|
Company
law - Directors -Wether or not
there was a non- compliance with
the rules of court.- What
implications emerge from the
Court of Appeal’s finding that
the e-mail communication was a
formal and an accurate
communication of the status of
Rom International Ltd, Mauritius
as a registered company in
Mauritius - Whether the Court of
Appeal fail to consider
adequately all relevant
authority and evidence of
payments by defendant and
received by plaintiff - Whether
or not International Rom,
Mauritius was liquidated
HEADNOTES
On 17th December
2003, 1st Defendant
entered into a contract with
International Rom
Ltd a company registered under
the laws of Mauritius The
Company’s Directors were Messrs
Eli Bonzaglo and
Sundaraparipirnom Varadaranjon,
while Mr. Eli Bonzaglo was the
shareholder, thereof. The
Company was thereafter
registered in Ghana as an
external Company, . It carried
out civil works for defendant
between 2003 and 2006 until the
directors ended their operations
in Ghana. It is the 1st
Defendant’s case that it paid
all amounts due this company
through their local and foreign
accounts. In or about 5th
July, 2007, Plaintiff was
registered in Ghana as a limited
liability company under the
Companies Act, 1963 (Act 179),
long after the expiry of 1st
Defendant’s contract with
International Rom, Mauritius.
Its first directors were Martin
Asiedu, Nii Amoo Cudjoe and
Moshe Ben Kalifa. These
directors are also the
shareholders of Plaintiff
Company. On May 13, 2008, the
Plaintiff, the Ghanaian
registered International Rom
Limited, entered into exhibit C,
an agreement with 1st
Defendant, effective 1st
October 2007 to 31st
December 2008 under which
Plaintiff was awarded 41 sites
for the construction of
telecommunication towers. The 1st
defendant apparently failed to
comply with the undertaking.
Subsequently the 1st
defendant terminated the
contract between it and the
plaintiff culminating in the
action before the High Court,
Accra (Commercial Division). The
High Court, Accra (Commercial
Division) after a full trial
entered judgment on 15th
May 2013 in favour of the
Plaintiff as against the 1st
Defendant. On appeal, the Court
of Appeal affirmed the decision
of the trial court and dismissed
the appeal in its entirety. This
further appeal to this court
demonstrates the appellant’s
dissatisfaction with the outcome
from the Court of Appeal..
HELD
The payment, upon the
instructions of the plaintiff of
monies which should have been
made to the 2nd
defendant, to other banks rather
than the 2nd
defendant did not absolve the 1st
defendant from its obligations
under the Undertaking. The 2nd
defendant is entitled to the
outstanding balance from the
undertaking from the plaintiff
and 1st defendant
jointly. In the instant appeal,
the Court of Appeal had affirmed
the trial judge’s award against
the 1st defendant in
the circumstance. We would
substitute an award of the
outstanding balance under the
undertaking from both plaintiff
and 1st defendant
jointly. In conclusion, save for
the variations above, the appeal
is dismissed.
STATUTES REFERRED TO IN JUDGMENT
Evidence Act, NRCD 323
Electronic Transactions Act, Act
772
Companies Act, 1963, Act 179
Contracts Act, 1960, Act 25
CASES REFERRED TO IN JUDGMENT
Wilkingson v Barking Corp (1948)
1 K.B. 721
Ayikai v Okaidja III (2011)
SCGLR 205
Tuakwa vs Bosom (2001-2002)
SCGLR 61
Djin vs Musah (2007-2008) 1
SCGLR 686.
Acquie v Tijani (2012) 2 SCGLR
1252 at 1258
Hawkins v Powells Tillery Steam
Coal Co Ltd (1911) KB 988
Antoh v The State 1965 GLR 676
Oxyair Ltd & Darko vs Wood & Ors
(2005-2006) SCGLR 1057 at 1069
Amalgamated
Investment and Properties Co.
Ltd (In Liquidation) v Texas
Commerce International Bank Ltd
(1981) CA, 3 AER 57
of NDK Financial
Services Ltd vrs Ahaman
Enterprises Ltd & 2 Ors, Civil
Appeal No J4/23/2013 28th
November 2014
BOOKS REFERRED TO IN JUDGMENT
Commentary on the Evidence
Decree, 1975 NRCD 323
Evidence Law and Practice 2nd
Edition by Eric Cowsill and John
Clegg,
DELIVERING THE LEADING JUDGMENT
AKAMBA, JSC
COUNSEL
TONY LITHUR ESQ. WITH HIM MRS.
E. EMEAFAH HARDCASTLE AND IRETTE
OFFOSU- ASANTE FOR THE 1ST
DEFENDANT/APPELLANT/APPELLANT.
THADEUS SORY ESQ. WITH HIM EFUA
NTIM (MISS) LED BY EMMANUEL
AMOFAH. FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
---------------------------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------------------------
AKAMBA, JSC
By a writ of summons issued on
the 19th August 2009,
in the High Court, (Commercial
Division) Accra, the
plaintiff/respondent/respondent
(herein after simply referred to
as the plaintiff) claimed
against the 1st
Defendant/appellant/appellant
(herein after simply referred to
as the 1st defendant)
the following:
“(i) …..a total outstanding
amount of US$4,893,057.08 being
unpaid bills by the defendant on
due dates arising from works
executed by plaintiff as
contained in the contract of 17th
December, 2003 with its
amendment and 13th
May, 2008 respectively for works
executed and already taken over
by defendant but has refused to
settle despite numerous
reminders.
(ii) An order for accounts or
reconciliation of accounts
between the two parties in
respect of the two named
contracts to verify the
outstanding unpaid bills.
(iii) Declaration that the said
termination of the contracts of
13th May, 2008 and 28th
May 2009 is illegal.
(iv) Special and General Damages
for breach of contract.
(v) Interest at the prevailing
interest rate up to the date of
final payment.
(vi) Cost.”
The High Court, Accra
(Commercial Division) after a
full trial entered judgment on
15th May 2013 in
favour of the Plaintiff as
against the 1st
Defendant. On appeal, the Court
of Appeal affirmed the decision
of the trial court and dismissed
the appeal in its entirety. This
further appeal to this court
demonstrates the appellant’s
dissatisfaction with the outcome
from the Court of Appeal.
BACKGROUND
On 17th December
2003, 1st Defendant
entered into a contract with
International
Rom Ltd (“International Rom,
Mauritius”), a company
registered under the laws of
Mauritius with its registered
office in Port Louis, Mauritius.
