on it, provided that he has an independent cause of action. So if upon the facts of Hughes v. Metropolitan Rly. Co, the landlord had gone into possession, putting the tenant into the position of plaintiff, the result would surely be the same. On such facts the tenant's cause of action would be the lease and the doctrine would operate to negative a possible defence by the landlord that, he was entitled to forfeit. As Spencer Bower says: 'Estoppel may be used either as a minesweeper or a minelayer, but never as a capital ship.' (emphasis supplied).

Now the facts in Hughes v. Metropolitan Rly. Co., (1877) 2 App. Cases 439 at 448 were that, in October 1874 a landlord gave his tenant six months' notice to repair the premises. If the tenant failed to comply with it, the lease could be forfeited. In November the landlord started negotiations with the tenant for the sale of the reversion, but these were broken off on 31 December. Meanwhile the tenant had done nothing to repair the premises. On the expiry of six months from the date of the original notice the landlord claimed to treat the lease as forfeited and brought an action of ejectment. The action failed. Lord Cairns said at page 448 of the Report:

"It is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results - certain penalties or legal forfeiture - afterwards by their own act or with their own consent enter upon a course of negotiations which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties." (emphasis supplied).

The doctrine of promissory estoppel has undergone expansion and refinements. It is not limited to only contractual relationships. In DURHAM FANCY GOODS LTD. V. MICHAEL JACKSON (FANCY GOODS) LTD. (1968) 2 Q.B. 839 at 84, Donaldson, J. commenting on the statement of Lord Cairns quoted, supra, said:

"Lord Cairns L.C. in his enunciation of the principle assumed a pre-existing contractual relationship between the parties, but this does not seem to me to be essential, provided that there is a pre-existing legal relationship which could in certain circumstances give rise to liabilities and penalties. " (emphasis supplied).

This principle was approved by Denning M.R. in EVENDEN V. GUILDFORD CITY ASSOCIATION FOOTBALL CLUB LTD. (1975) 1 Q.B. 917 at 924 when he said:

"Mr. Reynolds referred us, however, to Spencer Bower and Turner, Estoppel by Representation, 2nd ed, (1966), which suggests at page 340 - 342, that promissory estoppel is limited to cases where parties are already bound contractually one to the other. I do not think it is so limited: see Durham Fancy Goods Ltd. V. Michael Jackson (Fancy Goods) Ltd. (1968) 2 Q. B. 839, 847. It applies whenever a representation is made, whether of fact or law, present or future, which is intended to be binding, intended to induce a person to act upon it and he does act upon it," (emphasis supplied) and I should warn, not necessarily to his detriment.

But for all this, the doctrine of promissory estoppel has been liberalised into a cause of action in certain jurisdictions, such as the United States and Australia, see footnote 4 of page 104 of Cheshire, Fifoot and Furmston's Law of Contract, 13th ed. It would however, seem that in England and Ghana it can only be used indirectly as a cause of action where the plaintiff has an independent cause of action, as already stated supra, or as a direct cause of action in the limited situations of proprietary estoppel. Thus in QUIST V. GEORGE (1974) 1 G.L.R. 1 where a wife allowed her husband, the defendant to build a private hospital on her land, Abban J. (as he then was), held at page 14, in reference to the defendant's counterclaim,

"I have no doubt that the kind of estoppel which is available to the defendant in the present case, is more than a shield. In other words, it can also be a sword by which the person in possession may, in certain circumstances, compel the conveyance to him of the legal estate." (emphasis supplied).

Abban, J. however, on the facts of that case, declined the remedy of specific performance by conveyance of the legal estate to the defendant but rather gave him a lease of 25 years. Similarly Cheshire, Fifoot and Furmston's Law of Contract states in footnote 5 as follows:

"It seems that proprietary as opposed to promissory estoppel may in some cases support a cause of action. See Crabb v. Arun District Council [1976] Ch. 179, [1975] 3 All E.R. 865." (emphasis supplied).

This is the position, even though, as stated in footnote 1 at page 103 of Cheshire, Fifoot and Furmston's Law of Contract,

'In Crabb v. Arun District Council (1976) Ch. 179 at 193, (1975) 3 All E. R. 865 at 875, Scarman L.J. did not find the distinction between proprietary and promissory estoppel valuable." (emphasis supplied).

Even if this view is accepted it would still mean only a limited class of promissory estoppel, more conveniently known as proprietary estoppel, could be a direct sword rather than a shield.

There is no element of proprietary estoppel in this case and the agreement of after sales service being wholly collateral to the original contract of sale of the IBM Copier Machine the plaintiff could not and did not base its action in this case on the latter

"as an independent cause of action"

to enable him use promissory estoppel, as a sword rather than a shield. His action therefore fails.

In conclusion I hold that the plaintiff in this case ought to fail because in so far as its action can be said to sound in contract it lacks the requisite certainty of terms to qualify for enforcement by the courts, and in so far as it is said to be based on promissory estoppel it is also misconceived for uncertainty. It is further misconceived for being a sword rather than a shield.

For these reasons I concur in the allowance of the appeal.

AMPIAH, J.S.C.:

I have read beforehand, the opinion of my learned brother, Lamptey, J.S.C. and am in agreement with him that in so far as the appeal relates to the claim of the Plaintiff/Respondent, it should fail. I would however agree with my learned Sister Akuffo whose opinion on the counterclaim I have had the privilege to read beforehand, that the appeal should succeed on the question of interest and that on the counterclaim, the Appellant should be entitled to interest on its claim from the 20th December, 1984 to the date of final payment of the judgment debt.

LAMPTEY, J.S.C.:

On the 17th March, 1987 Hasnem Enterprises Limited (hereinafter called Hasnem) sued I.B.M. World Trade Corporation (hereinafter referred to as I.B.M.) and claimed in particular “specific performance of an oral agreement between Hasnem and I.B.M. made in 1977 for an after sale service of Hasnem’s I.B.M. Copier II Machine on call basis”. Hasnem also claimed consequential reliefs against I.B.M. The claim was resisted by I.B.M. In its statement of defence, I.B.M. counterclaimed against Hasnem the sum of ¢58,213.04 being amount due to I.B.M. in respect of maintenance services rendered by IBM to Hasnem on Hasnem’s Copier II Machine.” On the pleadings before the trial court, the substantive issue the court was called upon to determine was whether or not there was concluded in 1977 an oral agreement between Hasnem and I.B.M. to the intent and effect that I.B.M. should service and maintain Hasnem's Copier II Machine on call basis.

The trial judge dismissed the case of Hasnem and entered judgment for IBM on its counter-claim. Aggrieve and dissatisfied by the judgment Hasnem appealed to the Court Appeal. The main complaint made by Hasnem against the judgment of the trial judge was that it could not be supported by the evidence on record.

The Court of Appeal by a majority (2-1) decision set aside the judgment dismissing the claim and case of Hasnem. Judgment was entered for Hasnem. The Court dismissed the appeal by Hasnem against the counterclaim and affirmed the judgment in favour of I.B.M. on its counterclaim. I.B.M. was dissatisfied with the majority decision of the Court of Appeal and appealed to this court on the following grounds:

"(a) the judgment was against the weight of evidence on record.

(b) the Court of Appeal erred in rejecting findings of fact made by the trial court which had the benefit of observing the demeanour of witnesses, and substituting its own findings of fact and thereby occasioning a substantial miscarriage of justice,"

In due course, Solicitors acting for I.B.M. filed additional grounds of appeal and argued them to form part of the statement of case.

The first observation I must make is that Hasnem did not claim a "legal" contract or agreement. The claim of Hasnem was founded on the rule of equity; in this particular instance, "specific performance". The 1992 Constitution provides at article 11(2) as follows:

"11(2) The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrine of equity and the rules of customary law including those determined by the Superior Court of Judicature".

In my view, it would be palpably wrong to apply principles and or rules other than those generally known as the doctrines of equity in considering the case of Hasnem. The majority of the Court of Appeal adverted to this issue when Acquah, J.A. (as he then was) stated the law to be applied as follows:

"The principal has been described as a principle of justice and equity, and is extended to cover conduct. Thus in Morgate vrs. Twitchings (1975) 3 All E.R. 314 at 323 Lord Denning explained

'....... when a man by his words or conduct has led another to believe in a particular state of affairs he will not be allowed to go back on it when it would be unjust or inequitable for him to do so'. "

The learned judge went further to explain the true position of parties in such circumstances as follows:

"The principle is that a promise intended to be binding, intended to be acted upon, and in fact acted on should be binding. This principle which Lord Denning prefers to call promissory estoppel in a number of his cases include Evenden vrs. Guildford Football Club (1975) 3 All E.R. 269 applies:

'Whenever a representation is made whether of fact or law, present or future, which is intended to be binding, intended to induce a person to act upon it and he does act upon it'."

