|
JUDGMENT
AFREH, J.S.C.:
This is an Appeal against the
judgment of the Court of Appeal
dated 15th April, 1999
dismissing the Appellant’s
appeal against the decision of
the High Court dated 17th May,
1995.
The appellant relied on and
argued eight grounds of appeal.
But they can reduced to three
main grounds:
(i) That the judgments of the
High Court and the Court of
Appeal were null and void
because they were delivered
after the statutory periods
within which they should have
been given.
(ii) That the Court of Appeal
erred in treating as evidence
two invoices attached to the
statement of claim.
(iii) That the Court of Appeal
erred in holding that lawyer
Archampong had capacity to
institute proceedings on behalf
of the plaintiffs as plaintiffs’
attorney.
The claim of the plaintiff
(plaintiffs) was for
(a) The sum of USD 50,733.90
being balance of debt due and
owing by the defendants to the
plaintiff in respect of two
separate merchantile
transactions.
(b) Interest on the said amount
at commercial or bank rate with
effect from 1st January, 1988 to
the date of judgment.
The defendants also
counter-claimed from the
plaintiffs rent at the rate of
¢25,000.00 per year from 31st
October, 1987.
According to the plaintiffs, who
were a firm of international
traders in the U.S.A., on 2nd
September, 1987 they conveyed
and sold to the defendants by
sea freight, a consignment of
38,491 pairs of used olive green
shorts at the price of USD 1.20
a pair, 25 pairs of soccer boots
at USD 1.00 a pair, bringing the
total price of the goods to USD
46,214.20. Also, on 5th October
1989, they sold and conveyed to
the defendants, 1280 cartons of
sundry biscuits valued at USD
15,208. As at the time
plaintiffs instituted the
instant action the defendants
had paid USD 20,088 of the total
value of the goods and later USD
4,000.
The Defendants did not dispute
the plaintiffs’ claim relating
to the second consignment of
goods, but they contended the
first consignment of used olive
green shorts was not sold to
them but sent to them on
sell-or-return basis and
therefore they remain the
property of the plaintiffs and
were being kept in the
defendants’ warehouse at ¢25,000
per year. The main issue between
the parties was, therefore,
whether the first consignment of
goods was sold to the defendants
or not; that is whether or not
the goods, the subject-matter of
the claim were sold to the
defendants outright or sold to
them on sell-or-return basis.
In their first ground of appeal
the defendants contend that the
court of Appeal erred in holding
that the provisions of Order 63
Rule 2A of the High Court (Civil
Procedure) Rules 1954 (L.N.
140A) as amended by L.I 1107 are
purely administrative (or
directory) and its infringement
by a Court will not render a
judgment null and void. They
also contend, that the judgment
of the Court of Appeal is null
and void, having been given on
15th April, 1999 a few days
after eight weeks after close of
case contrary to Rule 33
sub-rules 1 and 2 of the Court
of Appeal Rules, 1997, C.I. 19.
The two grounds of appeal are
considered together because they
raise the same issues.
Order 63 r. 2A of L.N. 140A
provides:
“2A (1) At the close of a case
before it the Court shall fix a
date, which shall be not later
than six weeks after the close
of that case, for the delivery
of judgment therein.
(2) It shall be the duty of the
Court to deliver judgment as
soon as possible after the close
of each case before it, and in
any event not later than six
weeks after the close of any
such case.
(3) For the purposes of this
rule a case shall be deemed to
be closed when the evidence has
been given to the Court and the
speeches subsequent thereto have
been concluded.
(4) The times of the vacations
in any year shall not be
reckoned in the computation of
the period of six weeks referred
to in this rule.
(5) Where for any reason
judgment has not been delivered
within the period of six weeks
referred to in this rule, the
Court shall forthwith inform the
Chief Justice in writing of that
fact and shall state the reasons
for the delay in so delivering
judgment and the date upon which
it is proposed to deliver
judgment.
(6) Where judgment has not been
delivered within the period of
six weeks referred to in this
rule, any party to the
proceedings may in writing
notify the Chief Justice of that
fact and request that a date be
fixed for the delivery of
judgment.