The Company’s Directors were
Messrs Eli Bonzaglo and
Sundaraparipirnom Varadaranjon,
while Mr. Eli Bonzaglo was the
shareholder, thereof. The
Company was thereafter
registered in Ghana as an
external Company with
Registration Number EXT. 900. It
carried out civil works for 1st
Defendant between 2003 and 2006
until the directors ended their
operations in Ghana. It is the 1st
Defendant’s case that it paid
all amounts due this company
through their local and foreign
accounts. In or about 5th
July, 2007, Plaintiff was
registered in Ghana as a limited
liability company under the
Companies Act, 1963 (Act 179),
long after the expiry of 1st
Defendant’s contract with
International Rom, Mauritius.
Its first directors were Martin
Asiedu, Nii Amoo Cudjoe and
Moshe Ben Kalifa. These
directors are also the
shareholders of Plaintiff
Company. On May 13, 2008, the
Plaintiff, the Ghanaian
registered International Rom
Limited, entered into exhibit C,
an agreement with 1st
Defendant, effective 1st
October 2007 to 31st
December 2008 under which
Plaintiff was awarded 41 sites
for the construction of
telecommunication towers.
The number of sites was
drastically reduced to 27 on
account apparently, of failure
by Plaintiff to meet its
targets. On August 12, 2008, 2nd
Defendant extended a GH¢1.5
million facility to the
Plaintiff to finance the
construction of the 41 sites
against an undertaking by the 1st
Defendant to pay all proceeds
from the contract in the joint
names of the Plaintiff and 2nd
Defendant.
The 1st defendant
apparently failed to comply with
the undertaking. Subsequently
the 1st defendant
terminated the contract between
it and the plaintiff culminating
in the action before the High
Court, Accra (Commercial
Division).
GROUNDS OF APPEAL
The 1st
defendant filed the following as
his grounds of appeal for our
determination:
“1. Having held that the
official email sent by N.B.
Auckbarally stating that
International Rom, Mauritius
ceased to exist on March 25,
2009 constituted a correct
statement of the status of
International Rom, Mauritius as
a registered company in
Mauritius, the Court of Appeal
erred in holding that the trial
court was correct in not
attaching the probative value to
the effect of that email.
2.
The Court of Appeal erred
in failing to consider
adequately or at all, the
implications of its findings to
the effect that the email of N.
B. Auckbarally constituted
formal and accurate
communication of the status of
Rom International Limited,
Mauritius as a registered
company in Mauritius.
3.
In the face of the
evidence on record and clear
legal authority to the contrary,
the Court of Appeal fell into
the same error as the trial High
Court, in treating
Plaintiff/Respondent/Respondent
(Plaintiff) and Rom
International Limited, Mauritius
as one and the same legal entity
in respect of Exhibits A, B, C
and D, when all the evidence on
record showed (among others),
that Plaintiff Rom
International Limited, Mauritius
were separate and distinct legal
entities, incorporated in
different jurisdictions and at
different times and signed and
performed separate contracts at
different times with 1st
Defendant.
4.
The Court of Appeal erred
in failing to consider
adequately or at all the
numerous pieces of evidence and
legal authority in proof of
plaintiff’s lack of capacity to
institute the action.
5.
The Court of Appeal erred
in holding that the
determination of Grounds 2-10 of
the Grounds of Appeal required
merely an evaluation of factual
matters.
6.
The Court of Appeal erred,
in the face of evidence on
record to the contrary, that the
evidence of DW5 did not
challenge the figures stated in
exhibit L, and that DW5’s
evidence stood along, was
selective, unsatisfactory and
was uncorroborated by any other
evidence.
7.
The Court of Appeal erred
in holding that 1st
Defendant did not cross-examine
or discredit Plaintiff’s Exhibit
L when there was clear evidence
on record to the contrary.
8.
The Court of Appeal, in
affirming the various heads of
awards made in favour of
Plaintiff, erred in failing to
consider adequately or at all
relevant authority and the
numerous pieces of evidence on
record of monies paid by 1st
Defendant and received by
Plaintiff.”
The above
eight narratives were filed as
constituting the grounds of
appeal for our determination.
This court is the highest court
of the land. Its jurisdiction is
conferred by the Constitution of
Ghana 1992, the supreme law of
the land. It is also governed in
its day to day deliberations by
enactments made under the
authority of Parliament
established by the Constitution;
any orders rules and regulations
made by any authority or person
under powers conferred by the
constitution; the common law and
existing law. (See article 11 of
the Constitution 1992.) By this
undertaking, every step or
application before our courts
should be measured against the
appropriate law, statute,
regulation, instrument or legal
principle which permits the
step. The present application
before us is an appeal from the
decision of the Court of Appeal.
Appeal is the creature of
statute as no one has an
inherent right of appeal. Thus
the statute that created this
right of appeal has also
provided rules of procedure for
seeking or obtaining this
remedy. The governing statute or
instrument for mounting an
appeal to this court is the CI
16, the Supreme Court Rules. Do
the grounds stated (supra)
constitute grounds of appeal as
envisaged by our relevant rules,
the same being rule 6 sub-rules
4 and 5 of CI 16 which I quote
here below to ascertain
compliance:
C.I. 16 Rule 6 sub-rules 4 and 5
“(4) The grounds of appeal
shall set out concisely and
under distinct heads the grounds
upon which the appellant intends
to rely at the hearing of the
appeal, without any argument or
a narrative and shall be
numbered seriatim; and where a
ground of appeal is one of law,
the appellant shall indicate the
stage of the proceedings at
which it was first raised.
(5) A ground of appeal
which is vague or general in
terms or does not disclose a
reasonable ground of appeal is
not permitted, except the
general ground that the judgment
is against the weight of
evidence and a ground of appeal
or any part of it which is not
permitted under this rule may be
struck out by the Court on its
own motion or on application by
the respondent.”
Thus the
1st defendant’s so
called grounds of appeal when
juxtaposed with the above
requirement reveals an obvious
non-compliance with the rules of
court. Undoubtedly it is only in
an atmosphere of compliance with
procedural rules of court would
there be certainty and integrity
in litigation. All the so called
grounds filed by the appellant
(above) are general,
argumentative and narrative and
to that extent non-compliant
with Rule 6 sub-rules 4 and 5 of
CI 16. They are struck out. In
order not to yield overly to
legal technicalities to defeat
the cries of an otherwise
sincere litigant we would and
hereby substitute them with what
actually emerges as the core
complaint and general ground
which is that ‘the judgment is
against the weight of evidence’.