The statement does not admit of any ambiguity. I must point out that the conditions or terms of the promise need not be put down in writing. The operative words are promises made and, further, evidence of conduct which unequivocally and incontrovertibly are consistent with the promises.

In arguing original ground one on the notice of appeal, learned Counsel or IBM submitted that Hasnem failed to prove the existence of the oral agreement between it and I.B.M. on the evidence before the trial court. He reproduced extracts selected from the documents tendered in evidence and sought to establish that the claim of Hasnem was not proved by these. In reply, counsel for Hasnem contended that the evidence adduced by Hasnem proved and established a contract for service and maintenance of the machine. He argued the contract was not one for the supply of goods. He recited the pieces if evidence in support and proof of Hasnem's case.

In the address filed by counsel for I.B.M. before the trial judge the thrust of the case for I.B.M. as put forward was founded on and proved by Exhibit "1". This was how the argument was presented by counsel for I.B.M.:

"Submits that the Plaintiffs claim fails altogether so long as the same is stated on Exhibit "1". Then he proceeded to the conclusion—

'submits that the fact that defendants were from time to time servicing plaintiff's machine does not lead irresistibly to an enforceable contract between the parties'."

I note that in his address in reply, Counsel for Hasnem did not advert to the evidence contained in Exhibit "1", nor did he comment on it. The trial judge dutifully heeded the invitation by Counsel for I.B.M. and seriously considered the evidential value of Exhibit "1".

In considering the case of Hasnem, the trial judge expressed himself as follows: "Now to the plaintiff's claims against the defendants, I shall take the numerous correspondence between the parties which the plaintiff relied on as constituting binding legal agreements."

After due and critical examination and evaluation of the "numerous correspondence", he concluded that the numerous correspondence did not create a binding contract between the parties.

The majority of the Court of Appeal considered and evaluated all the evidence including the evidence of PW1 and DW1 and held that Hasnem proved the oral agreement it entered into with I.B.M. in 1977. In his judgement, Acquah, J.A. (as he then was) recited in great detail the pieces of evidence which weighed with him in arriving at his decision when he expressed his opinion as follows:

"Now there is no dispute that the Plaintiff did buy the I.B.M. Copier II Machine from the defendant and that the defendants are the manufacturers of the said machines. There is also no dispute that the only maintenance services offered by the defendants to their customers are either maintenance agreement or per call service; and that from 1977, when the plaintiff bought the machine, the defendants provided per call service maintenance to the plaintiff up to at least 1984". .

The above passage drew attention to evidence on record, which the trial judge failed and or omitted to advert to in his judgment. In addition to the above matters, the trial judge had before him evidence from PW1 which dealt at great length with oral communication in 1977 between PW1 and a Mr. Osei before he, PW1, agreed to buy and Mr. Osei agreed to place an order from outside Ghana for Copier II Machine for Hasnem.

The case of I.B.M. was concluded without evidence which contradicted or disputed the oral agreement of 1977. Mr. Osei was not called to assist the trial court. The omission of failure of the trial judge to advert to this incontrovertible evidence from PW1 destroyed the finding he made. The Court of Appeal was right in examining the evidence before it and coming to its own conclusion.

The opinion of Brobbey, J.A. on this issue expressed in his dissenting judgment cannot be supported in law because it was not based on evidence on record. On this issue he stated as follows:

"Assuming that there was any oral contract for call service the agreement came into being in, 1977 when the machine was bought."

In my humble opinion, the appellate judge was not called upon to make an assumption and or to guess anything. His plain duty was to evaluate the evidence on record and make findings of fact. Again the appellate judge fell into error when he expressed the opinion following:

"A contract to repair that machine must have a definite time limit. It could not be argued that the agreement was permanent when the machine itself did not have a permanent life."

With great respect to the appellate judge, the case of Hasnem was a fairly simple one, namely, an oral agreement entered into in 1977 to the effect that so long as the Copier II was serviceable and unless and until it was written off as useless and counter-productive, I.B.M. would service and maintain it, and payment made after servicing. The trial judge and appellate dissenting judge, with respect, misdirected themselves when they considered evidence, which was not on record and relied on and made assumptions in this matter. They each erred in the view they expressed that—

"such an agreement which was not specific as to the period of termination was determinable after a reasonable notice........ In his (trail Judge's) estimation ten years was reasonable. That ten years suggestion was point of time in respect of which the parties or at least the appellants witnesses should have testified".

I have not understood the case of Hasnem to be that it had sought an order of specific performance of an oral agreement for a duration of ten years between the parties commencing in 1977. The evidence on record does not support the finding by the trial and dissenting appellate judges, namely that the contract or agreement, the subject-matter in dispute was for a period of ten years. The finding by the dissenting appellate judge expressed as follows:

"I am of the view that the appellant's claim for specific performance failed because if that claim were valid the question understandably arose was how long would that specific performance last-for-ever"

was not supported by evidence on record. I have sought to show that both the trial judge and the dissenting appellate judge misdirected themselves on the evidence before the court; in particular, the essential terms and conditions of the oral agreement entered into in 1977 between Hasnem and I.B.M. In my view, the oral evidence of PW1 in relation to what transpired in 1977, which was not controverted nor disputed by evidence from DW1 proved and established the case of Hasnem.

Learned counsel for I.B.M. submitted that since I.B.M. sought an equitable relief it must come to equity with clean hands, mindful of the maxim that he who comes to equity must do equity. I agree that that is a correct statement of law. He agreed with Brobbey J.A. in his dissenting opinion expressed as follows:

"The respondent (I.B.M.) was a business organisation. Having performed services which had not been paid for how on earth did the appellant expect it to continue to render more service?

The point of relevance is that until the appellant paid for the services already rendered, the respondent had no reason to believe that future services would be paid for."

I am amazed at the view of the evidence taken by the appellate judge. At paragraph 7 of the amended statement of defence I.B.M. averred in part as follows:

"7....... each service call could only be considered as an independent request for services and the same was fulfilled on the basis of availability of spare parts and the appropriate man power"

The defence put forward did not include the term or condition "subject also to the payment for outstanding bills." It is rather the honest business managing director, PW1 who stated that payment for bills for services rendered was a term and condition of the oral agreement. In any case, the evidence before the court was that I.B.M. had stopped offering service from 1984 and was not prepared and in a position to offer service and maintenance on I.B.M. Copier II Machines. I find that the opinion expressed by the dissenting appellate judge was not supported by the evidence on record. He fell into grave error when he stated that I.B.M. could justifiably refuse to offer service and maintenance to Hasnem on the ground that Hasnem failed and or refused to pay I.B.M. bills remaining unpaid. The defence put forward was that I.B.M. would attend to service and maintain the machine of Hasnem "on the basis of availability of spare parts and the appropriate man power". The appellate dissenting judge failed and omitted to consider this important defence put forward by I.B.M. and came to the wrong decision on this issue.

Before the trial court, the parties put in evidence numerous documents. The trial judge as well as the appellate judges examined and considered some only of these documents. Since a ground of appeal complained about the weight the majority judges attached to these documents, I must address the issue raised here. It is important in doing so to pay attention to the dates on each document and relate it to the evidence on record touching upon the oral agreement entered into between Hasnem and I.B.M. in 1977. The exercise will assist the court in appreciating and understanding the case of each party. I start with Exhibit, 'A' which in part read as follows:

"                                                           June 11, 1982

The Country Manager,

I. B. M.

Dear Sir,

As you are aware our I.B.M. Copier II Machine was delivered to us on Tuesday, August 16, 1977.

We write to kindly arrange for your Copier Engineer to be in Cape Coast on Monday, August 16, 1982 to service the Copier Machine thoroughly for us.

x                         x                         x                       x

We are by this letter asking you to kindly note the following dates as our Standing Order Dates for your Copier Engineer to be in Cape Coast to service our machine.

November 16:        February 16:

May 16:                  August 16

of every year .........."

