Judicial
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“Courts reserve the authority to re-evaluate the findings of the Labour Commission, under administrative order enforcement actions.” The National Labour Commission sought enforcement at the High Court, of an administrative order which the Commission had issued to Ghana Telecommunications Ltd, related to the dismissal of an employee. The High Court dismissed the application for the following reasons: The Commission had no power to substitute its own case for that of the another (i.e. the dismissed employee); The Commission had not made a finding of fact on unfairness or otherwise in relation to the dismissal of the employee; and The decision of the Commission in its administrative proceedings, was incomplete.   The Commission appealed to the Court of Appeal on the grounds that the High Court had erred when it questioned the correctness or otherwise of the Commission’s decision, instead of just enforcing the decision submitted to the court for enforcement. The Court of Appeal upheld the ruling of the High Court, and on further appeal, the Supreme Court too sustained the ruling, positing that a court of law cannot enforce the Commission’s order without satisfying itself that the order was justified in the first place. Therefore, investigation proceedings which were laid before the Commission,...

“ Failure to invoke lack of jurisdiction prior to pleadings in litigation, constitutes a waiver of arbitration.” The parties to a construction agreement with dispute resolution provisions which stipulated arbitration, entered into litigation proceedings for breach of contract. At the conclusion of pleadings and pre-trial processes, after hearings commenced, the defendant requested the court to refer the parties to arbitration in accordance with the terms of the underlying contract. The trial court did not accede to the application in its terms, because it was filed out of time in view of the provisions of section 6(1) of the Alternative Dispute Resolution Act, 2010 (Act 798), which permits the defendant to apply for the reference to arbitration after entry of appearance. However, the trial court on its own motion, applied the provisions of section 7(5) of the Act, and referred the parties to arbitration. In view of the above, the plaintiff unsuccessfully appealed to the Court of Appeal who affirmed the decision of the lower court. Unsatisfied, the plaintiff appealed to the Supreme Court to determine the following questions: (i) whether parties to a contract with an arbitration clause, can resort to court litigation in respect of matters covered by the arbitration clause; and (ii) if...

“A company engaged in mining activities requested the inhabitants of Kyekyewere village and its adjoining area to vacate the village for the purpose of its mining operations. Upon relocation, the structures at Kyekyewere were demolished by the Company.” Having agreed with the inhabitants on the compensation to be paid on their buildings, the compensation for the disturbance of farming activities at the old village, which was as a result of their relocation, was outstanding. In view of the above, the inhabitants filed a suit, and the High Court held that they were entitled to compensation. Upon appeal, the Court of Appeal and Supreme Court held that the Company had an obligation under Section 71(1) of the Minerals and Mining Act, 1986 (PNDCL 153), to also compensate the inhabitants in respect of the farms at Kyekyewere. According to the Courts, Section 71(1) as it relates to “land subject to a mineral right”, includes other lands in the area affected by the operations of the holder of a mineral right apart from the land designated in the mineral lease. Insight: Compensation is not only limited to the land designated in the mineral lease. Compensation may cover other lands in the area that will be affected...

“An international business or economic transaction to which the Government of Ghana is a party requires Parliamentary approval. Contracts in breach of Constitutional provisions cannot be enforced.” A Company entered into a Power Purchase Agreement (PPA) with the Government of Ghana (“GoG”), acting through the Minister of Mines and Energy, for the purchase of electric power. The Company instituted proceedings against the GoG for breach of contract, claiming relief by either specific performance or damages.  The High Court entered summary judgment granting relief in favour of the Company. The Defendant ultimately appealed to the Supreme Court questioning the legality of the summary judgment entered against it and damages that were founded. The issue before the Supreme Court was whether or not damages could lawfully be assessed on a contract, being an international business or economic transaction to which GoG was a party, where parliamentary approval was not obtained per Article 181(5) of the 1992 Constitution. The Supreme Court held that the PPA was indeed unconstitutional and therefore void. The Company was then not entitled to any damages for breach of contract. Insight: New foreign investors and contractors transacting with the Government of Ghana may be unfamiliar with the constitutional requirement for parliamentary approval of international...

“A person’s capacity to sue must be established either under a statute or rule of practice”. An Offshore Trust Company (“Trust”) instituted legal proceedings against a Ghanaian Investment Bank, on behalf of certain investors who had purchased promissory notes issued by a Company and allegedly guaranteed by the Investment Bank. The endorsement on the Writ of Summons failed to disclose who the “investors” were. The Supreme Court held that the Trust had no capacity to institute the proceedings against the Investment Bank because it failed to disclose the identities of the investors. The Court applied the mandatory rule under Order 2 Rule 4(2) of the High Court Civil Procedure Rules, 2004 C.I. 47, that, a plaintiff in an action ought to disclose the identities and addresses of all persons on whose behalf it was suing. The Court went on to say that, non-compliance with this rule rendered a Writ void and could not be amended subsequent to its issuance, and therefore, all the earlier proceedings at the High Court and Court of Appeal that waived the non-compliance with the Order were to be set aside. Insight: Lawsuits are public in nature. Anonymity is lost in the choice of litigation for dispute resolution. All parties must...

 “…..consideration need not move from a promisee to validate a contract” A Government of Ghana (GoG) contract was awarded to a Company for the hauling of electricity poles and other electrical materials. The Company obtained a loan facility from a Bank to enable it to execute the said contract. The GoG guaranteed to make payment in the joint names of the Bank and the Company; however, payment was only made to the Company without reference to the Bank. Subsequently, the Company failed to pay same to the Bank to redeem their indebtedness. The main issue for determination by the Supreme Court was, whether or not the letters of undertaking and guarantee given by the GoG to the Bank and the Company, constituted a legal basis that the GoG and the Company were to jointly pay the Bank all the sums due under the contract together with interest. The Supreme Court upheld the decision of the Court of Appeal that the GoG and the Company where jointly liable to pay the Bank the sums due under the contract, notwithstanding the consideration in respect of the contracts between the GoG and the Company on the one hand, and the Company and the Bank on the other...