It does appear that the
magnanimity exhibited by this
court over these obvious lapses
and disrespect for the rules of
engagement is being taken as a
sign either of condoning or
weakness hence the persistence
of the impunity. It is time to
apply the rules strictly.
It is
good law that a party seeking
redress from the court for a
specific remedy provided by
statute, shall resort to the
remedy or the tribunal specified
for it. This general principle
of law was concisely stated by
Lord Justice Asquith in
Wilkingson v Barking Corp (1948)
1 K.B. 721 @ 724 as follows:
“It is undoubtedly good law
that where a statute creates a
right and, in plain language,
gives a specific remedy or
appoints a specific tribunal for
its enforcement, a party seeking
to enforce the right must resort
to that remedy or that tribunal,
and not to others.”
To the above I would add the
procedure specified by the
statute.
In Ayikai v Okaidja III
(2011) SCGLR 205 this
court did stress that
non-compliance with the rules of
court have very fatal
consequences for they not only
constitute an irregularity but
raise issues that go to
jurisdiction.
This
appeal being premised upon the
contention that the judgment is
against the weight of evidence,
among others, is a call on us to
rehear this appeal by analyzing
the record of appeal before us,
taking into account the
testimonies and documentary as
well as any other evidence
adduced at the trial and
arriving at a conclusion one way
or the other. This is the import
of the numerous decisions of
this court on the point. Notable
among these are Tuakwa vs
Bosom (2001-2002) SCGLR 61; Djin
vs Musah (2007-2008) 1 SCGLR
686.
In the
Djin case (above), this court
per Aninakwa JSC at page 691 of
the report held that when an
appellant complains that the
judgment is against the weight
of evidence, “he is implying
that there were certain pieces
of evidence on the record which,
if applied in his favour, could
have changed the decision in his
favour, or certain pieces of
evidence have been wrongly
applied against him. The onus is
on such an appellant to clearly
and properly demonstrate to the
appellate court the lapses in
the judgment being appealed
against.”
Under
this omnibus ground I intend to
determine the following
particulars which the appellant
has raised as lapses arising
from the decisions appealed
from:
(i)
What was the status of
International Rom Mauritius as a
registered company as at 25th
March 2005? What value could
derive from the e-mail?
(ii)
What implications emerge
from the Court of Appeal’s
finding that the e-mail
communication was a formal and
an accurate communication of the
status of Rom International Ltd,
Mauritius as a registered
company in Mauritius?
(iii)
Was the Plaintiff
(International Rom Ltd) and Rom
International Ltd, Mauritius one
and the same legal entity in
respect of exhibits A, B, C and
D in the light of the evidence
on record?
(iv)
Did the DW5 by his
evidence challenge the figures
in exhibit L if so to what
extent?
(v)
Did the 1st
Defendant cross-examine
Plaintiff on the exhibit L and
if so to what effect?
(vi)
Did the Court of Appeal
fail to consider adequately all
relevant authority and evidence
of payments by 1st
defendant and received by
plaintiff?
What then was the status of
International Rom, Mauritius, as
a registered company as at 25th
March 2009 and what value could
derive from the e-mail?
During the trial before the High
Court, the plaintiff herein was
obliged to lead evidence to
establish the registration
status of International Rom,
Mauritius as at 25th
March 2009. This is so because,
as the plaintiff in the contest,
it bears the burden of
production of evidence and
persuasion concerning the issue
as to whether or not
International Rom, Mauritius was
liquidated as at 25th
March 2009. These two burdens,
that of persuasion and
production of evidence are
defined in section 10 and 11
respectively of the Evidence
Act, NRCD 323 as follows:
“10 (1) For the purpose of this
Decree, the burden of persuasion
means the obligation of a party
to establish a requisite degree
of belief concerning a fact in
the mind of the tribunal of fact
or the court.
(2) The burden of
persuasion may require a party
to raise a reasonable doubt
concerning the existence or
non-existence of a fact by a
preponderance of the
probabilities or by proof beyond
reasonable doubt.
11. (1) For the purposes of
this Decree, the burden of
producing evidence means the
obligation of a party to
introduce sufficient evidence to
avoid a ruling against him on
the issue.
(4) In other
circumstances the burden of
producing evidence requires a
party to produce sufficient
evidence so that on all the
evidence a reasonable mind could
conclude that the existence of
the fact was more probable than
its non-existence.”
Also significant to the
discussion is section 14 of NRCD
323 which enacts that:
“14. Except as otherwise
provided by law, unless and
until it is shifted a person has
the burden of persuasion as to
each fact the existence or
non-existence of which is
essential to the claim or
defence he is asserting.”
These evidential requirements
(supra) are meant to satisfy the
tribunal of fact on a
preponderance of evidence on an
issue in contention. As clearly
stated by this court per my
esteemed brother Anin-Yeboah,
JSC in Acquie v Tijani (2012)
2 SCGLR 1252 at 1258 thus:
“In any case, the law does not
require a party to prove his
case with absolute certainty in
civil proceedings. A court must,
however satisfy itself that the
evidence led on a particular
issue is proved in accordance
with the requisite standard
required by law. In Hawkins v
Powells Tillery Steam Coal Co
Ltd (1911) KB 988 at 996,
Buckley, L.J said: ‘When it is
said that a person who comes to
the Court for relief must prove
his case, it is never meant that
he must prove it with absolute
certainty. No fact can be proved
in this world with absolute
certainty. All that can be done
is to adduce such evidence as
that the mind of the tribunal is
satisfied that the fact is so.
That may be done either by
direct evidence or by inference
from facts. But the matter must
not be left to rest in surmise,
conjecture or guess.”
It is equally beneficial to
refer to the Commentary on
the Evidence Decree, 1975 NRCD
323 which contains a
detailed analysis and
explanation by the Law Reform
Commission as required under the
memorandum to the Decree.
Commenting on section 11 (4) of
NRCD 323 it states that:
“The party with the burden of
producing evidence is entitled
to rely on all the evidence in
the case and need not rest
entirely on evidence introduced
by him. The party with the
burden of producing evidence on
the issue may point to evidence
introduced by another party
which meets or helps meet the
test of sufficiency. It is for
this reason that the phrase ‘on
all the evidence’ is included in
each of the tests of
sufficiency.”
What evidence did the plaintiff
lead in proof of the issue in
contention, i.e. the
registration status of
International Rom, Mauritius as
at 25th March 2009?
Plaintiff called DW4 Marian
Plange an official of the
Registrar General’s Department
to testify as to its cause.