In his testimony before the trial court, PW1 the Managing Director repeated the contents of Exhibit 'A'. I note that I.B.M. failed and or omitted to put in evidence the reply it sent to Hasnem. In my opinion, Exhibit 'A' was evidence of an earlier and prior arrangement or agreement between the parties as to dates on which Hasnem expected I.B.M. to attend on it to service and maintain the Copier II machine. I am of the view that I.B.M. should have obliged Hasnem with the common courtesy of a reply to Exhibit 'A' stating clearly that I.B.M. was under no obligation to Hasnem in the matter.

The second letter Hasnem wrote to I.B.M. is Exhibit 'B' dated August 1982. I produce the following passage from Exhibit 'B':

                                                          August 14 1982

"On Friday, July 30 1982, the undersigned ....... reported to your Engineering Department indications on our I.B.M. Copier II Machine—

"The indications were—

(1) The end P.C. light was on.

(2) After moving the P.C. switch to 2, the call Key Operator and end PC lights were still on.

(3)  The instruction on your "Key Operator" Instruction reads—

"If the light does not go out, call I.B.M. Service".

From the material, it cannot be disputed that the "Key Operator Instructions" imposed a binding undertaking given to every purchaser of that machine that I.B.M. in the circumstances in which Hasnem found itself, that is, "if the light does not go off "to promptly send an employee with the requisite expertise to attend Hasnem or the purchaser. This instruction would be deemed breached by Hasnem or a purchaser if that company called on a person other than an engineer from I.B.M. The reply from I.B.M. to Exhibit 'B' was put in evidence as Exhibit ''2'. It read in part as follows:

"All calls placed with our engineering department are scheduled and our customers are handled on "first come first served". As a remote customer without Maintenance Agreement, you are expected to pay all charges for calls made on you".

I do not understand this reply to mean that Hasnem was not a customer of I.B.M. The reply made it clear beyond dispute that Hasnem was a customer. That Hasnem must take its place in the queue in the matter of servicing and that Hasnem must pay for services after the same had been rendered. The reply, Exhibit '2', from I.B.M. did not advise Hasnem to look else where for an engineer for purposes of carrying out the repair occasioned by the fact that "the lights did not go off" on its machine. The letter Exhibit '2' was written and signed by the Branch Manager of I.B.M. a Mr. J.E.A. Quansah. On this same giving evidence for I.B.M., Mr. Abraham Amoah, DW1 stated as follows:

"We were servicing plaintiff's Copier II Machine. When they called us on the telephone or sent somebody we received the request and depending on the resources available we undertook to honour the invitation or call".

DW1 thus confirmed the existence of the oral agreement.

DW1 did not provide any evidence to support the claim that on particular occasions I.B.M. refused or rejected a call from Hasnem to service the Hasnem Copier II Machine.

At this point it is desirable to advert to Exhibit '6' which was referred to in his statement of case for I.B.M. Learned counsel argued as follows:

"....... in fact the evidence on record supports the defendants position that there was no binding standing agreement between the parties and that each service call was considered and accepted or rejected by the defendants on its own merits."

I therefore looked for evidence on record including Exhibit '6' in the light of the submission that between 1977 and 1984 I.B.M. rejected calls from Hasnem to attend and service the Copier II machine. The evidence before the trail court was that I.B.M. did not breach the oral agreement to service and to maintain the - Copier II machine entered into between the parties in 1977. There was no evidence on record that I.B.M. rejected any call from Hasnem and failed or neglected to attend to service and maintain the copier II machine. In my view learned counsel for I.B.M. misconceived the case before the court when he based himself on Exhibit '6' and argued as follows:

"There is for example Exhibit '6', which  ..... stated:

"Your letter is only asking us to come and render services; that does not include commitment to pay for parts used and expenses incurred such as travel meals, an accommodation (if it becomes necessary) .... )"

This argument does not and cannot support and prove the submission that I.B.M. had a right or power to reject a call by Hasnem to offer on I.B.M., service and maintenance of the customer's machine. The clear and plain position of I.B.M. was a readiness and a willingness to attend all calls of Hasnem subject only to the conditions clearly spelt out above. Indeed the case of Hasnem was not that I.B.M. must service and maintain the Copier II Machine free of charge. I therefore find that the evidence contained in Exhibit '6' does not support the case and claim of I.B.M. on that issue.

On this issue the evidence of DW1 left the trial court in no doubt as to the real reason or excuse from I.B.M. for its refusal to service a customer's machine in the following words—

"If a customer fails to pay our bills we refuse to honour his calls for service in future, though we make effort to collect the money"

This is an admission that I.B.M. was willing and ready to provide maintenance services. According to DW1 this policy of I.B.M. was made clear to its customers. DW1 put in evidence Exhibit '7'. I must necessarily draw attention to the fact that Exhibit '7' bears the date 14th October 1983 and not referable to an event in 1977. In the instant action, Hasnem sued I.B.M. for breach of an oral agreement entered into between the parties in 1977 and not one entered into in 1983. In any case and indeed Exhibit '7' contained the statement—

"Please be assured of our prompt attention at all times"

which in my opinion was further evidence supportive of the existence of the contract to offer service and maintenance to Hasnem.

This was an undertaking given to Hasnem by the Customer Engineering Manager of I.B.M. a Mr. Abraham Amoah in 1983 namely the readiness and willingness of I.B.M. to offer prompt service to Hasnem and all customers subject always to payment for the services so rendered.

The above conclusion is also supported by evidence contained in Exhibit 'C' dated 30th June 1986 sent by Hasnem to I.B.M. which in part reads as follows:

"When the machine was purchased, we were given an Assurance of "After Sale Service" and whether we entered into "Maintenance" or operated on "Per Call" service with your outfit, the said I.B.M. Copier II Machine has always been maintained by your outfit".

I must point out that Exhibit 'C' is consistent in substance with the Exhibit '7', which as I have indicated elsewhere in this opinion was written in October 1983. I reproduce the following evidence from Exhibit 'C',

"The points raised in your letter (dated April 16 1986) under reply are indeed very interesting. One fact we would want you to bear in mind is that Hasnem Enterprises Limited bought an I.B.M Copier II Machine from your outfit. Whether the Copier II Engineer has left I.B.M. or not that is not Hasnem Enterprises Limited concern. Our concern is that our I.B.M. Copier Machine is maintained...."

The evidence contained in Exhibit 'C' was completely and totally ignored by the trial judge, especially when I.B.M. did not offer any evidence to contradict the serious statements of fact supplied by Hasnem for due consideration by the trial court. Indeed Hasnem expressed what it believed was the agreement between it and I.B.M. in Exhibit 'C' as follows:

"If at the time of purchase of the I.B.M. Copier Machine II you have made us to understand that at a certain stage we shall have to maintain the said I.B.M. Copier II Machine ourselves, we are sure to have discarded the idea of buying it.....

As you are fully aware, I.B.M. machines are serviced by specially trained people with specialist tools and parts provided by I.B.M. World Trade Corporation. Please tell us the wayside or street side mechanic who will easily and expertly service I.B.M. Copier II Machine".

The above piece of evidence from Hasnem in my opinion established the case of Hasnem that there was at the date of the purchase an agreement by I.B.M. to service and maintain the machine. I have not found evidence from I.B.M. that it turned down or refused to service and maintain the Copier II Machine between 1977 and 1986. The evidence of DW1 Abraham Amoah was not in my view, an answer to the hard facts stated by PW1. DW1 stated as follows:

"Sometime in 1977 the plaintiff's bought an I.B.M. Copier II Machine from the defendants. I am not aware the defendants told plaintiff they (defendants) would be exclusively responsible for the servicing of plaintiffs machine".

PW1 in his evidence named one Mr. Osei the Sales Manager of I.B.M. as the person who negotiated the sale and purchase with him. It does not lie in the mouth of Amoah to give the evidence he gave above. He did not say he was present when Hasnem bought the machine even though he stated that he had worked for I.B.M. since 1968. In 1977, DW1 was not the Sales Manager of I.B.M. DW1 described himself as Customer Engineering Manager. DW1 did not claim he had worked as a Sales Manager for I.B.M. in 1977.

Be that as it may, DW1 testified on 22nd March 1990 as follows:

"The plaintiffs did not enter into any service maintenance agreement of any form oral or written with defendants".