(7) Upon receiving a
notification from the Court or a
party under paragraph (5) or (6)
the Chief Justice may fix a date
for the delivery of judgment by
the Court and notify the Court
accordingly, and it shall be the
duty of such Court to ensure
that judgment is delivered upon
the date so fixed by the Chief
Justice”.
In the recent case of THE
REPUBLIC Versus JUDICIAL
COMMITTEE OF THE CENTRAL REGION
HOUSE OF CHIEFS: EX-PARTE SUPI
MARK AABA and ORS, S.C., CIVIL
APPEAL NO. 1/99 dated 25TH JULY,
2000, unreported, this Court
unanimously held that the
provisions of Order 63 Rule 2A
are mandatory, not
administrative or directory and
any judgment given on
contravention of it is null and
void.
However, in the Republic vrs.
The High Court, Accra, Ex Parte
Expandable Polysterene Products
Limited decided this morning the
Court held that in view of
Article 157(3) of the
constitution, 1992 to which the
Court’s attention was not drawn
in Ex-Parte: Supi Mark Aaba, a
judge of a Superior Court who
has heard a case to its
conclusion cannot withdraw from
it or become functus functio
until he has delivered judgment;
and therefore a judgment
delivered by him more than six
weeks after close of the case is
not null and void.
Applying this decision to the
instance case this ground of
appeal must be dismissed.
However, we want to make a few
comments on the lengthy and
learned submissions of counsel
for defendants before us, we
must begin by deploring the
approach counsel adopted. He
quoted only two of the seven
sub-rules of Order 63 rule 2A
and, basing his arguments on
these two sub-rules alone,
proceeded to submit that the
rule prescribes mandatory
requirements which render any
judgment of the High Court
delivered more than six weeks
after the close of a case null
and void. We cannot fathom his
motives for this approach but
whatever they were such an
approach to statutory
interpretation is improper and
should be discouraged. The
proper thing is to consider the
whole of the provision to be
interpreted in its context.
The question whether a statutory
provision imposes mandatory or
directory requirements arises
where, because of deficient
drafting, the statute uses words
of command without saying what
should happen in case of
non-compliance. In spite of the
deficiency or hiatus the Court,
charged with the responsibility
of enforcing the provision, must
ascertain what consequence the
legislature intended should
follow from a failure to comply
with the requirement. It seems
there is no universal rule for
determining whether a provision
is mandatory or directory. See
Lord Campbell L.C. in Liverpool
Borough Bank v. Turner (1860)
2GeG.F. and J502 at pp 507, 508
and Lord Penzance in Howard v.
Bodington (1877) 2 P.D. 203, at
p.211.
However, there are some
opinions, which seem to indicate
a broad approach the Court may
apply in dealing with such
statutory provisions. Maxwell
on The Interpretation of
Statutes, 12th Edition states at
page 314:
“In some cases, the conditions
or forms prescribed by the
statute have been regarded as
essential to the act or thing
regulated by it, and their
omission has been held fatal to
its validity. In others, such
prescriptions have been
considered as merely directory,
the neglect of them involving
nothing more than liability to a
penalty, if any were imposed,
for breach of the enactment”.
In the case of Montreal Street
Rly Co. vrs. Normandin [1917]
A.C. 170 at 174 (P.C.) Sir
Arthur Channell said:
“When the provisions of a
statute relate to the
performance of a public duty and
the case is such that to hold
null and void acts done in
respect of this duty would work
serious inconvenience or
injustice to persons who have no
control over those entrusted
with the duty, and at the same
time would not promote the main
objective of the legislature, it
has been the practice to hold
such provisos to be directory
only, the neglect of them though
punishable, not affecting the
validity of the acts done”.
These words are very apt.
We agree with the view of
Foster, J.A. in the court below
that:
“……(L)itigation as it was at the
present is already expensive
enough. To construe the local
rules (Ord. 63 r.2A) in
conformity with counsel’s
submission and declare null and
void a whole judgment obtained
after years of litigation would
be most unjust and unfair to the
parties, who have no control
over the delivery of judgments
by the Courts. The parties
would thereby be punished for
the indolence and neglect of
judicial officers but the real
culprits pay no price.”