Emerging from the
cross-examination of DW 4 on 19th
January 2012 are the following:
“Q. Is International Rom,
Mauritius still operating as
International Company Ghana?
A.
My Lord according to my
documents, it is operating
because there is nothing which
shows that it is been cancelled
on file or liquidated on file.
Q. Do you agree with me that it
is a requirement that it should
file a profit and loss account
and balance sheet in every year
after the exploration (sic) of
its financial year?
A. Yes My Lord.
Q. Tell the court the last time
it filed such a process?
A. My Lord since its
incorporation in Ghana, noting
(sic) has been filed.
Q. Now International Rom
Limited was incorporated
subsequent to the registration
of the International Rom
Mauritius in Ghana, is that
correct?
A. My Lord International Rom
Ghana Limited is a company
incorporated in Ghana.
Q. And was it incorporated
after International Rom
Mauritius?
A. Yes My Lord International
Rom Mauritius was incorporated
in 2004 and International Rom
Ghana Limited was incorporated
in 2007.
Q. Now International Rom
Ghana Limited do you agree that
it has linkage with
International Rom Mauritius?
A. My Lord I cannot tell.
According to my records on
International Rom Ghana,
International Rom Mauritius and
International Rom Engineering,
they are three (3) separate
files.
Q. There is a company called
International Rom Limited then
this was a company registered in
2004, is that correct?
A. Yes My Lord it was
incorporated in Mauritius in
2004 as an external company.
“(See pages 21-22 of ROA Volume
2).
The DW4’s testimony was followed
by DW5 who tendered the ‘Report
of Accountant’ - exhibit 21. In
this report exhibited at page
518 of Volume three (3) of the
Record of Appeal, it is stated
at page 526 item 8.0 on the
status of International Rom
Limited (Mauritius) as follows:
“The company was said
to have been struck off the
register in Mauritius on 26th
March 2009. This was as per an
email confirmation received from
the Company Registry in
Mauritius.”
The trial judge, faced with
these conflicting pieces of
evidence by two of the
appellant’s witnesses ruled as
follows:
“DW5 referred to an email
contained in Exhibit 21 to
support his claim. The contents
of the email are: Dear Sir, your
mail dated 24th of
January 2012. The Company
International Rom Limited was
struck off N.B. Auckbarally.
Chief Compliance Officer…
I take notice that this
information contained in
Appendix 1 of exhibit 21 is of
foreign origin. It has neither
been certified nor attested to
as information reliably from
Mauritius. It is at best a
self-serving document embodied
in exhibit 21 which cannot be
given any probative value in
preference to the testimony of
DW4 with respect to the status
of International Rom Mauritius
and without prejudice to the
other contents of exhibit 21. I
reject it.”
The Court of Appeal for its part
disagreed with the trial judge
on the applicability of section
161 of the Evidence Act to the
email but affirmed the trial
judge’s refusal to admit the
email in evidence as proof of
the liquidation of International
Rom, Mauritius. We find the true
position to be that the email
which was received from the
Chief Compliance Officer of
Mauritius was intended to be an
official record which if it were
an ordinary writing would be
covered under section 126 (1) of
NRCD 323.
I quote section 126 (1) of NRCD
323 here below:
“126. (1) Evidence of a hearsay
statement contained in a writing
made as a record of an act,
event or condition is not made
inadmissible by section 117 if-
(a)
The writing was made by and
within the scope of duty of a
public official;
(b)
The writing was made at or near
the time the act or event
occurred or the condition
existed; and
(c)
The sources of information and
method and time of preparation
were such as to indicate that
the statement contained in the
writing is reasonably
trustworthy.”
By virtue of sections 5, 6 and
10 of the Electronic Transaction
Act, (2008) Act 772 the
requirement of s. 126 (1) of
NRCD 323 would be deemed
satisfied by an electronic
record which meets the
stipulations of the section.
Section 10 of Act 772 states
that:
“10. (1) Where a law requires
the signature of a person, that
requirement is deemed to be
satisfied in relation to an
electronic record if a digital
signature is used.”
Section 12 of the same Act
elaborates on signing electronic
records. It states that:
“12. A person may sign an
electronic record by affixing a
personal digital signature or
using any other recognized,
secure and veritable mode of
signing agreed by the parties or
recognized by the industry to be
safe, reliable and acceptable.”
The courts below were therefore
right, albeit for different
reasons, in accepting the email
in evidence on the basis of its
relevance to the determination
of the issue sought to be
proved. Evidence is said to be
relevant if it renders a fact in
issue in a case more likely or
less likely as the case may be
or if it affects an issue that
goes to the credibility of the
witness. (See Evidence Law and
Practice 2nd Edition
by Eric Cowsill and John Clegg,
page 72). This however did not
bring the issue to a close
because admissibility is one
thing and the weight to be
attached or accorded the
admitted evidence is another.
In Antoh v The State 1965 GLR
676 this court pointed
out that the admissibility of a
statement by a court does not
necessarily mean that the
statement is of evidential value
so as to automatically result in
conviction. A statement that is
admitted into evidence must be
weighted to determine whether it
is valuable enough to sustain
the point sought to be proved.
Thus the admissibility of
evidence must not be confused
with the value or the weight to
be attached to the evidence so
admitted.
As indicated as per the
Commentary to the Evidence Act
(supra) the test of sufficiency
refers to ‘all the evidence’ on
the issue. It is in that context
that we note that the
appellant’s evidence on the
registration status of
International Rom Mauritius as
at 25th March 2009 is
discernible from a consideration
of all the evidence on the issue
in contention in order to
determine the appropriate weight
to attach to any testimony or
evidence led. Consequently the
testimonies of DW4, DW5 and
exhibit 21 would be evaluated to
ascertain their value or weight.
In this context whereas DW5
relies on exhibit 21 to state
that International Rom,
Mauritius had been struck off
the companies register in
Mauritius, DW4 testified to the
contrary based upon the records
she had.
It is instructive to refer to
section 7 of the Electronic
Transactions Act, Act 772 which
states as follows:
“7 (1) The admissibility of an
electronic record shall not be
denied as evidence in legal
proceedings except as provided
in this Act.
(2) In assessing the evidential
weight of an electronic record
the court shall have regard to
(a) the reliability of the
manner in which the electronic
record was generated, displayed,
stored or communicated.
(b) the reliability of the
manner in which the integrity of
the information was maintained.
(c ) the manner in which its
originator was identified and
(d) any other facts that the
court may consider relevant.”