The case of Hasnem was that it entered into an oral agreement with I.B.M. The trial court should have rejected the above piece of evidence as worthless, since DW1 was not present to witness that transaction; namely the evidence of PW1 dealing with and concerning the - pre-purchase discussion; that is to say, the placing of the order for the machine; the delivery and fixing of the machine in Cape Coast and the verbal guarantees and assurances made to Hasnem at that time in 1977.

I agree and accept the trial judge's rejection of DW1's answer on the issue of the "green light not going off". This was what DW1 told the trial court under cross-examination:

"Note: Witness shown Exhibit 'B' and under 3 "if the light does not go out, call I.B.M. service"; he explains it means the person should call a service engineer, that is somebody who is knowledgeable about the I.B.M. product/machine. And apart from I.B.M., there are other individuals who are trained and knowledgeable about the produce".

Clearly this answer was on the face of it dishonest. From 1977 up to 1986 the evidence before the trial court was that only I.B.M. had serviced and maintained the machine Hasnem bought from I.B.M. In my view DW1 was not truthful to the court in the matter of what a purchaser of a Copier II Machine should do if the lights on the machine do not go off.  The clear and simple instruction from the manufacturer was "call I.B.M. engineer". A reasonable, prudent purchaser and owner would and must call the I.B.M engineer. I totally reject the interpretation of the trial judge when he stated thus—

"But the crucial question is, did this (call IBM Engineer) per se create a binding contract legally enforceable against I.B.M. .....

Therefore I am of the view that "call I.B.M. Service" should be read to mean that if the user has an existing maintenance agreement or service agreement with I.B.M. he should call on the I.B.M. if the lights do not go off. That will do justice to the parties, case".

The instruction indicated on the machine is plain and does not require interpretation by the trial judge. The trial judge erred when he introduced and added a fresh term and condition to the instruction, that is, "that the user of the machine must have an existing maintenance agreement or service agreement" with I.B.M. In my view it would be unwise for Hasnem not to call upon I.B.M. engineer if the light fails to go off. The instruction was directed at any and every person who owned a Copier II Machine whether or not such an owner had any agreement written or oral with I.B.M. If I.B.M. failed and or neglected to respond to a call to attend on any person whose copier II machine experienced a fault that the lights do not go off the conduct would no doubt give the owner a cause of action against I.B.M.

In the majority judgment of the Court of Appeal Acquah, J.A. (as he then was) stated his opinion as follows:

"if the trial judge had critically adverted his mind to this prior promise by Mr. Osei of exclusive after-sale service vis-a-vis the indications the I.B.M. Copier II Machine itself gives in the event of a fault to wit call I.B.M. Service Engineer, he would have discerned the source of the binding nature of the per call service".

He concluded thus:

" ....... it does not lie in the mouth of the defendant to go back on that promise. As Apaloo, J.A. (as he then was) said in Sasu vrs. Ayaduala (1973) 1 GLR 221 at 225:

"A party should be held to any act or statement which it would be unconscionable to permit him to deny."

The learned judge also cited S.26 of the Evidence Decree 1975 (Act 323) to buttress his conclusion. He was right in doing so.

I find further support for my conclusion that the trial judge misdirected himself on the case put forward by Hasnem from the following passage from his judgment:

"It is the case of the plaintiff that I.B.M. products are exclusively maintained and serviced by I.B.M. or their appointed agents. That is a trade policy or custom. The defendants denied these facts." .................

I have carefully read through the statement of claim filed by Hasnem. I did not find that Hasnem would rely on "trade policy or custom" of I.B.M. The case of Hasnem before the trial judge was in part to be found in the evidence of PW1 thus:

" ...... I expressed an interest to purchase the machine called I.B.M. Copier II from I.B.M. Because of its high cost I.B.M.'s Sales Manager by name Mr. Osei told me they would have to order for one from the United Kingdom for me and I agreed".

I have found evidence on record that indeed and in truth I.B.M. placed an order for the said machine. PW1 told the trial court:

"they (IBM) placed an order for me and when the machine arrived the defendants came and installed it in my office in Cape Coast".

What PW1 related to the court was what actually took place in 1977. In order not to leave the court in any doubt, PW1 testified further as follows:

"Before the machine was installed the defendants gave me two specific instructions with regard to its maintenance. They explained maintenance agreement to mean entering into an agreement whereby I pay a specific sum of money, so that whenever the machine was faulty I would call upon them to come and service it. The after call service meant whenever the machine was faulty I would call upon them to come and service it and after the service I would pay them upon payment of their bills".

The above constituted what PW1 understood to be the obligations respectively of the seller and the purchaser. This evidence was not disputed by I.B.M. Indeed PW1 explained further in his evidence-in-chief the true position in 1977 at the date and time the Copier II was installed when he stated as follows:

"......... they (Mr. Osei) told me that irrespective of which option I took, they would give me satisfactory after sales service because it was a very expensive machine costing ¢33,000.00 at the time (1977) and that I was the fifth person in the country to have purchased one in Ghana".

In order to complete the course of dealing between Hasnem and I.B.M. in the matter of the maintenance of Copier II beginning August 1977, PW1 testified as follows:

"I started using the machine and anytime it broke down I either telephone or sent somebody to tell them defendants and immediately they came and repaired it and sent the bills which I satisfied ........"

In my view the undisputed and unchallenged evidence from Hasnem proved and established its case; that from 1977 up to 1984 I.B.M., pursuant to the oral agreement entered into with it in 1977 serviced and maintained the Copier II Machine Hasnem purchased from that company. I must also point out that I.B.M. did not produce a shred of evidence before the trial court to establish that a company, other than I.B.M., also serviced and maintained Hasnem's Copier II Machine during the period 1977 and 1984. I find that the trial judge misdirected himself on the issue for determination when he formulated same thus:

"There are issues involved here namely whether or not I.B.M. products are exclusively maintained and or serviced by I.B.M. or their accredited agents ......"

With great respect to the trial judge, the subject matter before him was an I.B.M. II Machine.  He was not entitled to consider and determine an oral agreement about "I.B.M. products". His conclusion expressed in the language following:

"The plaintiff's own admission makes it abundantly clear and I find that it is not a trade practice or policy of defendants or is there any custom or usage whereby products of defendants are exclusively maintained and or serviced by them", cannot therefore be supported.

The I.B.M.'s letter dated 23-4-1982 and written by Mr. J.E.A. Quansah and put in evidence as Exhibit '2' destroyed the conclusion reached by the trial judge on the issue of trade policy or custom of I.B.M. The judgment based in part on this finding cannot be supported.

I cannot conclude this judgment without pointing out that in my humble view the trial judge misdirected himself on the defence put forward. In fine, I.B.M. denied and disputed that it agreed orally with Hasnem to service and maintain the Copier II Machine. The case is put forward was in conflict with that pleading in the statement of defence. The evidence of DW1 illustrated his conclusion.

"I work with defendants as its General Manager in Ghana. In 1986 the defendants were not serving I.B.M. machines any longer..... The last time we officially worked on plaintiff's machine was in September 1984".

The evidence in my view is an admission of the case of Hasnem that up to 1984 I.B.M serviced and maintained his copier machine but stopped and neglected to do so because as a company it had stopped that particular business for good. Briefly put, I.B.M. was no longer in that time of business. But before this close down, I.B.M. had continued to service and maintain the copier II machine brought by Hasnem from it. This in 23 April 1982. Mr Quansah wrote in his capacity as I.B.M. Branch Manager to Hasnem in part as follows.

"As a remote customer without Maintenance Agreement you are expected to pay all charges for calls made on you ...... We endeavour to treat all our valuable customers equally) ........ Please be assured that despite the constraints on human material resources we will endeavour to provide an indiscriminate level of service.

Yours faithfully,

J.E.A. Quansah

Branch Manager."

Thus evidence painted the true picture of the business relationship between Hasnem and I.B.M. from 1977 up to August 1982.

In his statement of case, counsel for I.B.M. lamented the fact the Court of Appeal imputed dishonest conduct to IBM when it stated that:

"................ it would be the height of dishonesty on the part of the defendants to fault the plaintiff from seeking services from Mr. Amoateng, if Mr. Amoateng was I.B.M. on his own" He argued that the I.B.M. refused to the services rendered by C.T.S. as evidence confirming the absence of any binding exclusive agreement, and the freedom of Hasnem to service their machine whatever they chose. The argument of counsel for I.B.M. overlooked the pieces of evidence on record. These are (1) that up to 1984 I.B.M. serviced and maintained the copier II Machine the subject-matter before the court;

(2) that I.B.M. sent a circular sometime in 1984, that it no longer would service and maintain copier II Machines;

(3) that the copier II Machine on the face of it warned and instructed the owner in possession of copier II Machine" to call IBM Engineer" and

(4) that the refusal of I.B.M. to service and maintain Hasnem's copier II Machine provoked the instant action.