We also agree with the Court of
Appeal, per the late Foster,
J.A., that the disciplinary
power of the Chief Justice over
offending judges is deterring
enough to keep the judges on
their toes. Ordinarily the
Chief Justice has no power to
interfere with the exercise by a
judge of his judicial powers
during a trial, including when
to deliver judgment. Thus in
Mahama v. Soli [1976] 1GLR 96,
Edward Wiredu, J, (as he then
was) refused an order of the
Chief Justice not to read a
judgment he was about to
deliver. But a judge who fails
to deliver judgment within six
weeks after the close of a case
may suffer the humiliation of
being ordered to deliver
judgment on or by a date fixed
by the Chief Justice.
Indeed the construction urged
upon us by counsel for the
appellants offends against a
rule of interpretation that
“when there is a choice of
meanings there is a presumption
that one which produces an
absurd, unjust or inconvenient
result was not intended…..” —
Cross: Statutory Interpretation,
2nd Ed. Pp 16-17. In s.314 of
his code, Benion in his
Statutory Interpretation 2nd
Edition at page 686 states that:
“The court seeks to avoid a
construction that causes
unjustifiable inconvenience to
persons who are subject to the
enactment, since this is
unlikely to have been intended
by Parliament. Sometimes
however there are overriding
reasons for applying such a
construction, for example where
it appears that Parliament
intended it or the literal
meaning is too strong”.
We do not think there is any
overriding reason for applying
such a construction to Order 63
rule 2A.
As the learned author also says
this is an area where
consequential construction is
applied.
“If the Court were to hold the
most trivial breach of an
apparently absolute requirement
as vitiating the relevant
transaction, the consequences
would after be out of all
proportion to the lapse”.
In all the arguments on Order 63
rule 2A one rule or provision
seems to have been ignored and
that is that under Order 70 of
L.N. 140A failure to comply with
the Civil Procedure rules (L.N.
140A) does not nullity
proceedings, but should be
treated as an irregularity.
While such irregular proceedings
may be set aside they are not
vitiated ab initio. Since Order
63 Rule 2A is only a rule of
procedure non-compliance with it
should not necessarily vitiate
proceedings.
For all these reasons the first
main ground must be dismissed.
Another ground of appeal is that
the Court of Appeal erred in
treating Invoice No. 7169 of 2nd
September, 1987 and Invoice No.
739 of 15th October, 1987
respectively as evidence when
(a) they were attached to the
Statement of Claim and equally
wrongfully marked as “exhibits”
PSIL (a) and (b) respectively,
contrary to the rules on
pleading; (b) they were never
formally tendered in evidence as
required by the Evidence Decree
and Civil Procedure Rules; and
(c) the Court of Appeal ignored
the substantial legal arguments
against this type of procedure
without giving any reasons but
accepted the documents as
evidence.
There is much merit in this
ground. It has become a practice
among some lawyers in this
country to attach documents to
pleadings and mark them as
exhibits, as was done in this
case. This is wrong. It is an
attempt to adduce evidence
through the pleadings but this
is not allowed by Ord.19 r. 4 of
L.N. 140A. Judicial evidence
must be given by witnesses who
before they testify must take an
oath or affirmation that they
will speak the truth.
Statements made without such
oath or affirmation are not to
be considered evidence: See
s.61 of the Evidence Decree
(NRCD 323). An exception to this
rule is to be found in s.62 (2)
of the Courts Act, 1993, (Act
459) which allows unsworn
evidence to be given by a person
whose religious belief does not
permit him to take any oath
whatsoever or who is of immature
age. Another exception is s.63
of NRCD 323, which allows the
accused in a criminal trial to
make an unsworn statement.
Evidence may also be given by
affidavit if the rules permit,
such as in an action commenced
by originating summons or
evidence contained in an
affidavit in support of or in
opposition to a motion or
summons. The attachment of a
document to a pleading and
marked “exhibit” does not fall
into any of these exceptions to
the general rule in s.61 of NRCD
323.
The Court of Appeal therefore
erred when it referred to the
two documents attached to the
statement of claim as evidence.
They should have been excluded
from the evidence by the Court
of Appeal and should be excluded
from evidence before this Court.
But even without these two
documents marked Exhibits PSIL
(a) and PSIL (b) there is ample
evidence on which the Court of
Appeal could and did rely, and
on which this Court can rely, to
come to the determination that
there was a sale of the goods
the subject-matter of the appeal
before us.