The internal conflicting
evidence presented by the 1st
defendant’s two witnesses, DW4
and DW5 was so material as to
render the issue unproven. In
the instant appeal this court
and those below are not
determining the reliability of
the manner in which the email
was generated or the maintenance
of the integrity of the
information but on other facts
that are considered relevant in
assessing the weight to attach
to the email. This requires that
any other pieces of evidence on
the same issue be considered in
order to arrive at a conclusion
on the weight to attach to the
issue. The point of divergence
between DW4 and DW5 is not on an
issue which was not material to
the 1st defendant’s
case but on a material issue
pertaining to the true status of
International Rom, Mauritius at
the material time hence the
courts below rightly rejected
the evidence.
The Companies Act, 1963, Act 179
stipulates particularly in
section 311 (1) [c] that upon
the dissolution of the external
company, the Registrar must be
notified within twenty-eight
days of the event. The section
311 of Act 179 enacts that:
“311. (1) Where, in the case of
an external company,
(a)
a winding up order is made by a
court of the country in which
the company is incorporated, or
(b)
a resolution is passed or any
other appropriate proceedings
are taken in that country to
lead to the voluntary winding up
of the company, or
(c)
the company is dissolved or
otherwise ceases to exist
according to the law of the
country in which it was
incorporated,
the local managers and process
agents of the company shall,
within twenty-eight days after
that event, give notice in the
prescribed form of that event to
the Registrar who shall register
the same and publish the
particulars contained in the
Gazette.
(2) Where any of the events that
are referred to in paragraph (a)
or (b) of subsection (1) has
occurred, the local managers of
the company shall, on every
invoice, order or business
letter issued in Ghana by or on
behalf of the company, which is
a document on or in which the
company’s name appears, cause a
statement to appear in legible
letters to the effect that the
company is being wound up in the
country where it is
incorporated.
(3) A person who in Ghana
carries on, or purports to carry
on, business on behalf of the
company after the date on which
it was dissolved or otherwise
ceased to exist in the country
in which it was incorporated, is
liable to a fine not exceeding
[twenty-five penalty units] for
each day during which that
person continues so to do.”
There being no evidence that the
above stated requirements had
been complied with, more
particularly s. 311 (1) [b] and
[c] above, the DW5 could not
have stated anything contrary to
what she stated in court. The
effect of the 1st
defendant’s witnesses presenting
conflicting evidence on the
status of International Rom,
Mauritius as at 25th
March 2009 is to render the
point unproven. In the same vein
whatever probative value that
could be attached to the email
was eroded or cancelled by the
contradictory evidence by DW4
under cross examination on 13th
January 2012. Were it indeed the
case that as at March 26, 2009,
International Rom, Mauritius had
ceased to exist, what prevented
this piece of information from
being communicated to the
Registrar General as required
under section 311 [b] and [c] of
Act 179? The Court of Appeal
correctly dismissed this ground
of contention. We equally find
no merit in this ground of
dissatisfaction and same is
dismissed.
What implications emerge from
the Court of Appeal’s finding
that the e-mail communication
was a formal and an accurate
communication of the status of
Rom International Ltd, Mauritius
as a registered company in
Mauritius?
This issue has been dealt with
in the preceding discussion. We
would however elaborate on a few
areas for more clarity. While
the email apparently satisfies
the requirement for admitting an
electronic record in evidence
this satisfaction alone does not
decide what probative value or
weight to be attached to it. It
does not at that stage determine
whether or not the party on
whose behalf the email was
tendered has met the requisite
burden of proof required of him
on the issue sought to be
proved. This can only be
determined upon considering all
the evidence on the issue in
contention. The evidence
proffered by the 1st
defendant’s two witnesses (DW4
and DW5) as to the existing
registration status of
International Rom Ltd, Mauritius
as at March 26, 2009 was
conflicting. The result was to
render the issue not proven
because no court would construe
such obvious conflict on a
material issue otherwise. In
conclusion, whereas the email,
standing by itself, could have
proved the status of
International Rom, Mauritius one
way yet in the light of the
conflicting evidence given by
the 1st defendant’s
other witness it negated
whatever probative value that
could attach to the email. The
implication of the conclusion is
that parties and their counsel
must be certain of the evidence
they lead in proof of their
claims in order not to embark on
fruitless expeditions.
Was the Plaintiff (International
Rom Ltd) and Rom International
Ltd, Mauritius one and the same
legal entity in respect of
exhibits A, B, C and D in the
light of the evidence on record?
From the record of appeal before
us, it is obvious that the
Plaintiff was registered in
Ghana as an external company
with registration No Ext. 900 on
13th January 2004.
(See page 470 Vol. 3 of ROA). An
external company is defined in
s. 302 of the Companies Act,
1963, Act 179 as:
“a body corporate formed outside
the Republic which, at or
subsequently to, the
commencement of this Act has an
established place of business in
Ghana.”
Established place of business
means:
“a branch, management, share,
transfer, or registration
office, factory, mine, or any
other fixed place of business,
but does not include an agency
unless the agent has, and
habitually exercises, a general
authority to negotiate and
conclude contracts on behalf of
the body corporate or maintains
a stock of merchandise belonging
to that body corporate from
which the agent regularly fills
orders on its behalf.”
The fact however that a body
corporate has a subsidiary which
is incorporated, resident, or
carrying on business in the
Republic, whether through an
established place of business or
otherwise, shall not of itself
constitute the place of business
of that subsidiary an
established place of business of
that body corporate.
International Rom, Mauritius, on
27th October 2003
granted a General Power of
Attorney in favour of a Mr Raju
with Indian passport number
A3996530 to among other things
“demand and receive from all
persons, firms, companies or
other bodies indebted to the
Company all debts and other sums
of money now or at time
hereafter owing from them, and
to give and execute all
necessary receipts and discharge
from the same with power to
accept security and give time
for payment of any debt……..”
(See page 472 Vol. 3 of ROA).
Having combed the mass of
exhibits tendered between the
parties in this dispute there is
nothing to suggest that the
power of attorney granted Mr.
Raju, the Local Manager of
International Rom, Mauritius
(See Exhibit 18 particularly
page 469, Vol 3 of ROA) had been
revoked. There is also no
evidence of any dealings between
this Attorney and the 1st
defendant in respect to the
matters in contention or arising
from the dealings between the
parties.
However on 21st
January 2008 a purchase
agreement was entered between Mr
Eli Bouzaglo, on one side and
Martin Asiedu and Nii Amoo
Cudjoe, on the other side,
whereby the former agreed to
transfer ownership of Rom
Engineering Limited and
International Rom (Mauritius)
operating in Ghana to the latter
subject to the payment of a sum
agreed by the parties. (See
Exhibit Q at page 207).