I agree entirely with the conduct of Hasnem in the effort it made to mitigate its financial loss by resorting to C.T.S. for its services. That conduct is consistent with that of reasonable and shrewd businessman. By that conduct, Hasnem must not be understood as having abandoned its right to sue I.B.M. for breach of an oral agreement entered into between the parties in 1977. When the evidence on record is examined in this light, it will be seen that the fact that Hasnem in its hour of desperation and frustration turned to C.T.S. to service and maintain its machine contract was not to be seen as not entered into the 1977 oral between it and Mr. Osei acting for and with full authority for I.B.M. I am satisfied that the decision of the majority of the Court of Appeal was supported by the evidence on record.

I.B.M. to whom Hasnem owed ¢58,213.04 for service and maintenance sought to defend the action on the other ground that Hasnem owed it. I think that the fact that Hasnem owed I.B.M. is not a lawful excuse for it to refuse to service and maintain the said machine for the simple reason that failure to pay for services rendered was not an agreed term for terminating the oral agreement. The undisputed evidence on record was that Hasnem would pay for service and maintenance of the machine. I.B.M. did not adduce evidence before the court to show and establish that it I.B.M. had the legal right to withhold service and stop maintenance of Copier II Machine in respect of which there was unpaid bill or bills. In this case, the reasons for the failure or inability on the part of the I.B.M. to service and maintain were as I have recited above. In the special circumstances and on the uncontroveted evidence Hasnem proved and established its case. It was entitled to judgment on its claim. I will accordingly dismiss the appeal. I will affirm the majority decision of the Court of Appeal.

COUNSEL

Aduama Osei for the Appellant

Kuenyehia for the Respondent

Fkb.

IN THE MATTER OF ARTICLE 99 OF THE 1992 CONSTITUTION OF GHANA AND IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE LAW, 1992(PNDCL 284) AND IN THE MATTER OF A PARLIAMENTARY ELECTION FOR WULENSI CONSTITUENCY HELD ON 7TH DECEMBER, 2000 [15/01/2003] NO. CM 73/2003.

IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA

______________________________

CORAM:  WIREDU, C.J.  (PRESIDING)

ACQUAH, J.S.C.

AKUFFO(MS), J.S.C.

AFREH, J.S.C.

DR. TWUM, J.S.C.

SUIT NO. CM 73/2003

15TH JANUARY, 2003

______________________________________________________________________________

RULING

DR. S. TWUM, J.S.C.:

On 7th December 2000, general elections were held in the country. 

After the results were declared, Mr Fuseini Zakaria, a registered voter in the Wulensi constituency, (hereinafter referred to as “the Respondent”) filed a petition under article 99 of the 1992 Constitution of Ghana and the Representation of the People Law 1992 (PNDCL 284) in the High Court, Tamale, praying for a declaration that the election of the Appellant, Mr Samuel Nyimakan, was void as he was not qualified to be so elected as a Member of Parliament for the Wulensi constituency.

After a full trial at which evidence, both oral and documentary was taken, the High Court, presided over by Aninakwa, J. (as he then was) delivered its judgment on 6th July, 2001, upholding the petition. The court held that the Appellant was not qualified at the time of the election, to be elected a Member of Parliament for the Wulensi constituency. Consequently his purported election was void. The Appellant appealed against the judgment to the Court of Appeal on the same day that the High Court delivered its judgment. By a unanimous judgment the Court of Appeal dismissed the appeal on 12th April, 2002.  The Appellant filed yet another appeal to this court on 16th April 2002.

On 7th October 2002, the Respondent filed the present motion in this court praying that the appeal be dismissed. The thrust of the motion is that this Court has no jurisdiction to hear and determine the appeal. 

The Respondent relied on three grounds in support of the motion. First, he submitted in his Statement of Case that on a true and proper interpretation of those articles of the Constitution governing the respective jurisdictions of the superior courts of judicature, where an appeal from the High Court to the Court of Appeal is in respect of a matter which cannot be described as “a civil cause or matter”, there can be no appeal as of right from the Court of Appeal judgment, decree or order to the Supreme Court unless there are express provisions in the Constitution to that effect. 

The second ground was based on the principle that where a statute creates a new right which previously did not exist at common law and the statute provides a forum or machinery for protecting that right, a person wishing to claim appropriate relief for an infringement of that right must resort to the forum or the machinery set up by the statute. The Respondent’s third ground was predicated on the maxim “generalia specialibus non derogant”.

On 5th December 2002, the Appellant filed an affidavit in opposition to the motion.  Paragraphs 3, 4 and 5 of the affidavit encapsulated the Appellant’s answer to the motion and we reproduce them below.

“3. That I am advised by counsel and verily believe same to be true that the Application and its accompanying statement is misconceived.”

“4. That the plain language of the Constitution, namely, Article 99 is clear, unambiguous and admits of no construction or interpretation.”

“5. That the plain and ordinary meaning of the relevant provision of the Constitution which spell out the appellate jurisdiction of the Supreme Court, namely article 131 (1) (a) equally is clear and unambiguous and admits no over-elaborated construction.”

These three paragraphs were expanded in the rest of the affidavit in opposition. In our opinion, the quintessence of the Appellant’s answer to the motion, gathered from that affidavit, was that the Supreme Court has appellate jurisdiction to entertain the appeal.

Learned counsel for the Respondent set out articles 140 (1) and (2), 137 (1) and 131 (1) (a) of the Constitution in his Statement of Case as the relevant articles for consideration. These articles govern in part, the jurisdictions of the High Court, the Court of Appeal and the Supreme Court, respectively.

Article 140

“(1) The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters, and in particular, in civil and criminal matters, and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law” (emphasis supplied)

“(2) The High Court shall have jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by this Constitution.”

Article 137

(1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this Constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by this Constitution or any other law.”

Article 131

(1) “An appeal shall lie from a judgment of the Court of Appeal to the Supreme  Court:—

(a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction.”

Article 131 (2) provides that “notwithstanding clause (1) of this article, the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly.”

Arguing the first ground in the Statement of Case, counsel for the Respondent submitted that the expression “in particular” coming so soon after the expression “all matters” shows that the general jurisdiction of the High Court must of necessity include jurisdictions in respect of matters lying outside its jurisdiction to deal with civil and criminal matters, otherwise the expression “in particular” would be otiose. He categorised the matters which would be subsumed under those other jurisdictions as “constitutional.” Learned Counsel related his interpretation to the facts of this motion and submitted that “election petitions” are constitutional matters and consequently the Appellant cannot proceed as of right to appeal from the Court of Appeal to the Supreme Court solely by virtue of article 131 (1) (a).  At page 4 of the “Statement of Respondent-Applicant’s case for Dismissal of Appeal Herein” filed on 19th November 2002, learned counsel for the Respondent summed up his reasons for that proposition as follows: “it should be observed that it is only judgments in respect of matters which fall within the category of “civil or criminal matters  “and which originate at the High Court that the jurisdiction exists”  There is a serious flaw in that submission. A look at the Constitution shows that different conditions define and delimit the respective jurisdictions of the High Court and the Supreme Court. In article 131 (1) (a) the litmus test for deciding the jurisdiction of the Supreme Court is whether the High Court proceeding or action which has reached the Supreme Court was a “civil cause or matter” The jurisdiction of the High Court as stated in article 140 (1) covers all matters and it is irrelevant that for emphasis the Constitution seems to have divided that jurisdiction into the “particular” (ie civil and criminal matters) and the “residual” (ie what is left of the article 140 (1) jurisdiction). Learned counsel for the Respondent described what we have called the “residual” jurisdiction as “constitutional”. In our view to describe it as “constitutional” is to indulge in what Professor A. L. Hart stigmatised as “a definitional stop” The nature of  that jurisdiction is really part of what this court is expected to decide. Unless counsel for the Respondent is suggesting that “all matters civil and criminal” is equivalent to “civil or criminal causes or matters” then there can be no doubt that the appellate jurisdiction of the Supreme Court will not cover all actions, suits or proceedings within the entire spectrum of the High Court jurisdiction. The truth is that it is not a requirement of the article 131 (1) (a) appellate jurisdiction of the Supreme Court that the civil cause or matter which was agitated in the High Court and which has ultimately been appealed to the Supreme Court, must have been within only the “particular” or only the “residual” jurisdiction of the High Court. Even if learned counsel for the Respondent is right in classifying the “residual” jurisdiction of the High Court as “constitutional” he has not adequately explained why those actions, suits or proceedings which would be within that jurisdiction should be excluded from the appellate jurisdiction of the Supreme Court under article 131 (1) (a). In short, a “civil cause or matter” could arise out of any part of the jurisdiction of the High Court. 

