Judicial
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“Applications for the adduction of fresh evidence on appeal are not the sole preserve of an Appellant in the appeal; a Respondent may be granted leave to adduce fresh evidence on appeal” The Appellant appealed to the Supreme Court against the decision of the Court of Appeal that a parcel of land which the Appellant acquired through a lease did not form part of the vested land by the Stool Lands (Efutu and Gomoa Ajumako Instrument, 1961) (E.I 206). The Appellant was permitted to “adduce” (meaning, to present or offer) fresh evidence in the appeal. In reaction to this, the Respondent applied for authorization to also adduce fresh evidence to counter the Appellant’s fresh evidence. The Supreme Court held that under Rule 76 of the Supreme Court Rules, 1996 (C.I 16), all parties to an appeal may seek leave to adduce fresh evidence where it is in the interest of justice. In such instances, the Applicant must demonstrate that the evidence was not available at trial or could not have been obtained by the Applicant for use during the trial despite conducting reasonable due diligence. In addition to this, where the Appellant is permitted to adduce fresh evidence and the Respondent seeks to...

“There is a point of diversion between Redundancy occasioned under section 65(1) and 65(2) of Act 651: Redundancy under section 65(2) unlike under 65(1) mandatorily requires the employer to pay the employee Redundancy Pay”. The employment of two workers were terminated by the Appellant Bank. The Letters of Termination stated that significant changes had occurred in the demands or skills and competencies required for the delivery of the Bank’s objectives, and as such their employment was terminated. The Appellant Bank undertook to submit proposals for the negotiation of a Redundancy package with the labour representative of the affected employees. However, negotiations broke down due to the inaction of the Appellant Bank. A complaint was lodged at the Labour Commission (the “Respondent”). The Respondent determined that the Complainants should be paid Redundancy Pay. The Respondent subsequently applied to the High Court to enforce its decision. The High Court dismissed the application on the grounds that the ruling of the Respondent was not justified in law since the conditions precedent for Redundancy were not proven. The Respondent appealed. The Court of Appeal unanimously upheld the appeal. The Appellant Bank appealed to the Supreme Court. One of the grounds of appeal was: that the Court of Appeal...

“This was an appeal from an application for stay of execution which was deemed refused by the Court of Appeal.” In the substantive case, Ogyeadom Obranu (“Respondent”) alleged that Ghana Telecommunication Ltd (“Applicant”) had encroached on his family land. At the end of the case brought before Agona Swedru the High Court, the trial judge granted the Respondent’s reliefs and awarded damages of USD 16,009,920.00 against the Applicant who appealed the decision. The Applicant also applied to the Court of Appeal for stay of execution of the judgment, after being refused at the High Court. The court granted the application on condition that the Applicant pays 30% of the judgment debt (GHS 21, 215,040.00), which it did. Unfortunately for the Applicant, the substantive appeal was dismissed by the Court of Appeal. The Applicant appealed to the Supreme Court from that decision and applied for stay of execution of the Court of Appeal’s judgement a day after. Though the application was granted by the Court of Appeal, the Applicant deemed it a refusal because of the terms given and repeated the application before the Supreme Court. The Respondent contended that since the Court of Appeal had simply dismissed the substantive appeal without more, there was...

“A mortgage shall have no legal effect until it is registered.” In 2007, the 2nd Defendant (the “Mortgagor”) mortgaged his property as collateral for a loan to the Appellant (the “Mortgagee”), on consent of the Lands Commission. Both parties failed to register the executed mortgage at the Lands Commission until 2010. Meanwhile, between 2008 and 2009, separate portions of the encumbered property were assigned respectively to the 1st Claimant and the 2nd Claimant (the “Claimants”). Subsequently, the Mortgagee obtained judgement against the Mortgagor for recovery of the loan and attached the property in question in satisfaction of the judgment. The Claimants filed their respective claims which resulted in interpleader proceedings initiated by the Sheriff of the High Court. The High Court held that the Claimants were bona fide purchasers for value without notice of the encumbrance and discharged the properties from the attachment. The Mortgagee appealed to the Court of Appeal and same was dismissed. The Mortgagee further appealed to the Supreme Court, where the fundamental issue was restated as “whether or not the 1st and 2nd Claimants/Respondents in the circumstances of this case were bona fide purchasers for value without notice”. The Court held that in assessing whether a purchaser of land is a...

“The parties contracted to be governed by the FIDIC Rules. These Rules provide for a dispute resolution process.” The Plaintiff was contracted by the Defendant to put up a 160 – bed regional hospital at Wa in the Upper West Region of the Republic of Ghana. The parties contracted under the International Federation of Consulting Engineers (FIDIC) Rules (“the Rules”). As the work progressed, the Defendant was issued invoices in tranches for work done. The Defendant refused to make payment and terminated the contract. The Plaintiff commenced an action in the High Court claiming payment for work done among others. The Defendant applied and the matter was referred by the Court to the Dispute Adjudication Board (DAB) per the Rules. The DAB determined that the Defendant should pay a sum of money. The Defendant gave a notice of dissatisfaction to the Plaintiff before the expiration of 21 days and the High Court, per the Rules, referred the matter to international arbitration. The Plaintiff appealed the decision to refer the matter to arbitration. The appeal was dismissed by the Court of Appeal. The Plaintiff appealed to the Supreme Court and it considered three main issues: · Whether the DAB process was an arbitration and its...

“Wrongful dismissal or unfair termination? Distinct causes of action and thresholds exist under the statute for challenging termination of employment.” The Plaintiff was the Deputy Branch Manager of the Defendant bank. The Plaintiff was presented with two transfer request letters from a corporate accountholder of the Defendant, for the transfer of sums of money to the accountholder’s client. The Plaintiff signed against the signatures on the transfer request letters without following due process and forwarded them to the International Business Centre (IBC) of the Defendant bank. The sums were duly transferred to the named beneficiary. It was later discovered that the signature on the transfer request letters was forged and the Defendant bank could not recover the amounts transferred. On the basis that the Plaintiff acted negligently, causing loss to his employer, the Defendant bank terminated the employment of the Plaintiff. The Plaintiff sued the Defendant for wrongful termination of employment the trial High Court, however, held that Plaintiff’s employment had been unfairly terminated. By appellate ruling, the Court of Appeal held that the employment of the Plaintiff had not been terminated unlawfully or wrongfully as he had been negligent in the performance of his duty. Further appeal solidified that, “unfair termination” is a...

“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...