There are remarkable records of
dealings between the 1st
defendant and the plaintiff. By
these records the Chief
Executive Officer, Oduro Nyaning
and the Acting Chief Financial
Officer Joe Owusu-Ansah both of
the 1st defendant
company confirmed the release of
sums specified therein into the
plaintiff’s bank accounts at
Stanbic Bank, Accra Main and
Fidelity Bank, Accra. These are
evidenced by the exhibit 15
series (Pages 438 to 452 Vol.
3). The payments evidenced by
the exhibit 15 series were made
from 24th September
2007 to 18th December
2008. These dealings by the 1st
defendant with the plaintiff at
a time it had no contractual
dealings with plaintiff surely
affirms the plaintiff’s
assertion that 1st
defendant regarded it as the
same entity as International
Rom, Mauritius.
Based upon these facts the Court
of Appeal made these profound
findings as follows: “Indeed,
exhibit 15 series of the record
show that the 1st
defendant made some payment to
the plaintiff’s (sic) company in
respect of contract works under
exhibits A and B which preceded
the execution of exhibit C and
D. The payment which was
voluntarily made by the 1st
defendant without an order of
the court was clearly
inconsistent with the conduct of
a legal entity which believed it
had no contract nor owed any
money to the plaintiff. Put
differently, payment by 1st
defendant to plaintiff for works
done under exhibit A and B which
preceded the execution of
exhibits C and D, (that is,
contract works between plaintiff
and 1st defendant) is
inconsistent with the position
of a legal person or entity who
claimed the plaintiff’s (sic)
company lacks capacity to claim
any monies referable to exhibits
A and B.”
It is appropriate to infer that
the 1st defendant’s
Chief Executive Officer and its
Acting Chief Financial Officer
acted both in their own behalf
and on behalf of the 1st
defendant company in their
capacities as Chief Executive
Officer and Acting Chief
Financial Officer respectively
when they issued out those
correspondences confirming
payments to International Rom
Ltd as per the exhibit 15
series. Under these
circumstances, unless the 1st
defendant is able to demonstrate
that the plaintiff had
knowledge, before the issuance
of the exhibit 15 series, of any
defect in the Chief Executive
Officer’s authority to bind his
1st defendant company
or that he had acted in an
irregular manner, including
awareness of the previous power
of Attorney to Mr Raju, then the
1st defendant company
would be bound. This accords
with section 139 of Act 179
(1963) which states as follows:
“139 (1) An act of the members
in general meeting, the board of
directors, or a managing
director while carrying on in
the usual way the business of
the company shall be treated as
the act of the company itself;
and accordingly the company
shall be criminally and civilly
liable for that act to the same
extent as if it were a natural
person.
(2) For the purpose of
subsection (1),
(a) the company shall not incur
civil liability to a person if
that person had actual knowledge
at the time of the transaction
in question that the general
meeting, board of directors, or
managing director, did not have
the power to act in the matter
or had acted in an irregular
manner or if, having regard to
the position with, or
relationship to, the company,
that person ought to have known
of the absence of power or of
the irregularity;
(b) if in fact a business is
being carried on by the company,
the company shall not escape
liability for facts undertaken
in connection with that business
merely because the business in
question was not among the
businesses authorized by the
company’s regulations.”
In the case of Oxyair Ltd &
Darko vs Wood & Ors (2005-2006)
SCGLR 1057 at 1069 my
respected brother Dr. Date-Bah,
JSC highlighted upon the rule,
well known to students of
company law, as the rule in
Turquand’s Case, formulated
in the case of Royal British
Bank v Turquand (1856) 6 EI & BI
327 which has been codified
and amended in sections 139
(supra) to 143 of our Companies
Act, Act 179, (1963). At page
1069 he stated:
“In this connection, it should
be noted that section 141 of the
Companies Code, 1963 effects a
change in the pre-existing
common law rule. The common law
rule was that a party dealing
with a company was deemed to
have constructive notice of the
contents of all the company’s
public documents filed at the
Companies Registry. Section 141
abolishes this rule. It provides
as follows:
‘141. Except as mentioned in
section 118 of this Code,
regarding particulars in the
register of particular charges,
a person shall not be deemed to
have knowledge of any
particulars, documents or the
contents of documents by reason
only that such particulars or
documents are registered by the
Registrar or referred to in any
particulars or documents so
registered.’
This provision implies that at
the time that the plaintiffs
entered into their parol
contract with the defendants
they had no constructive notice
of the contents of the
regulations of the company.
Accordingly, any restrictions on
the authority of the managing
director contained in the
regulations do not affect the
validity of the contract entered
into by him, unless the
plaintiffs’ actual knowledge of
such restrictions is proved. “
Section 142 of Act 179 provides
that any person having dealings
with a company or with someone
deriving title under the company
shall be entitled to assume that
the Company’s regulations have
been duly complied with.
Further dealings between the
parties can be found in Exhibit
A (See page 1 to 26 of Vol. 3
ROA) a ‘Civil Works Frame
Contract’ entered between Ghana
Telecommunications Company Ltd
(predecessor of the 1st
Defendant) and International Rom
Limited, the plaintiff on 17th
December 2003; Exhibit B (See
page 27 of Vol. 3 of ROA) was
made on 26th January
2005 between the same Ghana
Telecommunications Company Ltd
and International Rom Limited as
an amendment to the ‘Civil Works
Frame Contract’; Exhibit C (at
page 31 of Volume 3 of the ROA)
was entered between Ghana
Telecommunications Company Ltd
and International Rom Limited
for the ‘Supply, Delivery,
Installation, Testing,
Commissioning, Maintenance and
Support Services’ for the Civil
Works in respect of Ghana
Telecom’s Network Expansion
(Phase Zero of PO2); Exhibit D
(at page 60 of Volume 3 ROA) was
also made on 2nd
October 2008 between Ghana
Telecommunications Company Ltd
(GT) (predecessor of 1st
Defendant) and International Rom
Ghana Ltd for the ‘Supply,
Delivery, Installation, Testing,
Commissioning, Maintenance and
Support Services for the Civil
Works’ in respect of GT’s
network expansion. It is worth
noting that exhibit C was
executed by Dickson Oduro
Nyaning, Chief Executive Officer
for Ghana Telecom and Nana
Opeabre Awuah Asiedu I, Director
of Operations for International
Rom Ltd. In the case of exhibit
D the execution was by the same
officers except that Nana
Opeabre Awuah Asiedu I signed as
Director of Operations for
International Rom Ghana Ltd.