At the risk of repetition, it is to be noted that even though the judiciary as a whole has jurisdiction in all matters, it is only the High Court that has, subject to the Constitution, jurisdiction in all matters. The jurisdiction of the Supreme Court, which is the final court of appeal, is equally not all-embracing, if one considers the provisions of article 131 (1) (a), carefully. Instead of the “all matters and in particular civil and criminal matters” found in article 140 (1), the words used in Article 131 (1) (a) are “civil or criminal cause or matter.” “Civil or criminal cause or matter”, is clearly different from “Civil and criminal matters”. As Sowah J.S.C. put it in Amoako Tuffour v. Attorney-General (1980) GLR 637, at 648 “we must take congnizance of the age-old fundamental principle of constitutional construction which gives effect to the intent of the framers of this organic law. Every word has an effect. Every part must be given effect”

It is trite law that all appellate jurisdiction must be conferred expressly by statute. Where the Constitution provides for appellate jurisdiction in the Supreme Court as of right in a “civil cause or matter” in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court, it is in essence the type of action, suit or other proceeding and not the court whence the suit commenced   that gives the Supreme Court jurisdiction.

What is the meaning of the expression “cause or matter?” and how does it differ from “civil and criminal matters.”? “Civil” and criminal” are the two broad categories into which matters that go to court may be classified. In this context “civil” is the opposite of “criminal.” The expression “cause or matter” is a term of art. The words have acquired a technical meaning and must be interpreted as such. Order 1. rule 1 of the High Court (Civil Procedure) Rules 1954 (LN 140 A) defines the word “matter” as including “every proceeding in court not in a cause.”  The word “cause” is defined as including “any action, suit or other original proceeding between plaintiff and defendant.” If the two definitions are read together, that is, if the definition of “cause” is substituted for it in the definition of “matter”, “matter” would then be defined as “including every proceeding in court not in any action, suit or other original proceeding between Plaintiff and defendant.”

Is there, then, any contentious matter before the court?. The answer is “Yes”. There is a disputation regarding the status of the incumbent Member of Parliament for the Wulensi Constituency. The Respondent was not one of the contestants in the elections. He was a registered voter. He was not claiming any relief for himself. The basis of his petition was not a private wrong but a wrong allegedly suffered by the electorate of the Wulensi Constituency as a polity. The Respondent was asserting a direct and substantial interest in maintaining the effectiveness of the votes cast in the constituency during the elections so as to uphold the integrity of the Constitution and other electoral laws of Ghana. The Respondent’s interest in the petition was a constitutional right exercisable by all electorates of the Wulensi Constituency.

The Respondent’s petition was therefore a proceeding in Court but not in a cause. The petition was a proceeding asking for a construction or interpretation of the Constitution. In such a proceeding, there would be neither a defendant nor a plaintiff so-called as the terms are commonly employed in ordinary proceedings in our courts. Such proceedings are “matters” within the definition of order 1 rule 1. In Vandepuije v Akwei (1971) 1GLR 242 @ 245, Hayfron-Benjamin J. pointed out that the word “matter” is used to denote proceedings under the prerogative writs, grants of probate and letters of administration and such other proceedings as are usually entitled: “In the matter of……………………..”. Needles to say, the Respondent’s petition was righty entitled. “In matter of Article 99 of the 1992 Constitution, etc.” In Moore v Kennard 10 Q.B.D. 290, the Court held that an election petition was a “cause or matter”.  Again in Re Credit Co.  11 Ch. D. 250, it was held that a winding-up petition was also a “cause or matter”. We hold that the Respondent’s petition was a “cause or matter”.

In the light of the analysis above, can it seriously be argued, as learned Counsel for the Respondent sought to do in his Statement of Case, that on a true and proper interpretation of article 131 (1) (a) the Supreme Court, which after all, has plenary responsibility for the enforcement of the Constitution, is precluded from entertaining any appeal merely because the action that was started in the High Court was in respect of a constitutional issue? In our opinion, that proposition is untenable and we reject the Respondent’s first ground of the preliminary objection, accordingly.

The second matter which was canvassed by learned counsel for the Respondent was put thus: “a perusal of the Constitution shows that whenever the constitution directly creates a right and imposes an obligation, it goes further on to indicate or set up an organ or forum for its enforcement…….. The constitution sets up the parameters indicating the extent and limits of the organ or forum. If the constitution makes use of an organ or forum it has already created, it indicates to what extent it is using it or modifying it for use. It is never left for general jurisdictions already set up to simply operate upon the rights or obligations so created or imposed”. 

In his “Judicial Review of Administrative Action”, 3rd edition p.316, the learned author, S.A. de Smith, wrote: “it is a general rule that where Parliament has created new rights and duties and by the same enactment has appointed a specific tribunal or other body for their enforcement, recourse must be had to that body alone.” Professors H.W.R Wade and C.F. Forsyth in their “Administrative Law, 7th edition, explain the principle at page 728. In their opinion, the principle covers situations where the right given by the statute does not exist at common law. And as Lord Watson put it in Barraclough v Brown (1897) AC 615 at 622, the right is given uno flatu and one cannot be dissociated from the other. (Uno flatu translates as “with the same breath and the same intent”)  Professor J. F. Garner has given the reason behind the principle: “This is based not so much on the express terms of the statute, as on the situation which Parliament must have intended to result as a consequence of an express remedy being provided by the statute. (See Garner: “Administrative Law”, 3rd edition pages 159-160). 

Several decided cases illustrate the principle. Where a taxing statute gives a right of appeal to the Commissioner of Inland Revenue on a disputed assessment, the court will not grant a declaration that the taxpayer is entitled to certain allowances;  Argosam Finance Co Ltd v. Oxby (1965)  Ch. 390; or that he is not the owner of the property assessed. Re Vandervell (1971) AC 912. Similarly, where a river authority is given statutory right to recover certain expenses in a magistrates’ court, it was held that it could not obtain a declaration from the High Court that its claim is good. (Barraclough v Brown) (1897) AC 615. In Commissioner of Income Tax v Fynhout (1974) 1 GLR, the Company applied by certiorari to quash an assessment of tax on it arguing that it was not assessable to tax. The High Court rejected the application but on an appeal to the Court of Appeal, that decision was reversed. The Commissioner then applied to the Full Bench of the Court of Appeal to review the decision of the Ordinary Bench. Allowing the review application, the Full Bench held that the Ordinary Bench fell into grave error when they quashed the determination of the Commissioner. It pointed out that once the assessment had been made the proper procedure for the Company to challenge it was by raising an objection under paragraph 49 of the Income Tax Decree, 1966 (N.L.C.D.78). Since they had not availed themselves of that paragraph, the Commissioner was not expected to make any further express finding. The court said it was only when that stage had been reached that the Court of Appeal would have jurisdiction in the matter.

As Learned Counsel for Respondent pointed out, our Constitution is replete with examples where it has created new rights not previously known to the common law and has provided special forums and procedures for their enforcement. For example, Article 2(1) creates a right to have an enactment or an act inconsistent with the Constitution set aside. The forum for its enforcement is the Supreme Court and the procedure prescribed by the Supreme Court Rules, is a writ. Another example is articles 33 of the Constitution. This is for the protection of the fundamental human rights and freedoms guaranteed under the Constitution. This right did not exist at common law. We may also mention the regime of judicial committees of the traditional councils for the adjudication of causes or matters affecting chieftaincy under the Constitution. In the case of chieftaincy disputes the law specifically gives exclusive jurisdiction to these judicial committees with ultimate appeal to the Supreme Court under articles 273 - 275 of the Constitution and the Chieftaincy Act 1971 (Act 370).

Now let us consider in some detail the law governing  election petitions.