The document wrongly marked as
Exhibit PSIL (a) is the same as
Exhibit 2, which was tendered in
evidence by the defendant. It
is an invoice showing that the
Plaintiffs shipped the goods to
the Defendants whose Managing
Director was one Godwin K.
Anagbo and who gave evidence as
the Defendants representative,
as per Invoice No. 7169 dated
September 2, 1987.
According to this document the
consignment consisted of (a)
38,491 pairs of used Green Olive
Green Ladies Shorts at S1.20 per
unit for a total sum of
US$46,189; and 25 pairs of used
soccer boots at $1.00 a unit for
a total sum of $25.00. The
Grand Total of the price of the
consignment came to US$46,214.
The Bill of Lading shows Godwin
Anagbo, Godka Group of
Companies, as Consignee and Paul
Penu as the notifying party. It
also shows that the goods were
shipped in a 20 feet container
No. CTIU 321373-5 Seal No.
0002008 and contained 141 Bales
and 1 Box of Used Wearing
Apparel (Ladies Shorts)
Exhibit 2 is clear evidence of
the sale of used olive green
ladies shorts by the Plaintiffs
to the defendants. Apart from
this, the defendants
representative and its Managing
Director himself, in his
evidence testified that he
received a consignment of used
clothing, biscuits and some
green “shorts” from the
plaintiffs. He said the
defendants bought the used
clothing and biscuits but as
regards the green shorts his
duty was to clear the goods and
keep them in the warehouse for
Penu.
In their statement of defence
the defendants also denied that
the olive green ladies shorts
were sold to them. According to
them it was agreed that the
ladies shorts be shipped to
their address for details of
distribution; when the shorts
arrived in Ghana the European
manager of the Plaintiffs to
Ghana and it was agreed the
Defendants should try to sell or
return the goods.
From all these pieces of
evidence one thing is clear:
the Defendants received from the
plaintiffs a consignment of used
clothing, biscuits and used
olive green ladies shorts. It is
also not in dispute that the
used clothing and biscuits were
sold to the Defendants. The only
real issue between the parties
is whether the used olive green
ladies shorts were sent to the
Defendants on a sale – or return
basis.
Both the trial High Court Judge
and the Court of Appeal had no
difficulty in concluding that
the shorts were sold to the
Defendants and not sent to them
on a sale-or-return basis. We
agree with them. As the trial
judge said, if the goods were
not sold to the Defendants or if
they were rejected how did it
come about that they made part
payment for their value? For
payment for the goods is
inconsistent with the
Defendants’ assertion that the
goods were rejected by them.
Also the Defendant’s failed to
demonstrate by way of adduced
evidence that they rejected the
goods upon delivery to them.
The Court of Appeal on its part,
also considered two messages
from Defendants to the
Plaintiffs and came to the
conclusion that “there is no
indication in these messages
that the appellants (Defendants)
were mere warehousemen and that
the goods were meant to be
stocked and be sold by Mr. Penu
the agent of the respondents
(plaintiffs).” The court
concluded the appellants
imported and took delivery of
the goods as purchasers and not
as warehousemen.
We think there was ample
evidence to support and justify
the conclusions the courts below
came to. There is nothing in the
lengthy arguments of counsel for
the appellants which will
justify our interfering in any
way with those conclusions. This
ground too should also be
dismissed.
The Defendants have vigorously
challenged the validity of the
appointment of Dr. A.Q.A.
Archampong as the attorney for
the plaintiffs. They contend
that the Court of Appeal erred
in its view that Brower (Vice
President, Finance) of P.S.
International Limited acting
alone could under the Companies
Code, 1963 (Act 179) grant a
power of attorney to anybody in
Ghana to sue on behalf of P.S.
International Limited thereby
misinterpreting section 137(1)
of the Companies Code, 1963
which it held was the applicable
law.
Basing his arguments on Sections
137(1) of the Companies Code
(Act 179) and Regulation 77(1)
of the Second Schedule to Act
179 Part I Table A – Regulations
for a Private Company Limited by
Shares, counsel for the
Defendants has submitted that in
Ghana for a company to grant a
power of attorney to somebody to
act on its behalf, it must be
either through a resolution of
the board of directors, or
members at a general meeting. A
fortiori before a person can
initiate legal proceedings as
the lawful attorney of a company
in Ghana he must have been so
appointed either at a general
meeting, or by the company
acting through its board of
directors. In both situations a
resolution is required.