(See page 81). Equally striking
is the fact that International
Rom Limited (the plaintiff) and
International Rom Ghana Limited
have the same principal place of
business the same being House No
TPDTCD 6-126, Community 6,
Opposite Nick Hotel, Tema in the
Greater Accra Region of the
Republic of Ghana as evidenced
by exhibits C and D. (See page
34 of exhibit C and page 63 of
exhibit D of Vol. 3). This is no
sheer coincidence. Besides,
exhibit W which was issued on 17th
August 2006 from Ghana Telecom
to International Rom admitted
their indebtedness to the latter
and this was confirmed as per
exhibit Z (at page 275). The
confirmation letter (exhibit Z)
from International Rom Ltd bore
the same office No H/No
TPDTCD6-126 (CM. 6), Tema, Opp.
Nick Hotel, used by
International Rom, Ghana.
It is instructive to refer to
the invaluable decision in the
case of Amalgamated
Investment and Properties Co.
Ltd (In Liquidation) v Texas
Commerce International Bank Ltd
(1981) CA, 3 AER 577 @
581 wherein the court per
Denning M.R succinctly stated
the principle that:
“When the parties to a
transaction proceed on the basis
of an underlying assumption
either of fact or of law,
whether due to misrepresentation
or mistake makes no difference
on which they have conducted the
dealings between them, neither
of them will be allowed to go
back on that assumption when it
will be unfair or unjust to
allow him to do so. If one of
them does seek to go back on it,
the courts will give the other
such remedy as the equity of the
case demands. And if parties to
a contract by their course of
dealing, put a particular
interpretation on the terms of
it on the faith of which each of
them, to the knowledge of the
other acts and conducts their
mutual affairs, they are bound
by that interpretation just as
much as if they had written it
down as being a variation of the
contract. There is no need to
inquire whether their particular
interpretation is correct or not
or whether they were mistaken or
not or whether they had in mind
the original terms or not.
Suffice it that they have by
their course of dealing put
their own interpretation on
their contract, and cannot be
allowed to go back on it.”
Thus, when the parties to a
contract are both under a common
mistake (even if there was a
mistake) as to the meaning or
effect of it and thereafter
embark on a cause of dealing on
the footing of that mistake
thereby replacing the original
terms of the contract by a
conventional basis on which they
both conduct their affairs, then
the original contract is
replaced by the conventional
basis. The parties are bound by
the conventional basis and
either party can sue or be sued
just as if it had been expressly
agreed by them. This statement
of the law is in accordance with
s.139 of Act 179, the Companies
Act.
For all the preceding reasons we
find that the 1st
defendant dealt with and treated
International Rom, Mauritius and
the plaintiff company as one and
the same company. They cannot
now turn round to renege on
their contract obligations using
flimsy technical arguments which
simply lack any merits. The
Court of Appeal rightly
concluded that by the nature of
their dealings, the 1st
defendant regarded the plaintiff
and International Rom, Mauritius
as the same. This contrary
contention advanced by the 1st
defendant is without merit and
is dismissed.
Did the DW5 by his evidence
challenge the figures in exhibit
L if so to what extent?
Did the 1st Defendant
cross-examine Plaintiff on the
exhibit L and if so to what
effect?
Exhibit L was tendered in
evidence by the plaintiff on 26th
May 2010. It is a detailed
report, from the plaintiff’s
perspective, of reconciliation
of accounts between the parties
in this dispute. It also
includes a summary of services
and works done, accessories and
services and summaries of monies
paid and outstanding balances.
(See page 56 to 85 of Vol 1)
Two issues have been raised
concerning this exhibit which
would be determined together
since they arise from the same
exhibit L. I would refer to the
record of appeal in order to put
the issue into proper
perspective.
The two issues of
dissatisfaction arise from the
Court of Appeal’s finding to the
effect that:
“In its attempt to prove its
case that the 1st
defendant owed them
US$4,847,987.08, the plaintiff
tendered exhibit L which is a
detailed account of works done
by the plaintiff from year 2004
to 2008 and the amount that the
1st defendant have
paid to plaintiff from 2004 to
2008. The plaintiff in exhibit L
gave the breakdown of work that
is, the quantum/values of amount
involved as well as site
preparation, partially completed
values of works, accessories,
etc. and summary of money paid
by 1st defendant and
receipted.”
DW5 is Ben Korley a Consultant
engaged by the 1st
defendant and who testified at
the trial. Regarding
specifically to any reference to
exhibit L in his deliberations
DW5 stated (at page 29 of Vol 2
of ROA) among others, that:
“Having separated those two
accounts, I made reference to
the Exhibits before the court
that Exhibit L presented by the
plaintiff which indicated the
summary of their interaction of
their relationship with the 1st
defendant and separated the two.
My conclusions are that from 1st
of October 2007 to the end of
December 2008, the plaintiff
performed assignments, contracts
and services with $2,230,193.65
and the receipts payment from
the 1st defendant in
the sum of $3,289,685.98 that is
there is an over payment by the
1st defendant to the
plaintiff…….”
Under cross-examination by
counsel for the plaintiff at
page 41 of Vol 2:
Q. Did you prepare these
documents on your own?
A. I prepared them from the
information that the 1st
defendant gave me including
exhibit L.
Q. Now you have alleged that the
payments for the transactions
between the Plaintiffs and the 1st
defendant started from 2007 to
2008 is that correct?
A. The contract periods (sic)
says 1st of October
2007 to 31st December
2008.
At pages 42 to 43
Q. Were you shown invoices for
specific payments made?
A. I didn’t need to see the
invoices.
Q. I am suggesting to you that
these figures you have put there
are not authenticated?
A. I disagree with you My Lord.
They are all in the exhibits
that were before the court.
Q. Lets go back to page 11 of
your report?
A. I am there my lord
Q. Look at exhibit L which you
have attached to your report?
A. Yes I am there.
At Page 45 to 46
Q. You confirmed that you used
exhibit L in preparing the
report?
A. Partially.
Q. Now look at year 2007 in
exhibit L the figure 647000?
A. Yes I have seen it.
Q. That figure is not reflected
(sic) your table with the
reconciliation on page 11?
A. That is correct because
some of them were dated before
the 1st of October.
As I mentioned my lord, the
transactions for 2007, I split
them between the periods from
January to September and then
from October to December so that
which is related to December is
what you are seeing there.
Q. Now look at exhibit L again
you will find that under other
words ‘Services’ for all the
years figures have been
provided.