Article 99 (1) gives jurisdiction to the High Court to hear and determine any question whether —

(a) “a person has been validly elected as a member of Parliament or the seat of a member has become vacant”

Section 16 of the Representation of the People Law 1992, (PNDC Law 284) states:

“(1) the validity of an election petition to Parliament may be questioned only by a petition brought under this part”

(2) Every election petition shall be presented before the High Court for hearing.

Section 18 (1) of the Law (PNDC Law 284) provides that “an election petition shall be presented within twenty one days after the date of the publication in the Gazette of the result of the election to which it relates and section 18 (2) says “the presentation of an election petition under subsection (1) shall not be valid unless within the time specified in subsection (1) the petitioner gives C20,000 as security for costs. Finally section 26 (1) prescribes that the rules of procedure for presentation and hearing of a petition under this part shall be the same as the rules of procedure applicable to a civil cause or matter before the High Court.

Appeals:

Article 99 (2) provides that “a person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal”

There is no doubt that the procedures governing election petitions are substantially different from the procedures governing ordinary causes or matters heard by the High Court. First, the limitation period is only 21 days from the relevant date. The normal limitation period has a minimum of 3 years (personal injury claims) to 12 years (recovery of land). Secondly, under order 65 rules 5 - 7 of the High Court (Civil Procedure) Rules 1954, (LN 140 A) security for costs will be ordered only on an application by the defendant if the plaintiff who is ordinarily resident out of the jurisdiction, brings an action in the High Court. It is only when the plaintiff  defaults in giving security for costs within the time prescribed that his action may be dismissed for want of prosecution. The final difference to be noted is that notwithstanding the general appellate jurisdiction of the Court of Appeal stated in article 137 (1) of the Constitution, article 99 (2) expressly provides that “ a person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal”. That clearly takes it out of the article 137 (1) jurisdiction of the Court of Appeal in respect of appeals to the Supreme Court.

In Yeboah v J. H. Mensah (1998 99) SCGLR 492, the Plaintiff brought an action in the Supreme Court invoking the court’s enforcement jurisdiction under articles 2 and 130 of the Constitution for a declaration, inter alia, that under article 94 (1) (b), the defendant was not qualified to be a Member of Parliament. The defendant objected to the propriety of the action on the ground that the Plaintiff ‘s action was, in substance and reality, an election petition determinable only by the High Court under article 99 (1) (a) of the Constitution. The Supreme Court upheld the objection, holding that the Plaintiff could not ignore the provisions of Article 99 (1) (a) of the Constitution which had provided a specific remedy at the High Court for determining challenges to the validity of a person’s election to Parliament. In his opinion stated at p 498 of the Report, Hayfron-Benjamin JSC added his weight to the principle as follows: “when a remedy is given by the Constitution and a forum is given by either the Constitution itself or statute for ventilating that grievance, then it is to that forum that the Plaintiff may present his petition”.

The Appellant, in paragraphs 14 and 15 of his affidavit in opposition tried to meet the Respondent’s argument when he deposed as follows:

14.  “That it is submitted further that in this particular case both the facts and the circumstances as well as the ratio in the Yeboah v Mensah (1998-99) SCGLR 492 is not applicable”.

15.   “That an ouster of jurisdiction of the Supreme Court which is also by Article 129 (1) the final court of appeal in order to be sustained must be precise, specific and definitive and not to be construed or inferred”.

The Respondents’ case is that the Constitution provides only two courts for dealing with election petitions—the High Court and the Court of Appeal—by Article 99. In our opinion, the Yeboah v Mensah case (supra) illustrates the principle enunciated above and fits the facts of the Respondent’s case. The Respondent says apart from these two courts, no other forum is designated and the Appellant cannot seek to do otherwise. It is the Constitution that chose the machinery. It is not a question of an ouster of the jurisdiction of the Supreme Court. It is the framers of the Constitution, who knowing that they were creating a new right chose an appeal procedure which ended  at the Court of Appeal. There is a fallacy in the Appellant’s argument when he suggests that he could appeal to the Supreme Court because under article 129 (1) the Supreme Court is the final court of appeal. The word “final” in the context in which it is used in Article 129 (1) simply means that where a party has properly appealed to the Supreme Court and that court has given judgment there can be no further appeals. In our view the Appellant’s appeal to the Supreme Court is caught by the principle and we uphold the Respondent’s second ground of preliminary objection .

The final matter raised by the Respondent as we have stated earlier, is based on the maxim “generalia specialibus non derogant” (general words do not derogate from special). This maxim may be explained as follows:—

“Where there is a general enactment in a statute which if taken in its most comprehensive sense, would over-ride a particular enactment in the same statute, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply”. (See Halsbury’s Laws of England: 4th Edition Vol. 44 para 875 at page 534)

In Reg v. Ramasamy 1965 AC 26 the Privy Council was called upon to decide which of two enactments, namely; the Criminal Procedure Code and the Evidence Ordinance of Ceylon should be applied in criminal prosecutions. On the one hand there was the Evidence Ordinance which contained precise and detailed codification of the rules that were intended to govern the admission and rejection of evidence.  Among them was section 27; which had always been regarded as removing all objections to the statements that it deals with. On the other hand, there was the criminal Procedure Code, not primarily concerned with rules of evidence at all but containing regulations for the special procedure of investigation under chapter 12 and manifesting a clear general intention, based on the peculiarities of the procedure, to keep material produced by it out of the range of evidence to be used when a trial takes place. Applying the maxim, “generalia specialibus non derogant” the Privy Council concluded that evidence falling within section 27 can lawfully be given at a trial even though it would otherwise be excluded as a statement made in the course of investigations under section 22.

The Appellant has argued that the plain and ordinary meaning of the said relevant provisions of the Constitution which spelt out the appellate jurisdiction of the Supreme Court, namely article 131 (1) (a), equally is clear and unambiguous and admits of no over-elaborated construction”. With respect to learned counsel for the Appellant, this way of stating the issue begs the question. The real matter for decision is whether the special provision set out in article 99 (2) for appealing against a High Court determination under article 99(1) should give way to the general jurisdiction given to the Supreme Court by article 131 (1) (a). In our humble view, the matter is clearly covered by the above cited maxim. Admittedly, in a wider sense, it may be said that Article 131 (1) (a) should give a further right of appeal to the Appellant. But as we have pointed out above, article 99 (1) creates a special remedy and in that remedy the appeal process ends at the Court of Appeal—article 99 (2). It is quite clear that the framers of the 1992 Constitution intentionally did that. It cannot be said that when they wrote article 99 in the form we find it in the Constitution they were oblivious of the general appellate jurisdiction of the Supreme Court. We are  fortified in our view by a consideration of article 33, dealing with fundamental human rights remedies. By article 33 (3) a further right of appeal is expressly enacted giving the Supreme Court jurisdiction.  This gives the clearest indication of the intention of the framers of the Constitution that they deliberately discriminated between appeals against election petitions, and fundamental human rights’ appeals.  In order that that clear intention of the framers of the Constitution may not be aborted we are convinced that this is a proper case to apply the maxim “generalia specialibus non derogant”. We hold that the appeal provision in article 99 (2) supercedes the general appellate jurisdiction of the Supreme Court in article 131 (1) (a).

We are aware of our ruling on ground one of the Respondent’s application. But it is precisely because we accept that article 131 (1) (a) confers appellate jurisdiction in constitutional matters on the Supreme Court that it became necessary for us to decide which of the two rival appeal procedures—i.e under article 99 (2) or the general appellate jurisdiction of the Supreme Court in article 131 (1) (a) should have priority in respect of election petitions. We have opted  for article 99 (2).

In the result the motion succeeds. We hold that there is no right of further appeal from the Court of Appeal to the Supreme Court. Consequently, we declare that  this court has no jurisdiction to adjudicate on the substantive appeal filed in this matter by the Appellant.

E.K. WIREDU

CHIEF JUSTICE

G.K. ACQUAH

JUSTICE OF THE SUPREME COURT

D. K. AFREH

JUSTICE OF THE SUPREME COURT

DR. SETH TWUM

JUSTICE OF THE SUPREME COURT

SOPHIA A.B. AKUFFO, JSC.