With respect, the statement that
in both situations a resolution
is required is not correct. It
is not supported by the texts of
section 137(1) of Act 179 and
Regulation 77(1) of Table A part
I of the Second Schedule to Act
179 or any reasonable
interpretation of them or the
general principles of Ghana
Company law. Section 137 of Act
179 provides:—
“A company shall act through its
members in general meeting or
its board of directors or
through officers or agents
appointed by, or under authority
derived from the members in
general meeting or the board of
directors.”
This provision codifies an
established rule that a company,
being an artificial person, must
act through human agents. S. 137
of Act 179 is mainly concerned
with the division of powers
between the general meeting and
the board of directors. It says
nothing about the mode of
appointment of the organs of the
company and its officers and
agents.
Regulation 77(1) of Table A Part
I also provides:
“The board of directors may from
time to time appoint officers
and agents of the company and
may appoint any body corporate,
firm, or body of persons,
whether nominated directly or
indirectly, by the board of
directors, to be the attorney or
attorneys of the company for
such purposes and with such
powers, authorities and
discretions, not exceeding those
vested in or exercisable by the
directors under these
regulations, and for such period
and subject to such conditions
as they may think fit”.
The clear intendment of this
provision is to vest the power
to appoint officers and agents
of the company in the board of
directors (rather than the
general meeting). It does not
specify the mode of appointment.
It does not say, and there is
nothing in it which will justify
the interpretation, that for any
such appointment to be valid a
resolution of the board must be
produced or it must be proved
that the board passed a
resolution to appoint the agent.
Under s.144 of Act 179 a company
may make a contract in the same
way as an individual may. If
the law requires that a contract
made between individuals ought
to be in writing under seal or
should be in writing or
evidenced in writing signed by
the parties, a company will be
bound to contract in the same
way. If a contract between
individuals can be made by
parole only so can a contract by
a company. In other words a
company may make a contract with
no more formality than is
required in the case of an
individual.
In any case a person contracting
with a company is not required
to demand the production of a
resolution authorizing the
board, the general meeting, an
officer or agent of the company,
as the case may be, to enter
into the contract. It has been
established since the case of
the Royal British Bank v.
Turquand (1856) 6 E and B 327;
[1843-60] All E.R. Rep. 435
[Exchequer Chamber] that a
person dealing with a company is
entitled to assume, in the
absence of facts putting him on
notice or inquiry, that there
has been due compliance with all
matters of internal management
and procedure required by the
Regulations of the company.
This is the Rule in Turquand’s
case or the “Indoor Management”
Rule. This rule is codified by
our Companies Code, Act 179, in
sections 139 to 143. Under s.142
(2), if the company has held out
some one as its agent it is
estopped from denying the
appointment; and a de jure or de
facto officer of the company can
be assumed to have the usual
powers and duties of that sort
of officer.
Section 142(2) is also in
accordance with normal agency
principles. Where a person
enters into a contract with an
officer or agent of a company
who has apparent or ostensible
authority of the company to
enter into the contract on its
behalf it will be estopped from
denying the authority of the
officer or agent. Since the case
of Freeman and Lockeyer v
Buckhust Part Properties
(Mangal) Ltd [1964] 2 Q.B. 480]
[1964] 1 All E.R. 630 (C.A.)
The courts have preferred to
deal with such cases according
to agency principles rather than
in accordance with the Rule in
Turquand’s Case. In the Freeman
and Lockeyer Case (supra)
Diplock, L.J. (as he then was)
defined apparent or ostensible
authority as follows:
“An “apparent” or “ostensible”
authority……….is a legal
relationship between the
principal and the contractor
created by a representation made
by the principal to the
contractor, intended to be and
in fact acted upon by the
contractor that the agent has
authority to enter on behalf of
the principal into a contract of
a kind within the scope of the
“apparent” authority, so as to
render the principal liable to
perform any obligations imposed
upon him by such contract.”
[1964] 2QB at p. 503.
In Hely – Hutchinson v Brayhead
Ltd [1968] 1 Q.B. 549; [1967] 3
All E.R. 98 (C.A.) Lord Denning,
M.R., defined it tersely as
follows:
“Ostensible or apparent
authority is the authority of an
agent as it appears to others”
[1968] 1 Q.B. at 583.