A. That is correct.
Q. On what bases (sic) do you
delete 647.000?
A. My Lord there is no deletion.
There is a separation of
figures. The report that I did
separated the information
between two companies.
International Rom limited a
company incorporated under the
laws (sic) Mauritius which had a
contract with Vodafone from the
period 2004 to September 2007.
And then International Rom
Limited a company incorporated
under the laws of Ghana which
had a contract effective date 1st
of October 2007. And so in the
year 2007 there were other
works, 647,000 and looking at
the date of the awards of those
contracts, I separated between
that which fell between the
periods January to September and
then October to December.”
There is considerable
justification for the conclusion
arrived by the Court of Appeal
viewed against the few excerpts
quoted supra. The Court of
Appeal determined as follows:
“However, the evidence of DW5
appears to be selective, stands
alone, uncorroborated and
unsatisfactory as the said
witness admitted in his evidence
and report, exhibit 21, that he
did not have the benefit of all
materials in his work. In
effect, DW5’s report lacks
objectivity and substance. “
The appellate court further
stated:
“Worse still, the record shows
that DW5 did not challenge the
figures contained in exhibit L
submitted by the plaintiff as
the basis of the 1st
defendant’s outstanding
indebtedness. The position of
DW5 on exhibit 21 was to the
effect that the plaintiff was
entitled to only the outstanding
amounts, if any, from the year
2007 to 2008 and not the
outstanding amounts from 2004 to
2006. But as noted earlier in
this judgment, the payment by 1st
defendant to plaintiff for works
done under exhibits A and B at a
time the 1st
defendant claims it had no
contractual dealing with the
plaintiff confirms the assertion
of the plaintiff that the 1st
defendant dealt with plaintiff’s
company and International Rom
Ltd, Mauritius as one legal
entity with respect to contract
works under exhibits A, B, C and
D”
The Court of Appeal also
remarked that:
“It is instructive to note that
the record of appeal indicates
that exhibit L tendered in
evidence by plaintiff was not
cross-examined or discredited in
any way during cross-examination
by the 1st defendant.
Consequently, exhibit L was
deemed to have been admitted by
the 1st defendant as
true.”
It is quite striking to note
that what DW5 succeeded in doing
was to segregate the figures
from a certain period. By his
own admission the periods under
consideration for him was from
2004 to 2007 and 2007 to 2008.
From the DW5’s reckoning
therefore the plaintiff would be
entitled to claim for the period
of 2007 to 2008 but not 2004 to
2007. However, in the light of
the conclusion arrived by the
trial court and affirmed by the
Court of Appeal by which the 1st
defendant had on its own
volition made payments covering
the earlier period to the
plaintiff it would be
inappropriate to sever the
undertaking at this stage.
In conclusion we find no merit
in these two issues. This is
because there was no meaningful
outcome from the 1st
defendant counsel’s cross
examination of the plaintiff
concerning the exhibit L.
The 1st
defendant also expressed
dissatisfaction with the Court
of Appeal’s affirmation of the
award entitling plaintiff to
recover credit facilities which
plaintiff obtained from 2nd
defendant to execute
construction of cell sites for
the 1st defendant
when there was no evidence that
1st defendant had
guaranteed the repayment of the
loan.
To put the issue in context,
the trial court made an award of
US$2,280,000.00 representing a
loan facility which, according
to plaintiff, it had contracted
from 2nd defendant in
order to execute its contracts
with the 1st
defendant. The trial court
granted the award in favour of
the plaintiff on the basis of an
undertaking given by the 1st
defendant to pay the proceeds of
the exhibit A in the joint names
and into the joint accounts of 2nd
defendants and the plaintiff.
According to the trial court, it
was the undertaking to make
these payments in the manner
promised by the 1st
defendant that made the 2nd
defendant to lend the monies to
the plaintiff hence the
plaintiff was entitled to claim
the sum from 1st
defendant as damages for breach
of contract. The court rejected
the 1st defendant’s
contention that the undertaking
was not in the nature of a
guarantee and also that the
plaintiff had in fact received
payments from the 1st
defendant under the contract
into other accounts designated
by the plaintiff. The Court of
Appeal affirmed the finding by
the trial judge and dismissed
the appeal brought against same.
Under the Contracts Act, 1960,
Act 25, a promise is not invalid
as a contract by reason only
that the consideration for the
promise is supplied by a person
other than the promisee. The
issue whether or not an
undertaking as above facilitated
is enforceable or not has
received pronouncement by this
court in our recent decision. In
the Civil Appeal case No
J4/23/2013 of NDK Financial
Services Ltd vrs Ahaman
Enterprises Ltd & 2 Ors,
unreported decision of 28th
November 2014 in which my
esteemed brother Dotse, JSC,
reading the unanimous decision
of the court espoused as
follows:
“This is to the effect that, the
letters of understanding and
guarantee written by the
Ministry of Energy to the
Plaintiffs and Ahaman
Enterprises constituted
sufficient legal basis for the
Court of Appeal’s decision to
the effect that the Defendants
herein, and Ahaman Enterprises
Limited, (1st
Defendants therein) pay the
Plaintiffs, all sums (together
with interest, at the rate of
6.5% per month) paid to Ahaman
Enterprises by the Ministry of
Energy……..”
The payment, upon the
instructions of the plaintiff of
monies which should have been
made to the 2nd
defendant, to other banks rather
than the 2nd
defendant did not absolve the 1st
defendant from its obligations
under the Undertaking. The 2nd
defendant is entitled to the
outstanding balance from the
undertaking from the plaintiff
and 1st defendant
jointly.
In the instant appeal, the Court
of Appeal had affirmed the trial
judge’s award against the 1st
defendant in the circumstance.
We would substitute an award of
the outstanding balance under
the undertaking from both
plaintiff and 1st
defendant jointly.
In conclusion, save for the
variations above, the appeal is
dismissed.
(SGD) J. B. AKAMBA
JUSTICE OF THE
SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO –
BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
(SGD) A. A.
BENIN
JUSTICE OF THE
SUPREME COURT
(SGD) YAW
APPAU
JUSTICE OF THE SUPREME COURT
COUNSEL
TONY LITHUR ESQ. WITH HIM MRS.
E. EMEAFAH HARDCASTLE AND IRETTE
OFFOSU- ASANTE FOR THE 1ST
DEFENDANT/APPELLANT/APPELLANT.
THADEUS SORY ESQ. WITH HIM EFUA
NTIM (MISS) LED BY EMMANUEL
AMOFAH.
FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
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