It has been my privilege to have prior access to the majority’s ruling in this matter and I have given it the most thorough consideration. I agree that the expression ‘in particular’ as used in Article 131(1)(a) of the Constitution is not intended to create a distinction between matters arising from the civil and criminal jurisdiction of the High Court, on the one hand and matters that arise from the High Court’s jurisdiction as may be conferred by the Constitution or any other law (what the Applicant calls ‘the constitutional jurisdiction’ of the High Court). Consequently, I wholeheartedly attach myself to the conclusion that the first ground of the Applicant’s preliminary objection is untenable and must be rejected. Unfortunately, beyond this point, I must with all due respect part company with my esteemed brothers.

The facts of the case that gave rise to this Application have been adequately summarised in the majority’s opinion and I will not attempt to repeat them here. The fundamental issue raised by the preliminary objection is whether or not the Supreme Court has appellate jurisdiction in a matter that originated as an election petition to the High Court. Consequently, since it is the appellate jurisdiction of the Supreme Court that is being questioned, the first point of call we need to examine is what the Constitution has to say in this regard. Article 131, spells out the appellate jurisdiction of this court, in part, as follows:—

“(1) An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court –

(a)  as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction; or

(b)  with the leave of the Court of Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest.

“(2) Notwithstanding clause (1) of this article, the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly.” (my emphasis)

To my mind, the net effect of these provisions is that, where the Court of Appeal makes a judgment in a civil cause or matter which originated in the High Court or Regional Tribunal in the exercise of their respective original jurisdictions, a party may appeal against such a judgment as of right. Otherwise, if the matter originated in a lower court, the Supreme Court will have appellate jurisdiction only if the Court of Appeal has granted the appellant prior leave or the Supreme Court has granted prior special leave. Therefore, since a Petition is a civil matter within the original jurisdiction of the High Court, an appeal from a decision of the Court of Appeal lies as of right to this Court.

The Applicant’s case, however, is that since Article 99(2) speaks only of appeal to the Court of Appeal and does not, specifically, make provision for an appeal from a decision of the Court of Appeal in matters arising out an election petition brought before the High Court, there can be no appeal to the Supreme Court in such a case. In support of this position, counsel for Applicant, by his Statement of Case, makes the following arguments:—

a.  Throughout the Constitution, whenever a right or duty is conferred, the forum for its enforcement is also specified and the scope and limits of such enforcement power is spelt out and it is never left for the general jurisdictions already created by the Constitution to simply operate upon such rights and duties.

b.  Appellate power is a creature of statute and, therefore, unless the right of appeal to a court is expressly conferred by statute, no such power may be assumed by any court, in this case, the Supreme Court.

c.  Pursuant to the maxim generalia specialibus non derogant, where, in the same statute, there is a particular enactment and a general enactment, and the latter taken in its most comprehensive sense overrides the former, then the particular must be taken as the operative one and the general must be taken as affecting only such other parts of the statute as it may properly apply.

The applicant cites the cases of Edusei v. Attorney-General (1996-97) SCGLR 1 (affirmed on review in Edusei (No.2) v. Attorney-General (1998-99 SCGLR 753) and Yeboah v. Mensah (1998-99) SCGLR 492 to bolster his arguments. In the first of these cases, which involved the enforcement of the fundamental human rights of the plaintiff therein, this court in a majority decision, held that:—“the effect of articles 33(1), 130(1) and 140(2) … was to vest in the High Court, as a court of first instance, an exclusive jurisdiction in the enforcement of the fundamental human rights and freedoms of the individual. The Supreme Court has only appellate jurisdiction in such matters. It has no concurrent jurisdiction with the High Court in the enforcement of fundamental human rights contained in chapter five … of the Constitution.”

In article 33(1) and 140(2) the Constitution explicitly confers on the High Court the jurisdiction to hear applications for the enforcement of the fundamental human rights and freedoms. Furthermore, by article 130(1), the original jurisdiction of the Supreme Court is expressly made subject to the High Court’s original jurisdiction, conferred by article 33, in matters involving the enforcement of these rights and freedoms. In the absence of such express provisions, the Supreme Court, would have had original jurisdiction pursuant to the provisions of article 2. Clearly, therefore, it is because of these clear provisions that the majority reached the conclusion it did in this case, which conclusion was affirmed on review.

In Yeboah v. Mensah, where the court found that, although, by his writ, the plaintiff purported to invoke its enforcement and original jurisdictions under articles 2 and 130, the action was, effectively, an election petition and, hence, governed by article 99(1)(a), it held that:—

“the High Court, and not the Supreme Court, was the proper forum under article 99(1)(a) of the Constitution and Part IV of PNDCL 284 for determining the plaintiff’s action …. The plaintiff should therefore not ignore the provisions of article 99(1)(a) of the 1992 Constitution, which had provided for a specific remedy at the High Court for determining challenges to the validity of a person’s election to Parliament, and resort to the enforcement jurisdiction of the Supreme Court under articles 2(1) and 130(1) of the Constitution.”

In delivering his opinion in the matter, the learned Charles Hayfron-Benjamin, JSC stated, inter alia, as follows:—

“… when a remedy is given by the Constitution and a forum is given either by the Constitution itself or statute for ventilating that grievance, then, it is to that forum that the plaintiff may present his petition”

Unless I have entirely misapprehended the import of these decisions and the rationales thereof, the outcomes of these cases hinged on the express provisions of the applicable articles, which clearly vested original jurisdiction in matters involving the enforcement of the fundamental human rights and freedoms, and challenges to the validity of a person’s election to Parliament, in the High Court. In my view, therefore, the decisions in these cases are not quite relevant to the current matter, which involves article 99(2). Admittedly, this provision makes no mention of a further appeal to the Supreme Court, however, it is my opinion that, given the language of article 131 and the structure of the Constitution, there was no need to do so and the mere fact that no such mention is specifically made in article 99 cannot justify a conclusion that an appeal cannot not lie from a decision of the Court of Appeal in such matters.

I am fortified in this view by the fact that, when the Constitution intends to limit the right of appeal to the Court of Appeal alone, it does so specifically, as in article 48 where it is stated thus:—

“(1)  A person aggrieved by a decision of the Electoral Commission in respect of a demarcation of a boundary, may appeal to a tribunal consisting of three persons appointed by the Chief Justice; and the Electoral Commission shall give effect to the decision of the tribunal.

(2)  A person aggrieved by a decision of the tribunal referred to in clause (1) of this article may appeal to the Court of Appeal whose decision on the matter shall be final.” (my emphasis)

There is no such finality clause in article 99(2) because none was intended.

In the Applicant’s statement of claim, he supported his assertions to the contrary with the argument that the reason for limiting appeals in parliamentary election petitions to the Court of Appeal is to save time and assure that a person who may be, indeed, unlawfully elected does not remain in parliament for any undue length of time. I am not convinced by such an argument. An election petition raises a question of the proper and lawful representation of the people, a crucial and fundamental factor in constitutionalism and democratic governance. Consequently, if, in the name of timesaving or for any other reason whatsoever, it were the intention of the Constitution (despite the clear language of article 131) to eliminate the input of the highest court in the land in such a vital matter it would have done so in clear terms and in so many words.

That there was no such intention may, also, be gleaned from the fact that, other than a stipulation of the time within which an election petition may be brought before the High Court, Part IV of the Representation of the People Law, 1992 (PNDCL 284) does not spell out any special time limit for appealing to the Court of Appeal from a decision of the High Court in such a matter. Furthermore, the Court of Appeal Rules, 1997 (C.I.19), as amended by C.I.21, contain no special provisions or procedures for the disposal of appeals from the High Court in such matters with any special despatch. Therefore, such an appeal would follow the normal course of civil appeals in the Court of Appeal, unless special administrative arrangements are made to assure its speedy determination. This is so because an election petition is nothing more than a civil proceeding. As such, therefore, an appeal lies from a determination of the Court of Appeal in such a matter to the Supreme Court, pursuant to article 131; and since it is a matter, which, under article 99, originates from the High Court, such appeal is as of right and any concerns about undue delay (though justified in view of the generally slow progress of cases through our courts) must be addressed by effective measures to improve case management, rather than through the supply of words not clearly or by necessary implication furnished by the Constitution.

It is for the foregoing reasons that, after deep reflection, I have dissented from the decision of my learned brothers.

S.A.B. AKUFFO,

JUSTICE OF THE SUPREME COURT

COUNSEL

Mr. E. O. Appiah with Mr. E. K. Musah for the Respondent.

Mr. Kwaku Baah for the Appellant.

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