Applying all these principles to
the instant case, we have no
doubt that Dr. Archampong’s
appointment as the attorney of
the plaintiffs was proper and
valid. He was engaged by a
representative of the
plaintiffs, one Paul Penu, who
had been asked by the plaintiffs
to engage a lawyer to handle the
Plaintiffs’ claims against three
Ghanaian companies. Penu gave
him documents from P.S.
International Limited, the
plaintiffs, dated 13th December,
1988. Among the three debtor
companies were the defendants.
When he agreed to act for the
plaintiffs he was given the
power of attorney.
The power of attorney reads as
follows:
“POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS
THAT I, JOSEPH N. BROWER, being
the VICE PRESIDENT (FINANCE) OF
P.S. INTERNATIONAL LIMITED
specializing in International
Trading, with registered place
of business at 8910, Purdus
Road, Suite 260, Indianapolis,
Indiana, in the United State of
America, 46268 DO HEREBY APPOINT
and constitute DR. ALFRED
QUAO-ASHONG ARCHAMPONG,
Barrister-at-Law, Solicitor of
the Supreme Court of Ghana and
Notary Public, of JOY CHAMBERS,
D.896/3, Selwyn Market Street,
Accra, Ghana, an ATTORNEY of
P.S. International with General
Powers and specifically to
employ all legal process to
recover debts due and owing to
P.S. International by :-
(a) Godka Group of Companies
(b) ……………………………………….
(c) ……………………………………….
(d) ……………………………………….
And to do all manner of things
lawfully for the full
realization of purposes for
which the power herein is
granted.”
It was signed, sealed and
delivered by Joseph N. Brower on
behalf of P.S. International
Limited in the presence of one
Peter Tay. It was similarly
signed, sealed and delivered by
Dr. Archampong in the presence
of Peter Tay. It was notarized.
The power of Attorney complied
with the common law rules
relating to the making of a
power of attorney which is the
applicable law in this aspect of
powers of attorney in this
country: See Da Rocha and Lodo
Practical Draftsman Chapter 28
pages 319-325.
It is clear from the document
that Brower was (1) a
Vice-President of the plaintiff
company. (2) He signed, sealed
and delivered the document for
and on behalf of the plaintiff
company – and not in his
personal capacity. (3) From the
evidence on record he had been
sent to Ghana by the plaintiff
company to pursue the debts.
While here he held discussions
with the defendants who
unsuccessfully tried to persuade
him to do something about the
price. It was while he was in
Ghana that the power of attorney
was given to Dr. Archampong.
In our opinion Brower had
apparent or ostensible authority
on behalf of the plaintiff's
company to appoint Dr.
Archampong as the plaintiff’s
attorney. Even if he had no
actual authority to do so there
was nothing to put Dr.
Archampong on inquiry about his
lack of authority. Dr.
Archampong was viz-a-viz P.S.
International Limited an
outsider, in the sense that he
had no actual knowledge of
Brower’s lack of authority; nor
in a position or relationship to
the company from which he ought
to have known that he had no
authority to give the power of
attorney – See proviso (a) to
Section 142 (d) of Act 179.
In terms of the Power of
Attorney granted to him by the
Plaintiff he had authority to
institute the proceeding against
the defendants. We do not see
anything wrong with the
endorsement that should vitiate
the proceedings.
The appeal should be dismissed.
D.K. AFREH
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
In view of my position in the
case of the Republic v. High
Court, Ex-Parte Expandable
Polythrene Products Limited
Civil Motion 21/2002/ dated 24th
July, 2001. I will go along
with my colleagues that the
appeal be dismissed.
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
BAMFORD-ADDO (MRS), J.S.C.:
I agree.
J.A. BAMFORD-ADDO (MRS)
JUSTICE OF THE SUPREME COURT
ADJABENG, J.S.C.:
I agree.
E.D.K. ADJABENG
JUSTICE OF THE SUPREME COURT
ATUGUBA, J.S.C.:
I agree.
W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
COUNSEL
Dr. A.Q.A. Archampong for
Respondent.
Mr. Djabanor for the Appellant.
gso*
|
